Opinion
G046625
01-09-2013
LYLE WILSON, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.
The Law Offices of Charles Goldwasser, Charles A. Goldwasser, David A. Goldwasser, and Theodore H. Dokko for Plaintiff and Appellant. Liebert Cassidy Whitmore, Debra L. Bray, David A. Urban, and Stacy L. Velloff (Herberg) for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2011-00477697)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Reversed and remanded.
The Law Offices of Charles Goldwasser, Charles A. Goldwasser, David A. Goldwasser, and Theodore H. Dokko for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Debra L. Bray, David A. Urban, and Stacy L. Velloff (Herberg) for Defendants and Respondents.
This appeal concerns a long and contentious dispute between Lyle Wilson and his former employer, the Orange County District Attorney's Office (the County). Wilson was discharged from his employment in 2002. After six years of litigation and legal maneuvering, a trial court entered judgment in Wilson's favor and issued a peremptory writ ordering the County to vacate his discharge from employment. The trial court determined one of the charges supporting Wilson's discharge was barred by the statute of limitations. The County did not appeal this judgment. Instead, the County amended Wilson's employment file to show he was terminated in 2002 for two non-time barred reasons.
The trial court, and a different panel of this court, concluded backdating a second discharge violated the peremptory writ. (Wilson v. Superior Court (Apr. 7, 2010, G040875) [nonpub. opn.] (hereafter Wilson I).) The backdating effectively deprived Wilson of any administrative remedies to challenge the discharge and eliminated his ability to seek backpay. We upheld the trial court's order finding the County's attempt to backdate a second discharge was null and void. (Ibid.)
Thereafter, the County vacated the 2002 discharge, reinstated Wilson with pay, but placed him on paid administrative leave. The trial court ordered the County to determine within 90 days how much Wilson was due in backpay and benefits. It also ruled any dispute as to the amount of backpay would have to be resolved in a new action.
On October 26, 2010, the County paid Wilson $97,304 for backpay and benefits. Wilson filed the underlying petition for a writ of mandate, seeking an order requiring the County to pay him an additional $1,108,782, as well as a retirement credit of 7.9 years. A few weeks later, the County discharged Wilson from his employment based on two non-time barred charges.
The trial court sustained the County's demurrer on the basis Wilson failed to allege compliance with the Government Tort Claims Act (Gov. Code, § 900 et seq., hereafter referred to as Claims Act). The court dismissed Wilson's writ petition. On appeal, Wilson asserts the Claims Act does not apply. We agree and reverse the judgment.
All further statutory references are to the Government Code, unless otherwise indicated.
I
We begin our factual summary by incorporating by reference the procedural history from 2002 to 2010 as delineated in the prior appeal. As aptly summarized by a different panel of this court, "This case arises against a backdrop of political intrigue and purported cover-ups. . . . Wilson, a veteran investigator for the Orange County District Attorney's Office, was investigating Patrick DiCarlo, a personal friend and supporter of District Attorney Anthony Rackauckas, for purported violations of federal and state securities laws. Rackauckas ordered that Wilson terminate the investigation, but because he was concerned about a possible internal cover-up and the obstruction of justice, Wilson failed to comply. Furthermore, when told to turn over the DiCarlo file to his supervisor, Wilson covertly provided authentic-looking copies of the documents and a recorded interview tape and kept the originals. After the supervisor destroyed the purported originals, Wilson lied about still having file materials in his possession. As the water got hotter, he eventually leaked information about the investigation to the press. Wilson was [placed on administrative leave in 2001, and] fired in 2002 for insubordination, untruthfulness, and media policy violation." (Wilson I, supra, G040875, fn. omitted.)
A. The First Writ of Mandate Petition & Arbitration (Also Referred to as the First Action)
After being placed on administrative leave in 2001, Wilson "requested an administrative review of the matter. Wilson later filed a petition for a writ of mandate, under Code of Civil Procedure sections 1085 and 1086, requesting the County be directed to provide him with an administrative review in conformity with . . . section 3304, subdivision (b)." (Wilson I, supra, G040875.) Section 3304 describes the grievance procedure for peace officers under the Public Safety Officers Procedural Bill of Rights Act (POBRA) (§ 3300 et seq. [labor relations statute providing catalog of basic rights and protections afforded to all peace officers by public entities that employ them].)
"The Orange County Superior Court thereafter issued an order recusing the entire bench, because Rackauckas was previously a judicial officer of that court. The matter was then assigned to Judge David Yaffe of the Los Angeles County Superior Court." (Wilson I, supra, G040875.)
"On October 25, 2002, the County sent Wilson a notice of intent to discharge on the grounds of insubordination, untruthfulness, and violation of the Orange County District Attorney Media Policy. Wilson was terminated on December 30, 2002. He then filed an appeal before an arbitrator, pursuant to a memorandum of understanding [(MOU)] between the Association of Orange County Deputy Sheriffs and the County of Orange." (Wilson I, supra, G040875.)
"A March 4, 2003 minute order was entered in the writ proceedings stating that the petition was stayed unless and until amended to plead either exhaustion of administrative remedies or facts showing exhaustion was not required. On August 8, 2003, the court granted Wilson leave to file an amended supplemental petition for a writ of mandate alleging a claim pursuant to . . . sections 3305 and 3309.5." (Wilson I, supra, G040875, fn. omitted.)
In the POBRA, section 3305 provides in pertinent part: "No public safety officer shall have any comment adverse to his interest entered in his personnel file . . . without the public safety officer having first read and signed the instrument containing the adverse comment indicating he is aware of such comment . . . ." Section 3309.5, subdivision (a), provides: "It shall be unlawful for any public safety department to deny or refuse to any public safety officer the rights and protections guaranteed to him or her by this chapter."
"Proceeding on another track, arbitration proceedings began before arbitrator Howard S. Block. Opening statements were made on August 25, 2003. The County stated that 'pursuant to Article 10 of the applicable MOU, the issue in this case would be whether . . . Wilson was discharged by the District Attorney's office for reasonable cause. If not, to what remedy is . . . Wilson, entitled under the provisions of Article 10, Section 8 of this MOU.'" (Wilson I, supra, G040875.)
The arbitration proceedings lasted until August of the following year. "Wilson moved that the arbitration proceedings be dismissed and he be reinstated to his position because the County did not complete its investigation within the time permitted by . . . section 3304, subdivision (d). The arbitrator denied the motion in October 2004, stating: '[T]his [a]rbitrator's jurisdiction is limited to what the parties have authorized him to decide, namely, whether Mr. Wilson was discharged for reasonable cause. The parties have not authorized the [a]rbitrator to decide the statute of limitations question which arises under the [POBRA]. [Citation.]'" (Wilson I, supra, G040875, fn. omitted.) After further hearings in April and May of 2006, the arbitrator, having made no determination on the statute of limitations issue, determined in October 2006, Wilson had been fired for reasonable cause. (Wilson I, supra, G040875.)
Over one year later, on February 8, 2008, the trial court considered "Wilson's petition for a writ of mandate pursuant to Code of Civil Procedure sections 1085 and 1086. The minute order on the hearing observed that the arbitrator had determined that he did not have the authority to decide whether any of the claims against Wilson were time-barred under [section] . . . 3304, subdivision (d). In addressing that unresolved issue, the minute order stated that '[p]unitive action against Wilson for insubordination was . . . untimely under [section] . . . 3304[, subdivision] (d).' It also said that punitive action against Wilson with respect to the untruthfulness and media policy violation charges was timely. However, the order also stated: 'Because it cannot be determined from the arbitrator's decision whether he would have upheld Wilson's discharge if one of the three acts of misconduct were time-barred, Wilson is entitled to the issuance of a writ of mandate requiring his employer to vacate its order discharging Wilson and remanding the matter to respondents for such further proceedings as they determine to take, consistent with the decision of the court.'" (Wilson I, supra, G040875.)
