Helton v. City of Los Angeles CA2/2

Filed 11/5/26 Helton v. City of Los Angeles CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO NATHANIEL HELTON, B335791 Plaintiff and Appellant, (Los Angeles County v. Super. Ct. No. 22STCP03299) CITY OF LOS ANGELES et al., Defendants and Appellants. APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis A. Kin, Judge. Affirmed. Law Offices of Gregory G. Yacoubian and Gregory G. Yacoubian for Plaintiff and Appellant. Hydee Feldstein Soto, City Attorney, Vivienne A. Swanigan, Assistant City Attorney, and Ulysses L. Aguayo, Deputy City Attorney, for Defendants and Appellants. _______________________________  This appeal arises from the termination of plaintiff Nathaniel Helton from the Los Angeles Fire Department (LAFD) after he refused to be vaccinated against COVID-19. He was temporarily placed off duty without pay when he failed to commit to becoming fully vaccinated and ultimately terminated about six months later after he failed to attend a hearing before an LAFD Board of Rights (BOR). He petitioned the trial court for a writ of mandate directing defendant City of Los Angeles (the City) to reinstate him to his former position with backpay. The court found Helton was properly terminated under section 1060(h) of the Los Angeles City Charter1 for failing to attend his BOR, but awarded him backpay for the time he was involuntarily off duty prior to such termination because, in the court’s view, the City had not afforded him the predisciplinary due process called for under section 1060(b). Helton appealed the trial court’s judgment denying his petition as to his request for reinstatement. The City and codefendant Kristin M. Crowley (then LAFD’s Fire Chief) cross- appealed the court’s judgment granting the petition as to backpay. We affirm the trial court’s judgment. Helton was terminated for not attending his BOR rather than refusing to comply with a vaccine mandate the City has since withdrawn. The court’s conclusion that termination on this basis was proper is effectively unchallenged on appeal. And while the City may be right that it afforded Helton constitutionally sufficient predisciplinary procedures under the circumstances, it fails to 1 Undesignated section references are to the Los Angeles City Charter. 2  show it complied with section 1060 in temporarily removing him from duty without pay pending his BOR hearing. BACKGROUND I. Factual Background Helton was, for nearly 20 years, employed by the City as a member of LAFD. On August 18, 2021, in response to the ongoing COVID-19 pandemic, the Los Angeles City Council adopted an ordinance requiring City employees to be fully vaccinated against COVID-19 or to request an exemption and to report their vaccination status by October 19, 2021. Pursuant to the ordinance, on September 23, 2021, LAFD directed its employees to report their vaccination status by October 19, 2021. Meanwhile, the City was negotiating with its labor unions over the consequences of failing to meet the October 19, 2021 vaccination and reporting deadline. These consequences were established by an October 14, 2021 resolution and included the following: A City employee who had not sought a religious or medical exemption and was not fully vaccinated as of October 20, 2021, would be issued a noncompliance notice. The notice would instruct the employee to attain full vaccination not later than December 18, 2021. Until the employee complied with the full vaccination requirement, the employee would agree to biweekly COVID-19 testing by a vendor selected by the City on the employee’s own time and expense.2 An employee not fully 2 Though not relevant to this appeal, the imposition of the costs on the employee was invalidated in September 2022 in the 3 vaccinated by December 18, 2021, would be subject to “corrective action.” The “corrective action” for failure to comply with the vaccination requirement by December 18, 2021, was set forth in a memo from the Mayor of Los Angeles. The memo identified the procedures the City would follow in addressing noncompliant employees: They were to be “placed off duty without pay pending service of a Skelly package [to] include[] a Notice of Proposed Separation. Sworn employees [were to] be subject to applicable [BOR] proceedings.” “Skelly” refers to our Supreme Court’s decision in Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215 (Skelly), which requires civil service employees to receive— before being disciplined—notice of the proposed disciplinary action, the reasons for the proposed action, a copy of the charges and the written materials upon which they are based, and an opportunity to respond either orally or in writing. After being advised of the requirement that he be vaccinated or request an exemption, Helton did neither. He received a noncompliance notice from LAFD on December 1, 2021. The notice advised of the December 18, 2021 deadline to become fully vaccinated, explained the testing requirements pending full vaccination, and warned of the consequences that would follow (including termination of employment) for failing to comply. An accompanying LAFD memo dated November 9, 2021, advised that failure to sign the notice within 48 hours would result in separation. Helton declined to sign the notice. On December 6, 2021, LAFD placed Helton on leave without pay effective the following day for failure to comply with case styled Los Angeles Police Protective League v. City of Los Angeles, No. 21STCV39987. 