Filed 9/26/14 Lorenzana v. County of Monterey 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

EDUARDO LORENZANA,

Plaintiff and Appellant,

 v.

COUNTY OF MONTEREY et al.,

Defendants and Respondents.

 H038050

 (Monterey County

 Super. Ct. No. M111479)

Eduardo Lorenzana appeals the trial court’s denial of his petition for writ of 

mandate, request for an injunction and request for declaratory relief related to his 

termination from the Monterey County Sheriff’s Office. On appeal, Mr. Lorenzana 

asserts the trial court erred because as an at-will employee of the sheriff’s office, he was 

entitled to a full evidentiary hearing before termination under the Public Safety Officers

Procedural Bill of Rights. (Gov. Code, §§ 3300, et seq.)

STATEMENT OF THE FACTS AND CASE

Mr. Lorenzana was hired by the Monterey County Sheriff’s Office in 1986 and 

worked through the ranks until he was promoted in 2005 to sheriff’s commander. As a 

sheriff’s commander, Mr. Lorenzana had a permanent position with the Monterey County 

Sheriff’s Office. In 2008, Mr. Lorenzana accepted a position as chief deputy sheriff

under then-Sheriff Mike Kanalakis. When Mr. Lorenzana accepted the position, he 

signed a “Notification and Acknowledgement of At-Will Employment.” The notification 
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stated, “[T]he position for which you have been selected is an ‘At-Will’ position and, as 

an incumbent in that position, you will serve at the pleasure of your appointing authority. 

Serving ‘at the pleasure of your appointing authority’ means that: [¶] 1. Adverse action 

(which includes but is not limited to dismissal, suspension, demotion, reduction in salary, 

or written reprimand) may be taken against you after your appointing authority has 

provided you with a written notice setting forth the adverse action and has provided you 

an opportunity to discuss that action with him/her personally prior to its effective date. 

The cause(s) for the adverse action shall not be included in the notice. [¶] 2. If adverse 

action is taken in compliance with the notice procedure outlined above, as an employee 

who serves at the pleasure of his/her appointing authority, you will not have the right to 

appeal regarding such adverse action. [¶] 3. In the event you have heretofore held a 

permanent position in the same Monterey County department, by your acceptance of this 

appointment to an ‘At-Will’ position, you are giving up any vested legal right you may 

have to continued employment with the County of Monterey, and/or return to your 

permanent position within the department.”

Former Sheriff Kanalakis lost the election for Monterey County Sheriff to Scott 

Miller in November 2010. Former Sheriff Kanalakis began taking steps to transfer 

Mr. Lorenzana back to the position of sheriff commander; however, he was unsuccessful 

completing the transfer.

Sheriff Miller took office on December 31, 2010. On January 13, 2011, Sheriff 

Miller sent Mr. Lorenzana a letter terminating his appointment as chief deputy sheriff 

effective January 21, 2011. The letter stated that the termination was “non-disciplinary in 

nature and [was] based on [his] at-will status.” 

Mr. Lorenzana and his attorney met with Sheriff Miller and his assistant on 

January 27, 2011. They expressed their position that former Sheriff Kanalakis transferred 

Mr. Lorenzana back to the sheriff’s commander position before he left office. Sheriff 
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Miller informed Mr. Lorenzana that the transfer was not effective, and the only

alternative position available for him was that of deputy sheriff. 

On January 31, 2011, Mr. Lorenzana’s attorney sent a letter to Sheriff Miller 

saying that Mr. Lorenzana would not accept the alternative position of deputy sheriff. On 

February 8, 2011, Sheriff Miller sent a letter to Mr. Lorenzana stating: “Given your lack 

of acceptance of my offer by the agreed upon time and date, you are hereby terminated 

from employment effective January 28, 2010.”

Mr. Lorenzana filed a complaint on April 1, 2011 seeking an injunction, writ of 

mandate, and declaratory relief. He alleged that he held the permanent position of 

sheriff’s commander at the time he was terminated, and as a result, he could not be 

terminated without due process. In addition, Mr. Lorenzana sought to be reinstated as 

sheriff’s commander to allow for an administrative appeal pursuant to Government Code, 

section 3304, subdivision (b). 

