Henneberque v. City of Culver City

• Decision Date: 27 September 1985
• Citation: 218 Cal.Rptr. 704,172 Cal.App.3d 837
• Court: California Court of Appeals Court of Appeals
• Parties: Eduard HENNEBERQUE, Plaintiff and Appellant, v. CITY OF CULVER CITY, a municipal corporation et al., Defendants and Respondents. B009174.

Page 704

218 Cal.Rptr. 704

172 Cal.App.3d 837

Eduard HENNEBERQUE, Plaintiff and Appellant, v. CITY OF CULVER CITY, a municipal corporation et al., Defendants and Respondents.

B009174.

Court of Appeal, Second District, Division 7, California.

Sept. 27, 1985.

[172 Cal.App.3d 839] Richard A. Levine, Marina Del Rey, for plaintiff and appellant.

Bert Glennon, Jr., City Atty., and Joseph W. Pannone, Deputy City Atty., for defendants and respondents.

JOHNSON, Associate Justice.

Eduard Henneberque appeals from order denying his motion for back pay and attorney fees made upon remand following reversal of a judgment denying his petition for writ of mandate.

FACTS AND PROCEEDINGS BELOW

In 1981 Henneberque, a permanent employee of the Culver City Police Department, petitioned the superior court for a writ of mandate ¹ (Code Civ.Proc., § 1085). The petition alleged: On September 6, 1980, Henneberque was promoted from the position of police officer to the probationary position of police sergeant; progress reports of September and October, evaluating Henneberque's performance in his probationary position, gave him satisfactory ratings; nevertheless, on November 3, 1980, the chief of police informed Henneberque that effective November 4 he would be demoted ("reverted") to the rank of police officer with corresponding reduction of salary and benefits; on November 4 Henneberque was demoted; on November 7, 1980, Henneberque requested that defendants provide him with an appeal on his involuntary demotion; on November 18 defendants denied Henneberque's request for an administrative appeal; Henneberque's demotion was punitive in nature, having been based on his active participation as a labor leader in the Culver City Police Officers' Association. The petition sought a peremptory writ of mandate directing defendants to provide Henneberque with an administrative appeal on his demotion (Gov.Code, § 3304, subd. (b)), ² and to reinstate him to the position of police sergeant with back pay from the date of his demotion; and an award of attorney fees. Judgment denying the petition was entered.

On Henneberque's appeal from the judgment we stated: "[A]ppellant was promoted to the rank of police sergeant with a corresponding increase in salary and benefits. He received no unfavorable evaluations while serving in this capacity. However, he was summarily demoted and received a reduction in salary and benefits. Thus, punitive action was undertaken by respondents without providing the required opportunity for appeal in violation of Government Code section 3304, subdivision (b). [p] Additionally, appellant also is entitled to an administrative appeal because of alleged discrimination against him for exercise of his right to participate in the recognized employee organization." (Henneberque v. City of Culver City (1983) 147 Cal.App.3d 250, 254, 194 Cal.Rptr. 869.) We concluded that the trial court abused its discretion in refusing to issue a peremptory writ of mandate ordering defendants to grant Henneberque an administrative appeal. The judgment was reversed and the matter remanded for further proceedings consistent with our opinion. (Henneberque, supra, 147 Cal.App.3d at p. 255, 194 Cal.Rptr. 869.)

After remittitur was filed Henneberque moved for issuance of peremptory writ of mandate directing defendants to provide Henneberque with an administrative appeal on his demotion, and for the following additional relief: an award of all salary and benefits applicable to the position of police sergeant from November 18, 1980 (the date of defendants' wrongful refusal to provide an administrative appeal) to the date such a hearing is provided; and an award of attorney fees pursuant to Code of Civil Procedure section 1021.5. The trial court granted that portion of the motion seeking issuance of a writ of mandate but denied the motion, without prejudice, insofar as it Following rendition of that decision Henneberque renewed his motion for back pay and attorney fees. The motion was denied. Henneberque appeals from the order of denial.

sought back pay and attorney fees. On April 2, 1984, a peremptory writ of mandate issued directing defendants to give notice to Henneberque, on or before April 25, of a hearing on his involuntary demotion from police sergeant to police officer, the hearing to be held within 20 days after such notice. On April 10, 1984, such a hearing was conducted by the chief of police with Henneberque and his attorney in attendance. The hearing resulted in the upholding of Henneberque's demotion.

