Filed 6/9/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CHRISTOPHER TREJO,

Plaintiff and Respondent,

v.

COUNTY OF LOS ANGELES

et al.,

Defendants and Appellants.

 B293564

 (Los Angeles County

 Super. Ct. No. BS167487)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, James C. Chalfant, Judge. Affirmed.

Hausman & Sosa, Jeffrey M. Hausman and Larry D. 

Stratton for Defendants and Appellants.

Rains Lucia Stern St. Phalle & Silver, Jacob A. Kalinski 

and Brian P. Ross for Plaintiff and Respondent.

________________
2

Deputy sheriff challenged his employer’s practice of 

extending probation while investigating the deputy’s claimed 

misconduct as violating the Los Angeles County Civil Service 

Rules. Trial court agreed with deputy and issued a writ of 

mandate directing the Los Angeles County Sheriff’s Department 

to reinstate deputy as permanent civil service employee. We 

affirm, holding the plain language of the rules does not authorize

the department’s practice of extending probation by re-assigning 

deputies under investigation to administrative duty. We also 

agree the deputy did not fail to exhaust administrative remedies.

FACTUAL BACKGROUND

A. The Probation System for Los Angeles County 

Employees

As a political subunit of the County of Los Angeles 

(County), employment at the Los Angeles County Sheriff’s 

Department (Department) is subject to the County’s Civil Service 

Rules (Rules).1 The Rules provide for an initial probationary 

period after the employee is appointed for County employers to 

evaluate prospective employees before they are hired into 

permanent roles. Rule 12.02(A) specifies this probationary period 

“shall be no less than six nor more than 12 calendar months from 

the date of appointment.”

There are several differences between permanent and

probationary employees from both the perspectives of the 

employee and their employer. For instance, permanent 

employees participate in retirement plans while probationary 

employees do not. But, the crucial difference between the two 

1 Further rule references are to the Civil Service Rules.
3

classes of employees which drives this appeal is that it is much 

more difficult to terminate a permanent employee than it is to 

fire an employee on probation. (See Birdsall v. Carrillo (1991) 

231 Cal.App.3d 1426, 1431 [“A probationary employee serves at 

the pleasure of the County and may be rejected from a position 

without a hearing or judicially cognizable good cause” (fn. 

omitted)].)

In order to terminate a permanent employee, a County 

employer must provide a right of administrative appeal under 

Government Code section 3304, subdivision (b), as well as the 

pre-termination safeguards provided by Skelly v. State Personnel 

Board (1975) 15 Cal.3d 194 (Skelly) in the form of a “Skelly

hearing.”2 This is deliberate. According to the County’s 

2 The right of administrative appeal provided by 

Government Code section 3304 is an important pre-termination 

safeguard guaranteed by the Public Safety Officers Procedural 

Bill of Rights Act (POBRA; Gov. Code, § 3300 et seq.) POBRA’s 

declared purpose was to maintain stable employer-employee 

relations in order to ensure effective law enforcement. (Gov. 

Code, § 3301.) One of the rights afforded to a public safety officer 

is the right to an administrative appeal of any punitive action or 

denial of promotion on grounds other than merit. (Gov. Code, 

§ 3304, subd. (b).) “Punitive action is defined as ‘any action that 

may lead to dismissal, demotion, suspension, reduction in salary, 

written reprimand, or transfer for purposes of punishment.’ 

(§ 3303 . . . .)” (Los Angeles Police Protective League v. City of Los 

Angeles (2014) 232 Cal.App.4th 136, 141, italics omitted.)

The protections afforded by Skelly apply to all permanent 

public employees. Skelly holds that permanent public employees 

are entitled to certain procedural rights before proposed 

discipline is implemented. These include being provided with a 

copy of the charges and materials upon which the proposed action 
4

“Employee Handbook,” “If you do not meet performance 

requirements and expectations, or your behavior is unacceptable, 

you may be released if you are a first-time probationer.” (L.A. 

County Employee Handbook (2003) Probation, p. C-2.)

Deputy sheriffs serve 12-month probationary periods. 

Promotion into a permanent position is made by evaluating a 

deputy’s performance of the five essential duties of a deputy 

sheriff. They are: (1) testifying in court; (2) driving a County 

vehicle; (3) qualifying with weapons; (4) making a forcible arrest; 

and (5) seizing evidence or contraband.

