Filed 4/30/15 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

PETER MONSIVAIZ,

Plaintiff and Appellant,

v.

CIVIL SERVICE COMMISSION OF THE 

COUNTY OF LOS ANGELES, 

 Defendant;

COUNTY OF LOS ANGELES 

DEPARTMENT OF AGRICULTURAL 

COMMISSIONER/WEIGHTS AND 

MEASURES,

Real Party in Interest and Respondent.

 B254859

 (Los Angeles County 

 Super. Ct. No. BS136555)

ORDER MODIFYING

THE OPINION

[CHANGE IN JUDGMENT]

THE COURT:

The opinion in the above-entitled matter filed on April 28, 2015, is modified as 

follows:

1. In the caption, delete “and Respondent” as party designation for Civil Service 

Commission of the County of Los Angeles and add it after the “Real Party in 

Interest” designation for the County of Los Angeles Department of 

Agricultural Commissioner/Weights and Measures.

2. Under the counsel listing for McMillion & Hirtensteiner, delete “Defendant” 

and replace it with: Real Party in Interest.

3. At page 2, first full paragraph, first sentence, lines 2 and 3, delete “and 

respondent.” 
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4. At page 2, second paragraph of the Factual and Procedural Background, delete 

the first sentence beginning with “Plaintiff was employed as an agricultural 

inspector aid . . .” and replace with: 

Plaintiff was employed as an agricultural inspector aid by real party in interest 

and respondent County of Los Angeles Department of Agricultural 

Commissioner/Weights and Measures (County). 

5. At page 2, last paragraph, delete the third sentence beginning with “The 

Commission opposed the motion . . .” and replace with:

The County appeared as real party in interest to oppose 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.

6. At page 3, line 1, delete “Commission” and replace it with: County

7. At page 3, first paragraph under the Discussion, second sentence, delete the 

phrase “by the Commission” after the word “cited.”

8. At page 7, under the Disposition, delete the second sentence beginning with 

“Defendant and respondent Civil Service Commission . . .” and replace with:

Real party in interest and respondent County of Los Angeles Department of 

Agricultural Commissioner/Weights and Measures shall recover costs on 

appeal.

There is a change in the judgment. 

_________________________________________________________________

RUBIN, Acting P. J. FLIER, J. GRIMES, J. 
Filed 4/28/15 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

PETER MONSIVAIZ,

Plaintiff and Appellant,

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.

 B254859

 (Los Angeles County 

 Super. Ct. No. BS136555)

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, 
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only that there was no surviving action for her to maintain on behalf of her deceased 

husband. 

On November 26, 2013, the court denied plaintiff’s widow’s motion on the 

grounds the Commission, in light of plaintiff’s death, lacked jurisdiction to enforce any 

order the superior court could issue in the writ proceeding. The court found there was no 

action with which plaintiff’s widow could proceed as successor in interest to plaintiff. 

The court therefore set an order to show cause regarding dismissal. Plaintiff’s widow 

submitted written opposition arguing the same contentions raised in this appeal, in 

essence urging that the Commission retains jurisdiction to resolve other issues related to 

plaintiff’s termination and therefore the writ proceeding should continue. 

On December 31, 2013, the court issued its written order dismissing plaintiff’s 

writ proceeding with prejudice on the grounds plaintiff was deceased and “the court 

lack[ed] any jurisdiction to continue.” 

This appeal, filed on behalf of plaintiff and plaintiff’s widow as the proposed 

successor in interest, followed. 

DISCUSSION

The crux of this appeal concerns the jurisdiction of the Commission and its impact 

on the viability of plaintiff’s writ proceeding following his death. In concluding that the 

Commission was divested of jurisdiction upon plaintiff’s death, the trial court relied in 

large part on two cases cited by the Commission in opposition to plaintiff’s widow’s 

motion to maintain the writ proceeding as plaintiff’s successor in interest: Zuniga v. Los 

Angeles County Civil Service Commission (2006) 137 Cal.App.4th 1255 (Zuniga) and 

County of Los Angeles Department of Health Services v. Civil Service Commission

(2009) 180 Cal.App.4th 391 (Latham). 