DISCUSSION

I. APPEALABILITY OF ORDER

Unless otherwise provided by statute, an appeal lies only from a judgment that terminates the proceeding in the lower court by completely disposing of the matter in controversy. (Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701-702, 128 P.2d 357; In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 734, 137 Cal.Rptr. 568; Vallera v. Vallera (1944) 64 Cal.App.2d 266, 270, 148 P.2d 694.) The order denying Henneberque's motion for back pay and attorney fees disposed of only those issues, and hence does not qualify as an appealable judgment. However, an order which determines a matter collateral to the main action is appealable if the matter is severable from the general objective of the litigation and if a decision thereon determines finally the rights of the parties in relation to the collateral matter, leaving no further judicial action to be taken in regard to that matter. ³ Such a determination is substantially the same as a final judgment in an independent proceeding. (Meehan v. Hopps (1955) 45 Cal.2d 213, 216-217, 288 P.2d 267; In re Marriage of Van Sickle, supra, 68 Cal.App.3d 728, 735, 137 Cal.Rptr. 568; Hersch v. Boston Ins. Co. (1959) 175 Cal.App.2d 751, 753, 346 P.2d 796; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 38, p. 4052.)

A statutory motion for attorney fees is a collateral matter, ancillary to the main cause; it seeks what is due because of the judgment. (Serrano v. Unruh (1982) 32 Cal.3d 621, 636-637, 186 Cal.Rptr. 754, 652 P.2d 985; No Oil, Inc. v. City of Los Angeles (1984) 153 Cal.App.3d 998, 1006, 200 Cal.Rptr. 768.) The same rationale applies to Henneberque's motion for back pay made following the administrative appeal ordered by writ of mandate the issuance of which was the main objective of the within proceeding. The order denying Henneberque's motion for back pay and attorney fees determined the issue of Henneberque's entitlement to such relief; no further judicial action was required to give effect to that determination. Accordingly, the order is appealable.

II. AWARDING HENNEBERQUE BACK PAY IN THIS ACTION CONSTITUTES A FORM OF "EXTRAORDINARY RELIEF" AND THUS IS STATUTORILY AUTHORIZED UNDER GOVERNMENT CODE SECTION 3309.5(c)

In Henneberque I this court held the city had violated Henneberque's right to an administrative appeal guaranteed by the Policeman's Bill of Rights. On remand, Henneberque asked the trial court to award him back pay from the time he was denied an appeal until the time the city Government Code Section 3309.5(c) sets out the court's duty to enforce the Policeman's Bill of Rights.

                completed its determination of the appeal. 4  We hold thePoliceman's Bill of Rights authorizes back pay when one of its provisions is violated and thus find the trial court erred in denying this relief
                

"(c) In any case where the superior court finds that a local public safety department has violated any of the provisions of this chapter, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary, or permanent injunction prohibiting the local public safety department from taking any punitive action against the local public safety officer." (Italics added.)

What Henneberque requests here is essentially a writ of mandate to compel the city to give him back pay. A writ of mandate is a form of "extraordinary relief." Indeed the California Constitution itself defines mandamus as one of the forms of "extraordinary relief." Article VI, section 10 reads in pertinent part:

"The supreme court, courts of appeal, superior courts, and their judges have original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition. (Cal. Const. art. VI, § 10., italics added.)

It seems unlikely the Legislature in using the clause "other extraordinary relief" intended to confine this term to traditional injunctions and exclude from the definition the form of relief the Constitution designates as "extraordinary relief." Moreover, writs of mandate like injunctions are a form of equitable relief. " '[W]hile mandate is ordinarily classed as a legal remedy it has the effect of an equitable interference supplementing the deficiencies of the common law ... largely controlled by equitable principles....' " (Citation omitted.) (Wallace v. Board of Education (1944) 63 Cal.App.2d 611, 617, 147 P.2d 8, Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs. § 4, and cases cited therein.) Thus it is readily apparent writs of mandate fall within the express language of 3309.5(c) which directs the court to "render appropriate injunctive or other extraordinary relief to remedy the violation...." (Italics added.)

To grant the relief requested by Henneberque, that is, a writ of mandate directing the City of Culver City to award him back pay would be nothing more nor less than a grant of "extraordinary relief to remedy the violation...." Here the violation was demoting a policeman without affording Extraordinary relief, within the meaning of Section 3309.5(c), can be used to afford officers this kind of relief even though it has the practical effect of a monetary award. Indeed this is a well-accepted use of the extraordinary relief of mandate. For...