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Case No. 17-CV-00007-LHK 

ORDER DENYING PLAINTIFF’S PETITION FOR WRIT OF MANDATE

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

JACQUELINE ZHANG,

Plaintiff,

v.

COUNTY OF MONTEREY, MONTEREY 

COUNTY RESOURCE MANAGEMENT 

AGENCY, and MONTEREY COUNTY 

PARKS DEPARTMENT,

Defendants.

Case No. 17-CV-00007-LHK 

ORDER DENYING PLAINTIFF’S

PETITION FOR WRIT OF MANDATE 

Re: Dkt. Nos. 245, 246

Plaintiff Jacqueline Zhang (“Plaintiff”) sues Defendants County of Monterey, Monterey 

County Parks Department, and Monterey County Resource Management Agency (collectively, 

“the County”) for causes of action arising out of the County’s termination of Plaintiff’s 

employment with the County. Before the Court is Plaintiff’s petition for writ of mandate under 

California Code of Civil Procedure § 1085, which the Court is judicially adjudicating. See ECF 

No. 187. Having considered the parties’ submissions, the relevant law, and the record in this case, 

the Court DENIES Plaintiff’s petition for a writ of mandate under California Code of Civil 

Procedure § 1085.

I. BACKGROUND

A. The County’s Personnel Policies and Practices Resolution
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The instant case stems from the County’s termination of Plaintiff’s employment with the 

County. Employment with the County is governed by the County’s Personnel Policies and 

Practices Resolution (“PPPR”), which was in effect at all times relevant to the instant case. See

Exh. 4.1

The PPPR provides that newly appointed employees shall have a probationary period, 

which is “[a] working test period required before an appointment to a permanent or seasonal 

position is completed.” Exh. 4 at 534. The PPPR states that “[u]nless a shorter initial probationary 

period is set forth in the applicable memorandum of understanding, this test period shall be a 

minimum of twelve (12) months.” Id. The PPPR provides that “[a]n employee serving his/her 

initial probationary period shall have no right to appeal from adverse action and serves at the 

pleasure of the appointing authority.” Id.

The PPPR distinguishes an initial probationary period, which applies to newly appointed 

employees, with a disciplinary probationary period, which applies to employees who are being 

disciplined. See Exh. 4 at 15 (“An employee serving his/her initial probationary period shall have 

no right to appeal from adverse action and serves at the pleasure of the appointing authority. In the 

case of an employee serving a period of disciplinary probation, however, the forfeiture of appeal 

rights shall extend only to the act(s) and/or omission(s) which constitute the underlying basis for 

such disciplinary probation.”); see also id. (“A working test period [is] required before an 

appointment to a permanent or seasonal position is completed. Unless a shorter initial 

probationary period is set forth in the applicable memorandum of understanding, this test period 

shall be a minimum of twelve (12) months. . . . In the case of disciplinary probation, the period of 

time [is] set forth in the action placing the employee on disciplinary probation during which the 

terms of the disciplinary probation must be satisfied.”).

Moreover, in a section entitled “Disciplinary Actions,” the PPPR states the following:

1 This Order cites to the exhibits admitted at trial according to their exhibit number. Pursuant to 

this Court’s Pretrial Conference Order, ECF No. 133, joint exhibits were labeled from 1 to 100, 

Plaintiff’s exhibits were labeled from 101 to 200, and the County’s exhibits were labeled from 201 

to 300. 
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“The appointing authority may take disciplinary action against any employee in the service of 

Monterey County provided that the rules and regulations prescribed herein are followed, except 

that adverse action against an employee who serves at the pleasure of the appointing authority, 

pursuant to Section B.16 of this document shall be accomplished by a single written notice which 

sets forth the adverse action and provides the opportunity for the employee to discuss that action 

with his/her appointing authority prior to its effective date. As used in this section, ‘disciplinary or 

adverse action’ shall mean dismissal, suspension, disciplinary demotion, reduction in salary, 

disciplinary probation, or formal written reprimand.” Id. at 115. 

B. The Start of Plaintiff’s Employment

Plaintiff is a licensed California Certified Public Accountant. 6/7/2021 Trial Tr. at 92:15–

16, ECF No. 240. Before working for the County, Plaintiff had over ten years of experience in 

accounting and finance. Exh. 185. However, Plaintiff had never worked for the government before 

working for the County. Id.

On September 9, 2015, Amy Rodriguez, a Human Resources analyst with the County, gave 

Plaintiff a letter, which stated that the County’s Parks Department had made a conditional offer of 

employment to Plaintiff and that Plaintiff had accepted the conditional offer. Exh. 1. The letter 

stated that Plaintiff had accepted “the Finance Manager I position in the Parks Department with a 

tentative start date of Monday, October 5, 2015.” Id. The letter stated that “[t]here is a 

probationary period of twelve (12) months, starting from time of appointment.” Id. The 12 month 

probationary period was in line with the PPPR. Exh. 4 at 534. The letter stated that Plaintiff would 

report to “Mark Mariscal, Director of Parks” and that Plaintiff’s “hours of work are typically 

Monday through Friday, 8:00 a.m. to 5:00 p.m.” Exh. 1. The letter directed Plaintiff to indicate her 

acceptance of the offer letter by signing and returning it. Id. Plaintiff signed the letter on 

September 9, 2015. Id.

On September 29, 2015, Mariscal emailed Plaintiff “to extend an invitation to” Plaintiff to 

observe a Parks Commission meeting on Thursday, October 1, 2015. Exh. 2. In his email, 

Mariscal stated that Plaintiff “may want to spend 30-60 minutes just sitting and listening to the 
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meeting” in order to get “a ‘flavor’ of some of the work” that the Parks Department did. Id.

However, Mariscal told Plaintiff that “[i]f you cannot make it, do not worry about it.” Id. Mariscal

also testified that attending the meeting was not a requirement. 6/9/2021 Trial Tr. at 737:1–5, ECF 

No. 242. Plaintiff testified that Mariscal followed up his email with a call, in which he “strongly 

recommend[ed]” that Plaintiff attend the meeting. 6/7/2021 Trial Tr. at 122:4–10. Mariscal

testified that he did not remember such a call, but that a call could have happened. 6/9/2021 Trial 

Tr. at 737:16–18, 746:24–25.

Plaintiff testified that she attended the Parks Commission meeting on Thursday, October 1,

2015. Id. at 122:17–123:10. Plaintiff also testified that she spent time on Friday, October 2, 2015

reviewing the Parks Department’s budget. Id. at 124:14–15. Plaintiff additionally testified that 

Plaintiff spent Saturday, October 3, 2015 visiting a couple of the County’s parks. Id. at 124:16–23. 

However, Plaintiff testified that she was not directed by anyone at the Parks Department to review 

the Parks Departments’ budget or visit the County’s parks. 6/8/2021 Trial Tr. at 299:20–24, ECF 

No. 241.

On Monday, October 5, 2015, Plaintiff started her first day in the Parks Department office. 

That day, Plaintiff met with Human Resources representatives at the County and completed the 

following initial employment documentation:

• On October 5, 2015, Plaintiff completed a Form I-9, which requires that Plaintiff 

provide documentation showing that Plaintiff is legally authorized to work in the 

United States before starting work. Exh. 202; see also 6/9/2021 Trial Tr. at 718:5–

25. Plaintiff’s I-9 listed her first day of employment as October 5, 2015. Id. 

Plaintiff signed and dated the I-9 on October 5, 2015. Id.

