Michael Little et al vs The Regents of the University of California et al

Case Number

23CV00294

Case Type

Hearing Date / Time

Fri, 10/27/2023 - 10:00

Nature of Proceedings

Petition: Confirm Arbitration

Tentative Ruling

For the reasons set forth herein, the February 25, 2022, Arbitration Award is confirmed as written. No modifications will be made based on post-arbitration communications.

Background:

This action arises out of petitioner Michael Little’s (Little) employment with respondent University of California, Santa Barbara (UCSB) as a police officer.

UCSB terminated Little for alleged violations of the UCSB Police Department Policy Manual. Little worked for the University of California from 2004 to 2007. He was then employed by the City of Santa Barbara Police Department until 2014, when he returned to the University of California Police Department.

UCSB alleged that, among other violations, Little performed a simulated draw of his firearm against other police officers. He never actually drew the firearm. The first of the three incidents involving Little took place on September 7, 2018. The second incident occurred on December 4, 2018, and the third took place on March 12, 2019. Following complaints by other officers, Little was placed on administrative leave April 10, 2019.

Following investigation of the complaints, on January 14, 2020, Interim Chief James Brock issued an intent to terminate effective January 27, 2020, for false and misleading statements during investigation, and reckless unsafe firearm drawing simulations.

Pursuant to the University of California and The Federated University Police Officers Association agreement (agreement), on March 23, 2020, Little filed a grievance challenging just cause. Following a “Skelly hearing,” Chief Denson determined that Little made misleading false statements, a terminable offense, could not be trusted, and should be terminated.

Following additional procedures, as provided in the agreement, the parties submitted the matter to arbitration with Fred D. Butler (Butler). The parties stipulated that the “arbitrator shall retain jurisdiction to clarify, interpret, and issue any necessary post-hearing rulings needed to carry out the findings and decisions.” (Arbitrator’s Decision, p. 3.) The arbitration took place over several days in October 2021. Pursuant to Butler’s written decision, the issue to be decided was: “Whether the Employer has just cause to disciple the Grievant and terminate him from his position. If not, what is the remedy?” (Arbitrator’s Decision, p. 4.)

After hearing testimony and considering evidence presented by the parties, Butler found: “The Grievance is denied in part and sustained in part. With regard to the charge of “quick draw”, the grievant is denied and University charges are sustained. The University has just cause to discipline the Grievant. With regard to charges of Dishonesty, the Grievance is sustained and the University does not possess just cause for discipline.” (Arbitrator’s Decision, p. 33.) the decision is dated February 25, 2022.

Over five months later, on August 8, 2022, Little’s counsel emailed Butler correspondence and presented a case against the remedy of termination. Counsel requested “clarification, interpretation, and the issuance of a post-hearing ruling in order to facilitate the implementation of the findings and decision.” On August 9, 2022, counsel for UCSB sent correspondence to Butler objecting to Little’s request for clarification, arguing that the decision is final and binding, and that Little failed to challenge the decision within 90 days of the final decision. On August 10, 2022, Little’s counsel sent another letter to Butler setting forth his position that pursuant to stipulation of the parties, Butler retains jurisdiction to clarify, interpret, and issue any necessary post-hearing rulings needed to carry out the findings and decisions. Little’s counsel requested clarification regarding the appropriate level of discipline against Little.

Butler responded by email on August 15, 2022, stating: “I now have received all of the positions relative to this matter. Please accept this as my response. The Claimant is correct in his position that the Arbitrator has an obligation to clarity his or her decision when it is required. However, in this instance the Grievant is requesting that the Arbitrator take a position and even recommend the level of discipline in this matter. The Award/Decision as well as the facts in this matter are clear. In that light the Employer has the right to decide its appropriate discipline based on the facts, nature of the violation, findings, and its own rules. In that light, it would be inappropriate for the Arbitrator to recommend or suggest the level of discipline in this matter unless it was requested or stipulated by all parties.”

