>Wilson>
v. County>
of Orange>

















Filed 1/9/13 Wilson v. County of Orange CA4/3













>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE DISTRICT



DIVISION THREE




>

LYLE WILSON, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.

G046625 (Super. Ct. No. 30-2011-00477697) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Franz E. Miller, Judge. Reversed and remanded.

The Law
Offices of Charles Goldwasser, Charles A. Goldwasser, David A. Goldwasser, and
Theodore H. Dokko for Plaintiff and Appellant.

Liebert
Cassidy Whitmore, Debra L. Bray, David A. Urban, and Stacy L. Velloff (Herberg)
for Defendants and Respondents.





This
appeal concerns a long and contentious dispute between Lyle Wilson and his
former employer, the Orange County District Attorney’s Office (the
County). Wilson was
discharged from his employment in 2002.
After six years of litigation and legal maneuvering, a trial court
entered judgment in Wilson’s favor and issued a peremptory writ ordering the County to vacate
his discharge from employment. The trial
court determined one of the charges supporting Wilson’s discharge
was barred by the statute of limitations.
The County did not appeal this judgment.
Instead, the County amended Wilson’s employment
file to show he was terminated in 2002 for two non-time barred reasons.

The
trial court, and a different panel of this court, concluded backdating a second
discharge violated the peremptory writ. (>Wilson> v. Superior Court (Apr.
7, 2010, G040875) [nonpub. opn.] (hereafter
Wilson I).) The backdating effectively deprived Wilson of any
administrative remedies to challenge the discharge and eliminated his ability
to seek backpay. We upheld the trial
court’s order finding the County’s attempt to backdate a second discharge was
null and void. (Ibid.)

Thereafter,
the County vacated the 2002 discharge, reinstated Wilson with pay,
but placed him on paid administrative leave.
The trial court ordered the County to determine within 90 days how much Wilson was due in
backpay and benefits. It also ruled any
dispute as to the amount of backpay
would have to be resolved in a new action.

On
October 26, 2010, the County paid Wilson $97,304 for backpay and benefits. Wilson filed the underlying petition for a
writ of mandate, seeking an order requiring the County to pay him an additional
$1,108,782, as well as a retirement credit of 7.9 years. A few weeks later, the County discharged Wilson
from his employment based on two non-time barred charges.

The
trial court sustained the County’s demurrer on the basis Wilson failed to
allege compliance with the Government Tort Claims Act (Gov. Code, § 900 et
seq., hereafter referred to as Claims Act).href="#_ftn1" name="_ftnref1" title="">[1] The court dismissed Wilson’s
writ petition. On appeal, Wilson asserts
the Claims Act does not apply. We agree
and reverse the judgment.

I

We
begin our factual summary by incorporating by reference the procedural history
from 2002 to 2010 as delineated in the prior appeal. As aptly summarized by a different panel of
this court, “This case arises against a backdrop of political intrigue and
purported cover-ups. . . . Wilson, a veteran investigator for the Orange County
District Attorney’s Office, was investigating Patrick DiCarlo, a personal
friend and supporter of District Attorney Anthony Rackauckas, for purported
violations of federal and state securities laws. Rackauckas ordered that Wilson terminate the
investigation, but because he was concerned about a possible internal cover-up
and the obstruction of justice, Wilson failed to comply. Furthermore, when told to turn over the
DiCarlo file to his supervisor, Wilson covertly provided authentic-looking
copies of the documents and a recorded interview tape and kept the
originals. After the supervisor
destroyed the purported originals, Wilson lied about still having file
materials in his possession. As the
water got hotter, he eventually leaked information about the investigation to
the press. Wilson was [placed on
administrative leave in 2001, and] fired in 2002 for insubordination,
untruthfulness, and media policy violation.”
(Wilson I, supra, G040875, fn.
omitted.)

>A. The First Writ of
Mandate Petition & Arbitration (Also Referred to as the First Action)

After
being placed on administrative leave in 2001, Wilson “requested an
administrative review of the matter.
Wilson later filed a petition for a writ of mandate, under Code of Civil
Procedure sections 1085 and 1086, requesting the County be directed to provide
him with an administrative review in conformity with . . . section 3304,
subdivision (b).” (Wilson I, supra, G040875.)
Section 3304 describes the grievance procedure for peace officers under
the Public Safety Officers Procedural Bill of Rights Act (POBRA) (§ 3300 et seq.
[labor relations statute providing catalog of basic rights and protections
afforded to all peace officers by public entities that employ them].)

“The
Orange County Superior Court thereafter issued an order recusing the entire
bench, because Rackauckas was previously a judicial officer of that court. The matter was then assigned to Judge David
Yaffe of the Los Angeles County Superior Court.” (Wilson
I, supra, G040875.)

“On
October 25, 2002, the County sent Wilson a notice of intent to discharge on the
grounds of insubordination, untruthfulness, and violation of the Orange County
District Attorney Media Policy. Wilson
was terminated on December 30, 2002. He
then filed an appeal before an arbitrator, pursuant to a memorandum of
understanding [(MOU)] between the Association of Orange County Deputy Sheriffs
and the County of Orange.” (>Wilson I, supra, G040875.)

“A
March 4, 2003 minute order was entered in the writ proceedings stating that the
petition was stayed unless and until amended to plead either exhaustion of
administrative remedies or facts showing exhaustion was not required. On August 8, 2003, the court granted Wilson
leave to file an amended supplemental petition for a writ of mandate alleging a
claim pursuant to . . . sections 3305 and 3309.5.”href="#_ftn2" name="_ftnref2" title="">[2] (Wilson I, supra, G040875, fn. omitted.)

“Proceeding
on another track, arbitration proceedings began before arbitrator Howard S.
Block. Opening statements were made on
August 25, 2003. The County stated that
‘pursuant to Article 10 of the applicable MOU, the issue in this case would be
whether . . . Wilson was discharged by the District Attorney’s office for
reasonable cause. If not, to what remedy
is . . . Wilson, entitled under the provisions of Article 10, Section 8 of this
MOU.’” (Wilson I, supra, G040875.)

