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Court of Appeal, Third District, California.

YOLO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Appellant, v. MUNICIPAL COURT OF the COUNTY OF YOLO, Defendant, Loretta SHUGART, Real Party in Interest and Respondent.

Civ. 19025.

Decided: June 30, 1980

Charles R. Mack, County Counsel, Robert A. Rundstrom, Chief County Counsel, C. Lee Humes, Senior Deputy County Counsel, Melba Yee, Bruce M. Rosenthal, and Elizabeth A. Stolz, Deputy County Counsel, Woodland, for plaintiff and appellant. No appearance for defendant. Noreen B. Mazelis, Davis, for real party in interest and respondent.

The Yolo County Department of Social Services (Department) petitioned the Superior Court of Yolo County for a peremptory writ of mandate and/or prohibition directing the municipal court to sustain its demurrer to a complaint for extra compensation for out-of-class work by real party in interest Loretta Shugart. The superior court denied the petition and the department appeals.1

The department contends (1) that the municipal court should have sustained its demurrer because an employee compensation grievance can only be redressed in an administrative proceeding with review by way of administrative mandate (Code Civ.Proc., s 1094.5), (2) that the municipal court does not have jurisdiction to hear proceedings in administrative mandate, (3) that a public employee cannot sue in assumpsit for work out-of-class, (4) that the department is not a public entity subject to suit, and (5) that the superior court erred in determining that it had an adequate remedy without resort to an extraordinary writ.

We find no abuse of discretion in the superior court's determination that the department's legal remedy is adequate and affirm the order denying the petition for a writ of mandate and/or prohibition.


This dispute arises out of the alleged out-of-class work of departmental employee Shugart during the period August 1, 1975 through August 30, 1977. Shugart filed a grievance with the Labor Relations Panel of Yolo County in which she alleged that, although she had been classified and paid as a “Vocational Assistant,” she had actually performed the duties of an “Eligibility Worker.” The panel heard the grievance and determined that Shugart had in fact performed the duties of an eligibility worker beginning August 1, 1975. The panel denied Shugart's claim for extra compensation prior to August 30, 1977, however, because it concluded that prior to that date there was no basis upon which an employee could claim such compensation. August 30, 1977 was the effective date of a Memorandum of Understanding between Yolo County and its employees which provided, among other things, for the payment of extra compensation for out-of-class work and the creation of the Labor Relations Panel to resolve grievances.

Shugart filed a complaint in the municipal court on a common count for labor performed. Pursuant to stipulation a first amended complaint was filed. In her first amended complaint Shugart sought the difference between her actual earnings and the earnings of an eligibility worker for the period August 1, 1975 through August 30, 1977. The department demurred to the first amended complaint on the same grounds that it raises on this appeal. The municipal court overruled the demurrer, stating: “Plaintiff states a cause of action by a liberal construction of the pleading in Paragraph V for wages earned but never paid, if plaintiff received a promotion by assignment to ‘general assistance’ and did not receive increased salary.”

The department filed a petition for a writ of mandate and/or prohibition in the superior court. The superior court denied the petition for the following reasons: (1) the municipal court has jurisdiction to hear the matter; (2) Shugart is not required to proceed by way of administrative mandate; (3) the department failed to demonstrate that it has no adequate remedy at law; (4) a public entity may be sued in assumpsit; and (5) the department is a public entity which may be sued. The department appeals from the denial of its petition for a writ of mandate and/or prohibition.


The department contends that Shugart was required to pursue an administrative remedy through a hearing by the Labor Relations Panel, and that review of the panel's decision could only be in a proceeding for writ of administrative mandate over which municipal courts lack jurisdiction. Code of Civil Procedure section 1094.5, subdivision (a), provides that administrative mandate is issued for the “purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer.” The parties vigorously dispute the question whether a hearing pursuant to contract between a public employer and its employees is a proceeding in which by law a hearing is required to be given.

The complaint and exhibits thereto show that prior to the Memorandum of Understanding between the county and its employees, the Labor Relations Panel did not exist. That panel was provided for by the Memorandum of Understanding in order to resolve employee grievances arising under the memorandum. The panel heard Shugart's grievance and ordered that she be compensated as an eligibility worker after August 30, 1977, but refused to order compensation prior to that date because the Memorandum of Understanding was not in effect prior to that date. Whether the panel had the authority to consider and determine employee grievances which arose prior to the effective date of the memorandum, or those which arose outside of the provisions of the memorandum, is not disclosed by the complaint or the exhibits thereto. It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued. (See 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, s 797, p. 2410-2412.) The complaint and exhibits do not establish that plaintiff had an administrative remedy for recovery of compensation for out-of-class work for the period prior to the effective date of the Memorandum of Understanding, and liberal construction of the complaint in favor of the plaintiff tends to indicate otherwise. The municipal court did not err in overruling the demurrer on the asserted ground that administrative mandate was the appropriate remedy.

