Appendix — Williams v. City of Los Angeles
Supreme Court brief1998
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No.
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1997
RONALD WILLIAMS
Petitioner,
vs.
CITY OF LOS ANGELES
Respondent.
Petition For Writ of Certiorari To the United States Court
of Appeals For the Ninth Circuit
THE APPENDIX IN SUPPORT THEREOF
Ronald Williams
Petitioner In Pro Se
3905 Inglewood Blvd., #307
Los Angeles, CA 90066
(310) 397-4194
XXV
Table of Contents
No. Description of Document Page Nos.
Opinion, USDCA (9" Circuit)........ la-3a
Judgment/Order, USDC ............. 4a-16a
Order USDC (Recusal Motion)....... 17a-18a
Order USDC (Default Judgmnt)...... 19a-24a
Opinion, USDCA (9" Circuit) ........ 25a-30a
Judgment/Order, USDC............ 30a-33a
Judgment/Order, USDC ............. 34a-36a
Order, USDCA (9™ Circuit) .......... 36a-36a
Order, (administrative) City of LA... . 37a-38a
Onder, CABLSap.0, oosccvescsccecs . 38a-39a
Order, (administrative) City of LA.... 39a-4la
Judgment, Calif.Sup.Ct.............. 4la-42a
Opinion, California Court of Appeals... 42a-53a
Transcript, Admin Proceeding........ 54a-55a
NX ASK SAY RPOVOZSPASRMSOMABMSO SP
ood
>
Order, (administrative) City of LA.... 55a-56a
Transcript, Superior Court Hearing... 56a-57a
Transcript, Superior Court Hearing... 57a-6la
Opinion, California Court of Appeals... 61a-72a
COMPLAINT UNDER 28 U.S.C, 2201. 73a-92a
Letter Regarding Termination........ 93a-93a
Order, Judicial Misconduct........... 94a-95a
City's Memorandum (Rule 12(b)(6))... 96a-97a
City's Memorandum (Rule 55(b)(2).... 98a-99a
Supporting Declaration (Rule 55(b)(2) .. 100a-101la
City's Memorandum (Rule 56)........ 102a-105a
Transcript of Proceeding (Rule 12(b)(6) 106a-119a
COMPLAINT UNDER 42 U.S.C. 20003 . 120a-124a
Plaintiff's Memorandum to Disqualify .. 125a-13la
Plaintiff's Request for Oral Argument.. 132a-135a
Petition for Review (28 U.S.C. 372©)....136a-152a
Opinion, Calif State Court of Appeal... 152a-157a
DOCKET, 9'" CIRCUIT COURT..... 157a-159a
DOCKET, In re: CV-90-1252 AWT 159a-l6la
XXvVi
HH DOCKET, In re: CV-93-2783 KMW 162a-169a
IL. Plaintiff's Reply Brief to 9" Circuit . 169a to end
ee
la
Appendix A - Opinion of the United States District Court
of Appeals for the Ninth Circuit
Filed Jan 20, 1998, Cathy Catterson, U.S. Court of Appeal
RONALD WILLIAMS No. 97-55070
Plaintiff - Appellant, DC CV-93-2873 KMW
7,
CITY OF LOS ANGELES MEMORANDUM
Defendant - Appellee.
Appeal from the United States District Court for the Central
District of California
Kim McLane Wardlaw, District Judge Presiding
Submitted January 12, 1998
Before: BROWNING, KLEINFELD, AND THOMAS, Circuit
Judges
1.
Ronald Williams appeals from the district court's
dismissal of his complaint. We affirm. 2
II.
The facts are known to the parties. We will repeat
them here only as necessary.
Il]
This court reviews de novo a district court's dismissal
of a plaintiff's complaint pursuant to Fed. R. Civ. P. 12 (b) (6).
Cohen v. Stratosphere Corp., 115 F.3d 695, 700 (9" Cir. 1997)
Williams argued that Los Angeles City Charter section
2a
190.111 (A) (1) was unconstitutional as applied to him.
However, he has already had a full and fair Opportunity to
litigate his cause of action related to his employment status
with the Los Angeles Police Department. His arguments to
the district court echoed the arguments that he has previously
made before the courts of California. Moreover, Williams
sought reinstatement to his former position with the LAPD in
both his federal and state complaints. Thus, the district court
correctly determined that res judicata and the Full Faith and
Credit Act prevented it from rehearing Williams’ complaint.
See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.
75, 81 (1984).
Nevertheless, Williams insisted that the California
Court of Appeals’ ultimate resolution of his complaint should
have no preclusive effect because that decision misconstrued
the U.S. Constitution and federal law Even assuming for the
moment that the state court decision was flawed, Williams
may not ask the district court to pass on the validity of that
decision. In civil cases, lower federal courts "may not serve as
appellate tribunals to review errors allegedly committed by
state courts." MacKay v. Pfeil, 827 F.2d 540, 543 (9" Cir
1987); see also Martin v Hunter's Lessee, 14 U.S. (1 Wheat.)
141, 149-50 (1816). The United States Supreme Court is the
proper court in which to obtain such review. 28 U.S.C. 1257
(1993). This jurisdictional limit "applies even when the
challenge to the state court decision involves federal
constitutional issues." Worldwide Church of God v. McNair,
805 F.2d 888, 891 (9" Cir. 1986). The district court therefore
lacked jurisdiction to hear Williams’ complaint.
IV.
This court reviews under an abuse of discretion
standard a denial of a motion for entry of default judgment.
Pau v. Yosemite Park and Curry Co.. 928 F 2d 880, 885 (9%
Cir. 1991). The district court denied Williams’ motion
because (1) the defendant made an adequate showing of
excusable neglect, (2) neither party was prejudiced by the
3a
delay in this action, and (3) the defendant had a meritorious
defense. We affirm because the district court's decision was
not capricious.
V.
This court reviews under an abuse of discretion
standard a district court's refusal to disqualify a sitting judge
under 28 U.S.C. 144. Hamid v. Price Waterhouse. 51 F.3d
1411, 1414 (9 Cir. 1995). Williams’ allegation that the trial
judge was motivated by racial animus was wholly
unsupported. Williams also did not present any evidence to
support his assertion that the trial judge was influenced by her
marriage to a city official. Indeed, the relevant hearing
transcripts indicate that the trial judge accorded Williams. a
pro per plaintiff, considerable leeway. Thus, the district
court's refusal to grant Williams' motion to disqualify the trial
judge was not an abuse of discretion. Similarly, the trial judge
did not err in failing to recuse herself.
AFFIRMED
4a
Appendix B - Judgment and Order Granting Defendant's
Motion To Dismiss and Dismissal With Prejudice
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
RONALD WILLIAMS, CASE NO. CV-93-2873 KMW
Plaintiff JUDGMENT
Vs. [Filed DEC. 27, 1996, Clerk U.S. District Court,
Central District of California, By Deputy]
CITY OF LOS ANGELES,
[Entered, Clerk, U.S. District
Defendant. .Court, DEC. 30, 1996]
TO ALL PARTIES AND THEIR ATTORNEYS OF
RECORD:
Pursuant to the memorandum of decision and order
filed herewith, the court grants defendant's motion to dismiss
with respect to all causes of action.
The Court orders that such judgment be entered.
DATED: 12-26-96 go m
Kim McLane Wardlaw
United States District Judge
[ORDER GRANTING DEFENDANT'S MOTION TO
DISMISS AND DISMISSAL WITH PREJUDICE]
The Court has considered Defendant's Motion to
Dismiss Complaint Pursuant to FRCP Rule 12(b)(6), and has
read and reviewed all the materials filed by the parties in
connection with the Motion. Based upon all briefs, exhibits,
declarations, and other evidence submitted by the parties, as
well as all filed and records in this case and oral arguments on
this Motion, the Court hereby GRANTS Defendant's Motion
to Dismiss with prejudice.
er ee
5a
1. BACKGROUND
The merits of plaintiff's claims have been litigated
extensively in both federal and California State Courts.
These cases arise from Williams’ dismissal for
misconduct from the Los Angeles Police Department
in November 1987. In August 1989 plaintiff Ronald
Williams ("Williams") had served twenty years with
the Los Angeles Police Department and held the rank
of Lieutenant II. Following a hearing by the
Department Board of Rights, Williams was found
guilty of three charges stemming from alleged sexual
misconduct: (1) failing to respond accurately to
questions about the allegation; (2) specifically denying
having exposed two minors to an explicit film; and (3)
failing to return two films to the store where he had
rented them.
On October 19, 1987, former Police Chief
Darryl Gates removed Williams from service effective
August 5, 1987. On November 5, 1987, Williams
voluntarily retired by applying to the City of Los
Angeles ("the City") pension board for service
retirement effective August 1, 1987, On November
16, 1987, Williams filed his first suit in California state
court seeking to overturn his removal ("Williams 1").
On December 10, 1987, the pension board granted
Williams’ retirement effective August 1, 1987; shortly
thereafter his monthly pension payments began.
Williams ultimately prevailed in his litigation
to decrease the penalty for his misconduct from
dismissal to suspension. In February 1988, the
California state trial court issued a writ of mandate
ordering the Police Board of Rights ("the Board") to
reconsider the penalty. Upon reconsideration, the
Board again recommended dismissal. In May 1988, the
trial Court issued its second writ of mandate
compelling the Board to reconsider the penalty at less
than dismissal. About that time, the City Attorney
6a
representing the City in this action became aware of
Williams' voluntary retirement from the police force.
The City filed a notice of appeal from the second writ
of mandate contending that Los Angeles City Charter
190.111(A)(1) prohibited reinstatement of an officer
who had voluntarily retired at the rank of Lieutenant or
above. Nevertheless, on August 10, 1989, the
California Court of Appeal ruled in favor of Williams,
affirming the second writ of mandate. Pursuant to the
writ of mandate, the Board reconsidered the penalty
and recommended a 30-day suspension. However,
when Williams sought reinstatement, the City refused
to reinstate him on the basis of City Charter
190.111(A)(1).
Williams then initiated a second state court
proceeding ("Williams II"), filing an amended writ of
mandate seeking recision of his voluntary retirement
on the grounds of mistake and reinstatement. The trial
court held Williams could rescind the retirement on the
basis of mistake and ordered reinstatement. The Court
of Appeal reversed, finding that (1) the City Charter
prevented Williams’ return to duty since he elected to
retire rather than withdraw his pension contributions;
(2) Williams erred unilaterally in his belief that
retirement did not harm his chances for later
reinstatement; and (3) the City did not induce him to
retire voluntarily. Williams v. City of Los Angeles,
229 Cal. App.3d 1627, pet. for rev. denied (1991).
In March of 1990, while the state court action
was pending, Williams initiated suit in federal court for
the Central District of California, CV 90-1252 (AWT) —
(“Williams III"), alleging racial discrimination. The
district court, the Hon. A. Wallace Tashima presiding,
stayed the action until the state court proceedings were
concluded on May 10, 1991. In August 1992, Judge
Tashima dismissed the 1985 claim. Two years later, in
July of 1994, the Court granted summary judgment
7a
against Williams on the remainder of the claims. The
Ninth Circuit affirmed the District Court's judgment on
March 25, 1996, concluding that Williams had been
provided a full and fair opportunity to present his claim
and had nonetheless "failed to articulate any genuine
issue of material fact as to his allegation that the
defendants acted with racial animus and violated 42
U.S.C 1983 and 42 U.S.C. 2000e et seq."
Memorandum of Decision, No. 94-56250 (9 Cir.
March 25, 1996).
On May 18, 1993, Williams filed the instant
complaint ("Complaint") in pro per against defendant
City of Los Angeles (‘the City"), seeking declaratory
_and injunctive relief from this Court ("Williams IV").
The Complaint requests a declaration resolving that:
(1) plaintiff as having been wrongfully
discharged, and under circumstances
highly probative of racial employment
discrimination, (2) that the State Court's
ultimate decision of Plaintiff's retirement
as unconstitutional; (3) Defendants are
without legal justification to interpose
in the civil rights action, the inconsistent
and alternating defenses of Plaintiff's dis-
charge, and that he had also retired, and
(4) further establish, particularly from the
July 10, 1992 motion to dismiss the federal
Complaint action which sought dismissal
of the Title VII claims from the results of
the May 10, 1991 State Appeal decision
was an abuse of the federal court process:
it sought use of the waiver clause of the
City's pension ordinance plan, falsely
Raised by Defendants and unconstitutionally
constructed and enforced by the State Court,
as legal justification to further waive Plaintiff's
right to maintain the action under Title VIL.
8a
The City failed to answer or otherwise respond to the
Complaint. On August 2, 1993, the clerk entered default
against the City. On the same date, the clerk rejected a request
by Williams for entry of default judgment, and advised
Williams that such relief could only be granted upon a
formally noticed motion. On August 6, 1993, the Court issued
a Notice of Discrepancy and Order rejecting Williams’ request
for default judgment. On February 1, 1996, this case was
reassigned by order of the Chief Judge from the calendar of
Judge Tashima to the calendar of Judge Wardlaw.
On April 1, 1996, this Court issued an Order to Show
Cause ("OSC") Regarding Dismissal for Lack of Prosecution
and scheduled a hearing on the OSC for April 15, 1996. The
matter was heard on that date by Judge Lourdes Baird who did
not rule, but took the matter under submission. After a review
of the hearing transcript, as well as all pleadings, this Court
ordered that on or before May 31, 1996, Williams move the
Court for entry of default judgment or other wise proceed with
the prosecution of this action. The Court noted that if
Williams continued to fail to prosecute this action, the Court
would again consider dismissing the case, upon motion by the
City
On May 28, 1996, Williams moved for entry of default_
judgment. The City opposed the motion and requested that the
Court set aside entry of default. The Court on June 27, 1996,
filed an order setting aside the entry of default, denying the
motion for default judgment, and directing the City to answer
or otherwise respond to the Complaint within 20 days of June
26, 1996.
On July 15, 1996, the Plaintiff filed a Motion for Order
of Court Recusing Itself. This motion was heard by Judge A.
Andrew Hauk.
On July 16, 1996 the City responded to the Complaint
by moving for its dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(6), contending that the complaint fails to state
a claim upon which relief may be granted because (1)
abstention is appropriate under the doctrine of Younger v.
|
9a
Harris; (2) the Complaint fails to offer any statutory basis for
convening a three-judge district court panel, (3) the complaint
asks this federal court to deny full faith and credit to a
decision of the highest court of a State; and (4) Williams
should have, but did not, exercise his rights to appeal the
decisions of which he complains here.
Il. Standards Government Motion
A. Legal Standard
A Rule 12(b)(6) motion tests the legal sufficiency of
the claims asserted in the complaint. Read 12(b)(6) must be
read in conjunction with Rule 8(a) which requires "a short and
plain statement of the claim showing that the pleader is
entitled to relief" SA Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure 1356 (1990). Therefore, a
court must not dismiss a complaint for failure to state a claim
"unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957), Moore
v. City of Costa Mesa, 886 F.2d 260, 262 (9" Cir. 1989)
(quoting Conley v. Gibson), cert Denied, 496 U.S. 906
(1990); see Haddock v. Board of Dental Examiners of
California, 777 F.2d 462 (o® Cir. 1985) (complaint should not
be dismissed if it states a claim under any legal theory, even if
the plaintiff erroneously relies on a different legal theory). In
other words, a Rule 12(b)(6) dismissal is proper only where
there is either a “lack of a cognizable legal theory" or "the
absence of sufficient facts alleged under a cognizable legal
theory." Ballistreri v. Pacifica Police Dept., 901 F.2d 696, 699
(9" Cir. 1988).
A court must accept as true all material allegations in
the complaint, as well as reasonable inferences to be drawn
from them. Usher v. City of Los Angeles, 828 F.2d 556, 561
(9" Cir. 1987); NL Industries, Inc. v. Kaplan, 792 F.2d 896,
898 (9" Cir. 1986); see also Russell v. Landrieu, 621 F.2d
1037, 1039 (9" Cir. 1980) (finding that the complaint must be
read in the light most favorable to the plaintiff). However, a
10a
court need not accept as true unreasonable inferences or
conclusory legal allegations case in the form of factual
allegations. Western Min. Council v. Watt, 643 F.2d 618, 624
(9 Cir), cert. Denied, 454 US. 103] (1981). The court may
consider material submitted with the complaint for the
purposes of a motion to dismiss. Hal Roach Studios v
Richard Feiner & Co., 886 F.2d 1542, 1555 (9 Cir. 1990).
Matters properly the subject of judicial notice may also be
considered by the court in deciding a motion to dismiss
without converting the motion into a Rule 56 motion for
summary judgment. Schwarzer, Tashima, and Wagstaffe, Cal.
Prac. Guide: Fed. Civ. Pro. Before Trial (The Rutter Group
1995) 9:212.2 (citing MGIC Indem Corp. v. Weisman, 802
F.2d 500, 504 (9" Cir. 1986); Henson v. CSC Credit Servs. 29
F.3d 280, 284 (7" Cir. 1994),
For all of these reasons, it is only under extraordinary
circumstances that dismissal is proper under Rule 12(b)(6).
United States v. City of Redwood City, 640 F 2d 963. 966 (*
Cir. 1981).
IIL Analysis
A Legal Standard
Full Faith and Credit of State Court Actions’
Under the Full Faith and Credit Act, 28 US.C 1738, a federal
court must “give a state court judgment the same preclusive
effect as would be given that judgment under the law of the
State in which the judgment was rendered " Migra v. Warren
City School Dist. Bd. of Education, 465 US. 75, $1 (1984),
see also Turnbow v. Pacifica Mutual Life Insurance Co., 934
F.2d 1100, 1103 (9” Cir. 1991) ("[flederal district courts, as
courts of original jurisdiction, may not serve as appellate
tribinals to review errors allegedly committed by state courts”
(citations and quotations omitted). This is true, even if the
- Ila
state court decisions was erroneous. See Federated Dept.
