City of Los Angeles v. Superior Court for Los Angeles County

• Court: California Court of Appeals
• Writing for the Court: McCOY; FOURT, Acting P.J., and LILLIE
• Citation: City of Los Angeles v. Superior Court for Los Angeles County, 54 Cal.Rptr. 442, 246 Cal.App.2d 73 (Cal. App. 1966)
• Decision Date: 02 November 1966
• Parties: CITY OF LOS ANGELES, Petitioner, v. SUPERIOR COURT FOR and COUNTY OF LOS ANGELES, Respondent; Frank HECKL, Real Party in Interest. Civ. 30872.

Page 442

54 Cal.Rptr. 442

246 Cal.App.2d 73

CITY OF LOS ANGELES, Petitioner, v. SUPERIOR COURT FOR and COUNTY OF LOS ANGELES, Respondent Frank HECKL, Real Party in Interest.

Civ. 30872.

District Court of Appeal, Second District Division 1, California.

Nov. 2, 1966.

Hearing Denied Dec. 27, 1966.

Roger Arnebergh, Bourke Jones, and Jack L. Wells, Los Angeles, for petitioner.

No appearance for respondent.

Burton Marks and Harvey A. Schneider, by Harvey A. Schneider, Beverly Hills, for plaintiff and real party in interest.

McCOY, Justice pro tem. ^*

Petitioner, the City of Los Angeles, seeks a writ of prohibition requiring the Superior Court of Los Angeles to desist from any further proceedings in the action now pending in that court entitled Frank Heckl v. H. W. Sullivan etc., et al.

On February 20, 1964 Frank Heckl, a police officer employed by the City of Los Angeles, was informed by his superior officers that a complaint would be filed against him pursuant to section 202 of the Los Angeles City Charter charging him with an offense warranting disciplinary action. On being so informed, Heckl resigned in lieu of facing such action. On May 31, 1966 Heckl filed an action in the respondent court against the then acting chief of police and the city seeking a declaration of his right to rescind his resignation, to be restored to his former position as a police officer, and to recover compensation for loss of salary from the date of his resignation to the date of his reinstatement.

The defendant city answered and noticed a motion to dismiss the complaint and for summary judgment on the ground that Heckl had failed to exhaust his administrative remedies before filing the complaint. The motion was denied on July 13, 1966. The city then filed its petition which is now before us.

The city contends that the respondent court has no jurisdiction to entertain the subject action for the reason that Heckl did not exhaust his administrative remedies provided in section 112 1/2 of the Los Angeles City Charter before filing his complaint. That section reads: 'Whenever it is claimed by any person that he has been unlawfully suspended, laid off or discharged, and that such lay-off, suspension or discharge is ineffective for any reason, any claim for compensation must be made and a demand for reinstatement must be presented in writing within ninety days following the date on which it is claimed that such person was first illegally, wrongfully or invalidly laid off, suspended or discharged. Such demand for reinstatement must be filed with the Board of Civil Service Commissioners and such claim for compensation for such allegedly wrongful, illegal or erroneous discharge must be filed with the City Clerk. Failure to file such demand for reinstatement within the time herein specified shall be a bar to any action to compel such reinstatement and proof of filing such a demand for reinstatement must be completed and proved a condition precedent to the maintenance of any action for reinstatement. Proof of filing the claim for compensation within the time and in the manner herein specified shall be a condition precedent to any recovery of wages or salary claimed to be due on account of said lay-off, suspension or discharge. Except as herein specified, such claims for compensation shall conform to the requirements of Sections 363, 369 and 376 of this charter.'

It appears from the record before us that Heckl's resignation as a police officer was submitted on February 20, 1964. The declarations filed in support of the motion for summary judgment show that Heckl's only demand for reinstatement was filed with the Civil Service Commission on November 15, 1965, and no claim for compensation was filed with the city clerk at any time from February 20, 1964 to June 10, 1966.

Petitioner is entitled to the relief it here seeks. '(T)he rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.' Compliance with this rule is 'a jurisdictional prerequisite to resort to the courts,' and prohibition is the proper remedy when the rule is not enforced by the trial court. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292-- 293, 109 P.2d 942, 949--950, 132 A.L.R. 715.) 'The rule of exhaustion of administrative remedy applies even though the action be for declaratory relief.' (Dunham v. City of Westminster, 202 Cal.App.2d 245, 249--250, 20 Cal.Rptr. 772, 775.)