If a deputy sheriff is investigated for misconduct while still 

on probation, it is the Department’s policy to place that deputy on 

“[r]elieved of duty status” pending the results of the 

investigation. Deputies placed on “relieved of duty status” may 

be reassigned to modified duties, such as administrative jobs,

that do not involve three of the five essential duties of a sheriff, 

namely, qualifying with weapons; making a forcible arrest; and 

seizing evidence or contraband. Because deputies on modified 

duty do not perform all the essential duties of being a deputy 

sheriff, the Department has a policy in which it “extends” the 12-

month probationary period for the duration of the investigation. 

The extension is necessary because the Department cannot fully 

evaluate a deputy for promotion into permanent service when the 

deputy on modified duty is only performing some of the essential 

duties of being a deputy sheriff.

is based, as well as being informed of the right to respond, either 

orally or in writing, before the public employer imposes the 

proposed discipline. (See, e.g., Flippin v. Los Angeles City Bd. of 

Civil Service Commissioners (2007) 148 Cal.App.4th 272, 280.)
5

The primary issue in this appeal is whether the 

Department’s policy of “extending” the maximum 12-month 

probationary period by placing a deputy under investigation into 

an administrative job is lawful under the Rules.

B. Trejo’s Employment by the Department

After graduating from the academy, respondent 

Christopher Trejo was hired as a Deputy Sheriff Generalist on 

February 23, 2014. Trejo’s 12-month probationary period started 

that day. About four months later, Trejo was involved in a useof-force incident which triggered an investigation. The incident 

involved a handcuffed inmate who was kicking and pulling away 

from officers. This commotion attracted the attention of several 

officers, including Trejo. But only Trejo physically engaged with 

the inmate. Trejo was relieved of duty on June 20, 2014, pending 

an investigation into violation of use-of-force policies. He was 

issued a civilian identification card, relieved of his gun and 

badge, and no longer possessed police powers. Trejo was then 

reassigned to the records unit pending this investigation. The 

evidence before the trial court was that in this modified position 

Trejo did not perform the essential duties of a deputy sheriff. 

Trejo continued to be paid.

On August 4, 2014, the Department provided Trejo with a 

letter purporting to extend his statutory 12-month probation 

period. That letter stated: “In accordance with Civil Service Rule 

12.02, your probationary period as a Deputy Sheriff, Item 

Number 2708, has been extended. This extension is due to your 

relieved of duty status. [¶] Upon your return to your assigned 

duties, your unit will notify Personnel Administration Bureau 

and your probationary period will be recalculated.”
6

Nearly 18-months later, on January 20, 2016, the 

Department terminated Trejo as taking the position that he 

remained a probationary employee. The Department’s 

termination letter also informed Trejo of certain appeal rights. 

Because the Department did not consider Trejo a permanent 

employee, he was not notified of any rights to a Skelly hearing or 

other pre-termination safeguards available to permanent County 

employees.

On January 29, 2016, Trejo requested a “Liberty Interest,”

or “Lubey” hearing, “to clear [his] name and be reinstated as a 

deputy sheriff.” (See Lubey v. City and County of San Francisco 

(1979) 98 Cal.App.3d 340, 346.)

3 Following a hearing on 

August 25, 2016, the Department issued its decision confirming 

Trejo’s termination and concluded he should not be reinstated.

Trejo then contested his termination by filing a request for 

a hearing before the Civil Service Commission (Commission), 

asserting he was a permanent employee at the time of his 

termination. The Department objected to Trejo’s petition arguing 

the Commission lacked jurisdiction because Trejo was only a 

probationary employee. The Department also claimed the 

petition was untimely. The Commission agreed the petition was 

3 Lubey hearings are available to probationary deputies 

who are discharged based on allegations of misconduct. A 

protected “ ‘liberty interest’ ” is involved because they may have 

their reputations stigmatized and thus may have additional 

difficulty obtaining another law enforcement job. Lubey provides 

a right to appeal for the limited purpose of name-clearing. (See 

Lubey v. City and County of San Francisco, supra, 98 Cal.App.3d 

at pp. 346-347; see also Riveros v. City of Los Angeles (1996) 41 

Cal.App.4th 1342, 1359.)
7

untimely and did not rule on the merits of whether Trejo was a 

permanent employee entitled to civil service pre-termination 

rights.

PROCEDURAL BACKGROUND

Trejo then challenged his termination by filing a petition 

for writ of mandate in superior court. His first amended petition, 

filed May 24, 2017, and the complaint operative on this appeal, 

alleged three causes of action: (1) a writ of mandate pursuant to 

Code of Civil Procedure section 1085; (2) a writ of administrative 

mandate pursuant to Code of Civil Procedure section 1094.5; and 

(3) relief under Government Code section 3309.5.

