In a case in which a local board of education suspends a teacher upon charges which the board fails to establish as proper, pursuant to statutory requirements, the teacher is entitled to reinstatement, to full salary from the date of suspension, including retirement benefits, and to interest from the dates upon which such salary payments were due. The board fails in its attempt to defeat such recovery upon the ground of an alleged automatic termination of employment rights because of a lapse of the teacher's credentials during a part of the period of the suspension. It fails, too, in its effort to mitigate damages since it waived this affirmative defense by neither pleading nor proving such mitigation.
This litigation now presents its third appeal. Over ten years ago, on December 8, 1953, when the Board of Education of the San Francisco Unified School District (hereinafter called board) suspended plaintiff for failure to answer questions propounded by a congressional subcommittee (Ed. Code, § 12955), this case started upon its long course. At that time, in accordance with the statute, plaintiff demanded a hearing; the board thereupon filed an action incorporating the requisite charges. (Ed. Code, § 13412; at that date, § 13529.) The trial court upheld the charges and found that they constituted grounds for dismissal.
Plaintiff appealed the judgment to this court; we reversed it and remanded it for a new trial; we held that plaintiff had been deprived of a proper hearing under Education Code section 12955 because of the failure to inquire into plaintiff's reasons for invoking the privilege against self-incrimination (Board of Education v. Mass (1956) 47 Cal.2d 494 [304 P.2d 1015]). We filed our remittitur on January 27, 1957.
On May 29, 1957, plaintiff moved to remand the proceeding to the board for full hearing in accordance with the remittitur but the court denied the motion without prejudice. Thereafter the board did not initiate retrial but permitted plaintiff's status to remain in this uncertain and suspended condition.
Despite its role as plaintiff in the action which we had remanded,
On January 31, 1962, plaintiff notified the board of the dismissal, demanding, pursuant to Education Code sections 13436 and 13439, reinstatement to his former position within five days as well as payment of full salary from December 8, 1953, plus all allowable costs and damages. On February 6, 1962, the board rejected these demands. Plaintiff then brought the present proceeding in mandamus.
The undisputed facts as to plaintiff's teaching credentials are that plaintiff renewed his general secondary credential, under which he taught, on September 13, 1951; that over five years later, on November 30, 1956, it expired; that on May 30, 1960, plaintiff applied for a reissuance of the credential, but, because of a change in the requirements, the State Board of Education issued to him a junior college credential retroactive to that date. The local board did not learn of the lapse of the credential until almost four years after the date of its expiration, but on September 6, 1960, adopted a resolution that plaintiff's "services as a certificated employee be terminated as of December 1, 1956...."
The trial court denied plaintiff's claim for reinstatement; it awarded him back salary from December 8, 1953, only to November 30, 1956; it denied retirement benefits for that period; it struck the claim for general damages.
1. The right to reinstatement.
We shall point out that since plaintiff admittedly possessed tenure, the board could dismiss him only if it complied with statutory procedures which it confessedly did not pursue. We also explain our rejection of the board's contention that,
The board has not obtained, and, indeed, cannot now obtain, a judgment determining "that the employee plaintiff may be dismissed." The only action which the board instituted, pursuant to statute (Ed. Code, § 13412 et seq.), for the determination of that issue, has been dismissed; the judgment of dismissal is final. Under the applicable statutes of limitation, no new statutory proceeding can now be filed (Ed. Code, § 13413) or tried (Ed. Code, § 13433). The board cannot found the dismissal upon its own failure properly to pursue the provisions of the statute.
As the board points out, "had petitioner applied for renewal he would have been absolutely entitled thereto. (Hall v. Scudder, 73 Cal.App.2d 433, 436 [168 P.2d 990]; Payne v. Real Estate Comr., 93 Cal.App.2d 532, 535-536 [209 P.2d 419]; Matteson v. State Board of Education, 57 Cal.App.2d 991 [136 P.2d 120].)" The board further explains that the Legislature did not give the State Board of Education or the Commission of Credentials "power to deny an application for renewal of a credential because a local board of education has brought charges of violation of the Dilworth Act,
We cannot find any basis in the Education Code for predicating the loss of a teacher's tenure rights upon his failure to perform a purely perfunctory act of application that would have automatically renewed his credential. We cannot ignore the sections, and the legislative history, to tie an automatic termination of plaintiff's rights to the distorted ballooning of a formality.