Stores v. Mottie, 452 U.S. 394, 398 (1981) (holding that "[a]
judgment merely voidable because based upon an erroneous
view of the law is not open to collateral attack, but can be
corrected only by a direct review and not by bringing another
cause of action upon the same cause of action") (quotations
omitted). This is also true, even when the constitutionality of
the underlying decision is challenged. See Migra v. Warren
City Sch. Dist. Bd. of Education, 465 U.S. 75, 82 (1994)
(stating that "[nJothing abot the preclusive effect of state-court
judgments.") (quotations omitted)
2. Res Judicata :
The doctrine of res judicata is closely related to the theory
of full faith and credit. Res judicata is a judicial doctrine
designed to accord finality to judgments and prevent endless
litigation. California state law governs the issue of whether a
state court judgment precludes the right to proceed in federal
court. Sanchez v. City of Santa Ana, 936 F.2d 1027, 1035 (9"
Cir. 1990), cert. Denied 502 U.S. 957 (1991). As a general
rule, in California, "a single cause of action cannot be split and
made the basis for several suits." Ferraro v. William Lyles
Const. Co., 102 Cal. App. 3d 33, 41 (1980).
California applies a “primary rights” theory to define what
constitutes a single cause of action and determine whether
subsequent claims are barred by res judicata. Slater v.
Blackwood, 15 Cal. 3d 791, 795 (1975)(stating that “even
where there are multiple legal theories upon which recovery
might be predicated, one injury gives rise to only one claim
for relief"), Agarwal v. Johnson, 25 Cal. 3d 932 (1979)
(explaining that “there is only a single cause of action for the
invasion of one primary right . . . But the significant factor is
the harm suffered, that the same facts are involved in both
suits is not conclusive”), Sawyer v. First City Financial Corp.,
Ltd., 124 Cal. App. 3d 390, 399 (1981) (explaining that "the
primary right to be free from personal injury has been
construed as to embrace all theories of tort which might have
given rise to the injury"). In other words, if a court concludes
I2a
that the same primary right is involved in two actions, the
prior judgment serves to bar consideration of all matters
actually raised in the first action, and also all matters which
could have been raised at that time. Eichman v. Fotomat
Corp., 147 Cal. App. 3d 1170, 1175 (1983).
Under California Law, res judicata applies
when:
(1) there was a final judgment on the merits: (2)
the claims were part of a cause of action that was
litigated and decided, or that might have been liti-
gated, in the earlier proceeding: and (3) the parties
against whom the principle is invoked were parties
Or in privity with a party to the prior adjudication. Los
Angeles Unified School District v. Los Angeles Branch
NAACP, 714 F.2d 935, 939 (9" Cir. 1983) cert. Denied, 474
U.S. 919 (1985).
Federal criteria are used to determine the res judicata
effect of the decisions of the district court and the Ninth
Circuit. The federal test involves four elements:
(1) whether rights or interests established inthe _
prior judgment would be destroyed or impaired
by prosecution of the second action; (2) whether
substantially the same evidence is presented in
the two actions; (3) whether the two suits involve
infringement of the same right; and (4) whether the
two suits arise out of the same transactional nucleus
of facts. Constantini v. Trans World Airlines, 681 F.2d
1199, 1201 (9 Cir. 1982).
B. The Full Faith and Credit Act and Res Judicata
Principles Bar Relitigation of Williams' Claims.
Williams attempts to attack the judgments of the
California and federal courts through 28 U.S.C. 2201.'
' 28 U.S.C. 2201(a) provides: "[I]n a case of actual controversy with its
jurisdiction . . . any court of the United States. upon the filing of an
appropnate pleading. may declare the rights and other legal relations of
l3a
Williams claims he is entltled to declaratory and injunctive
relief, invoking a district court panel of three judges pursuant
to 28 U.S.C. 2284, * to declare unconstitutional the decision
by the Court of Appeals for the Second Appellate District of
the State of California Williams v. City of Los Angeles, 229
Cal.App.3d 1627 (1991), pet. for rev. denied, August 1, 1991
("Williams 1"), and to enjoin its further enforcement. The
gravamen of Williams' Complaint in this action is that he was
wrongfully discharged and the discharge was racially
motivated.’ However, all of Williams’ claims have been
litigated previously either in state or federal court or both. The
principles of full faith and credit and res judicata thus preclude
relitigation of Williams before this Court.
1. The Full Faith and Credit Act Prevents This
Court from Disturbing the Ruling of the California Court
of Appeal.
This Court is required by 28 U.S.C. 1738, to give full
faith and credit to the actions of the California courts. The
Full Faith and Credit Act gives force to state claims to which
res judicata principles apply. Williams first two claims
relating to his discharge and the interpretation of City Charter
190.111(a)(1) were litigated in Williams I & II. Williams is
any interested party seeking such declaration, whether or not further relief
is or could be sought. Any such declaration shall have the force and effect
of a final judgment or decree and shall be reviewable as such".
> 28 U.S.C. 2284 provides: [a] district court of three judges shall be
convened when otherwise required by an Act of Congress, or when an
action is filed challenging the constitutionally of the apportionment of
congressional districts or the apportionment of any statewide legislative
body.”
> In this action, Williams seeks a declaratory judgment resolving that (1)
plaintiff has been wrongfully discharged under circumstances highly
probative of racial employment discrimination, (2) that the State court's
decision regarding plaintiff's retirement is unconstitutional; (3) defendants
have interposed inconsistent defenses in the Civil Rights action, and (4)
that defendant's motion to dismiss in Williams II was an abuse of the
federal court process. Complaint #9.
l4a
asking this Court to rule that the decision in Williams I
reinstating him is correct and that the decision in Williams II
should be declared unconstitutional. However, Williams has
provided no basis for this Court to endorse, interfere with or
invalidate the decisions of the C alifornia Court of Appeal.
To provide the relief Williams requests, this Court
would be required to provide its own interpretation of C ity
Charter 190.111 as it relates to Williams’ retirement and
reinstatement. However, this Court is barred by the decision
of the California Court of Appeal in Williams II from taking
such an action. All three of the elements of res judicata have
been met. First, the California Court of Appeal in Williams II
reached final judgment on the merits Second, the claims
presented in the instant action are identical to the claims
presented in Williams II. The Williams I] court determined
that, based on his voluntary retirement, Williams was not
entitled to be reinstated to the Los Ange'es Police Department.
Third, the parties in Williams II were Williams as plaintiff and
the City and Darryl Gates as defendants, almost identical to
and inclusive of the parties in this action.
2. The Doctrine of Res Judicata Precludes this
Court from Disturbing the Ruling of The Ninth Circuit
Court of Appeals
Williams’ first claim relating to the alleged
discriminatory acts of the City were litigated in Williams IT]
In Williams III the Court determined that Williams had failed
to allege actionable conduct of discrimination under [section]
1983 and Title VII. All four of the federal criteria for res
judicata are satisfied: (1) the rights and interests of the C ity
established in Williams III (that the City did not discriminate
against Williams) would be destroyed by this action; (2)
substantially the same evidence would be presented in this
case; (3) both suits involve infringement of the same right -
Williams' right to employment by the City; and (4) both suits
arise Out of the same nucleus of facts - Williams' dismissal by
the City. Williams admitted that the issues and the parties
were the same as the present case during a hearing on April
OO ——
15a
1S, 1996... .. As Williams has stated, the only difference
between this lawsuit and the lawsuit in Williams III is that he
is proceeding under a different theory of recovery. However,
res judicata applies even where the plaintiff pleads a different
theory of recovery. Clark v. Yosemite Community College
Dist., 785 F.2d 781, 786 (9" Cir. 1986) (holding that "the
same primary right is at stake even if. . the plaintiff pleads
different theories of recovery, seeks different forms of relief
and/or adds new facts supporting recovery") if Williams
disagreed with the decision of the Ninth Circuit, Williams
should have sought review of its decision by the United States
Supreme Court. This Court is without power or authority to
alter that judgment.
Similarly, Williams’ third and fourth claims contending
that the City interposed inconsistent defenses and the City's
motion to dismiss was an abuse of the federal court process
should have been raised in the District Court action in
Williams III or to the Ninth Circuit on Williams' appeal.
i a Declaratory Judgment By This Court Would
Not Be Proper
The declaratory judgment act is not a proper vehicle
for Williams to pursue his claims. Instead of seeking review
by the Supreme Court, Williams is attempting to use the
declaratory judgment relief act in a way that was never
intended. Williams relies on Dombrowski v Pfister, 380 U.S
479 (1965) and Peters v. Hobby, 349 U.S. 331, to support this
effort. Both cases are inapposite. Neither Dombrowski nor
Peters suggests that a district court has the power to overturn,
set aside or otherwise deny full faith and credit to a final
action of a state court or another federal court. In Dombroski,
the plaintiff sought an injunction against state officials to stop
them from enforcing a criminal statute which, they claimed,
violated their civil rights. After a three-judge district court
panel dismissed the complaint, the Supreme Court held that
the district court's abstention was inappropriate where "a
substantial loss or impairment of freedoms of expression will
occur if appellants must await the state court's disposition and
l6a
ultimate review in [the Supreme Court] of any adverse
determination." Id. at 485-486. Unlike the plaintiffs in
Dombrowski, Williams is not seeking to enjoin any actual or
threatened state prosecution. He has failed to demonstrate any
reason why his case is any different than the hundreds of cases
determined every day for which review in the Supreme Court
of the United States is the only constitutional means of
appellate review.
The holding in Peters is also inapplicable to this case.
Peters involved district court review of a federal agency
finding. Nothing in Peters suggests that the administrative law
principles they discussed apply to the final judgment of a state
or federal court.
Finally, Williams proposes that a three-judge panel be
convened to grant him the declaratory and injunctive relief he
is seeking. There is no basis for convening such a panel in this
case. The statutory basis cited by Williams allows for the
convening of such a panel when "the apportionment of
congressional districts or the apportionment of any statewide
legislative body " is challenged. 28 U.S.C. 2284. Williams is
not challenging either.
IV. Conclusion
Williams' claims are barred by the doctrine of res
judicata and the Full Faith and Credit Act, 28 U.S.C. 1738,
which requires this Court to "give a state-court judgment the
same preclusive effect as would be given that judgment under
the law of the State in which the judgment was rendered."
Accordingly, the Court hereby GRANTS with prejudice the
Motion to Dismiss pursuant to Rule 12(b)(6). It is ordered
that the complaint be dismissed with prejudice and judgment
entered accordingly.
IT IS SO ORDERED
DATED: 12-26-96 “~~...
Kim McLane Wardlaw
United States District Judge
17a
APPENDIX C - ORDER OF DISTRICT COURT
DENYING MOTION FOR RECUSAL
United States District Court
Central District of California
[Filed, Clerk U.S. District Court JUL. 26, 1999]
RONALD WILLIAMS CV 93-2873 KMW
Plaintiff,
Vv. ORDER DENYING
PLAINTIFF'S MOTION
CITY OF LOS ANGELES TO DISQUALIFY, etc.
Defendant. ENTERED , Clerk U.S.
JUL 31.1991 District Court
This action having been submitted to the Court, the
Honorable A. Andrew Hauk, Judge presiding, upon the motion
of Plaintiff, RONALD WILLIAMS, to disqualify the
Honorable Kim M. Wardlaw from all further proceedings per-
taining to the above-entitled action, and the Court having con-
sidered the documents submitted, and having determined that
this motion is appropriate for decision without oral argument
or further briefing of the law, the undersigned Judge Hauk
now finds as follows:
1. The papers submitted by Plaintiff are based
entirely upon Plaintiff's belief and opinion that Judge Wardlaw
is a racist and that she is acting to protect the Ninth Circuit
Judges Tashima, Beezer, Brunetti, and Noonan. There is no
factual basis for the allegations of bias and prejudice. More-
over, this Court, upon examination of the entire record, finds
that Plaintiff's claims that Judge Wardlaw is what he calls a
"racist" are scurrilous, unbelievable and outrageous and, in
fact, are so utterly nonsensical that they should not even be in
the papers which Plaintiff has filed.
Nonetheless, the Court has considered the papers filed
by the Plaintiff and places no stock in Plaintiff's claims. Plain-
tiffs claims are the ravings of someone who is unhappy with
himself and also the world, and vents his spleen upon a Judge
whose absolute lack of bias is well-known. Plaintiff's attempt
to blacken Judge Wardlaw's name and reputation is
18a
reprehensible and, if repeated, could easily serve as the basis
for contempt.
. A motion to disqualify a judge must be based
upon a "timely and sufficient" declaration by a party to the
action that the presiding judge "has a personal bias or
prejudice either against him or in favor of the adverse party."
28 U.S.C. 144. The declaration must contain specific facts
and reasons for the belief that the presiding judge is biased,
and conclusionary allegations are not sufficient to support a
motion to disqualify. See United States v. Sibla, 624 F.2d 864,
868 3 (9 Cir. 1980); Hinman v. Rogers, 831 F.2d 937, 939
(10™ Cir. 1987). Because Plaintiff's declaration in support of
his motion 1s based entirely upon his opinion and belief, the
papers filed by the Plaintiff are not legally sufficient as
required by 28 U.S.C. 144, and do not raise any case for
recusal on the merits as required by 28 U.S.C. 455.
NOW, THEREFORE, IT IS HEREBY ORDERED AS
FOLLOWS:
1. Plaintiff's Motion to Disqualify Judge Kim M.
Wardlaw, filed on July 15, 1996, is denied.
= This matter, "Ronald Williams v. City of Los
Angeles, CV-93-2873-KMW (SHX), " is hereby transferred
and assigned back to the Honorable Kim M. Wardlaw, Judge
herein, under the applicable rules and regulations of this
Court, for all further proceedings.
3. The Clerk of the Court shall file and enter this
Order and serve copies thereof upon all parties, counsel of
record, and upon the Honorable Kim M. Wardlaw and her
Clerk of Court.
Date 7/26/96 "s/s"
A. Andrew Hauk
United States District Judge
19a
APPENDIX D - ORDER OF THE DISTRICT COURT
SETTING ASIDE ENTRY OF DEFAULT, ETC.
FILED JUN 27, 1996
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ENTERED JUN 28 1996 Clerk U.S. Dist Court
RONALD WILLIAMS — CASE NO. CV-93-2873
Plaintiff,
Vs. ORDER SETTING ASIDE
ENTRY OF DEFAULT; ORDER
CITY OF LOS ANGELES DENYING MOTION FOR
Defendant. ENTRY OF DEFAULT JUDG-
MENT This constitutes Notice
Notice of Entry FRCP 77
> The Court has considered Plaintiff's Motion for Entry
of Default Judgment and has reviewed all of the material file
by the parties in connection with the Motion. The Court has
also considered defendant's request that entry of default be set
aside. Based upon all briefs, exhibits, declarations, and other
evidence submitted by the parties, as well as all files and
records in this case, the Court hereby sets aside entry of
default and denies Plaintiffs Motion for Entry of Default
Judgment.
1. PROCEDURAL BACKGROUND
On May 18, 1993, plaintiff Ronald Williams ("Plaintiff")
filed a Complaint in pro per against defendant City of Los
Angeles ("the City") seeking declaratory and injunctive relief.
The Complaint requests a declaration that the decision in
Williams v. City of Los Angeles, 229 Cal.App.3d 1627 (1991)
is invalid and unconstitutional. In Williams, the California
Court of Appeals held that Section 190.111(A)(1) of the Los
Angeles City Charter barred reinstatement of Plaintiff to his
former position with the Los Angeles Police Department
because Plaintiff voluntarily retired from the force before
petitioning the court for reinstatement
The City failed to answer or otherwise respond to the
Complaint. On August 2, 1993, the clerk entered default
‘ 20a
against the City. On the same date, the clerk rejected a request
by Plaintiff for entry of default judgment, and advised Plaintiff
that such relief could only be granted upon a formally noticed
motion. On August 6, 1993, the Court issued a Notice of Dis-
crepancy and Order rejecting Plaintiff's request for default
judgment.
On April 1, 1996, the Court issued an Order to Show
Cause ("OSC") Regarding Dismissal for Lack of Prosecution
and scheduled a hearing on the OSC for April 15, 1996. At the
hearing, the Court did not dismiss the action, but ordered that
on or before May 31, 1996, Plaintiff move the Court for entry
of default judgment or otherwise proceed with the prosecution
of this action. The Court noted that if Plaintiff continued to
fail to prosecute this action, the Court would again consider
dismissing the case, upon motion by the City.
On May 28, 1996, Plaintiff moved for entry of default
judgment. The City opposed the motion and requested that the
Court set aside entry of default. Plaintiff seeks sanctions under
Local Rule 7.7 because the City's opposition papers were filed
one week late.
For reasons set forth below, the Court hereby denied
Plaintiff's motion for entry of default judgment and sets aside
entry of default.
Il. DISCUSSION
A. Legal Standard
Fed. R. Civ. P. 55 (c) states in pertinent part, "for good
cause shown, the court may set aside an entry of default. . ."
Rule 60(b) provides that "the court may relieve a party ora
party's legal representative from a final judgment, order, or
proceeding for the following reasons: mistake, inadvertence,
surprise, or excusable neglect... . Fed.R.Civ.P. 60(b). The
"good cause" that must be shown to set aside entry of default
under Rule 55 is essentially the same as the "mistake, inadver-
tence, surprise, or excusable neglect" required for vacating a
default judgment under Rule 60(b). Chrysler Credit Corp. v.