The first cause of action alleged the County unlawfully 

extended Trejo’s 12-month probationary period in contravention 

of rule 12.02(B).4 As more fully discussed below, rule 12 not only 

provides that the probationary period for permanent County 

employment may not exceed 12 months, it also authorizes a 

County employer to re-calculate the length remaining on a 

candidate’s probation when the employee is “absent from duty.” 

Specifically, when a candidate is “absent from duty,” rule 

12.02(B) authorizes the employer to stop the 12-month clock for 

the “time away.” The rule also explains the method of 

calculation: the probationary period remaining after an absence 

from duty equals “actual service exclusive of the time away.” 

(Rule 12.02(B), italics added)

4 As Trejo ultimately prevailed under this cause of action, 

and because the traditional mandamus relief he successfully 

sought thereby mooted his second and third causes of action, we 

omit discussion of the latter two causes of action.
8

The County argued Trejo was “absent from duty” when he 

was given his replacement administrative job because he was not 

performing the five essential duties of a deputy sheriff. And, 

since Trejo was never reinstated to a position involving carrying 

a gun, making arrests, and seizing evidence, he remained “absent 

from duty” until the day of his termination.

Trejo rightly responded by pointing out rule 12.02(B)

cannot be read in isolation. He observed a key phrase in rule 

12.02(B), “actual service,” is a defined term found at rule 2.01. 

And, under rule 2.01, an employee is engaged in “ ‘[a]ctual 

service’ ” whenever that employee is performing “the duties of a

position or positions including absences with pay.” (Rule 2.01, 

italics added.)

The trial court recognized that evaluating this argument 

required it to interpret rules 2.01 and 12.02(B) together. 

Applying rule 2.01’s definition of “actual service” to rule 12.02(B) 

implies that so long as a probationary employee is performing the 

duties of “ ‘a position,’ whether or not it is one for which the 

employee was hired,” the time in that other position still counted

toward completion of the employee’s 12-month probation. In 

other words, even though Trejo was performing an 

administrative function, he was still performing the duties of “a 

position,” and the time in that other position must be counted 

toward completion of his probation. For Trejo, this meant his 

transfer into an administrative job did not “extend” his probation, 

it was just more time in another position that counted toward 

completion of his 12-month probation.

The court had to address a procedural hurdle before 

reaching this result, however. If Trejo did not exhaust his 

administrative remedies, as the County argued in response, the 
9

court would lack jurisdiction. The court considered two 

arguments proffered by the County.

First, the County argued Trejo should have filed a 

grievance with the Commission contesting his probation 

extension. The court rejected this argument because the 

Commission lacked jurisdiction to rule on Trejo’s claim. The 

Commission only has the jurisdiction it is explicitly given by the 

County Charter and the Civil Service Rules, and neither confers 

jurisdiction over interpretive disputes involving the Rules. (See 

Zuniga v. Los Angeles County Civil Service Com. (2006) 137 

Cal.App.4th 1255, 1259-1260.)5

Second, the court considered whether Trejo had an 

opportunity to contest his probation extension under the 

grievance and arbitration process outlined in the memorandum of 

understanding (MOU) effective between Trejo’s collective 

bargaining unit, the Association for Los Angeles Deputy Sheriffs 

(ALADS), and the County. The court found the MOU grievance 

process did not allow review of a probation extension grievance, 

however, because the MOU’s arbitration process—which is the 

final level of review for MOU grievances—was explicitly 

disempowered to rule on claims involving interpretation of the 

Rules.

The court concluded Trejo did not fail to exhaust 

administrative remedies because there was no process by which 

he could have contested his probation extension.

Because there was no procedural bar to review on the 

merits, the court therefore reviewed Trejo’s claim in traditional 

mandamus. It ruled for Trejo and found he became a permanent 

5 The County does not contest this holding on appeal.
10

employee entitled to Skelly rights and an administrative appeal 

12 months after his probation period initially began.

The court further ordered the County to: “[S]et aside the 

dismissal of [Trejo] effective January 20, 2016 and to provide 

[Trejo] with backpay, as required by law, from the date of his 

dismissal on January 20, 2016. Should [the County] determine to 

subject [Trejo] to punitive action, [the County] must provide 

[Trejo] with all applicable pre-disciplinary rights, including, but 

not limited to, those rights provided in [Skelly], and to provide 

[Trejo] with an administrative appeal pursuant to Civil Service 

Rule 4.01.”

