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Court of Appeal, Second District, Division 4, California.

Albert R. CONTI, Retitioner and Respondent, v. BOARD OF CIVIL SERVICE COMMISSIONERS OF the CITY OF LOS ANGELES et al., Defendants and Appellants.

Civ. 32612.

Decided: April 15, 1969

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Jack L. Wells and John B. Rice, Deputy City Attys., for defendants and appellants. Arthur Lewis, Los Angeles, and Burton Marks, Beverly Hills, for petitioner and respondent.

Defendants, the City of Los Angeles and the Board of Civil Service Commissioners of the City of Los Angeles, appeal from the judgment of the trial court which directs that a peremptory writ of mandate be issued. The writ compels the board to vacate and set aside certain actions which it took in connection with two appeals brought before the board by petitioner, and compels the board to conduct a new hearing on those appeals. Also, the writ would limit the evidence that the board might consider during such rehearing.

On January 8, 1965, petitioner was arrested at his place of employment with the Department of Water and Power and charged with violation of section 337a of the Penal Code, bookmaking. Petitioner was thereon suspended; notice of suspension was filed with the board January 12, 1965; petitioner appealed from the suspension on January 15, 1965, and a hearing was deferred by the board until the results of the criminal trial were known. Petitioner was convicted; the general manager dismissed him on July 6, 1965; that action was appealed on July 8, 1965; and the board conducted a hearing on October 7, 1965.

The following two findings were passed:

(1) ‘Mr. Chairman, I do not believe that there was sufficient evidence for this Board to sustain a Discharge. Therefore, Mr. Chairman, I MOVE that the Board of Civil Service Commissioners do NOT sustain the Discharge.’

(2) ‘I recommend to the Board that it finds this Suspension be sustained and that said Suspension shall be effective until December 1, 1965; further that said Suspension shall be without pay.’

A discussion was then had and Mr. Maltz said:

‘I want to make it crystal clear that the Discharge was not sustained, and we are asking the Department's assistance, and we are begging its cooperation to create a possibility where this man, after eleven years of good, solid employment can return on December 1, 1965, and I think that is the issue at stake.’ (Emphasis added.)

Petitioner, believing that he had been reinstated December 1, 1965, reported to work on that date and was informed no provision was made for his return to work, and that he should wait for further order from the Civil Service Commission. On December 17, 1965, proceedings were held and two motions were adopted:

‘I move, in the case of Mr. Conti, one, we request the Appointing Authority to consent to a suspension in lieu of a discharge as follows: the General Manager of the Department of Water and Power be requested to consent to the substitution of a suspension in lieu of a discharge; two, consent of the Appointing Authority first having been obtained in accordance——’

After a discussion Commissioner Garcia made a motion that suspension be sustained and his motion was expanded to include that the suspension be sustained from January 11 to July 8, 1965.

Mr. Conti received notice of the December 17, 1965 meeting on December 14, but was not allowed to speak or present his case.

To effectuate its action, the secretary of the board sent a communication on December 20, requesting that the appointing authority give its consent to the imposition of suspension in lieu of discharge, which was denied by letter dated December 21, 1965.

The matter was placed on agenda December 29, 1965. Mr. Conti was not given notice of this hearing, and Mr. Conti was not given the opportunity to present evidence.

At the December 29th meeting the board adopted the following:

‘I MOVE that in the matter of the Appeal from Discharge of Albert R. Conti, the action of the Department of Water and Power be upheld, and that the Board find that the Charges are sufficient and are sustained, and that the Discharge of Mr. Conti be sustained.’

On January 3, 1966, the secretary notified Mr. Conti that the Board of Civil Service Commissioners considered his appeal from discharge on December 17, 1965, and that the discharge had been sustained. The date was corrected from December 17, 1965 to December 29, 1965, but no copy of the correction was sent to Mr. Conti. Mr. Conti sought counsel January 7, 1966.