On August 22, 2022, counsel for Little followed up with Butler and reminded him that the issue to be decided in the case was: “was there just cause to terminate Mr. Little’s employment with the University? If not, what should be the remedy?” It was also pointed out that “the contract that controls these final and binding arbitration proceedings actually requires the arbitrator to specify a remedy in this case. Specifically, the contract provides that ‘[t]he decision of the arbitrator will be restricted to whether there is a violation of the Agreement as set forth in the last preceding written answer of the University. If such a violation is found, the arbitrator shall specify the remedy in accordance with the terms of this Agreement… If the grievance is sustained in whole or in part, the remedy shall not exceed restoring to the employee the pay, benefits or rights lost as a result of a violation of the Agreement less any compensation from any source, including, but not limited to, Workers’ Compensation and Unemployment Insurance benefits.’ ”

On August 23, 2022, Butler responded by email: “This will be my last correspondence on this matter. The Award/Decision needs no further clarity. The Employers discipling of Termination was denied. There for [sic] any discipline short of termination would be appropriate if based on the evidence, employer policies and procedures. Any further discussions and processes available to the parties will have to suffice. This should clarify this issue.”

UCSB petitioned for confirmation of the arbitrator’s decision, in related Case No. 22CV04751, on December 1, 2022, and requests that the court confirm the decision as originally written.

Little petitioned for confirmation of the decision, on January 24, 2023, and requests that the court confirm the decision to include the emailed “clarification” that any discipline short of termination would be appropriate.

Analysis:

As an initial matter, UCSB argues that Little’s requests for clarification were untimely because they were not brought within 30 days pursuant to Code of Civil Procedure section 1284. However, as noted above, the parties stipulated that the “arbitrator shall retain jurisdiction to clarify, interpret, and issue any necessary post-hearing rulings needed to carry out the findings and decisions.” Although it is unclear why Little waited over five months to seek clarification, there is no time limitation imposed by the stipulation. Neither party was time barred from requesting clarification by the arbitrator.  

“The [arbitration] award shall be in writing and signed by the arbitrators concurring therein. It shall include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.” (Code Civ. Proc., § 1283.4.) The February 25, 2022 arbitration award is in writing and signed by Butler.

Code of Civil Procedure section 1286 provides: “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.”

“Under section 1286, the superior court has only four options when a petition to confirm or vacate an arbitration award is filed. The superior court may (1) confirm the award as made; (2) correct the award and confirm it as corrected; (3) vacate the award; or (4) dismiss the proceeding.” (Kelly Sutherlin McLeod Architecture, Inc. v. Schneickert (2011) 194 Cal.App.4th 519, 527-528.)

The court has no authority to alter the terms of an arbitration award absent a petition to correct. (Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.)

Any request that the court either vacate or correct the award is time barred pursuant to Code of Civil Procedure section 1288, which provides, in pertinent part: “A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner.” Here, neither party is moving to vacate or correct the award. Rather, they are both seeking to confirm the award with Little claiming that Butler’s August 23, 2023 email is a part of the award, and UCSB arguing that it is not.

The email communications by Butler do not constitute any kind of legally significant modification to, or clarification of, the arbitration award. They are simply emails. The emails, in fact, appear to contradict one another. The August 15, 2022 email imposes no limitation on UCSB’s remedy and states that the “[e]mployer has the right to decide its appropriate discipline based on the facts, nature of the violation, findings and its own rules.” Then, the August 23, 2022 email states that “any discipline short of termination would be appropriate.” Neither of the emails, or even the award itself, specifies what UCSB’s remedy is against Little for Little’s “quick draw” violations. Butler could have prepared, and signed, an official “corrected award,” or “amended award,” specifying UCSB’s remedy. He did not do so. Based on both of Butler’s emails, he asserts that the award needs no further clarification. It would go beyond “confirming” the arbitration award if the court were to add in language from Butler’s email. Doing so would amount to a modification of the award. Under the current circumstances, as presented by the parties, the court does not have the authority to modify Butler’s official, signed, arbitration award by adding post-arbitration terms that were informally communicated to the parties by way of emails.

As it is required to do so, the court will confirm the arbitration award as made. No modifications to the written and signed arbitration award will be made based on post-award communications. The court offers no opinion regarding the interpretation of Butler’s decision or what remedy is appropriately allowed pursuant to the award.