"A March 14, 2008 judgment decreed that: '[The County] violated [section] 3304 [subdivision] (d) by taking punitive action against [Wilson] for insubordination. [The County] did not violate [section] 3304 [subdivision] (d) by taking punitive action against [Wilson] for untruthfulness and for violation of [the County's] media policy. A writ of mandate will issue commanding [the County] to vacate [its] decision discharging [Wilson] and remanding this matter to [the County] for further action consistent with this judgment.' (Capitalization omitted.)" (Wilson I, supra, G040875.)
"A peremptory writ of mandate was thereafter issued commanding the County 'to vacate [its] decision discharging [Wilson], and to take such further action as [it deems] proper, consistent with the judgment of this court.' (Capitalization omitted.) It was also ordered to file a return to the writ showing what it had done to comply." (Wilson I, supra, G040875.)
"In its return to the writ, the County disclosed that it had sent Wilson a notice dated May 2, 2008[,] stating: '[Y]our personnel file will be amended to reflect effective December 30, 2002[,] that the grounds of your discharge are untruthfulness and violation of the Orange County District Attorney's Media Policy.'" (Wilson I, supra, G040875.)
"Wilson filed an opposition to the return. He requested that either the County be compelled to reinstate him to his former position or the matter be remanded to the arbitrator for a determination of whether the termination would have been made for just cause based exclusively on the grounds of untruthfulness and violation of media policy. [¶] On July 28, 2008, the court entered an order stating: 'The decision by [the County] to discharge [Wilson] for two reasons instead of three are within the discretion of the District Attorney and does not violate the writ of mandate issued by this court. [¶] The return further informs the court, however, that [the County has] attempted to backdate [its] discharge of [Wilson] seven and a half years, to December 30, 2002. Such attempt to backdate the discharge on only two grounds violates the writ because it is an attempt to deprive [Wilson] of his administrative remedy to challenge the new discharge and to deprive him of whatever right to backpay he would have if the 2002 discharge is vacated as ordered by the court and a new discharge order is made.' The order also provided: 'Pursuant to section 1097 of the Code of Civil Procedure, the court orders that the attempt by [the County] to backdate [its] decision to discharge [Wilson] for two reasons instead of three, to any date prior to May 2, 2008, is null and void.'" (Wilson I, supra, G040875.)
B. The First Appeal in 2010
The County appealed from the order declaring its second decision to discharge Wilson null and void. As mentioned above, a different panel of this court affirmed the order. (Wilson I, supra, G040875.) We rejected the County's argument the trial court exceeded its jurisdiction by essentially vacating the arbitration award by ruling the discharge was reasonable. We concluded the trial court did not rule on the same legal issue as the arbitrator, but rather reviewed the arbitration award and determined it was unclear whether the arbitrator would have reached the same result on only the two grounds of untruthfulness and media policy violation. (Ibid.)We noted, "The County failed to challenge the judgment and cannot now complain about the effect of the judgment, or its enforcement, on the arbitration award." (Ibid.)
We also rejected the County's contention the trial court's order erroneously precluded the County from exercising its discretion to terminate Wilson's employment. We pointed out the trial court's judgment "decreed that the County's decision discharging Wilson be vacated and that the matter be remanded to the County 'for further action consistent with this judgment.' (Capitalization omitted.) The peremptory writ likewise commanded the County to vacate the discharge 'and to take such further action as [it deemed] proper, consistent with the judgment of this court.' (Capitalization omitted.) Neither the judgment nor the writ specified what further action the County could take with respect to Wilson, but clearly that further action did not include backdating the order discharging Wilson rather than vacating it." (Wilson I, supra, G040875.)
We also addressed the County's complaint "that it is precluded from terminating Wilson on the grounds of untruthfulness and media policy violation because the . . . section 3304, subdivision (d) statute of limitations would bar a current-day termination on those grounds. If the County wanted the judgment to include language somehow permitting a retroactive termination based on only two grounds, it should have sought clarification of the judgment at the time, or should have taken an appeal from the judgment. Rather than risking an adverse clarification or a loss on appeal, it would appear that the County chose to game the system by backdating an amended discharge order and hoping it would fly. As we have said, substantial evidence supports the court's determination that this action did not comply with the writ. That being the case, we affirm the order. However, we express no opinion as to what avenues are now available to the County to address the Wilson matter." (Wilson I, supra, G040875.)
C. The County's Action on Remand and Completion of the Los Angeles Proceedings
After losing on appeal, the County informed Wilson that he would be placed on administrative leave as of July 9, 2010. Wilson returned to the trial court in Los Angeles (Judge Yaffe) and requested the court order the County to reinstate him and provide owed backpay.
The court's minute order reflects the motion was granted in part and denied in part. The court stated its ruling was based on the County's representation Wilson "has already been reinstated with pay, and that the [County] will determine the amount of backpay, if any, due to [Wilson]." The trial court concluded, "[t]he only order that appears to be necessary is an order placing some reasonable time limit on [the County's] obligation to determine the amount of backpay . . . and to pay the amount so determined." The court gave the County 90 days (until September 27, 2010) to make that determination and pay the amount. In addition, the court clarified, "The [c]ourt retains jurisdiction over this matter only for the purpose of enforcing the order. When [the County complies] with this order, the [c]ourt will have no jurisdiction over this matter. Any judicial review of the amount of backpay found by [the County] to be due to [Wilson] is to be sought in a new case."
On October 27, 2010, the County filed its return to the writ of mandate announcing it sent Wilson a check for $65,145.03, representing $97,304 for backpay minus the necessary withholdings. The County explained it hired an expert economist and a vocational rehabilitation expert to determine the amount of backpay owed. The County stated backpay was defined as the amount Wilson would have earned but for the County's unlawful conduct, minus the amount Wilson earned "'or could have earned'" if he had "'mitigated the loss by seeking or securing other comparable employment.'" (Citing Lowe v. California Resources Agency (1991) 1 Cal.App.4th 1140, 1144-1145, fn. 3 (Lowe) [definition of backpay in wrongful termination cases involving civic service employees].) One of the County's experts determined Wilson could have obtained a higher paying job as an investigator at another district attorney's office in California, a public defender's office, or an alternative public defender's office within six to nine months following his termination. The other expert determined Wilson would have been paid $97,304 for the period of nine months following his termination in 2002.
A few weeks later, on November 18, 2010, the County discharged Wilson's employment. This time it was based on the charges of untruthfulness and media policy violation.
D. The Second Petition for Writ of Mandate (Also Referred to as the Second Action)
Wilson was unhappy with the amount the County paid him. He filed a new petition for writ of mandate in the Orange County Superior Court in light of Judge Yaffe's prior decision, "Any judicial review of the amount of backpay found by [the County] to be due to [Wilson] is to be sought in a new case." Wilson asserted he was still owed $924,901.14 and a retirement credit of 7.9 years. He sought a court order compelling the County "to comply with their obligation under the law to pay him backpay and benefits from December 30, 2002, until the effective date of the most recent disciplinary action of termination taken against him by . . . Rackauckas." Wilson pled he had no administrative remedy in this matter. Wilson amended his writ of mandate in July 2011, increasing the amount of wages owed to $1,107,782.87.
The County filed a demurrer alleging there were four reasons why the petition failed to state facts sufficient to constitute a cause of action: (1) Wilson did not comply with the Claims Act's time limitations; (2) Judge Yaffe never made a specific award of backpay under the POBRA, so there was no damage award to be enforced; (3) the determination of backpay under the POBRA is considered extraordinary relief and is a discretionary act, not a ministerial act, and therefore cannot be compelled by a writ of mandate; and (4) a writ of mandate directing payment would be unlawful because the POBRA does not authorize a damages remedy.
