International Ass'n of Fire Fighters, Local No. 1319, AFL-CIO v. City of Palo Alto

Decision Date13 August 1963
Citation60 Cal.2d 295,384 P.2d 170,32 Cal.Rptr. 842,53 LRRM 2985
CourtCalifornia Supreme Court
Parties, 384 P.2d 170, 53 L.R.R.M. (BNA) 2435, 48 Lab.Cas. P 50,903 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL NO. 1319, AFLCIO et al., Plaintiffs and Respondents, v. CITY OF PALO ALTO et al., Defendants and Appellants. S. F. 20964

Robert E. Michalski, City Atty., and Stanley R. Norton, Asst. City Atty., for defendants and appellants.

Charles P. Scully and Victor Van Bourg, San Francisco, for plaintiffs and respondents.

PETERS, Justice.

Defendants have appealed from a judgment ordering issuance of a peremptory writ of mandate and dismissing their cross-complaint for declaratory relief. 1 By that judgment the trial court ordered defendants (a chartered city, and its mayor, city manager, council members and fire chief) to grant plaintiffs (an unincorporated union all of the members of which re employees of defendant city's fire department and its duly appointed representative) the right of self-organization and the right to 'present grievances and recommendations regarding wages, salaries, hours and working conditions to the governing body of the Fire Department and to discuss the same with such governing body through such organizations.' Defendants were further ordered to vacate and set aside certain policies, rules and regulations that will hereafter be mentioned.

Insofar as the judgment is predicated upon the constitutionality of Labor Code sections 1960 through 1963, and their applicability to a chartered city, the issues herein are identical to those discussed in the companion case of Professional Fire Fighters, Inc., et al. v. City of Los Angeles, Cal., 32 Cal.Rptr. 830, 384 P.2d 158. The same is true of the determination that mandate is a proper form of relief herein. The rules announced in that opinion are controlling here, and need not be repeated. The judgment in the instant case should be affirmed for all the reasons set forth as justification for reversal in the Los Angeles case.

There are, however, certain minor distinctions in the two cases, and the judgment herein contains certain language which should be modified. Those matters require further discussion.

The plaintiff union in this case is an unincorporated association, whereas its counterpart in Los Angeles was incorporated. The individual plaintiff in each case was both a union representative and an employee of defendant city's fire department. Until recently, the fact that plaintiff union is unincorporated might have been urged as a basis for denying the union the right to sue on behalf of the class it is alleged to represent. Such contention is no longer available. (Daniels v. Sanitarium Ass'n., Inc., 59 A.C. 625, 30 Cal.Rptr. 828, 381 P.2d 652; Marshall v. International Longshoremen's & Warehousemen's Union, 57 Cal.2d 781, 22 Cal.Rptr. 211, 371 P.2d 987.) But defendants also urge that plaintiffs' capacity to sue (that is, their requisite beneficial interest in the cause of action) was made an issue of fact by reason of their answer which included a general denial of all of the facts pleaded in the petition for writ of mandate. They contend that there is no basis for the judgment because no evidence was offered in support of this material issue. The fact is that, although defendants' answer denied that all members of the union (as well as plaintiff Smith) were employees of the fire department, defendants affirmatively alleged such membership in their cross-complaint. The matter was then tried (as distinguished from the Los Angeles case, which was determined on motions for summary judgment), and during that trial neither court nor counsel appear to have expressed any doubt as to the truth of the allegations of the petition or of the cross-complaint. On this appeal defendants attack the judgment on the ground that it denies them the right to so plead inconsistent defenses. In other words, they are contending that the trial court had no power to assume the truth of the allegations of their cross-complaint, in the absence of proof, because of their general denial in their answer of the same allegations as they appeared in the pleadings of plaintiffs. The doctrine of 'inconsistent defenses' is inapplicable. It applies to the right of the pleader to set forth inconsistent allegations at the time of pleading, and to offer proof thereof at the trial. Here defendants made the inconsistent allegations, but offered no proof in regard to either. The reporter's transcript indicates that the case was tried upon the theory that all members of plaintiff union, as well as plaintiff Smith, were and are members of defendant city's fire department. Nothing was stated by anyone during the trial to the contrary. The trial court assumed the the parties were in agreement as to this basic fact, and stated that nothing remained but questions of law. The parties submitted the matter on that basis. Defendants are estopped from challenging the fact at this late date. It follows that both plaintiffs had a beneficial interest in the cause of action, and were proper parties to represent the entire class of employees.

Defendants also claim that there was no evidence on which to predicate a writ of mandate, commanding them to conform to the provisions of the Labor Code involved. Their argument is that the court should not resort to mandate in the absence of proof that they have disregarded in the past, of will in the future disregard the statutory provisions. While it may be true that no proof of such facts was presented by way of evidence, none was necessary. Plaintiffs' original petition contained, as exhibits, correspondence between plaintiffs' attorney and defendants' city manager whereby the former requested defendants' attitude in regard to Labor Code sections 1960-1963, and was advised by the latter that defendants intended to act according to the advice of their city attorney who held that 'the law does not apply to charter cities and is therefore not binding on the City of Palo Alto nor any of its officers.' While it may be true that the general denial included a denial of the authenticity of those exhibits, no point was made thereof at trial. Furthermore, defendants' own pleading (answer and return to petition for writ) incorporates three additional exhibits constituting correspondence between certain city officials and the minutes of the city council. These exhibits, the authenticity of which was never denied by plaintiffs, affirmatively show that: (1) for many years section 15 of the Rules and Regulations of the Palo Alto Fire Department prohibited members of the department from organizing or joining any labor union; (2) that rule was rescinded on the recommendation of the chief, after suit was filed herein, for the sole reason that it no longer reflected department policy, but that the chief still believed supervisory personnel should not be affiliated with any employee organization, and acting on such belief advised one captain to resign his membership in plaintiff union; (3) by motion duly adopted the defendant city council adopted a policy of refusing to recognize plaintiff union. In the face of such uncontroverted allegations of the defendants, no further evidence was required to prove that defendants did not intend to fully comply with the provisions of the ...

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