The trial court denied Mr. Lorenzana’s request for relief, finding that former 

Sheriff Kanalakis’s purported transfer of Mr. Lorenzana back to the position of sheriff’s 

commander was ineffective, and even if it had been effective, Mr. Lorenzana would have 

been in a probationary period during which he could be terminated at will. In addition, 

the court found that Mr. Lorenzana was in the position of chief deputy sheriff, an at-will 

position, at the time of the termination, and his signature and agreement to the notice and 

acknowledgment was sufficient to waive any right he might have had to an administrative 

appeal. 

Mr. Lorenzana filed a timely notice of appeal. 
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DISCUSSION

On appeal, Mr. Lorenzana changes his position entirely from what he maintained

in the trial court, not only asserting a different legal theory, but also arguing a different 

factual basis upon which the theory should be applied.

In the trial court, Mr. Lorenzana argued that he held the permanent position of 

sheriff’s commander at the time of his termination. Therefore, his termination without 

just cause or a full evidentiary hearing violated his due process rights.

Here, Mr. Lorenzana does an about face and argues he was not in the permanent 

position of sheriff’s commander at the time of his termination; rather he was actually in 

the at-will position of chief deputy sheriff. Despite the fact that he was at-will, and had 

signed the notice and acknowledgement of at-will employment status, Mr. Lorenzana 

argues that he was entitled to a full evidentiary hearing under POBRA (Police Officers 

Procedural Bill of Rights Act) because he was a high-ranking peace officer.

As a general rule, theories not raised in the trial court cannot be asserted for the 

first time on appeal. Appealing parties must adhere to the theory or theories on which 

their cases were tried. (Ernst v. Searle (1933) 218 Cal. 233, 240-241; Brown v. Boren

(1999) 74 Cal.App.4th 1303, 1316.) This rule is based on the notion that it would be 

unfair to both the trial court and the opposing litigants to permit a change of theory on 

appeal. (Brown v. Boren, supra, at p. 1316.) The appellate court may deviate from the 

general rule and address new theories on appeal “when the issue presented involves 

purely a legal question, on an uncontroverted record and requires no factual 

determinations . . . .” (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 

820, 847.) The appellate court is not required to apply this exception and consider a new 

theory based on a pure question of law. Whether to do so is within the appellate court’s 

discretion. (Resolution Trust Corp. v. Winslow (1992) 9 Cal.App.4th 1799, 1810

(Winslow).)
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In the present case, Mr. Lorenzana’s appeal presents arguments, factual assertions 

and remedies that are not only new to the case, but are wholly inconsistent with his 

complaint in the trial court. The issue of whether as an at-will employee Mr. Lorenzana 

was entitled to an evidentiary hearing under POBRA before termination was never 

considered by the trial court.

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 Indeed, there were no arguments to this effect, because 

Mr. Lorenzana was not pursuing this theory for recovery. Moreover, Mr. Lorenzana’s 

complaint contains no allegations that he was at-will, or that he was entitled to an 

evidentiary hearing on his termination despite his at-will status. Finally, on appeal, 

Mr. Lorenzana seeks back pay for this position as chief deputy sheriff, whereas in the 

trial court he sought reinstatement to the position of sheriff’s commander so that he could 

pursue an administrative appeal. 

An argument raised for the first time on appeal is generally deemed forfeited.

(Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 

136 Cal.App.4th 212, 226.) In this case, Mr. Lorenzana did not raise the issue 

concerning whether he was entitled to a full evidentiary hearing despite his at-will status 

in the trial court. As a result, we will not consider it for the first time on appeal. 

(Winslow, 9 Cal.App.4th at p.1810.) 

DISPOSITION

The judgment is affirmed.

 

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 The record reflects Mr. Lorenzana received a POBRA hearing in any event 

when he met with Sheriff Miller accompanied by his own counsel on January 27, 2011. 

Prior to the meeting, Sheriff Miller sent a letter to Mr. Lorenzana offering him a neutral 

hearing officer for the meeting. Mr. Lorenzana declined, and chose to meet with Sheriff 

Miller himself. At the meeting, Sheriff Miller informed Mr. Lorenzana that the purpose 

of the meeting was to provide a due process hearing for Mr. Lorenzana under POBRA. 

The meeting proceded and Mr. Lorenzana presented testimony about this history and 

qualifications for the position. Mr. Lorenzana offers no legal authority for the position 

that a POBRA hearing requires more than was provided to him on January 27, 2011.
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______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

MÁRQUEZ, J.