PEOPLE SAN FRANCISCO POLICE OFFICERS ASSOCIATION v. CITY AND COUNTY OF SAN FRANCISCO

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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California ex rel. SAN FRANCISCO POLICE OFFICERS' ASSOCIATION, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO;  Board of Supervisors, City and County of San Francisco;  Civil Service Commission, City and County of San Francisco;  Retirement Board, San Francisco City and County Employees' Retirement System, Defendants and Respondents.

No. A038864.

Decided: November 23, 1988

George W. Shaeffer, Jr., Newport Beach, N. Eugene Hill, Sacramento, for plaintiff and appellant. Thomas J. Owen, San Francisco, for defendants and respondents.

This is an action in quo warranto, brought by the San Francisco Police Officers' Association as relator, which attacks three San Francisco charter provisions affecting wages and retirement benefits of San Francisco police officers, on the ground that these charter provisions were enacted in disregard of the procedural requirements of the Meyers–Milias–Brown Act.

We affirm the judgment of the trial court upholding the charter provisions in question.

Legal Orientation:  MMBA and Quo Warranto

Government Code division 4, part 7, chapter 10 (§§ 3500–3509), was enacted in 1961.  (Stats.1961, ch.1964, § 1, pp. 4141–4143.)   In 1968, the Legislature made amendments and additions to this chapter, including section 3511 (renumbered section 3510 in 1971), which officially designates the chapter the “Meyers–Milias–Brown Act” (MMBA).  (Stats.1968, ch. 1390, §§ 1–12.5, pp. 2725–2729;  East Bay Mun. Employees Union v. County of Alameda (1970) 3 Cal.App.3d 578, 581, fn. 4, 83 Cal.Rptr. 503.)   MMBA governs relations between local governments as public employers and their employees.  (Gov.Code, § 3500;  Stats.1971, ch. 254, § 1, p. 401;  2 Witkin, Summary of Cal.Law (9th ed. 1987) Agency and Employment, § 455, p. 445.)   As amended in 1968, Government Code section 3505 requires the governing body of a charter city, or a representative of that governing body, to meet and confer in good faith with representatives of a recognized employee organization before proposing a charter amendment which will affect the terms and conditions of employment of the members of that employee organization.  (Stats.1968, ch. 1390, § 6, pp. 2727–2728;  People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 602, 205 Cal.Rptr. 794, 801, 685 P.2d 1145 (Seal Beach ).)   Subsequent amendments, in 1970 and 1971, did not change this requirement.  (Stats.1970, ch. 727, § 1, p. 1355;  Stats.1971, ch. 1676, § 1, pp. 3603–3604.)

Government Code section 3504.5 was added to MMBA in 1968.  (Stats.1968, ch. 1390, § 5, p. 2728.)   It requires “reasonable written notice to each recognized employee organization affected of any ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body” of a public employer.

Once a charter amendment has been enacted and put into effect, the exclusive remedy for violations of the above recited procedural requirements of Government Code sections 3504.5 and 3505 is a civil action in quo warranto.  (Code Civ.Proc., § 803;  International Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687, 698, 220 Cal.Rptr. 256, 264;  Oakland Municipal Improvement League v. City of Oakland (1972) 23 Cal.App.3d 165, 168–169, 100 Cal.Rptr. 29, 31.)   Such an action in quo warranto may be brought in the name of the People of the State of California upon the relation or information (ex relatione, abbreviated ex rel.) of a private party, known as the relator, who has an interest in the matter.  (Code Civ.Proc., § 803;  Cal.Code of Regs., tit. 11, § 1;  Brown v. Memorial Nat. Home Foundation (1958) 162 Cal.App.2d 513, 538–539, 329 P.2d 118;  Black's Law Dict. (5th ed. 1979) pp. 522–523.)   The relator must request and receive the permission of the attorney general to sue.  (Code Civ.Proc., § 803;  City of Campbell v. Mosk (1961) 197 Cal.App.2d 640, 646–647, 17 Cal.Rptr. 584.)   Although the relator generally has the laboring oar in prosecuting the action, and is responsible for any costs or damages recovered against the plaintiff (Code Civ.Proc., § 810;  Cal.Code of Regs., tit. 11, § 6), the attorney general, not the relator, has control over the action throughout (Cal.Code of Regs., tit. 11, § 8;  International Assn. of Fire Fighters v. City of Oakland, supra, 174 Cal.App.3d at p. 695, fn. 11, 220 Cal.Rptr. at p. 261, fn. 11, quoting 53 Cal.Jur.3d, Quo Warranto, § 23, p. 453, fns. omitted;  People ex rel. Conway v. San Quentin Prison Officials (1963) 217 Cal.App.2d 182, 183, 31 Cal.Rptr. 649;  People v. City of Huntington Beach (1954) 128 Cal.App.2d 452, 455–456, 275 P.2d 601.)