Macino, 710 F.2d 363, 367 (7" Cir. 1983)
21a
Although the grounds for relief under the two rules are
virtually identical, the "good cause" required for relief from
entry of default is a more lenient standard that the "mistake,
inadvertence, surprise, or excusable neglect" required for
vacating a default judgment. Meehan v. Snow, 652 F.2d 274,
276 (2™ Cir. 1981). Thus, the Court's discretion is especially
broad when it sets aside an entry of default, as opposed to a
default judgment. O'Connor v. State of Nevada, 27 F.3d 357,
364 (9" Cir. 1994), cert. Den. 115 S.Ct. 1367, citing Mendoza
v. Wight Vineyard Mgmt., 783 F.2d 941, 945 (9" Cir. 1986).
Criteria which the Court may consider in determining whether
to grant relief from default include: (1) reasonable excuse, (2)
the degree of prejudice to plaintiff if the motion is granted,
and (3) any meritorious defenses. See e.g., Falk v. Allen, 739
F.2d 461, 463 (9" Cir. 1984).
B. The City Has Made An Adequate Showing of Good
Cause to Warrant Setting Aside the Entry of Default.
Here, the City has made an adequate showing of good
cause to set aside entry of default. The City has shown that
(1) its failure to answer the Complaint was the result of
"excusable neglect";" (2) Williams will not be prejudiced by
setting aside the entry of default; and (3) the City has a bona
fide chance of successfully defending this action. Accordingly,
the Court hereby sets aside entry of default.
1. Reasonable Excuse
The Court should set aside an entry of default when the
moving party has shown a reasonable excuse for the default.
Meadows v. Dominican Republic, 817 F.2d 517 (9" Cir.
1987). Although the defaulting party need not show that the
default was due to matters beyond its control, courts should
not grant relief where the failure to answer results from
culpable conduct or reflects a conscious desire to avoid
defending the suit. Schwarzer, Tashima & Wagstaffe,
CALIFORNIA PRACTICE GUIDE: FEDERAL CIVIL
PROCEDURE BEFORE TRIAL, 6:158 (The Rutter Group
1996); Direct Mail Specialists, Inc. v. Eclat Computerized
Technologies, Inc., 840 F.2d 685, 690 (9" Cir. 1988). When
ake
a ee
2
;
F
22a
deciding whether a party's neglect is "excusable," courts
should consider the equities of the case, taking into account all
relevant circumstances and consequences resulting from the
failure to answer on time. See Pioneer Investment Services
Co. v. Brunswick Associates Ltd. Partnership, 113 S.Ct. 1489,
1497 (1993).
The City claims that it has no record of being served
with Plaintiff's Complaint and that it did not become aware
that a detault had been entered until the April 15, 1996 hearing
on the OSC re dismissal for lack of prosecution. Cramer Decl.
10. During the April 15, 1996 hearing the Court concluded
that the City was in fact served with the Complaint. Despite its
failure to respond, it does not appear that the City desires to
avoid defending the suit or that its failure to answer was the
result of culpable conduct. During the past five years, this
Plaintiff and Defendant have been litigating similar claims in
this Court and California state courts. It is unlikely that the
City consciously defaulted on this Complaint while vigorously
defending similar claims. Therefore, the Court concludes that
City has made an adequate showing of excusable neglect.
2. Degree of Prejudice
If the plaintiff will suffer prejudice by the setting aside
of an entry of default, the court may deny the motion. Direct
Mail Specialists, Inc., 840 F.2d at 685.
Plaintiff does not assert that he will be prejudiced with
respect to the instant action by the setting aside of the entry of
default, but instead claims that delay in this action has
somehow prejudiced the outcome of Plaintiff's other, now
concluded, litigation. The record indicates that Plaintiff is as
culpable as the City for the lengthy delay between the entry of
default and the instant motion. Moreover, contrary to his
assertions, setting aside entry of default cannot possibly affect
the outcome of litigation which has already been completed:
therefore, Plaintiff will suffer no prejudice resulting from the
Court setting aside the Entry of Default.
3. Meritorious Defense
A party against whom a default has been entered must
23a
make some showing of a meritorious defense before a court
will vacate the order. Hawaii Carpenters’ Trust Funds v
Stone, 794 F.2d 508, 513 cg" Cir. 1986). The question is
whether is whether there is some possibility that the outcome
of the suit after a full trial will be contrary to the result
achieved by the default. Id. The defendant need only show a
bona fide chance that it may prevail, not necessarily that it will
prevail. Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3 Cir.
1984).
Plaintiff seeks a declaration that the decision in
Williams v. City of Los Angeles, 229 Cal.App.3d 1627 (1991)
is unconstitutional and contrary to controlling state law.
Complaint #5. The requested declaratory relief relates to a
prior state court action filed by Plaintiff against the City and
several other defendants. The prior action related to the
termination of Plaintiff's employment and was ultimately
resolved against Plaintiff and in favor of the defendants
Plaintiff subsequently attempted to avoid the adverse ruling in
the siate court action by filing a civil rights action in federal
court. The federal action also resulted in an adverse judgment
against Plaintiff, and this judgment was affirmed by the Ninth
Circuit.
In light of this history, the Court finds that the City
clearly has a bona fide chance of prevailing on the merits. The
existence of a meritorious defense to the instant case supports
the setting aside of entry of default.
i Even Absent a Showing of Good Cause to Set Aside
Entry of Defauit, the Motion for Entry of Default Would
be Denied
The Court cannot grant a motion for default judgment
where the complaint states legally insufficient claims. See
Cripps v. Life Ins. Co. Of No. America, 980 F.2d 1261, 1267
(9" Cir. 1992).
Plaintiff requests a declaration that Williams is
contrary to controlling state law and unconstitutional. The
Court questions whether Plaintiff should more appropriately
24a
seek relief by petitioning the California Supreme Court. See
Beltran v. State of California 871 F.2d 777 (9" Cir. 1988). In
addition, it is not clear to the Court that the Complaint
requests declaratory relief in a case or controversy which has
not already been adjudicated in this Court. The Court reserves
judgment as to whether Plaintiff's complaint is legally
sufficient until such time as the issue is fully briefed by both
sides, but concludes that the apparent deficiencies in the
Complaint support the setting aside of entry of default.
D. Plaintiff's Motion for Entry of Default Judgment is
Denied.
Pursuant to Fed.Civ.P. 55(b)(2), judgment by default
may be entered by the Court. Ninth Circuit law generally
disfavors defaults judgments because of strong public policy
in favor of resolving lawsuits of their. See e.g. Eitel v.
McCool, 782 F.2d 1470, 1472 (9" Cir. 1986).
The Court has determined that entry of default should
be set aside. Moreover, the deficiencies in the complaint
weigh against the Court granting the motion for default
judgment even if the City had failed to oppose Plaintiff's
Motion. In light of the strong policy in favor of resolving
lawsuits on their merits, the Court hereby denies Williams’
Motion for Entry of Default Judgment.
E. Plaintiff's Request for Sanctions Is Denied
The imposition of sanctions and penalties pursuant to
The Federal Rules of Civil Procedure and the Local Rules is
left to the Court's discretion. In this case, Plaintiff has suffered
no prejudice from the one-week late opposition, and Plaintiff's
request for sanctions is therefore denied.
Ill. CONCLUSION
For the reasons discussed, the Court hereby sets aside
Entry of Default and denies Williams' motion for entry
judgment. Therefore, the Court hereby ORDERS Defendant
to answer or otherwise respond to the Complaint within 20
days of this Order.
IT IS SO ORDERED
DATED: June 26,1996 "S/J" K.M. Wardlaw
25a
APPENDIX E - OPINION OF THE UNITED STATES-
COURT OF APPEALS FOR THE NINTH CIRCUIT,
FILED MARCH 25, 1996
RONALD WILLIAMS | No. 94-56250
Plaintiff-Appellant,
v.
CITY OF LOS ANGELES; DARRYL F. GATES, Chief of
Police, as Chief of Police and Individually, ROBERT Mc-
NAMARA, Individually; and CONNIE CASTRUITA, Indivi-
dually, FILED MAR 25, 1996
Defendants-Appellees. Cathy Catterson,
Memorandum Clerk, U.S. Court of Appeals
Appeal from the United States District Court for the Central
District of California
A. Wallace Tashima, District Judge Presiding
Argued and Submitted February 9, 1996
: Pasadena, California
Before: BEEZER, BRUNETTI, and NOONAN, Circuit
Judges
The district court granted summary judgment for
defendants on Ronald Williams’ claims that he was denied his
constitutional right to continue public employment for racially
discriminatory reasons in violation of 42 U.S.C. 1983, 1985
and 2000e (Title VII). We agree with the district court that
Williams voluntarily retired from the Los Angeles Police
Department (the "Department") and affirm grant of summary
judgment in favor of the City of Los Angeles, former Police
Chief Darryl Gates and Robert McNamara and Connie
Castruita, Department Internal Affairs investigators.
FACTS
In August, 1987, Williams had served twenty years
with the Los Angeles Police Department and held the rank of
Lieutenant II. Following a hearing by the Department Board
of Rights, (the "Board") Williams was found guilty of three
charges stemming from alleged sexual misconduct: failing to
respond accurately to questions about the allegations,
| NT TT :
26a
specifically denying having exposed two minors to an explicit
film, and failing to return two films to the store where he had
rented them. Williams could not be disciplined for the alleged
misconduct itself because it had occurred over a year before
the Department commenced disciplinary proceedings. On
October 19, 1987, Gates removed Williams from service
effective August 5, 1987. Williams then took the following
steps:
November 5, 1987: Williams voluntarily retired by
applying to the City pension board for service retirement
effective August 1, 1987.
November 16, 1987: Williams filed suit in the
California courts seeking to overturn his removal.
December 10, 1987: the pension board granted
Williams' retirement effective August 1, 1987; his monthly
pension payments soon began.
Proceedings in the Los Angeles Superior Court first
yielded an order to the Board to set a new penalty because the
Board improperly considered the sexual misconduct
allegations in recommending removal. In response the Board
again recommended termination but specified that Williams’
guilt on the three charges was the only basis for the penalty.
Once more Williams petitioned the Los Angeles Superior
Court which ordered the Board to reinstate Williams and to
impose a penalty less than termination. The Board then
recommended a 30-day suspension in which Gates concurred.
However, when Williams sought reinstatement the City
argued that the City Charter prohibited reinstatement of
anyone, like Williams, retired voluntarily at the rank of
lieutenant or above.
Williams returned to the state courts where the
Superior Court ordered his reinstatement but the Court of
Appeals reversed, finding that (1) the City Charter prevented
Williams' return to duty since he elected to retire rather than
withdraw his pension contributions, (2) Williams erred unila-
terally in his belief that retirement did not harm his chances
27a
for later reinstatement, and (3) the City did not induce him to
retire voluntarily. See Williams vs. City of Los Angeles, 229
Cal. App.3d 1627, 281 Cal.Rptr. 21, pet. for rev. denied (1991)
In March 1990 Williams initiated this federal suit
alleging racial discrimination. The district court stayed the
action until the state court proceedings were concluded, on
May 10, 1991. In August 1992 the district court dismissed the
1985 claim. Summary judgment was granted in July 1994.
STANDARD OF REVIEW
Summary Judgment
Williams contends that the district court erred in
granting the summary judgment on grounds other than those
raised by the parties in their summary judgment pleading.
Williams cites no cases to support this contention. The record
reveals that Williams had a full and fair opportunity to discuss
the issues behind the district court's grant of summary
judgment. Pumphrey v. K.W. Thompson Tool Co., 62 F.3d
1128, 1131, n.1 (9" Cir. 1989), cert. Denied 64 U.S.L.W.
3587, 3591 (March 4, 1996) (No. 95-1054), United States v.
Grayson, 879 F.2d 620, 625 (9" Cir. 1989). These issues
included whether Williams was barred from maintaining a
wrongful termination action by his voluntary retirement and
whether the City's liability was precluded because of its
actions, even if racially motivated, did not result in any harm
to Williams.
In its Statement of Uncontroverted Facts and
Conclusions of Law submitted on the summary judgment
motion the City presented arguments that Williams’ voluntary
retirement was Williams’ voluntary decision and state
specifically that these facts "preclude the maintenance of any
of Williams’ theories of relief in the present action." These
pleadings and other papers filed with the court gave Williams
adequate notice that these issues would be discussed in
connection with summary judgment.
At the summary judgment hearing Williams counsel
discussed at length the harm he felt Williams suffered and
whether racial animus existed. The court limited its
28a
discussion at the hearing to matters relevant to the one issue
preserved for trial in the pretrial conference order - whether
racial animus existed in the City's action - and to matters
raised in the City's proposed Statement of Uncontroverted
Facts. The district court order reiterated that there was no
evidence of racial animus and that there was no legal harm to
plaintiff. The record shows that Williams had ample
opportunity to address all issues which the district court
considered in granting summary judgment.
Summary judgment was proper because Williams
failed to articulate any genuine issue of material fact as to his
allegations that the defendants acted with racial animus and
violated 42 U.S.C. 1983, and 42 U.S.C. 2000e et seq. ("Title
VII"). The district court properly concluded that the decision
of the California Court of Appeals in Williams v. City of Los
Angeles, supra, precluded maintenance of relief under any of
Williams’ theories of racial discrimination. That opinion
established that Williams retired voluntarily, not at the induce-
ment of any City official. These established facts precluded
the existence of any issues of material fact for Williams’ 1983
claims.
To prevail on summary judgment of the Title VII claim
Williams had to establish a prima facie case of discrimination.
Washington v. Garrett, 10 F.3d 1421, 1432 (9" Cir. 1993).
The district court properly concluded that the uncontroverted
facts showed no evidence of racial animus. The court also
correctly concluded Williams failed to meet his summary
judgment burden of coming forward with a prima facie case
that defendants' actions were motivated by intentional racial
discrimination.
Recusal
Williams argues that his own action in sending three
disrespectful letters to Judge Tashima should have resulted in
the Judge's recusal. Williams contends that the letters, which
allegedly described the Judge in terms such as "repressive",
"racist", and "not fit to sit of a bench" prejudiced the Judge
against Williams.
29a
28 U.S.C. 455 provides that: (a) Any justice, judge
or magistrate of the United States shall disqualify
himself in any proceeding in which his impartiality
might reasonably be questioned. (b) He shall also
disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice con-
cerning a party..."
Recusal under 455 “is appropriate where a reasonable
Man with knowledge of all the facts would conclude that [the]
judge's impartiality might reasonably be questioned." Moideen
v. Gillespie, 55 F.3d 1478, 1482 (9" Cir. 1995). This standard
for judging the appearance of partiality is an objective one.
Preston v. U.S., 923 F.2d 731 (9 Cir. 1991). "It has long been
established, however, that a party cannot.force a judge to
recuse himself by engaging in personal attacks on the judge"
Standing Committee on Discipline of the U.S. District Court
v. Yagman, 55 F.3d 1430, 1443 (9" Cir. 1995). While
Yagman did not involve 455, the court cited to United States
v. Studley, 783 F.2d 934, 939-40 (9" Cir. 1986) which held
that "intemperate and scurrilous attacks" contained in the
defendant's post-conviction motion for recusal of the judge
who had convicted her could not compel disqualification
under 455. Williams has made no showing that Judge Tashima
held any deep seated antagonism toward Williams or that his
impartiality might reasonably be questioned. The district court
correctly decided not to recuse Judge Tashima.
Procedural Claims and Motion to Dismiss
Williams’ two procedural claims that the district court
(a) abused its discretion in denying Williams unopposed
motion to amend his complaint and (b) erred in allowing the
City to file an untimely motion for summary judgment are
with merit.
Also without merit is Williams’ claim that the district
court erred in granting the City's motion to dismiss because
the motion was filed while the City was in default for failing
to answer the complaint. Fed.R.Civ.P. §5(c) provides "for
good cause shown may set aside an entry of default". The rule
eel
30a
gives no indication that entry of default precludes a court from
hearing other motions before deciding the default motion.
Because the court had the authority to set aside an entry of
default and in fact did so, there was no prejudice to Williams
in hearing other motions. Furthermore, the district court
property dismissed Williams’ claim under 42 U.S.C. 1985 in
reliance on Great American Saving and Loan v. Novotny, 442
U.S. 366, 372-76, 99 §.Ct. 2345, 60 L.Ed.2d 957, 964 (1979).
Novotny prevents Williams from stating a separate claim
under 1985 when he had a remedy under Title VII.
The judgment of the district court is AFFIRMED.
END OF PRECEEDING DOCUMENT
APPENDIX F - JUDGMENT OF THE UNITED STATES
DISTRICT COURT, GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT (against
Complaint Under Civil Rights Act and related statutes)
FILED JULY 27, 1994
RONALD WILLIAMS
Plaintiff,
V.
CITY OF LOS ANGELES, et al.,
Defendants.
No. CV-90-1252 AWT (GHKx)
July 27, 1994
This matter came regularly before the court on July 27,
1994 for hearing on the motion of defendants CITY OF LOS
ANGELES, DARYL G. GATES, ROBERT McNAMARA,
and CONNIE CASTRUITA for summary judgment. James K.
