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Court of Appeal, Second District, Division 5, California.

Richard GAYDOWSKI, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

Civ. B002085.

Decided: August 16, 1984

Cohon & Gardner and Steven H. Gardner, Los Angeles, for plaintiff and appellant. DeWitt W. Clinton, County Counsel and Halvor S. Melom, Deputy County Counsel, Los Angeles, for defendants and respondents.


On petition for rehearing, 158 Cal.App.3d 406, 204 Cal.Rptr. 643, appellant contends that Lubey v. City and County of San Francisco, 98 Cal.App.3d 340 at page 349, 159 Cal.Rptr. 440, supports his claim for reinstatement and that Doyle v. City of Chino (1981) 117 Cal.App.3d 673, 172 Cal.Rptr. 844, supports his claim for back pay.   Neither decision is apposite.

In Lubey, two probationary police officers were summarily dismissed for misconduct.   Unlike the instant case, the city did not provide the employees with a post termination hearing to clear their names.  (98 Cal.App.3d at pp. 346–347, 159 Cal.Rptr. 440.)   It was in that context that the court adopted a remedy of reinstatement, borrowing the remedy from a line of cases which the court conceded involved a different factual context, namely, where a decision to fire or not to rehire the employee penalized the employee for exercising his First Amendment rights.  (Id., at pp. 348–349, 159 Cal.Rptr. 440;  Ofsevit v. Trustees of Cal. State University & Colleges (1978) 21 Cal.3d 763, 775–778, 148 Cal.Rptr. 1, 582 P.2d 88.)   Here, on the other hand, respondents recognized that if the reasons for appellant's discharge became public his liberty interest would be affected, and gave appellant the liberty hearing to which he was entitled and which did in fact clear his name.

In Doyle, the police chief who served at the pleasure of the city council was terminated without prior notice or opportunity to be heard under circumstances which the court held would stigmatize his reputation.  (Doyle v. City of Chino, supra, 117 Cal.App.3d at p. 676, & fn. 1, 172 Cal.Rptr. 844.)   He was granted a post termination hearing at which the city council upheld the charges and the dismissal.  (Id., at p. 677, 172 Cal.Rptr. 844.)   The Court of Appeal upheld the trial court's denial of his writ of mandate seeking reinstatement.   Appellant contends that Doyle stands for the proposition that an employee with only a liberty interest whose Skelly rights are violated is entitled to back pay pursuant to Skelly.   Doyle does not so hold.   It appears from the opinion that it was the city council which allowed the employee back pay even though upholding the charges and the dismissal.   (Id.)  The Court of Appeal mentioned the back pay only in the context of rejecting the employee's claim that he was entitled to reinstatement.  (Id., at pp. 677–678, 172 Cal.Rptr. 844.)

The petition for rehearing is denied.

ASHBY, Associate Justice.

FEINERMAN, P.J., and HASTINGS, J., concur.

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