4 the vaccine requirement. It notified him of this action by telephone after his December 6 shift ended. In response, Helton notified Chief Crowley via e-mail that he was exercising his right to have the matter heard and decided by a BOR. He separately initiated an “informal grievance” contending his leave without pay was a violation of section 1060, which establishes that LAFD members like Helton have a substantial property interest in their positions subject to constitutional protections. (Id., subd. (a).) This grievance was denied. On December 14, 2021, LAFD informed Helton he was under investigation for his failure to comply with the vaccination requirement. On December 17, 2021, Helton made a formal grievance to his Battalion Chief that summary action on his noncompliance with the vaccination policy violated sections 1016 and 1060. That grievance was denied about four weeks later. On February 26, 2022, LAFD notified Helton a BOR would convene to consider his case pursuant to Skelly on March 10, 2022. Through counsel, Helton objected that this was inappropriate because Helton had not received due process pursuant to Skelly, including adequate notice of the charges against him, and refused to attend. By letter dated March 10, 2022, LAFD notified Helton his BOR was rescheduled to proceed on April 1, 2022. Attached to the letter were several documents upon which the proposed action was based, including a formal complaint against Helton and investigative reports by LAFD. His counsel again asserted an objection under Skelly. Helton refused to attend and the BOR did not proceed on April 1, 2022. 5  On April 4, 2022, LAFD issued a formal notice of charges against Helton to the City’s Board of Fire Commissioners, including a formal complaint and notice of discharge. The complaint was signed by Deputy Chief Graham Everett. By letter dated May 10, 2022, LAFD e-mailed Helton and his counsel to schedule a date to select the individuals who would constitute his BOR. Helton’s counsel responded the following day that Helton would not participate in the proceedings. By letter dated May 31, 2022, LAFD notified Helton and the City’s Board of Fire Commissioners that he was temporarily relieved of duty pending a hearing before and decision by the BOR. Chief Crowley signed these notices. They also included the complaint against Helton verified by Deputy Chief Everett as well as certificates of service. By a separate letter of the same date, LAFD scheduled Helton’s BOR hearing for June 9, 2022, at 9:00 a.m. Helton’s counsel responded by a June 7, 2022 letter to again advise Helton would not be participating, but included a statement from Helton objecting to the vaccine requirement and discipline for noncompliance. The BOR convened on June 9, 2022, as scheduled. Helton did not attend the hearing. As a consequence of his failure to appear, Chief Crowley elected to remove him without further hearing pursuant to section 1060(h). LAFD promptly gave Helton notice he was terminated effective May 31, 2022. II. Procedural Background On September 6, 2022, Helton filed in the trial court a verified petition for writ of mandate pursuant to Code of Civil Procedure sections 1085 and 1094.5. By the petition, he sought restoration of his position within LAFD, with backpay, and 6  related relief pertaining to his employment record and future discipline. In his memorandum of points and authorities filed concurrently with his motion for peremptory writ of mandate, Helton argued the City violated his right to due process under section 1060 and Skelly when it summarily removed him from the City payroll on December 6, 2021; wrongfully terminated him for not attending his BOR hearing since he was already relieved from duty without pay; and wrongfully conditioned his continued employment on signing a contract that included terms violating Labor Code section 2802, subdivision (a). The trial court granted the petition in part. It concluded the City failed to afford Helton the preremoval procedural safeguards required by section 1060 and Skelly when it summarily relieved him of duty without pay on December 6, 2021. However, it found (1) the City