• On October 5, 2015, Plaintiff completed a W-4, which permits an employer to 

withhold income tax before an employee is paid. Exh. 205. Plaintiff signed and

dated the W-4 on October 5, 2015. Id.

• On October 5, 2015, Plaintiff completed the oath of affirmation of office, which 

requires that a government employee swears to uphold the Constitution and to 

“well and faithfully discharge the duties [she] is about to enter.” Exh. 204. The oath 

of affirmation of office must be completed before the employee starts work.

6/9/2021 Trial Tr. at 718:5–25. Plaintiff signed and dated the oath of affirmation of 

office on October 5, 2015. Id.
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• On October 5, 2015, Plaintiff completed an emergency contact form. Exh. 201. 

Plaintiff signed and dated the form on October 5, 2015. Id. 

• On October 5, 2015, Plaintiff completed a Member Action Request for CalPers, the 

California state employee benefit system, which allowed her to start receiving 

benefits under that system. Exh. 207. In Plaintiff’s Member Action Request, 

Plaintiff wrote that her hire date and the effective date of the action were October 5, 

2015. Id. 

• On October 5, 2015, Plaintiff completed a Member Reciprocal Self-Certification 

Form for CalPers. Exh. 208. Plaintiff signed and dated that form on October 5, 

2015. Id.

C. Plaintiff’s Employment with the Parks Department 

For the first eight months of her employment, Plaintiff reported to Mariscal. During that 

period of time, Mariscal received some complaints regarding the abrupt tone of some of Plaintiff’s 

email communications. 6/9/2021 Trial Tr. at 739:15–741:5. Mariscal talked to Plaintiff about the 

complaints and thought the issue was resolved by his talk with Plaintiff. Id. at 739:21. 

On July 14, 2016, Plaintiff received an evaluation from Mariscal, her supervisor. Exh. 3.

The evaluation lists the “Beginning/Ending Period” as “10/5/2015 to 5/31/2016.” Id. The 

evaluation contained a section entitled “Type of Appraisal,” which included the “8 Month 

Probationary” and “Annual” boxes. Moreover, the evaluation contained a check box to indicate 

“Retention/Permanent Status.” Exh. 3. The evaluation rated Plaintiff’s performance as “Above 

Standard” or “Fully Meets Standard” as to all the listed metrics. Id. The evaluation’s narrative 

states that Plaintiff “easily passes her probation.” Id. However, Mariscal testified that this 

statement was a mistake and that he mistakenly thought Plaintiff’s probation was “eight or nine” 

months, not twelve months. 6/9/2021 Trial Tr. at 738:7–14. 

After Plaintiff received Mariscal’s evaluation, Plaintiff emailed her husband, Gary 

Giboney, who is the County’s Chief Deputy Auditor-Controller, regarding Mariscal’s evaluation. 

Exh. 212. Giboney responded: “I would have the ‘8 Month Probationary’ Box checked for the 

type of appraisal and the Step Increase Box checked with the date the increase was approved. I 

would also have the Retention/Permanent Status Box check[ed] since it clearly says ‘she easily 
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passes her probation in the narrative.’ Then accept the appraisal and sign at the employee [box], 

return to Mark for signature.” Id. Giboney never instructed Plaintiff to have Mariscal correct the 

start date to October 1 or 3, 2015. In her response to Giboney, Zhang stated: “[Mariscal] checked 

the ‘8 month’ and ‘annual.’ I just called him about the other two. Since he has sent it to Nick after 

I signed, he will check with Karina.” Id.

Mariscal testified that he tried to check the box to indicate “Retention/Permanent Status,” 

but he learned from Human Resources personnel that he could not do so because Plaintiff’s 

probation was 12 months, not 8 or 9 months. 6/9/2021 Trial Tr. at 748:2–4. Thus, Mariscal never 

checked the box to indicate “Retention/Permanent Status.” Exh. 3.

D. Plaintiff’s Employment with the Resource Management Agency

In July 2016, as part of a reorganization process within the County, the Parks Department 

merged with the County’s Resource Management Agency (“RMA”). At this same time, Mariscal

left the Parks Department. Accordingly, Shawne Ellerbee, who was the Deputy Director of 

Administrative Services for RMA, became Plaintiff’s new supervisor. While Mariscal’s 

experience had been in parks and recreation and management, Ellerbee had experience in 

government accounting. 6/9/2021 Trial Tr. at 668:18–669:10.

On July 13, 2016, Plaintiff received an organizational chart with her new supervisor

within RMA, Ellerbee. Exh. 275. That day, Plaintiff forwarded the organizational chart to 

Giboney. Id. Giboney stated: “I think you will need to really commit yourself for the next six 

months or so and show what you can do for them. Expectations will be much higher for your work 

now and your supervisor has a reputation for being fair but tough. I don’t think you will be getting 

off as early and not as flexible working conditions.” Id. 

During her time as Plaintiff’s supervisor, Ellerbee noticed several accounting mistakes by 

Plaintiff that appeared to stem from a lack of familiarity with government accounting rules. For 

example, Ellerbee testified that, on one occasion, Plaintiff tried to classify a transfer of funds as 

deferred revenue when, according to Ellerbee, such a classification was not possible under 

government accounting rules. Id. at 677:9–14. Ellerbee testified that on another occasion Plaintiff 
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submitted financial statements that overstated expenditures because she used the “accrual” method 

of accounting instead of the “modified” method used in government accounting. Id. at 678:7–12. 

On another occasion, Plaintiff did not understand that funds owed to the County, but not received 

within sixty days of year-end, cannot be shown on financial statements as revenue in government 

accounting. Id. at 679:3–17. 

Jessica Cordiero-Martinez, a Finance Manager II with RMA, testified that she tried to 

mentor and train Plaintiff as Plaintiff started working at the RMA. Id. at 553:7–9. CordieroMartinez also reviewed Plaintiff’s work. Id. at 553:9. In reviewing Plaintiff’s work, CordieroMartinez had concerns on several occasions about Plaintiff’s work, which had mistakes that 

appeared to stem from Plaintiff’s lack of familiarity with government accounting. Id. at 553:12–

14. For example, Cordiero-Martinez noticed that Plaintiff included depreciation, which, according 

to Cordiero-Martinez, would have been permitted under business accounting rules but not 

government accounting rules. Id. at 553:16–554:14. On another occasion, Plaintiff made a mistake 

regarding deferred revenue under government accounting rules. Id. at 555:18–556:4. CordieroMartinez attempted to discuss these issues with Plaintiff, but Plaintiff seemed to not understand 

and seemed resistant and “set in her ways.” Id. at 556:15–17.

Additionally, shortly after Ellerbee began supervising Plaintiff, Ellerbee noticed that

Plaintiff’s emails “were coming across a bit curt” or “pretty stern” and thus met with Plaintiff to 

ask her “if she could start softening the tone of her e-mails.” Id. at 680:3–7. In addition, one of the

County’s vendors, California Parks Company (“CalParks”)—which provided services to the Parks 

Department in operating recreational areas—complained about Plaintiff’s email communications. 

Id. at 606:23–607:1. Specifically, Dina Del Dotto, the Finance Director of CalParks, testified that 

Plaintiff “could be very disrespectful and condescending and unprofessional at times” in her 

communications with Del Dotto and her staff. Id. at 608:19–22; accord ECF No. 55 ¶ 4. Del 

Dotto testified that one of her star employees resigned following Plaintiff’s communications. 

