# Appendix — Williams v. City of Los Angeles > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1671%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1998 - **Citation:** 525 U.S. 821 ## Text 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 das ap Rane DM ance x pt 4 % % 3 ; 5 4S : ; 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.) ay ae ee as ead iad Neb hiccmnbia = aiteh aS ellen. TBE LaF A Si 2 s & 4 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1671%3A2. Public record. Not legal advice.