The court further ordered the Commission to: “[S]et aside 

its decision on November 9, 2016 denying [Trejo’s] request for an 

administrative appeal and to grant [Trejo] an administrative 

appeal pursuant to Civil Service Rule 4.01 should the 

Department determine to subject [Trejo] to punitive action . . . .”

The County timely appealed.

DISCUSSION

The County argues the trial court erred for two reasons. 

First, the County insists the trial court’s conclusion Trejo became 

a permanent employee 12 months after his probationary period 

began is flawed because it relies upon an erroneous 

interpretation of rule 12.02(B). Second, the County argues the 

trial court lacked jurisdiction to reach the merits because Trejo 

failed to exhaust his administrative remedies.

A. Standard of Review

Findings of fact made by a trial court in a judgment on a 

petition for a traditional writ of mandate are reviewed for 

substantial evidence. We independently review its conclusions of 
11

law. Conclusions of law include the interpretation of a statute 

and its application to undisputed facts. (California Public

Records Research, Inc. v. County of Stanislaus (2016) 246 

Cal.App.4th 1432, 1443.)

B. Applicable Law

1. Rules of Statutory Interpretation

“Generally, the same rules of construction and 

interpretation which apply to statutes govern the construction 

and interpretation of rules and regulations of administrative 

agencies. [Citation.]” (Cal. Drive-in Restaurant Assn. v. Clark 

(1943) 22 Cal.2d 287, 292.) Thus, “the interpretation of civil 

service rules is purely a question of law.” (American Federation 

of State etc. Employees v. County of Los Angeles (1983) 146 

Cal.App.3d 879, 884.)

If the statute is unambiguous, we discern legislative intent 

from the plain meaning of the statute’s language itself. (People v. 

Superior Court (Price) (1984) 150 Cal.App.3d 486, 488.) If the 

words of the statute are reasonably free from ambiguity when 

given their ordinary meaning, we will look no further to ascertain 

their meaning. (City of Los Angeles v. Los Olivos Mobile Home 

Park (1989) 213 Cal.App.3d 1427, 1433.)

2. Civil Service Rule 2 and Rule 12

We quote the pertinent Rules in full. We omit quotations 

marks to facilitate reading and reproduce section headings to 

supply useful context:

Rule 2 – DEFINITIONS

Rule 2.00 – Applicability generally.

Unless otherwise required by context, words 

used in these Rules are understood to have the 
12

following special meanings as set out in Rules 

2.01 through 2.58. [Citation.]

Rule 2.01 – Actual Service.

“Actual service” means time engaged in the 

performance of the duties of a position or 

positions including absences with pay. 

[Citation.]

Rule 2.41 – Position.

“Position” means any office or employment in 

the classified service of the county requiring 

the full or part-time employment of one person. 

[Citation.]

Rule 12 – PROBATION

Rule 12.02 – Length of Probationary Period.

A. The period of probation shall be no less 

than six nor more than 12 calendar months 

from the date of appointment to a permanent 

position, as established by the director of 

personnel for each class.

B. If an employee is absent from duty 

during a probationary period, the appointing 

power may calculate the probationary period on 

the basis of actual service exclusive of the time 

away. If a change in the probationary period is 

made, the employee shall be notified prior to 

the end of the original probationary period. 

[Citation.]
13

C. Interpretation of Rule 2.01 and Rule 12.02

The question before us is: When—if ever—did Trejo 

become a permanent County employee? Answering this question 

demands we interpret the applicable Rules. But it also demands 

we remain cognizant of the important public policy consequences 

implied by our analysis.

The County and Trejo each offer public policy defenses of 

their competing interpretations of the Rules.

The County argues, among other concerns, that if the

Department were unable to extend probationary periods, it would 

likely change its policy and immediately dismiss probationary 

deputies who become subject to a criminal or administrative 

investigation. The alternative to immediate dismissal would be 

unacceptable, namely, allowing probationary deputies under 

investigation for serious charges to achieve full civil service 

status.

