I.

INTRODUCTION

Ragena Allee’s former employer, the Superior Court of San Bernardino County

(SCSB), informed her that it intended to terminate her for allegedly violating SCSB’s

policies and the Fair Employment and Housing Act (Gov. Code, §§ 12950 et seq.;

FEHA). Within hours of receiving notice of SCSB’s intent to terminate her, Allee

resigned. SCSB accepted her resignation later that day and terminated her employment

the next day.

Allee later sued SCSB for declaratory relief, alleging that her resignation should

be rescinded based on the parties’ mistakes. In her deposition, Allee unequivocally

testified that she resigned only because she mistakenly thought she would lose her

retirement benefits if she unsuccessfully challenged SCSB’s decision to terminate her.

But in her declaration in support of her opposition to SCSB’s motion for summary

judgment, Allee stated that she resigned not only because she might lose her retirement

benefits if she did not resign, but also because she and SCSB mistakenly thought her

conduct violated SCSB’s policies and FEHA.

Relying on D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1

(D’Amico), which allows trial courts to disregard the declaration of a party opposing

summary judgment if it clearly contradicts the party’s prior unequivocal deposition

testimony, the trial court disregarded Allee’s statements in her declaration that she

resigned because the parties mistakenly believed her conduct violated SCSB’s policies

2 and FEHA. The court reasoned that those statements contradicted her deposition

testimony that she resigned only because she feared losing her retirement benefits.

Consistent with Allee’s deposition testimony, the trial court found that she resigned only

because she mistakenly thought she would lose her retirement if she did not resign, which

SCSB did not know when it accepted Allee’s resignation. The trial court therefore

granted SCSB’s motion for summary judgment because Allee’s unilateral mistake did not

justify rescinding her resignation.

Allee appealed. After we issued a tentative opinion, but before we held oral

argument, the parties informed us that they had reached a settlement and stipulated to

dismiss the appeal. We exercise our discretion to dismiss the appeal without reaching the

merits.

II.

FACTUAL AND PROCEDURAL BACKGROUND

SCSB received seven anonymous letters from its employees accusing Allee of

“‘bullying behavior and creating a hostile work environment.’” SCSB hired an attorney

to investigate the situation, who concluded that Allee “created an environment of fear,

permeated with apprehension, by being disrespectful, belittling employees, controlling

actions of the supervisors, and demonstrating pervasive abusive conduct.” The

investigator also found that Allee retaliated against an employee for participating in the

investigation.

3 Because of the investigator’s findings and conclusions, SCSB proposed

terminating Allee. SCSB notified Allee of its proposal through a “Notice of Intent” letter

(NOI), which outlined the investigator’s findings and conclusions, and explained that

SCSB intended to terminate Allee. The NOI informed Allee that she had ten business

days to respond to the NOI. About three hours after receiving the NOI, Allee emailed

SCSB, stating she was resigning. Later that day, SCSB responded to Allee’s e-mail and

explained that “We received your notice of resignation and will process with an effective

date of tomorrow.” Allee was terminated the next day.

Allee later sued SCSB. After SCSB’s successful demurrers, Allee’s operative

Second Amended Complaint (SAC) asserted one claim for declaratory relief. In that

claim, Allee alleged that both she and SCSB mistakenly believed her conduct violated

SCSB’s Anti-Harassment and Complaint Procedure (SCSB’s anti-harassment policy) and

FEHA. She also alleged that a non-practicing attorney friend erroneously told her, and

thus she mistakenly believed, that she would lose her retirement benefits if she did not

resign and unsuccessfully challenged SCSB’s decision to terminate her. Allee therefore

sought rescission of her resignation based on the parties’ mistakes.

SCSB moved for summary judgment. SCSB argued that, despite the SAC’s

allegations, Allee testified in her deposition that she resigned only because she

mistakenly thought her retirement benefits were at risk unless she resigned. SCSB

argued it was therefore entitled to summary judgment because rescission of a contract

cannot stem from a party’s unilateral mistake, and it was undisputed that SCSB was

4 unaware of Allee’s mistaken belief about her retirement benefits when it accepted her

resignation and terminated her.

In support of her opposition to SCSB’s motion for summary judgment, Allee

submitted a declaration in which she stated that she decided to resign not only because

she mistakenly feared she could lose her retirement benefits if she did not resign, but also

because the parties both mistakenly thought her conduct violated SCSB’s anti-harassment

policy and FEHA. SCSB objected to this portion of Allee’s declaration. SCSB argued

the trial court should disregard Allee’s declaration testimony that she resigned in part

because of the parties’ alleged mistaken belief that her conduct violated SCSB’s anti-

harassment policy and FEHA under D’Amico because it conflicted with her deposition

testimony that she resigned only because of her concern about losing her retirement

benefits.

The trial court agreed. The trial court found that SCSB asked Allee “in three

different ways” in her deposition why she resigned, and her “responses were clear and

unequivocal admissions” that she resigned only because she feared she might lose her

retirement benefits unless she resigned. Relying on D’Amico, the trial court disregarded

Allee’s conflicting statements in her declaration that she also resigned because the parties

mistakenly thought her conduct violated SCSB’s anti-harassment policy and FEHA. The

trial court thus granted summary judgment to SCSB because it was undisputed that SCSB

did not know about Allee’s concerns about her retirement benefits, and rescission

requires mutual mistake. Allee timely appealed.

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III.

REQUEST FOR DISMISSAL

An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater

(2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sanctions on attorney for

unreasonable delay in notifying appellate court that parties had settled and dismissed the

underlying case].) Rather, pursuant to California Rules of Court, rule 8.244(c)(2), “[o]n

receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct

immediate issuance of the remittitur.” (Italics added.) Thus, dismissal is discretionary.

Because the parties have settled and stipulated to dismiss the appeal, we grant their

request to dismiss the appeal.

IV.

DISPOSITION

The appeal is dismissed. Each side shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

McKINSTER J.

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