Friday, May 15, 2009
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C.A.: Lawyer’s Untimely Administrative Filing Inexcusable
Judge Erred in Allowing Belated Civil Service Appeal, Panel Says
By SHERRI M. OKAMOTO, Staff Writer
A Los Angeles Superior Court judge erred in ordering the Los Angeles County Civil Service Commission to hear an employee’s untimely appeal in order to remedy her attorney’s mistake, this district’s Court of Appeal has ruled.
Div. Three held that Los Angeles attorney F. Bari Nejadpour’s failure to comply with the appeal procedures set forth on the notice of discharge did not establish good cause for an extension of time in an April 16 decision, ordered published Wednesday.
Nejadpour was retained by Massie Munroe after she was discharged from her position as an associate civil engineer with the Los Angeles County Department of Public Works for allegedly making threatening statements about “guns” and “shooting” people in the workplace.
At a disciplinary hearing, Munroe was personally served with the notice of discharge informing her that she had a right to request a hearing before the Civil Service Commission to appeal her discharge, and that such a request had to be delivered to the Civil Service Commission within 15 business days. Nejadpour signed for its receipt.
He then sent a letter to the commission 52 days later requesting an appeal hearing and claiming that he had sent timely notice to Nohemi J. Ferguson, the outside counsel who had represented Munroe’s employer at the disciplinary hearing.
Nejadpour sent a second letter to the commission about six weeks later, explaining that “[i]t simply appeared that since…Ferguson represented the LACDPW then she should be the one that would receive the notice of appeal regarding my client’s wrongful termination.”
The day after Nejadpour sent the second letter, the commission served a notice on Nejadpour and Munroe informing them that Munroe’s claim would be considered at an upcoming commission meeting. This notice stated that Munroe would be allowed to present her case if she appeared at the meeting, but attendance was not compulsory.
Neither Munroe nor Nejadpour made an appearance, and the commission denied Munroe’s request for an appeal based on the untimely filing of her request.
Nejadpour then petitioned for writ relief. While he denied having received notice of the hearing, a proof of service was attached to the notice and the trial court found notice had been given.
Judge James Chalfant also found that the commission’s decision not to consider the appeal “probably was not arbitrary, capricious or lacking in evidentiary support,” because Munroe’s appeal had not been timely and she had not sought an extension from the commission upon a showing of good cause.
But the judge determined that the belated request for an appeal provided good cause for an extension of time. As Munroe and her attorney “simply failed to read the filing instructions in the Notice of Discharge and make a timely petition for a hearing,” and based on the law’s preference for a hearing on the merits, the judge held that the commission’s decision was an abuse of discretion.
Writing for the appellate court, however, Justice Richard D. Aldrich, joined by Presiding Justice Joan D. Klein and Justice H. Walter Croskey, concluded that the trial court’s ruling was erroneous as a matter of law.
Aldrich explained that Nejadpour’s letter to Ferguson did not constitute a proper filing of a notice of appeal with the commission. Given that the notice of discharge, which Nejadpour signed for, spelled out the proper procedure for him to follow, Aldrich reasoned the attorney “was not warranted in believing that he could file Munroe’s request for appeal hearing with the DPW.”
As the notice subsequently delivered to the commission was “nearly two months late,” Aldrich concluded that the commission’s denial of the appeal was not unlawful, lacking in evidentiary basis, arbitrary, or capricious.
The justice noted that the appeals procedure set forth in the notice of discharge was “neither complex nor obtuse,” and that Nejadpour did not offer any excuse as to why he had failed to comply with the 15-day rule other than his failure to read the instructions on the notice.
Aldrich explained that the attorney’s failure to discharge routine professional duties was not good cause for filing a late appeal, and that the trial court improperly substituted its judgment for that of the commission by ruling good cause had been shown.
Calvin House of Gutierrez, Preciado & House who represented the Department of Public Works, praised the opinion for providing “clarity as to what is meant by the rule as for the terms for granting a hearing and what constitutes good cause for an extension of time for filing an appeal.”
He said he had requested publication of the decision because “it addresses a Civil Service Commission rule and the county was interested in having a citable decision about the interpretation of the Civil Service Commission rule.”
While House acknowledged that “it’s not an infrequent occurrence that an attorney misses a deadline,” he suggested that the decision provided an “illustration of the fact that there are consequences for that happening.”
Munroe was represented on appeal by Nejadpour and Evelyn J. Abasi of the Law Offices of Nejadpour & Associates. Neither could be reached for comment.
Nejadpour, who was admitted to the State Bar in 2001, is currently facing discipline charges based on alleged misconduct in several other cases.
The State Bar filed a 35-count initiating document against the attorney in December charging Nejadpour with client trust account violations, failing to perform competently, making misrepresentations to the court, State Bar, clients and opposing counsel, and other transgressions between 2003 and 2006. The attorney has denied any wrongdoing.
The case is Munroe v. Los Angeles County Civil Service Commission (Los Angeles County Department of Public Works), 09 S.O.S. 2712.
Copyright 2009, Metropolitan News Company