Coelho v. State Personnel Board

Opinion

DABNEY, Acting P. J.

Richard Coelho appeals from an order sustaining a demurrer without leave to amend.

Facts

Appellant Richard Coelho, a warden with the California Department of Fish and Game (Department), received a notice of adverse action alleging inefficiency, inexcusable neglect of duty, dishonesty, and other failure of good behavior causing discredit to the employer. Coelho filed a response, and a hearing was conducted before an administrative law judge (ALJ). The ALJ upheld the discipline against Coelho. The Personnel Board of the State of California (Board) adopted the ALJ’s findings. Coelho was ordered suspended from duty without pay for four days.

Coelho filed a petition for a peremptory writ against the Board and the director of the Department (respondents). Among other things, Coelho alleged in the petition that the findings of the Board were based upon insufficient evidence and the Board therefore abused its discretion. Respondents filed a demurrer to the motion on the ground that the court lacked jurisdiction. Coelho filed a response to the demurrer. Following a hearing, the trial court sustained the demurrer without leave to amend on the ground that it lacked jurisdiction to hear the petition.

Discussion

The sole issue on appeal is whether the trial court erred in sustaining the demurrer to Coelho’s motion for peremptory writ of administrative mandamus.

Coelho concedes that administrative mandamus under Code of Civil Procedure section 1094.5 was not an available remedy. Administrative

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mandamus lies to review decisions which result from evidentiary administrative hearings which are required by law to be held. (Code Civ. Proc., § 1094.5;

Taylor

v.

State Personnel Bd.

(1980) 101 Cal.App.3d 498, 505 [161 Cal.Rptr. 677].) Coelho was suspended for only four days; the Department was not required to hold an evidentiary hearing to impose a suspension of five days or less. (Gov. Code, § 19576.)