Trejo counters the Rules do not authorize probation 

“extensions” as understood by the Department because its 

drafters—the County Board of Supervisors—intended to protect 

probationary employees by capping their period of probation at 

12 months. Otherwise, County employers could move 

probationary employees from one job to the next and their time 

spent across those positions would not count toward completion of 

their 12-month probation. Trejo also rightly points out that the 

Rules apply to all County employees, and not just those serving 

the Department. Adopting the County’s argument, Trejo 

observes, would thus authorize every County employer to adopt 

probation “extension” practices similar to the Department’s, but 

no such practice, Trejo argues, appears to have been 

contemplated by the Rules.
14

These are serious concerns, and we are especially sensitive 

to the Department’s needs to investigate probationary deputies 

who may have engaged in unlawful use of force before they are 

made permanent County employees. Nevertheless, we must 

construe the Rules as they are written if their plain meaning is 

clear and discoverable. We now turn to that task.

Rule 12.02(B) authorizes a county employer to re-calculate 

the time remaining on an employee’s probation “on the basis of 

actual service exclusive of the time away.”

In order to understand how to apply this crucial phrase, we 

start with rule 2.00. It instructs we must apply the definitions 

found in rule 2 to the remainder of the Rules. In this case, the 

pertinent definition of “actual service” is found in rule 2.01. As 

an expressly defined term, we must apply “actual service” 

literally. (See Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826 [“If 

the Legislature has provided an express definition, we must take 

it as we find it”].)

The language of rule 2.01 itself reveals an additional 

interpretive direction as well. It defines “actual service” by 

stating: “ ‘Actual service’ means time engaged in the 

performance . . . .” (Italics added.) This is to be contrasted with a 

statutory definition where the drafters define a term as 

“including [certain things]” as in “ ‘[a]ctual service’ [includes] 

time engaged in the performance.” This word choice matters 

because “[w]hen a definitional section says that a word ‘includes’ 

certain things, that is usually taken to mean that it may include 

other things as well . . . .” (Scalia & Garner, Reading Law: The 

Interpretation of Legal Texts (2012) p. 226, fn. omitted.) 

Whereas, when “a definitional section says that a word ‘means’ 
15

something, the clear import is that this is its only meaning.” (Id., 

fn. omitted.)

We must therefore apply rule 2.01’s definition of “actual 

service” to rule 12.02(B). Trejo was placed into an administrative 

job about four months after his employment began. Were the 

next eight months he spent in that administrative job “time 

away” within the meaning of rule 12.02(B)? Was he “absent from 

duty” for those eight months? The Rules define neither. But, 

rule 2.01 does indicate that during those eight months Trejo 

remained in “actual service” with the County because he was 

“engaged in the performance of the duties of a position or 

positions including absences with pay.” Thus, the Department 

must credit those eight months toward the completion of Trejo’s 

probation period.

The plain meaning of rule 12.02(B) may therefore be 

derived by applying the defined term “actual service” from rule 

2.01.

We need not then wonder what the phrases “absent from 

duty” or “time away” mean in the abstract because rule 2.01’s 

definition of “actual service” defines them indirectly. The time 

Trejo spent in his administrative job was not “time away” 

because that job was still “a position.” Nor was he “absent from 

duty” for the same reason. We also know his administrative job 

counted as “a position” because it satisfies the definition provided 

by rule 2.41, namely, “any office or employment in the classified 

service of the county requiring the full or part-time employment 

of one person.”

Our interpretation derives further support from the 

interpretive directive that we presume a word or phrase has the 

same meaning throughout a statute. California courts have long 
16

applied this rule of interpretation. (See, e.g., Hoag v. Howard

(1880) 55 Cal. 564, 565 [“a word or clause . . . will be presumed to 

bear the same meaning throughout the statute”].) This is not an 

absolute rule of interpretation, however, and the presumption of 

consistent usage is rebuttable if the statute displays contrary 

indications of legislative intent. (See, e.g., People v. Johnson

(2015) 61 Cal.4th 674, 692 [presumption of consistent usage of 

“ ‘term’ ” rebutted where the statute under interpretation uses 

“ ‘term’ ” and “ ‘sentence’ ” interchangeably]; see also Scalia & 

Garner, Reading Law: The Interpretation of Legal Texts, supra, 

at pp. 170-173 [presumption of consistent usage “assumes a 

perfection of drafting that, as an empirical matter, is not often 

achieved”].)

The Rules, however, do not display any contrary indications 

that its drafters intended “actual service” to have more than one 

meaning. “Actual service” appears in only two places in the 

approximately 50 single-spaced pages of the Rules: in rule 

12.02(B) and rule 20.04(A)(4)(b). Rule 20.04(A)(4)(b), which 

involves performance evaluations for permanent County 

employees, uses “actual service” in a nearly identical fashion to 

how it functions in rule 12.02(B). The pertinent section of rule 

20.04(A)(4)(b) provides, in part: “If an employee is absent from 

duty prior to the period while on approved leave prior to the 

completion of such six-month period, the appointing power may, 

with the approval of the director of personnel, evaluate the sixmonth period on the basis of actual service, exclusive of the time 

away on leave.”

