Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. NS016752, Joseph E. DiLoreto, Judge.
Robert E. Shannon, City Attorney, and Christina L. Checel, Deputy City Attorney for Defendants and Appellants.
James E. Trott for Plaintiff and Respondent.
KLEIN, P. J.
The City of Long Beach (the City) appeals an order granting a petition for writ of mandate directing the Long Beach Civil Service Commission (the Commission) to determine the amount of back pay and benefits the City owes respondent, Dan Rodgers. We affirm the ruling.
FACTS AND PROCEDURAL BACKGROUND
On May 19, 1998, the City terminated Rodgers’s employment as a senior mechanical inspector in the City’s planning and building department. On December 2, 1999, the Commission upheld the termination.
Rodgers filed a petition for writ of mandate in the Los Angeles Superior Court challenging the Commission’s ruling. On May 19, 2000, the petition was granted. The trial court found Rodgers was willing and able to return to work in an appropriate environment, the City failed to give proper consideration to the medical reports of examining physicians, there was no evidence Rodgers acted without justification, the City failed to follow its own policies, and the penalty of termination was an abuse of discretion. The trial court ordered the Commission to set aside its decision of December 2, 1999, and to reconsider the discipline to be imposed, if any, in light of the trial court’s findings.
After this ruling, the parties agreed to take Rodgers’s employment claim off the Commission’s calendar to explore the possibility of a global settlement of this claim and a workers’ compensation claim Rodgers was pursuing against the City. The matter eventually returned to the Commission’s calendar and, on August 24, 2005, the Commission ordered Rodgers reinstated, effective retroactively to May 19, 1998, at the same classification, grade and salary step he held prior to his termination.
Rodgers appeared for a scheduled “return to work” medical examination on September 23, 2005, pursuant to the City’s civil service rules. On January 12, 2006, the City’s physicians declared Rodgers incapable of performing the essential functions of his position and imposed work restrictions. However, Rodgers’s treating physicians indicated Rodgers was willing and able to return to work as a senior mechanical inspector.
By letter dated January 19, 2006, Rodgers demanded reinstatement at the same classification grade and salary level he held prior to his termination, plus back pay and benefits. Rodgers also requested payment of medical expenses he had incurred minus amounts he had received from his workers’ compensation claim.
On February 13, 2006, the City advised Rodgers in writing he was not entitled to back wages because he was medically unable to perform his job. A letter dated February 15, 2006, offered to settle the case for the amount of temporary disability Rodgers would have received plus lost wages for the time he was not disabled minus sums that previously had been advanced to Rodgers.
On July 24, 2006, Rodgers filed a petition for writ of mandate in the Los Angeles Superior Court seeking to enforce the Commission’s order of August 24, 2005.
The City opposed Rodgers’s writ petition. It argued Rodgers was not willing or able to perform the essential functions of a senior mechanical inspector, Rodgers failed to mitigate damages and he was estopped from pursuing a claim that was inconsistent with his workers’ compensation claim. The City also argued that, because Rodgers had been reinstated to employment with the City as a plan checker in December of 2006, the remaining claim for money damages should be dismissed because Rodgers failed to file a claim as required by the Government Claims Act (the Act) before he sued the City for damages. (Gov. Code, § 900 et seq.)
Further unspecified section references are to the Government Code.
The trial court conducted a hearing on March 20, 2007, and thereafter granted the petition, citing Eureka Teacher’s Assn. v. Board of Education (1998) 202 Cal.App.3d 469. The trial court found Rodgers “is entitled to back pay and employee benefits from the date of termination until the date of reinstatement.” The trial court directed the Commission to calculate the amount due Rodgers and the amount of any offsets to which the City was entitled. The trial court retained jurisdiction over the matter to address any issues that “remain after reconsideration by the Commission.”
CONTENTIONS
The City contends, after Rodgers’s equitable claim was rendered moot by his reinstatement, his claim for damages should have been dismissed because he failed to file a government claim with the City.
Rodgers contends the trial court’s remand order is not final and therefore is not appealable.
DISCUSSION
1. The trial court did not issue a remand order and, in any event, we have discretion to treat the appeal as a petition for writ of mandate.
Rodgers contends the trial court’s order remanding the case to the Commission and retaining jurisdiction over any issues that arise after the Commission considers the matter is not a final judgment and thus is not appealable. (Village Trailer Park, Inc. v. Santa Monica Rent Control Bd. (2002) 101 Cal.App.4th 1133, 1139-1140; Board of Dental Examiners v. Superior Court (1998) 66 Cal.App.4th 1424, 1430.)
We are not convinced the trial court’s order constitutes a remand order in that the retention of jurisdiction was conditioned on a further, then unforeseen, issue developing when the Commission computed the amount owed Rodgers. Compliance with the order appears to be well within the expertise of the Commission and the conditional nature of the order reflects the trial court’s confidence the parties would accept the Commission’s computation. This is not a situation in which the trial court contemplates further necessary proceedings following a finding on a subsidiary matter by an administrative tribunal.