6/9/2021 Trial Tr. at 612:11–12. Accordingly, Del Dotto asked Ellerbee to have Del Dotto’s staff 

“not deal directly” with Plaintiff. Id. at 612:13–14. In response, Ellerbee required that all CalParks 
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communications had to go to Cordiero-Martinez, who acted as an intermediary between CalParks 

and Plaintiff. Id. at 566:18–24. CalParks and Plaintiff no longer communicated directly. Id.

In addition, Heather Lasley, an Office Assistant at the County, reached out to Ellerbee

regarding the tone of Plaintiff’s emails. Id. at 689:8–23. Lasley told Ellerbee that Lasley did not 

feel that Plaintiff was treating her fairly. Id. Ellerbee met with Plaintiff and told Plaintiff that her 

emails were coming across as disrespectful. 6/8/2021 Trial Tr. at 340:3–7; 6/9/2021 Trial Tr. at 

689:8–23.

On July 26, 2016, Plaintiff sent emails to Ellerbee, Guertin, and others. See id. at 332:4 –

336:7; Exh. 223. In those emails, Guertin asked Plaintiff for a recommendation regarding utilities 

for rangers that live on site at one of the County’s parks. Exh. 223. Plaintiff responded that she did 

not know what would happen to the rangers and explained that she “started working for the 

County at the end of last calendar year,” so she did not have familiarity with operational issues. Id.

Plaintiff then forwarded these emails to Giboney, who told her not to “say anything like [that] 

again.” Id. Giboney told Plaintiff not to tell her managers that she did not know how to find 

solutions or do her job. Id. Giboney additionally told Plaintiff: “Don’t tell [Management] you 

aren’t up to the job because you don’t have enough experience or have enough information.” Id. 

Based on these emails, Plaintiff was asked at trial whether she was concerned that she did not have 

enough experience to do her job. 6/8/2021 Trial Tr. at 335:1. In response, Plaintiff testified: “I did 

not have enough time for me to know enough . . . I [was] still in probation, still picking [things] 

up.” Id. at 335:3–5. 

Cordiero-Martinez testified that, on October 4, 2016, Plaintiff spoke with CordieroMartinez about how hard Plaintiff’s new role at RMA had been. 6/9/2021 Trial Tr. at 571:13–16. 

Cordiero-Martinez testified that, on October 4, 2016, Plaintiff also said that Giboney had told 

Plaintiff, “You know, you’re almost there, you know, you almost met that year, you’re almost 

there, it’s going to be okay and you’re going to get through this and, you know, next year is going 

to be easier.” Id.

E. The Termination of Plaintiff’s Employment
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On October 4, 2016, at almost 5:00, Plaintiff was summoned by a human resources 

employee to meet with Ellerbee and another human resources employee in the office conference 

room. 6/7/2021 Trial Tr. at 169:7–170:7. At the meeting, they passed Plaintiff a negative 

performance appraisal. Id. at 170:9–13. Plaintiff states that she took “about 15 minutes” to read the 

negative performance appraisal and was shocked by its “false and misleading” contents. Id. The 

negative performance appraisal summarized several of Plaintiff’s accounting and other mistakes 

and recounted many of the problems and complaints regarding Plaintiff’s email communications 

with co-workers and outside vendors detailed above. Exh. 112. After Plaintiff finished reading the 

negative performance appraisal, Plaintiff signed the appraisal and checked the box that read “I 

disagree with the evaluation and request a meeting with the Reviewing Officer.” Exh. 112. 

Finally, after Plaintiff had signed the performance appraisal, Ellerbee handed Plaintiff a 

letter and told Plaintiff that Ellerbee was releasing Plaintiff from probation. 6/7/2021 Trial Tr. at 

171:8–9. That letter informed Plaintiff that Plaintiff was being released from her “position of 

Finance Manager I, and from County service, effective October 4, 2016 at 5:00 p.m. because of 

[Plaintiff’s] failure to satisfactorily complete [her] probationary period.” Exh. 170. It also 

informed Plaintiff that (1) Plaintiff’s termination was “not subject to appeal”; and (2) if Plaintiff 

wanted to respond to her termination, Plaintiff could do so by either sending a written response to 

John Guertin, the “Interim Deputy Director of Land Use and Community Development,” or 

meeting with Guertin in person “no later than Tuesday, October 11, 2016.” Id.

After her October 4, 2016 termination, Plaintiff wrote two letters to Guertin challenging 

the grounds for her termination, one dated October 10, 2016, and the other dated October 14, 

2016. Exhs. 109, 110. In her October 10, 2016 letter, Plaintiff stated that she “was employed by 

the County of Monterey as of Monday, October 5, 2015 (official start date due to County Payroll 

System Requirement for starting on the first day of a payroll period-but actually had beg[u]n 

performing [her] job duties Thursday, October 1, 2015).” Exh. 109. 

Plaintiff also met in person with Guertin on October 24, 2016. Exh. 111. On November 28, 

2016, Guertin sent a letter to Plaintiff stating that (1) Guertin had completed his review of 
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Ellerbee’s October 4, 2016 performance appraisal of Plaintiff and Plaintiff’s objections to that 

performance appraisal; and (2) based on his review, Guertin was “in agreement with the rating 

provided in the” October 4, 2016 performance appraisal and had “signed off” on that performance 

appraisal “as the Reviewing Officer.” Id. 

Plaintiff also filed a complaint of discrimination with the County’s Equal Opportunity 

Office on October 27, 2016. In that complaint, Plaintiff stated that she “had started working for the 

County of Monterey, Parks Department as a Finance Manager I officially on Monday, October 5, 

2015 reporting to Mark Mariscal, Parks Director.” ECF No. 52, Exh. 16 at 96.2

On October 11, 2016, Plaintiff filed a request for unemployment benefits with the State of 

California. Exh. 298; 6/8/2021 Trial Tr. at 267:19–22. Plaintiff’s request stated that her reason for 

termination was “rejection during probation (probation period: one year), rejected one day before 

my anniversary.” Id.

F. Procedural History

Plaintiff filed the instant action against the County on January 3, 2017. ECF No. 1 

(“Compl.”). Plaintiff’s complaint asserted the following eight causes of action against the County: 

(1) discrimination on the basis of race and national origin in violation of Title VII, 42 U.S.C. § 

2000e et seq.; (2) discrimination on the basis of marital status, race, and national origin in 

violation of the California Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 

12900 et seq.; (3) discrimination on the basis of race in violation of 42 U.S.C. § 1981; (4) 

deprivation of a property interest without due process of law in violation of the Fourteenth 

Amendment of the United States Constitution (pursuant to 42 U.S.C. § 1983); (5) deprivation of a 

liberty interest without due process of law in violation of the Fourteenth Amendment of the United 

States Constitution (pursuant to 42 U.S.C. § 1983); (6) deprivation of a property interest without 

due process of law and employment discrimination on the basis of race and national origin in

violation of the California Constitution; (7) writ of mandate under California Code of Civil 

2 Plaintiff’s complaint filed with the County’s Equal Employment Office was not introduced or 

admitted at trial. 
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Procedure § 1085; and (8) writ of mandate under California Code of Civil Procedure § 1094.5. See 

id.

On February 15, 2018, the County filed a motion for summary judgment. ECF No. 51. On 

April 24, 2018, the Court granted the County’s motion for summary judgment as to seven of 

Plaintiff’s eight claims. ECF No. 72. The Court then declined to exercise supplemental jurisdiction 

over Plaintiff’s petition for a writ of mandate pursuant to California Code of Civil Procedure § 

1085. Id. at 39–44. Specifically, the Court concluded that Plaintiff’s petition for a writ of mandate 

raised a novel issue of state law. Id. at 41–43. The Court then concluded that economy, fairness, 

convenience, and comity weighed in favor of declining supplemental jurisdiction. Id. at 43–44.

