Verreos v. City and County of San Francisco

• Decision Date: 27 October 1976
• Citation: 133 Cal.Rptr. 649,63 Cal.App.3d 86
• Court: California Court of Appeals Court of Appeals
• Parties: Nick VERREOS, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants, Cross-Defendants and Respondents, Board of Supervisors of the City and County of San Francisco, Defendants, Cross-Complainants and Appellants. Civ. 38224.

Page 649

133 Cal.Rptr. 649

63 Cal.App.3d 86

Nick VERREOS, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants, Cross-Defendants and Respondents Board of Supervisors of the City and County of San Francisco, Defendants, Cross-Complainants and Appellants.

Civ. 38224.

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

Oct. 27, 1976.

Victor B. Levit, H. Paul Breslin, Long & Levit, San Francisco, for Nick Verreos.

Benjamin D. James, Jr., San Francisco, for Bd. of Supervisors.

Thomas M. O'Connor, City Atty., George E. Baglin, Deputy City Atty., City and County of San Francisco, San Francisco, for City and County of San Francisco, Joseph Alioto, John C. Farrell, Thomas Scanlon.

Stephen Warren Solomon, Richard Goldman, Los Angeles, for Police Officers Association.

Roland C. Davis, Duane W. Reno, Davis, Cowell & Bowe, San Francisco, for Local 798, International Association of Fire Fighters.

ROUSE, Associate Justice.

Plaintiff Nick Verreos, a resident and taxpayer of the City and County of San Francisco, brought a class action on behalf of all other individuals similarly situated, seeking to prohibit the implementation of a strike settlement agreement pursuant to which Mayor Joseph Alioto had agreed to grant San Francisco's policemen and firemen a 13.05 percent raise in salary. Plaintiff sought declaratory and injunctive relief and the issuance of a writ of mandamus and prohibition. The complaint named as defendants the City and County of San Francisco, Mayor Alioto, the Board of Supervisors of the City and County of San Francisco, the municipal controller, the municipal treasurer, the Police Officers Association of the City and County of San Francisco and Local 798 of the International Association of Firefighters.

Plaintiff alleged in his verified complaint that on August 18 and 20, 1975, the two unions representing San Francisco's policemen and firemen commenced illegal strikes which resulted in almost a complete cessation of police and fire protection for the residents and taxpayers of the City and County of San Francisco; that on August 18, 1975, the board of supervisors agreed to offer the policemen and firemen a salary raise of approximately 6.5 percent; that both the policemen and firemen demanded a 13.05 percent raise and commenced illegal strikes to enforce their wage demands; that the superior court, at the request of the City and County of San Francisco, declared the police strike illegal and ordered the policemen to return to work; that Mayor Alioto, acting without the authority of the board of supervisors, negotiated with the two striking unions a settlement which provided for the 13.05 percent raise demanded by the unions; that on August 21, 1975, the board of supervisors unanimously rejected Alioto's settlement proposal and stated that it would not negotiate further with the striking policemen and firemen until they returned to work; that immediately thereafter, Alioto declared the existence of a state of emergency within the City and County of San Francisco, and pursuant to emergency powers purportedly granted to him under the Charter of the City and County of San Francisco (hereinafter 'the charter'), approved the 13.05 percent raise which he had previously negotiated and imposed liability for such raise upon the City and County of San Francisco.

Plaintiff's complaint alleged that Mayor Alioto's conduct in declaring a state of emergency and personally approving the raise in salaries was invalid because section 8.405 of the charte vested sole authority to fix salary rates for policemen and firemen in the board of supervisors. The complaint was subsequently amended, with leave of the court, to raise the following additional grounds for attack upon Mayor Alioto's conduct: (1) no public emergency existed when Alioto declared the state of emergency; (2) section 3.100 of the charter, which purported to grant the mayor emergency powers, was violative of the due process clause; and (3) Alioto acted fraudulently and in bad faith and with the intent to usurp the power of the board of supervisors when he declared the state of emergency and granted the policemen and firemen the raise they had demanded.

Following the issuance of an alternative writ of mandate, the two defendant unions and the City and County of San Francisco filed answers denying the invalidity of Mayor Alioto's actions in declaring the state of emergency and granting the raise in salary to the policemen and firemen.

