Summary
In Harte v. County of Los Angeles (1978) 87 Cal.App.3d 419, 420, the appellate court held that a judgment ordering a former employee be reinstated "'with full back pay, rights, privileges and benefits from the date of her wrongful reduction, including but not limited to seniority, retirement and pension benefits,'" was "patently... ineffective to allow plaintiff to secure a writ of execution."
Summary of this case from Hawley v. HawleyOpinion
Docket No. 52983.
December 18, 1978.
Appeal from Superior Court of Los Angeles County, No. C-45574, Jerry Pacht, Judge.
COUNSEL
Godfrey Isaac and Lawrence Jay Kraines for Plaintiff and Appellant.
John H. Larson, County Counsel, William F. Stewart and Joe Ben Hudgens, Deputy County Counsel, for Defendant and Respondent.
OPINION
Plaintiff was reduced in rank in her employment as a nurse by the County of Los Angeles and, because there was no vacancy in the new rank, was laid off. After extensive litigation, she recovered judgment ordering her reinstatement "with full back pay, rights, privileges and benefits from the date of her wrongful reduction, including but not limited to seniority, retirement and pension benefits." Because of a dispute as to the dollar amount that the county was required to pay under that judgment, a further hearing was held before the same judge as had made the judgment. That proceeding resulted in an order which spelled out, in partial detail, the amount involved. We set out the pertinent portions of that order in an appendix to this opinion. On this appeal by plaintiff from that order, the parties argue only the provisions in paragraph 1 requiring plaintiff to give a credit for the amounts earned by her in private employment during the period of her lay-off. We affirm the order.
Probably because the proceeding was in aid of plaintiff's attempt to secure a writ of execution, the order determines dollar amounts only for the money that is directly payable to plaintiff, still leaving uncertain the amounts to be paid by the county under paragraphs 4 and 5 of the order. No complaint is made here of that fact.
Because of the final provision in the order, directing that it be made retroactively effective as of the date of the judgment, both parties have discussed, elaborately, the cases involving the power of a trial court to make nunc pro tune revisions of a judgment. Those cases are not here material. As originally drawn, the judgment patently was ineffective to allow plaintiff to secure a writ of execution; clearly a new proceeding was required to fix the dollar amount to be inserted in such a writ. The proceeding herein involved was a proper proceeding to make the judgment enforceable in that regard.
(1) In the proceeding resulting in the order now attacked it was necessary for the trial court to ascertain, among other things, the dollar amount of back pay to which plaintiff was entitled. In performing that duty, the court was not restricted to a mere determination of the number of days involved, but to the pay provisions under which plaintiff was employed. ( Markman v. County of Los Angeles (1973) 35 Cal.App.3d 132 [ 110 Cal.Rptr. 610].) Among those provisions was the section of the county salary ordinance calling for credit to the county for outside income. The trial court properly considered that part of the ordinance and gave to plaintiff only the net amount to which the ordinance, as a whole, entitled her.
The order is affirmed.
Jefferson (Bernard), J., and Alarcon, J., concurred.
A petition for a rehearing was denied January 2, 1979, and appellant's petition for a hearing by the Supreme Court was denied February 14, 1979.
APPENDIX
"1. Plaintiff has accrued $84,825.00 in back pay, to which must be added 7% interest from September 15, 1975. Against that sum, plaintiff is required to offset, by deducting, $34,534.00 which she earned while she was not working for the County and which she could not have earned had she been regularly employed by the County. Plaintiff shall be paid the difference between the accrued back pay with interest and the offset amount.
"2. Plaintiff will receive accrued vacation for 220 days. Said vacation can at the election of plaintiff be taken commencing immediately or in an amount equal to 220 days times $63.937¢ her daily rate of pay.
"3. Plaintiff will receive sick pay representing 12 days per year for 6.5 years or the sum of 78 days' sick pay times $63.937¢ her daily rate of pay.
"4. The Plaintiff and defendant will make social security contributions from the period of reinstatement, October 5, '75 until July, 1976 to make plaintiff whole on her social security contributions since reinstatement.
"5. The plaintiff and defendant shall reinstate plaintiff's pension fund, make pension contributions at the appropriate rate to the present date to make plaintiff's pension whole for the entire period of county service. October 1959 to the present date.
"It is Ordered, Adjudged and Decreed that the above ruling of the Court be retroactive to September 15, 1975, the date of the Court's order in this matter; that said figures further clarify the Court's order of that date; and that the Treasurer of the County of Los Angeles or his designee be required to appear before the Court at a date and time to be set by plaintiff if satisfaction of judgment has not been filed by plaintiff within 60 days of the date of this order."