On February 10, 2020, the Ninth Circuit affirmed this Court’s ruling on Plaintiff’s 

following five claims: (1) discrimination on the basis of race and national origin in violation of 

Title VII, 42 U.S.C. § 2000e et seq.; (2) discrimination on the basis of marital status, race, and 

national origin in violation of the California Fair Employment and Housing Act (“FEHA”), Cal. 

Gov’t Code § 12900 et seq.; (3) discrimination on the basis of race in violation of 42 U.S.C. § 

1981; (4) deprivation of a liberty interest without due process of law in violation of the Fourteenth 

Amendment of the United States Constitution (pursuant to 42 U.S.C. § 1983); and (5) writ of 

mandate under California Code of Civil Procedure § 1094.5. Zhang v. County of Monterey, 804 F. 

App’x 454, 456–57 (9th Cir. 2020). 

However, the Ninth Circuit concluded that there were genuine issues of material fact as to 

two of Plaintiff’s claims: (1) deprivation of a property interest without due process of law in 

violation of the Fourteenth Amendment of the United States Constitution (pursuant to 42 U.S.C. § 

1983) and (2) deprivation of a property interest without due process of law in violation of the 

California Constitution. Id. at 456. Specifically, the Ninth Circuit concluded that there were 

genuine issues of material fact regarding whether Plaintiff was a probationary or permanent 

employee when she was terminated on October 4, 2016 because Plaintiff had presented evidence 

that her probationary period ended on October 2, 2016, one year after the first day of Plaintiff’s 

initial pay period on October 3, 2015. Id. 
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As to Plaintiff’s petition for a writ of mandate under California Code of Civil Procedure § 

1085, the Ninth Circuit concluded that the Court had not abused its discretion in declining 

supplemental jurisdiction. Id. at 457–58. However, the Ninth Circuit remanded Plaintiff’s petition 

for a writ of mandate so that the Court could exercise its discretion afresh. Id. at 458. 

On May 4, 2021, the County requested that Plaintiff’s petition for a writ of mandate be 

judicially adjudicated. ECF No. 125. In the alternative, the County requested that the Court 

decline supplemental jurisdiction over Plaintiff’s petition for a writ of mandate. Id. On June 4, 

2021, after multiple rounds of briefing by both sides, the Court granted the County’s request for 

judicial adjudication. ECF No. 187. The Court rejected the County’s request to decline to exercise 

supplemental jurisdiction over Plaintiff’s petition for a writ of mandate because the County’s 

request was made four and a half years after Plaintiff filed the instant case and one month before 

jury trial was set to begin, so the factors of economy, convenience, and fairness weighed in favor 

of retention of supplemental jurisdiction. Id. at 4–7. 

Between June 7, 2021 and June 10, 2021, the Court held a jury trial on Plaintiff’s claims 

for: (1) deprivation of a property interest without due process of law in violation of the Fourteenth 

Amendment of the United States Constitution and (2) deprivation of a property interest without 

due process of law in violation of the California Constitution. On June 10, 2021, the jury reached a 

verdict for the County on Plaintiff’s due process claims. ECF No. 235. 

Specifically, the jury answered “no” to the following question on the verdict form: “Has 

Plaintiff Jacqueline Zhang (‘Plaintiff’) proved that she was not a probationary employee when 

Defendants County of Monterey, Monterey County Resource Management Agency, and Monterey 

County Parks Department (collectively, ‘the County’) discharged Plaintiff from Plaintiff’s 

employment on October 4, 2016?” Id.

The jury then answered “no” to questions asking: (1) whether Plaintiff had proved that the 

County had deprived her of a protected property interest without due process of law in violation of 

Article I, Section 7 of the California Constitution and (2) whether Plaintiff had proved that the 

County had deprived her of a protected property interest without due process of law in violation of 
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the Fourteenth Amendment of the United States Constitution. Id.

On June 18, 2021, the parties filed additional briefing on Plaintiff’s petition for a writ of 

mandate pursuant to California Code of Civil Procedure § 1085. ECF Nos. 245, 246. 

II. DISCUSSION

Plaintiff contends that Plaintiff is entitled to a writ of mandate pursuant to California Code 

of Civil Procedure § 1085 ordering that she be reinstated to her County position with back pay. 

See Compl. at 18–21; ECF No. 246. Plaintiff asserts that Plaintiff is entitled to a writ of mandate 

pursuant to California Code of Civil Procedure § 1085 because the County violated the County’s 

Personnel Policies and Practices Resolution (“PPPR”) in terminating her. Id. Plaintiff contends 

that: (1) she was a permanent employee of the County at the time of her termination, and (2) the 

County violated the PPPR by not providing her with the process due to permanent employees 

before termination. ECF No. 246 at 1. Plaintiff further contends that, even if she had been a 

probationary employee of the County at the time of her termination, the County violated the PPPR 

by not providing her with the process due to probationary employees. Id. at 1–2. 

The Court proceeds to analyze Plaintiff’s petition for writ of mandate as follows. First, the 

Court discusses the elements of a petition for writ of mandate under California Code of Civil 

Procedure § 1085. Second, because the PPPR provides different process for probationary 

employees and permanent employees, the Court initially addresses whether Plaintiff was a 

probationary employee or a permanent employee at the time of her termination. The Court 

concludes that Plaintiff was a probationary employee at the time of her termination. Third, the

Court addresses whether the County violated the PPPR and whether Plaintiff is entitled to a writ of 

mandate. 

A. Petition for Writ of Mandate Under California Code of Civil Procedure § 1085

California Code of Civil Procedure § 1085 states that a writ of mandate may be issued “by 

any court to any inferior tribunal, corporation, board, or person” to either (1) “compel the 

performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or 

station”; or (2) “compel the admission of a party to the use and enjoyment of a right or office to 
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which the party is entitled, and from which the party is unlawfully precluded by that inferior 

tribunal, corporation, board, or person.” Cal. Code. Civ. Proc. § 1085. Individuals who—like 

Plaintiff—believe that they were wrongfully terminated from positions of public employment 

frequently seek to use § 1085 to compel reinstatement to their positions and back pay. See, e.g., 

Agosto v. Bd. of Trs. of Grossmont-Cuyamaca Cmty. Coll. Dist., 189 Cal. App. 4th 330 (2010). 

To be entitled to a writ of mandate under § 1085, Plaintiff must show two elements. First, 

Plaintiff must show that the County has a “clear, present, and ministerial duty” to reinstate her. 

Kavanaugh v. W. Sonoma Cty. Union High Sch. Dist., 29 Cal. 4th 911, 916 (2003). Second, 

Plaintiff must show that Plaintiff has a “clear, present, and beneficial right to performance of that 

duty entitling her to a writ of mandate.” Id.

As to the first element, Plaintiff must show that the County has a “clear, present, and 

ministerial duty” to reinstate her. Id. “Absent a clear duty imposed by law . . . mandamus is not a 

proper vehicle for resolution for the asserted grievance.” Physicians Comm. for Responsible

Medicine v. L.A. Unified Sch. Dist., 43 Cal. App. 5th 175, 185 (2019) (quotation omitted). “A duty 

is ministerial when it is the doing of a thing unqualifiedly required.” Redwood Coast Watersheds 

Alliance v. State Bd. of Forestry & Fire Protection, 70 Cal. App. 4th 962, 970 (1999); see also 

Kavanaugh, 29 Cal. 4th at 916 (“A ministerial act is an act that a public officer is required to 

perform in a prescribed manner in obedience to the mandate of legal authority and without regard 

to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state 

of facts exists.”). 