The
arbitration proceedings lasted until August of the following year. “Wilson moved that the arbitration
proceedings be dismissed and he be reinstated to his position because the
County did not complete its investigation within the time permitted by . . .
section 3304, subdivision (d). The
arbitrator denied the motion in October 2004, stating: ‘[T]his [a]rbitrator’s jurisdiction is
limited to what the parties have authorized him to decide, namely, whether Mr.
Wilson was discharged for reasonable cause.
The parties have not authorized the [a]rbitrator to decide the statute
of limitations question which arises under the [POBRA]. [Citation.]’”
(Wilson I, supra, G040875, fn.
omitted.) After further hearings in
April and May of 2006, the arbitrator, having made no determination on the
statute of limitations issue, determined in October 2006, Wilson had been fired
for reasonable cause. (>Wilson I, supra, G040875.)

Over
one year later, on February 8, 2008, the trial court considered “Wilson’s
petition for a writ of mandate pursuant to Code of Civil Procedure

sections 1085 and 1086. The
minute order on the hearing observed that the arbitrator had determined that he
did not have the authority to decide whether any of the claims against Wilson
were time-barred under [section] . . . 3304, subdivision (d). In addressing that unresolved issue, the
minute order stated that ‘[p]unitive action against Wilson for insubordination
was . . . untimely under [section] . . . 3304[, subdivision] (d).’ It also said that punitive action against
Wilson with respect to the untruthfulness and media policy violation charges
was timely. However, the order also
stated: ‘Because it cannot be determined
from the arbitrator’s decision whether he would have upheld Wilson’s discharge
if one of the three acts of misconduct were time-barred, Wilson is entitled to
the issuance of a writ of mandate requiring his employer to vacate its order
discharging Wilson and remanding the matter to respondents for such further
proceedings as they determine to take, consistent with the decision of the
court.’” (Wilson I, supra, G040875.)

“A
March 14, 2008 judgment decreed that:
‘[The County] violated [section] 3304 [subdivision] (d) by taking
punitive action against [Wilson] for insubordination. [The County] did not violate [section] 3304
[subdivision] (d) by taking punitive action against [Wilson] for untruthfulness
and for violation of [the County’s] media policy. A writ of mandate will issue commanding [the
County] to vacate [its] decision discharging [Wilson] and remanding this matter
to [the County] for further action consistent with this judgment.’ (Capitalization omitted.)” (Wilson
I, supra, G040875.)

“A
peremptory writ of mandate was thereafter issued commanding the County ‘to
vacate [its] decision discharging [Wilson], and to take such further action as
[it deems] proper, consistent with the judgment of this court.’ (Capitalization omitted.) It was also ordered to file a return to the
writ showing what it had done to comply.”
(Wilson I, supra, G040875.)

“In its
return to the writ, the County disclosed that it had sent Wilson a notice dated
May 2, 2008[,] stating: ‘[Y]our
personnel file will be amended to reflect effective December 30, 2002[,] that
the grounds of your discharge are untruthfulness and violation of the Orange
County District Attorney’s Media Policy.’”
(Wilson I, supra, G040875.)

“Wilson
filed an opposition to the return. He
requested that either the County be compelled to reinstate him to his former
position or the matter be remanded to the arbitrator for a determination of
whether the termination would have been made for just cause based exclusively
on the grounds of untruthfulness and violation of media policy. [¶] On
July 28, 2008, the court entered an order stating: ‘The decision by [the County] to discharge
[Wilson] for two reasons instead of three are within the discretion of the
District Attorney and does not violate the writ of mandate issued by this
court. [¶] The return further informs the court,
however, that [the County has] attempted to backdate [its] discharge of
[Wilson] seven and a half years, to December 30, 2002. Such attempt to backdate the discharge on
only two grounds violates the writ because it is an attempt to deprive [Wilson]
of his administrative remedy to challenge the new discharge and to deprive him
of whatever right to backpay he would have if the 2002 discharge is vacated as
ordered by the court and a new discharge order is made.’ The order also provided: ‘Pursuant to section 1097 of the Code of
Civil Procedure, the court orders that the attempt by [the County] to backdate
[its] decision to discharge [Wilson] for two reasons instead of three, to any
date prior to May 2, 2008, is null and void.’”
(Wilson I, supra, G040875.)

>B. The First Appeal in 2010

The
County appealed from the order declaring its second decision to discharge
Wilson null and void. As mentioned
above, a different panel of this court affirmed the order. (Wilson
I, supra, G040875.) We rejected the
County’s argument the trial court exceeded its jurisdiction by essentially
vacating the arbitration award by ruling the discharge was reasonable. We concluded the trial court did not rule on
the same legal issue as the arbitrator, but rather reviewed the arbitration
award and determined it was unclear whether the arbitrator would have reached
the same result on only the two grounds of untruthfulness and media policy
violation. (Ibid.) We noted, “The County
failed to challenge the judgment and cannot now complain about the effect of
the judgment, or its enforcement, on the arbitration award.” (Ibid.)

We also
rejected the County’s contention the trial court’s order erroneously precluded
the County from exercising its discretion to terminate Wilson’s
employment. We pointed out the trial
court’s judgment “decreed that the County’s decision discharging Wilson be
vacated and that the matter be remanded to the County ‘for further action
consistent with this judgment.’
(Capitalization omitted.) The
peremptory writ likewise commanded the County to vacate the discharge ‘and to
take such further action as [it deemed] proper, consistent with the judgment of
this court.’ (Capitalization omitted.) Neither the judgment nor the writ specified
what further action the County could take with respect to Wilson, but clearly
that further action did not include backdating the order discharging Wilson
rather than vacating it.” (>Wilson I, supra, G040875.)

We also
addressed the County’s complaint “that it is precluded from terminating Wilson
on the grounds of untruthfulness and media policy violation because the . . .
section 3304, subdivision (d) statute of limitations would bar a current-day
termination on those grounds. If the
County wanted the judgment to include language somehow permitting a retroactive
termination based on only two grounds, it should have sought clarification of
the judgment at the time, or should have taken an appeal from the
judgment. Rather than risking an adverse
clarification or a loss on appeal, it would appear that the County chose to
game the system by backdating an amended discharge order and hoping it would
fly. As we have said, substantial
evidence supports the court’s determination that this action did not comply
with the writ. That being the case, we
affirm the order. However, we express no
opinion as to what avenues are now available to the County to address the
Wilson matter.” (Wilson I, supra, G040875.)

>C. The County’s Action on Remand and Completion
of the Los Angeles Proceedings

After
losing on appeal, the County informed Wilson that he would be placed on
administrative leave as of July 9, 2010.
Wilson returned to the trial court in Los Angeles (Judge Yaffe) and
requested the court order the County to reinstate him and provide owed
backpay.