The board's citations emphasize the incongruity of equating a lapse of a certificate with an automatic termination of the tenure rights of a permanent employee. The cases illustrate the difference between the mere lapse of a credential, such as occurred here, and the revocation of a credential because of the teacher's disqualification. Disqualification, because of sexual offenses, led to automatic termination of credentials in Lerner v. Los Angeles City Board of Education (1963) 59 Cal.2d 382, 390, fn. 4 [29 Cal.Rptr. 657, 380 P.2d 98], and Di Genova v. State Board of Education (1955) 45 Cal.2d 255, 263 [288 P.2d 862]. Such revocation constitutes a declaration by the state board of the teacher's disqualification; the local board then cannot employ the teacher. Such a situation contrasts with the instant mechanical lapsing of a certificate which is automatically renewable.
Neither the cases nor the statutes support the asserted automatic termination of plaintiff's status; the statutes, indeed, compel his reinstatement.
The board argues, however, that even if plaintiff's employment were not automatically terminated, plaintiff, in order to obtain reinstatement, must still demonstrate that he possesses the requisite qualifications to teach; the board is not required to reinstate unqualified personnel. In the instant case, however, plaintiff obtained a junior college credential dated May 30, 1960; his tenure stems from employment at City College of San Francisco, a junior college; he is accordingly qualified to teach.
2. The right to past salary.
In any event, and because of these very premises, the Legislature has explicitly provided that the lack of credential will not preclude the payment of back salary to a teacher who has allowed the lapse of a credential. Section 13516.5 of the Education Code provides that past salary may be paid to a teacher reinstated by court order "irrespective of whether such employee was the holder of a valid certification document during the period of such unlawful removal from his position."
Despite the literal application of the section to the instant case, the board attempts to avoid its impact upon three premises, none of which can stand: (1) that the suspension here
3. The right to interest.
This section authorizes prejudgment interest on salary payments from the date of accrual to the entry of judgment. (Benson v. City of Los Angeles (1963) 60 Cal.2d 355, 363-366 [33 Cal.Rptr. 257, 384 P.2d 649]; W.F. Boardman Co. v. Petch (1921) 186 Cal. 476, 484-485 [199 P. 1047]; Canavan v. College of Osteopathic Physicians & Surgeons (1946) 73 Cal.App.2d 511, 521 [166 P.2d 878].) We shall show that the board's three arguments against the payment of interest cannot stand and that, further, such interest may be obtained in this proceeding of mandamus.
The board secondly contends that Civil Code section 3287, which was amended in 1959 to include rights against local governmental agencies, does not operate retroactively. The instant cause arose on February 5, 1962, when the board refused to reinstate plaintiff. In Abbott v. City of Los Angeles
The theory that recovery in a mandamus action could not under any circumstances include interest arose from assumptions which subsequent decisions and legislation have nullified. In the first place some courts refused to allow interest because they concluded that the judgment in those cases did not rest upon underlying monetary obligations and that mandate would issue only "to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station." (Code Civ. Proc., § 1085.) For example, the court in Sheehan noted that "petitioner ... would not have been entitled to sue the board ... to recover the amount due him on account of his said pension." (188 Cal. at p. 531.) Secondly, Civil Code section 3287, as it then read, foreclosed the recovery of interest against the state in any type of proceeding unless otherwise authorized.
At the present time, however, Civil Code section 3287, having been amended, allows for recovery of interest against a governmental entity. Furthermore, in the instant case, the board incurs liability for breach of its contractual monetary obligation (see Ed. Code, § 1011; Benson v. City of Los Angeles (1963) 60 Cal.2d 355 [33 Cal.Rptr. 257, 384 P.2d 649]). A mandamus action may include monetary damages for breach of contractual or tort obligations. (Code Civ. Proc., § 1095; Cason v. Glass Bottle Blowers Assn. (1951) 37 Cal.2d 134, 142 [231 P.2d 6, 21 A.L.R.2d 1387].) Thus the abstract conception that interest could not be recoverable in any mandamus action, because the judgment could not be based on a monetary obligation, does not apply to this situation. In the instant case the judgment did rest upon a monetary obligation and we see no reason to foreclose the collection of interest because of the form of the action.