Second, Plaintiff must show that Plaintiff has a “clear, present, and beneficial right to 

performance of that duty entitling her to a writ of mandate.” Kavanaugh, 29 Cal. 4th at 916. As to 

the second element, Plaintiff must “establish a clear right to the requested relief.” Jacobs v. 

Regents of Univ. of Cal., 13 Cal. App. 5th 17, 28 (2017).3

3

In addition, California Code of Civil Procedure § 1086 provides that a writ of mandate “must be 

issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course 

of law.” Cal. Code Civ. Proc. § 1086. 
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B. Plaintiff was a probationary employee at the time of her termination. 

In the instant case, Plaintiff contends that Plaintiff is entitled to a writ of mandate because 

the County violated the PPPR in terminating her. ECF No. 246. Specifically, Plaintiff contends 

that the County violated the PPPR because she was a permanent employee and was due the 

process afforded to a permanent employee under the PPPR. Id. at 9–11. Accordingly, the Court 

considers whether Plaintiff was a probationary employee or a permanent employee at the time of 

her termination in order to determine what process Plaintiff was due under the PPPR. 

The jury found that Plaintiff had not proved that she was a permanent employee when she 

was terminated from her employment on October 4, 2015. See ECF No. 235 (jury verdict). The 

Court agrees. The Court also finds that Plaintiff was a probationary employee at the time of her 

termination. 

The PPPR provides that newly appointed employees shall have a probationary period, 

which is “[a] working test period required before an appointment to a permanent or seasonal 

position is completed.” Exh. 4 at 534. The PPPR states that “[u]nless a shorter initial probationary 

period is set forth in the applicable memorandum of understanding, this test period shall be a 

minimum of twelve (12) months.” Id.4 Plaintiff’s offer letter also stated that “[t]here is a 

probationary period of twelve (12) months, starting from time of appointment.” Exh. 1.

In the instant case, the Court concludes that Plaintiff was appointed on October 5, 2015

and was thus within her probationary period when she was terminated on October 4, 2016. The 

Court comes to this conclusion for the following reasons. First, Plaintiff’s letter for the County 

indicated that Plaintiff would start on October 5, 2015. Second, Plaintiff filled out her initial 

employment documentation, some of which she was required to complete before starting work, on 

October 5, 2015. Third, Plaintiff’s July 14, 2016 evaluation from Mariscal lists her start date as 

October 5, 2015. Fourth, Plaintiff made statements to Cordiero-Martinez indicating that Plaintiff’s 

probationary period would end on October 5, 2016. Fifth, Plaintiff listed on her request for 

4 Neither party contends that a memorandum of understanding changed the probationary period in 

the instant case.
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unemployment benefits that she was released from probation one day before her anniversary. 

Finally, Plaintiff filed an Equal Employment Opportunity complaint that listed her start date as 

October 5, 2015. The Court addresses each reason in turn.

First, Plaintiff’s letter from the County, which stated that the County’s Parks Department 

had made a conditional offer of employment to Plaintiff and that Plaintiff had accepted the 

conditional offer, stated that Plaintiff’s position had “a tentative start date of Monday, October 5, 

2015.” Exh. 1. The letter further stated that Plaintiff’s hours of work would be “typically Monday 

through Friday, 8:00 a.m. to 5:00 p.m.” Id. 

Second, consistent with the letter, on Monday, October 5, 2015, Plaintiff started her first 

day in the Parks Department office. That day, Plaintiff met with Human Resources representatives 

at the County and completed the following initial employment documentation:

On October 5, 2015, Plaintiff completed a Form I-9, which requires that Plaintiff provide 

documentation showing that Plaintiff is legally authorized to work in the United States before 

starting work. Exh. 202; see also 6/9/2021 Trial Tr. at 718:5–25. Plaintiff’s I-9 listed her first day 

of employment as October 5, 2015. Id. Plaintiff signed and dated the I-9 on October 5, 2015. Id.

On October 5, 2015, Plaintiff completed a W-4, which permits an employer to withhold 

income tax before an employee is paid. Exh. 205. Plaintiff signed and dated the W-4 on October 5, 

2015. Id.

On October 5, 2015, Plaintiff completed the oath of affirmation of office, which requires 

that a government employee swears to uphold the Constitution and to “well and faithfully 

discharge the duties [she] is about to enter.” Exh. 204. The oath of affirmation of office must be 

completed before an employee starts to work for the government. 6/9/2021 Trial Tr. at 718:5–25. 

Plaintiff signed and dated the oath of affirmation of office on October 5, 2015. Id.

On October 5, 2015, Plaintiff completed an emergency contact form. Exh. 201. Plaintiff 

signed and dated the form on October 5, 2015. Id. 

On October 5, 2015, Plaintiff completed a Member Action Request for CalPers, the 

California state employee benefit system, which allowed her to start receiving benefits under that 
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system. Exh. 207. In Plaintiff’s Member Action Request, Plaintiff wrote that her hire date and the 

effective date of the action were October 5, 2015. Id. 

On October 5, 2015, Plaintiff completed a Member Reciprocal Self-Certification Form for 

CalPers. Exh. 208. Plaintiff signed and dated that form on October 5, 2015. Id.

Furthermore, Plaintiff never requested that her start date be changed from October 5, 2015 

on any of her initial employment documentation. The Court notes that, had Plaintiff started work 

prior to October 5, 2015, Plaintiff would have had an incentive to correct her start date on her

initial employment documentation because her probationary period would have started earlier and 

her retirement benefits would have started accruing earlier. 

Third, Plaintiff’s July 14, 2016 evaluation from Mariscal lists the “Beginning/Ending 

Period” as “10/5/2015 to 5/31/2016.” Id. Emails between Plaintiff and Giboney indicate that 

Plaintiff and Giboney reviewed Plaintiff’s July 14, 2016 evaluation. Exh. 212. In those emails, 

Giboney advised Plaintiff to ask Mariscal to check the “Retention/Permanent Status” box, the “8 

Month Probationary” box, and the “Step Increase” box with the date the increase was approved. 

Id. However, neither Plaintiff nor Giboney indicated that the October 5, 2015 start date listed on 

the evaluation was incorrect and should be corrected. 

Fourth, Cordiero-Martinez, who tried to mentor and train Plaintiff, testified that Plaintiff

stated to Cordiero-Martinez on October 4, 2016 that the year had been tough, but Giboney had 

told Plaintiff, “You know, you’re almost there, you know, you almost met that year, you’re almost 

there, it’s going to be okay and you’re going to get through this and, you know, next year is going 

to be easier.” 6/9/2021 Trial Tr. at 571:18–23.

Fifth, on October 11, 2016, Plaintiff filed a request for unemployment benefits with the 

State of California. Exh. 298; 6/8/2021 Trial Tr. at 267:19–22. Plaintiff’s request stated that her 

reason for termination was “rejection during probation (probation period one year), rejected one 

day before my anniversary.” Id.

Finally, on October 27, 2016, Plaintiff filed a complaint of discrimination with the 

County’s Equal Opportunity Office. In that complaint, Plaintiff stated that she “had started 
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working for the County of Monterey, Parks Department as a Finance Manager I officially on 

Monday, October 5, 2015 reporting to Mark Mariscal, Parks Director.” ECF No. 52, Exh. 16 at 96.