It was settled in Moreno v. Cairns, 20 Cal.2d 531, 534--535, 127 P.2d 914, 916 that '(w)henever a person is severed from his employment by coercion the severance is effected not by his own will but by the will of a superior. A person who is forced to resign is thus in the position of one who is discharged, not of one who exercises his own will to surrender his employment voluntarily.' The petitioner in Moreno claimed that he was forced to resign from his position as an assistant chief of the Los Angeles Fire Department under duress. He did not petition the Board of Fire Commissioners for reinstatement until about a year after his resignation. In affirming a judgment for defendant in his subsequent proceeding in the trial court for a writ of mandate to compel his reinstatement, the court said: 'By his own allegations his severance from his position was a resignation in name only, and he seeks reinstatement on the ground that it was in effect not a resignation. His failure to comply with the conditions of section 112 1/2 (of the Los Angeles City Charter) governing demands for reinstatement compels him to advance his involuntary severance of employment as a resignation exempt from those conditions. He cannot escape from the dilemma, however, that the coercion attending his nominal resignation, while affording him a ground for reinstatement, also identifies that resignation as an actual involuntary severance from employment tantamount to an unlawful discharge within the meaning of section 112 1/2 of the city charter. A demand for reinstatement following severance from employment under such circumstances must therefore meet the conditions of that section.'

In Temple v. Horrall, 92 Cal.App.2d 177, 179, 206 P.2d 909 plaintiff brought suit to have his resignation as a Los Angeles police officer declared of no force or effect because he had resigned under the coercion of his superior officer. 'There is no essential difference,' said the court, 'between the facts in Moreno v. Cairns, supra (20 Cal.2d 531, 127 P.2d 914), and those in the present case. Therefore, since plaintiff did not plead a compliance with section 112 1/2 of the charter, he failed to state a cause of action and the trial court properly sustained defendants' demurrer without leave to amend.' Similarly, in Varela v. Board of Police Commissioners, 107 Cal.App.2d 816, 238 P.2d 62 the court, following the decision in Moreno, held (p. 820, 238 P.2d p. 65) 'that compliance with section 112 1/2 was a prerequisite to the maintenance of the present action, although the Board of Civil Service Commissioners has no jurisdiction to reinstate or refuse to reinstate a member of the police or fire departments who has been suspended or discharged.'

Varela is also authority for the rule that one seeking reinstatement in public employment 'must act promptly in the prosecution of his claim. Diligence, of course, is related to the circumstances of the case.' The court there held that there had been a failure of petitioner 'to prosecute his claims with the diligence which the circumstances demanded.' In reaching that conclusion the court considered the fact that, because of the delay, the time had expired for the filing of disciplinary charges against Varela and for a hearing before the board of rights pursuant to section 202 of the Los Angeles City Charter.

In his opposition to the petition Heckl contends that section 112 1/2 of the city charter is inapplicable to police officers by reason of subdivision (b) of section 112 of the charter ¹; that because the Civil Service Commission has no jurisdiction with respect to the removal or reinstatement of members of the police department, it would be an idle act to require compliance with section 112 1/2; that the cases upon which petitioner relies failed to take into consideration the provisions of subsection (b) of section 112; and that subsection (16) of section 202 ² sets forth the manner in which a police officer removed from the force can seek reinstatement and provides for a three year period for the prosecution of a petition for reinstatement, which provision would be meaningless if a police officer is denied the right to apply for reinstatement for failure to comply with the ninety day requirement of section 112 1/2. We find no merit in these contentions.

With regard to Heckl's contentions, it is our conclusion that the cases of Varela and Temple properly followed the Moreno decision and were correctly decided. (In each case a hearing by the Supreme Court was denied.) The applicability of section 112 1/2 does not depend upon the method of prosecuting charges against an employee but, rather, upon the nature of the claim made by the employee after his discharge. The crucial holding of these cases is that section 112 1/2 applies to any civil service employee, including a policeman and a fireman, who claims that he has been unlawfully suspended, laid off or discharged. Although in Moreno, Varela and Temple there was an alleged coerced or involuntary resignation which was held to be tantamount to an unlawful discharge, the police officer in Stoker v. Bowron, 129 Cal.App.2d 671,...