In his opposition, Wilson argued his claim did not rely on the Claims Act or the POBRA. He clarified the writ sought to have the County comply with the earlier writ granted in Los Angeles by Judge Yaffe. Wilson stated he was not claiming the County failed to comply with Judge Yaffe's order, that they committed a tort against him, or violated any rights under the POBRA. Instead, Wilson asserted he disputed the calculation of backpay and "seeks to determine the actual amount owed through this litigation."
The court sustained the demurrer and gave Wilson 10 days leave to amend. Wilson filed an amended petition and added two alternative theories of recovery, (1) declaratory relief he was owed wages, and (2) breach of contract (specifically the MOU regarding payment of wages). The County again demurred, raising the same arguments as before. In addition, the County asserted the request for declaratory relief was invalid and/or barred by res judicata. The County maintained the breach of contract claim failed because public employees cannot raise this claim against their employers and Wilson failed to exhaust his remedies.
The court sustained the demurrer without leave to amend. In its minute order, the trial court stated, "Although Wilson's claim for writ relief revolves around the assertion the County incorrectly calculated back wages that were owed to him, the claim arose originally from an action that centered around a claim he was wrongfully terminated. Thus, his claim is effectively one for damages, and he was not excused from complying with . . . section 905. (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1080 [(Loehr)].)" On January 24, 2012, the court entered a judgment dismissing the action.
II
A. Standard of Review
On appeal from a judgment of dismissal following an order sustaining a demurrer, "we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose." (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415 (McCall).) We assume the truth of the properly pleaded factual allegations, facts that can reasonably be inferred from those pleaded, and facts of which judicial notice may be taken. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
B. General Principles Regarding the Claims Act
Under the Claims Act, "no suit for 'money or damages' may be brought against a public entity until a written claim has been presented to the entity and the claim either has been acted upon or is deemed to have been rejected. (§§ 905, 945.4.) The purpose of the claims statutes is to: (1) provide a public entity with sufficient information to allow it to thoroughly investigation the matter; (2) facilitate settlement of meritorious claims; (3) enable a public entity to engage in fiscal planning; and (4) to allow a public entity to avoid similar liability in the future. [Citation.] The Claims Act does not apply, however, to nonpecuniary actions, 'such as those seeking injunctive, specific or declaratory relief.' [Citation.]" (Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1493 (Canova).)Rather, the claims presentation requirement applies to all actions seeking monetary demands, regardless of the theory of the action. (Sparks v. Kern County Bd. of Supervisors (2009) 173 Cal.App.4th 794, 798 (Sparks)). "The failure to timely present a claim for money or damages to a public entity bars the plaintiff from bringing suit against that entity. [Citation.]" (Ibid.)
"In determining whether the Claims Act applies, the critical question is whether the recovery of money or damages was the primary purpose of [p]laintiffs' claims. Where the primary purpose of a mandamus action is monetary relief, the mandatory requirements of the Claims Act apply. [Citations.] In contrast, mandamus actions seeking to compel performance of a mandatory duty, statutory duty or ministerial act may not be subject to the Claims Act if they do not seek money or damages. (Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1125-1126 [mandamus action to enforce mandatory duty regarding future funding of retirement system was not one for money or damages]; County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 587-588 [mandamus action to compel state to disburse funds in the manner provided by the Medi-Cal statutes was not one for damages, but to compel by ministerial act the release of funds]; Forde v. Cory (1977) 66 Cal.App.3d 434, 436-438 [mandamus proceeding to compel state officer to pay lump sum death benefit on behalf of judge who died before retirement was a suit to compel performance of express statutory duty, not a money action, and thus was exempt from the government claim requirement].)" (Canova, supra, 150 Cal.App.4th at pp. 1493-1494.)
C. Wilson's Wage Claim (His Second Action) was Exempted From the Claims Act
Section 905 designates 14 classes of claims against local public entities that are not subject to the claims procedure of the Claims Act. (Van Alstyne, California Government Tort Liability Practice (C.E.B. 2011) § 5.38, p. 195 (hereafter Van Alstyne).) "In general, courts strictly construe the statutory exceptions in [section] 905. Unless a particular case clearly falls within an exempted category, the plaintiff's failure to present a timely claim may be fatal." (Id. at § 5.42, p. 197.)
Relevant to this case, section 905, subdivision (c), exempts, "Claims by public employees for fees, salaries, wages, mileage, or other expenses and allowances." Section 905, subdivision (f), exempts claims for benefits under retirement or pension systems. Case authority has held the exemption applies to employees seeking earned, promised, or accumulated wages and benefits. (See Loehr, supra, 147 Cal.App.3d at p. 1080 [reviewing cases applying 905, subdivision (c)'s exemption].) Whereas, backpay claims connected to damage awards or claims incidental to injunctive relief (reinstatement) may not fall within the scope of the exemption.
Because we must strictly construe the statutory exemptions, it is crucial for us to determine the underlying basis for Wilson's backpay and benefits claim in his second action. In this case, the determination is somewhat complicated by the parties' liberal and frequent use of the term "reinstatement" to represent two different events in this case, neither of which is related to the legal remedy of "reinstatement" as used in the case law.
The first event the parties sometimes refer to as a "reinstatement" was the Court's issuance of a preemptory writ of mandate in 2008, ordering the County to vacate its decision discharging Wilson in December 2002. This order had the practical effect of erasing the event of Wilson's termination. It is important to note the court did not also award Wilson the remedy of "reinstatement," and this was because the court was not providing a remedy for an ordinary tort-type action. Rather, Wilson's lawsuit was about a POBRA violation. The court vacated Wilson's discharge from employment and ordered the matter "remanded to [the County] for further action consistent with this judgment." The court did not indicate what avenues under POBRA would be available to the County in dealing with its employee, and the County did not seek clarification or appeal the judgment. In essence, the end result of the first action was the determination Wilson was an employee awaiting procedurally proper disciplinary action or termination as permitted by POBRA.
The record shows the County took no further steps towards terminating Wilson's employment until two years later (2010), which brings us to the second event referred to by the parties as representing a "reinstatement." In July 2010, the County advised the court it had officially "reinstated" Wilson "with pay" and it placed Wilson on administrative leave. Four months later, in October 2010, the County paid Wilson approximately $97,000, representing a period of nine months of employment beginning December 30, 2002. The County claimed this sum represented all the wages owed to Wilson. In November 2010, the County discharged Wilson's employment.
What both parties fail to appreciate is that the term "reinstatement" is a legal term used in the context of employment discrimination and termination cases. In those cases, reinstatement is a remedy a court may order and refers to "a return of an employee to a former position with the same rights and responsibilities while 'instatement' may be used to refer to remedial placement of the employee in a different or advanced position. [Citations.]" (Dyer v. Workers' Comp. Appeals Bd. (1994) 22 Cal.App.4th 1376, 1382.) An employee "reinstated" in this context may also be entitled to the remedy of backpay. However, a claim for backpay incidental to a court-ordered reinstatement is not the type of wage claim expressly exempt from section 905, subdivision (c), of the Claims Act. Consequently, to avoid confusion, this opinion will only use the term "reinstatement" in the legal context of a court-ordered remedy. As will be described later in this opinion, the distinction is important when comparing this case to others where the trial court has ordered a remedy involving reinstatement.
We recognize there are cases holding backpay claims incidental to injunctive relief may not fall under the Claims Act when the primary purpose of the action is nonpecuniary. (Eureka Teacher's Assn. v. Board of Education (1988) 202 Cal.App.3d 469 (Eureka Teacher's Assn.).)This exception to the general rule is different from the express statutory exemption for wage claims delineated in section 905, subdivision (c). We will discuss the "primary purpose" exception as it applies in this case anon.
Accordingly, we conclude it would be improper to say Wilson was "reinstated" by the trial court's 2008 judgment and issuance of the writ of mandamus. The court never ordered Wilson returned to a former position to remedy a wrongful termination. Rather, the court determined Wilson was never properly discharged from employment in the first place and it remanded the employment matter to the County. The trial court simply vacated the discharge due to the County's failure to follow the procedures and rules outlined in the POBRA. Wilson's employment continued until the County took further action.
