Sucec v. Regents of University of California

Opinion

SCOTT, Acting P. J. Margaret Sucec appeals from a denial of her petition for a writ of mandate to compel respondent university to afford her a grievance hearing to contest her dismissal. Appellant was employed by the respondent university from 1968 to the date of her dismissal on August 30, 1976. On August 18, 1976, she received written notice of dismissal effective August 30, 1976. She was also advised: “You have a right to discuss this matter with our Personnel Analyst, Mr. Jeff Green and you have the right to grieve.” The University of California staff personnel policy section 280.7 provides that an employee desiring a grievance hearing must make a request therefor “within 30 calendar days after the date on which he acquires knowledge or reasonably could be expected to know of the event or action which gave rise to [41]his grievance.” Appellant requested a grievance hearing on September 22, 1976, five days beyond the thirty-day requirement of rule 280.7. Respondent denied appellant’s request for a hearing as being untimely.

No findings of fact or conclusions of law were made by the trial court. Therefore, every intendment is in favor of the judgment and it will be presumed that the trial court in effect found all the facts necessary to support the judgment. (4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 310, p. 3118.) The instant case was decided on affidavits in support of and opposition to the petition for a writ of mandate. Those affidavits include a declaration of respondent employee Jeffrey D. Green and appellant Margaret Sucec. In considering an appeal from an order which is based on affidavits, which involves the determination of a question of fact, an appellate court is bound by the same rule that controls where oral testimony is presented for review, namely, (1) if there is any conflict in the affidavits those favoring the prevailing party are accepted as true and (2) since all intendments are in favor of the action taken by the lower court, the affidavits in behalf of the successful party are deemed not only to establish the facts directly stated therein but all facts reasonably to be inferred from those stated. (DeWit v. Glazier (1957) 149 Cal.App.2d 75, 81-82 [307 P.2d 1031].) We turn now to examine the affidavits to determine if there is substantial evidence to support the judgment. The affidavit of Jeffrey Green stated that on August 18, 1976, the date of the dismissal letter, appellant called him advising that she had received the dismissal letter and would require copies of grievance forms and policies in order to protest the action. Arrangements were made to supply appellant with copies of the requested material. At no time thereafter until September 22, 1976, when appellant’s grievance was filed were there any discussions with appellant or her attorney of “the time from which the filing deadline for that grievance would be computed.” Appellant’s declaration stated that in the telephone conversation with Mr. Green on August 19, he advised her that she had 30 days from the effective date of her discharge, that is, August 30, within which to file the grievance. The court was, of course, entitled to accept the declaration of Mr. Green which provides substantial evidence that no such representation in fact was made to appellant. In her brief appellant states that a letter from Mr. Green to appellant’s attorney on October 7, 1976, which is attached to appellant’s declaration, contradicts Green’s declaration in that a portion of the letter stated as follows: “I had a conversation with Ms. Sucec in mid-August regarding the timeliness issue and at that time I advised her that a person had thirty days from the date on which he or