Facts

The present action involves three sections of the charter of the City and County of San Francisco (City), sections 8.405, 8.586, and 8.363 (hereinafter simply designated 8.405, 8.586, and 8.363).

In August, 1975, the San Francisco Board of Supervisors (Board) passed a motion proposing an amendment to the then existing 8.405.   The electorate adopted the proposed amendment to 8.405 (Proposition “P”) at the November 4, 1975, general election.   It became effective pursuant to article XI, section 3 of the California Constitution upon its filing with the Secretary of State on November 24, 1975.   The amendment changed the way San Francisco calculated the salaries of its police officers, from a wage not to exceed the highest base pay of police officers in other California cities with populations of 100,000 or more, as determined in semiannual surveys, to the average wage of police officers in other cities with populations of 350,000 or more, as determined in annual surveys.

In August, 1976, the Board passed a motion proposing the addition of 8.586 to the charter.   The electorate adopted this proposed addition to the charter (Proposition “L”) at the November 2, 1976, general election and it became effective upon its filing with the Secretary of State on December 6, 1976.   Charter section 8.559 had provided that San Francisco police officers could retire at age 50 with 25 years of service at 55 percent of their highest year's salary, or at an additional four percent of that highest year's salary for each year served beyond 25 years, up to 75 percent, and receive 50 percent of the raises received by police officers on active duty.   8.586 sets forth a different manner for calculation of the retirement benefits for police officers hired on or after November 1, 1976, providing that such police officers can retire at age 50 with 25 years of service at 55 percent of the average of the three highest consecutive years' salary, or at an additional three percent of that average for each year served beyond 25 years, up to 70 percent, and receive a two percent cost of living increase only if the consumer price index increases by more than two percent.

In August, 1978, the Board passed a motion proposing an amendment to the then-existing 8.363.   The electorate adopted the proposed amendment to 8.363 (Proposition “F”) at the November 8, 1978, general election and it became effective upon its filing with the Secretary of State on December 5, 1978.   Before this amendment, 8.363 provided for San Francisco police officers to accumulate unused sick leave up to a total of six months and receive a cash payment for accumulated unused sick leave upon retirement.   The amendment eliminated 8.363's provision for such a cash payment, for sick leave accumulated after December 5, 1978.

Neither the Board nor a representative of the Board met and conferred with the San Francisco Police Officers Association (the Association) before proposing the 1975 amendment of 8.405, the 1976 adoption of 8.586, or the 1978 amendment of 8.363, nor did the Board or its representative request a meeting with the Association.   Further, the parties agree that the Association is a recognized employee organization for sworn personnel of the San Francisco Police Department.

Procedural Histories

The procedural history of two cases which preceded the present case through the courts is germane to consideration of the current appeal.

On January 20, 1976, a complaint was filed in San Francisco Superior Court under the title San Francisco Fire Fighters Local 798, International Association of Fire Fighters, AFL–CIO v. Board of Supervisors of the City and County of San Francisco, naming the City and its fire commission as additional defendants.   This lawsuit (hereinafter designated San Francisco Fire Fighters ) attacked the 1975 amendment to 8.405 (Proposition “P”) and two other San Francisco charter provisions on the ground that the Board had failed to comply with the procedural requirements of Government Code sections 3504.5 and 3505 before submitting these provisions to the electorate.   By judgment filed March 30, 1976, the superior court dismissed the case on the ground that the plaintiff's exclusive remedy was an action in quo warranto.   The plaintiff thereupon pursued parallel courses, on the one hand appealing the judgment of dismissal to this court, and on the other hand seeking leave from the attorney general to present its claim in an action in quo warranto.   The plaintiff got results from the attorney general first.   By letter dated July 2, 1976, the attorney general granted leave to sue in the name of the People of the State of California.   The plaintiff filed a new suit in San Francisco Superior Court, The People of the State of California, on the Relation of San Francisco Fire Fighters, Local 798, International Association of Fire Fighters, AFL–CIO v. Board of Supervisors of the City and County of San Francisco (People v. Board), again naming the City and its fire commission as additional defendants, and again asserting an attack on the 1975 amendment to 8.405 (Proposition “P”) and two other charter provisions, based on MMBA.