The
court’s minute order reflects the motion was granted in part and denied in
part. The court stated its ruling was
based on the County’s representation Wilson “has already been reinstated with
pay, and that the [County] will determine the amount of backpay, if any, due to
[Wilson].” The trial court concluded,
“[t]he only order that appears to be necessary is an order placing some
reasonable time limit on [the County’s] obligation to determine the amount of
backpay . . . and to pay the amount so determined.” The court gave the County 90 days (until
September 27, 2010) to make that determination and pay the amount. In addition, the court clarified, “The
[c]ourt retains jurisdiction over this matter only for the purpose of enforcing
the order. When [the County complies]
with this order, the [c]ourt will have no jurisdiction over this matter. Any judicial review of the amount of backpay
found by [the County] to be due to [Wilson] is to be sought in a new
case.”

On
October 27, 2010, the County filed its return to the writ of mandate announcing
it sent Wilson a check for $65,145.03, representing $97,304 for backpay minus
the necessary withholdings. The County
explained it hired an expert economist and a vocational rehabilitation expert
to determine the amount of backpay owed.
The County stated backpay was defined as the amount Wilson would have
earned but for the County’s unlawful conduct, minus the amount Wilson earned
“‘or could have earned’” if he had “‘mitigated the loss by seeking or securing
other comparable employment.’” (Citing >Lowe v. California Resources Agency (1991)
1 Cal.App.4th 1140, 1144-1145,

fn. 3 (Lowe) [definition
of backpay in wrongful termination cases involving civic service
employees].) One of the County’s experts
determined Wilson could have obtained a higher paying job as an investigator at
another district attorney’s office in California, a public defender’s office,
or an alternative public defender’s office within six to nine months following
his termination. The other expert
determined Wilson would have been paid $97,304 for the period of nine months
following his termination in 2002.

A few
weeks later, on November 18, 2010, the County discharged Wilson’s
employment. This time it was based on the
charges of untruthfulness and media policy violation.

>D. The Second Petition for Writ of Mandate (Also
Referred to as the Second Action)

Wilson
was unhappy with the amount the County paid him. He filed a new petition for writ of mandate
in the Orange County Superior Court in light of

Judge Yaffe’s prior decision, “Any judicial review of the amount of
backpay found by [the County] to be due to [Wilson] is to be sought in a new
case.” Wilson asserted he was still
owed $924,901.14 and a retirement credit of 7.9 years. He sought a court order compelling the County
“to comply with their obligation under the law to pay him backpay and benefits
from December 30, 2002, until the effective date of the most recent disciplinary
action of termination taken against him by . . . Rackauckas.” Wilson pled he had no administrative remedy
in this matter. Wilson amended his writ
of mandate in July 2011, increasing the amount of wages owed to $1,107,782.87.

The
County filed a demurrer alleging there were four reasons why the petition
failed to state facts sufficient to constitute a cause of action: (1) Wilson did not comply with the Claims
Act’s time limitations; (2) Judge Yaffe never made a specific award of backpay
under the POBRA, so there was no damage award to be enforced;

(3) the determination of backpay under the POBRA is considered
extraordinary relief and is a discretionary act, not a ministerial act, and
therefore cannot be compelled by a writ of mandate; and (4) a writ of mandate
directing payment would be unlawful because the POBRA does not authorize a
damages remedy.

In his
opposition, Wilson argued his claim did not rely on the Claims Act or the
POBRA. He clarified the writ sought to
have the County comply with the earlier writ granted in Los Angeles by Judge
Yaffe. Wilson stated he was not claiming
the County failed to comply with Judge Yaffe’s order, that they committed a
tort against him, or violated any rights under the POBRA. Instead, Wilson asserted he disputed the
calculation of backpay and “seeks to determine the actual amount owed through
this litigation.”

The
court sustained the demurrer and gave Wilson 10 days leave to amend. Wilson filed an amended petition and added
two alternative theories of recovery,

(1) declaratory relief he was owed wages, and (2) breach of contract
(specifically the MOU regarding payment of wages). The County again demurred, raising the same
arguments as before. In addition, the County
asserted the request for declaratory relief was invalid and/or barred by res
judicata. The County maintained the
breach of contract claim failed because public employees cannot raise this
claim against their employers and Wilson failed to exhaust his remedies.

The
court sustained the demurrer without leave to amend. In its minute order, the trial court stated,
“Although Wilson’s claim for writ relief revolves around the assertion the
County incorrectly calculated back wages that were owed to him, the claim arose
originally from an action that centered around a claim he was wrongfully
terminated. Thus, his claim is
effectively one for damages, and he was not excused from complying with . . .
section 905. (Loehr v. Ventura County Community College Dist. (1983) 147
Cal.App.3d 1071, 1080 [(Loehr)].)” On January 24, 2012, the court entered a
judgment dismissing the action.

II

A. Standard of Review

On
appeal from a judgment of dismissal following an order sustaining a demurrer,
“we examine the complaint de novo to determine whether it alleges facts
sufficient to state a cause of action under any legal theory, such facts being
assumed true for this purpose.” (>McCall v. PacifiCare of Cal., Inc. (2001)
25 Cal.4th 412, 415 (McCall).) We assume the truth of the properly pleaded
factual allegations, facts that can reasonably be inferred from those pleaded,
and facts of which judicial notice may be taken. (Schifando
v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

B. General Principles Regarding the Claims Act

Under
the Claims Act, “no suit for ‘money or damages’ may be brought against a public
entity until a written claim has been presented to the entity and the claim
either has been acted upon or is deemed to have been rejected. (§§ 905, 945.4.) The purpose of the claims statutes is
to: (1) provide a public entity with
sufficient information to allow it to thoroughly investigation the matter; (2)
facilitate settlement of meritorious claims; (3) enable a public entity to
engage in fiscal planning; and (4) to allow a public entity to avoid similar
liability in the future.
[Citation.] The Claims Act does
not apply, however, to nonpecuniary actions, ‘such as those seeking injunctive,
specific or declaratory relief.’
[Citation.]” (>Canova v. Trustees of Imperial Irrigation
Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1493 (>Canova).) Rather, the claims presentation requirement
applies to all actions seeking monetary demands, regardless of the theory of
the action. (Sparks v. Kern County Bd. of Supervisors (2009) 173 Cal.App.4th
794, 798 (Sparks)). “The failure to timely present a claim for
money or damages to a public entity bars the plaintiff from bringing suit
against that entity. [Citation.]” (Ibid.)