In Zuniga, a deputy sheriff with the Los Angeles County Sheriff’s Department was 

suspended from his position after several criminal charges were filed against him. 

(Zuniga, supra, 137 Cal.App.4th at p. 1257.) The deputy requested a hearing before the 

Commission, but before the hearing was held, the deputy voluntarily retired from service. 

(Ibid.) Thereafter, the hearing was held and the Commission sustained the deputy’s 
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suspension without pay. (Id. at p. 1258.) In a writ of mandate filed in the superior court, 

the deputy challenged the Commission’s decision. The court denied the deputy’s petition 

and the reviewing court affirmed the denial, concluding the Commission did not have 

jurisdiction to consider a former employee’s claim for what had become, in light of the 

voluntary retirement, just a claim for back wages. (Id. at pp. 1259-1260.) 

Three years later in Latham, the court considered the denial of another county 

employee’s writ petition. There, a nurse employed by the County of Los Angeles 

Department of Health Services appealed both a suspension and her ultimate discharge to 

the Commission. (Latham, supra, 180 Cal.App.4th at pp. 394-395.) While her civil 

service appeal was pending, the nurse voluntarily retired. (Id. at p. 395.) Following 

Zuniga, the reviewing court affirmed the denial of her writ petition, explaining that 

“where an employee retires during the pendency of a civil service appeal, her future 

status as an employee by definition is no longer at issue. The then pending appeal 

becomes a ‘wage claim brought by a former civil servant,’ and under Zuniga the 

Commission has no jurisdiction over such a wage claim because neither the charter nor 

Civil Service Rules vest such jurisdiction. (Zuniga, supra, 137 Cal.App.4th at p. 1259.) 

In short, the Commission has authority to address only matters involving a member of the 

civil service, and a person who has retired is no longer a member of the civil service.” 

(Latham, supra, at p. 401.)

In arguing that plaintiff’s claim did not abate upon his death, plaintiff’s widow 

argues that Zuniga and Latham are not factually on point because neither case involved 

the death of the employee. Plaintiff’s widow argues that plaintiff’s death is not 

equivalent to the voluntary acts of resigning or retiring from county employment. She 

further urges there are other issues to be resolved by the petition beyond backpay, such as 

rectifying the workplace conditions of which plaintiff had complained and which 

allegedly contributed to his discharge. We are not persuaded. 

The Commission’s jurisdiction derives from the Charter of the County of Los 

Angeles. “A civil service commission created by charter has only the special and limited 

jurisdiction expressly authorized by the charter. [Citation.] Section 34 of the Los 
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Angeles County Charter provides that the Commission ‘shall serve as an appellate body 

in accordance with the provisions of Sections 35(4) and 35(6) of this article and as 

provided in the Civil Service Rules. [¶] The Commission shall propose and, after a 

public hearing, adopt and amend rules to govern its own proceedings.’ [¶] Section 35(4) 

of the charter requires the Commission to adopt rules (approved by the board of 

supervisors) to provide for ‘Procedures for appeal of allegations of political 

discrimination and of discrimination based on race, sex, color, national origin, religious 

opinions or affiliations or handicap made by County employees, regardless of status, and 

by applicants for employment.’ Section 35(6) of the charter requires that the rules 

provide for ‘Civil Service Commission hearings on appeals of discharges and reductions 

of permanent employees.’ ” (Hunter v. Los Angeles County Civil Service Commission

(2002) 102 Cal.App.4th 191, 194-195 (Hunter), italics added.)

Thus, the Commission has authority to act as an appellate body in very narrow 

circumstances related to appeals by employees (or applicants for employment) of 

discrimination claims, or appeals by employees regarding “discharges and reductions.” 

