Conti v. Board of Civil Service Commissioners

• Decision Date: 10 December 1969
• Citation: 1 Cal.3d 351,461 P.2d 617,82 Cal.Rptr. 337
• Parties: , 461 P.2d 617 Albert R. CONTI, Plaintiff and Respondent, v. BOARD OF CIVIL SERVICE COMMISSIONERS OF the CITY OF LOS ANGELES et al., Defendants and Appellants. L.A. 29660.
• Court: California Supreme Court

Page 337

82 Cal.Rptr. 337

1 Cal.3d 351, 461 P.2d 617

Albert R. CONTI, Plaintiff and Respondent, v. BOARD OF CIVIL SERVICE COMMISSIONERS OF the CITY OF LOS ANGELES et al., Defendants and Appellants.

L.A. 29660.

Supreme Court of California In Bank.

Dec. 10, 1969.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Jack L. Wells and John B. Rice, Deputy City Attys., for defendants and appellant.

Arthur Lewis and Burton Marks, Los Angeles, for plaintiff and respondent.

TOBRINER, Justice.

Petitioner ¹ Albert Conti brings mandamus to compel respondents City of Los Angeles and Board of Civil Service Commissioners of the City of Los Angeles to vacate the proceedings of the board of December 17 and 29, 1965, at which the board sustained the discharge of petitioner as a blacksmith with the Department of Water and Power. Although we reject petitioner's contention that the board is estopped to dispute his reinstatement, we hold, in accord with the findings of the Superior Court of Los Angeles County, that these proceedings denied him procedural due process in that the petitioner neither obtained an opportunity to speak at the December 17 hearing nor received notice of the December 29 meeting. The principal issue presented by the case, however, is whether laches bars petitioner's action. Respondents rely upon Wolstenholme v. City of Oakland (1960) 54 Cal.2d 48, 4 Cal.Rptr. 153, 351 P.2d 321, for the proposition that in a reinstatement action prejudice must be presumed from undue delay; we conclude that this proposition cannot be justified and the case should be overruled. Consequently, since we do not presume prejudice, and since respondents did not prove prejudice, the defense of laches fails. Because respondents may possess evidence of prejudice which, relying on Wolstenholme, they did not introduce, we reverse the order of the superior court and remand for a new trial on the issue of laches.

On January 8, 1965, petitioner, an employee of the Department of Water and Power, was arrested and charged with bookmaking in violation of Penal Code, section 337a. On January 11 the department suspended petitioner from employment. He appealed the suspension to the Board of Civil Service Commissioners but the board postponed the hearing to await the results of the criminal trial. Following petitioner's conviction on the charge, on July 6, 1965, the department dismissed petitioner. He again appealed to the board, and on October 7, 1965, the board conducted a hearing on his appeals from both the suspension and the dismissal.

Section 112 of the Charter of the City of Los Angeles (Stats.1957, p. 4530) from which the board derives its authority, provides in part: '* * * If after such investigation said board finds, in writing, that the grounds stated for such removal, discharge or suspension were insufficient or were not sustained, and also finds in writing that the person removed, discharged or suspended is a fit and suitable person to fill the position from which he was removed, discharged or suspended, said board shall order said person so removed, discharged or suspended to be reinstated or restored to duty. The board with the consent of the appointing authority may also order a reduction in the length of the suspension, or substitution of a suspension for a removal or discharge, if the board finds, in writing, that such action is warranted. The order of said board with respect to such removal, discharge or suspension shall be forthwith certified to the appointing board or officer, and shall be final and conclusive; * * *.'

After the board had completed the taking of testimony at the hearing of October 7, 1965, the presiding officer, Commissioner Maltz, announced he would entertain a motion for discharge. Commissioner Garcia then stated, 'Mr. Chairman, I do not believe that there was sufficient evidence for this Board to sustain a discharge. Therefore, Mr. Chairman, I move that the Board of Civil Service Commissioners do not sustain the Discharge.'

The motion carried by a three-to-two vote. Commissioner Maltz then announced that: 'Inasmuch as the Discharge has not been sustained, I will at this time entertain a motion concerning the Suspension. * * *' Commissioner Harrison moved: 'I recommend to the Board that it finds this Suspension be sustained, and that said Suspension shall be effective until December 1, 1965; further, that said Suspension shall be without pay.' The motion carried unanimously. ²

To summarize the October 7 hearing in terms of the requirements of section 112, the board resolved that there was not sufficient evidence to sustain the discharge, but did not make a written finding that petitioner was 'a fit and suitable person to fill the position from which he was removed.' The board did not substitute, nor seek consent to substitute, the suspension for the discharge; rather, the discharge and the suspension were the subjects of two separate orders and appeals, and the board overturned the discharge but upheld the suspension.