The department contends, however, that an employee may not sue a public employer in assumpsit for extra compensation for work out-of-class. There is support for this contention. Article XI, section 10, subdivision (a) of the California Constitution prohibits a county from paying an employee extra compensation for service which has already been rendered. Moreover, it is fundamental that a public employee may not acquire such a right. (San Francisco City etc. Employees Internat. Union v. City and County of San Francisco (1975) 49 Cal.App.3d 272, 277, 122 Cal.Rptr. 293.) As this court indicated in Snow v. Board of Administration (1978) 87 Cal.App.3d 484, at page 489, 151 Cal.Rptr. 127, an employee and her supervisors cannot be allowed to circumvent the legally required hiring scheme by the mere assumption by the employee of the duties of a position to which all are aware the employee has not been appointed.

The problem with applying this body of law to the instant case lies in the stage of the proceedings in the municipal court. A demurrer attacks only defects appearing on the face of the complaint. Nothing on the face of the complaint or in the exhibits to the complaint establishes the Yolo County system of hiring and promoting its employees. For all that appears from the complaint, a Yolo County employee may be promoted to a higher office merely by being assigned to the duties of that office by her superiors. In that case, Shugart's suit would not be for extra compensation for work in a class to which she had not legally been appointed, but would be for full compensation for work in a class to which she was legally appointed. While such actions normally proceed by petition for writ of mandate compelling the payment of salary (Martin v. Henderson (1953) 40 Cal.2d 583, 255 P.2d 416; Broyles v. State Personnel Board (1941) 42 Cal.App.2d 303, 108 P.2d 714), no reason appears that would preclude a complaint for services rendered. Moreover, in overruling the demurrer the municipal court stated that by liberally construing the pleadings it discerned such a cause of action.

It might be argued that in considering whether to issue a writ of mandate and/or prohibition the superior court should have taken judicial notice of the Yolo County Charter and its rules and regulations for the employment and promotion of employees in order to determine whether Shugart could properly pursue her claim. We believe, however, that such a determination is more appropriately left for summary judgment in the municipal court. Mandate and prohibition are prerogative writs and too lax a view of the “extraordinary” nature of such relief might well result in more harm to the judicial process than the denial of immediate relief from less significant errors. (See Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 170, 84 Cal.Rptr. 718, 465 P.2d 854.) The municipal court overruled the demurrer on the limited basis that the complaint states a cause of action for full compensation for work in an office to which Shugart had been legally assigned, the department will have ample opportunity to place the Yolo County promotion and hiring rules and regulations before the municipal court, along with other evidence relating to the proper classification to which Shugart was assigned, on motion for summary judgment. The municipal court may then determine whether Shugart may pursue her claim. The department has shown nothing which would justify the interference with the municipal court's function which the petition for a writ of mandate and/or prohibition seeks.

We finally consider the department's contention that it is not a public entity which is subject to suit. Government Code section 945 provides: “A public entity may sue and be sued.” Section 940.4 of that Code provides: “ ‘Local public entity’ includes a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State, but does not include the State.” The department argues that it is not a public entity, apparently contending that the complaint should have been filed against Yolo County.

The department has cited no relevant authority which would require the restrictive meaning of “public entity” which it seeks to apply, but even were we to agree with the department's contention we can find no abuse of the trial court's discretion in refusing to issue a writ of mandate and/or prohibition. In California Securities Co. v. State (1931) 111 Cal.App. 258, 295 P. 583, the plaintiffs filed an action against the Secretary of State, who could not legally be sued. The plaintiffs later secured an order from the trial court that the action was in effect an action against the State, and the State was substituted as defendant. The court of appeal affirmed, stating that the furtherance of justice demanded that the substitution of parties be upheld. (111 Cal.App. at p. 262, 295 P. 583.) In Siegal v. Superior Court (1962) 203 Cal.App.2d 22, 21 Cal.Rptr. 348, a defendant petitioned for a writ of mandate compelling dismissal when there was a defect of parties. The court of appeal denied the petition, stating that the plaintiff should be given a fair opportunity to cure the defect in the trial court. (203 Cal.App.2d at p. 27, 21 Cal.Rptr. 348.)

In stating his reasons for denying the petition for a writ of mandate and/or prohibition, the trial judge indicated that although he believed the department was a public entity subject to suit, the County of Yolo could well be added as a party defendant to eliminate any difficulty therein. Under such circumstances the court could well conclude that the issuance of an extraordinary writ was unnecessary and unjustified. We find no abuse of discretion.

The order of the Superior court of Yolo County denying the petition for a peremptory writ of mandate and/or prohibition is affirmed.



1.  Real party in interest Shugart states that an order denying a petition for writ of mandate and/or prohibition is not an appealable order. We disagree. The appeal is proper. (See Daggs v. Personnel Commission (1969) 1 Cal.App.3d 925, 930, 82 Cal.Rptr. 157.)

LALLY,* Associate Justice. FN* Assigned by the Chief Justice.

PARAS, Acting P. J., and EVANS, J., concur.