Under the Commission’s rules (codified in the Los Angeles County Municipal Code, title 

5, appendix 1), rule 2.24 defines employee as “any person holding a position in the 

classified service of the county. It includes officers.” A deceased former employee does 

not fit within the description of “employee” under the Commission’s rules. Other courts 

that have considered the issue have, like Zuniga and Latham, construed the 

Commission’s jurisdiction narrowly, even when involving current employees. (See, e.g., 

Berumen v. Los Angeles County Dept. of Health Services (2007) 152 Cal.App.4th 372, 

378 [finding Commission lacked jurisdiction to consider employee’s appeal of 

“constructive” demotion]; Hunter, supra, 102 Cal.App.4th at p. 192 [Commission lacked 

authority to consider appeal from employee for alleged failure to promote under the 

Public Safety Officers’ Procedural Bill of Rights].)

At the time his civil service appeal was filed, plaintiff was a discharged employee 

entitled to bring an appeal before the Commission regarding his discharge in accordance 

with section 35(6) of the Charter of the County of Los Angeles. However, plaintiff’s 
6

death during the pendency of the underlying writ proceeding terminated his status as an 

employee with the ability to be restored to service by act of the Commission. Plaintiff’s 

widow does not cite to any provision of the Charter of the County of Los Angeles or any 

of the Commission’s civil service rules that would support the jurisdiction of the 

Commission to hear an appeal by the representative of a deceased former employee. Nor 

has our research disclosed any such provision.

The logic of Zuniga and Latham applies with equal force here. Even more than 

the voluntary act of retiring or resigning from service, the death of a former employee 

prevents restoration of employment with the county. And, the Commission can only 

resolve a claim for backpay in connection with the restoration of an employee to service. 

(Zuniga, supra, 137 Cal.App.4th at p. 1259.) Moreover, plaintiff’s widow cites to no 

authority the Commission has jurisdiction to consider generalized claims of poor work 

conditions related to the work environment of a deceased former employee who cannot 

be restored to service. Absent an express grant of jurisdiction, the Commission cannot 

address the “other” issues raised by plaintiff’s widow. Nothing remains for resolution in 

plaintiff’s writ petition within the jurisdiction of the Commission in light of plaintiff’s 

death. 

We are not persuaded either of the two cases cited by plaintiff’s widow compel a 

different result here. In Hall-Villareal v. City of Fresno (2011) 196 Cal.App.4th 24, the 

reviewing court declined to read Zuniga and Latham as creating a bright-line rule. 

Rather, the court determined the public employee there, who had been discharged from 

service, was entitled to maintain her appeal despite the fact she had applied for retirement 

benefits. (Hall, at p. 33.) In so finding, the court noted the public employer there (the 

City of Fresno) had not demonstrated the city charter or civil service rules dictated a 

similar result to Zuniga and Latham. (Hall, at p. 33.)

And, in Hudson v. County of Los Angeles (2014) 232 Cal.App.4th 392, the 

reviewing court distinguished Zuniga and Latham given the unique, and somewhat 

tortured, factual chronology involved there. Hudson concerned the civil service appeal of 

a discharged deputy sheriff who, during the pendency of her appeal, was placed on 
7

“statutorily mandated” disability retirement by her employer, not by her own choice. 

(Hudson, at p. 413.) The record before the Commission demonstrated the former deputy 

had since been cleared for full duty by a physician, and the hearing officer had 

determined the deputy’s discharge had been unjustified. Hudson concluded, given the 

factual record there, that the former deputy’s disability retirement did not equate with an 

“unequivocal intention” to sever her employment with the county, unlike the voluntary 

retirements at issue in Zuniga and Latham, and should not result in her discharge being 

immunized from review by the Commission. (Hudson, at p. 413.) 

Because of plaintiff’s death, he could not be restored to service, nor could the 

Commission resolve his claim for backpay. There was no act the superior court could 

mandate the Commission to perform that was within its authority to undertake. The writ 

petition was therefore properly dismissed. 

DISPOSITION

The order of dismissal is affirmed. Defendant and respondent Civil Service 

Commission of the County of Los Angeles shall recover costs on appeal.

GRIMES, J.

WE CONCUR:

RUBIN, Acting P. J. 

FLIER, J.