“In
determining whether the Claims Act applies, the critical question is whether
the recovery of money or damages was the primary purpose of [p]laintiffs’
claims. Where the primary purpose of a
mandamus action is monetary relief, the mandatory requirements of the Claims
Act apply. [Citations.] In contrast, mandamus actions seeking to
compel performance of a mandatory duty, statutory duty or ministerial act may
not be subject to the Claims Act if they do not seek money or damages. (Board
of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1125-1126 [mandamus
action to enforce mandatory duty regarding future funding of retirement system
was not one for money or damages]; County
of Sacramento v. Lackner (1979) 97 Cal.App.3d 576,

587-588 [mandamus action to compel state to
disburse funds in the manner provided by the Medi-Cal statutes was not one for damages,
but to compel by ministerial act the release of funds]; Forde v. Cory (1977) 66 Cal.App.3d 434, 436-438 [mandamus
proceeding to compel state officer to pay lump sum death benefit on behalf of
judge who died before retirement was a suit to compel performance of express
statutory duty, not a money action, and thus was exempt from the government
claim requirement].)” (>Canova, supra, 150 Cal.App.4th at pp.
1493-1494.)



C. Wilson’s Wage Claim (His Second Action) was
Exempted From the Claims Act

Section
905 designates 14 classes of claims against local public entities that are not
subject to the claims procedure of the Claims Act. (Van Alstyne, California Government Tort
Liability Practice (C.E.B. 2011) § 5.38, p. 195 (hereafter Van Alstyne).) “In general, courts strictly construe the
statutory exceptions in [section] 905.
Unless a particular case clearly falls within an exempted category, the
plaintiff’s failure to present a timely claim may be fatal.” (Id. at
§ 5.42, p. 197.)

Relevant
to this case, section 905, subdivision (c), exempts, “Claims by public
employees for fees, salaries, wages, mileage, or other expenses and
allowances.” Section 905, subdivision
(f), exempts claims for benefits under retirement or pension systems. Case authority has held the exemption applies
to employees seeking earned, promised, or accumulated wages and benefits. (See Loehr,
supra, 147 Cal.App.3d

at p. 1080 [reviewing cases applying 905,
subdivision (c)’s exemption].) Whereas,
backpay claims connected to damage awards or claims incidental to injunctive
relief (reinstatement) may not fall within the scope of the exemption.

Because
we must strictly construe the statutory exemptions, it is crucial for us to
determine the underlying basis for Wilson’s backpay and benefits claim in his
second action. In this case, the
determination is somewhat complicated by the parties’ liberal and frequent use
of the term “reinstatement” to represent two different events in this case, neither
of which is related to the legal remedy of “reinstatement” as used in the case
law.

The
first event the parties sometimes refer to as a “reinstatement” was the Court’s
issuance of a preemptory writ of mandate in 2008, ordering the County to vacate
its decision discharging Wilson in
December 2002. This order had the
practical effect of erasing the event of Wilson’s termination. It is important to note the court did not
also award Wilson the remedy of “reinstatement,” and this was because the court
was not providing a remedy for an ordinary tort-type action. Rather, Wilson’s lawsuit was about a POBRA
violation. The court vacated Wilson’s
discharge from employment and ordered the matter “remanded to [the County] for
further action consistent with this judgment.”
The court did not indicate what avenues under POBRA would be available
to the County in dealing with its employee, and the County did not seek
clarification or appeal the judgment. In
essence, the end result of the first action was the determination Wilson was an
employee awaiting procedurally proper disciplinary action or termination as
permitted by POBRA.

The
record shows the County took no further steps towards terminating Wilson’s
employment until two years later (2010), which brings us to the second event
referred to by the parties as representing a “reinstatement.” In July 2010, the County advised the court it
had officially “reinstated” Wilson “with pay” and it placed Wilson on
administrative leave. Four months later,
in October 2010, the County paid Wilson approximately $97,000, representing a
period of nine months of employment beginning December 30, 2002. The County claimed this sum represented all
the wages owed to Wilson. In November 2010,
the County discharged Wilson’s employment.


What
both parties fail to appreciate is that the term “reinstatement” is a legal
term used in the context of employment discrimination and termination
cases. In those cases, reinstatement is >a remedy a court may order and refers to
“a return of an employee to a former position with the same rights and
responsibilities while ‘instatement’ may be used to refer to remedial placement
of the employee in a different or advanced position. [Citations.]”
(Dyer v. Workers’ Comp. Appeals
Bd. (1994)

22 Cal.App.4th 1376, 1382.) An employee “reinstated” in this context may
also be entitled to the remedy of backpay.
However, a claim for backpay incidental to a court-ordered reinstatement
is not the type of wage claim expressly exempt from section 905, subdivision
(c), of the Claims Act.href="#_ftn3"
name="_ftnref3" title="">[3] Consequently, to avoid
confusion, this opinion will only use the term “reinstatement” in the legal
context of a court-ordered remedy. As
will be described later in this opinion, the distinction is important when
comparing this case to others where the trial court has ordered >a remedy involving reinstatement.

Accordingly,
we conclude it would be improper to say Wilson was “reinstated” by the trial
court’s 2008 judgment and issuance of the writ of mandamus. The court never ordered Wilson returned to a
former position to remedy a wrongful termination. Rather, the court determined Wilson was never
properly discharged from employment in the first place and it remanded the
employment matter to the County. The
trial court simply vacated the discharge due to the County’s failure to follow
the procedures and rules outlined in the POBRA.
Wilson’s employment continued until the County took further action.

Similarly,
the County’s decision in 2010 to place Wilson on administrative leave with pay
was not a “reinstatement” as defined in the case law. This was not a remedy fashioned by a court of
law. It was the County’s tardy response
to the

2008 judgment after losing its appeal. The County’s decision to once again pay
Wilson his wages as an employee cannot be deemed a court-ordered
reinstatement.

In
light of the above discussion, we conclude Wilson’s second action is a wage
claim falling under the exemptions to Claims Act (§ 905, subds. (c) and
(f)). Wilson filed the petition one
month before his termination in November 2010 and asserted he has not been paid
wages from December 2002, “to the present.”
Based on the court’s orders, we conclude Wilson was continuously
employed from December 30, 2002, until his termination in November 2010. His second action does not seek damages
arising from POBRA violations, statutory penalties, wages incidental to a
court-ordered reinstatement, or any other tort damages. Rather, Wilson’s action simply alleges the
County still owes him an additional $1,132,404.77 in wages plus 7.9 years of
retirement credit.