Similarly, the County's decision in 2010 to place Wilson on administrative leave with pay was not a "reinstatement" as defined in the case law. This was not a remedy fashioned by a court of law. It was the County's tardy response to the 2008 judgment after losing its appeal. The County's decision to once again pay Wilson his wages as an employee cannot be deemed a court-ordered reinstatement.
In light of the above discussion, we conclude Wilson's second action is a wage claim falling under the exemptions to Claims Act (§ 905, subds. (c) and (f)). Wilson filed the petition one month before his termination in November 2010 and asserted he has not been paid wages from December 2002, "to the present." Based on the court's orders, we conclude Wilson was continuously employed from December 30, 2002, until his termination in November 2010. His second action does not seek damages arising from POBRA violations, statutory penalties, wages incidental to a court-ordered reinstatement, or any other tort damages. Rather, Wilson's action simply alleges the County still owes him an additional $1,132,404.77 in wages plus 7.9 years of retirement credit.
As repeatedly asserted in the County's supplemental briefing, Wilson's second action must stand apart and independently from his first action. The County submits, "Wilson's first and second lawsuits are fundamentally different and seek redress for different alleged wrongs." It correctly asserts there "is no authority providing that a lawsuit otherwise subject to the Claims Act would, in fact, not be subject to it, because of a particular relationship to a prior lawsuit." The reverse logic would also apply. As such, we cannot agree with the trial court's ruling that because the Claims Act may have applied to Wilson's first action raising PROBA violations and seeking actual damages for wrongful termination, it must also apply to the second wage dispute action. The two lawsuits are fundamentally different.
The County argues the exemption does not apply to Wilson's claims because it only applies to wages that have been "earned but not paid." (Citing Loehr, supra, 147 Cal.App.3d at p. 1080.) In addition, the County asserts there is case authority on point, holding backpay demands, stemming from POBRA violations, are subject to the Claims Act. (Citing Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1157-1159 (Lozada).)We conclude both cases (Loehr and Lozada)are factually distinguishable and inapt.
As noted above, unless a particular case clearly falls within an exempted category, the Claims Act applies. In Loehr, supra, 147 Cal.App.3d at page 1080, the court determined the relief sought by plaintiff did not qualify for the wage claim exemption (§ 905, subds. (c) & (f)), because the primary purpose of plaintiff's action was to seek tort damages for wrongful termination. In that case, the board of trustees of a community college district discharged plaintiff. He sued the board for damages for wrongful termination and reinstatement to his former position as superintendent and chief executive officer of the community college district. (Loehr, supra, 147 Cal.App.3d at p. 1077.) The trial court sustained demurrers without leave to amend on the ground plaintiff failed to comply with the Claims Act requirements. (Id. at p. 1082.)
The complaint alleged six causes of action arising out of plaintiff's alleged wrongful termination, including "claims for breach of contract, tortious breach of an implied covenant of good faith and fair dealing, conspiracy and failure to prevent conspiracy to wrongfully interfere with a business relationship and to induce breach of contract, writ of mandate and injunctive relief regarding common law principles of fair procedure and substantive due process, writ of mandate and injunctive relief regarding violation of Education Code section 87031, and defamation." (Loehr, supra, 147 Cal.App.3d at p. 1077.)
In Loehr, the court rejected plaintiff's argument he was not required to comply with the claim filing requirements because "a portion of his damage action sought to recover lost salary and other benefits, therefore, falling within the exceptions to filings involving claims by public employees for salaries, wages and expenses (§ 905, subd. (c)) and claims for benefits under retirement or pension systems (§ 905, subd. (f))." (Loehr, supra, 147 Cal.App.3d at p. 1080.) The court reasoned the limited statutory exemptions must be narrowly construed, and after reviewing applicable cases, it construed section 905, subdivision (c), as "exempting from the [Claim A]ct claims for salaries and wages which have been earned but not paid. Earned but unpaid salary or wages are vested property rights, claims for which may not be properly characterized as actions for monetary damages. [Citations.] [¶] Similarly, the exemption specified in section 905, subdivision (f)[,] must be limited to benefits earned during the course of employment. [Citations.]" (Loehr, supra, 147 Cal.App.3d at p. 1080.)
The Loehr court then reviewed the complaint and determined the relief sought in the "first three causes of action (breach of contract, tortious breach of covenant of good faith and fair dealing, and conspiracy to induce breach) does not qualify for either the section 905, subdivision (c) or subdivision (f) exemption. Plaintiff does not seek to recover salary or wages that he previously earned nor does he seek to recover benefits to which he is presently entitled under a public retirement or pension system. Plaintiff does seek, however, to obtain monetary damages for defendants' alleged misconduct in preventing him from rendering services through which he might have acquired a vested right to additional amounts in salary or benefits." (Loehr, supra, 147 Cal.App.3d at pp. 1080-1081.) The court also noted plaintiff's first three causes of action fell squarely within the terms of the Claims Act because they sought monetary recovery for emotional and mental distress, pain and suffering, humiliation, and damage to reputation. (Ibid.)
Looking within the four corners of the complaint in Wilson's second action, we have concluded the relief he sought qualifies for the section 905, subdivisions (c), and (f), exemptions. Wilson seeks wages and benefits for the time he was employed by the county from 2002 to 2010. Unlike the complaint in Loehr, Wilson's writ petition does not seek lost wages and benefits as a portion of tort damages following a wrongful termination or damages for misconduct. The County has not suggested any reason why Wilson would not be entitled to wages or benefits from December 30, 2002, to when he was discharged in 2010. Indeed, the County already calculated and paid what it believed it owed Wilson for this period of employment. Wilson simply is asserting the calculation is incorrect.
There appears to be some confusion by both parties as to the meaning of the Loehr court's use of the phrase "earned but not paid" in describing the limited types of wage claims exempted from the Claims Act. The Loehr court noted it had reviewed several cases discussing section 905, subdivision (c)'s exemption. (Loehr, supra, 147 Cal.App.3d at p. 1080.) Based on its reading of those cases, the court construed the exemption to apply only to claims brought by employees seeking wages that would qualify as a vested property right. The court did not suggest the wages had to be earned by "working" a particular task. Rather, the court was simply making a distinction between an employee who has accumulated a right to collect wages from an employee, wrongfully terminated, who seeks wages as a part of his tort damages.
In its supplemental briefing, the County boldly asserts, without supporting citations, the exemption applies only to salaries, wages, and benefits "worked" but not paid. As discussed above, the Loehr court coined the phrase "earned but not paid" to describe the types of permissible employee claims. (Loehr, supra, 147 Cal.App.3d at p. 1080.) There is a significant difference between requiring an employee to have "worked" rather than "earned" wages. We find no authority requiring the employee to have worked a particular task to fall within the exemption. After all, an employee placed on paid administrative leave will "earn" salary, wages, and benefits without having worked a single day for the period of the leave. Rather than using the Loehr court's definition of "earned but not paid," we believe a better (less confusing) way to describe exempted claims for salary or wages are those an employee "accrued" or "accumulated" during their time of employment. This is distinguishable from "potential" wages sought as part of monetary damages and subject to the Claim's Act.
A brief review of the cases cited by the Loehr court illustrates this point. (Loehr, supra, 147 Cal.App.3d at p. 1080.) The Loehr court cited to Longshore v. County of Ventura (1979) 25 Cal.3d 14, 22, a case where a group of sheriffs sought damages and declaratory relief regarding previous uncompensated overtime. The court held the lawsuit seeking recognition of a "right to compensation for services performed as a county employee" fell within section 905, subdivision (c). Similarly, in Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 343 (Glendale),a class of city employees sought a writ of mandate compelling the city council to compute and pay wage increases to those employees in accordance with a MOU approved by the city council. The court determined the appropriate remedy of mandamus was available to resolve the wage dispute. Likewise, in Ruggiero v. Los Angeles City Unified Sch. Dist. (1973) 33 Cal.App.3d 970, 973, a group of teachers were permitted to seek a writ of mandate to require the school board to compensate teachers additional money due to excessive deductions for unauthorized leaves of absence. In contrast, the court in Hanson v. Garden Grove Unified School Dist. (1982) 129 Cal.App.3d 942, 948 (Hanson), determined a former school employee claim was for general damages for the school's tortious refusal to rehire him was not exempted from the Claims Act. "He did not sue to recover wages, salaries or benefits under any contract of employment or for services rendered. He asked only for general damages" flowing from the district's alleged tortious conduct. (Id. at p. 946.)