We may therefore safely conclude the phrase “actual 

service” carries the same meaning wherever it appears in the 

Rules, and it is the meaning supplied by rule 2.01.
17

We here explicitly observe our holding is limited to cases in 

which a County employer purports to extend an employee’s 

probation period by re-assigning an employee into a modified 

position, such as with Trejo. Our colleagues in Division Five 

recently published Amezcua v. Los Angeles County Civil Service

Com. (2019) 44 Cal.App.5th 391 (Amezcua) in which the plaintiff,

also a deputy sheriff, had his probation “extended” following an 

investigation into misconduct. (Id. at pp. 394-395.) Unlike with 

Trejo, the Department relieved Amezcua of duty entirely. He was 

paid to stay at home from 8:30 a.m. to 5:30 p.m., Monday to 

Friday. (Id. at pp. 395, 398.) The majority reasoned that under 

these facts the Department lawfully extended Amezcua’s 

probation because being paid to stay at home meant he was 

“absent from duty” within the meaning of rule 12.02(B). (Id. at 

p. 398.)

D. Trejo Became a Permanent Civil Service Employee 

12 Months After His Probation Began

The County concedes—as they must—that we are bound to 

construe the Rules as we construe other statutes: that the rule of 

interpretation by plain meaning applies unless ambiguity in the 

words of the statute threatens the reliability of such an 

interpretation. Its opening brief states: “If there is no ambiguity 

in the language of the statute, ‘then the Legislature is presumed 

to have meant what it said, and the plain meaning of the 

language governs.’ [Citation.].” (Lennane v. Franchise Tax Bd.

(1994) 9 Cal.4th 263, 268.) This is correct.

But, the County elsewhere urges in its briefing that we 

stray from plain meaning analysis and apply the canons of 

interpretation to avoid surplusage and interpretation to further 

legislative purpose.
18

We will first review the County’s arguments that the plain 

meaning of rule 12.02(B) authorized extending Trejo’s probation. 

Next, we address the County’s arguments that the trial court’s 

interpretation offends the rules of avoiding surplusage and 

furthering legislative purpose.

1. The Plain Meaning of Rule 2.01 and

Rule 12.02(B)

We have already explained our reasoning that when rules 

2.01 and 12.02(B) are read together their plain meaning is that so 

long as the probationer is engaged in the duties of “a position or 

positions” she is not “absent from duty.” Applied to Trejo, that 

means he was not “absent from duty” during the period he was 

assigned modified duties because the work he performed, 

although administrative, was in fact work performed in “a 

position.” The trial court thus rightly held he became a 

permanent employee 12 months after his probationary period 

began.

The County argues this interpretation is flawed for three 

reasons.

First, the County argues the plain meaning of “duty” in the 

phrase “absent from duty” only refers to the time Trejo spent 

performing the duties of a Deputy Sheriff Generalist. This is 

because the pertinent “dictionary definition” of “duty” is an 

“ ‘action or a task required by one’s position or occupation.’ ”

(Webster’s Encyclopedic Unabridged Dict. (1989) p. 444.) But, 

since Trejo was not “engaged in the . . . duties of [his] position” 

(rule 2.01) while on modified duties, he was “absent from duty” 

under the meaning of rule 12.02(B) because he was not “on duty.”

We reject this argument because it begs the question of 

whether Trejo’s modified assignment counted as an “absen[ce]
19

from duty” in the first place. What counts as an “absen[ce] from 

duty” is precisely the task before us, and its meaning is 

discoverable by applying rule 2.01. Rule 2.01 applies to rule 

12.02(B) because rule 2.00 says it does, and rule 2.01 does not 

limit “absences” to absences from duty from the position the 

employee was hired into. Moreover, the drafter’s usage of the 

complete phrase “a position or positions” shows they intended 

rule 2.01’s definition of “actual service” to apply to employees 

even after they are to be transferred into a different assignment. 

Otherwise, it would make no sense to use the plural “positions” 

since every employee begins employment in just one “position.”

Second, the County argues if we incorporate rule 2.01’s 

definition of “actual service” into rule 12.02, we render the phrase 

“on the basis of actual service exclusive of the time away,” mere 

surplusage.