validly terminated Helton on June 9, 2022, for failing to attend his BOR hearing, and (2) by not attending that hearing, he had not exhausted administrative remedies, with the result that the court could not afford him relief in any event. Helton filed a timely notice of appeal and Defendants timely cross-appealed. DISCUSSION I. Helton’s Appeal Helton seeks reversal of the trial court’s decision not to order him reinstated—i.e., not to reverse his termination by Defendants—on four grounds. None warrants reversal. As an initial matter, Helton fundamentally misstates the basis for his termination. His opening brief contends: “Helton, a tenured firefighter of [LAFD], was fired for not complying with 7 conditions of employment related to the City’s COVID-19 vaccine mandate.” This is not accurate. He was involuntarily placed off duty without pay for this reason, but he was fired because he failed to appear at his June 9, 2022 BOR hearing. The trial court determined Chief Crowley acted within her authority in terminating Helton without a hearing due to his failure to appear for the duly noticed BOR hearing. Section 1060(h) specifically permits the Fire Chief to take such action, and Helton does not challenge the trial court’s determination on appeal. As further discussed below, this precludes the relief he seeks. A. Failure to Exhaust Administrative Remedies Helton argues the trial court erred in concluding he failed to exhaust his administrative remedies because he did not appear at his June 9, 2022 BOR hearing. Where the relevant facts are undisputed, we review exhaustion questions de novo. (Monterey Coastkeeper v. State Water Resources Control Bd. (2018) 28 Cal.App.5th 342, 359.) “In general, a party must exhaust administrative remedies before resorting to the courts.” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080 (Coachella Valley).) “ ‘The exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary).’ ” (Ibid.) Willfully refusing to appear at an administrative hearing “do[es] not constitute a true exhaustion of the opportunity to be heard.” (Doyle v. City of Chino (1981) 117 8 Cal.App.3d 673, 681; see also Roth v. City of Los Angeles (1975) 53 Cal.App.3d 679, 687 [“Respondents’ failure to attend the city council hearing . . . to present their objections to the proposed abatement, constitutes a nonexhaustion of an available administrative remedy.”].) Here, Helton did not seek return to duty or reinstatement to payroll from the BOR. Had he attended the hearing, he might have raised arguments against the mandatory vaccination requirement as applied to him, as he did in his counsel’s letter to LAFD before the hearing; he might have challenged the vaccination policy as a violation of Labor Code section 2802, subdivision (a), as he did in the trial court; and he might have challenged the procedures by which he was brought before the BOR, as his counsel did in various correspondence with LAFD before the hearing. (See § 1060(l) [accused member entitled to make defense before BOR through representative bound to “use every legal means available . . . to defend the accused”].) Instead, he chose not to attend his hearing. Accordingly, he did not exhaust his administrative remedies. Helton contends he was excused from exhausting his remedies before the BOR under the futility exception to the exhaustion requirement. “ ‘The futility exception requires that the party invoking [it] “can positively state that the [agency] has declared what its ruling will be on a particular case.” ’ ” (Coachella Valley, supra, 35 Cal.4th at pp. 1080–1081, first brackets added.) However, Helton did not raise this issue in the trial court and the argument is thus forfeited. (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997 (Nellie Gail).) 9  Even if we were to consider the argument on the merits, Helton can point to no evidence in the record that the City declared its ruling on each of the issues he might have raised to the BOR. Instead, he asserts it is “inconceivable” the BOR would not find Helton guilty of being unvaccinated. And he asserts it is “unlikely” the BOR “would have favored, or even allowed, an argument that the Deputy Chief’s action against Helton violated the City Charter.”3 This does not meet the high bar of the “futility” exception. Indeed, implicit in his own “unlikel[iness]” characterization is that it was possible the BOR would have been moved by the argument. Moreover, the record suggests the City was sensitive to his due process arguments prior to the hearing. After he refused through counsel to attend the scheduled March 2022 hearing on due process grounds, another BOR hearing was convened in April 2022 but no action was taken. The City thereafter issued Helton a formal complaint and notice of charges—apparently in response to process deficiencies noted by Helton’s counsel in refusing to attend the March hearing. B. Helton Waived Any Noncompliance with Section 1060(c) Helton faults the trial court for “not address[ing]” the allegation in his petition that the City violated section 1060(c) when its complaint against him was signed not by Chief Crowley but by a Deputy Chief. The trial court understandably did not address this point because Helton did not mention it in his trial brief. Defendants contend Helton waived the point as a result. To the extent Helton 3 We understand this refers to the fact that a Deputy Chief, rather than Chief Crowley, signed the complaint against Helton. 