These cases exemplify the clear distinction between employees who have filed a wage claim having accrued the right to collect certain wages and benefits from those former employees who were wrongfully terminated and seek potential wages as a part of tort damages. It is interesting the Loehr court also referred to Miner v. Superior Court (1973) 30 Cal.App.3d 597, where the court deemed a public employee was entitled to workers compensation benefits relating to an industrial injury after he also sued a third party tortfeasor, a co-employee, for the same injury. The Miner court determined the employee's claim was exempt under section 905, subdivision (d), for "claims for which workmen's compensation . . . [is] the exclusive remedy." The court strictly construed the language of section 905, subdivision (d), to refer only to "claims" and not to suits for damages, even though the same incident gave rise to both the claim and the lawsuit and related to the same injury. This case supports the conclusion Wilson's current claim for additional wages is exempt from the Claim's Act even if his prior lawsuit was not.
In light of the above body of case law, the court in Loehr determined that in the case before it, plaintiff was seeking only potential, unearned, lost wages as part of his damage claim following his wrongful termination. The wages sought were not actually "earned" as plaintiff was officially discharged by the school district. The Loehr case has no application to Wilson's current action alleging he is owed wages and benefits for the time he was employed by the County.
The County's reliance on Lozada, supra, 145 Cal.App.4th 1139, is also misplaced. The County maintains Wilson's claim "constitutes a backpay demand stemming from a POBRA violation, the exact type of damages the [c]ourt in Lozada found to be subject to the . . . Claims Act. [Citation.] Accordingly, section 905, [subdivision (c),] does not exempt Wilson's action from the . . . Claims Act." The County has misconstrued the scope of Wilson's petition as well as the holding of Lozada.
As will be discussed below, we do not view Wilson's second action as merely a continuation of his first action raising POBRA violations and requesting significant damages and penalties. In short, the first action sought injunctive relief and was resolved in Wilson's favor with his discharge being vacated. Judge Yaffe ordered Wilson to file a new action if he desired to raise an employment wage dispute, which is exactly what Wilson did. Wilson's current petition, the second action, does not request POBRA damages or civil penalties.
Furthermore, the County fails to appreciate the Lozada case did not conclude all POBRA violation claims fell within the Claims Act. To the contrary, the court recognized the relief sought by public safety officers alleging violations of their POBRA rights can vary greatly. There is a large spectrum of possible POBRA claims, and whether the Claims Act applies depends entirely on the action's primary purpose. For example, the Lozada court expressly recognized an officer's writ petition seeking primarily reinstatement of employment or similar declaratory relief, and backpay as a form of incidental damages, will not be subject to the Claims Act. (Lozada, supra, 145 Cal.App.4th at p. 1166; Eureka Teacher's Assn., supra, 202 Cal.App.3d 469.) On the other end of the spectrum, a lawsuit that primarily focuses on recovering actual damages and civil penalties, with ancillary claims for injunctive and declaratory relief, would be covered by the Claims Act. (Lozada, supra, 145 Cal.App.4th at p. 1166; Loehr, supra, 147 Cal.App.3d 1071.)
In the Lozada case, the appellate court determined the plaintiff's claim was on the end of the spectrum primarily seeking actual damages. In that case, a peace officer filed an action seeking damages and civil penalties in addition to declaratory and injunctive relief for POBRA violations against his employer the City and County of San Francisco in connection with its investigations into the officer's discharge of his weapon at an oncoming vehicle. Plaintiff also alleged violations of his constitutional rights under 42 U.S.C. section 1983, and violations of the California Fair Employment and Housing Act. (Lozada, supra, 145 Cal.App.4th at pp. 1147-1148.)
Specifically with respect to his POBRA claim, the plaintiff in Lozada sought injunctive relief, backpay, general damages, $25,000 civil penalties for each of the 13 POBRA violations, punitive damages, and prejudgment interest. (Lozada, supra, 145 Cal.App.4th at p. 1148.) The trial court granted defendant's summary judgment motion with respect to the POBRA claim, on the ground plaintiff had failed to comply with the notice requirements of the Claims Act. (Id. at p. 1147.)
On appeal, plaintiff argued the notice requirements did not apply because he sought injunctive relief in connection with his POBRA claim, and his claim for damages was "incidental" to the primary injunctive relief sought. (Lozada, supra, 145 Cal.App.4th at p. 1147.) The appellate court rejected that argument, explaining "we are aware of no case that holds that civil penalties of the type sought here ($25,000 per incident) and actual damages that are the primary relief sought and not merely 'incidental' to injunctive or other extraordinary relief, do not constitute a claim for 'money or damages' in the first instance." (Lozada, supra, 145 Cal.App.4th at pp. 1163-1164.)
After discussing the legislative history of POBRA, the court concluded the "Legislature never indicated an intent to exempt POBRA actions from the . . . Claims Act filing requirements." (Lozada, supra, 145 Cal.App.4th at p. 1157.) The court concluded that with the 2002 amendment to section 3309.5 of the POBRA (that added civil penalties and actual damages), the Legislature also changed the indemnity provisions of the statutory scheme because it anticipated the amendment would create additional liability for the public entity under the Claims Act. "The failure to carve out an exception to the claim filing requirements of the . . . Claims Act indicates the requirements operate as usual where a claim for money or damages is made under POBRA." (Lozada, supra, 145 Cal.App.4th at p. 1158.)
The court acknowledged an officer has a right to proceed to court before punitive action is taken by the employer and concluded he or she would not be required to delay his or her claim by complying with the Claims Act after punitive action is taken. "A public safety officer has the right to seek judicial relief for alleged procedural violations of POBRA occurring before imposition of discipline or any punitive action is taken. Such judicial relief will usually take the form of a petition for writ of mandamus or an action for injunctive or declaratory relief. In such circumstances, because the officer is not usually seeking money or damages at that point, the claim presentation requirements of the . . . Claims Act will not apply. However, where the public safety officer's action also seeks 'money or damages' as the primary relief, we see nothing in the language of the statute or the legislative history inconsistent with a requirement that the public safety officer comply with the claim presentation requirements of the . . . Claims Act before seeking those money damages." (Lozada, supra, 145 Cal.App.4th at p. 1159, fn. omitted.)
The court clarified what POBRA claims were for "money or damages" within the meaning of the Claims Act. First, it acknowledged attorney fees requests were not subject to the claim filing requirement. "When authorized by statute, awards of attorney fees are defined as costs, not damages." (Lozada, supra, 145 Cal.App.4th at p. 1160.)
Next, the court concluded POBRA's section 3309, subdivision (e), gives the court power "to provide a civil penalty and actual damages as part of its equitable relief." (Lozada, supra, 145 Cal.App.4th at p. 1161.) The court concluded the $25,000 civil penalty provided by section 3309.5 is not merely a regulatory remedy, but must be considered damages subject to the filing requirements of the Claims Act. (Id. at pp. 1161-1162.) Similarly, the court determined the officer's claim for actual damages, including backpay and vacation time, constituted "money or damages" within the meaning of the Claims Act. The court recognized there appeared to be a split of authority over whether money damages that may be incidental to a claim for equitable relief were subject to the claim filing requirements. However, it did not analyze those cases because it concluded "we are aware of no case that holds that civil penalties of the type sought here ($25,000 per incident) and actual damages that are the primary relief sought and not merely 'incidental' to injunctive or other extraordinary relief, do not constitute a claim for 'money or damages' in the first instance." (Id. at pp. 1163-1164.)
