Summers v. City of Cathedral City

• Citation: 275 Cal.Rptr. 594,225 Cal.App.3d 1047
• Decision Date: 29 November 1990
• Docket Number: No. E006933,E006933
• Court: California Court of Appeals
• Parties: Sidney E. SUMMERS, et al., Plaintiffs and Appellants, v. CITY OF CATHEDRAL CITY, et al., Defendants and Appellants.

Page 594

275 Cal.Rptr. 594

225 Cal.App.3d 1047

Sidney E. SUMMERS, et al., Plaintiffs and Appellants, v. CITY OF CATHEDRAL CITY, et al., Defendants and Appellants.

No. E006933.

Court of Appeal, Fourth District, Division 2, California.

Nov. 29, 1990.

[225 Cal.App.3d 1052] John E. Fitzgerald & Associates, John E. Fitzgerald III and Morton Gollin, Palm Springs, for plaintiffs and appellants.

Law Offices of Martin J. Mayer, Long Beach, and Irving Berger, Los Angeles, for defendants and appellants.

OPINION

HOLLENHORST, Acting Presiding Justice.

INTRODUCTION

A former municipal employee brought an action for wrongful termination. After the trial court granted the motion of the City of Cathedral City for summary judgment, ¹ the City moved for an award of sanctions pursuant to Code of Civil Procedure section 128.5. ² That motion was denied.

The employee ("plaintiff") appeals from the judgment in favor of the City. The City cross-appeals from the denial of its motion for sanctions. The City also requests an award of damages pursuant to section 907, on the grounds that plaintiff's appeal is frivolous.

We affirm the summary judgment, finding that each of the four principal arguments raised by the City is a complete legal defense to one or more of plaintiff's four causes of action. We also affirm the order denying the City's motion under section 128.5, finding that the record does not indicate that the trial court abused its discretion in failing to award sanctions. Finally, we impose sanctions against plaintiff's counsel for prosecuting a frivolous appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are undisputed: Plaintiff was hired by the City in 1983, and by December of 1984 had risen to become the director of the City's department of building and safety. On September 30, 1986, in a meeting with the city manager and the head of the City's department of community development, plaintiff was told that he was terminated (hereinafter, the "first termination"), and was handed a check for all salary and vacation pay accrued by him through that date.

At the time of this purported termination, plaintiff was a regular, nonprobationary employee, and thus was entitled to notice and the right to respond prior to any termination of his employment, and to an evidentiary hearing subsequent to such a termination. Nevertheless, this announcement was without warning or prior notice.

In a written appeal, filed with the City's City Council ("Council") on October 7, 1986, plaintiff asserted that the summary termination had denied him his right to due process, and requested both reinstatement and, if necessary, a hearing. A hearing before the Council was set for a date in November 1986, but was subsequently postponed to sometime in December 1986.

On December 17, 1986, no hearing having been conducted, plaintiff filed a written claim with the City, as the required preliminary step to an action against a governmental entity. (Gov.Code, § 945.4.) The next day, December 18, the City sent plaintiff a letter which stated that, due to an administrative error in the manner in which he had been terminated in September, he was being reinstated as director. Enclosed with the letter were checks for the wages which plaintiff had accrued since the date of that first termination.

The letter was entitled "Notice of Proposed Disciplinary Action," and further advised plaintiff that, despite his reinstatement, it was still the City's intention to terminate him. Accordingly, the letter advised plaintiff of the charges against him, transmitted to him 177 pages of documentation upon which the charges were based, and invited plaintiff to respond to those charges, either orally or in writing, to the city manager by January 5, 1987. In the meantime, plaintiff was placed on administrative leave, with pay.

Plaintiff received the letter, negotiated the checks, and on January 3, 1987, requested, in writing, that the City grant him an additional 35 days in which to prepare his response. The City thereupon extended the deadline to January 12. When that date passed without plaintiff either requesting an oral conference or submitting a written response to the charges, the City warned plaintiff that he would be terminated on January 19 unless he notified the City that he desired the opportunity to respond to the charges prior to the imposition of discipline.

