Q: If you make an appeal with SPB but haven't even had the pre-settlement conference can you withdraw & file in court .
In other words withdraw your appeal from the SPB at this early stage and file directly with the superior court or federal court.
The department has filed a motion to dismiss even before the pre-settlement conference has occurred which will be held after the presettlement conference. I have decided to move my case. Can I just withdraw at this stage with State Personnel Board (SPB) and file directly with the court since we have not had any pre-settlement conference nor any evidentiary evidence.
A:
Under California law, you generally have the option to withdraw your appeal from the State Personnel Board (SPB) at any early stage before significant proceedings, such as a pre-settlement conference, have taken place. This includes before any evidentiary hearings are conducted. Your decision to move your case from the SPB to a superior or federal court should be carefully considered, especially in light of any motions, such as a motion to dismiss, filed by the department.
If you decide to withdraw your appeal with the SPB to pursue your case in court, it's important to follow the proper procedure for withdrawal. This usually involves notifying the SPB in writing of your intention to withdraw your appeal. You should check the SPB's rules or consult with an attorney to ensure you comply with all necessary steps and timelines for withdrawal.
Once your appeal is successfully withdrawn from the SPB, you can then proceed to file your case in the appropriate superior or federal court. Keep in mind that different courts have different jurisdictional requirements, filing fees, and procedural rules. It might be beneficial to seek legal advice to understand the implications of moving your case to a different forum and to ensure that your rights are fully protected throughout the process.
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