On May 14, 1976, a complaint in quo warranto was filed in San Francisco Superior Court under the title The People of the State of California, on the Relation of George Evankovich, Robert Killian, Laborers International Union, AFL–CIO, Local 261 v. City and County of San Francisco.   This lawsuit (hereinafter designated Evankovich ) named another individual and another union as additional plaintiffs, and attacked a charter amendment which had been submitted to the electorate at the November, 1976, general election under the designation of Proposition “B,” and had passed.   One of the grounds for the attack was the City's alleged failure to comply with the procedural requirements of Government Code sections 3504.5 and 3505 before submitting Proposition “B” to the electorate.   On September 10, 1976, the superior court filed an order and opinion sustaining the City's demurrer without leave to amend, on the ground “that MMBA does not apply to the submission of a proposed Charter Amendment to the electors.”   The Evankovich plaintiffs appealed.

In San Francisco Fire Fighters, the plaintiff's opening brief on appeal argued both the question of standing, on which the superior court had based its dismissal, and the merits of the underlying claim, based on alleged violations of MMBA.   Rather than go back to square one and repeat all of the maneuvering in superior court in People v. Board which led to the City's victory in Evankovich, the San Francisco Fire Fighters defendants, in their respondents' brief, waived their contention as to standing, on which their superior court victory had been based, so that the appeal could be resolved on the merits of the underlying MMBA claim.

On July 22, 1977, this court consolidated the appeals in San Francisco Fire Fighters and Evankovich.   On initial consideration of the cases, on August 25, 1977, and again on rehearing, on December 14, 1977, this court affirmed the judgment of dismissal which had been entered in each case, publishing both opinions under the San Francisco Fire Fighters title.   (San Francisco Fire Fighters v. Board of Supervisors, 72 Cal.App.3d 820, 140 Cal.Rptr. 502;  San Francisco Fire Fighters v. Board of Supervisors, 75 Cal.App.3d 807, 142 Cal.Rptr. 575.)   In accord with the San Francisco Fire Fighters defendants' waiver of their standing defense, neither opinion discusses the exclusivity of the quo warranto remedy.   Both deal with the merits of the parties' contentions concerning MMBA, and both affirm on the ground that the procedural requirements of MMBA which the plaintiffs invoked do not apply to city charter provisions.

The Supreme Court of California granted a hearing on the consolidated appeals on March 16, 1978.   On February 28, 1979, the Supreme Court transferred the consolidated appeals back to this court, with directions to reconsider them in light of Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 151 Cal.Rptr. 547, 588 P.2d 249.

On August 30, 1979, this court held, for the third time, that the procedural requirements of MMBA which the plaintiffs in San Francisco Fire Fighters and Evankovich sought to invoke do not apply to city charter provisions, and again affirmed the judgments of dismissal in those cases.  (San Francisco Fire Fighters v. Board of Supervisors, 96 Cal.App.3d 538, 544–550, 158 Cal.Rptr. 145, 148–151.)   This time around, the Supreme Court of California denied hearing, by a vote of 4 to 3.  (Id., at p. 554, 158 Cal.Rptr. 145.)

As for the present case, on January 14, 1985, the Association applied to the attorney general for leave to file an action in quo warranto attacking the above outlined amendments to 8.405 and 8.363 and the adoption of 8.586.   The attorney general granted formal leave to sue on February 3, 1986.   On February 7, 1986, a “VERIFIED COMPLAINT IN QUO WARRANTO TO SET ASIDE CHARTER AMENDMENTS” was filed in San Francisco Superior Court.   The Complaint named the City, the Board, and other public entities as defendants.

On September 16, 1986, and January 23, 1987, the court conducted hearings on the parties' cross-motions for summary judgment.   The court denied plaintiff's motion for summary judgment and granted defendants' motion for summary judgment.   Judgment was entered accordingly on April 24, 1987.

The parties agree that the amendments and addition to the San Francisco charter which plaintiff attacks took place without compliance with the “meet and confer” requirement of Government Code section 3505, as interpreted by Seal Beach, and that the trial court ruled in favor of defendants and against plaintiff in spite of this noncompliance.   The parties disagree as to whether there was compliance with the written notification requirement of Government Code section 3504.5.