The board denied petitioner's ‘Demand for Reinstatement’ on February 18, 1966.

The issues are:

(1) Whether the board's action on October 7, 1965, constitutes a final disposition of petitioner's discharge; (2) whether the board is estopped from further action, due to petitioner's reliance on the October 7, 1965 ruling by the board; (3) whether petitioner was denied due process of law; and (4) whether petitioner is guilty of laches.

For reasons set forth below, we hold: (1) that the action on October 7, 1965, was not a final action by the board such as to cause it to lose jurisdiction; (2) but that the board was estopped from further action, due to petitioner's reliance on the October 7th proceedings; (3) and that the board denied petitioner due process of law in denying petitioner the right to speak on December 17th and in not giving him notice of the hearing on December 29th; (4) but that petitioner is estopped by laches from now urging his contentions. Consequently, we reverse the judgment.


The Board of Civil Service Commissioners first asserts that its act on October 7, 1965, in which it did not sustain the discharge and did sustain the suspension, was not a final disposition.

The board's power to act on appeals of city employees who have been suspended and/or discharged is derived from, and limited by, section 112 of the Charter of the City of Los Angeles (Stats.1957, p. 4530) which provides in part:

‘* * * 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 board with the consent of the appointing authority may also order a reduction in the length of the suspension, or substitution of a suspension for a removal or discharge, if the board finds, in writing, that such action is warranted. 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;’

Thus, the city charter states that if the board finds in writing that the grounds were insufficient for removal or discharge or suspension, and if it also finds in writing that the person is fit and suitable to fill the position, the person can be restored to duty. In the case at bench the board did find that the discharge should not be sustained, but the board did not also find in writing that Mr. Conti was a fit and suitable person to fill the position, a necessary requirement for restoration to duty.

Petitioner asserts that the finding that he was a fit and suitable person for reinstatement is necessarily implied by the findings that his discharge was not sustained and that his suspension was sustained until December 1, 1965. Petitioner argues persuasively that what else could the board have meant by sustaining his suspension until December 1, 1965, if not that he was to return to work on that date. However, where a statute requires written findings the board can do no less; explicit written findings are required. (Moss v. Board of Zoning Adjustment (1968) 262 Cal.App.2d 1, 68 Cal.Rptr. 320.)a Where the board fails to comply with statutory requirements for findings, it has not exhausted its powers and it still has jurisdiction. (Moss v. Board of Zoning Adjustment, supra; see also Aylward v. State Board of Chiropractic Examiners (1948) 31 Cal.2d 833, 839, 192 P.2d 929.)1 As such the Board of Civil Service Commissioners retained jurisdiction over Mr. Conti's case.


However, although we agree that the Board of Civil Service Commissioners did not lose jurisdiction to act, the board is estopped from further action due to petitioner's reliance on the October 7, 1965 ruling. Where justice and right require it, the doctrine of equitable estoppel will be applied against a government agency. (Salton Community Services Dist. v. Southard (1967) 256 Cal.App.2d 526, 64 Cal.Rptr. 246.) Generally speaking, four elements must be presented in order to apply the doctrine of equitable estoppel: (1) The party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 61 Cal.Rptr. 661, 431 P.2d 245.

In the case at bench the party to be estopped was apprised of the facts. The board acted in such a way that Mr. Conti could believe that the board's conduct on October 7, 1965, was intended to be relied on; Mr. Conti was ignorant of the true state of facts, that is, that the board had not finally disapproved of his discharge, and finally Mr. Conti relied on the board's conduct to his injury by not starting legal proceedings earlier or even perhaps by not seeking other employment earlier.2


Petitioner asserts that he was denied due process (1) because he was not given an opportunity to speak during the board meeting on December 17, 1965; (2) because he was not given an opportunity to rebut the letter of December 21, 1965, from the appointing authority stating that Mr. Conti was the organizer and motivating force behind the bookmaking operation; and (3) because he was not notified of, or present at, the board proceedings of December 29, 1965. The board asserts that the only question which had not been decided prior to December 29, 1965, was whether the penalty of discharge was appropriate and since there was no evidence taken on December 29th, it would have served no useful purpose to give petitioner an additional opportunity to protect his rights. The board argues that due process does not require a multiplicity of opportunities for a fair trial, but only an opportunity for a fair trial. (Dami v. Dept. of Alcoholic Bev. Control (1959) 176 Cal.App.2d 144, 151, 1 Cal.Rptr. 213.)