However, assuming the order amounted to a remand order, the cases cited by Rodgers reflect not only the general rule that a remand order is not appealable, but also the discretion enjoyed by this court to construe such an appeal as a petition for writ of mandate. (Village Trailer Park, Inc. v. Santa Monica Rent Control Bd., supra, 101 Cal.App.4th at pp. 1139-1140; Board of Dental Examiners v. Superior Court, supra, 66 Cal.App.4th at p. 1430.) Here, because the possibility of a dispute about the Commission’s computation of Rodgers’s back pay and benefits is unlikely, we would construe the appeal as a writ petition and address the merits.
2. The monetary aspects of Rodgers’s employment claim are incidental to his claim for reinstatement.
The City argues this case is moot because Rodgers was reinstated with the City three months prior to the hearing on the writ petition. Thus, at the time of the hearing, the sole issue presented to the trial court was Rogers’s complaint he had not received back wages and benefits. The City asserts that, where a party seeks both equitable and monetary relief, and the equitable relief is rendered moot, the remaining claim for monetary damages must stand on its own. Here, Rogers’s claim for monetary damages could not stand on its own because he failed to file a claim as required by the Act. (TrafficSchoolOnline, Inc. v. Clarke (2003) 112 Cal.App.4th 736, 741.)
The case the City relies upon, TrafficSchoolOnline, is not an employment case. It involved a traffic school provider that was denied inclusion on a list of approved providers. The plaintiff filed a writ petition seeking changes in the selection procedures for traffic school providers or, in the alternative, approval as a provider. The plaintiff also pleaded a separate cause of action for damages assertedly caused by the defendant court’s failure to select it as an approved program. During the pendency of the writ, the plaintiff was approved as a provider. Traffic School Online upheld an order granting summary judgment with respect to the remaining claim for damages on the ground it was subject to the requirements of the Act. (Traffic School Online, Inc. v. Clarke, supra, 112 Cal.App.4th at p. 738.)
We do not find the City’s argument persuasive. Rodgers’s claim for back pay and benefits was not a separate cause of action. Rather, it was incidental to the demand for reinstatement. The case cited by the trial court, Eureka Teacher’s Assn. v. Board of Education, supra, 202 Cal.App.3d at pp. 475-476, states the generally accepted view in employment cases that a monetary claim for back pay and benefits is incidental to a claim for reinstatement and thus is exempt from the Act. (See Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1166-1167; Harris v. State Personnel Bd. (1985) 170 Cal.App.3d 639, 643, disapproved on another ground in Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1123, fn. 8; Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 869-870.)
We also reject the City’s further assertion that, because Rodgers sought damages for being prevented from returning to work, the Act applies to Rodgers’s claim for back pay and benefits. (Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1078-1079; Hanson v. Garden Grove Unified School Dist. (1982) 129 Cal.App.3d 942, 948.)
Both of these cases are distinguishable. In Loehr v. Ventura, in addition to reinstatement, the plaintiff sought damages for wrongful termination including damages for emotional distress, pain and suffering, humiliation and damage to reputation, and monetary damages for allegedly preventing him from rendering services through which he might have acquired a vested interest to additional salary or benefits. (Loehr v. Ventura County Community College Dist., supra, 147 Cal.App.3d at pp. 1080-1081.) In Hanson, the plaintiff sued for damages for being denied reemployment. The plaintiff did not seek reinstatement or back wages. Rodgers, on the other hand, seeks back pay and benefits and he seeks to enforce a prior determination of the Commission that he is entitled to reinstatement.
In sum, we agree with the trial court’s conclusion that Rodgers’s claim for back pay and benefits is exempt from the requirements of the Act because it is incidental to the demand for reinstatement. The City cannot, by reinstating Rodgers, eliminate his claim for back pay and benefits.
Because the City’s appeal is grounded in its claim that Rodgers had to comply with the Act, and we have rejected that assertion, we need not consider whether Rodgers’s claim for back pay and benefits falls within the exceptions found at section 905, subdivisions (c) and (f), which exempt claims for “wages” and benefits under a public retirement or pension system, respectively. We likewise need not consider Rodgers’s assertion his letter of January 19, 2006 constituted substantial compliance with the Act (Loehr v. Ventura County Community College Dist., supra, 147 Cal.App.3d at pp. 1082-1082) or amounted to a “claim as presented” which triggered the City’s statutory obligation under sections 910.8 and 911 to serve notice of the defects or waive any defenses to the sufficiency of the claim (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 709).
DISPOSITION
The order is affirmed. Rodgers is entitled to costs on appeal.
We concur: CROSKEY J., KITCHING, J.
Section 905 requires that “all claims for money or damages against local public entities” be presented to the responsible public entity before a lawsuit is filed. Section 945.4 provides that failure to present a timely claim bars suit against the entity.