In its order granting summary judgment, the trial court made three explicit holdings.   First, with respect to the 1975 amendment to 8.405 (Proposition “P”), the trial court held that San Francisco Fire Fighters barred plaintiff from relitigating the question of the applicability of MMBA's procedural requirements to that amendment.1  Second, with respect to the 1976 addition of 8.586 and the 1978 amendment of 8.363, the trial court held that Seal Beach should not be given retroactive effect, and that the rule of San Francisco Fire Fighters should apply.   Third, the trial court held that application of the rule of Seal Beach “to invalidate decisions of the Board of Supervisors and the voters of the City and County of San Francisco, where those decisions were made before the Supreme Court decided Seal Beach and in compliance with the rule of law set forth in San Francisco Firefighters ” would be inequitable.

Plaintiff filed a notice of appeal on May 28, 1987.   Like the complaint, the notice of appeal bears the signature of Assistant Attorney General N. Eugene Hill as well as the signature of the Association's attorney.   Mr. Hill's signature constitutes a sufficient demonstration that this appeal proceeds with the requisite consent of the attorney general.  (See Cal.Code of Regs., tit. 11, § 11;  People ex rel. City of Bellflower v. Bellflower County Water Dist. (1966) 247 Cal.App.2d 344, 347, 55 Cal.Rptr. 584;  cf. People v. City of Huntington Beach, supra, 128 Cal.App.2d at p. 455–457, 275 P.2d 601.)

Preclusive Effect

A claim is an assertion that certain facts are true and that, under applicable law, these facts give rise to a right to court action aiding the claimant.   In the language of Code of Civil Procedure section 430.10, a claim is an assertion that certain facts “constitute a cause of action.”  “The rule of claim preclusion ․ is that a party ordinarily may not assert a civil claim arising from a transaction with respect to which he has already prosecuted such a claim, whether or not the two claims wholly correspond to each other.   The rule of issue preclusion, sometimes referred to as collateral estoppel ․ is that a party ordinarily may not relitigate an issue that he fully and fairly litigated on a previous occasion.”  (Rest.2d Judgments, Introduction, p. 1.)   In the present case, whether plaintiff's claim stands or falls depends on the resolution of a single issue—whether the procedural requirements of MMBA apply to charter provisions.   Thus, in the present case, issue preclusion and claim preclusion correspond.

The parties to this appeal agree that although the relators in different quo warranto actions may differ, the plaintiff is always the same, in more than mere name.   They also agree that relitigation of the same issue or same claim is precluded when there is a ruling adverse to the plaintiff People in an earlier quo warranto action.   That ruling will bind the People in a later quo warranto action even when brought by different relators.   This conclusion is correct, fully in harmony with the fact that, in California, all actions in quo warranto are under the control of the same attorney, the Attorney General of California.

Taking a cue from the trial court's order granting summary judgment, plaintiff seeks to define the issue decided by San Francisco Fire Fighters narrowly, in accord with the particular claim asserted in both San Francisco Fire Fighters and the present case—that the adoption by the electorate of the 1975 amendment of 8.405 was a “void act and of no legal effect,” because the amendment was proposed to the electorate without compliance with the procedural requirements of MMBA.   Plaintiff then goes on to argue that the judgment in San Francisco Fire Fighters can have no preclusive effect, because plaintiff was neither a party to nor in privity with a party to San Francisco Fire Fighters.

Defendants accept plaintiff's narrow definition of the issue decided by San Francisco Fire Fighters, and argue that plaintiff was, in effect, a party to San Francisco Fire Fighters.   And, because the parties in San Francisco Fire Fighters “agreed that the leave to sue granted by the Attorney General in [People v. Board ] would also apply to the Firefighters case,” San Francisco Fire Fighters was thus turned into a quo warranto action.

Defendants are on the wrong track.   Waiver of a defense did not magically transform San Francisco Fire Fighters into a quo warranto action and make the People a party.   As plaintiff notes, “neither the Attorney General nor the ASSOCIATION had control over any aspect of the litigation of San Francisco Fire Fighters.”

Nothing distinguishes the charter provisions under attack in San Francisco Fire Fighters from the charter provision under attack in Evankovich, such that the procedural requirements of MMBA might apply in one case but not in the other.   Both cases turned on resolution of a “single issue.”  (San Francisco Fire Fighters v. Board of Supervisors, supra, 96 Cal.App.3d at p. 542, 158 Cal.Rptr. at p. 146.)   This court resolved that issue adversely to the plaintiff union in San Francisco Fire Fighters and adversely to the plaintiff People in Evankovich.   This court's judgment was final for all purposes over five years before the present case was filed.

