City of Ukiah v. Fones

• Decision Date: 04 February 1966
• Court: California Supreme Court
• Parties: , 410 P.2d 369 CITY OF UKIAH, Plaintiff and Respondent, v. George FONES, Defendant and Appellant. S. F. 21721.

Page 865

48 Cal.Rptr. 865

64 Cal.2d 104, 410 P.2d 369

CITY OF UKIAH, Plaintiff and Respondent, v. George FONES, Defendant and Appellant.

S. F. 21721.

Supreme Court of California, In Bank.

Feb. 4, 1966.

P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Henry M. Jonas and Albert E. Levy, San Francisco, for defendant and appellant.

Harold A. Irish, City Atty., for plaintiff and respondent.

MOSK, Justice.

The principal question presented on this appeal is whether a stipulation entered into by a discharged civil service employee, stating that if his discharge was wrongful he was entitled to back salary for the period prior to the filing of the complaint, may be deemed a waiver by him of all wages to which he would have been entitled for the period subsequent to that date and until reinstatement or retirement. As will appear, we have concluded that no such waiver may be implied and hence that the judgment must be reversed.

On June 9, 1959, at the age of 66, George Fones was summarily dismissed from his job as janitor at the City of Ukiah municipal library by the librarian and the library's board of trustees. The city council ordered his reinstatement on the ground that he was a civil service employee and had not been accorded the procedural safeguards prescribed by the civil service ordinance. The library board refused to comply, and on October 21, 1959, the city filed a declaratory relief action seeking to assert the jurisdiction of its civil service system over the library's employees. The defendants were the librarian, the library board, and Fones, the latter being a defendant in name only.

On January 20, 1960, apparently in order to expedite the litigation, a lengthy stipulation was entered into between the city, the librarian, the library board and Fones. The stipulation declared, inter alia, that Fones' dismissal was not in compliance with the city's civil service ordinance, that Fones was 'ready, able and willing' to perform the duties of the position, and that 'if said GEORGE FONES has been wrongfully denied a Civil Service position as janitor at said Library he is entitled to salary from the date of dismissal to the date of the filing of this Complaint minus what he earned or might reasonable (sic) have earned during said period.' (Italics added.)

The trial court first ruled that Fones was not a civil service employee of the city but served at the pleasure of the library board. On appeal, however, the judgment was reversed and Fones was held to be a civil service employee. (City of Ukiah v. Board of Trustees (1961) 195 Cal.App.2d 344, 15 Cal.Rptr. 811.)

The case then returned to the trial court for a determination of Fones' rights to back salary and to reinstatement. On the latter point the court found that Fones was not entitled to reinstatement because during the course of the litigation he had reached the mandatory retirement age of 70. On the salary issue, Fones argued that he was entitled to some $12,000 in arrearage for the three-and-a-half-year period from his wrongful dismissal until his attainment of retirement age. The court found, however, that because of the stipulation of January 20, 1960, Fones' recovery would be limited to $855.30, his salary for the four-month period between the date of dismissal and the filing of the city's complaint for declaratory relief, less appropriate offsets. In its memorandum opinion the trial court explained that 'It would appear' from the terms of the stipulation that in signing it Fones 'was giving up * * * any claim to back salary he might have' for the period following the filing of the complaint. Judgment was entered accordingly.

It is a well settled rule that a civil service employee who has been unlawfully deprived of his position is entitled to recover the full amount of the salary which accrued to him from the date of his unlawful discharge to the date of his reinstatement, less any amounts he earned or might reasonably have earned from other employment during that period. (Mass v. Board of Education (1964) 61 Cal.2d 612, 616, 39 Cal.Rptr. 739, 394 P.2d 579; Stockton v. Department of Employment (1944) 25 Cal.2d 264, 273-274, 153 P.2d 741.) The trial court held this rule inapplicable on its implied finding that by stipulating he was entitled to back salary 'to the date of the filing of this Complaint,' Fones must be deemed to have waived all wages to which he would have been entitled thereafter.

'Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts.' (Roesch v. De Mota (1944) 24 Cal.2d 563, 572, 150 P.2d 422, 426; accord, Church v. Public Utilities Com. (1958) 51 Cal.2d 399, 401, 333 P.2d 321; Henderson v. Drake (1953) 42 Cal.2d 1, 5, 264 P.2d 921.) The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and 'doubtful cases will be decided against a waiver' (Church v. Public Utilities Com. (1958) supra, 51 Cal.2d 399, 401, 333 P.2d 321, 323). This is particularly apropos in cases in which the right in question is one that is 'favored' in the law; and it is hardly necessary to cite more than a few relevant statutes (e. g., Lab.Code, §§ 200-300; Code Civ.Proc. §§ 1204-1206; Prob.Code, § 950; Gov.Code, § 45201, subd. (c)) to show the established policy of our Legislature of protecting and promoting the right of a wage earner to all wages lawfully accrued to him.

When these principles are applied to the case at bar, the city's showing of waiver appears insufficient as a matter of law. No evidence was introduced on the subject other than the stipulation itself. But that document speaks in affirmative terms of Fones' right to back salary for the specific period that had already elapsed, i. e., between the unlawful dismissal and the filing of the complaint; it says nothing whatever of denying his right to salary for the far more substantial period following the filing of the complaint. Yet if such a denial had been intended, nothing would have been simpler than to have so stated in the stipulation. To uphold the city's position it would be necessary to speculate on the motives that dictated the choice of language used in the stipulation. The parties offer us a variety of conflicting motives from which to choose. ¹ But we need not undertake to resolve these conflicts, for the very necessity of such speculation demonstrates that the city's proof of waiver is not 'clear and convincing' within the meaning of the cases cited above.

Directly in point is Estate of Coffin (1937) 22 Cal.App.2d 469, 71 P.2d 295, involving the right of a widow to a family allowance. There, a written stipulation was filed at an early point in the administration of the deceased's estate, declaring that the widow shall receive a family allowance of $300 per month beginning on a certain day 'and continuing at said rate for a period not to exceed ten months,' unless final distribution first occurred. After expiration of the ten-month period,...