10 is not barred from raising it for failing to exhaust his administrative remedies, we agree he waived it by failing to adequately raise it in the trial court. “ ‘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 [theories] on which their cases were tried. This rule is based on fairness—it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal.’ ” (Nellie Gail, supra, 4 Cal.App.5th at p. 997.) “Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack.” (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) Helton responds that he preserved the issue by raising it in his petition. This is inadequate to preserve an issue ignored in his trial brief. California Rules of Court, rule 3.1113(a) obligated Helton to support his motion for issuance of a peremptory writ with a supporting memorandum “contain[ing] a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Rule 3.1113(b).) Helton’s memorandum mentioned a Deputy Chief signed the complaint against him but did not assert this was improper. By omitting discussion of section 1060(c) from his memorandum, Defendants and the trial court were free to, and apparently did, assume it was not an argument Helton “relied on” in seeking issuance of the writ. 11  Even if Helton had not forfeited the point, he would still fail to show reversible error. Beyond his assertion that a Deputy Chief, rather than Chief Crowley, signed the complaint against him, his opening brief contains no argument that such failure rendered the complaint invalid nor cites any authority to that effect. We will not consider additional arguments Helton raised for the first time on reply. (American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 275– 276.) C. Helton’s Argument for Reinstatement Ignores the Reason for His Termination Helton argues reinstatement with backpay and benefits “is the appropriate remedy given the facts and law.” The law he relies on is Skelly and its progeny, subjecting administrative employment disciplinary decisions to judicial review for proportionality. As expressed in Skelly, administrative discretion in employee public discipline cases must be guided by “the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ ” (Skelly, supra, 15 Cal.3d at p. 218.) The facts Helton relies on to show his termination was out of proportion to his alleged wrong of not complying with the vaccine mandate are that the City (1) adopted a policy that termination for failure to be vaccinated does not bar reemployment; and (2) later rescinded the mandatory vaccination policy. Again, Helton’s argument proceeds from the false premise that he was terminated for noncompliance with the vaccine requirement. By failing to acknowledge he was terminated for not attending his BOR hearing, and by failing to dispute Chief 12 Crowley’s authority to summarily terminate him for such nonattendance under section 1060(h), Helton fails to show error. D. Helton’s Jury Right Argument Helton frames his final ground for reversal as follows: “The adjudication of the charge against [him] without a jury violated his constitutional and statutory rights.” Again, Helton’s counterfactual framing of the issue renders his argument meaningless. The charge against him was not adjudicated. He was terminated because he did not appear at the BOR hearing. By failing to tether his argument to the basis for termination, Helton fails to show error. II. Defendants’ Appeal Although Defendants filed a notice of cross-appeal, they failed to comply with our briefing order and instead filed a standalone respondents’ brief. On the parties’ stipulation, we ordered that brief stricken with the specific directive that Defendants refile a combined opening and respondents’ brief in compliance with rule 8.216(b)(1) of the California Rules of Court. As Helton notes, Defendants’ refiled brief did not comply with our order because it is styled as a “combined reply and cross- respondent’s brief.” Moreover, it does not address the points raised in each appeal separately, as required by California Rules of Court, rule 8.216(b)(2), but rather intermingles them under a single “Legal Argument” heading. Helton also argues Defendants’ recitation of the standard of review is ambiguous as to the issues to which it applies. Based on all this, Helton contends “a finding of forfeiture is appropriate . . . as to such issues not clearly identified.” 