This argument also fails because it assumes that our 

interpretation never allows for any “time away.” But, this is 

incorrect. As noted above, Division Five of our court held in 

Amezcua that the Department may lawfully extend a 

probationer’s extension if they pay the employee to stay at home 

because then the employee would be “absent from duty” within 

the meaning of rule 12.02(B). (Amezcua, supra, 44 Cal.App.5th 

at pp. 397-398.) The period of time the probationer is paid to stay 

at home is equivalent to their “time away.” (Id. at p. 398.) The 

County’s reply brief repeatedly relies upon Amezcua. The County 

thereby acknowledges that there is in fact a path whereby the 

Department can lawfully compel a probationer to take “time 

away” and it is precisely the route taken by the Department in 

Amezcua. Our holding does not render the phrase “time away” 

surplusage because being paid to stay at home while under 
20

investigation counts as “time away” under Amezcua, and is 

therefore not meaningless. (See Woosley v. State of California

(1992) 3 Cal.4th 758, 775-776 [surplusage canon only applies 

when an interpretation renders words or phrases meaningless].)

Third, the County argues the trial court placed too much 

interpretive weight upon the letter “a” in the phrase “a position 

or positions” when it concluded Trejo’s modified position still 

counted as “actual service” because it was still time spent in “a 

position” within the meaning of rule 2.01. Such an analysis, the 

County contends, is too “mechanical,” and should be eschewed in 

favor of a “practical and contextual reading of [r]ules 2.01 and 

12.02(B).”

We disagree that a “mechanical” interpretation is an 

incorrect interpretation. The County correctly observes 

elsewhere in its briefing that it is an “established canon” of 

statutory interpretation that “significance is attached to ‘every 

word, phrase, sentence and part of an act.’ ” Our interpretation 

properly gives effect to the indefinite article “a” (in the phrase “a 

position or positions”) which is in fact a “word.” Although the 

County believes indefinite articles should be downgraded in the 

task of interpretation if their literal application would create 

anomolous results, that argument does not reach our obligation 

to also apply the complete phrase “a position” (as found at rule 

2.41) which is not so semantically weak.

2. The County’s Arguments Premised upon 

Avoiding Absurd and Impractical 

Interpretations are Unpersuasive

The County’s real complaint with the trial court’s analysis 

is the following: “[T]here is no practical purpose in forcing the 

Department to assign a probationer to sit at home, with or 
21

without pay, as a prerequisite to investigating misconduct.” 

Variations of this argument surface throughout its briefing: 

“Public policy and a practical interpretation of [r]ule 12.02 favors 

allowing the Department giving Trejo modified duties.” 

Likewise, “Trejo’s interpretation of ‘duties’ would absurdly give 

probationers who are under investigation less scrutiny regarding 

the essential duties of the position than deputies who are under 

no cloud of suspicion.” And: “Trejo is not the only employee 

affected by this action. These issues have significant 

ramifications for all future probationary employees.”6

We quoted the County’s arguments extensively to aid in 

exposing its reliance upon a hidden premise, namely that we

should reverse the trial court to avoid the absurd and impractical 

results its interpretation imposes upon the Department. But, this 

premise is flawed because the County’s Rules bind all County 

employers, not just the Department. The County provides no 

argument that the trial court’s interpretation of rules 2:01 and 

12.02(B) lead to absurd and impractical results for all County 

employers.

The trial court rightly observed its interpretation “may not 

serve the needs of the Department, but the Department is not 

6 The County repeatedly emphasizes the Department’s 

practice of extending the probation of probationary deputy 

sheriffs under investigation is taken pursuant to a carefully 

worked out plan articulated by the Department’s Manual of 

Policy and Procedures. We question the relevance of the manual 

to our interpretive task because the Department is not entitled to 

deference in its interpretation of the Rules, via the manual or 

otherwise.
22

entitled to any deference in the interpretation of County 

personnel rules.”

We acknowledge the Department has important reasons for 

extending the probation of deputies who come under 

investigation. As the County emphasizes, three of the five

essential duties of deputies involve carrying weapons, making 

forcible arrests, and seizing evidence and contraband. Misuse of 

these duties and their attendant privileges has the potential to 

create distinctively important risks to the public and the 

administration of justice. But, the County has not offered 

authority for the proposition that the importance of the 

Department’s probation extension policies means we are free to 

interpret the Rules any differently from how we are obliged to 

construe any other statutes, i.e., by discerning their plain 

meaning. Indeed, the County’s brief elsewhere admits this: 

“[T]he subject matter limitations and time limits within the 

Rules are interpreted in the same manner as other statutes.”

