Hayworth v. City of Oakland

• Court: California Court of Appeals
• Writing for the Court: GRODIN; ELKINGTON, Acting P. J., and FIGONE
• Citation: Hayworth v. City of Oakland, 181 Cal.Rptr. 214, 129 Cal.App.3d 723 (Cal. App. 1982)
• Decision Date: 12 March 1982
• Parties: , 29 Empl. Prac. Dec. P 32,836 James HAYWORTH et al., Plaintiffs and Appellants, v. CITY OF OAKLAND et al., Defendants and Respondents. Civ. 45395.

Page 214

181 Cal.Rptr. 214

129 Cal.App.3d 723, 29 Empl. Prac. Dec. P 32,836

James HAYWORTH et al., Plaintiffs and Appellants, v. CITY OF OAKLAND et al., Defendants and Respondents.

Civ. 45395.

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

March 12, 1982.

Duane W. Reno, Davis, Cowell & Bowe, San Francisco, for plaintiffs and appellants.

Jeffrey N. Haney, Acting City Atty., Susan Watkins, Theodore R. Lakey, Asst. City Attys., Oakland, for defendants and respondents.

GRODIN, Associate Justice.

In 1975, a group of black fire fighters brought suit against various officials of the City of Oakland (City) seeking relief for what they claimed were racially discriminatory practices by the City's fire department in hiring and promotion. The trial court, finding in favor of plaintiffs on their claim of past racial discrimination, issued a writ of mandate on December 9, 1975, ordering, among other things, that respondents "[f]or the next five (5) years, promote at least one racial minority for each five Caucasian persons promoted to the same classification."

On appeal, the trial court's judgment was reversed. (Hull v. Cason (1981) 114 Cal.App.3d 344, 171 Cal.Rptr. 14.) The "quota" provisions of the judgment were found to "unlawfully discriminate against Caucasian persons on account of their race," in contravention of the Fourteenth Amendment and the Civil Rights Act of 1964. (Id., at p. 370, 171 Cal.Rptr. 14.) The basis of that holding was that "there was neither evidence, nor contention, that any of the named plaintiffs, or of the class of minority persons represented by them, was a victim of the fire department's earlier discrimination." (Id., at p. 363, 171 Cal.Rptr. 14.) That decision has become final, and constitutes the law of the case.

While the appeal was pending, a number of vacancies occurred in the position of fire captain. Normally, these vacancies would be filled from an eligibility list based on oral and written examinations. On June 2, 1975, such an eligibility list was established for the position of captain, and by April 1977 the first 12 persons on that list had been promoted to that position. These 12 included 10 whites and 2 minorities, in compliance with the ratio established by the trial court's order. After these promotions had been made, there were no more minorities on the list. Although the list did not expire until June 2, 1977, the City decided not to and did not promote any further persons from the list, prior to the expiration of the list or at all. Instead, the fire department filled vacant positions with temporary appointments and overtime assignments. ¹

On June 21, 1977, James Hayworth and Ronald Flashberger, then employed as lieutenants in the Oakland Fire Department, and Local 55, International Association of Fire Fighters, AFL-CIO (the recognized employee organization representing uniformed fire fighters in the department), brought this proceeding against the City and various of its officials, complaining of the department's failure to fill vacancies from the eligibility list. They claimed that the unilateral change in practice constituted a violation of the City's duty to meet and confer under the Meyers-Milias-Brown Act (Gov.Code, § 3500 et seq.); that the City's refusal to promote Hayworth and Flashberger discriminated against them as Caucasians in violation of the equal protection provisions of the state and federal Constitutions and the Civil Rights Act of 1866 (42 U.S.C. § 1981); and that the department's decision not to hire from the list of remaining eligibles violated applicable rules of the Civil Service Board. Alleging that they were on the eligibility list and would have been appointed to the position of captain but for the department's policy complained of, Hayworth and Flashberger sought a writ of mandate compelling the City to appoint them to that position retroactively, with back pay and benefits. Additionally, they sought compensatory damages for emotional distress, and exemplary damages.

After a trial on the merits, the trial court on June 13, 1978, entered judgment denying the writ of mandate and ordering that plaintiffs take nothing by their complaint. The court found that while it had been a long-standing practice for the City to fill authorized vacancies which occurred through "last-minute" retirements (i.e., retirements occurring immediately prior to the expiration of Civil Service eligibility lists) from the existing eligibility lists, the City's decision not to follow that practice was due to the City's desire to comply with the order in Hull v. Cason, supra, 114 Cal.App.3d 344, 171 Cal.Rptr. 14, imposing the one-for-five promotion ratio. Reasoning that the strictures imposed by that order were not stayed by the then pending appeal, the court concluded that respondents were bound as a matter of law to comply, and that consequently, their compliance could not give rise to a cause of action on any of the grounds asserted. Plaintiffs Hayworth and Flashberger have appealed from that judgment.