As
repeatedly asserted in the County’s supplemental briefing, Wilson’s second
action must stand apart and independently from his first action. The County submits, “Wilson’s first and
second lawsuits are fundamentally different and seek redress for different
alleged wrongs.” It correctly asserts
there “is no authority providing that a lawsuit otherwise subject to the Claims
Act would, in fact, not be subject to it, because of a particular relationship
to a prior lawsuit.” The reverse logic
would also apply. As such, we cannot
agree with the trial court’s ruling that because the Claims Act may have
applied to Wilson’s first action raising PROBA violations and seeking actual
damages for wrongful termination, it must also apply to the second wage dispute
action. The two lawsuits are
fundamentally different.

The
County argues the exemption does not apply to Wilson’s claims because it only
applies to wages that have been “earned but not paid.” (Citing Loehr,
supra, 147 Cal.App.3d at p. 1080.)
In addition, the County asserts there is case authority on point,
holding backpay demands, stemming from POBRA violations, are subject to the
Claims Act. (Citing Lozada v. City and County of San Francisco (2006)> 145 Cal.App.4th 1139, 1157-1159 (>Lozada).) We conclude both cases (Loehr and Lozada) are
factually distinguishable and inapt.

As
noted above, unless a particular case clearly falls within an exempted
category, the Claims Act applies. In >Loehr, supra, 147 Cal.App.3d at page
1080, the court determined the relief sought by plaintiff did not qualify for
the wage claim exemption (§ 905, subds. (c) & (f)), because the
primary purpose of plaintiff’s action was to seek tort damages for wrongful
termination. In that case, the board of
trustees of a community college district discharged plaintiff. He sued the board for damages for wrongful
termination and reinstatement to his former position as superintendent and
chief executive officer of the community college district.href="#_ftn4" name="_ftnref4" title="">[4] (Loehr, supra, 147 Cal.App.3d at

p. 1077.) The trial court
sustained demurrers without leave to amend on the ground plaintiff failed to
comply with the Claims Act requirements.
(Id. at p. 1082.)

In
Loehr, the court rejected plaintiff’s
argument he was not required to comply with the claim filing requirements
because “a portion of his damage action sought to recover lost salary and other
benefits, therefore, falling within the exceptions to filings involving claims
by public employees for salaries, wages and expenses (§ 905, subd. (c)) and
claims for benefits under retirement or pension systems (§ 905, subd.
(f)).” (Loehr, supra, 147 Cal.App.3d at p. 1080.) The court reasoned the limited statutory
exemptions must be narrowly construed, and after reviewing applicable cases, it
construed section 905, subdivision (c), as “exempting from the [Claim A]ct
claims for salaries and wages which have been earned but not paid. Earned but unpaid salary or wages are vested
property rights, claims for which may not be properly characterized as actions
for monetary damages. [Citations.] [¶]
Similarly, the exemption specified in section 905, subdivision (f)[,]
must be limited to benefits earned during the course of employment. [Citations.]”
(Loehr, supra, 147 Cal.App.3d
at p. 1080.)

The
Loehr court then reviewed the
complaint and determined the relief sought in the “first three causes of action
(breach of contract, tortious breach of covenant of good faith and fair
dealing, and conspiracy to induce breach) does not qualify for either the
section 905, subdivision (c) or subdivision (f) exemption. Plaintiff does not seek to recover salary or
wages that he previously earned nor does he seek to recover benefits to which
he is presently entitled under a public retirement or pension system. Plaintiff does seek, however, to obtain
monetary damages for defendants’ alleged misconduct in preventing him from
rendering services through which he might have acquired a vested right to
additional amounts in salary or benefits.”
(Loehr, supra,

147 Cal.App.3d at pp. 1080-1081.) The court also noted plaintiff’s first three
causes of action fell squarely within the terms of the Claims Act because they
sought monetary recovery for emotional and mental distress, pain and suffering,
humiliation, and damage to reputation. (>Ibid.)

Looking
within the four corners of the complaint in Wilson’s second action, we have
concluded the relief he sought qualifies for the section 905, subdivisions (c),
and (f), exemptions. Wilson seeks wages
and benefits for the time he was employed
by the county from 2002 to 2010.
Unlike the complaint in Loehr,> Wilson’s writ petition does not seek
lost wages and benefits as a portion of tort damages following a wrongful
termination or damages for misconduct.
The County has not suggested any reason why Wilson would not be entitled
to wages or benefits from December 30, 2002, to when he was discharged in
2010. Indeed, the County already
calculated and paid what it believed it owed Wilson for this period of
employment. Wilson simply is asserting
the calculation is incorrect.

There
appears to be some confusion by both parties as to the meaning of the >Loehr court’s use of the phrase “earned
but not paid” in describing the limited types of wage claims exempted from the
Claims Act. The Loehr court noted it had reviewed several cases discussing section
905, subdivision (c)’s exemption. (>Loehr, supra,

147 Cal.App.3d at p. 1080.) Based on its reading of those cases, the
court construed the exemption to apply only to claims brought by employees
seeking wages that would qualify as a vested property right. The court did not suggest the wages had to be
earned by “working” a particular task.
Rather, the court was simply making a distinction between an employee
who has accumulated a right to collect wages from an employee, wrongfully
terminated, who seeks wages as a part of his tort damages.href="#_ftn5" name="_ftnref5" title="">[5]

A
brief review of the cases cited by the Loehr
court illustrates this point. (>Loehr, supra, 147 Cal.App.3d at p.
1080.) The Loehr court cited to Longshore
v. County of Ventura (1979) 25 Cal.3d 14, 22, a case where a group of
sheriffs sought damages and declaratory relief regarding previous uncompensated
overtime. The court held the lawsuit
seeking recognition of a “right to compensation for services performed as a
county employee” fell within section 905, subdivision (c). Similarly, in Glendale City Employees’ Assn., Inc. v. City of Glendale (1975) 15
Cal.3d 328, 343 (Glendale), a class
of city employees sought a writ of mandate compelling the city council to
compute and pay wage increases to those employees in accordance with a MOU
approved by the city council. The court
determined the appropriate remedy of mandamus was available to resolve the wage
dispute. Likewise, in >Ruggiero v. Los Angeles City Unified Sch.
Dist. (1973) 33 Cal.App.3d 970, 973, a group of teachers were permitted to
seek a writ of mandate to require the school board to compensate teachers
additional money due to excessive deductions for unauthorized leaves of
absence. In contrast, the court in >Hanson v. Garden Grove Unified School Dist.
(1982) 129 Cal.App.3d 942, 948 (Hanson),
determined a former school employee claim was for general damages for the
school’s tortious refusal to rehire him was not
exempted from the Claims Act. “He
did not sue to recover wages, salaries or benefits under any contract of
employment or for services rendered. He
asked only for general damages” flowing from the district’s alleged tortious
conduct. (Id. at p. 946.)