Hahn, City Attorney of the City of Los Angeles, appeared as
attorney for the defendants, and Edi M.O. Faal appeared as
attorney for plaintiff. All pleading and papers on file in the
case having been read and examined by the Court, arguments
having been presented, and the court having granted
defendants’ motion for summary judgment, in accordance with
aaa a ae
Sia
the Statement of Uncontroverted Facts and Conclusions of
Law signed and filed concurrently herewith
IT IS ADJUDGED the plaintiff Ronald Williams take
nothing, that the action is DISMISSED on the merits and that
defendants Daryl F. Gates, Robert F. McNamara, and Connie
Castruita shall recover from plaintiff their costs of the suit in
the amount of $ oe
Dated: July 27, 1994
CONCLUSIONS OF LAW
Si A party is entitled to summary judgment if the
pleadings, depositions, and interrogatories, and admissions on
file, together with filed affidavits or declarations, if any, show
that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.
Fed R.Civ.P.. Rule 56(c); Allen v. A.H. Robins Co,, 752 F.2d
1365, 1368 (9 Cir. 1985) ,
2. The opinion of the California District Court of
Appeals in Williams v. City of Los Angeles, supra,
conclusively established, for purposes of this action, that (a)
Williams’ service retirement was his own voluntary decision,
not induced by any action, forbearance, or promise by any
City official, and (c) Williams’ requested reinstatement is
statutorily barred by his voluntary retirement.
2. These facts preclude the maintenance of any of
Williams’ theories of relief in the present action.
4. Equitable tolling applies to this action.
5. As set out in Williams, supra, the City's refusal
to reinstate Williams during this period of time was statutorily
barred by Williams’ voluntary service retirement. Los Angeles
City Charter 190.111(A)(1).
This Statement of Uncontroverted Facts has been
by defendant as required by Local Rule 7.14.1. Plaintiff's
Statement of Genuine Issues, required by Local Rule 7. 14.2,
filed July 1, 1994, admits almost all of the facts set forth
herein as uncontroverted although he contests the relevancy
(or heresay character) of a few of them. Thus, the essential
facts are uncontroverted.
|
32a
The single factual issue presented for trial, by the
Pretrial Conference Order, filed March 8, 1994, is whether
these defendants intentionally discriminated against plaintiff
Ronald Williams ("Williams") on the basis of Williams’ race
when these defendants instituted and maintained disciplinary
charges against Williams in 1987 and when they refused to
reinstate Williams at any time since then?
Plaintiff has the burden on this issue. As the uncontro-
verted facts show, there is no evidence of facial animus. Plain-
tiff has not met his summary judgment burden of proof that
defendants’ actions were motivated by intentional racial
discrimination.
Further, on these uncontroverted facts, defendants
cannot be held liable for "instituting and maintaining discipli-
nary charges against plaintiff" no matter whether their actions
were racially motivated or not. That is because the actions of
defendants did not result in any legal harm to plaintiff.
Defendants’ disciplinary actions were repeatedly overturned
by the state courts, and but for plaintiff's voluntary retirement,
plaintiff would still be a member of the Los Angeles Police
Department today. With respect to defendants’ refusal to
"reinstate" plaintiff, defendants’ intent or state of mind in so
refusing is irrelevant. That is because Williams v. City of Los
Angeles, supra, conclusively established that 190.111 of the
City Charter of the City of Los Angeles prohibits the
reinstatement of plaintiff. Thus, even absent alleged bad
motives and had defendants' otherwise wanted to reinstate
plaintiff, they were legally prohibited from doing so. They
cannot be held liable for following the only course of action
permitted by law, once plaintiff had voluntarily retired.
In short, there is no evidence of any legally cognizable
harm to plaintiff from any actions of defendants. When
plaintiff challenged defendants’ disciplinary actions in state
court, he was vindicated and his termination was twice set
aside. Defendants were legally prohibited from reinstating
plaintiff by the City Charter.
33a
Plaintiff's memorandum in opposition to this motion
(p.3) claims that he was deprived of his due process rights and
his property rights to his employment as a police lieutenant
These arguments are without merit. The record reveals that
plaintiff received at least all the process that was due him. The
process was such that plaintiff was able, as shown above,
successfully to challenge his termination - twice. Plaintiff was
deprived of nothing because of the lack of due process
Further, plaintiff was not deprived of any property right he had
in his employment. Williams y. City of Los Angeles, supra,
conclusively establishes that plaintiff's retirement was
voluntary; thus, there was no deprivation.
At another point in his ‘opposition to this motion (p.5)
plaintiff states the issues as:
| Whether plaintiff's constitutional rights were
violated by the wrongful termination, and,
2 Whether defendants’ actions were racially
motivated
The short answer to the first "issue" is that plaintiff
was not terminated, he voluntarily retired, and on the second
"issue", as explained above, the motivation for defendants’
actions is irrelevant because no legal harm resulted to plaintiff
from their actions, regardless of their motive.
Plaintiff proceeds under Title VII of the Civil Rights
Act of 1964 and under 42 U.S.C. 1983. However, the
uncontroverted facts show that plaintiff has not been
discharged or otherwise discriminated against as to any term
or condition of employment, such as to constitute an unlawful
employment practice under Title VII, 42 U.S.C. 2000e-
2(a)(1). And with respect to his claim under 1983, plaintiff has
shown no deprivation of a federal constitutional or statutory
right.
For the foregoing reasons, defendants’ motion for
summary judgment is granted. Judgment shall be entered
consistent herewith.
Dated: Jul. 27,1994 “g/t”
"A, Wallace Tashima
34a
APPENDIX G - ORDER OF THE UNITED STATES
DISTRICT COURT GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION TO
DISMISS (Complaint of Employment Discrimination)
FILED AUGUST 27, 1992
RONALD WILLIAMS
Plaintiff,
V.
CITY OF LOS ANGELES, et al.,
Defendants.
No. CV-90-1252 AWT (GHKx)
United States District Court
Central District of California
IT IS HEREBY ORDERED:
1. Defendants CITY OF LOS ANGELES, et al.'s
(hereinafter "Defendant") motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(6) is hereby GRANTED IN PART AND
DENIED IN PART. FILED AUG 27, 1992
a On March 14, 1990, Plaintiff RONALD
WILLIAMS (hereinafter "Plaintiff") a former Los Angeles
police lieutenant, filed a complaint alleging three separate
causes of actions: (1) violation of Title VII, 42 U.S.C. 2000e
et seq. (Title VII); (2) violation of 42 U.S.C. 1985; and (3)
violation of 42 U.S.C. 1983. Prior to Defendants answering
the complaint, this action was stayed pending the outcome of
Plaintiff's state court proceeding which appeared to involve
similar legal and factual issues. The state court proceedings
was concluded on August 1, 1991.
3. In state court, Plaintiff contended that the City wrongfully
terminated him . . . The state court ultimately concluded
that: (1) Williams was properly disciplined by the City;
and (2) his offenses warranted only suspension, not
termination. ... The state court also concluded that
Williams had voluntarily retired from the police
department and therefore could not be reinstated. (Plaintiff
requested a service retirement between the time that the
City ordered his removal
35a
and the time that he appealed that decision in state court.) See
Williams v. City of Los Angeles, 229 Cal.App.3d 1627 (1991)
S. In analyzing the sufficiency of a complaint
under Fed.R.Civ.P. 12(b)(6), the Court must assume that all of
the allegations, as pleaded, are true See e.g., California
Motor Transp. Co. Trucking Unlimited, 404 U S. 508, 92 S.Ct
609 (1972), Abramson y. Trucking Unlimited, 897 F.2d 389,
391 (9" Cir. 199C). Moreover, under the notice pleading
requirements, Plaintiff's claims must be construed liberally,
and dismissal is improper unless "it appears beyond douby
that the plaintiff can prove no set of facts in support of his
claims which would entitle him to relief’. Gibson v. United
States, 781 F.2d 1334, 1337 (9" Cir. 1986) cert. denied, 479
U.S. 1054, 107 S.Ct. 928 (1987).
A. Plaintiff's Title VII Claim
The City first asserts that Plaintiff's claim under Title
VII is barred because that claim has been fully adjudicated by
the State courts. The Court disagrees
State court rulings possess res judicata effect only
when those decisions encompass a full and fair litigation of a
plaintiff's claims. Kremer v. Chemical Construction Corp..
456 U.S. 461 (1982). Moreover, Plaintiff's subsequent claims
must relate to the same "primary right” as the claim in the
prior action Sanchez v, City of Los Angeles, 936 F 2d 1027,
1036 ‘Ce Cir. 1990). In assessing whether the same "primary
right" has been violated, the most important inquiry is whether
plaintiff has suffered injury to more than one interest. Los
Angeles Unified Branch NAACP vy. LA Unified Schoo! Dist.,
150 F.2d 731, 738 (9 Cir. 1984)(en banc)
Here, the only claim Plaintiff pursued in state court
was the propriety of his punishment. He never alleged that
the City acted in a discriminatory fashion on the basis of
race. As such, the primary rights involved between the two
actions are distinct: the right to a properly determined
punishment vs. the right to be free from discriminatory
conduct. See Agarwal v. Johnson, 25 Cal.3d 932 (1979) (Title
VII claim and claim for intentional infliction of emotional
36a
distress arising from the same set of facts were not the same
"primary right"). (In this regard, it is important to note that
California's res judicata doctrine does not encompass all
claims which may be asserted which arise from the same set of
facts) eet eee
For all these reasons, the Court hereby GRANTS IN
PART and DENIES IN PART Defendants’ motion to dismiss.
IT IS SO ORDERED
DATED: August 26,1992 "S/J"
James M. Ideman
United States District Judge
[END OF PRECEDING DOCUMENT]
APPENDIX - H, ORDER OF 9'™ CIRCUIT DENYING
PETITION FOR REHEARING, etc.
UNITED STATES COURT OF APPEAL
FOR THE NINTH CIRCUIT
[FILED Mar 16, 1998]
RONALD WILLIAMS No. 97-55070
Plaintiff-Appellant DC No. CV-93-02873-KMW
Vv
CITY OF LOS ANGELES ORDER
Defendant-Appellee
Before): BROWNING, KLEINFELD, AND THOMAS,
Circuit Judges
The panel has voted to deny appellant's petition for
rehearing and to reject the suggestion for rehearing en banc.
The full court had been advised of the suggestion for
rehearing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35
The petition for rehearing is denied and the suggestion
for rehearing en banc is rejected.
37a
APPENDIX I - DECISION OF THE BOARD OF
RIGHTS (Los Angeles Police Department) EXECUTION
OF THE ORDER
IN THE MATTER OF RE: Complaint No. B.F. 9352
RONALD WILLIAMS, 11916 Dated: July 30, 1987
TO THE CHIEF OF POLICE
Decision of the Board
The above-entitled matter came on regularly for
hearing before this Board of Rights on the verified complaint
of Daryl F. Gates, Chief of Police, filed with the Police
Commissioners on August 4, 1987 all preliminary and
jurisdictional requirements have been substantially complied
with the accused being present and represented by counsel the
board having heard all evidence properly offered and the
accused given a reasonable opportunity to defend against
charges preferred.
After a full and impartial hearing on its merits, the
Board deliberated and carefully considered all the evidence
adduced before it. The Board finds that accused is guilty of
Counts 1, 2 and 3.
The Board therefore prescribes its penalty as follows:
That RONALD WILLIAMS 11916 be removed from his
position of Lieutenant with total loss of pay, effective July 30,
1987.
We certify the above:
October 19, 1987 del Sie
W.O. Gartland, Chairman
"en
F.J. Patchett, Member
Wot
R.O. Woods, Member
EXECUTION OF ORDER
TO RONALD WILLIAMS #11916 member of the Los
Angeles Police Department. Under power conferred upon me
by Section 202, Article XIX, Charter of the City of Los
Angeles, I hereby REMOVE you from your position as
LIEUTENANT in the Los Angeles Police Department with
38a
total loss of pay, effective July 30, 1987, pursuant to the
above order of the Board of Rights.
Dated: October 19,1987 "“S*’
DARYL F. GATES,
Chief of Police
The time limit for seeking review of this administrative
determination and preparation of record is governed by
Section 1094.6 of the California Code of Civil Procedure.
See reverse side for that Section.
CERTIFICATE OF SERVICE
I hereby certify that I served the above statement upon
RONALD WILLIAMS at 1600 hours October 19, 1987.
By forwarding a copy thereof by certified mail
addressed to him at last known address at 200 W. Arbor Vitae,
#7, Inglewood, CA 90301
Margie D. Grundy
Member of the Los Angeles Police Department
END OF ABOVE DOCUMENT ["Decision", "Execution"
and "Certificate of Service" |
APPENDIX J - ORDER OF THE SUPERIOF COURT,
COUNTY OF LOS ANGELES, FILED FEBRUARY 2,
1988
RONALD WILLIAMS,
Petitioner
Vv
CITY OF LOS ANGELES, a Municipal Corporation, DARYL
F. GATES, Chief of Police; and DOES 1 through 30,
inclusive,
Respondents.
Case No. C 667 976
PEREMPTORY WRIT OF MANDATE
[C.C.P. 1094.5]
39a
TO CITY OF LOS ANGELES AND DARYL F. GATES,
CHIEF OF POLICE, Respondents:
WHEREAS Petitioner served and filed herein his duly
verified Petition for Writ of Mandate, and a Hearing was held
on January 26, 1988,
WHEREAS it appears to this Court that Petitioner has
no other plain, speedy and adequate remedy in the ordinary
course of law,
WHEREAS it appears to this Court that the penalty
imposed upon Petitioner is excessive, arbitrary and capricious
and constitutes a clear abuse of discretion,
THEREFORE, you CITY OF LOS ANGELES and
you CHIEF OF POLICE DARYL F. GATES are hereby
commanded to reconvene the Board of Rights, with
instructions to impose a proper punishment without any
consideration of the underlying charges, and to consider the
report and recommendations of Petitioner's Commanding
Officer in making its decision
You are further commanded to make and file a return
to this Writ by April 18, 1988 showing what you have done to
comply with this Writ.
Witness the Honorable Mariam A. Vogel, judge of the
Superior Court - Attest my hand and Seal of this Court this 2"°
day of February, 1988
[End of above document - Peremptory Writ of Mandate]
APPENDIX K - DECISION OF THE BOARD OF
RIGHTS and EXECUTION OF THE ORDER
[Rehearing pursuant to Superior Court]
IN THE MATTER OF _ RE: Complaint No. B.F. 9352
RONALD WILLIAMS, 11916, Dated July 30, 1987
TO THE CHIEF OF POLICE
Decision of the Board ~
The above-entitled matter came on regularly for
hearing before this Board of Rights on the verified complaint
of Daryl F. Gates, Chief of Police, filed with the Police
Commissioners on August 4, 1987 all preliminary and
40a
jurisdictional requirements have been substantially complied
with the accused being present and represented by counsel the
board having heard all evidence properly offered and the
accused given a reasonable opportunity to defend against the
charges preferred.
After a full and impartial hearing on its merits, the
Board deliberated and carefully considered all the evidence
adduced before it. The Board finds that accused is guilty of
Counts 1, 2 and 3.
The Board therefore prescribes its penalty as follows:
That RONALD WILLIAMS 11916 BE removed from his
position of Lieutenant with total loss of pay, effective July 30,
1987.
We certify the above
April 7, 1988 he
W.O. Gartland, Chairman
F.J. Patchett, Member
e* hae
R.O. Woods, Member
EXECUTION OF ORDER
To Ronald Williams 11916 member of the Los
Angeles Police Department. Under power conferred upon me
by Section 202, Article XIX, Charter of the City of Los
Angeles, | hereby REMOVE your from your position as
LIEUTENANT in the Los Angeles Police Department with
total loss of pay, effective July 30, 1987, pursuant to the
above order of the Board of Rights.
Dated April 15,1988 *S* DARYL F. GATES
Chief of Police
. The time limit for seeking review of this
determination and preparation of the record is governed
by Section 1094.5 of the California Code of Civil
Procedure. See reverse side for that Section.
ssn i
a a a
41a
CERTIFICATE OF SERVICE
| hereby certify that | served the above statement upon
RONALD WILLIAMS at 0930 hours April 21, 1988.
By forwarding a copy thereof by certified mail
addressed to him at last know address at 200 W. Arbor Vitae,
#7, Inglewood, CA 90301
Margie D. Grundy
Member of the Los Angeles Police Department
{End of above document, "Decision", "Execution" and
"Certificate of Service" |
APPENDIX L - JUDGMENT OF THE SUPERIOR
COURT OF CALIFORNIA, FILED MAY 18, 1988
SUPERIOR COURT OF CALIFORNIA FOR THE
COUNTY OF LOS ANGELES
RONALD WILLIAMS
Petitioner,
V.
CITY OFLOS ANGELES, a Municipal Corporation, DARYL
F. GATES, Chief of Police; and DOES | through 30 inclusive,
Respondents.
JUDGMENT
This cause came regularly for Hearing on May 10,
1988 at 9:00 a.m. in Department 86 of the above-entitled
Court. the Honorable Miriam A. Vogel, Judge, presiding.
Petitioner appeared by his attorney, LAURENCE B.
LABOVITZ and Respondents appearing by Deputy City
Attorney DAVID HOTCHKISS, and the cause having been
argued and submitted for decision,
IT IS ORDERED, ADJUDGED AND DECREED as
follows:
A peremptory writ of mandate shall be issued and
directed to Respondents, CITY OF LOS ANGELES and
DARYL F. GATES, Chief of Police, commanding
a rr
42a
i. Respondents to set aside the decision
terminating Petitioner from his position as a Lieutenant II for
the City of Los Angeles made by Respondents on April 15,
1988, in the matter entitled IN RE: RONALD WILLIAMS,
11916;
2. Petitioner shall be restored to his position as a
Lieutenant II;
a. Respondent shall hold such proceedings as are
appropriate and impose a proper penalty short of termination.