Defendant board of supervisors filed an answer in which it denied responsibility for the salary raise and further denied that it would take any action to implement same. The board of supervisors also filed a cross-complaint against all the other defendants, joining with the plaintiff in contending that the salary raise granted by Alioto was invalid and that its implementation should be permanently enjoined.

The two defendant unions demurred generally to the complaint and cross-complaint, but the demurrers were overruled.

The two unions then moved for judgment on the pleadings. Thereafter, plaintiff and defendant board of supervisors made certain extensive and detailed written offers of proof which will be alluded to where relevant to the issues raised on appeal.

A hearing was held on the motion for judgment on the pleadings, and, with the acquiescence of the parties, the court ruled that it would treat the motion as one for summary judgment as well as for judgment on the pleadings.

The court rendered a judgment in which it stated that it had considered the offers of proof and the written briefs and oral arguments of the parties and that it had also taken judicial notice of Mayor Alioto's emergency proclamation and a prior resolution by the board of supervisors that an emergency existed in the City and County of San Francisco. The court determined as a matter of law that section 3.100 of the charter was constitutional; that a public emergency within the meaning of that section existed in the City and County of San Francisco on August 21, 1975, when Alioto issued his emergency proclamation; and that Alioto's emergency proclamation was valid. In accordance with this determination, the court rendered judgment on the complaint and cross-complaint in favor of defendants and cross-defendants and against plaintiff and the board of supervisors, and ordered the complaint and cross-complaint dismissed. ¹

Plaintiff and the board of supervisors each filed a timely notice of appeal from the judgment.

Before reviewing the merits of the arguments raised on appeal, it seems appropriate to deal with the contention raised by the City and County of San Francisco, its mayor, controller and treasurer (hereinafter collectively referred to as 'the city and county'), to the effect that the board of supervisors was not a party aggrieved by the judgment and that its appeal must therefore be dismissed.

In support of this contention, the city and county relies upon Knoff v. City, etc., of San Francisco (1969) 1 Cal.App.3d 184, 81 Cal.Rptr. 683. In that case, four San Francisco taxpayers brought suit against the city and county, its board of supervisors and the assessor, seeking a writ of mandate requiring official action in connection with certain actions of the assessor which had caused him to be indicted on multiple counts of criminal misconduct in office. The plaintiffs prevailed in the trial court, which issued a writ of mandate substantially as requested and subsequently issued an order prohibiting the board of supervisors (when sitting as the board of equalization) from considering or adopting any assessment ratio lower than 50 percent in measuring the validity of new assessments.

The City and County of San Francisco, the board of supervisors and the assessor appealed from this order, but the appellate court dismissed the appeal, holding that the appellants were not injuriously affected by the order, which merely set a standard to be followed by appellants in reviewing assessments. The court stated, 'If the standard was wrong in the case of any affected taxpayer . . . only that taxpayer can complain: the City and County of San Francisco cannot, the board of supervisors and the board of equalization cannot, the assessor cannot. The question posed by appellants' arguments on this point relate only to the interests (if any) of affected taxpayers. We conclude that the interests of appellants--whatever they might be, even considered severally--are not 'injuriously affected' by the . . . order; for this reason, we dismiss their appeal from it.' (Pp. 205--206, 81 Cal.Rptr. p. 697.)

The city and county contends that the rule of the Knoff case is equally applicable here because the board of supervisors' attack upon Mayor Alioto's conduct, both in the trial court and on appeal, can only be viewed as the assertion by the board of a cause of action belonging only to plaintiff and the other San Francisco taxpayers on whose behalf he commenced the instant action. The city and county asserts that the mere fact that the board of supervisors was named as a defendant in the action brought by plaintiff did not entitle it to treat plaintiff's cause of action as its own and attempt by its cross-complaint to join forces with plaintiff in seeking to invalidate Mayor Alioto's conduct. It is likewise clear, according to the city and county, that the board of supervisors, as such, was in no sense aggrieved by the judgment upholding Alioto's actions and that the only parties who are aggrieved by such judgment are plaintiff and the other San Francisco taxpayers whom he represents.

The board of supervisors has not filed a closing brief; however, at oral argument, through their counsel, they persisted in the contention that their cross-complaint is properly brought.

The city and county's reasoning would appear persuasive and in accord with the rule of the Knoff case. It seems apparent that the board of supervisors, as...