These
cases exemplify the clear distinction between employees who have filed a wage
claim having accrued the right to collect certain wages and benefits from those
former employees who were wrongfully terminated and seek potential wages as a
part of tort damages. It is interesting
the Loehr court also referred to >Miner v. Superior Court (1973) 30
Cal.App.3d 597, where the court deemed a public employee was entitled to
workers compensation benefits relating to an industrial injury after he also
sued a third party tortfeasor, a co-employee, for the same injury. The Miner
court determined the employee’s claim was exempt under section 905,
subdivision (d), for “claims for which workmen’s compensation . . . [is] the
exclusive remedy.” The court strictly
construed the language of section 905, subdivision (d), to refer only to
“claims” and not to suits for damages, even though the same incident gave rise
to both the claim and the lawsuit and related to the same injury. This case supports the conclusion Wilson’s
current claim for additional wages is exempt from the Claim’s Act even if his
prior lawsuit was not.

In
light of the above body of case law, the court in Loehr determined that in the case before it, plaintiff was seeking
only potential, unearned, lost wages as part of his damage claim following his
wrongful termination. The wages sought
were not actually “earned” as plaintiff was officially discharged by the school
district. The Loehr case has no application to Wilson’s current action alleging
he is owed wages and benefits for the time he was employed by the County.

The
County’s reliance on Lozada, supra, 145
Cal.App.4th 1139, is also misplaced. The
County maintains Wilson’s claim “constitutes a backpay demand stemming from a
POBRA violation, the exact type of damages the [c]ourt in Lozada found to be subject to the . . . Claims Act. [Citation.]
Accordingly, section 905, [subdivision (c),] does not exempt Wilson’s
action from the . . . Claims Act.” The
County has misconstrued the scope of Wilson’s petition as well as the holding
of Lozada.

As will
be discussed below, we do not view Wilson’s second action as merely a
continuation of his first action raising POBRA violations and requesting
significant damages and penalties. In
short, the first action sought injunctive relief and was resolved in Wilson’s
favor with his discharge being vacated.
Judge Yaffe ordered Wilson to file a new action if he desired to raise
an employment wage dispute, which is exactly what Wilson did. Wilson’s current petition, the second action,
does not request POBRA damages or civil penalties.

Furthermore,
the County fails to appreciate the Lozada
case did not conclude all POBRA violation claims fell within the Claims
Act. To the contrary, the court
recognized the relief sought by public safety officers alleging violations of
their POBRA rights can vary greatly.
There is a large spectrum of possible POBRA claims, and whether the
Claims Act applies depends entirely on the action’s primary purpose. For example, the Lozada court expressly recognized an officer’s writ petition
seeking primarily reinstatement of employment or similar declaratory relief,
and backpay as a form of incidental damages, will not be subject to the Claims Act.
(Lozada, supra, 145
Cal.App.4th at p. 1166; Eureka Teacher’s
Assn., supra, 202 Cal.App.3d 469.)
On the other end of the spectrum, a lawsuit that primarily focuses on
recovering actual damages and civil penalties, with ancillary claims for
injunctive and declaratory relief, would be covered by the Claims Act. (Lozada,
supra, 145 Cal.App.4th at p. 1166; Loehr,
supra, 147 Cal.App.3d 1071.)

In the >Lozada case, the appellate court
determined the plaintiff’s claim was on the end of the spectrum primarily
seeking actual damages. In that case, a
peace officer filed an action seeking damages
and civil penalties in addition to declaratory and injunctive relief for
POBRA violations against his employer the City and County of

San Francisco in connection with its investigations into the
officer’s discharge of his weapon at an oncoming vehicle. Plaintiff also alleged violations of his
constitutional rights under 42 U.S.C. section 1983, and violations of the
California Fair Employment and Housing Act.
(Lozada, supra, 145
Cal.App.4th at pp. 1147-1148.)

Specifically
with respect to his POBRA claim, the plaintiff in Lozada sought injunctive relief, backpay, general damages, $25,000
civil penalties for each of the 13 POBRA violations, punitive damages, and
prejudgment interest. (>Lozada, supra,

145 Cal.App.4th at p. 1148.)
The trial court granted defendant’s summary judgment motion with respect
to the POBRA claim, on the ground plaintiff had failed to comply with the
notice requirements of the Claims Act. (>Id. at p. 1147.)

On
appeal, plaintiff argued the notice requirements did not apply because he
sought injunctive relief in connection with his POBRA claim, and his claim for
damages was “incidental” to the primary injunctive relief sought. (Lozada,
supra,

145 Cal.App.4th at p. 1147.) The appellate court rejected that argument,
explaining “we are aware of no case that holds that civil penalties of the type
sought here ($25,000 per incident) and actual damages that are the primary
relief sought and not merely ‘incidental’ to injunctive or other href="http://www.mcmillanlaw.com/">extraordinary relief, do not constitute
a claim for ‘money or damages’ in the first instance.” (Lozada,
supra, 145 Cal.App.4th

at pp. 1163-1164.)

