Nadkarni v. IndiaCommunity Center

Nadkarni v. IndiaCommunity Center

Filed 2/24/10 Nadkarni v. India Community Center CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

DATTAPRASANNA G. NADKARNI, Plaintiff and Appellant, v. INDIA COMMUNITY CENTER et al., Defendants and Respondents.

H033805 (Santa Clara County Super. Ct. No. CV111519)

Plaintiff Dattaprasanna G. Nadkarni sued defendant India Community Center for wrongful termination in violation of public policy. The trial court sustained a demurrer to the first amended complaint without leave to amend. Plaintiff appeals from the order and contends that he stated a cause of action. We treat the notice of appeal as filed immediately after the judgment. We affirm the judgment.

appealability

Appellate jurisdiction in California is conferred by article VI, section 11, of the Constitution, but controlled by statute. [A] party possesses no right of appeal except as provided by statute. (Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78.) In order to exercise that right, an appellant must take an appeal from a statutorily declared appealable judgment or order. (Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1010.) The most common types of appealable judgments or orders are final judgments and orders made after a final judgment. (Code Civ. Proc., 904.1, subds. (a) & (b).)

An appeal is taken from superior court by filing with the clerk of that court a notice of appeal. (Cal. Rules of Court, rule 8.100(a)(1).) The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed. (Id., rule 8.100(a)(2).) The notice of appeal limits the power of the reviewing court. (Smith v. Halstead (1948) 88 Cal.App.2d 638, 640.) It must be filed within 60 days after the clerk or opposing party serves a Notice of Entry of judgment (or a file-stamped copy of the judgment) or 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104(a).)

Plaintiff filed his notice of appeal on February 4, 2009. The notice appeals from a Judgment of dismissal after an order sustaining a demurrer. It further states that the judgment was entered and served on November 25, 2008. Since plaintiff filed his notice more than 60 days after service, plaintiffs appeal appears untimely and we would ordinarily dismiss it. But the ruling entered on November 25, 2008, is not the trial courts judgment but rather the order sustaining defendants demurrer-the trial court entered judgment dismissing the action on August 20, 2009. We would nevertheless ordinarily dismiss plaintiffs appeal because An order sustaining a demurrer is interlocutory and thus not appealable. Any appeal must be taken from the subsequently entered judgment of dismissal. (Forsyth v. Jones (1997) 57 Cal.App.4th 776, 780.)

Under certain circumstances, appellate courts will salvage appeals like this one. California Rules of Court, rule 8.104(e)(2), provides: The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment. Factors justifying such consideration have been the interests of justice, the prevention of delay, and that the trial judge clearly contemplated that a formal judgment was to be prepared, signed, and filed. (Reyna v. City and County of San Francisco (1977) 69 Cal.App.3d 876, 879.) Other factors are that a judgment was actually entered, there is no doubt as to the ruling the appellant seeks to have reviewed, and the respondent could not possibly have been misled. (Forsyth v. Jones, supra, 57 Cal.App.4th at p. 780.)

Here, the trial court actually entered judgment, defendant asserts in its motion to augment the record with the judgment that it prepared the judgment for the trial courts signature in January 2009, defendant resists the appeal on the merits, and defendant asks us to decide it. We therefore treat plaintiffs notice of appeal as filed immediately after entry of judgment.

scope of review

We review an order sustaining a general demurrer under well-established principles. The appeal presents the question of law whether the complaint, liberally construed, contains facts sufficient to entitle plaintiff to any relief. We assume the truth of all material facts properly pleaded in the complaint unless they are contradicted by facts judicially noticed, but no such credit is given to pleaded contentions or legal conclusions. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 768-769.)

first amended complaint

From September 23, 2003, until April 30, 2004, plaintiff worked for defendant in the capacity of executive director. His duties included all areas of operation, except accounting, and including to improve the local Indian communitys awareness of the center, increase membership, and increase earnings. Defendant terminated plaintiff after learning from plaintiffs ex-wife that plaintiff had pleaded guilty and been convicted of domestic violence sometime before 2001. In 2001, the superior court had set aside defendants conviction and dismissed the accusation pursuant to the provisions of Penal Code section 1203.4.[1]

discussion

Labor Code section 432.7 states: No employer . . . shall . . . utilize, as a factor in determining any condition of employment including . . . termination . . . any record of arrest or detention that did not result in conviction . . . . The statutes that most clearly support a cause of action for wrongful termination in violation of public policy are those that expressly prohibit termination of employment for certain reasons. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1372.)

Defendant contends that his termination was done in violation of the public policy expressed in Labor Code 432.7 which prohibited [defendant] from terminating [him] on the basis of a record of arrest or detention that did not result in a conviction. He adds that the termination also violated the public policy of section 1203.4, which includes encouragement of successful completion of probation and rehabilitation by restoring numerous rights, including the right under Labor Code 437.2 [sic] not to be terminated solely for an arrest or detention. He reasons that the superior court expunged his conviction in 2001 and thus restored his right under the Labor Code not to be terminated solely on the basis of an arrest. Defendant, however, cites no authority for his proposition. And the existing authorities are against his proposition.

Subdivision (a) of section 1203.4 provides in pertinent part: In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation . . . , the defendant shall . . . be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; . . . and . . . the court shall thereupon dismiss the accusations or information against the defendant. Absent qualifications not relevant here, the provision further states that upon the change of plea and dismissal, the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted. (Ibid.)

In short, the section allows for probationers to have their convictions set aside and the accusations against them dismissed, and similarly provides that, with specified exceptions, such a defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted. (People v. Vasquez (2001) 25 Cal.4th 1225, 1228.) A grant of relief under section 1203.4 is intended to reward an individual who successfully completes probation by mitigating some of the consequences of his conviction. (People v. Mgebrov (2008) 166 Cal.App.4th 579, 584.) However, such relief does not, properly speaking, expunge the prior conviction. The statute does not purport to render the conviction a legal nullity. (Ibid.)

California decisions have established that the penalties and disabilities resulting from conviction, from which a probationer may be released pursuant to . . . section 1203.4, do not include nonpenal restrictions or qualifications imposed for public protection, such as licensing of attorneys [citation], physicians [citation], and vendors of alcoholic beverages [citation]; qualification for employment as a peace officer [citations]; and the regulation of participants in parimutuel [sic] wagering. [Citation.] [] Our courts have drawn a distinction between penalties imposed on a felon as further punishment for the crime, as to which vacation under . . . section 1203.4 generally affords relief, and nonpenal restrictions adopted for protection of public safety and welfare. As used in section 1203.4 . . . the words penalties and disabilities have reference to criminal penalties and disabilities or to matters of a kindred nature. (People v. Vasquez, supra, 25 Cal.4th at pp. 1230-1231.)

The penalty of which plaintiff speaks does not have reference to a criminal penalty or matter of a kindred nature. If anything, it is akin to a nonpenal restriction or qualification imposed for public safety. Again, California courts have consistently upheld denial of a license or the right to pursue a particular profession on the basis of a conviction dismissed under section 1203.4 under the rationale that dismissal simply frees the convicted individual from penalties and disabilities of a criminal or like nature without eradicating the conviction. (Adams v. County of Sacramento (1991) 235 Cal.App.3d 872, 877, 880.) Thus, if a conviction survives a section 1203.4 dismissal so as to interfere with a right to employment under a license or qualification statute, a conviction analogously survives a section 1203.4 dismissal so as to interfere with a right to employment under Labor Code section 432.7.

disposition

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Further unspecified statutory references are to the Penal Code.