13 Paradoxically, Helton does not clearly identify which issues are not clearly identified. We decline to find forfeiture here. Though Defendants intermingle the issues raised in each appeal, alternating between those they raised and those raised by Helton, Defendants’ subheadings permit identification of which are which. Moreover, Defendants’ articulation of the standard of review facially applies to all their arguments and Helton does not argue a different standard applies. A. The Trial Court Properly Granted Helton Relief for Defendants’ Violations of Section 1060 As Defendants acknowledge, the City “charter ‘is the supreme law of the City, subject only to conflicting provisions in the federal and state Constitutions and to preemptive state law.’ ” (Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338, 349 (San Diego).) “A ‘charter city may not act in conflict with the charter’ [citation] and ‘[a]ny act that is violative of or not in compliance with the charter is void.’ ” (Ibid.) The trial court found Defendants violated section 1060(a) and (b), when they summarily removed Helton from the City payroll on December 6, 2021, and were justified in terminating his pay only once he was removed on June 9, 2022, for failing to attend his BOR hearing. This issue concerns interpretation of the City Charter and embedded questions of due process. Each is a legal question and our review is therefore de novo. (San Diego, supra, 21 Cal.App.5th at p. 350; Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 107–108 (Bostean).) 14  1. Defendants’ Construction of Section 1060 Ignores Its Plain Terms Defendants first argue the trial court misinterpreted the plain meaning of section 1060 when it found Defendants violated Helton’s rights by summarily placing him on leave effective December 7, 2021. We disagree. As applicable here, section 1060(a) provides that the right of an LAFD member like Helton to hold his position and to receive compensation attached to that position is “a substantial property right of which [he] shall not be deprived arbitrarily or summarily, nor other than as provided in [section 1060]. No member of [LAFD] shall be suspended, removed, or otherwise separated from the service of [LAFD], except for good and sufficient cause shown upon a finding of guilty of the specific charge . . . assigned as cause . . . after a full, fair and impartial hearing before a [BOR] except as provided in [section 1060(b) and (h)].” Section 1060(b) allows the Fire Chief, “[a]fter following predisciplinary procedures otherwise required by law,” to “temporarily relieve from duty any member pending a hearing before and decision by a [BOR] on any charge . . . pending against [him].” Defendants argue they were entitled to place Helton on unpaid leave “during the relevant period of December 7, 2021 until December 14, 2021[4] [because] no disciplinary charges against Helton had been initiated or proposed by LAFD,” such that section 1060(b)(1), calling for predisciplinary procedures before removing from duty a member against whom charges are pending, was inapplicable. 4 LAFD’s formal investigation into Helton’s noncompliance with the vaccine mandate did not begin until December 14, 2021. 15  Defendants’ argument misconstrues section 1060(a) and (b). Subsection (a) states the general rule that a member like Helton cannot be summarily suspended without pay other than as provided in subsections (b) and (h). Subsection (b) provides specific, limited exceptions to the general rule. Defendants concede Helton was “place[d] off-duty without pay for failure to meet a [condition of employment] with no disciplinary charges pending.” Based on this, they urge, the procedures in subsection (b)(1) “did not apply.” But if Helton could not be placed off duty under subsection (b)(1), Defendants have identified no other exception to the general rule under which he could be. 2. Defendants Fail to Establish an Emergency Exception Authorized Helton’s Summary Relief from Duty In lieu of another section 1060 exception to subsection (a)’s prohibition against summarily taking Helton off payroll, Defendants ask us to imply an emergency exception to ordinary due process requirements and find due process was satisfied under “the circumstances of the ongoing COVID-19 public health emergency.” We agree with Defendants that an emergency exception exists in section 1060, but find it only in subsection (b). By its terms, exceptions to subsection (a) exist only in subsections (b) and (h). (§ 1060(a), (b), (h).) Only subsection (b) is relevant to whether Helton’s summary relief from duty was accomplished consistent with due