After
discussing the legislative history of POBRA, the court concluded the
“Legislature never indicated an intent to exempt POBRA actions from the . . .
Claims Act filing requirements.” (>Lozada, supra, 145 Cal.App.4th at p.
1157.) The court concluded that with the
2002 amendment to section 3309.5 of the POBRA (that added civil penalties and
actual damages), the Legislature also changed the indemnity provisions of the
statutory scheme because it anticipated the amendment would create additional
liability for the public entity under the Claims Act. “The failure to carve out an exception to the
claim filing requirements of the . . . Claims Act indicates the requirements
operate as usual where a claim for money or damages is made under POBRA.” (Lozada,
supra,

145 Cal.App.4th at p. 1158.)

The
court acknowledged an officer has a right to proceed to court before punitive
action is taken by the employer and concluded he or she would not be required
to delay his or her claim by complying with the Claims Act after punitive
action is taken. “A public safety
officer has the right to seek judicial relief for alleged procedural violations
of POBRA occurring before imposition of discipline or any punitive action is
taken. Such judicial relief will usually
take the form of a petition for writ of mandamus or an action for injunctive or
declaratory relief. In such
circumstances, because the officer is not usually seeking money or damages at
that point, the claim presentation requirements of the . . . Claims Act will
not apply. However, where the public
safety officer’s action also seeks ‘money or damages’ as the primary relief, we
see nothing in the language of the statute or the legislative history
inconsistent with a requirement that the public safety officer comply with the
claim presentation requirements of the . . . Claims Act before seeking those
money damages.” (Lozada, supra, 145 Cal.App.4th

at p. 1159, fn. omitted.)

The
court clarified what POBRA claims were for “money or damages” within the
meaning of the Claims Act. First, it acknowledged
attorney fees requests were not subject to the claim filing requirement. “When authorized by statute, awards of
attorney fees are defined as costs, not damages.” (Lozada,
supra, 145 Cal.App.4th

at p. 1160.)

Next,
the court concluded POBRA’s section 3309, subdivision (e), gives the court
power “to provide a civil penalty and actual damages as part of its equitable
relief.” (Lozada, supra, 145 Cal.App.4th at p. 1161.) The court concluded the $25,000 civil penalty
provided by section 3309.5 is not merely a regulatory remedy, but must be
considered damages subject to the filing requirements of the Claims Act. (Id. at


pp. 1161-1162.) Similarly, the court determined the officer’s
claim for actual damages, including backpay and vacation time, constituted
“money or damages” within the meaning of the Claims Act. The court recognized there appeared to be a
split of authority over whether money damages that may be incidental to a claim
for equitable relief were subject to the claim filing requirements. However, it did not analyze those cases
because it concluded “we are aware of no case that holds that civil penalties
of the type sought here ($25,000 per incident) and actual damages that are the
primary relief sought and not merely ‘incidental’ to injunctive or other
extraordinary relief, do not constitute a claim for ‘money or damages’ in the
first instance.” (Id. at pp. 1163-1164.)

Finally,
the court acknowledged the body of case law awarding “backpay and benefits as
incidental to the injunctive and declaratory relief of employment or
reinstatement sought in an action for mandamus or for injunctive relief, and
therefore exempt from the claim filing requirements of the . . . Claims
Act.” (Lozada, supra, 145 Cal.App.4th at pp. 1164-1165.) It also recognized one case authorizing
backpay as a form of extraordinary relief for POBRA violations before section
3309.5 was amended. (>Henneberque v. City of Culver City
(1985) 172 Cal.App.3d 837, 844-845 (Henneberque)
[the term “other extraordinary relief” permitted under POBRA includes writs of
mandate, and a writ of mandate is appropriately used to award backpay].) It distinguished those cases on the grounds
reinstatement or other injunctive relief was not the primary purpose of the
action filed by the officer in Lozada. “To the extent that Henneberque, supra, 172 Cal.App.3d 837, holds that backpay
constitutes extraordinary relief under POBRA, it may be that a particular claim
for backpay, attached to a writ petition seeking primarily reinstatement or similar
injunctive and declaratory relief would not be subject to the . . . Claims
Act. But we need not make that
determination in this case as we believe our decision in [Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744], fully
supports the trial court’s determination that the monetary relief sought by
[the officer] was not ‘incidental’ to the injunctive and extraordinary relief
he sought, but was the primary relief sought in the action.” (Lozada,
supra, 145 Cal.App.4th at p. 1166.)

The
Lozada court explained the officer’s
claim for damages and civil penalties “were the primary focus of his action”
because “the record does not indicate that he had any ‘transcendent interest’
in injunctive or declaratory relief, beyond his ability to obtain civil penalties
and actual damages if the court found the department to have acted with
‘malice.’ [The officer] was never
suspended and so did not seek reinstatement.
Nor did he specifically seek reassignment or transfer through a mandamus
action or in his prayers for injunctive and declaratory relief . . . .” (Lozada,
supra,

145 Cal.App.4th at pp. 1168-1169.)

The
Lozada court calculated the officer
sought money and damages, including civil penalties amounting to $325,000. The court reasoned, “Unlike writ proceedings
where incidental monetary relief may be awarded in the exercise of the court’s
power to give extraordinary relief, the aim of [the officer’s] POBRA cause of
action was recovery of money damages.
Although they argue that monetary relief and damages are >always and necessarily incidental to
injunctive and other extraordinary relief in all POBRA actions, neither [the officer] nor amicus curiae . . .
makes the argument that in this case [the officer’s] specific claims for
monetary relief and damages were merely incidental to his claims for
declaratory and injunctive relief.
Indeed, in his opening brief, [the officer] ‘stipulate[ed]’ for the
purposes of argument that he prayed for ‘primarily, money or damages, while
[his] claims for declaratory/injunctive relief were merely incidental.’” (Lozada,
supra, 145 Cal.App.4th at p. 1170.)
In comparing the Lozada officer’s
lawsuit and Wilson’s second action, it is clear Wilson is not seeking redress
for a POBRA violation. Wilson is seeking
payment of accrued wages.

The
County maintains Wilson’s wage dispute is related to his reinstatement (the
remedy he sought based on a claim raised in the first action). The trial court agreed with this theory,
concluding Wilson’s claim was “originally from an action that centered around a
claim he was wrongfully terminated.
Thus, his claim is effectively one for damages, and he was not excused
from complying with . . . section 905.”
In the supplemental briefing, the County reasserts the argument Wilson’s
wage dispute is “connected to reinstatement demands” and therefore not exempt
from the Claims Act. However, we noticed
the County’s theory of a “connection” is completely abandoned in its responses
to several questions we posed for supplemental briefing about whether the
second action could be considered a continuation of the first action to apply
principles of waiver and equity. In
essence, we questioned whether the Claims Act applied in the first action, and
if it did not, should it apply in the second action given the County’s
assertion there is a connection.href="#_ftn6" name="_ftnref6" title="">[6]

Before
addressing the issue of waiver based on the trial court’s theory the actions
are connected, we wish to clarify why we have reached the conclusion the
actions should not be treated as related.
To treat the second action as a continuation of the first we would have
to overlook Judge Yaffe’s rulings at the conclusion of the first action. In the end, Judge Yaffe simply confirmed
Wilson was back on the County’s payroll earning wages and it ordered the County
to calculate the amount of backpay owed to Wilson. Judge Yaffe did not award Wilson a particular
sum of damages representing merely potential wages or civil penalties arising
from a wrongful termination claim. The
case was concluded with Wilson having secured the injunctive relief of vacating
the discharge. Judge Yaffe recognized he
would have no jurisdiction if the parties later engaged in an employment wage
dispute, and he advised the parties this sort of litigation would require a
“new action.” In short, Wilson’s POBRA
violation claim was fully resolved and did not spill over to his second
action.