Finally, the court acknowledged the body of case law awarding "backpay and benefits as incidental to the injunctive and declaratory relief of employment or reinstatement sought in an action for mandamus or for injunctive relief, and therefore exempt from the claim filing requirements of the . . . Claims Act." (Lozada, supra, 145 Cal.App.4th at pp. 1164-1165.) It also recognized one case authorizing backpay as a form of extraordinary relief for POBRA violations before section 3309.5 was amended. (Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837, 844-845 (Henneberque)[the term "other extraordinary relief" permitted under POBRA includes writs of mandate, and a writ of mandate is appropriately used to award backpay].) It distinguished those cases on the grounds reinstatement or other injunctive relief was not the primary purpose of the action filed by the officer in Lozada. "To the extent that Henneberque, supra, 172 Cal.App.3d 837, holds that backpay constitutes extraordinary relief under POBRA, it may be that a particular claim for backpay, attached to a writ petition seeking primarily reinstatement or similar injunctive and declaratory relief would not be subject to the . . . Claims Act. But we need not make that determination in this case as we believe our decision in [Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744], fully supports the trial court's determination that the monetary relief sought by [the officer] was not 'incidental' to the injunctive and extraordinary relief he sought, but was the primary relief sought in the action." (Lozada, supra, 145 Cal.App.4th at p. 1166.)
The Lozada court explained the officer's claim for damages and civil penalties "were the primary focus of his action" because "the record does not indicate that he had any 'transcendent interest' in injunctive or declaratory relief, beyond his ability to obtain civil penalties and actual damages if the court found the department to have acted with 'malice.' [The officer] was never suspended and so did not seek reinstatement. Nor did he specifically seek reassignment or transfer through a mandamus action or in his prayers for injunctive and declaratory relief . . . ." (Lozada, supra, 145 Cal.App.4th at pp. 1168-1169.)
The Lozada court calculated the officer sought money and damages, including civil penalties amounting to $325,000. The court reasoned, "Unlike writ proceedings where incidental monetary relief may be awarded in the exercise of the court's power to give extraordinary relief, the aim of [the officer's] POBRA cause of action was recovery of money damages. Although they argue that monetary relief and damages are always and necessarily incidental to injunctive and other extraordinary relief in all POBRA actions, neither [the officer] nor amicus curiae . . . makes the argument that in this case [the officer's] specific claims for monetary relief and damages were merely incidental to his claims for declaratory and injunctive relief. Indeed, in his opening brief, [the officer] 'stipulate[ed]' for the purposes of argument that he prayed for 'primarily, money or damages, while [his] claims for declaratory/injunctive relief were merely incidental.'" (Lozada, supra, 145 Cal.App.4th at p. 1170.) In comparing the Lozada officer's lawsuit and Wilson's second action, it is clear Wilson is not seeking redress for a POBRA violation. Wilson is seeking payment of accrued wages.
The County maintains Wilson's wage dispute is related to his reinstatement (the remedy he sought based on a claim raised in the first action). The trial court agreed with this theory, concluding Wilson's claim was "originally from an action that centered around a claim he was wrongfully terminated. Thus, his claim is effectively one for damages, and he was not excused from complying with . . . section 905." In the supplemental briefing, the County reasserts the argument Wilson's wage dispute is "connected to reinstatement demands" and therefore not exempt from the Claims Act. However, we noticed the County's theory of a "connection" is completely abandoned in its responses to several questions we posed for supplemental briefing about whether the second action could be considered a continuation of the first action to apply principles of waiver and equity. In essence, we questioned whether the Claims Act applied in the first action, and if it did not, should it apply in the second action given the County's assertion there is a connection.
In supplemental briefing, the County forcefully asserts we need look no further than the arguments raised in the respondent's brief and it restates those arguments in detail in case we did not understand them the first time. It suggests any "alternative theories [being] explored" by this court would be improper because we cannot decide the case based on a theory not raised by Wilson in the trial court. We remind the County our review is de novo. "[W]e examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose." (McCall, supra, 25 Cal.4th at p. 415, italics added.) It appears we also need to remind the County . . . section 68061 provides that this court has a duty to allow supplemental briefing before it renders a decision based on an issue that was not proposed or briefed by any party.
Before addressing the issue of waiver based on the trial court's theory the actions are connected, we wish to clarify why we have reached the conclusion the actions should not be treated as related. To treat the second action as a continuation of the first we would have to overlook Judge Yaffe's rulings at the conclusion of the first action. In the end, Judge Yaffe simply confirmed Wilson was back on the County's payroll earning wages and it ordered the County to calculate the amount of backpay owed to Wilson. Judge Yaffe did not award Wilson a particular sum of damages representing merely potential wages or civil penalties arising from a wrongful termination claim. The case was concluded with Wilson having secured the injunctive relief of vacating the discharge. Judge Yaffe recognized he would have no jurisdiction if the parties later engaged in an employment wage dispute, and he advised the parties this sort of litigation would require a "new action." In short, Wilson's POBRA violation claim was fully resolved and did not spill over to his second action.
Additional evidence in the record supports our conclusion there is no basis to engage in the legal fiction the two actions should be treated as one. Very telling is the County's response to the judgment entered in the first action that impliedly recognized the POBRA case was over and remanded for the County to deal with how much to pay its employee. As noted in the prior appellate decision, rather than seeking clarification of that judgment or filing an appeal to permit retroactive termination, the County "chose to game the system by backdating an amended discharge order . . . hoping it would fly." (Wilson I, supra, G040875.) This ill-advised tactic was viewed by both the trial court and this court as an underhanded attempt to avoid paying Wilson salary and benefits. After losing on appeal, the County's second response was to pay Wilson a reduced amount of owed wages (representing nine months of employment after the December 2002 discharge was vacated). The reason the County was able to engage in such calculations is because the first action did not award Wilson specific damages incidental to "reinstatement" of employment. It awarded him the injunctive relief of vacating the discharge, which de facto restored him to continuing employment. Wilson's second lawsuit seeks redress for a completely different wrong. Wilson alleges the County has miscalculated the wages and benefits owed from December 30, 2002, to the date of his termination in 2010. As aptly stated by the County (albeit in response to the issue of waiver), the two lawsuits "are fundamentally different."
D. Wilson's First Petition and Waiver of the Claims Act.
The County asserts we must view the request for wages and benefits in Wilson's second petition as merely a continuation of damages requested in Wilson's first petition incidental to the POBRA violation claims. As explained above, there are numerous reasons why not to treat the two actions as one. However, even if we were to conclude the wage dispute was part of the damages requested in the first petition, we would still reverse the trial court ruling sustaining the demurrer without leave to amend. Wilson could amend his complaint to allege the Claims Act does not apply, or if it did apply, compliance with the Claims Act requirements was waived by the County's failure to raise the issue prior to judgment being entered.
Before we begin our analysis, we will take judicial notice of several documents filed in Wilson's first action (case No. 01CC06179), including Wilson's original petition for writ of mandate dated May 11, 2001, Respondents' answer dated June 11, 2001, and Wilson's amended supplemental verified petition for writ of mandate deemed filed by the trial court on August 8, 2003. (Cal. Rules of Court, rule 8.155(a).)
We had contemplated augmenting the record with Judge Yaffe's July 26, 2010 order (mistakenly referred to in our order as the September 26, 2010 order), but have determined augmentation is unnecessary because it is included as an attachment to another document already deemed part of our appellate record.