Thus, Plaintiff started her employment with the County on October 5, 2015. Accordingly, when 

Plaintiff was terminated on October 4, 2016, less than twelve months after she started, Plaintiff 

was a probationary employee.

Despite the evidence to the contrary, Plaintiff contended at trial that she was not a 

probationary employee for four reasons. First, Plaintiff contended that she started work on 

Thursday, October 1, 2015, when she attended a Parks Commission meeting. 6/10/2021 Trial Tr. 

at 824:1–7. Second, Plaintiff contended in the alternative that she started work on Saturday, 

October 3, 2015, the starting date of the pay period listed on Plaintiff’s first paycheck. ECF No. 

246 at 9–10. Third, Plaintiff contended that Mariscal ended her probation on July 14, 2016. 

6/10/2021 Trial Tr. at 829:19–23. Finally, Plaintiff contended that she was past the twelve month 

probationary period because she was terminated after 5:00 p.m. on October 4, 2016. Id. at 832. 

None of these arguments are persuasive. 

First, Plaintiff contended that she started work on Thursday, October 1, 2015, when she 

attended a Parks Commission meeting. 6/7/2021 Trial Tr. at 122:17–123:10. It is undisputed that 

Mariscal emailed Plaintiff to invite her to listen to the Parks Commission meeting for 30 to 60 

minutes in order to get “a ‘flavor’ of some of the work” that the Parks Department did. Exh. 2. 

However, Mariscal told Plaintiff in his email that “[i]f you cannot make it, do not worry about it.”

Id. Plaintiff testified that Mariscal followed up his email with a call, in which he strongly 

recommended that Plaintiff attend the meeting. 6/7/2021 Trial Tr. at 122:4–10. However, Mariscal

testified that he did not remember such a call, but a call could have happened. 6/9/2021 Trial Tr. at 

737:16–18, 746:24–25. Moreover, Plaintiff’s letter from the County, which stated that the 

County’s Parks Department had made a conditional offer of employment to Plaintiff and that 

Plaintiff had accepted the conditional offer, stated that Plaintiff’s position had “a tentative start 

date of Monday, October 5, 2015.” Exh. 1. The letter further stated that Plaintiff’s hours of work 

would be “typically Monday through Friday, 8:00 a.m. to 5:00 p.m.” Id. Based on the record, the 
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Court concludes that Plaintiff did not start work on Thursday, October 1, 2015. Mariscal made 

clear in his email that it was not mandatory for Plaintiff to attend the Parks Commission meeting. 

Exh. 1. Moreover, Plaintiff did not fill out her initial employment documentation or begin working 

at the County offices until Monday, October 5, 2015. Exhs. 201, 202, 204, 207, 208. 

Second, Plaintiff contended in the alternative that she started work on Saturday, October 3, 

2015. Exh. 101. The upper right corner of Plaintiff’s first paycheck lists the “Pay Period Begin 

Date” as Saturday, October 3, 2015 and the “Pay Period End Date” as Friday, October 16, 2015. 

Id. However, County Human Resources personnel testified that these dates are about the pay 

period, which pertains to all County employees, rather than reflecting Plaintiff’s specific start date. 

Moreover, numerous current and former County employees, including Holm, Guertin, RamirezBough, and Ellerbee, testified that the pay period begin date is not the first day of an employee’s 

probationary period. 6/9/2021 Trial Tr. at 720:15–17. Indeed, most County employees work 

Monday through Friday, and if the pay period were the first day of an employee’s probationary 

period, those employees who work Monday through Friday would begin their probationary period 

on a Saturday. Indeed, Plaintiff’s own letter stated that her normal days of employment were 

Monday to Friday. Exh. 1. Accordingly, it would make little sense for Plaintiff’s probationary 

period to have begun on a Saturday, a day when she was not present in County offices and when 

the County’s offices were closed. 

Finally, Plaintiff never mentioned October 3, 2015 as a potential start date until more than 

a year into this litigation. Indeed, on October 5, 2015, Plaintiff stated that her start date was 

October 5, 2015 on Plaintiff’s I-9 form, her W-4 form, her emergency contact form, her oath of 

affirmation of office, and her CalPers paperwork. Exh. 3, 201, 202, 204, 205, 207, 208. Mariscal’s 

July 14, 2016 evaluation also stated that Plaintiff’s start date was October 5, 2015. Exh. 3. During 

Plaintiff’s employment with the County, Plaintiff never changed her start date from October 5, 

2015 to October 3, 2015 on her I-9 form, her W-4 form, her emergency contact form, her oath of 

affirmation of office, her CalPers paperwork, or her July 14, 2016 evaluation from Mariscal

despite the fact that changing her start date to earlier would have made her probationary period 
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end earlier and her retirement benefits accrue earlier. Exhs. 3, 201, 202, 204, 205, 207, 208. 

Even after Plaintiff’s employment was terminated on October 4, 2016, Plaintiff’s own 

submissions to the County also never mention October 3, 2015 as a potential start date. Plaintiff’s 

October 10, 2016 letter to Guertin stated that Plaintiff “was employed by the County of Monterey 

as of Monday, October 5, 2015 (official start date due to County Payroll System Requirement for 

starting on the first day of a payroll period- but actually had beg[u]n performing [her] job duties 

Thursday, October 1, 2015).” Exh. 109. 

Plaintiff also filed a complaint of discrimination with the County’s Equal Opportunity 

Office on October 27, 2016. In that complaint, Plaintiff stated that she “had started working for the 

County of Monterey, Parks Department as a Finance Manager I officially on Monday, October 5, 

2015 reporting to Mark Mariscal, Parks Director.” ECF No. 52, Exh. 16 at 96.

In addition, Plaintiff filed a request for unemployment benefits with the State of California 

on October 11, 2016. Exh. 298; 6/8/2021 Trial Tr. at 267:19–22. Plaintiff’s request stated that her 

reason for termination was “rejection during probation (probation period: one year), rejected one 

day before my anniversary.” Id.

Even after Plaintiff filed her complaint in this case on January 3, 2017, Plaintiff did not 

claim that October 3, 2015 was her start date. In Plaintiff’s January 3, 2017 complaint, Plaintiff 

alleged that her state date was October 1, 2015. ECF No. 1. In Plaintiff’s November 10, 2017 

deposition, Plaintiff stated that her start date was October 5, 2015. 6/8/2021 Trial Tr. at 263:12–

14. In Plaintiff’s November 25, 2017 interrogatories, Plaintiff stated that her start date was 

October 1, 2015. Exh. 292. 

Plaintiff never raised October 3, 2015 as a potential start date until she corrected her 

deposition transcript on January 8, 2018, over a year after Plaintiff filed the complaint in this case

on January 3, 2017 and fifteen months after Plaintiff’s employment was terminated on October 4, 

2016. Id. at 263:19–21; Exh. 294. Plaintiff testified at trial that it was only after her November 10, 

2017 deposition that she was looking at her first paycheck and saw that the payroll period began 

on October 3, 2015. 6/8/2021 Trial Tr. at 263:19–21. The Court notes that Plaintiff’s husband, 
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Giboney, is the Deputy Director of the Auditor Controller’s Office for the County and is in charge 

of payroll for the County, and Giboney claimed at trial that “the first day of employment is . . . the 

start date for payroll, and that is always on Saturday. It has been since 1974 . . . .” 6/9/2021 Trial 

Tr. at 523:22–25. Despite instructing Plaintiff to ask Mariscal to check the “Retention/Permanent 

Status” box, the “8 Month Probationary” box, and the “Step Increase” box on Plaintiff’s July 14, 

2016 evaluation, Giboney never instructed Plaintiff to correct her state date to October 3, 2015.