Additional
evidence in the record supports our conclusion there is no basis to engage in
the legal fiction the two actions should be treated as one. Very telling is the County’s response to the
judgment entered in the first action that impliedly recognized the POBRA case
was over and remanded for the County to deal with how much to pay its employee. As noted in the prior appellate decision,
rather than seeking clarification of that judgment or filing an appeal to
permit retroactive termination, the County “chose to game the system by
backdating an amended discharge order . . . hoping it would fly.” (>Wilson I, supra, G040875.) This ill-advised tactic was viewed by both
the trial court and this court as an underhanded attempt to avoid paying Wilson
salary and benefits. After losing on
appeal, the County’s second response was to pay Wilson a reduced amount of owed
wages (representing nine months of employment after the December 2002 discharge
was vacated). The reason the County was
able to engage in such calculations is because the first action did not award
Wilson specific damages incidental to “reinstatement” of employment. It awarded him the injunctive relief of
vacating the discharge, which de facto restored him to continuing
employment. Wilson’s second lawsuit
seeks redress for a completely different wrong.
Wilson alleges the County has miscalculated the wages and benefits owed
from December 30, 2002, to the date of his termination in 2010. As aptly stated by the County (albeit in
response to the issue of waiver), the two lawsuits “are fundamentally
different.”

>D. Wilson’s First Petition and Waiver of the
Claims Act.

The
County asserts we must view the request for wages and benefits in Wilson’s
second petition as merely a continuation of damages requested in Wilson’s first
petition incidental to the POBRA violation claims. As explained above, there are numerous
reasons why not to treat the two actions as one. However, even if we were to conclude the wage
dispute was part of the damages requested in the first petition, we would still
reverse the trial court ruling sustaining the demurrer without leave to
amend. Wilson could amend his complaint
to allege the Claims Act does not apply, or if it did apply, compliance with
the Claims Act requirements was waived by the County’s failure to raise the
issue prior to judgment being entered.

Before
we begin our analysis, we will take judicial notice of several documents filed
in Wilson’s first action (case No. 01CC06179), including Wilson’s original
petition for writ of mandate dated May 11, 2001, Respondents’ answer dated June
11, 2001, and Wilson’s amended supplemental verified petition for writ of mandate
deemed filed by the trial court on August 8, 2003. (Cal. Rules of Court, rule 8.155(a).)href="#_ftn7" name="_ftnref7" title="">[7] On October 24, 2012, we notified the
parties of our intent to augment the record to include these documents based on
the arguments raised on appeal that the second action was simply a continuation
of the first action. Upon further
reflection, we conclude the more appropriate avenue for us to consider the
documents is to take judicial notice of them because we have deemed the two
actions to be entirely independent of one another. (Evid. Code, § 452, subd. (d) [judicial
notice may be taken of records of any court of this state].) Moreover, we find no merit to the County’s
written objection to this court considering the documents. It asserted:
(1) the documents were not before the trial judge when it ruled on the
demurrer; (2) the material was irrelevant; (3) the selection was incomplete;
and (4) Wilson waived any arguments relating to the first action. How can the documents relating to the
allegations and remedies sought in the first action be irrelevant when it is
the County’s primary argument Wilson’s backpay claim arose from those
allegations and remedies (reinstatement)?
And although the documents may not have been physically before the trial
judge, it cannot be overlooked the court referred to the first action as being
one for wrongful termination and relied on the allegations in the first action
when it concluded the Claims Act applied to the second action. Finally, because our review of the trial court’s
ruling is de novo, we may take judicial notice of the documents we deem
relevant and necessary for resolving this appeal.

Returning
to the issue at hand, we have determined Wilson’s first petition for writ of
mandate (filed in 2001) requested only injunctive relief. Specifically, Wilson requested an order
directing the County to provide Wilson with an administrative appeal. Clearly, the primary purpose was nonpecuniary
relief. The Claims Act would not apply
to this petition.

Wilson’s
amended petition, filed in 2003 following his discharge from employment,
requested injunctive relief as well as related damages and civil penalties for
many alleged violations of POBRA (numerous purported violations were unrelated
to his discharge). Wilson asserts that
if his current petition must be deemed a request for actual wrongful
termination damages, the wage request was incidental to his request for
reinstatement in the first petition and, therefore, does not fall within the
preview of the Claims Act. He contends
it is well settled that when the
primary purpose of a petition for writ of mandate is reinstatement of
employment, the claim for backpay may be deemed incidental to the injunctive
relief requested. (See >Lozada, supra, 145 Cal.App.4th at

p. 1166; Eureka Teacher’s Assn., supra, 202 Cal.App.3d 469>.)


>Eureka Teacher’s Assn., supra, 202
Cal.App.3d 469, is instructive. In that
case a teacher and a teacher’s association sought a writ of mandate ordering
the Board of Education of the Eureka City Schools (the Board) to employ a
teacher with retroactive probationary status, although the teacher was formally
classified as a substitute. The
teacher’s association also sought backpay and fringe benefits for the teacher. The trial court granted a writ of mandate
requiring the Board to employ the teacher but denied the claim for backpay and
fringe benefits on the basis this claim was for damages and required adherence
to the claim presentation requirements of the Claims Act. (Id. at


p. 472.)

The
appellate court reversed the judgment, ruling the request for money damages was
incidental to the mandamus action, and the claim was not one for money or
damages under the Claims Act. (>Eureka Teacher’s Assn., supra, 202
Cal.App.3d at

p. 475.)
The court, relying on Harris v.
State Personnel Bd. (1985) 170 Cal.App.3d 639, 643 (Harris),href="#_ftn8"
name