On October 24, 2012, we notified the parties of our intent to augment the record to include these documents based on the arguments raised on appeal that the second action was simply a continuation of the first action. Upon further reflection, we conclude the more appropriate avenue for us to consider the documents is to take judicial notice of them because we have deemed the two actions to be entirely independent of one another. (Evid. Code, § 452, subd. (d) [judicial notice may be taken of records of any court of this state].) Moreover, we find no merit to the County's written objection to this court considering the documents. It asserted: (1) the documents were not before the trial judge when it ruled on the demurrer; (2) the material was irrelevant; (3) the selection was incomplete; and (4) Wilson waived any arguments relating to the first action. How can the documents relating to the allegations and remedies sought in the first action be irrelevant when it is the County's primary argument Wilson's backpay claim arose from those allegations and remedies (reinstatement)? And although the documents may not have been physically before the trial judge, it cannot be overlooked the court referred to the first action as being one for wrongful termination and relied on the allegations in the first action when it concluded the Claims Act applied to the second action. Finally, because our review of the trial court's ruling is de novo, we may take judicial notice of the documents we deem relevant and necessary for resolving this appeal.
Returning to the issue at hand, we have determined Wilson's first petition for writ of mandate (filed in 2001) requested only injunctive relief. Specifically, Wilson requested an order directing the County to provide Wilson with an administrative appeal. Clearly, the primary purpose was nonpecuniary relief. The Claims Act would not apply to this petition.
Wilson's amended petition, filed in 2003 following his discharge from employment, requested injunctive relief as well as related damages and civil penalties for many alleged violations of POBRA (numerous purported violations were unrelated to his discharge). Wilson asserts that if his current petition must be deemed a request for actual wrongful termination damages, the wage request was incidental to his request for reinstatement in the first petition and, therefore, does not fall within the preview of the Claims Act. He contends it is well settled that when the primary purpose of a petition for writ of mandate is reinstatement of employment, the claim for backpay may be deemed incidental to the injunctive relief requested. (See Lozada, supra, 145 Cal.App.4th at p. 1166; Eureka Teacher's Assn., supra, 202 Cal.App.3d 469.)
Eureka Teacher's Assn., supra, 202 Cal.App.3d 469, is instructive. In that case a teacher and a teacher's association sought a writ of mandate ordering the Board of Education of the Eureka City Schools (the Board) to employ a teacher with retroactive probationary status, although the teacher was formally classified as a substitute. The teacher's association also sought backpay and fringe benefits for the teacher. The trial court granted a writ of mandate requiring the Board to employ the teacher but denied the claim for backpay and fringe benefits on the basis this claim was for damages and required adherence to the claim presentation requirements of the Claims Act. (Id. at p. 472.)
The appellate court reversed the judgment, ruling the request for money damages was incidental to the mandamus action, and the claim was not one for money or damages under the Claims Act. (Eureka Teacher's Assn., supra, 202 Cal.App.3d at p. 475.) The court, relying on Harris v. State Personnel Bd. (1985) 170 Cal.App.3d 639, 643 (Harris),and Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 870 (Snipes),stated, "'Those actions which seek injunctive or declaratory relief and certain actions in mandamus, . . . and where money is an incident thereto, are exempted from the statute.' [Citation.] The court in Harris held that a state employee's mandamus action for reinstatement and backpay was not a claim for money or damages subject to the . . . Claims Act: 'Back salary was clearly relief incidental to appellant's request for an order of reinstatement to his employment. His mandamus action, therefore, is not subject to demurrer for failure to comply with the . . . Claims Act.' [Citations.] [¶] Similarly, the court in Snipes . . . held that an action for injunctive relief and other remedies as redress for employment discrimination was not subject to the claim presentation requirements of the . . . Claims Act merely because backpay and [$1 million in] punitive damages were sought. '[A]n action for specific relief does not lose its exempt status solely because incidental money damages are sought. . . . Backpay clearly is specific monetary relief incidental to the requested orders that appellant be hired and that respondents be enjoined from discriminating against him.' [Citation.] [¶] [The teacher's] case is indistinguishable from Harris and Snipes. She sought backpay and fringe benefits as an incident to her request for reemployment. Thus her mandamus action was not within the scope of . . . section 905. The court erred in ruling otherwise." (Eureka Teacher's Assn., supra, 202 Cal.App.3d at p. 475, fn. omitted.)
Harris was disapproved on other grounds in Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1123, fn. 8.
The County correctly points out any cause of action for nonpecuniary relief must be viewed in light of the complaint as a whole. (Loehr, supra, 147 Cal.App.3d 1081-1082.) Wilson's first writ petition (as amended in July 2003) sought: (1) a finding the County violated the provisions of the POBRA; (2) injunctive or other extraordinary relief with respect to those POBRA violations (which may include backpay under Henneberque, supra, 172 Cal.App.3d 837, 844 [writ of mandate ordered backpay benefits as extraordinary relief].); (3) a hearing on damages pursuant to Code of Civil Procedure section 1095 [damages and costs may be awarded in mandamus proceedings]; (4) an award of attorney fees and costs pursuant to . . . section 3309.5, subdivision (d) [POBRA], or Title 42 U.S.C. section 1988 [proceedings in vindication of civil rights]; (5) an award of treble damages pursuant to Labor Code section 1050 [provides blacklisting is a misdemeanor and Labor Code section 1054 authorizes treble damages in a civil action for a violation of Labor Code section 1050]; (6) to issue a declaration Wilson's free speech rights were violated; and (7) a stay of Wilson's administrative appeals.
Labor Code section 1050 states: "Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor."
As described in Lozada, supra, 145 Cal.App.4th at page 1173, officers making POBRA claims requesting significant monetary awards must comply with the . . . Claims Act. Based on the language of Wilson's amended petition in the first action, it plainly appears he intended to request a significant monetary award in addition to vacating the discharge from employment under POBRA. Based on the allegations seeking a massive amount of actual damages and statutory penalties, the Claims Act would have applied.
That being said, there are two factors that were not present in Lozada, or for that matter in any other case we have reviewed applying the Claims Act, that we must take into consideration. First, despite what was pled in the petition, it appears from the record Wilson abandoned his requests for extra damages and civil penalties. When the final judgment was rendered, the court awarded Wilson injunctive relief (the discharge was vacated and the matter remanded). Thus, any perceived lingering claim for backpay must be deemed incidental to the injunctive relief actually obtained. The first action was nonpecuniary and the Claims Act would not apply to an incidental claim for wages. (See Eureka Teacher's Assn., supra, 202 Cal.App.3d at p. 475.)
In the alternative, if we were to conclude the Claims Act applied to the first action, principles of equity would require us to apply the doctrine of waiver in the second action. Contrary to the County's assertion in supplemental briefing, the claim filing requirement under the Claims Act is not jurisdictional and therefore must be timely raised. (See State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239, fn. 7; see also Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 281 [issue of compliance cannot be raised for first time on appeal when issue may not be determined as a matter of law on record with disputed facts].) "Because compliance [with the Claims Act] is an essential ingredient of a plaintiff's cause of action, the entity's failure to demur or plead noncompliance in the answer does not necessarily preclude it from asserting the issue later by a motion for summary judgment or some other appropriate step. [Citations.] The entity's failure to timely raise the issue before or at trial [citation], or to preserve it in the pretrial order if mandatory pretrial proceedings are held, may arguably remove it from the case, and in a procedural sense, constitute an effective waiver." (Van Alstyne, supra, § 5.78, p. 230; Toscano v. County of Los Angeles (1979) 92 Cal.App.3d 775, 783 [issue of substantial compliance with claim filing statutes will be raised in form of demurrer to the complaint, motion for summary judgment or nonsuit, motion for judgment on the pleadings, or motion to strike].)
In the case before us, the parties agreed Wilson did not comply with the Claims Act's filing requirements. The County does not contend it raised the issue of noncompliance anytime before judgment was entered after litigation of Wilson's first action. In light of the County's assertion Wilson's current petition seeks damages incidental to "reinstatement" obtained in the first action, it would be inequitable to permit the County at this late date to invoke the rules requiring compliance with the Claim's Act. The time for raising this defense has long since passed. Wilson should be given leave to amend to allege compliance with the Claims Act was waived, if not exempt, by section 905, subdivisions (c) [wages] and (f) [benefits].