To accommodate settlement negotiations, that deadline was again extended to February 25. On February 23, plaintiff demanded a hearing before the Council to appeal the first termination, but made no response to the charges upon which the City was relying to justify the impending second termination. Accordingly, on March 5, 1987 the City sent a Notice of Termination to plaintiff, stating that since he had not responded to the charges against him, he had been terminated on February 25 ("second termination"). The letter included a check for all salary accrued through February 25, as well as notice of his right to appeal the second termination to the Council. Noting that plaintiff had already requested a hearing (in the February 23 letter, concerning the first termination), the letter concluded by promising that a date for an appeal hearing would be arranged shortly.

The Council heard the matter on April 13, 1987. Plaintiff, through his attorney, expressly declined to address the charges against him which had resulted in the second termination. Instead, he argued: that the first termination had been in bad faith and without due process; that his reinstatement was a "sham" because it had been coupled with notice of the City's intent to terminate him a second time, and thus had not cured the wrongful first termination; and that the charges against him were "trumped up" after the fact.

The Council, in written findings of fact and conclusions of law adopted June 17, 1987, addressed both the first and second terminations by determining: that the first termination had been "null and void," and had been "resolved" by the reinstatement of plaintiff with back pay; that the City had complied with the procedural requirements of Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774 in processing the second termination; that plaintiff had failed and refused to present any evidence to rebut the charges against him; that the charges had been substantiated; and that the second termination of plaintiff should be upheld. The decision also warned plaintiff that any judicial review of that decision must be initiated by filing a petition for a writ of mandate within 90 days of the date upon which the decision became final.

Plaintiff did not seek judicial review of the Council's decision by filing a petition for writ of mandate pursuant to section 1094.5; however, on March 31, 1987, two weeks before the hearing in front of the Council, he filed the instant action for wrongful termination.

Following numerous demurrers and the filing of the plaintiff's third amended complaint, the City moved for summary judgment on January 3, 1989. Plaintiff filed his own summary judgment motion on January 27, 1989. Both motions were heard on March 10, 1989, at which time the City's motion was granted, and plaintiff's motion was ordered off calendar as moot.

Ten days later, and before any judgment had been entered pursuant to the ruling on the summary judgment motion, plaintiff moved for reconsideration. Soon thereafter, the City moved for an award of sanctions pursuant to section 128.5, on the grounds that plaintiff's entire action had been "totally and completely without merit." Plaintiff retaliated with his own motion for sanctions, in which he contended that the City's motion was frivolous. In its responses to plaintiff's two motions, the City requested sanctions pursuant to section 447, to compensate it for the cost of preparing those oppositions.

The trial court denied the motion for reconsideration and the reciprocal motions for 128.5 sanctions, but did impose sanctions against plaintiff, pursuant to section 447, in the sum of $500 for both of his motions, for a total of $1000.

DISCUSSION

A. MOTION FOR SUMMARY JUDGMENT

1. Standard of Review

"The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c).)

When, as is the case here, a defendant is the moving party, it "is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) Thus, we must examine the record "to determine whether the defendant has conclusively established facts eliminating the liability pleaded against him, or whether plaintiffs have by their declarations of fact raised the existence of a triable issue of fact concerning the bar to liability asserted by defendant." (Brandlin v. Belcher (1977) 67 Cal.App.3d 997, 999, 134 Cal.Rptr. 1.)

The first step, therefore, is to identify the nature of the causes of action which the plaintiff asserts against the City.

2. Third Amended Complaint

Plaintiff's third amended complaint, to the extent that it survived the City's final demurrer, is pleaded as four separate causes of action: the first, third, fourth, and fifth. ³ The first, entitled simply "Wrongful Termination," appears to allege that his employment by the City was governed by an implied-in-fact contract to the effect that "his employment would not be terminated without prior notice, a right to a hearing and good cause," and that the first termination breached that agreement. ⁴ The third, entitled "Tortious Denial of Administrative Due Process," alleges that the first termination violated the City's own rules, that the reinstatement was a farce, and that the first termination and...