5/18/88 *5/J“’Mariam Vogel
JUDGE OF THE SUPERIOR COURT
[End of above document, Judgment, Writ of Mandate]
APPENDIX M - OPINION OF THE CALIFORNIA
STATE COURT OF APPEALS, SECOND APPELLATE
DISTRICT, Division Five
RONALD WILLIAMS B035287
Petitioner and Respondent
LZ
CITY OF LOS ANGELES, a Municipal Corporation;
DARYL F. GATES, Chief of Police,
Respondents and Appellants.
Filed August 10, 1989
Appellants, the City of Los Angeles and its Chief of
Police, Daryl Gates, appeal the issuance of a peremptory writ
of mandamus (Code Civ. Proc. 1094.5) by the superior court,
ordering them to set aside their decision terminating
respondent Ronald Williams from his employment with the
Los Angeles Police Department, to restore Williams to his
former position as a Lieutenant II, and remanding the matter
for the imposition of a penalty short of termination.
We AFFIRM the trial court's judgment.
FACTS
Williams was found guilty by an administrative board of
misconduct, specifically, that he failed to accurately respond
——_——_——$——$—— $$ $$ $$$ rr er_e— ll
Sb a ee
RSE ie i IPF S FPO By
43a
to questions posed by officers conducing an official
investigation and that he failed to return two rented video
movies to their right owner.
In 1987, during student interviews conducted by the
Los Angeles Police Department ("Department") at
Washington High School regarding an incident unrelated to
the matters in issue here, Sharondalyn Harris ("Harris") and
Michelle Guidry ("Guidry") then each 15 years old, told an
interviewing officer that an adult male police officer had made
sexual advances toward Guidry four years earlier. The two
girls state that respondent, Lieutenant Williams ("Williams")
had made such sexual advances on a number of occasions
while Guidry was at his home during the period that ran from
April to June, 1983. Guidry had known Williams since she
was an infant because her mother had once been involved in a
romantic relationship with him. Guidry's mother had remained
on friendly terms with Williams and in 1982 had requested
that he employ Guidry to clean his apartment as a means of
providing her with spending money. Williams agreed.
Thereafter, Guidry generally went unescorted to Williams’
apartment to clean. On June 24, 1993, however, Harris
accompanied Guidry to Williams’ apartment and related that
while they were both there, Williams made numerous sexual
advances towards Guidry and had shown both of them
sexually explicit video movies and books.’
Based on the allegations of Harris and Guidry, an
internal affairs investigation was launched by the Department.
A search of Williams’ apartment yielded approximately 13
sexually explicit videotapes as well as approximately 90
paperback books which contained sexually explicit reading
material Two of the videotapes recovered (entitled "The Big
Rip-Off" and "The Temptress") had been rented from
‘ The complaint eventually lodged cited 13 allegations of sexual
misconduct by Williams occurring at his residence on April 2, April 16,
May 13, and June 24, 1993.
> A total of 24 videotapes and 165 books were taken from Williams’
apartment during the search.
daa
California Video in Los Angeles and were a year and a half
overdue.
Williams was questioned by Department personnel in
March and April 1987 regarding the claims made about his
conduct with Harris and Guidry and his failure to returnthe _
rented videotapes. Williams admitted that Guidry had been to
his apartment to clean on several occasions from 1982 to 1985
and stated that she would clean the entire apartment. He
remembered that she had brought a friend to his apartment on
one occasion. He admitted that he and Guidry had often
engaged in a game of "playing tag" which involved no
physical contact other than a playful slap on Guidry's arms,
shoulders, or back. He admitted having sexually explicit
reading material and sexually explicit videotapes but claimed
that they were usually hidden. He denied that he showed
Guidry and Harris sexually explicit videotapes and denied
ever using the videocassette recorder in their presence.
Williams admitted renting videotapes from California Video,
but did not have any independent recollection of still having
the two videotapes, "The Big Rip-Off" and "The Temptress",
in his possession. He indicated that he thought he had returned
those videotapes to California Video and did not recall owing
any money for their rental. He denied all other allegations
made by Harris and Guidry.
Based on the interviews had with Williams,
information obtained from other witnesses and material seized
from respondent's apartment, disciplinary charges were filed
against Williams for "failing to accurately respond" to
questions asked of him during the Department's investigation
of the complaints made against him and for his failure to
return the two rented videotapes found in his apartment to
their rightful owner.”
’ The actual charges were as follows:
“Count 1. On March 19 and April 6, 1987, at Internal Affairs Division,
you failed to accurately respond to questions posed to you by Sergeant R.
McNamara and Detective C. Castruita who were conducting an official
45a
Los Angeles City Charter 202(1 )’ provides that the
removal of a police officer may only be based on an act
committed by that officer within one year prior to the filing of
a complaint charging the officer with such improper conduct.
Apparently because the one-year statute of limitations period
had long expired, the Department was precluded from filing
any charges actually relating to the alleged sexual incident
involving Harris and Guidry.
At the hearing before the Board of Rights ("Board")
Williams denied the charges brought against him and
responded in substantially the same manner as he had during
the interviews conducted by the Department's Internal Affairs
Division (IAD). Williams admitted that Guidry had been to his
apartment on several occasions and had once been
accompanied by a friend. He reiterated his contention that he
had engaged in a "tag-like" game with Guidry that they had
investigation, when you denied having exposed M. Guidry and S. Harris to
a sexually explicit movie.
“Court 2. During the year last past, after having rented a video movie, "The
Temptress’, from R. Kim, you failed to return the video to the rightful
owner.
"Count 3. During the year last past, after having rented a video movie, "The
Big Rip-off, from R. Kim, you failed to return the movic to the rightful
owner."
‘S41 95 Angeles City Charter section 202(1) states, in pertinent part, that:
"No officer or employee of the Police Department shall be suspended,
removed. deprived of his office or position, or otherwise separated from
the service of the Police Department (other than by resignation), except for
good and sufficient cause shown upon a finding of ‘guilty’ of the specific
charge or charges .. . after a full, fair, and impartial hearing before the
Board of Rights . . . Such charges must be based upon some act committed
or omitted by such officer or employee within one (1) year prior to the
filing of the complaint referred to herein . . hay
* The Board of Rights is the administrative body designated to determine
the truth of charges brought against police officers and to recommend an
appropriate penalty pursuant to Los Angeles City Charter section 202,
subdivisions (1) and (6).
46a
played since she was a child but he denied that he every even
mistakenly touched Guidry in a way that could ever be
interpreted as sexual contact. He denied ever showing the
girls any videotapes but, contrary to his earlier statements to
IAD, Williams told the Board that he had explicitly instructed
Guidry not to clean his bedroom. Finally, he testified that he
had learned only as a result of the IAD investigation that the
videotapes, "The Big Rip-Off" and "The Temptress," were in
his possession and had not been returned to California Video.
The Board then took testimony from various witnesses
and purported experts in the field of sexual crimes, Harris —
testified but Guidry did not, The Board found Williams
guilty of the misconduct charged and recommended dismissal
of Williams from his position with the Department.® The
Department dismissed Williams effective July 30, 1987.
Williams applied to the superior court for a writ of
mandate to set aside the Board's findings. Respondent also
requested that the trial court take into account a report filed by
Williams' commanding officer recommending only suspension
which had not been presented to the Board. The court
conducted an independent review of the administrative record.
It considered Williams' commanding officer's report, as
requested, as well as other evidence that demonstrated the
Department had previously disciplined similar officer
misconduct with penalties imposed averaging 24 days of
suspension from service. The court then granted the writ and
remanded the matter back to the Board with instructions "to
impose a proper punishment without any consideration of the
Sarat ee
° The Board stated:
"During the penalty determination, the Board is required to look
at a pattern of conduct. It is clear that no such pattern has come to light.
"The Board would normally address the theory of progressive
discipline. However, we find this unconscionable act so shocking that it
can stand alone in our penalty consideration".
"In view of all the circumstances, the Board believes that it has no
alternative but to recommend to the Chief of Police that you be removed
from your position as a Los Angeles Police Officer”.
47a
underlying charges [of sexual misconduct] and to consider the
additional made by Williams’ commanding officer in making
its decision
Pursuant to this judgment, the Board reconvened on
April 6, 1988. After receiving additional exhibits and hearing
further arguments from both parties in the matter, the Board
again recommended that Williams be removed from his
position.’
Williams then filed an application for an "Order to
Show Cause re Failure to Obey Peremptory Writ of Mandate."
At a hearing on the matter in May 1988, the trial court stated
that "The problem with Captain Gartland’s statement [that the
superior court found that the underlying misconduct did occur]
‘s that I made no such finding. I found that the weight of the
evidence supported the board's finding that lieutenant
Williams failed to accurately to respond to questions posed to
him by the investigating officers. . . It appears to me that the
Board of Rights did not understand my earlier order
The court then issued a second peremptory writ to the
Board to set aside its order terminating Williams, again
ordering the Department to reinstate Williams, to hold such
proceedings as are appropriate and to impose a penalty short
of termination. It is from the issuance of this second writ that
the City of Los Angeles ("City") and its Chief of Police, Daryl!
F. Gates, appeal.
DISCUSSION
’ The Board stated: "The Superior Court specifically ordered this Board to
‘consider the report and recommendations of the accused's commanding
officer’ in making its decision. We have considered that report. We note
that Captain Conner did not believe that the underlying misconduct of
showing sexually explicit films to minors could be established. This Board
did find that the misconduct did occur. The Superior Court in its review
made the same finding. . ."
48a
Retirement Assn. (1974) 11 Cal.3d 28, 44; Richardson v.
Board of Supervisors (1988) 203 Cal. App.3d 486, 493.) On
appeal, the question is not whether the administrative
determination was supported by the weight of the evidence,
but whether there is substantial evidence to support the trial
court's findings. All conflicts must be resolved in favor of the
respondent, all legitimate and reasonable inferences must be
made to uphold the superior court's findings and this court
may not substitute its deductions for those of the superior
court. (Ibid. )
Here, the trial court found that: "Lieutenant Williams'
statements to the investigation officers were not entirely
consistent with his testimony at the original hearing [before
the Board]. He did not make full disclosure at the time of the
investigation." Based upon this finding, the trial court found
that while the evidence supported the charges of "failing to
accurately respond," it need not determine whether Williams
actually showed videotapes to the girls or if the alleged sexual
misconduct occurred since such findings were not integral to
the charges pending against him. The Court explained that
"Lieutenant Williams, was not as I understand it, charged with
making false or misleading statements. He was charged with
failing to accurately respond to questions posed by Sergeant
McNamara and Detective Castruita. I think this is a difference
with a distinction and not just a question of semantics because
of [sic] failure to make a full disclosure when charged with a
crime is quite different than lying under oath."
A trial court may only overturn an administratively
imposed penalty when the penalty is found to be grossly
excessive or a manifest abuse of discretion. (Skelly v. State
Personnel Bd. (1975) 15 Cal.3d 194, 217-218; Richardson v.
Board of Supervisors, supra, 203 Cal.App.3d at p. 494.) It is
not entitled to interfere with the Board's imposition of penalty
merely because in its evaluation of the circumstances the
penalty of dismissal appears too harsh. (Paulino v. Civil
Service Com. (1985) 175 Cal. App.3d 962, 970.) An abuse of
discretion occurs whether the penalty imposed exceeds the
i
OO
Ss en ee cea 3
49a
bounds of reason: the fact that reasonable minds may differ as
to the propriety of the penalty supports a finding that the
Board acted within its discretion. (Id. at p. 971.) In
determining whether the penalty of termination is excessive as
a matter of law, the overriding consideration is the extent of
harm to the public service resulting from the officer's conduct
or the likelihood that the conduct, if repeated, would result in
such harm. (Id. at p. 971; Richardson v. Board of Supervisors,
supra, 203 Cal. App.3d at p. 494: Anderson v. State Personnel
Board (1987) 194 Cal.App.3d 761, 771.) Other factors which
should be taken into account are the circumstances
surrounding the officer's misconduct and the likelihood that
the conduct will recur. (Ibid.)
Upon finding that the penalty fixed by the
administrative agency is grossly excessive, the trial court has
the power to direct the agency to fix the penalty at something
less severe than originally set, although the precise terms of
the penalty should rest with the agency. (Richardson v. Board
of Supervisors, supra, 203 Cal. App.3d at p 495.)
Applying the considerations enunciated above in
determining if the Board abused its discretion, we first
consider whether there was any evidence of harm to the public
service resulting from Williams’ conduct. The record contains
no indication whatsoever that the facts of the matter were
made available to the public, resulting in adverse publicity, or
that the alleged misconduct had any demoralizing effect on the
Department. (See, e.g. Anderson v. State Personnel Board,
supra, 194 Cal.App.3d at p. 772 - - where there was credible
evidence that a highway patrol traffic officer's conduct in
appearing nude in and around his residence in plain view of
neighborhood women and children harmed the reputation of
the California Highway Patrol, offended the public and under
mined the effectiveness of the officer's relations with fellow
officers; Ackerman v. State Personnel Board (1983) 145
Cal. App.3d 395 - - highway patrol officer's repeated lies
regarding the use of state time and equipment, reported in
local newspaper article, affected public's respect for the
50a
California Highway Patrol.) We conclude, therefore, that this
was not an issue, i.e. harm to the public service (Department),
that impacted the Board in determining the proper penalty to
impose on Williams.
The actions of a law enforcement officer must be
above reproach. (Anderson v. State Personnel Bd., supra, 194
Cal. App.3d at p. 769). Honesty and credibility are crucial to
the proper performance of a peace officer's duties. (Ackerman
v. State Personnel Bd., 145 Cal.App.3d at p. 400). The
dishonesty of a peace officer had been defined as "a
continuing trait of character" (Ackerman v. State Personnel
Board, supra, 145 Cal. App.3d at p. 395) likely to result in
harm to the public service (Paulino v. Civil Serv. Com. (1985)
175 Cal. App.3d 962, 972) justifying dismissal. In this matter,
however, the trial court made it clear that there was no finding
of dishonesty and no evidence of other falsehoods or failure to
disclose any other incident was raised; thus there could be no
finding of a "pattern" of repeated dishonesty, or of such a
continuing character trait, which would justify dismissal.
While recognizing that the Board may have concluded that
there had been a series of falsehoods proven warranting
Williams’ termination, we find substantial support for the trial
court's finding, after its independent review and reweighing of
the evidence, that Williams’ alleged misconduct consisted only
of a failure to fully amplify his testimony in an otherwise
consistent response to a lime of questions relating to the same
matter reviewed in his earlier interviews.
Furthermore, an officer's lack of prior misconduct
coupled with a long record of public service have,
precedentially mitigated in favor of lesser penalties. (Lowe v.
Civil Service Com., 164 Cal.App.3d at p. 677 - - suspension
without pay rather than an outright dismissal was the
appropriate penalty where sheriff had substantial experience in
law enforcement without any previous disciplinary action and
unusual circumstances leading to his misconduct.) In
Richardson v. Board of Supervisors, supra, 203 Cal. App.3d
486, the finding of a grossly excessive penalty was supported
Sla
by evidence that the instance leading to an officer's discharge
was a single, isolated incident that had occurred after an
unblemished six and a half year record of public service
during which the officer had received several commendations.
No harm or danger to the county appeared by reason of his
absences. (203 Cal. App.3d at pp. 494-495.) Here, Lieutenant
Williams had served with the Department for approximately
20 years and had never been previously charged with
misconduct.
While it is clear that the Department was limited to
prosecuting Williams only for the offenses with which he was
timely charged (i.e., not responding accurately to questions
and not returning rented videotapes), we recognize that, as a
practical matter, the distinction between the actual charges
brought and the underlying behavior Williams was initially
accused of is not so easily drawn. While we appreciate that it
may be difficult not to take into account the circumstances
surrounding the proven misconduct when fashioning the
penalty for the offense charged, in this case that is precisely
what must be done. As the trial court indicated, when it found
that Williams had "failed to accurately respond" to the
questions posed to him, the Board, in imposing punishment,
should not have considered the issue of whether Williams had,
in fact, don what Guidry had Harris had accused him of doing.
Evaluating the severity of the punishment imposed on
Williams is, therefore, limited to the consideration of the
proper penalty for his act of "failing to accurately respond,"
rather than for the underlying acts of alleged sexual
misconduct.
It appears clear from the record that the Board was
punishing Williams for his alleged sexual impropriety and not
for his failure to "accurately respond" to questions posed or to
return the videotapes. In light of the limited nature of the
accusations actually brought against Williams, the history of
temperate penalties previously metered out in cases of similar
officer misconduct and Williams’ own commanding officer's
recommendation, we find that the penalty of termination
52a
imposed here by the Board was grossly excessive and thus
constituted a manifest abuse of discretion.
The trial court acted appropriately when it directed the
Board to fix the penalty to something less severe than that
originally set (Richardson v. Board of Supervisors, supra, 203
Cal.App.3d 486) and not to consider the underlying
complaints of sexual misconduct in determining what that
penalty should be, clearly the statute of limitations prescribed
by the city charter would be meaningless if we were to allow
Williams’ dismissal under these circumstances. As so aptly
pointed out by the trial court: "To conclude otherwise [that the
Board could consider the underlying offense in the imposition
of the penalty for the offense actually charged] would be
placing the court's imprimatur on the Board's ability to
terminate a police officer with 20 years of unblemished
service on the basis of charges time-barred by the
Department's own rules."
DISPOSITION
For the reasons stated above, we affirm the order
issuing the peremptory writ of mandate. Respondent Williams
is entitled to recover his costs on appeal.
NOT TO BE PUBLISHED
ROWEN, J*
We concur:
ASHBY, ACTING P.J.
BOREN, J.
