Vernon Fire Fighters v. City of Vernon

• Decision Date: 30 June 1980
• Citation: 165 Cal.Rptr. 908,107 Cal.App.3d 802
• Court: California Court of Appeals Court of Appeals
• Parties: VERNON FIRE FIGHTERS et al., Petitioners and Cross-Appellants, v. CITY OF VERNON et al., Respondents and Appellants. Civ. 53600.

Page 908

165 Cal.Rptr. 908

107 Cal.App.3d 802

VERNON FIRE FIGHTERS et al., Petitioners and Cross-Appellants, v. CITY OF VERNON et al., Respondents and Appellants.

Civ. 53600.

Court of Appeal, Second District, Division 5, California.

June 30, 1980.

As Corrected July 21, 1980.

David Bearley, City Atty., Whitmore & Kay and Richard S. Whitmore, Palo Alto, for respondents and appellants.

Richard J. Silber, Carson, and Molly Wilson, Los Angeles, for petitioners and cross-appellants.

STEPHENS, Associate Justice.

The City of Vernon (City) appeals from a judgment granting a peremptory writ of mandate in favor of Vernon Fire Fighters, Local 2312, Affiliate of the International Association of Fire Fighters (Union) and Donald Podlas (Podlas), a fire captain with the City of Vernon Fire Department (Fire Department). The peremptory writ ordered that the City rescind disciplinary action taken against Podlas and reinstate him to his employment with restoration of all rights and benefits, and expunge the disciplinary action from his employment record. More broadly, the writ also required that the City set aside and rescind action taken by it on August 9 and 17, 1976, ¹ at least to the extent that the action prohibits firemen from using city facilities to wash personal automobiles while not on duty. In addition, the City was ordered to reinstate the right of all firemen on 24 hour shifts to wash their private automobiles on City premises during off-duty time. The remainder of the orders dealt with requiring the City to engage in collective bargaining in the future regarding similar actions to be taken by the City and a requirement that the City provide various procedural steps prior to any discipline of the members of Local 2312. The City appeals from each of the above provisions; respondent Union cross-appeals from the trial court's finding that the resolutions passed by the City were not void in their entirety due to alleged violation by the City of the Meyers-Milias-Brown Act (MMBA). (Gov.Code, § 3500, et seq.)

The instant dispute is centered around the above quoted resolution adopted by the Vernon City Council.

The genesis of this resolution, which originated as a recommendation by the finance committee of the city council, was a worker's compensation claim filed by a city employee who had injured himself while washing his car on city premises. Subsequent to its passage, the Union raised objections to the rule, and the City modified the rule in regard to firemen on 24-hour duty so that when such firemen were leaving duty, they could rinse the early morning dew off their car windows before driving home. ²

On February 4, 1977, Podlas violated the rule by washing his car on city property with city equipment. ³ Notice of the violation was sent to Podlas on February 16, 1977, also advising him of his maximum discipline, demotion, and of his opportunity to appear at a hearing before the disciplinary action would become effective. Such a hearing was held on March 1, 1977. However, neither Podlas nor the Union produced any evidence or called any witnesses. The only response to the charge was a reading of a statement of the position of the Union and Podlas by their attorney. Their position was that the City had failed to grant Podlas procedural due process, that the City had violated the requirements of MMBA and the employer-employee resolution 4027 previously enacted by the City, by failing to "meet and confer" over the rule. They also maintained that Podlas' acts did not violate the October 10 modification of the rule against car washing, as he merely "washed his car off with a garden hose about 7:30-8:00 A.M. (after duty hours) and wiped off the water and soap with a rag." The matter was taken under submission by the council.

At the March 15, 1977, meeting the city council decided that Podlas would be suspended for three shifts and receive no overtime for a six-month period, effective April 1, 1977. Thereafter, on April 12, 1977, a petition for writ of mandate was filed on behalf of Union and Podlas. The matter was argued on May 10 before Judge Charles H. Phillips of the superior court.

At the outset, a dispute arose as to whether the petition was properly one under Code of Civil Procedure section 1085 or section 1094.5; the first section being traditional mandamus, the latter covering administrative mandamus.

A traditional writ of mandate under section 1085 is a method of compelling the performance of a legal, usually ministerial duty, whereas the purpose of an administrative mandamus proceeding, under section 1094.5, is to review the final adjudicative action of an administrative body. (Cal. Civil Writs Cont.Ed.Bar 1978) § 5.8, p. 67.) A further distinction between the two procedures is that under section 1094.5, the only evidence allowed to be presented (absent special circumstances not here applicable) is the administrative hearing transcript. ⁴ As stated in California Administrative Mandamus (Cont.Ed.Bar 1966) Evidence, section 13.5, page 218: "A peculiarity of administrative mandamus proceedings that many attorneys find difficult to comprehend is that . . . the only item of evidence that is usually received (at the trial) is the administrative record" and that it is usually not appropriate to offer other evidence, such as affidavits. In this case, despite the fact that the petition purported to seek a writ of mandamus under section 1085, the court determined that the action fell under section 1094.5 and yet allowed admission of declarations into evidence that were not part of the administrative hearing record. Appellant City claims that the trial court exceeded the proper scope of review in so doing.

Section 1094.5 of the Code of Civil Procedure reads in pertinent part as follows:

"(a) Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board or officer may be filed with the petition, may be filed with respondent's points and authorities or may be ordered to be filed by the court. . . .

"(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.

"(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence; and in all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (Italics added.)

Section 1085, Code of Civil Procedure, reads as follows:

"(A writ) may be issued to any court, except municipal or justice court, to any inferior tribunal corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person."

Appellant contends that the trial court was correct in arriving at the conclusion that the writ of mandate fell under the provisions of section 1094.5, rather than section 1085 as indicated on the face of the writ, but that the trial judge erred in allowing respondents to enter two declarations by Podlas and two by the president of the Union into evidence. As appellant points out, the findings of fact and conclusions of law written by respondent and adopted almost verbatim by the trial judge contain conclusions that could only be based upon the declarations that were offered into evidence.

Therefore, we must first determine whether the proceeding below is one to be held properly under section 1085 or section 1094.5. We address the issue first as to the Union, and find that since it had properly proceeded under section 1085, there is no need, for reasons which will become apparent, to address the issue as to Podlas. ⁵

I

The Union, in seeking to void the anti-car-wash rule in its entirety, properly proceeded under section 1085 of the Code of Civil Procedure.

Section 1085 covers traditional mandamus proceedings. The relief sought by the Union falls within this category, as the Union was not seeking review of the administrative hearing before the city council per se, but broader relief aimed at the avoidance of the anti-car-washing rule in its entirety. The basis for the request to have the rule set aside was an alleged abuse of discretion on the part of the City in enacting the rule contrary to the provisions of the MMBA. "While mandamus will not lie to control the discretion exercised by a public officer or board . . . it will lie to correct an abuse of discretion by such officer or board." (Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 344, 124 Cal.Rptr. 513, 524, 540 P.2d 609, 620, fn. 24, quoting Baldwin-Lima-Hamilton Corp. v. Superior Court (1962) 208 Cal.App.2d 803, 823, 25 Cal.Rptr. 798.) The Union properly sought relief by writ of mandate under section 1085, and the trial judge was therefore correct in...