Daugherty v. Board of Trustees of South Bay Union High School Dist.

• Decision Date: 05 June 1952
• Citation: 111 Cal.App.2d 519,244 P.2d 950
• Court: California Court of Appeals Court of Appeals
• Parties: DAUGHTERTY v. BOARD OF TRUSTEES OF SOUTH BAY UNION HIGH SCHOOL DIST. et al. Civ. 18927.

Page 950

244 P.2d 950

111 Cal.App.2d 519

DAUGHTERTY v. BOARD OF TRUSTEES OF SOUTH BAY UNION HIGH SCHOOL DIST. et al.

Civ. 18927.

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

June 5, 1952.

Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, Los Angeles, for appellants.

Tanner, Odell & Taft, Los Angeles, for respondent.

FOX, Justice.

Defendants appeal from a judgment in a mandamus proceeding requiring the defendant High School District to pay petitioner her salary as a teacher for the first four and one-half months of the 1950- 51 school year. The appeal is on the judgment roll.

Petitioner had attained the status of a permanent teacher in the district some years prior to her resignation on June 14, 1946. She was re-employed by the district on August 4, 1948, for that school year. She was likewise re-employed for the school year 1949-50. On May 9, 1950, the board undertook to dismiss her by giving her written notice that her services would not be required for the ensuing school year. This action was taken under the provisions of section 13582 of the Education Code upon the theory that petitioner was then a probationary teacher. The board was in error in taking this action because section 13502 of the Education Code provides in substance that whenever any certificated employee of a school district, who at the time of his resignation was classified as permanent, is re-employed within thirty-nine months after his last day of paid service, the board shall classify him as and restore him to all the rights and benefits of a permanent employee. At the opening of school on September 5, 1950, petitioner presented herself to defendants, tendered her services as a teacher, and demanded that she be permitted to serve as a permanent employee of the district. Her demand was refused. On November 9, 1950, she filed a petition for a writ of mandate in the superior court setting forth the above facts and praying that a writ issue commanding defendants to proceed forthwith to classify her as a full-time permanent employee, that they reinstate her to her position as a permanent employee and admit her to teach in the schools of said district, that they assign her to active teaching duties as such employee and that they fix her salary for the school year 1948-49 at the rate of $4,600, and at the rate of $4,700 for the two succeeding years. In December, 1950, a peremptory writ as prayed was issued. On January 10, 1951, pursuant to said writ, the board classified petitioner as a full-time permanent employee and reinstated her as such and directed her to report for duty on January 15, 1951, and fixed her compensation at the rates specified.

Petitioner reported for duty at the appointed time and ever since has continued to serve as a full-time employee. The district, however, did not pay her any salary for the portion of the school year 1950-51 which elapsed prior to her reinstatement on January 15, 1951. On May 11, 1951, petitioner made written demand on defendants for the payment of her salary for such period. Upon the failure of defendants to comply therewith she filed this petition to compel such payment.

Defendants admitted all the allegations in the petition and set up two defenses: (1) that the judgment in the prior action is res judicata in this proceeding, and (2) that petitioner is estopped from maintaining this proceeding by her failure to object to the return on the peremptory writ in the former action. Neither of these defenses is well founded.

In considering the res judicata defense it must be remembered that mandamus is an independent proceeding, and that its purpose is to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station. Code Civ.Proc. sec. 1085; Sheehan v. Board of Police Com'rs, 188 Cal. 525, 535, 20l P. 70; Boggs v. Jordan, 204 Cal. 207, 216, 267 P. 696. Also section 1911, Code of Civil Procedure, provides 'That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.'

Defendants say that in the prior action for reinstatement the court had the discretion to include a judgment for back salary, and since the judgment did not include such an item that matter is now res judicata. In arriving at this conclusion defendants seek to apply the principle that a judgment is conclusive of every matter which the parties might have litigated in the action. Gaskill v. Wallace, 32 Cal.App.2d 354, 89 P.2d 687. Defendants, however, are attempting to stretch this principle too far. It really means 'that a judgment is conclusive upon the issues tendered by the plaintiff's complaint. It may be that the plaintiff might have united other causes of action with that set out in [her] complaint, * * * but, as long as these several matters are not tendered as issues in the action, they are not affected by it.' Concannon v. Smith, 134 Cal. 14, 18, 66 P. 40, 42; City of San...