* Assigned by the Chairperson of the Judicial Council.
[Last Page, #15]
APPENDIX M -1 REMITTITUR NOTICE OF THE
COURT OF APPEAL OF THE STATE OF
CALIFORNIA FOR THE SECOND APPELLATE
DISTRICT, DIVISION 5
Laurence B. Labovitz, Esquire
Laurence B. Labovitz
3055 Wilshire Blvd.
x
5
&
Bs
4
@
-
53a
Suite 900
Los Angeles, CA 90010
RE: Williams, Ronald
Vs.
Los Angeles, City Of; Daryl F. Gates
2™ Civ. BO35287
Los Angeles No. C667976
e REMITTITUR NOTICE * *
Notice is hereby given that the Remittitur has been
issued this date and that the opinion, decision or order
entered in the above entitled cause on 08/10/89 is now
final.
Affirmed In Full
Respondent To Recover Costs On Appeal
OCT. 12, 1989
ROBERT N. WILSON, Clerk
By: J. Lepo
Deputy Clerk.
[End of Document, Remittitur Notice]
54a
APPENDIX N - TRANSCRIPT OF BOARD OF RIGHTS
PROCEEDING, ON REMAND FROM THE SUPERIOR
COURT, POST TO THE AFFIRMING DECISION OF
THE STATE COURT OF APPEAL
B.F. 9352
BOARD OF RIGHTS RATIONALE
ON PENALTY OF
RONALD WILLIAMS, 11916
CAPTAIN GARTLAND: _ The Board wants to
make note that the city attorney remained in the board room to
discuss with the Board opinions and the thinking and
directions of the court in this matter. Prior to the Board
deliberating on the penalty, the city attorney left the hearing
room at 5:00 p.m.,.prior to the Board beginning its
deliberations.
During the deliberations the Board reviewed
Department's Exhibit 1 and Accused's Exhibit A that were
presented to the Board today.
In reaching its penalty recommendation, the Board
places importance on two particular factors which we feel
merit special focus. First, the accused officer served as a high
ranking officer in this Department. He attained a rank of
Lieutenant II.
And, therefore, the penalty which might be sufficient
with respect to a police officer or even a sergeant is not, in
fact, sufficient in the case of a lieutenant.
Secondly, we believe that the penalty must reflect
subject matter to which he failed to make adequate disclosure.
It is this Board's unanimous opinion that failing to give full,
complete and fruitful answers in response to an investigation
about the subject matter of juvenile sexual abuse, a possible
felony, is a more serious offense that failing to properly
answer a routine inquiry about some administrative matter.
By ere eat at ts is
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55a
The consequences to this Department for a lieutenant
who fails to properly answer questions on that subject in
particular are potentially enormous and disabling.
Accordingly, on the basis of these factors, the Board
unanimously recommends to the Chief of Police that you be
suspended for a period of 30 days
APPENDIX O: DECISION OF THE BOARD OF
RIGHTS and EXECUTION OF THE ORDER (In re:
above Item "I"')
THE MATTER OF RE: COMPLAINT NO. 9352
RONALD WILLIAMS, 11916 DATED: JULY 30, 1987
TO THE CHIEF OF POLICE:
DECISION OF THE BOARD
The above-entitled matter came on regularly for
hearing before this Board of Rights on the verified complaint
of Darvl F. Gates filed with the Board of Rights
Commissioners on August 4, 1987, all preliminary and
jurisdictional requirements having been substantially complied
with: The accused being present and represented by counsel,
the Board having heard all evidence properly and legally
offered and the accused given a reasonable opportunity to
defend against the charges preferred.
After a full and impartial hearing on its merits, the
Board deliberated and carefully considered all the evidence
adduced before it at such hearing and upon such evidence and
not otherwise base and hereby certifies its decision as follows:
The Board finds that accused is Guilty of Counts 1, 2, and 3. .
The Board therefore prescribes its penalty as follows: That
RONALD WILLIAMS, 11916, be suspended from his
position of LIEUTENANT for thirty (30) days, with total loss
of pay, for thirty (30) days, with total loss of pay , effective
August 5, 1987.
- Ste
We hereby certify to the above:
—_ fe
W.O. Gartland, Chairman
ete
F.J. Patchett, Member
December 8, 1989 “oa
R.O. Woods, Member
EXECUTION OF THE ORDER
To RONALD WILLIAMS, #11916 , member of the
Los Angeles Police Department:
Under the power conferred upon me by Section 202, Article
XIX, Charter of the City of Los Angeles, I hereby suspend
you from your position as Lieutenant in the Los Angeles
Police Department for a period of (30) days with total loss of
pay, effective August 5, 1987.
Original Signed By
Chief of Police
Dated December 4, 1989°$” DARYL F. GATES
Chief of Police
[End of Document]
APPENDIX - P (excerpts) TRANSCRIPT OF
PROCEEDINGS OF SUPERIOR COURT FOR THE
COUNTY OF LOS ANGELES
DEPARTMENT 88 HON. MARIAN A. VOGEL
RONALD WILLIAMS,
Petitioner, No. C 667 976
Vs.
CITY OF LOS ANGELES, a municipal corporation; et al.
Respondents.
TRANSCRIPT OF PROCEEDINGS
December 13, 1989
a ae ai a
Pas BME EIS SL SRA ET EP
pariah Aisle i Ut
57a
THE COURT: All right. This is Williams versus
City of Los Angeles. Let's get the appearances on the record,
please.
MR. LABOVITZ: Laurence B. Labovitz, for
petitioner, RONALD WILLIAMS.
MR. HOTCHKISS: David Hotchkiss, Deputy City
Attorney, for the respondents.
THE COURT: Mr. Hotchkiss, what's going on?
MR. HOTCHKISS: Sir - - your Honor, the --
THE COURT: Sir?
MR. HOTCHKISS: I'm thinking about something
completely different.
The -- a monkey wrench has been thrown into the
administrative process. We discovered late in the game that
Ronald Williams retired from the Los Angeles Police
Department effective August 1, 1987. The effect - - he filed
for the pension after the Board of Right's decision and prior to
coming to this court on the writ of mandate proceedings.
Under the charter of the City of Los Angeles, which
controls the employment relationship, having voluntarily
elected to take the pension benefits that were -- certainly he
was entitled to, he now has changed his status from that of a --
of a discharged or now suspended officer to that of a retired
officer.
*****E ND OF DOCUMENT****
APPENDIX Q (excerpts) TRANSCRIPT OF
PROCEEDINGS OF THE SUPERIOR COURT FOR
THE COUNTY OF LOS ANGELES (continued from
above-entitled proceeding of December 13, 1989)
DEPARTMENT 86 HON. DAVID YAFFEE, JUDGE
RONALD WILLIAMS,
Plaintiff,
Vs. No. C 667976
CITY OF LOS ANGELES, etc., et al.,
Defendants.
TRANSCRIPT OF PROCEEDINGS
58a
January 16, 1990
THE COURT: Number 11, Williams against the
City of Los Angeles.
MR. LABOVITZ: Good morning, Your Honor --
Laurence B. Labovitz for petitioner, Lieutenant Ronald
Williams.
MR. HOTCHKISS: Good morning, Your Honor - -
David Hotchkiss, Deputy City Attorney, on behalf ofthe -
respondents.
THE COURT: Is this Mr. Williams? You Mr.
Williams?
MR. WILLIAMS: Yes, Your Honor
THE COURT: All right.
This is an amended petition for writ of
mandate. Mr. Hotchkiss, why shouldn't I grant this petition?
MR. HOTCHKISS: You should not grant this
petition, Your Honor, because through the voluntary action of
this individual on a date effective August 1, 1987, he retired
from the Los Angeles Police Department and since that time
has been receiving pension benefits as a retired Los Angeles
police officer.
THE COURT: Didn't he do that by mistake?
MR. HOTCHKISS: No, Your Honor. There is
nothing that indicates that there was any mistake whatsoever.
Indeed, the declarations on file indicate that he knowingly in
exhibit A signed under penalty of perjury that he was retiring
from the Los Angeles Police Department based upon his years
of service and pursuant to Article 18 of the Charter of the City
of Los Angeles.
THE COURT: Well, wasn't the mistake that he
thought that he could get his pension benefits and still
continue to contest his administrative -- his discharge?
MR. HOTCHKISS: Well, Your Honor, that claim of
mistake would seem to be completely contradicted by the
declaration of Eudon Ferrell, a former Los Angeles -- excuse
me -- a former Los Angeles police officer, a retired lieutenant
59a
and an employee of the city attorney's office in the pension
section.
He states that at or about the time that Ronald
Williams was applying for this pension, he specifically
advised him of the existence of 190.111 of the city charter
which was a prohibition against reemployment if there was a
retirement at the rank of lieutenant or above.
Every person is presumed to know the law, Your
Honor, and specifically it is very clearly articulated in the
charter in article 18 that this type of situation is barred; that iS,
public employment in the City of Los Angeles --
THE COURT: Whatever that is, turn it off.
MR. HOTCHKISS: -- public employment in the
City of Los Angeles is governed by the Charter. The case
authority we've put before you articulates the fact that public
employment is a creature of statute. And if he's going to take
the benefits of the retirement pension, he must take it under
the terms and conditions of the charter under which he sought
It.
Article 18 encompasses 190.111, and as a matter of
law, he is prohibited from reemployment absent the request of
the chief of police and then on a voluntary basis only for 90
days per year as set forth in 190.111, and he would continue to
receive his pension benefits in that situation anyway.
Because public employment in California is a creature
of statute, the statutory scheme controls. His mistake may be
based upon improper advice from his counsel, but it certainly
wasn't based upon improper advice from the City of Los
Angeles, and there is --
THE COURT: Well, the City of Los Angeles
certainly didn't help him realize that he made a mistake. The
City of Los Angeles kept litigating his discharge on its merits
after he had retired. Why did the city dothat?.......
Didn't the city continue to contest in court his
discharge after he retired? Why did the city do that?
MR. HOTCHKISS: The city did that because there was a
very important question of law to be addressed in this
60a
matter, and that is whether or not engaging in the three acts of
misconduct which were affirmed by the Superior Court --
whether to discharge on that issue was an abuse of discretion
as a matter of law. These types of cases --
THE COURT: Well, what difference did it make if
he'd retired?
MR. HOTCHKISS: Your Honor, I didn't know
about it until after the argument before Judge Vogel. Certainly
Mr. Williams and his counsel never put me on notice of that
fact. It was pure happenstance that I found out about the
existence of the retirement
MR. LABOVITZ:
We're dealing with two different cases here.
This case has been fully litigated. And, Your Honor, I'd like to
point out that the - -
THE COURT: What case has been fully litigated?
MR. LABOVITZ: The case of Lieutenant Williams
on the issues of his entitlement to employment, we believe,
has been fully litigated.
THE COURT: Well, what hasn't been litigated
apparently is the question of the effect of his accepting his
pension benefits on his right to reinstatement. That's what
we're here about, isn't it? ------- Well, let's stick to that.
THE COURT: I'm going to grant the amended
petition for writ of mandate. The petitioner applied for pension
benefits in the belief that his receipt of those benefits would be
without prejudice to his ability to continue to prosecute his
pending claim for reinstatement.
The respondent told him nothing to indicate that such
belief was incorrect and continued thereafter to resist such
reinstatement on its merits.
The petitioner was laboring under a mistake and the
respondent knew or should have known that such was the
case. Therefore, we have a mistake on the part of one party
known -- or which the other party knew about or should have
known about, and that gives the petitioner the right in a court
6la
of equity to rescind his application for pension benefits. He
may do that by doing equity and tendering back to the
respondent the benefits that he has received. In making such
tender, he may offset against his repayment any back pay that
is due him.
The respondent is ordered to reinstate the petitioner
and pay him the back pay to which he is entitled less the
amount of the pension benefits that have been paid to him.
[end of excerpt]
[End of Document, Judgment Amended Petition]
APPENDIX R - OPINION OF THE CALIFORNIA
STATE COURT OF APPEAL, Division 5, DECIDED
MAY 10, 1991
RONALD WILLIAMS, Plaintiff and Respondent v. CITY
OF LOS ANGELES et al., Defendants and Appellants.
Summary
[Page 1627 - A former police lieutenant filed a petition for a
writ of mandate to be reinstated to his former position. The
lieutenant had been dismissed from his position for
misconduct, but had successfully challenged the dismissal in a
previous lawsuit, obtaining a reduction of the original
dismissal to a suspension. However, after the dismissal and
immediately prior to filing the original lawsuit, the lieutenant
applied for his service retirement pension as the rank of
lieutenant; the pension was granted and throughout the two
years of litigation concerning his dismissal, the lieutenant
received his monthly pension checks. Accordingly, the city
refused to reinstate him, citing a city charter provision
precluding the return to active duty of any police pension
system member who has retired at a rank higher than sergeant.
The trial court, finding that the lieutenant made a mistake in
retiring on the erroneous assumption that he could return to
work if he ultimately prevailed in his lawsuit, ruled that he
62a
could rescind his retirement on the ground of mistake. The
trial court ordered that he be reinstated, subject to reducing his
award for backpay by amounts received for his retirement.
(Superior Court of Los Angeles County, No. C667976) David
P. Yaffe, Judge.)
The Court of Appeal reversed, holding that, having
elected to take his retirement pension, rather than withdrawing
his contribution to the pension fund the lieutenant was
precluded from returning to active duty under the charter
provision. Based on the evidence in the record, the court held
that the lieutenant's belief that he could return to work after
retirement was a unilateral mistake, not induced or knowingly
taken advantage of by city officials, and that, accordingly, the
lieutenant was not entitled to rescind his retirement
application. The court also held that the city's defense of the
lieutenant's original lawsuit on the merits of the dismissal did
not estop the city to enforce the charter provision. (Opinion by
Ashby, Acting P.J., with Boren and Grignon, JJ., concurring.)
| Page 1628, ---- In a proceeding in mandamus by a
former police lieutenant who had been dismissed for
misconduct but had successfully challenged the dismissal in a
previous lawsuit, the trial court erred in ordering the
lieutenant's reinstatement, where, prior to his filing of the
previous lawsuit, he applied for and was granted his service
retirement pension at the rank of lieutenant, and where a city
charter provision precluded the return to active duty of any
police pension system member who had retired at a rank
higher than sergeant. Having chosen to take his retirement
pension, rather than merely withdrawing what he had
contributed to the pension fund, the lieutenant had "retired"
within the meaning of the charter provision, and any belief by
the lieutenant, while represented by counsel, that he could
return to work if he ultimately prevailed in the previous
lawsuit, was a unilateral mistake, not induced or knowingly
taken advantage of by city officials. Thus, the trial court erred
in determining that he was entitled to rescind his retirement
application.
iii
63a
In a proceeding in mandamus to compel a city to
reinstate a former police lieutenant who had been dismissed
for misconduct but had successfully challenged the dismissal
in a previous lawsuit, and who had applied for and was
granted his service retirement pension immediately prior to
filing the previous lawsuit, the trial court erred in ruling that
the city's continued defense on the merits of the dismissal suit
barred the city from applying a city charter provision
precluding the return to active duty of any police pension
system member who has retired at a rank higher than sergeant.
The city, as an involuntary defendant and adverse party to the
lieutenant, had the right to defend the dismissal and owed no
duty toward the lieutenant, who was represented counsel, to
advise him of the consequences of the litigation.
[Page 1629 - Opinion
ASHBY, Acting P.J. - The City of Los
Angeles (City) and its chief of police appeal from a judgment
granting peremptory writ of mandate compelling them to
reinstate respondent Ronald Williams to his former position as
a lieutenant in the Los Angeles Police department.
Respondent was dismissed front his position for
misconduct. He filed a previous petition for writ of mandate to
be reinstated in his position, primarily on the ground that the
findings of misconduct did not support the penalty of
dismissal. That litigation, which lasted approximately two
years, was ultimately resolved in respondent's favor. Pursuant
to a previous writ of mandate, the police board of rights
reconsidered the penalty and recommended a 30-day
suspension.
However, at the time he filed his original petition for
writ of mandate challenging his dismissal, respondent also
applied for and was granted his 20-year service retirement
pension at the rank of lieutenant. Throughout the litigation
concerning his dismissal he was receiving his monthly pension
check.
Under section 190.111 of the Los Angeles City Charter, a
member of the police pension system who has
ee ee ene re
64a
retired at a rank higher than sergeant cannot return to active
duty. Citing the charter, the City refused to reinstate
respondent despite the reduction of the original dismissal to a
suspension.
Respondent filed the instant amended petition for writ
of mandate seeking to be reinstated notwithstanding his
retirement. The trial court found that respondent made a
mistake in retiring on the erroneous assumption that if he
ultimately prevailed in his lawsuit, he could return to work.
The court held respondent could rescind his retirement on the
ground of mistake; the court ordered that respondent be
reinstated, subject to reducing his award for back pay by the
amounts respondent received for his retirement. This is the
judgment from which the City now appeals.
We reverse. Respondent elected to take his retirement
pension, effectively converting his property right of continued
employment into a property ***PAGE 1630 - nght to a
pension. Respondent should have known this would preclude
his return to active duty. Respondent's mistake was unilateral.
The City did not induce respondent's mistake or take knowing
advantage of it. The City's defense of respondent's lawsuit on
the merits of the dismissal did not estop the City to enforce the
charter provision.