No matter whether one calls the preclusive effect of Evankovich by the traditional name of res judicata or the traditional name of collateral estoppel, the ingredients for preclusion are all present.  “In determining the validity of a plea of res judicata three questions are pertinent:  Was the issue decided in the prior adjudication identical with the one presented in the action in question?   Was there a final judgment on the merits?   Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?”  (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 813, 122 P.2d 892, quoted in In re Marriage of Modnick (1983) 33 Cal.3d 897, 904, fn. 6, 191 Cal.Rptr. 629, 632, fn. 6, 663 P.2d 187.)  “Traditionally, collateral estoppel has been found to bar relitigation of an issue decided at a previous proceeding ‘if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated;  (2) the previous [proceeding] resulted in a final judgment on the merits;  and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding].’ ”  (People v. Sims (1982) 32 Cal.3d 468, 484, 186 Cal.Rptr. 77, 87, 651 P.2d 321, quoting People v. Taylor (1974) 12 Cal.3d 686, 691, 117 Cal.Rptr. 70, 73, 527 P.2d 622, bracketed words added by the Sims court.)

As defendants suggest, the fact that Evankovich decided the issue in question wrongly, in light of Seal Beach, does not strip the judgment in Evankovich of its preclusive effect.  “[F]inal judgments, even erroneous ones [citations], are a bar to further proceedings based on the same cause of action․”  (Slater v. Blackwood (1975) 15 Cal.3d 791, 797, 126 Cal.Rptr. 225, 228, 543 P.2d 593.)   The preclusive consequences of a final judgment on the merits are not “altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.”   (Federated Department Stores, Inc. v. Moitie (1981) 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103, 109.)

In the present case, the trial court defined the issue more narrowly than is necessary.   The trial court treated the validity of Propositions “P,” “L,” and “F” as three distinct issues, out of which San Francisco Fire Fighters resolved only one.   This narrow definition, which the parties have accepted, had the following results.   In applying issue preclusion, the trial court relied on a case in which the People were not a party.   The trial court limited the preclusive effect of that case to one out of three charter provisions, although the validity of all three provisions under attack really depends on the resolution of one more broadly stated issue.   Furthermore, this court authoritatively (albeit erroneously) accomplished that resolution nine years ago, in a case (Evankovich ) in which the People were a party.

Since Evankovich resolved this determinative issue against the People, the overly narrow definition which the trial court used has not affected the correctness of the judgment entered by the trial court.   The judgment is correct, as to all three of the charter provisions which plaintiff attacks, because Evankovich has a preclusive effect, and bars the plaintiff People from relitigating the issue which Evankovich determined adversely to plaintiff.

Since the trial court's judgment is correct, as to all three charter provisions, under the doctrine of issue preclusion, we need not concern ourselves with the parties' contentions as to whether or not Seal Beach is retroactive.   Further, this is a case in which “the complaint fails to state facts sufficient to constitute a cause of action as a matter of law,” so we “need not reach the question whether plaintiff's opposition to the summary judgment motion raises a triable issue of fact.”  (Rowe v. Wells Fargo Realty Services, Inc. (1985) 166 Cal.App.3d 310, 316, 212 Cal.Rptr. 374, 377.)   In legal effect, defendants' motion for summary judgment is a motion for judgment on the pleadings.  (Taylor v. California State Auto. Assn. (1987) 194 Cal.App.3d 1214, 1223, 240 Cal.Rptr. 107, 113.)

3

We affirm the judgment of the trial court.

FOOTNOTES

1.   That the superior court's order refers to San Francisco Fire Fighters and not to Evankovich is apparent from the order's specific reference to Proposition “P,” which was not involved in Evankovich.   However, the order is somewhat confusing in its assertion that both the superior court and this court held, in San Francisco Fire Fighters, that “MMBA did not apply to the determinations of city councils and boards of supervisors to submit proposed charter amendments to the electorate.”   As noted above (ante, pp. 356–357), the superior court made this holding only in Evankovich.   The superior court's judgment of dismissal in San Francisco Fire Fighters was based on the exclusivity of the quo warranto remedy, and the court did not reach the question of the applicability of MMBA.

HOLMDAHL, Associate Justice.

RACANELLI, P.J., and COLLINS, J.**, concur.

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