We wish to make clear we are merely restating the County's argument and incorrect use of the term reinstatement. As described above, the first action did not result in the remedy of reinstatement as used in wrongful termination cases. The wholly nonpecuniary relief granted in the first action was vacating the discharge from employment.
E. Other Grounds Raised in the Demurrer
The County argues Wilson's second action fails to state a cause of action due to the following defects: (1) The writ petition fails because it seeks a discretionary act of issuing backpay and Judge Yaffe never made a particular award of backpay under POBRA that can be enforced; (2) the claim for declaratory relief lacks merit, it is derivative of the defective request for a writ of mandate, and it is barred by res judicata; and (3) the breach of contract claim lacks merit and is barred by res judicata.
As for the petition for a writ of mandate, we find the County's argument lacks merit. The County asserts the damage award of backpay under POBRA requires the trial court to exercise discretion, including a determination of the duration. It notes Judge Yaffe made no such award and instead ordered the County to determine the correct amount of backpay. This argument only adds further support for our conclusion stated earlier in this opinion that Wilson's current petition merely seeks backpay accumulated for his term of employment (exempted from the Claims Act), and not as part of a claim for wrongful termination damages or for a POBRA violation raised in the first petition. Judge Yaffe never ordered the County to pay Wilson damages for wrongful termination. It ordered Wilson's termination vacated and for the County to pay Wilson wages owed. Wilson's petition stated employed officers and the County have a MOU regarding pay and benefits due to employees.
The County makes the related argument Judge Yaffe's failure to make a particular award of backpay left nothing for the trial court to enforce by mandamus. True, Wilson's current petition cannot be construed as an action to enforce a prior monetary award or judgment. It is a dispute over the amount of wages due to Wilson, the exact type of employee wage claim Judge Yaffe authorized for litigation in a separate action.
--------
"The usual remedy for failure of an employer to pay wages owing to an employee is an action for breach of contract; if that remedy is adequate, mandate will not lie. (See Elevator Operators etc. Union v. Newman (1947) 30 Cal.2d 799, 808, and cases there cited.) But often the payment of the wages of a public employee requires certain preliminary steps by public officials; in such instances, the action in contract is inadequate and mandate is the appropriate remedy. (See Tevis v. City & County of San Francisco (1954) 43 Cal.2d 190 (mandate to compel officials to approve payroll); Ross v. Board of Education (1912) 18 Cal.App. 222 (mandate to compel officials to approve payment); cf. Flora Crane Service, Inc. v. Ross (1964) 61 Cal.2d 199 (mandate to compel controller to certify that funds have been appropriated).)" (Glendale, supra, 15 Cal.3d at p. 343.) Our Supreme Court stated in Coan v. State of California (1974) 11 Cal.3d 286, 291: "Although a claim for payment of salary is in effect a money claim, mandamus is a proper remedy where the dispute concerns the proper construction of a statute or ordinance giving rise to the official duty to pay the salary claim."
Here, payment of Wilson's salary requires obtaining the official cooperation to implement the salary agreed upon in the MOU. Stated another way, Wilson's writ does not seek a different or discretionary rate of pay, but rather asks the court to direct the non-legislative and ministerial acts of computing and paying Wilson's salary as fixed by the MOU. "The use of mandamus in the present case thus falls within the established principle that mandamus may issue to compel the performance of a ministerial duty or to correct an abuse of discretion." (Glendale, supra, 15 Cal.3d at p. 344, fns. omitted.)
Harris, supra, 170 Cal.App.3d 639, is instructive. That case concerned an employee who gained reinstatement after being terminated and who filed a supplemental petition for mandamus seeking an order of backpay. (Id. at p. 643.) The court held the employee "seeks no damages for tortious conduct. He seeks payment for services he was to have rendered and wages he would have earned but for his involuntary discharge and the long delay before reinstatement." (Ibid.) The court ruled, "Back salary was clearly relief incidental to appellant's request for an order of reinstatement to his employment." (Ibid.)The employee was permitted to bring his claim in mandamus.
As noted, breach of contract is the usual remedy for failure of an employer to pay wages to an employee. We see no harm in permitting Wilson to plead it as an alternative theory of recovery. The County asserts the breach of contract action lacks merit because the terms of public employment are dictated by statute, not by contract. It relies on cases such as Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684 (Hill),and Miller v. State (1977) 18 Cal.3d 808 (Miller),to support this argument. While it is true the terms of public employment are generally governed by statute that principle does not apply here. Miller and Hill both involved breach of contract claims based upon termination of employment. The California Supreme Court has clarified that statutes (and not contracts) control decisions to terminate public employees. (See Miller, supra, 18 Cal.3d at p. 813 ["[I]t is well settled in California that public employment is not held by contract but by statute and that, insofar as the duration of such employment is concerned, no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law"].) The cases regarding termination and the calculation of those damages are factually distinguishable and inapt to the case before use concerning an employee seeking payment of accrued wages.
The County attempts to argue the breach of contract claim must fail "for the separate and distinct reason" Wilson was not an employee during the time period of the MOU. The County notes neither the judgment nor the writ of mandate from the first action determined Wilson was effectively employed by the County from 2003 to 2011. The County asserts Judge Yaffe denied Wilson's request for an order he be reinstated, which "confirms the [c]ourt did not consider him effectively employed during the 2003 to 2010 time period." We have carefully read Judge Yaffe's order and judgment, and we reach a different conclusion.
Judge Yaffe denied Wilson's request for an order he be reinstated because, as stated in the order, the court accepted the County's representation Wilson had already been reinstated with pay! Moreover, it is undisputed Judge Yaffe ordered the County to vacate its decision terminating Wilson's employment in 2002. There is no reason or legal basis to hold Wilson's employment has not been continuous since 2003. Indeed, it appears the County certainly considered Wilson de facto employed when it initially attempted to backdate a second discharge notice to avoid paying wages. Moreover, the County has already paid Wilson the equivalent of nine months of wages and this lawsuit simply concerns whether he is entitled to more.
The County asserts Wilson's claims for declaratory relief and breach of contract are barred under principles of res judicata. It explains all available relief relating to his 2002 discharge was obtained through Judge Yaffe's writ of mandate. The County maintains Judge Yaffe denied Wilson's request for wages and full benefits since December 2002. Wilson's request for declaratory relief regarding backpay and his breach of contract claim seeking wages and benefits is essentially making the same request in a different action. We find this argument blatantly disingenuous. Judge Yaffe did not deny Wilson's request for backpay. The July 26, 2010 minute order provides Wilson's motion for an order compelling reinstatement and backpay (from December 30, 2002, to date of reinstatement) is granted in part and denied in part. Based on the County's representation Wilson has already been "reinstated with pay," the court denied Wilson's request for an order for reinstatement. However, Judge Yaffe granted Wilson's request the County "determine the amount of backpay, if any, due to [Wilson.]" It gave the County 90 days to determine the amount owed. It expressly advised the parties it would not retain jurisdiction to resolve any dispute as to the amount of backpay and that wage claim "is to be sought in a new case." And given the trial court's clear statement inviting Wilson to file a new case, we conclude the principles of res judicata do not apply.
Finally, the County argues Wilson's breach of contract action is barred by the doctrine of exhaustion of administrative remedies. It explains Wilson's claim is based on the breach of a MOU, a collective bargaining agreement, requiring exhaustion of remedies. At this stage of the proceedings, and based on our limited record, we conclude Wilson should be granted leave to amend the claim to discuss what steps if any he has taken to go through the grievance and arbitration process or whether the doctrine applies given the current status of his claim.
III
The judgment is reversed and remanded for further proceedings. Wilson shall recover his costs on appeal.
O'LEARY, P. J. WE CONCUR: RYLAARSDAM, J. FYBEL, J.