In contending that she started on Saturday, October 3, 2015, Plaintiff relies on a section of 

the PPPR, which states that “promotions, demotions, reclassification, transfers, changes in normal 

hours worked, additional or deletion of pay differentials and changes in status shall be made 

effective only at the beginning of a pay period unless the County Auditor-Controller, after 

receiving a statement of necessity from the appointing authority, approved another effective date.” 

Exh. 4. at 558. However, this section applies only to specific personnel actions, and the start of an 

employee’s probationary period is not one of those actions. 6/9/2021 Trial Tr. at 720:2–6.

Third, Plaintiff contended that Mariscal ended her probation on July 14, 2016, when 

Mariscal wrote in his evaluation that Plaintiff “easily passes her probation.” Exh. 3. However, 

Mariscal testified that this statement was a mistake and that he mistakenly thought Plaintiff’s 

probation was “eight or nine” months, not twelve months. 6/9/2021 Trial Tr. at 738:10–14.

Moreover, the evaluation contained a check box to indicate “Retention/Permanent Status,” and 

that box was never checked. Exh. 3. Plaintiff and Giboney emailed regarding the evaluation, and 

Giboney directed Plaintiff to ask Mariscal to check the “Retention/Permanent Status” box. Exh. 

212. Mariscal testified that he tried to check the box to indicate “Retention/Permanent Status,” but 

he learned from Human Resources personnel that he could not do so because Plaintiff’s probation 

was 12 months, not 8 or 9 months. 6/9/2021 Trial Tr. at 748:2–4. These circumstances 

demonstrate that Plaintiff was aware that she remained on probation. Moreover, even if Mariscal

had checked the box, there is no indication, from the PPPR or otherwise, that doing so would have 

been sufficient to change the length of Plaintiff’s probation from twelve months to eight or nine 

months. Furthermore, to the extent that Plaintiff relies on her own expectations regarding 
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Mariscal’s evaluation, Plaintiff’s emails with Giboney demonstrate that Plaintiff knew that she 

remained on probation. Exh. 212. 

In addition, during trial in the instant case, Plaintiff testified that she was on probation as 

of July 27, 2016, which was after Mariscal’s July 14, 2016 evaluation of Plaintiff. See 6/8/2021

Trial Tr. at 335:5. Specifically, during trial, Plaintiff was asked about emails that she sent to 

Ellerbee, Guertin, and others on July 26, 2016. See id. at 332:4 –336:7; Exh. 223. In those emails, 

Guertin asked Plaintiff for a recommendation regarding utilities for rangers that live on site at one 

of the County’s parks. Exh. 223. Plaintiff responded that she did not know what would happen to 

the rangers and explained that she “started working for the County at the end of last calendar 

year,” so she did not have familiarity with operational issues. Id. Plaintiff then forwarded these 

emails to Giboney, who told her not to “say anything like [that] again.” Id. Giboney told Plaintiff

not to tell her managers that she did not know how to find solutions or do her job. Id. Giboney 

additionally told Plaintiff: “Don’t tell [Management] you aren’t up to the job because you don’t 

have enough experience or have enough information.” Id. Based on these emails, at trial, Plaintiff 

was asked whether she was concerned that she did not have enough experience to do her job.

6/8/2021 Trial Tr. at 335:1. Plaintiff testified on June 8, 2021 at trial: “I did not have enough time 

for me to know enough . . . I [was] still in probation, still picking [things] up.” Id. at 335:3–5. 

Finally, Plaintiff contended that she was past the twelve month probationary period 

because she was terminated after 5:00 p.m. on October 4, 2016. However, even assuming that 

Plaintiff is correct, nothing in the PPPR supports Plaintiff’s interpretation that the twelve month 

probationary period ends on the last day of the probationary period at 5:00 p.m. Exh. 4 at 534. 

Rather, the PPPR provides that the probationary period lasts twelve months but does not specify a 

cut-off time on the last day. Id. Moreover, the Court notes that it is undisputed that Plaintiff was 

terminated before she left work on October 4, 2016, the last day of her probationary period. 

6/7/2021 Trial Tr. at 169:7–170:7. Accordingly, the Court concludes that Plaintiff was a 

probationary employee when she was terminated on October 4, 2016. 

C. Plaintiff has not shown a clear right to reinstatement based on the PPPR. 
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As explained above, supra Section II(A), to show that she is entitled to a writ of mandate, 

Plaintiff must show that (1) the County “has a clear, present and ministerial duty to [reinstate] her”

and (2) that she “has a clear, present and beneficial right to performance of that duty entitling her 

to a writ of mandate.” Kavanaugh, 29 Cal. 4th at 916. In the instant case, Plaintiff contends that

she is entitled to a writ of mandate because the County violated the PPPR in terminating her. The 

Court must thus interpret the PPPR to determine whether the County violated the PPPR in 

terminating Plaintiff. 

The canons of statutory interpretation apply to the interpretation of municipal resolutions, 

such as the PPPR.

5

See Terminal Plaza Corp. v. City & County of San Francisco, 186 Cal. App. 

3d 814, 826 (1986) (applying the canons of statutory interpretation to the interpretation of a 

resolution). When interpreting a statute, courts “must discover the intent of the Legislature to give 

effect to its purpose, being careful to give the statute’s words their plain, commonsense meaning.” 

Kavanaugh, 29 Cal. 4th at 919. The Court “ha[s] no power to rewrite an ordinance or statute so as 

to make it conform to a presumed intention which is not expressed.” Terminal Plaza Corp., 186 

Cal. App. 3d at 826. “[A] statute should be interpreted ‘with reference to the whole system of law 

of which it is a part so that all may be harmonized and have effect.’” Id. (quotation omitted). 

In the instant case, Plaintiff contends that the County violated the PPPR in terminating her

because Plaintiff was not provided with notice or an opportunity to respond to her appointing 

authority prior to the effective date of her termination. ECF No. 246 at 5–9. For her argument,

Plaintiff relies on Section D of the PPPR, which governs Disciplinary Actions. Exh. 4 at 634.6

5

In order to prevail on her petition for writ of mandate, Plaintiff would have to prove that a 

violation of a municipal resolution, rather than a municipal ordinance, can serve as the basis for a 

writ of mandate under California Code of Civil Procedure § 1085. The County contends that a

municipal resolution such as the PPPR cannot serve as the basis for a writ of mandate under 

California Code of Civil Procedure § 1085. ECF No. 245 at 6–9. The Court need not reach this 

issue because Plaintiff has not established the two elements for a writ of mandate under California 

Code of Civil Procedure § 1085, i.e. that the County has a clear, present, and ministerial duty to 

reinstate her, and that Plaintiff has a clear, present, and beneficial right to her reinstatement. 

6

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Section D.1 of the PPPR states the following: 

The appointing authority may take disciplinary action against any 

employee in the service of Monterey County provided that the rules 

and regulations prescribed herein are followed, except that adverse 

action against an employee who serves at the pleasure of the 

appointing authority, pursuant to Section B.16 of this document shall 

be accomplished by a single written notice which sets forth the 

adverse action and provides the opportunity for the employee to 

discuss that action with his/her appointing authority prior to its 

effective date. As used in this section, ‘disciplinary or adverse action’ 

shall mean dismissal, suspension, disciplinary demotion, reduction in 

salary, disciplinary probation, or formal written reprimand.