We therefore conclude the plain meaning of rule 12.02(B)

may reliably be discerned by applying the definition of “actual 

service” from rule 2.01. We agree with the trial court that a 

County employee may not have his probation extended if he is

placed in another “position or positions.”

D. Trejo Did Not Fail to Exhaust His Administrative 

Remedies

As a general rule, a court lacks jurisdiction to issue a writ 

of mandate if the petitioner has not exhausted his or her

available administrative remedies. (See, e.g., Alta Loma School 

Dist. v. San Bernardino County Com. on School Dist. 

Reorganization (1981) 124 Cal.App.3d 542, 554.) “[A]n 

administrative remedy is exhausted only upon ‘termination of all 
23

available, nonduplicative administrative review procedures.’ 

[Citations.]” (Coachella Valley Mosquito & Vector Control Dist. v. 

California Public Employment Relations Bd. (2005) 35 Cal.4th 

1072, 1080.) The doctrine of exhaustion of administrative 

remedies is treated as jurisdictional. (Johnson v. City of Loma

Linda (2000) 24 Cal.4th 61, 70.)

The County argues the trial court lacked jurisdiction to 

reach the merits because Trejo failed to exhaust administrative 

remedies. Specifically, the County argues Trejo failed to avail 

himself of the “right to appeal” purportedly provided by rule 

12.05 which states as follows: “If an employee is given notice of a 

probationary period which the employee believes is in violation of 

this Rule, such employee may appeal through the established 

grievance procedure in the department, or through the grievance 

procedure contained in any memorandum of understanding in 

effect between the county and the certified employee organization 

for the employee’s class.”

This rule, the County argues, “governs all aspects of 

probation, including the probationary period of new employees, 

such as Trejo.” Because Trejo did not appeal the extension of his 

probation through the procedure provided by rule 12.05, the 

County argues he failed to exhaust his available remedies.

The trial court rightly rejected this argument. Rule 12.05 

provides that an employee appealing a rule 12 probation question 

may appeal through either: (1) the grievance procedure involving 

such issues already in place in the Department; or (2) through 

the grievance procedure set forth in an MOU.

We acknowledge there is a grievance process available to 

all deputy sheriffs, including Trejo, as provided by the MOU in

place between the Department and ALADS. This grievance 
24

procedure is a complex and detailed process. The MOU provides 

for several layers of administrative evaluation.

• Initially, the employee is encouraged to discuss the 

complaint informally with their immediate 

supervisor.

• If unsuccessful, a formal grievance may be filed using 

a Department grievance form that must describe the 

problem and indicate the desired remedy. A thirdlevel supervisor must then provide a written decision 

on the grievance.

• The employee may appeal to the review board which 

consists of the division chief, area commander, and, 

at the employee’s discretion, two sworn departmental 

members possessing a higher rank than the employee 

(collectively comprising the “review board”) who then 

confer to evaluate the grievance and then issues a 

recommended decision.

• The review board’s recommended decision on the

grievance then becomes binding upon approval by the 

Sheriff.

• The employee may still appeal the decision approved 

by the Sheriff through the arbitration process 

outlined by the MOU namely, by arbitrating before 

the Los Angeles County Employee Relations 

Committee (ERCOM).

But, the reason why this process is not a remedy Trejo 

failed to exhaust is that ERCOM is not empowered to review 

Trejo’s rule 12 argument. Section 6.2 of the MOU explicitly 

forbids arbitration over interpretation of the Rules. It provides: 

“In no event shall such arbitration extend to: [¶] . . . [¶] The 
25

interpretation, application, merits or legality of any or all of the 

County of Los Angeles Civil Service Rules . . . .” Thus, the 

grievance process outlined by his bargaining unit’s MOU simply 

did not provide Trejo an avenue of administrative appeal because 

his appeal of his probation extension would necessarily have

turned on the interpretation of rules 2.00 and 12.02(B).

As the trial court correctly ruled, the grievance procedure 

in the Department’s MOU was limited to “the calculation of 

probationary periods based on an accepted meaning of [rule] 12.”

In sum, we agree with the trial court that Trejo did not fail

to exhaust administrative remedies because none existed that 

were empowered to reach the merits of his lawsuit.

DISPOSITION

The September 13, 2018 judgment is affirmed. Trejo is to 

recover his costs on appeal.

CERTIFIED FOR PUBLICATION

WHITE, J.*

We concur:

CHANEY, J. BENDIX, Acting P. J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.