We agree with petitioner that he was denied procedural due process. Due process of law requires a notice and a fair hearing. (See Fascination, Inc. v. Hoover (1959) 39 Cal.2d 260, 246 P.2d 656.) The hearings that took place in December were a critical stage of the proceedings, and defendant had a right to be heard on this.


The board's last argument is that petitioner was guilty of laches. Where a party seeking to be reinstated has delayed unreasonably before effectively asserting his rights, the law presumes that the public has been prejudiced thereby. (Wolstenholme v. City of Oakland (1960) 54 Cal.2d 48, 50, 4 Cal.Rptr. 153, 351 P.2d 321.)

In the case at bench the board took the final action on February 18, 1966, when it denied his ‘Demand for Reinstatement.’ The instant lawsuit was begun on August 23, 1966. Due to the fact that no draft of an alternative writ accompanied the filing of the complaint, no action was taken in the case until, after Mr. Conti's counsel discovered the omission, the matter was brought on for hearing on January 12, 1967. The board demurred to the complaint on several grounds, including the ground that the complaint failed to explain the delays. The demurrer was sustained with 30 days to amend; but the new pleading was not filed until after 47 days. A motion by the board to dismiss was denied.

The excuses tendered were: (1) that the attorney, who was also retained in the criminal prosecution, did not receive the transcripts in that case promptly and had not started to prepare the complaint in the case at bench until he had completed the brief in the criminal matter; (2) that the failure to transmit a draft of an alternative writ with the complaint was due to the negligence of the attorney's secretary and of his courthouse filing service.3

We conclude that the defense of laches was valid.4 The issues in the case at bench relate exclusively to procedural defects in the actions of the board. The evidence in the criminal case was not made a part of those proceedings and we can see no reason why the complaint in the instant case could not have been drafted and filed while counsel was waiting for his criminal transcript. While, in some cases, the negligence of the staff of an attorney may excuse non-action on his part, the alleged negligence here relates to matters which the attorney should have supervised in the first instance; we do not regard them as excusing the delay from August until January. The time periods herein involved exceed those held to be too long in Wolstenholme v. City of Oakland, supra (1960) 54 Cal.2d 48, 4 Cal.Rptr. 153, 351 P.2d 321, and in McLeod v. City of Los Angeles (1967) 256 Cal.App.2d 693, 64 Cal.Rptr. 394. On the authority of those cases, we reverse the judgment.

The judgment is reversed.


FOOTNOTE.  262 A.C.A. 1.

1.  The lower court held that the board retained jurisdiction after December 1, 1965, to rule on the fitness of Mr. Conti to fill the position from which he was suspended, but the court also held that the board had no jurisdiction to undo its earlier October 7th ruling as to not sustaining the discharge, and could only rule on fitness. For reasons related to estoppel theory, we agree that the court could not undo its earlier October 7th ruling regarding Mr. Conti's discharge.

2.  Mr. Conti also says there was a confidential relationship between himself and the board. We need not decide the question of whether or not a confidential relationship existed, since there was an estoppel.

3.  Since the trial court found the 17 day delay in filing the amended complaint to be excusable, we do not consider that period in reaching our conclusion.

4.  Defendants argue that the excuses set out in the pleading were not sustained by proof at the trial. Since we conclude that the excuses were insufficient as a matter of law, we need not consider that issue.

KINGSLEY, Associate Justice.

JEFFERSON, Acting P. J., and DUNN, J., concur.