Exh. 4 at 634. Section D.2 provides that:

Except when emergency or other special circumstances require 

immediate action, a notice of proposed disciplinary action (other than 

for formal reprimand) shall be delivered to the employee, either 

personally or by United States Postal Service . . . no less than five (5) 

calendar days prior to the effective date of any disciplinary action 

against the employee.

Exh. 4 at 635. Plaintiff contends that, under Sections D.1 and D.2, she was entitled to a notice that 

set forth her termination and provided her with an opportunity to discuss her termination with her 

appointing authority prior to the effective date of the termination. ECF No. 646 at 6. 

However, Section D applies only to “adverse action.” Exh. 4 at 634. Section D.1 provides 

that, “[a]s used in this section, ‘disciplinary or adverse action’ shall mean dismissal, suspension, 

disciplinary demotion, reduction in salary, disciplinary probation, or formal written reprimand.” 

Id. Thus, on its face, the definition of “disciplinary or adverse action” does not include release 

from probation, which was the action taken against Plaintiff in the instant case. See Terminal 

Plaza Corp., 186 Cal. App. 3d at 826 (stating that the Court “ha[s] no power to rewrite an 

Section D.1 and the definition of “appointing authority” in the PPPR. ECF No. 246 at 8. However, 

the definition of “appointing authority” simply defines that term as “[t]he person or group of 

persons lawfully authorized to make appointments or to remove persons from positions in the 

County service.” See Exh. 4 at 530. Standing alone, this definition does not create a procedural 

right for Plaintiff. Nor does Plaintiff contend that it does. Rather, Plaintiff relies upon Section D.1 

and the definition of “appointing authority” to contend that she had a procedural right to be 

discharged by an appointing authority. ECF No. 246 at 8. For the reasons discussed above, the 

Court concludes that Section D.1 does not apply to Plaintiff because it does not apply to release 

from probation.
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ordinance or statute so as to make it conform to a presumed intention which is not expressed”). 

Plaintiff points out that the definition of disciplinary or adverse action does include 

dismissal. Exh. 4 at 634. The question then becomes whether dismissal includes release from 

probation. On this issue, the parties point to two different definitions of dismissal within the 

PPPR. Plaintiff points out that the PPPR defines dismissal as “[a]ny involuntary separation, other 

than layoff, of an officer or employee from County employment.” ECF No. 246 at 8 (quoting Exh. 

4 at 532). However, the Court notes that this definition of dismissal comes from the “Definitions” 

Section at the beginning of the PPPR. See Exh. 4 at 532. 

By contrast, the County points to a definition of “dismissal” that comes from Section D of 

the PPPR, upon which Plaintiff relies for her argument and which governs disciplinary actions. 

Specifically, Section D of the PPPR has a subsection entitled Dismissal, which states as follows: 

D. 10 Dismissal

The continued tenure of each employee shall be subject to his/her 

satisfactory conduct and the rendering of efficient service. Should the 

cause of disciplinary action so warrant, an employee may be 

dismissed for either reason. 

Exh. 4 at 637. This provision outlines the limited reasons that an employee can be dismissed: for 

unsatisfactory conduct or for not rendering efficient service. Id. However, probationary employees 

can be released without cause. See Mendoza v. Regents of Univ. of Cal., 78 Cal. App. 3d 168, 173 

(1978) (stating that probationary employees “serve at the will of the employer”); see also 6/9/2021

Trial Tr. at 720:18–721:20. Accordingly, this provision, and the term “dismissal,” cannot apply to 

probationary employees. Thus, the term “dismissal” applies to permanent employees only. 

Moreover, if the Court were to adopt Plaintiff’s argument that Section D of the PPPR 

applies to release from probation, then the PPPR would be out of sync with due process

protections under the United States Constitution and the California Constitution. Under the United 

States Constitution and the California Constitution, probationary employees can be dismissed 

without cause and without notice or opportunity to be heard. See Walls v. Cent. Contra Costa 

Transit Auth., 653 F.3d 963, 968 (9th Cir. 2011) (stating that non-permanent employees in 
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California can be terminated at any time subject only to the limits of public policy); Dorr v. Butte 

County, 795 F.2d 875, 876 (9th Cir. 1986) (stating that “a probationary (or nontenured) civil 

service employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable 

good cause”); Mendoza, 78 Cal. App. 3d at 173 (stating that probationary employees “serve at the 

will of the employer and therefore do not possess any property interest in their continued 

employment”).

If Section D of the PPPR applies to release from probation, the County would have to 

provide probationary employees with “a single written notice which sets forth the adverse action 

and provides the opportunity for the employee to discuss that action with his/her appointing 

authority prior to its effective date.” Exh. 4 at 634. Without a clear indication that the PPPR 

intends such a result, the Court declines to conclude that the PPPR requires more process than the 

United States Constitution or the California Constitution. See Kavanaugh, 29 Cal. 4th at 919 (“[A] 

statute should be interpreted ‘with reference to the whole system of law of which it is a part so that 

all may be harmonized and have effect.’”) (quotation omitted). In sum, the Court concludes that 

Section D of the PPPR does not apply to release from probation.

Moreover, Plaintiff has the burden to prove that Section D of the PPPR applies to release 

from probation. Plaintiff simply cannot meet that burden. 

As a result, Plaintiff cannot prove either of the two elements required for a writ of 

mandate. As stated above, in order to prevail on her petition for a writ of mandate under § 1085, 

Plaintiff must prove that (1) the County “has a clear, present and ministerial duty to [reinstate] her 

and (2) that she has a clear, present and beneficial right to performance of that duty entitling her to 

a writ of mandate.” Kavanaugh, 29 Cal. 4th at 916. 

As explained above, Section D of the PPPR applies only to “adverse action,” and the 

definition of “adverse action” does not include release from probation. Exh. 4 at 634. Thus, the 

County did not violate the PPPR in releasing Plaintiff. Accordingly, as to the first element, the 

County does not have “a clear, present and ministerial duty to reinstate her.” Kavanaugh, 29 Cal. 

4th at 916; Barnes v. Wong, 33 Cal. App. 4th 390, 395 (1995) (“The writ may only issue against a 
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respondent with a clear duty to perform a ministerial act . . . .”); see also Physicians Comm. for 

Responsible Medicine, 43 Cal. App. 5th at 185 (“Absent a clear duty imposed by law . . . 

mandamus is not a proper vehicle for resolution for the asserted grievance.”). Similarly, as to the 

second element, Plaintiff has not shown that “she has a clear, present, and beneficial right to” 

reinstatement because the County did not violate the PPPR in releasing her from probation. See

Kavanaugh, 29 Cal. 4th at 916; Jacobs, 13 Cal. App. 5th at 28 (affirming the denial of a petition 

for writ of mandate under California Code of Civil Procedure § 1085 because “appellants’ failure 

to establish a clear right to the requested relief is ‘fatal here where they are seeking a writ of 

traditional mandate’”).

In sum, Plaintiff cannot establish either of the elements required for a writ of mandate 

under California Code of Civil Procedure § 1085. Therefore, the Court DENIES Plaintiff’s 

petition for a writ of mandate under California Code of Civil Procedure § 1085.

III. CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiff’s petition for writ of mandate under 

California Code of Civil Procedure § 1085.

IT IS SO ORDERED.

Dated: July 8, 2021

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LUCY H. KOH

United States District Judge