Currieri v. City of Roseville

In Hampton, however, the Supreme Court’s opinion had directed the trial court to enter a specific judgment which did not require any additional factual hearing in the trial court. Here, by contrast, this court’s order directed the trial court to make a factual determination as to damages.

As stated in a quite similar case, Carroll v. Civil Service Com. (1973) 31 Cal.App.3d 561 , 564 [ 107 Cal.Rptr. 557 ], “While the former opinion is the law of the case insofar as it decided the questions presented (Young v. Metropolitan Life Ins. Co. (1971) 20 Cal.App.3d 777 , 779 [ 98 Cal.Rptr. 77 ]), that opinion did not purport to decide all the possible offsets to which the county may be legally entitled. It was exemplary, not exhaustive. It does not, therefore, answer the question presented on this appeal.” Similarly, this court’s statement, “from any back payments due there must be deducted petitioners’ earnings from other sources,” far from being an exhaustive instruction, avoided any impression that the trial court was limited on remand to a mathematical award of back pay without a full inquiry.

Similarly, in State Bd. of Equalization v. Superior Ct. (1942) 20 Cal.2d 467 [ 127 P.2d 4 ], a judgment had ordered payment of back salaries of wrongfully discharged state civil service employees. No mention was made in the judgment with regard to earnings from other sources. The employer offered to pay back salaries less earnings from other sources. The employees sought an order of contempt which was issued by the trial court. In annulling the contempt order, the Supreme Court stated: “It does not necessarily follow, that because the specified salary was ordered to be paid, no lawful deductions could be made. The judgment should be interpreted, if it may be without doing violence to the express language, so that it does not command that the public officers perform an unlawful act. It is the law, as heretofore stated, that deductions should be made for compensation received in other employment while the employees were unlawfully excluded from their positions. Therefore, to

More recent cases make it clear that policemen who are under civil service protection have a duty to mitigate damages. In Rexstrew v. City of Huntington Park (1942) 20 Cal.2d 630 [ 128 P.2d 23 ], a wrongfully discharged policeman and a fireman of the City of Huntington Park were ordered reinstated by a judgment in mandamus. The police officer was a civil service employee of the city. The Supreme Court applied the mitigation rule as follows: “The record fails to disclose . . . whether respondents have received remuneration from other employment since their discharge. If they have been gainfully employed, any remuneration received from such employment should be deducted from the accrued salary due them. [Citations.]” (20 Cal.2d at p. 634.)

In City of Ukiah v. Fones (1966) 64 Cal.2d 104 [ 48 Cal.Rptr. 865 , 410 P.2d 369 ], the California Supreme Court considered the rights of a wrongfully discharged civil service employee of the City of Ukiah. With regard to the measure of damages, the court stated: “It is a well settled rule that a civil service employee who has been unlawfully deprived of his position is entitled to recover the full amount of the salary which accrued to him from the date of his unlawful discharge to the date of his reinstatement, less any amounts he earned or might reasonably have earned from other employment during that period. (Mass v. Board of Education (1964) 61 Cal.2d 612 , 616 [ 39 Cal.Rptr. 739 , 394 P.2d 579 ]; Stockton v. Department of Employment (1944) 25 Cal.2d 264 , 273-274 [ 153 P.2d 741 ]).” (Italics in original.) (64 Cal.2d at p. 107.) (See also, Burgess v. Board of Education (1974) 41 Cal.App.3d 571 , 582 [ 116 Cal.Rptr. 183 ].)

Ill

In his reply brief, appellant states this contention as follows: “The law does not provide for cessation of damages at the time a wrongfully discharged employee stops seeking employment, but provides for a deduction of the amount he might have earned had he continued to seek employment.”

The general rules are summarized in California School Employees Assn. v. Personnel Commission, supra, 30 Cal.App.3d 241 . At pages 249-250, the court states: “The general rule is that the burden of establishing mitigation rests with the employer, and in the absence of proof of other earnings, a presumption arises that the employee has been damaged in the ‘sum which he would have received if he had performed the required duties in full.’ [Citation.] The measure of recovery of a wrongfully discharged employee is the amount of salary he would have received plus other benefits such as retirement, accumulated vacation and sick time, pay increases and interest on pay increases from date of accrual to judgment, less the amount which the employer affirmatively proves the employee has earned or with reasonable diligence might have earned from other employment. [Citations.]” (Italics in original.) (See also, Parker v. Twentieth Century-Fox Film Corp., supra, 3 Cal.3d at p. 181.)

There is nothing in the record to suggest that the trial court failed properly to impose the burden of proof upon the City. The contrary appears. The court’s opinion reflects the basis of its ruling:

“With respect to this plaintiff, the primary question of concern is whether or not he made reasonable [efforts] to obtain other employment neither different from nor inferior to that from which he was discharged, during the period from discharge to reinstatement.

“It is uncontradicted that plaintiff became a full time student and that upon his eventual reinstatement he immediately resigned to return to full time school attendance. While the determination to obtain an education is commendable, it is quite apparent that at some point in time prior to reinstatement the plaintiff actually formed the intent to pursue a scholastic career as opposed to his career as a police officer. In other words, it is the opinion of the Court that had this plaintiff been reinstated at some

earlier date he would have resigned to continue school. Plaintiff became a full time student in September of 1968. He testified that he did not even seek part time jobs after this time. While there is no requirement one mitigate by part time work, the failure to seek any employment again is an example of his intent. It is also true he had only worked' as a police officer for some thirteen months before discharge, which is important only to indicate his police career was of relatively short duration, hence the decision to become a full time student is not surprising. It would seem the duty of mitigation is a continuing duty, within reasonable limits of course, and that to seek and attend to a' full time non-paying occupation is not within the concept of mitigation.” (Italics added.)

There was substantial evidence to support the trial court’s conclusion. In addition to that specified in the quoted portion of the court’s opinion, there was evidence that a police officer’s job with the City of Rocklin was offered to and rejected by appellant in June 1968. Two months after his discharge, Officer Zwolinski took an identical position with Rocklin, and after his reinstatement, he resigned from the Roseville Police Department in order to continue working at Rocklin. While there was some testimony to indicate that the Rocklin position was not comparable or substantially similar to the Roseville position, in which case appellant would have been under no duty to accept it (see Parker v. Twentieth Century-Fox Film Corp., supra, 3 Cal.3d at p. 182), this only created a conflict in the evidence which the trier of fact properly resolved. (See 6 Witkin, Cal. Procedure (2d ed, 1971) Appeal, § 245, p. 4236 et seq.; California School Employees Assn. v. Personnel Commission, supra, 30 Cal.App.3d at pp. 250-253.)

Respondent has cross-appealed from that portion of the judgment which awards appellant the monetary equivalent of vacation benefits and one-half of holidays during the period of wrongful discharge, over and above straight salary for such period. The parties have specifically agreed that “vacation and holiday benefits of the City of Roseville merely entitle an employee to time off with straight salary and ... do not increase the amount of annual salary.” Thus it is clear that had appellant not been wrongfully discharged, he would not have received these sums. It follows that the trial court erred in awarding them. A wrongfully discharged employee, both private and public, is entitled to damages which tend to make him whole; in short, compensatory damages. (Civ. Code, § 3300.) As with recovery in tort