process. (See ibid.) Section 1060(b) allows the Fire Chief to temporarily relieve a member from duty “[a]fter following predisciplinary procedures otherwise required by law.” We agree with Defendants that the process “required by law” does not necessarily mean the same 16 thing in every situation. (See Bostean, supra, 63 Cal.App.4th at pp. 112–113.) The plain language of section 1060(b) must be read to incorporate post-Skelly decisions allowing more limited predisciplinary procedures under emergency circumstances because those decisions help to delineate what process the law requires. But even accepting Defendants’ arguments that they afforded Helton due process required by law under the circumstances allowing them to relieve him of duty effective December 7, 2021, this does not compel the conclusion the trial court erred in awarding Helton backpay. As the appellants on this issue, Defendants bore the burden to show the judgment of the trial court was wrong, not just that it was given for the wrong reason. (See Blackwell v. Vasilas (2016) 244 Cal.App.4th 160, 167 [judgment will be affirmed if correct on any theory and the appellant has the burden of establishing reversible error].) Crucially absent from their argument is any discussion of the effect of section 1060(c). Under section 1060(c), if a member is temporarily relieved from duty, the Fire Chief has five days to file a copy of a complaint against the member with the Board of Fire Commissioners. (§ 1060(c).) Failing to do so, “the order of temporary relief from duty . . . shall be void and of no effect and shall be automatically revoked, and the accused member restored to duty with [LAFD] without loss of pay and without prejudice, as if no order of relief from duty or suspension had been made.” (Ibid.) As Helton states in the conclusion of his “combined reply and cross-respondent’s brief,” “the Fire Chief did not file a copy of the verified complaint with the Fire Commission within five days 17 of service on Helton as the Charter mandates. Therefore, per the Charter’s mandate, Helton’s relief from duty was ‘void and of no effect and shall be automatically revoked,’ and its self-executing remedy requiring return to duty ‘without loss of pay and without prejudice’ applies.” Although Helton waived reliance on section 1060(c) to attack the judgment, we may affirm on any legal ground supported by the record, whether or not raised before the trial court. (Day v. Alta Bates Medical Ctr. (2002) 98 Cal.App.4th 243, 252, fn. 1.) We acknowledge Helton could have raised this point more prominently. Nevertheless, we believe his invocation afforded Defendants the opportunity to respond (in addition to their opportunity to address it in their opening brief). They filed no reply. In any event, even if Helton had filed no response, it would still be our duty to consider whether Defendants showed reversible error. (In re Marriage of Davies (1983) 143 Cal.App.3d 851, 854.) Defendants temporarily relieved Helton from duty effective December 7, 2021, and took him off the payroll. Defendants did not file anything with the Board of Fire Commissioners regarding their action against Helton until May 5, 2022. Under the plain terms of section 1060(c), Helton’s temporary relief from duty without pay on December 7, 2021, became a nullity on or about December 12, 2021, and could not serve as a basis for depriving him of pay either before or after that date. 3. Defendants Fail to Show Helton Was Not Entitled to Backpay up to the Date He Was Validly Terminated The trial court held Helton was wrongfully denied pay from December 7, 2021, the effective date of his summary relief from 18 duty, through June 9, 2022, the date he was terminated under section 1060(h) for failing to attend his BOR hearing. Defendants argue that, even if they violated section 1060, the trial court erred in granting backpay after March 10, 2022, the date for which they first attempted to set Helton’s BOR hearing. We disagree. For the reasons already stated, Helton’s placement off duty became void and of no effect under section 1060(c) when Defendants failed to file a copy of a verified complaint against him with the Board of Fire Commissioners within five days. Defendants fail to show he was properly relieved from duty prior to June 9, 2022. Although Helton refused to participate in earlier proceedings, Defendants fail to show they were in a position to proceed before June 9, 2022. To the extent they were entitled to proceed with a hearing on March 10, 2022, when Helton refused to attend, they could have done so and terminated him under section 1060(h) at that time. They did not and we decline to treat them as if they had. DISPOSITION The judgment is affirmed. The parties are to bear their own costs on appeal. RICHARDSON, J. WE CONCUR: LUI, P. J. GOORVITCH, J. 19