Monsivaiz v. L.A. County Civil Service Com. (L.A. County Dept. of Ag. Comr.)

Filed 4/28/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

PETER MONSIVAIZ, B254859

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BS136555) v.

LOS ANGELES COUNTY CIVIL SERVICE COMMISSION,

Defendant and Respondent;

COUNTY OF LOS ANGELES DEPARTMENT OF AGRICULTURAL COMMISSIONER/WEIGHTS AND MEASURES,

Real Party in Interest.

APPEAL from an order of the Superior Court of Los Angeles County. Luis A. Lavin, Judge. Affirmed.

Law Office of Esteban Lizardo and Esteban Lizardo for Plaintiff and Appellant.

McMillion & Hirtensteiner, Janine McMillion and Sylvia Havens for Defendant and Respondent.

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The sole question presented is whether the death of plaintiff and appellant Peter Monsivaiz during the pendency of the underlying writ proceeding divested defendant and respondent Civil Service Commission of the County of Los Angeles (Commission) of jurisdiction, thereby mandating a dismissal of plaintiff‟s writ proceeding. We conclude that it did, and therefore affirm the court‟s order dismissing the writ proceeding with prejudice. FACTUAL AND PROCEDURAL BACKGROUND We summarize only those facts germane to the narrow issue presented, and those facts are undisputed by the parties. Plaintiff was employed as an agricultural inspector aid by real party in interest County of Los Angeles Department of Agricultural Commissioner/Weights and Measures. Plaintiff was terminated from his position on February 18, 2010. Plaintiff appealed his discharge to the Commission. Following a hearing that took place over a period of days, the hearing officer issued his decision recommending that plaintiff‟s discharge be upheld. On December 14, 2011, the Commission issued its final order and decision adopting the hearing officer‟s recommendation and sustaining real party in interest‟s discharge of plaintiff. On March 13, 2012, plaintiff filed a petition for writ of mandate pursuant to Code of Civil Procedure sections 1094.5 and 1094.6 contesting the Commission‟s final order and decision. Plaintiff‟s writ petition sought an order from the superior court directing the Commission to set aside its decision, to reinstate plaintiff to his former position as an agricultural inspector aid, and to award plaintiff backpay. On January 16, 2013, plaintiff died while the writ proceeding was still pending. Plaintiff‟s widow, Corina Monsivaiz, filed a motion pursuant to Code of Civil Procedure section 377.31 for an order deeming her plaintiff‟s legal successor in interest and allowing her to maintain the writ proceeding through to completion. The Commission opposed the motion, arguing the writ proceeding abated and did not survive the death of plaintiff and that the proceeding had to be dismissed for lack of jurisdiction. The Commission did not dispute that plaintiff‟s widow was the proper successor in interest,