On December 1 petitioner reported for work but learned that the department had not provided for the resumption of his employment. On December 17 the board addressed itself to petitioner's case and Mr. Maltz inquired of Jack Wells, deputy city attorney, as to the validity of the October motions. Mr. Wells advised that since the board had not rendered findings sufficient to compel reinstatement or sustain a discharge, the board's action could not be legally effective. Commissioner Garcia moved that the general manager of the Department of Water and Power be requested to consent to a substitution of a suspension in lieu of discharge. The motion carried three votes to one. The board then approved a second motion sustaining the suspension.

On December 21, 1965, the general manager of the department sent the board a letter refusing his consent to the substitution of a suspension for the discharge. At its next meeting on December 29, 1965, the board, completely reversing its previous position, adopted a motion that the action of the department in discharging petitioner be upheld.

Despite petitioner's presence at the December 17 hearing, he was not permitted to speak. He did not attend the December 29 hearing; he testified, and the trial court found, that the board had neglected to notify him of that hearing.

1. Laches

Petitioner submitted to the board a 'Demand for Reinstatement' but the board denied it on February 18, 1966. Petitioner did not file his mandamus action until August 23, 1966; since a draft of an alternative writ did not accompany the complaint, the matter lay dormant until petitioner's counsel discovered the omission and set the case for hearing on January 12, 1967. Asserting that petitioner's delay of 10 months and 25 days ³ in filing his action and scheduling it for hearing was unreasonable and prejudicial, respondents interpose a defense of laches.

The trial court expressly found 'that Petitioner and his counsel were not guilty of laches in fact; the delay was excusable and inadvertent.' Although the trial court exercises a wide discretion in deciding whether to sustain a defense of laches, ⁴ we cannot uphold its finding in this case. Petitioner pleaded that he delayed filing this action from February 1966 until August 1966 when the transcripts in his criminal appeal were completed and the opening brief on appeal was filed in that proceeding; that the delay from August to January 1967 resulted from the negligent failure of his attorney's secretary and of the courthouse filing service to transmit an alternative writ with the complaint. Respondents denied these allegations; neither party, however, introduced evidence at trial to support or rebut them.

We do not read the trial judge as finding that a delay of over 10 months represents a reasonable period for the preparation and filing of the petition and service of the alternative writ, and thus that the delay need not be explained or excused; we would entertain serious doubts as to any such finding. We believe the trial judge found the delay, on the facts of this case, to be 'excusable and inadvertent.' Petitioner, however, did not introduce any evidence to support this finding; it cannot rest upon the controverted claims of the pleadings; it cannot be sustained.

The trial court also expressly found that 'the Respondents * * * have suffered no legal or factual detriment.' Indeed, respondents point to no evidence of prejudice resulting from petitioner's delay but, relying upon our decision in Wolstenholme v. City of Oakland, supra, 54 Cal.2d 48, 4 Cal.Rptr. 153, 351 P.2d 321, ⁵ contend that in an action for reinstatement to public employment prejudice must conclusively be presumed from unreasonable delay. In Wolstenholme a discharged employee delayed bringing her action for reinstatement for about one year and seven months after her employment terminated. She presented evidence that a suitable vacancy existed and offered to waive any claim for back salary. The court, however, held that her laches barred the action, stating that: 'Public policy requires that an employee of a public body who claims to have been improperly or illegally discharged must act with the utmost diligence in asserting his rights. (Citations.) It is presumed that where one has been dismissed from an active position in the public service, someone else has been chosen to take his place. (Citations.) If a discharged public employee delays unreasonably in bringing an action to obtain reinstatement, prejudice is presumed.' (P. 50, 4 Cal.Rptr. p. 154, 351 P.2d p. 322.) Although Wolstenholme supports respondents' position, we believe that the presumption of prejudice there proclaimed should be reconsidered.

Presumptions are either conclusive or rebuttable. (Evid.Code, § 601.) Wolstenholme does not clearly state whether the presumption of prejudice is rebuttable. ⁶ Courts of Appeal have disagreed on the character of the...