I.

Critical to the trial court's judgment was its determination that the writ of mandate in Hull v. Cason, supra, was not stayed by the then pending appeal. We have concluded that the trial court erred in that determination.

Generally, "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order." (Code Civ.Proc., § 916.) This rule is applicable to proceedings on a writ of mandate. (See Building Code Action v. Energy Resources Conservation & Dev. Com. (1979) 88 Cal.App.3d 913, 921-922, 152 Cal.Rptr. 214.) In apparent recognition of that principle, Code of Civil Procedure section 1110b provides that where appeal is taken from an order or judgment granting a writ of mandate, "the court granting the writ, or the appellate court, may direct that the appeal shall not operate as a stay of execution" upon a showing of irreparable damage if the execution is stayed. And, while the rule of automatic stay does not apply to an injunction which is "prohibitory" in nature, rather than "mandatory" (Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d 827, 835, 39 Cal.Rptr. 791), an injunction is considered to be mandatory where it requires affirmative action and changes the status quo. (Ibid.)

The promotion ratio imposed by the order in Hull v. Cason, supra, 114 Cal.App.3d 344, 171 Cal.Rptr. 14, cannot reasonably be characterized as merely preserving the status quo; it changed the existing civil service promotion procedures and required different, positive, action. Thus, even if the form of the order as a writ of mandamus be disregarded, the rule of automatic stay was applicable.

Any doubt on this point was eliminated on June 7, 1979, when the Supreme Court denied Local 55's petition for a writ of supersedeas and request for stay of the Hull v. Cason order "on the ground that the trial court order is automatically stayed by virtue of the appeal. (Code of Civil Procedure, § 1110b)." The denial was expressly "without prejudice to the right of plaintiffs or the City of Oakland to petition this court pursuant to section 1110b for an order that the appeal herein shall not operate as a stay of execution." No such petition was filed.

II.

Respondents argue that even if the trial court's ruling on the automatic stay issue was erroneous, the judgment of dismissal should nevertheless be affirmed on other, independent, grounds, which may be summarized as estoppel, failure to pursue grievance procedures, and lack of discriminatory motive. ² We proceed to consider these grounds seriatim.

1. Estoppel. Respondents argue: "Local 55 having agreed on behalf of its members that the trial court's direction in Hull v. Cason would be followed, petitioners are estopped from repudiating that commitment." Respondents refer, in this connection, to an observation by the trial court in its memorandum of decision that Local 55 "has not, prior to discussions leading to this action, resisted the defendants' position respecting its obligation to abide by the judgment in Hull v. Cason," and to evidence allegedly showing union acquiescence in the City's compliance with the Hull v. Cason order.

It does not appear from the record that respondents pleaded the issue of estoppel as an affirmative defense or requested findings of fact on that issue. Hence, under the general rule of appellate review that questions not raised in the trial court will not be considered on appeal, respondents may not now seek affirmance on that ground. (Williams v. Galloway (1962) 211 Cal.App.2d 302, 305, 27 Cal.Rptr. 438; Roam v. Koop (1974) 41 Cal.App.3d 1035, 1044, 116 Cal.Rptr. 539.) Moreover, the evidence with respect to estoppel is, at best, conflicting and would hardly support a finding of estoppel as a matter of law. While the union's alleged acquiescence could have bearing upon the question of remedy, that is a matter for the trial court to determine upon remand.

2. Failure to Pursue Grievance Procedures. Respondents contend "appellants were barred by their failure to pursue the grievance procedure." The reference is to a grievance and arbitration procedure contained in a memorandum of understanding between the City and Local 55. The procedure, which applies to "any dispute involving the interpretation or application of this Memorandum of Understanding ... or disputes concerning or arising out of the existing terms and conditions of employment," calls for binding arbitration of disputes not earlier resolved in the grievance procedure.

The contention fails for two independent reasons. First, while it was raised as an affirmative defense in the City's response to the petition for writ of mandate, the City took no further steps to stay the proceedings or to obtain dismissal on that ground, instead permitting the matter to go to trial and judgment. A...