Background
Article XVIII, section 190.111 of the Los Angeles
City Charter governs the return of retired members to active
duty. It permits the chief of police to accept an application of a
retired member to be returned to active duty only if certain
conditions are met. The first and controlling condition is stated
in section 190.111, subdivision (A)(1): "A retired member,
whenever retired, may file, with the Chief of the department
from which he retired, a written application to be returned to
active duty therein on/y upon the conditions: (a) that his
original retirement had been pursuant to Section 190.11
-[retirement for years of service] and had been ... from the
Police Department while holding a rank no higher than
Sergeant, . . . (Italics added.)
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i
65a ~
Respondent, having retired at the rank of lieutenant, does not
qualify. This section precludes a retired lieutenant
from returning to active duty. This section may be intended to
limit number of high ranking positions in the department to
persons who have not previously retired.
Respondent Retired
(la) In the trial court and on appeal respondent
suggested that he never really "retired", he merely "withdrew"
his "pension benefit". This claim is wholly contradicted by
the record and apparently was not believed by the trial court’.
Respondent's formal application stated, “your
petitioner prays that he be retired from active service in the
police Department, by reason of years of service and that he
be paid a pension from the Fire and Police Pension Fund in
accordance with the provisions of Article XVIII of the Charter
of the City of Los Angeles." The department of pensions
notified respondent that "[yJour application for a service
pension was presented at a regular meeting * * * PAGE 1631
- of the Board of Pension Commissioners held December 10,
1987 and you were granted a pension pursuant to the
provisions of article XVIII of the City Charger, in the amount
of $1,872.88 a month effective August 1, 1987.
Even respondent's own evidence failed to support his
claimed distinction between retirement and withdrawal.
Respondent's handwritten letter of November 5, 1987, to the
board of pension commissioners states, "This is a request for
the Board to institute my Pension Plan Payments . . . I have
served as a member of the Los Angeles Police for the twenty-
year period required..." His handwritten letter of November
'4 Mr. Labovitz [respondent's counsel] All right, Your Honor, the issue
as we see it is whether his withdrawal of his legally vested pension
benefits con—
"The Court: Well, that's not what he did, he didn't withdraw his
legally vested pension benefit. He didn't just take out what he had
contributed fund, did he? He took a lifetime pension of so many
dollars a month."
66a
17, 1987, requested a change in the effective date of his
pension." Respondent's own declaration showed that he
understood the difference between a lifetime monthly pension
and withdrawal of his contributions to the system.” Knowing
that distinction, respondent chose to take his pension rather
that to withdraw his contributions.
Respondent's claim that department of pension records
showed he never really retired is based on respondent's
fallacious assumption that taking his monthly pension is not
the equivalent of retiring. Correspondence from the
department of pensions to respondent consistently referred to
respondent's "Pension." The fact that this correspondence did
not also use the term "retirement" is insignificant. Respondent
also referred to a document which appears to be a roster of
pensions granted. Although a "Remarks" section of this
document states "Terminated from P.D., the document still
shows that a pension was granted in the amount of $1,872.88.
On appeal respondent contends that section190.16 of
the charter recognizes a distinction between a system member
who is eligible to "retire" and a former system member who is
eligible to "be paid a pension." The claimed distinction in
section 190.16, however, does not help respondent as to
section 190.111, which precludes the return to active duty of a
"retired member" who retired at a rank higher than sergeant.
"Retired Member" is defined in section 190.02(1) to mean "a
person who is a former System Member whose active status as
a Department Member had been terminated and who is
receiving a pension pursuant to this Article." Thus, respondent
is a retired member for the purpose of section 190.111
regardless whether his pension was paid under the authority of
section 190.16(3).
* Respondent declared, "That I was counseled at that time by Mrs.
Mary F. Washington of the Department of Pensions, who indicated
that since I was terminated and did not retire, I was entitled to
withdraw all of the contributions to the Pension Board, but that if I
did so that [sic] I would forego any future ability to draw a lifetime
monthly allotment.” (Italics omitted)
ree ge eee
all
67a
e ** PAGE 1632 - Finally, respondent contended at oral
argument in this court that he is "not seeking
reemployment but reinstatement" This distinction also fails.
Section 190.111 does not refer to refer to reemployment but
return to active duty. Respondent seeks return to active duty
but does not meet the necessary conditions.
Respondent's Mistake was not Induced by City Officials
Respondent claimed in his declaration that at the time
he applied for pension benefits "I specifically discussed this
situation with Deputy City Attorney Eudon Farrell [sic], a
counsel to the Pension Board, who advised me that the
standard request document was the only form available to
trigger payment of vested pension benefits, and further
specifically advised me that in the event I was successful
in my Superior Court litigation, and reinstated, I would have
to repay the Pension Board all monies received." (Italics
omitted")
The declaration of Eudon Ferrell showed that
respondent's declaration omitted crucial portions of the
conversation. Ferrell was a deputy city attorney responsible
for advising the department of pensions. He was also himself a
retired Los Angeles police officer who was well aware that
charter section 190.111 prohibited the return of an individual
retired at the rank of lieutenant. He declared, "I first met
Ronald Williams while employed by the Los Angeles Police
Department. I have known Ronald Williams for approximately
20 years. I have read the declaration of Ronald Williams dated
January 9, 1990 and | am familiar with the contents thereof.
Specifically, in paragraph 5, Ronald Williams states that he
had a conversation with me on or about November 5, 1987. He
states that I specifically advised him that in the event he was
successful in his Superior Court litigation, and reinstated, he
would have to repay the Pension Board all monies received.
This is not correct. I did have conversation with Ronald
Williams when we met by happenstance in my office
sometime-in the fall of 1987. He told me that he was in
trouble and that he was retiring from the Los Angeles
68a
Police Department. / specifically reminded him of the
provisions of Los Angeles City Charter 190.111 which
prohibited the reemployment of an individual by the Los
Angeles Police Department if he retired at the rank of
lieutenant or above. Mr. Williams told me that he had spoken
to his attorney and that he was confident of ultimate success. I
expressed I was somewhat skeptical because if a judge issued
such an order, it would fly directly in the face of the clear
prohibition set forth in the Los Angeles City Charter. I further
stated that I did not know what the outcome would be. In any
event, I stated that he could not have it both ways and could
not have a double payment of both salary and pension
benefits. Except for that brief and unplanned meeting in the
fall of 1987, I cannot recall any further conversation that I
have had with Ronald Williams. Sometime after my
conversation * * * PAGE 1633 - with Ronald Williams, I did
receive a telephone call from his attorney, Laurence Labovitz.
Mr. Labovitz asked me to confirm in essence the allegation set
forth in paragraph 5 of Ronald Williams’ declaration. I denied
to Mr. Labovitz that I had made such a statement and further
advised him that Charter 190.111 prohibits the reemployment
of an individual at the Los Angeles Police Department if he or
she retires at the rank of lieutenant or above. (Italics added)
Chronology of Raising the Retirement Issue in the Dismissal
Litigation
A factor in the trial court's ruling, discussed post,
appears to have been a delay by the City before raising the
issue of charter section!90.111 in the dismissal litigation. The
following chronology is useful.*
10-19-87 Removed was removed from office, effective
7-30-87.
11-5-87 Respondent applied for service pension.
* We take judicial notice of the file in a previous appeal of the
dismissal case, Williams vy. City of Los Angeles (Aug. 10, 1989)
B035287 [nonpub. Opn.] (Evid. Code 452, subd. (d), 459.)
eet eT EE tS RTRSY nes
69a
11-16-87 Respondent filed in superior court his petition
for writ of mandate to restore him to
employment.
12-10-87 Respondent's application for service pension
was granted by the board of pension
commissioners which arranged for respondent
to begin receiving monthly pension checks.
2-2-88 The trial court issued its (first) writ of mandate
ordering the police board of rights to reconsider
the penalty
4-7-88 The trial court issued its (second) writ of
Mandate compelling the board to reconsider the
Penalty at less than dismissal
5-31-88 Deputy City Attorney S. David Hotchkiss, who
represented the City in the dismissal litigation
and who was considering whether to appeal the
second writ of mandate, wrote a letter to
respondent's counsel suggestion a stipulated
suspension in lieu of an appeal by the City. /n
this letter attorney Hotchkiss raised for the first
time the argument that whatever the outcome of
the dismissal litigation, respondent could not be
reinstated because he had retired,’ but the
board sustained respondent's objection to such
‘In his declaration submitted to the triai court on the current
amended petition, attorney Hotchkiss stated that he did not know of
respondent's retirement until after the trial court hearing on the
second writ of mandate. "When I learned of the fact of Ronald
Williams’ retirement I was completely taken by surprise. In my 9
years of representing the Los Angeles Police Department in writ of
mandate proceedings pursuant to Code of Civil Procedure 1094.5, I
have never before experienced a situation where an officer both
retired from the Los Angeles Police Department and sought relief
from the Superior Court in a mandamus proceedings. Undoubtedly,
this is so because of the strict prohibition and/or limitations in the City
Charter against reemployment set forth in Los Angeles City Charter
190.111(A)(1)."
70a
evidence on the ground the board's only proper
function was to determine the proper penalty
for misconduct. The Board reduced the penalty
to a 30-day suspension.
Respondent filed his amended petition for writ |
of mandate in the proceedings now under |
review, contending that his retirement was not |
a proper ground for refusing to reinstate him.
Trial Court Ruling
At the hearing the trial court stated, "I'm going to grant
the amended petition for writ of mandate. [Respondent
Williams] applied for pension * * * PAGE 1634 - benefits in
the belief that his receipt of those benefits would be without
prejudice to his ability to continue to prosecute his pending
claim for reinstatement. [The City] told him nothing to
indicate that such belief incorrect and continued thereafter to
resist such reinstatement claim on its merits. [Respondent
Williams] was laboring under a mistake and [the City] knew
or should have known that such was the case. Therefore, w
have a mistake on the part of one party . . . which the other
party knew about or should have known about, and that gives
[respondent Williams] the right in a court of equity to rescind
his application . . . for pension benefits.
Discussion
(2) The trial court erred in holding that the City's
continued defense on the merits of the dismissal suit bars the
City from applying the charter provision. The defense of the
dismissal! litigation occurred after respondent had already
retired. It is not relevant to the relationship of the parties at the
time of the retirement application, which is the transaction the
trial court rescinded on the ground of mistake.
Furthermore, the City as involuntary defendant and adverse
party to respondent had the right to defend the dismissal and
owed no duty toward respondent to advise him of the
consequences of the litigation. The deputy city attorney
representing the police department and chief of police in the
dismissal litigation did not have actual knowledge of
ee re ee
Per tee ee eee a) ee
7Tla
respondent's retirement, which was arranged between
respondent and the board of pension commissioners or
department of pensions. (Fn.4, ante, p. 1634) Even assuming,
as the trial court apparently ruled, that one department should
be held to the knowledge which another department has, the
proper focus should be on the City's knowledge at the time of
the retirement application, not the subsequent litigation.
The record shows that at the time of the retirement
application respondent was represented by counsel.
Respondent casually spoke to an acquaintance, Deputy City
Attorney Eudon Ferrell, who represented the pension
department. Far from inducing respondent's mistake or sitting
idly by, Ferrell actually attempted to warn respondent that
under the charter respondent could not subsequently be
reinstated if he retired.
The trial court's ruling cannot be sustained on the
assumption that the court resolved conflicts between
declarations of respondent and Ferrell. The declarations did
not conflict, because respondent's declaration did not address
or meet the crucial point. Respondent merely stated that
Ferrell told him, "///n the event | was successful in my
Superior Court litigation and reinstated, I would have to repay
the Pension Board all monies received." Ferrell's declaration
showed that such statement came affer Ferrell specifically
warned respondent that in his opinion the charter clearly
prohibited reinstatement if respondent retired. Only after
expressing such skepticism did Ferrell state that, "/n any
event, [respondent] could not have it both ways and he could
not have a double payment of both salary and pension
benefits." (Italics added)
Thus, the trial court's remark that the City
"told{respondent] nothing to indicate that such belief
was incorrect and continued thereafter to resist such
reinstatement claim on its merits" refers to the delay in raising
the retirement point in the subsequent dismissal litigation. It
does not refer to the City's conduct or knowledge at
the moment of the retirement application.
72a
Otherwise, the court's statement is not supported by
substantial evidence.
(1b) The record thus shows that respondent's belief,
while represented by counsel, that he could take his retirement
pension but still be reinstated later, was a unilateral mistake. I
was not inducted or knowingly taken advantage of by City
officials. Respondent did not establish that he was entitled to
rescind his retirement application. (Civ. Code 1578, subd. 2;
Carr v. Sacramento C.P. Co. (1917) 35 Cal. App. 439, 446
[170 P. 446] Bowman v. Payne (1921) 55 Cal.App. 789, 796
[204 P. 416]
Although respondent cannot be reinstated because he
has retired, the resolution of the dismissal litigation had the
beneficial effect of clearing respondent's employment record
of the dismissal.
The judgement is reversed with directions to the trial
court to deny the amended petition for writ of mandate. Costs
on appeal are awarded to appellants.
Boren, J. and Grignon, J., concurred.
73a
APPENDIX S - (subject) COMPLAINT FOR
DECLARATORY JUDGMENT; INJUNCTIVE RELIEF,
Supporting Exhibits "A" through "H"
RONALD WILLIAMS
3410 West Fifth Street, #215
Los Angeles, California
Plaintiff in Propria Persona
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
RONALD WILLIAMS, CV No. 93-2873 MRP
Plaintiff, COMPLAINT FOR
-V- 1. Declaratory Judgment
CITY OF LOS ANGELES _ [28 U.S.C. 2201, FRCP 57]
Defendant. . .2. Injunctive Relief
[28 U.S.C. 2202]
{Supporting Exhibits "A"
through "H", etc.]
PLAINTIFF PROPRIA PERSONA ALLEGES:
General Allegations
1. This is a "collateral" action in law and equity
authorized and instituted pursuant to the Declaratory Judgment
Act of 1948, under 28 U.S.C. 2201, and Federal Rules of Civil
Procedure, Rule 57; and an action for Injunctive Relief under
28 U.S.C. 2202.
2. Jurisdiction of this Court is invoked pursuant to
28 U.S.C., Sections 1331, 1343 et seq., and pursuant to the
"Expost Facto Clause at Article 1, Section 10 of the United
States Constitution; the Fifth and Fourteenth Amendment of
the United States Constitution; 29 U.S.C. 623(d); and 42
U.S.C. 1983.
a This Court is with current jurisdiction of
Plaintiff's action alleging two separate and distinct claims
pursuant to the Civil Rights Act; 42 U.S.C. 2000e et seq. (Title
VII), and 42 U.S.C. 1983. [CV-90-1252 AWT (GHKx) filed
3-14-90]
74a
4. A justiciable controversy exists between the
parties: The action for a declaratory judgment is for the
purpose of determining the question of actual controversy
between the parties as follows:
a. On February 2, 1988 the California Superior,
and on August 10, 1989 its Court of Appeals, entered and
perfected judgment, in Plaintiff's favor, for writ of mandate
that commanded Defendant City to set aside its order of
discharge of Plaintiff from employment. [Calif. Sup. Ct. No.
667976; and, and Cal. App.2"* Civ. B035287 (Aug. 10, 1989)
A copy of the judgment and writ of mandate of the California
Superior court therefore , and a copy of the "affirming"
opinion thereof, is hereto annexed, designated Exhibits "A"
and "B". respectively, and made a part hereof.
b. On May 10, 1991 the California State Court of
Appeals, by published opinion, reversed itself by vacating the
above referenced order(s): it deemed that, for the purpose of
Defendant City's relief from the remedy therein that had
restored Plaintiffs employment property interest, he was
"retired" and that this was in accordance with the City's
pension ordinance scheme. Williams vs. City of Los Angeles,
229 Cal.App.3d 1627 (May 10, 1991) A copy of the
“published opinion thereof, is hereto annexed, designated
Exhibit "C" and made a part hereof.
5. The instant petition seeks declaratory judgment
that the just-referenced "order to vacate" 1s unconstitutional,
invalid, and in contravention with all applicable State and
local statutes: Including the statute-at-issue - Los Angeles
Police and Fire Pension ordinance Section 190.111: It will
demonstrate the order, as issued on May 10, 1991 by the State
Court of Appeals; as a state court order invalidated by the
California Constitution and State Statutes; and, as enforced
against the previous order(s) of the California Courts, (herein
Exhibit "A" and "B") deprived Plaintiff's constitutionally
protected property interest to pubic employment; the property-
interest subject too and previously restored by those orders.
75a
6. The amount in controversy exceeds $10,000,
exclusive of interests and costs. If the prayer of relief from the
instant complaint is granted, the property-interest to
employment as a Lieutenant of Police with Defendant's police
department will be restored. It is one in the same interest that
the primary action in Civil Rights seeks to vindicate as subject
of Plaintiff's deprivation by Defendants and for reasons that
were race based.
Fe Furthermore, if the questions raised by the
instant collateral complaint are forthwith answered by the
Court, this will aide in a speedier and more just resolution of
the primary Civil Rights Action: It will estop Defendant City
of Los Angeles’ continuing litigation practices of raising
‘nconsistent defenses to the Title VII claim which the record
demonstrates as follows:
a. On April 6, 1990 in the "special defense"
motion filed with the Court in the Civil Rights action,
Defendants contended that the discipline that had been
imposed by them against Plaintiff, including two separate
incidents of discharging him from employment, had been
proper; because the Court found good cause for discipline.
