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District Court of Appeal, Second District, Division 2, California.


Civ. 15817.

Decided: July 09, 1947

George E. Cryer and R. Alston Jones, both of Los Angeles, for appellant. Ray L. Chesebro, City Atty., and George William Adams and T. Paul Moody, Deputies City Atty., all of Los Angeles, for respondents.

From a judgment in favor of defendants after trial before the court without a jury in an action for declaratory relief, to wit, that plaintiff should be restored to his position as a city employee, he appeals.

Conceded Facts

On August 17, 1943, plaintiff was served with a notice of his removal as an employee of the Department of Water and Power of defendant municipality. The notice contained a statement of the grounds of removal. On August 18, 1943, plaintiff filed with the Board of Civil Service Commissioners his application for a hearing and investigation of the charges against him. On December 14, 1943, defendant Board of Civil Service Commissioners without affording plaintiff a hearing made its order sustaining the charges against him.

Thereafter petitioner filed an application for a writ of mandate to require defendant commission to afford him a hearing before discharging him. The Supreme Court in Steen v. Board of Civil Service Commissioners, 26 Cal.2d 716, 160 P.2d 816 (three justices dissenting), held that plaintiff was entitled to such a writ and reversed a judgment of the superior court to the contrary. This decision was filed June 29, 1945, and entitled plaintiff to a writ of mandate from the superior court requiring defendant commission to grant plaintiff a hearing, but he took no further steps of any nature in such proceeding or otherwise until February 5, 1946, when the present action for declaratory relief was filed. When the instant case came on for trial, and the pendency of the mandate proceeding just referred to was urged as a defense, counsel for petitioner therein, instead of pursuing the complete, efficient and immediate remedy to which the Supreme Court had determined him to be entitled, dismissed such action.

After trial of this case, the lower court held in substance that plaintiff had a full and complete remedy available to him by way of a hearing before defendant commission, and for this reason declined to grant the declaratory relief which plaintiff sought.


Has plaintiff shown error in the ruling of the trial court?

This question must be answered in the negative. Whether declaratory relief is necessary or proper in an action therefor is a matter within the discretion of the trial court, and its decision will not be disturbed on appeal in the absence of a clear showing of abuse thereof. Section 1061, Code Civil Procedure; California Physicians' Service v. Garrison, 28 Cal.2d 790, 801, 172 P.2d 4, 167 A.L.R. 306; Moss v. Moss, 20 Cal.2d 640, 642, 128 P.2d 526, 141 A.L.R. 1422; Orloff v. Metropolitan Trust Company, 17 Cal.2d 484, 489, 110 P.2d 396; City of Alturas v. Gloster, 16 Cal.2d 46, 49, 104 P.2d 810; Cutting v. Bryan, 206 Cal. 254, 257, 274 P. 326.

In the instant case plaintiff has failed to show an abuse of discretion upon the part of the trial court. In fact the converse appears from the undisputed facts. Section 1061 of the Code of Civil Procedure provides that the trial court may refuse to exercise its power to grant declaratory relief where the evidence shows that it ‘is not necessary or proper at the time under all the circumstances.’ In this case plaintiff under the ruling in Steen v. Board of Civil Service Commissioners, supra, was entitled to a hearing at any time after June 29, 1945 (the date of the filing of the Supreme Court's opinion), before defendant board of commissioners, and as we have stated was entitled in such proceeding to a writ of mandate compelling such a hearing. Therefore it is obvious that he should have demanded such hearing since plaintiff was the ‘actor’ or ‘plaintiff’ before the respondent commission and before the superior court in the original mandamus proceeding. He was the moving party since his discharge would have become final and effective had he not filed with the commission, within five days after service upon him of the notice of discharge and the grounds thereof, a demand for a hearing and investigation.* (Steen v. Board of Civil Service Commissioners, supra, 26 Cal.2d at page 720, 160 P.2d at page 816.)

If respondent commission declined to act and afford plaintiff a hearing, he then had an adequate remedy by applying to the superior court for a writ of mandate to compel defendant commission to investigate the charges against him, afford him a hearing, and to report to the court its findings. (Leftridge v. City of Sacramento, 59 Cal.App.2d 516, 525, 139 P.2d 112.) There is nothing in the city charter which fixes the time limit within which plaintiff must be afforded a hearing. Therefore the general rule is applicable that he must be given a hearing within a reasonable time after he has demanded it.

Thus under ‘all’ the circumstances of the case it was neither necessary nor proper that plaintiff be granted the declaratory relief which he sought. The rule is established that where it appears that plaintiff has an adequate remedy other than through seeking declaratory relief it is not an abuse of discretion for the trial court to decline to grant plaintiff's application for a declaratory judgment. (Communist Party v. Peek, 20 Cal.2d 536, 540, 127 P.2d 889.)

LaPrade v. Department of Water and Power, 27 Cal.2d 47, 162 P.2d 13, 15, does not hold, as contended by plaintiff, that failure to bring removal proceedings to a hearing for a period of three years makes it the duty of the commission to find ‘that the charge was not justified.’ The case merely holds that ‘if no evidence is adduced sustaining the discharge the board must find that the discharge was not justified.’

It is self-evident that if no evidence to sustain the charges against petitioner is produced before defendant commission when it affords him a hearing said commission should find that his discharge was not justified.

For the foregoing reasons the judgment is affirmed.


FOOTNOTE.  Section 112.(a) of the charter of defendant municipality reads as follows: ‘Any board or officer having the power of appointment of officers, members and employees in any department of the government of the city, shall have the power to remove, discharge or suspend any officer, member or employee of such department; but no person in the classified civil service of the city, other than an unskilled laborer employed by the day, shall be removed, disharged or suspended except for cause, which shall be stated in writing by the board or officer having the power to make such removal, discharge or suspension, and filed with the Board of Civil Service Commissioners, with certification that a copy of such statement has been served upon the person so removed, discharged or suspended, personally, or by leaving a copy thereof at his last known place of residence if he cannot be found. Upon such filing such removal, discharge or suspension shall take effect. Within fifteen days after such statement shall have been filed, the said board, upon its own motion, may or upon written application of the person so removed, discharged or suspended, filed with said board within five days after service upon him of such statement, shall proceed to investigate the grounds for such removal, discharge or suspension. If after such investigation said board finds, in writing, that the grounds stated for such removal, discharge or suspension were insufficient or were not sustained, and also finds in writing that the person removed, discharged or suspended is a fit and suitable person to fill the position from which he was removed, discharged or suspended, said board shall order said person so removed, discharged or suspended, to be reinstated or restored to duty. The order of said board with respect to such removal, discharge or suspension, shall be forthwith certified to the appointing board or officer, and shall be final and conclusive; provided, that the order of any appointing board or officer suspending any person because of lack of funds in such department shall be final, and shall not be subject to review by said Board of Civil Service Commissioners. If the Board of Civil Service Commissioners shall order that any person removed, discharged or suspended under the provisions of this section be reinstated or restored as above provided, the person so removed, discharged or suspended shall be entitled to receive compensation from the city the same as if he had not been removed, discharged or suspended by the appointing board or officer.’ Statutes, 1925, chapter 5, page 1067.

McCOMB, Justice.

MOORE, P. J., and WILSON, J. concur.

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