Hence, admitted was that on two occasions Plaintiff was
subjected to discharge from employment. [see docket #3,
Clerk's record of federal action]
b. On July 10, 1992, in the second "special
defense" motion filed by Defendants in the Civil Rights
action. and its first defensive response subsequent to the
judgment of the California State Court of Appeals - Williams
v. City of Los Angeles, 229 Cal. App.3d id. (May 10, 1991) -
Defendants contended that Plaintiff's property-interest in
employment was lost under proper disciplinary circumstances,
and, in reliance upon the just referenced opinion, he had also
retired from his employment. Hence, the defense was that he
was discharged and that he had retired. Subsequent rejection
of the dual defense by the Court has not curtailed Defendants
maintaining these defenses. As recent as September 22, 1992
in a not timely answer to the instant complaint, Defendants
ss 76a
have again raised the inconsistent, dual defenses. [see docket
#74, Clerk's record of federal action]
- On January 11, 1993 and on March 31, 1993
Defendants, in reliance upon the State Appellate case of May
10, 1991, now contend that Plaintiff had not, at any time,
suffered a discharge by them from his employment: That,
pursuant to the 1991 decision, he "retired" from employment
before Defendants could discharge him from employment. A
copy of the excerpts of Defendants’ appellee's brief therefore,
is hereto annexed, designated Exhibit "D" and made a part
hereof.
8. Each of the three sets of contentions as
constituting the findings of the California State Court of
Appeals are false: they are Defendants’ continuing bad faith
litigation practice of obfuscating the issues that were resolved
by the California courts in two separate but distinct judicial
forum: the first culminating by the August 10, 1989 State
Appellate decision of Plaintiff's wrongful termination (herein
Exhibits "A" and "B"); and, the second culminating with the
May 10, 1991 State appellate decision that the post discharge
pension constituted legal avoidance of remedy perfected with
the 1989 decision - restoration of Plaintiff to employment.
9. The action in declaratory judgment, at this
time, will resolve that: (1) plaintiff as having been wrongfully
discharged, and under circumstances highly probative of racial
employment discrimination; (2) that the State court's ultimate
decision of Plaintiff's retirement is unconstitutional; and (3)
Defendants are without legal justification to interpose in the
Civil Rights action, the inconsistent and alternating defenses
of Plaintiff's discipline by discharge, and that he had also
retired, and, (4) further establish, particularly from the July 10,
1992 motion to dismiss the federal complaint; as an action
which sought dismissal of the Title VII claims from the results
of the May 10, 1991 State appeals decision was an act of
abuse of the federal court process: [it] sought use of the waiver
clause of the City's pension ordinance plan, [that] was falsely
raised by [the] Defendants and [that was] unconstitutionally
en a_i
77a ,
constructed and enforced by the State court[s], as legal justifi-
cation to further waive Plaintiff's [federal] right to maintain
the action under Title VII.
Plaintiff Also Alleges:
Parties’ Legal Relationship(s)
10. At all times mentioned herein, Defendant City
of Los Angeles was and is:
a. a Charter City duly organized and existing
under the laws of the State of California; and,
b. an employer engaged in industry and
commerce that employs in excess of 30,000 employees.
11. At all times mentioned herein, The Los
Angeles Police Department was and 1s:
a. operating under the authority of the Charter for
the City of Los Angeles; [Article XIX, et seq. |
b. under which the Chief of Police (herein
Defendant Gates as then-Chief of Police) is vested as the
"appointing authority" and administrator of the Los Angeles
Police Department, and the final policy and decision-making
authority for all departmental personnel, policy, practices and
procedures. This include(ed) exclusive jurisdiction to remove
by "disciplinary" discharge, any duly sworn and appointed
member of the police department.
12. Acopy of the relevant Charter provisions
vesting discipline jurisdiction to the Chief of Police, as
described, (Article XIX) is hereto annexed, designated Exhibit
"E" and made a part hereof. _
13. At all times herein mentioned, the
office/position of Lieutenant of Police, Los Angeles Police
Department, the subject-property interest, was and is to its
holder:
a. an interest subject to protection under the
privileges and immunities clauses of the United States
Constitution, including the Fifth and the Fourteenth
Amendments thereof,
b. a fundamental, vested property right of public-
employment, subject to the protection of the California Consti-
78a
tution and under the general laws (remedial) of the State,
inclusive is;
t. [the] right of access to the superior court of the
State for redress and for remedy from acts on the part of an
employer, here, Defendant City of Los Angeles, and against
an employee, here, Plaintiff, that wrongfully deprives such
employee or otherwise interferes with his right to continuous
public employment.
Plaintiff further alleges:
14. On October 19, 1987, Defendant Dary! Gates,
in the capacity as then-Chief of Police, subjected Plaintiff to a
discharge from his employment for alleged "disciplinary"
reasons. A copy of the "discharge" order is hereto annexed,
designated Exhibit "F" and made a part hereof.
15. On November 5, 1987 while the "discharge"
was in full force and legal effect, but in accordance with
Section 190.16(3) of the Los Angeles Police and Fire Pension
System Plan, Plaintiff filed application with the City's
Department of Pensions and its Board of Pension
Commissioners for payment of pension benefits. A copy of the
provisions of the just-referred System Plan is annexed,
designated, Exhibit "G" and made a part hereof.’
16. On November 11, 1987 while the "discharge"
was in full force and legal effect, and during pendency of the
board of pension's consideration of the pension application,
Plaintiff filed petition for writ of mandate with the State
superior court for order to set aside the"discharge" from
‘ The pension application's language specified that the applicant seeks
retirement from active duty as a police officer from the department.
However, plaintiff had been discharged prior to the application. Therefore,
he was without capacity to be retired by the pension board. The application
sought payment of vested pension benefits as provided on behalf of
previously discharge[d] employees under Section 190.16(3). That the
Board recognized the distinction of Plaintiff's application is shown from
the letter from it to Plaintiff of notification of approval of the application.
Therein. the letter specified only that pension plan payments had been
approved by the board. A copy of the letter of approval is hereto annexed,
designated Exhibit "H" and made a part hereof.
CC
79a
employment. [Calif Sup. No. C 667976] Based on the
pleadings of the parties, - plaintiff's writ, and defendant City’s
defensive response - the superior court exercised plenary juris-
diction of the parties and subject matter.’
17. On December 10, 1987 while the "discharge"
order was still in full force and legal effect, the Board of
Pension Commissioners granted Plaintiff's pension plan
payment application. (letter of approval - herein Exhibit "H")
18. On February 2, 1988 and because the
"discharge" order was still in full force and effect, the Superior
Court conducted what would be the first of three hearing[s] on
Plaintiff's petition for writ of mandate.
19. Ultimately, Plaintiff's petition for writ of
mandate was resolved in his favor by opinion, decision and
judgment of the California State Court of Appeals. (herein
Exhibit "B", affirming Exhibit "A") It is these decisions that
the instant petition seeks the Court's enforcement, and it is the
set aside of the judgment therefrom by the State Court of
Appeal's subsequent order (herein Exhibit "C") that the instant
petition seeks to invalidate as being unconstitutional.
Plaintiff Finally Alleges
Actual Substantial Justiciable Controversy
20. Approximately two years after the order that
affirmed the superior court judgment that, as entered,
commanded Defendant City of Los Angeles to set aside its
order that discharged Plaintiff from his employment, (herein
' At close of first hearing the matter was remanded to defendants
administrative board and plaintiff was again discharged. At close of the
second State Court hearing the matter was again remanded to defendant's
administrative board. However, defendants’ appealed order of second
remand. but the Court of Appeals upheld the lower court's order.
Thereafter, defendant's administrative board pursuant to the second,
affirmed remand order, reduced plaintiff's penalty from discharge to an
“announced” suspension for a period of thirty-days. However. the penalty
was not served. Because, following its imposition, Defendant City subse-
quently convinced the Court that from the entire period from the date that
pension benefits had been ordered by its Board on Plaintiff's behalf, he was
in retirement.
80a
Exhibit "A") the State Court of Appeals reversed itself and
vacated the discharge set aside order. (herein Exhibit "C")
21. +The reversal/set aside order - Williams v. City
of Los Angeles, 229 Cal.App.3d 1627 (May 10, 1991) - is
supported by a "court made" condition of waiver, that, on
Defendant City's urging, was falsely constructed from Section
190.111 of its pension ordinance scheme.
22. The "waiver" was then applied by the State
Courts, - trial and appellate - as of the May 10, 1991 decision:
to the transaction that had taken place on December 10, 1987,
which was the date that the City's Board of Pension
Commissioners had approved pension plan payments on
Plaintiff's bahalf, which Plaintiff had applied [for] on the
sixteenth day (November 5, 1987) following the execution by
the Chief of Police of the order that discharged him from
employment. (order, herein Exhibit "F")
23. | Now the State appellate court held, with its
May 10, 1991 decision, that, the order approving Plaintiff's
pension benefits and pursuant to 190.111, waived all further
claims to be reinstated to his employment; and,
24. the waiver applies to the claim filed in State
court subsequent to the pension application (November 11,
1987) that, in fact, had restored Plaintiff's property-right to
employment. (herein Exhibit "A" and "B")
25. Hence, the State appellate court, with its May
10, 1991 decision held: that the Defendant City's grant of
pension plan payments by its Board of Pension, and on
Plaintiff's behalf, further constituted a "waiver" by him of
state-created rights to bring suit against the City ffom the
discharge; including the suit he did bring and the judgment for
reinstatement (that was) gained.
26. Hence, in Williams v. City, 229 Cal.App.3d
1627 (May 10, 1991) the law-of-the-case: a person of the
rank of lieutenant of police or higher who is discharged from
employment by order of the Chief of Police; waives right to
remedy for restoral to employment, if he acts to apply for
een! bio ee -
8la
pension benefits and such application is approved by the
City's Board of Pension Commissioners.
27.‘ The waived right, as applied in Plaintiff's case,
as retroactive to defeat the reinstatement remedy (granted)
from the (previously settled) claim writ of mandate, (that was)
filed subsequent to the discharge and subsequent to [the]
pension application, and, (that was) perfected by the State
Court of Appeal’s decision of August 10, 1989. (herein Exhibit
"B", affirming Exhibit "A")
28. Hence, the post-discharge application and
approval for pension benefits was construed as governed
under Section 190.111 of the City's pension ordinance scheme
as fatal and preemptive of all state-created rights for redress
and remedy from the discharge: Including, as Plaintiff's case,
where the remedy had since been granted, from proof that the
discharge was wrongful.
29. Defendant City has since, by motion, sought to
extend Section 190.111 as preemptive of constitutional and
federal rights as to the claims of the primary action under Title
VIL.
30. = The false construction of Section 190.111 as
the pension as a waiver, was accomplished by Defendant City
and the State appellate court's: (1) failure to give significance
to every relevant phrase of the subject pension plan, (2) failure
to ascribe statutory language as defined by the plan or give
significance to its plain meaning language; (3) failure to give
effect to the pension plan as a whole; and (4) rendering the
provisions of the pension system plan partially void -
particularly Sections 190.16(3) and 190.11.
31. The statutory language of the subject pension
plan: (herein Exhibit "G", at section 190.02) coupled with its
"plain meaning language", provides as follows:
a. A person becomes eligible for payment of
yension plan payments in one of two ways: First, upon
application before and approval of such application, by and on
behalf of a duly sworn and appointed member of the Los
Angeles Police Department, to be retired from active duty and
82a
to be paid pension benefits; provided such person had served
the pre-determined number of years of service for benefits to
have vested (20) - Section 190.11 - [(exhibit) "G" @ p.101]
b. Second, upon (the) application before and
[the] approval of such application, by and on behalf of a
pension who was previously discharged from the police
department, by order of the Chief of Police - provided such
pension before being discharged, had served the pre-
determined number of years for the benefits to have vested
(20) - Section _190.16(3) ["G", p.107]
a A "Retired Member" is either person:
pension incidental to being "retired" from active duty
(employment) by order of the Board of Pensions; or, pension
incidental to being discharged from employment, by the Chief
of Police. ["G" @ p.75]
d. A person achieves "Retired Member" status
of and with the Los Angeles Police and Fire Pension System:
upon his employment status having terminated from either of
the above described reasons, and upon order granting pension
plan payments and upon receipt of first pension check.
{Section 190.02(1)]
e. A "Retired Member", "whenever retired": (1)
is a[ny] person who [already] has been approved and is being
paid pension plan payments, regardless the manner which [his]
employment status ended; and, the term "whenever retired" (2)
means that the person had been retired from police officer
employment, by order of the Board of Pensions while such
person was on active duty, and, from active duty.
32. The origin of what was to become the
construction of Section 190.111 as containing a "waiver
provision" within the Los Angeles Police and Fire Pension
System Plan, commenced with Defendant City's false
contention to the State court(s): (a) that all persons in receipt
of pension plan payments are person(s) within the meaning of
Section 190.111 of its provisions; and (b) plaintiff having
attained the rank of lieutenant of police, and, accordingly,
3
:
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4
i
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a
BE a
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4
;
f
83a
Plaintiff having been approved for payment of a pension, is
precluded from return to active duty.
33. Conversely, Defendant's first contention "(a)"
was false, in that, Section 190.111 covers (reaches by statute)
only those persons who had been retired from active duty by
the City's Board of Pensions and had been approved
pension plan payments incidental to having been so
retired, The section taken as a whole, and its remaining plain
meaning language evinces its operation as "permissive" as to
enable police officers who had retired (in good standing)
opportunity to apply for return to active duty for limited
duration, and it confers authority to the chief of police to
accept and approve such application. Section 190.11, as the
first condition of Section 190.111, limits the latter{'s]
operation and jurisdiction as to only persons whose
employment status ended by being ordered retired. ["G" @
p.101 and "G" @ p.102}]
32'. Conversely, Section 190.111 does not extend
to persons who are in receipt of pension plan payments, but as
incidental to first being discharged from employment as a
police officer by the chief of police: This was Plaintiff's status
when he applied for pension benefits. Therefore, he was not a
person reached by Section 190.111
33. | The purpose for Defendant City's false
inclusion of plaintiff as within the person of Section 190.111
was to avoid the previous remedy he had gained with the
Court's judgment for reinstatement. (herein Exhibits "A" and
"B") By convincing the Court that Section 190.1 11 was all
inclusive as to all persons in receipt of pension plan payments,
Defendants were able to rely upon the exclusion that the
Section held to persons of Plaintiffs civil service rank as not
being eligible to apply for rehire. as a statutory bar to his
[prior] judgment for reinstatement. Even though as an
' The complaint was inadvertantly mis-numbered from this 32 and the next
number 33. The complaint was consecutively numbered from the second
number 33 on.
84a
employee discharged and not having been retired, the issue
was reinstatement, rather than being rehired from é
retirement. |
34. | However, by convincing the Court that an
approval of pension payments renders the beneficiary as one
in the same person as being retired or being discharged,
Defendants were able to convince the Court to change the
claim of the action from one for reinstatement, to one to be
rehired.
35. After having falsely relegated Plaintiff to the
reach and application of Section 190.111 as described,
Defendant City [received court] nullification of Section
190.16(3) as the authonty he cited before the Court under
which he had been approved pension plan payments: By
(City) denial that Section 190.16(3) held any legal relevance
to the dispute. Even though by its operation as a preemptory
mandate, (see section 190.16 - preamble) it superseded
Section 190.111 as controlling authority for the order that had
approved Plaintiff's pension plan payment by the pension
board's order of December 10, 1987. (herein Exhibit "G")
36. Hence, it was from Defendant City's false
representation of the pension ordinance scheme as described:
was the origin of the State Court of Appeal's May 10, 1991
decision (herein Exhibit "C") that supported, entirely, its legal
justification to set aside, this vacate the orders previously
made that restored Plaintiff to his employment. (herein Exhibit
"A" and "B")
37. Concerning the law-of-the-case Williams v.
City of Los Angeles, 229 Cal.App.3d_ 1627 (May 10, 1991)
as invalid, unconstitutional, and as a fundamental
misapplication of applicable rules: (herein Exhibit "'C")
38. The law of the above-referenced case and
execution of judgment, is pre-empted by the Supremacy
Clause of the United States Constitution that: (1) prohibits the
making and enforcing of retroactive laws that denies any
person's right to life, liberty or property; and (2) prohibits
85a
conduct that denies another due process and equal protection
under the law.
"(1)" Concerning "expost facto law"
The legal analysis and the construction of the "waiver"
clause with the City's pension ordinance scheme - section
190.111 - was retrospectively applied to the pension
transaction of December 10, 1987: [that] changed the
approval of pension plan payments, by its Board of Pensions ,
on Plaintiff's behalf (**a**) from a property interest from
vesting, and a property right from [the] event of being
discharged - as provided under section 190.16(3); to (**b**)
[a] property interest still from vesting - however, as [to] a
property right, as [a] waiver of state-created rights for [the]
remedy by [the] State courts, [from] the claim of [a] wrongful
terminated - [waiver] alleged [to be] mandated under Section
190.111
The "waiver", as constructed and as applied to the
December 10, 1987 pension transaction, was then enforced,
retroactive to the judgments by the Superior Court of 1988,
and the Appellate Court of 1989, (herein Exhibit "A" and "B")
which, collectively constituted perfected claim that had
restored Plaintiff's property interest to employment - to vacate
the claim. In this regard, the May 10, 1991 order erroneously
held, post facto: that the post-discharge application and
approval of pension plan payments, suspended the previous
action from Plaintiff's discharge; but for the limited purposes
of [the] resolution of the question of his property right to
employment, under the provisions of the pension plan; rather
than in accordance with the general laws of the State, and. for
the sole purpose to preempt State law by the pension
ordinance [in order] to vacate the previous orders for
Plaintiff's reinstatement to employment. Williams v. City of
Los Angeles, 229 Cal. App.3d id. P. 163 1) (limited purposes
application, section 190.111, and the appellate court's
invalidation of section 190. 16(3), even though shown as
controlling authority and real basis for pension)
86a
"(2)" Concerning deni
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