Indeed, we allowed postjudgment interest in Cason v. Glass Bottle Blowers Assn., supra, a mandamus action. The cases cited above have treated postjudgment and prejudgment interest alike (see Nilsson v. State Personnel Board, supra, at p. 189) and their force is thus vitiated by Cason. An action upon contract or for declaratory relief will lie to determine
4. Mitigation of Damages.
The cases have long held that the obligation to reimburse the teacher for the amount of salary wrongfully withheld may be mitigated by deducting earnings from other employment. (Hancock v. Board of Education (1903) 140 Cal. 554, 562 [74 P. 44]; Ramsay v. Rodgers (1923) 60 Cal.App. 781, 785 [214 P. 261].) These cases also hold, however, that the burden of establishing mitigation rests with the defendant, and that in the absence of any proof of other earnings, a presumption arises that the amount of damages is the amount of withheld salary. As the early decision in Rosenberger v. Pacific Coast Ry. Co. (1896) 111 Cal. 313, 318 [43 P. 963] states: "The burden is on the defendant to show that he could by diligence have obtained employment elsewhere. Whatever compensation may have been received in such employment is also to be shown by the defendant in mitigation of damages; otherwise the damages will be measured by the salary or wages
The rule has uniformly been applied to the wrongful discharge of teachers; thus Hancock v. Board of Education (1903) 140 Cal. 554, 562 [74 P. 44] states: "Under these circumstances, in the absence of any claim by the defendant that the plaintiff could have obtained, or did obtain, other employment, the presumption is, that he was damaged in the sum which he would have received under the contract if he had performed the duties required." (See also La Rue v. Board of Trustees (1940) 40 Cal.App.2d 287, 296 [104 P.2d 689].)
The board cites no cases holding otherwise as to teachers but submits decisions dealing with dismissals of civil service employees under the State Civil Service Act (Stockton v. Department of Employment (1944) 25 Cal.2d 264, 273-274 [153 P.2d 741]; State Board of Equalization v. Superior Court (1942) 20 Cal.2d 467, 475 [127 P.2d 4]; Wiles v. State Personnel Board (1942) 19 Cal.2d 344, 352 [121 P.2d 673]) and a case involving an analogous situation (Rexstrew v. City of Huntington Park (1942) 20 Cal.2d 630, 634 [128 P.2d 23]). These decisions, we believe, do not apply to the instant case.
The decisions involve the statutory requirements of the State Civil Service Act, which, as amended in 1939, declared that the State Personnel Board "shall in rendering its decision, authorize the payment of salary for the period of suspension if it finds that the charges made were untrue." (Subd. (d) of § 173 of the State Civil Service Act as added in 1939, Stats. 1939, p. 2514.) (Italics added.) Thus the State Personnel Board exercises the authority to determine the "salary" to be paid to the discharged civil servant. As the decision in Stockton v. Department of Employment, supra, recognizes, the cases have held that the civil service employee is "to recover the amount of his accrued salary during the period he is prevented from performing his duties, less the amount he has received from private or public employment
In the instant case we do not interpret any authorization of payment of salary by the involved agency; no such authorization exists; the statutory procedure here contains no direction to a supervisory board, such as the personnel board, for ordering the board to reinstate a discharged teacher or for declaring that it "shall in rendering its decision, authorize payment of salary."
The imposition of the burden on the board rests upon sound considerations. The board can call the teacher under Code of Civil Procedure section 2055 as an adverse witness to inquire as to his interim employment; it can utilize discovery procedures for the same purpose. Since the board here undertakes to limit its liability and since it additionally possesses the techniques for ascertaining the facts, the board should, as to this issue, bear the burden of proof.
We hold that although the trial court awarded plaintiff his salary, without mitigation of amounts otherwise earned,
5. Availability of Funds for Payment.
We conclude as to the whole matter that the statutory scheme did not design that dormant and unproved charges should forfeit the teacher's right to pursue his profession or should cause the protracted delay that has occurred here. A decade of debate should be long enough to define rights; the day for final settlement has come. To that end, and in accordance with the analysis we have set forth in this opinion, we order the reinstatement of plaintiff; the payment of salary that plaintiff would have earned if he had been employed from the date of dismissal to the date of his reinstatement minus deductions which would have been made for the retirement contributions; interest on each such payment from the time it would have been paid; and participation in retirement benefits as if plaintiff had been continually employed. We deny all other claims of plaintiff. Judgment affirmed in part and reversed in part and remanded to the trial court for proceedings consistent with the opinion of this court. Plaintiff shall recover his costs on the appeals.
Gibson, C.J., Traynor, J., Peters, J., and Peek, J., concurred.
I dissent. I would affirm the portion of the judgment in favor of defendant board. In my opinion, plaintiff was guilty of laches, for the following reasons:
First: By choice, he let his credential expire on November 30, 1956, apparently for the purpose of rendering moot the board's charges against him.
Second: After letting his credential expire, he delayed 3 1/2 years (until May 30, 1960) before applying for a new one, this period blanketing the three-year period (January 27, 1957, to January 27, 1960) when, but for the expiration of his credential, the board could have prosecuted the charges against him.
Third: In that three-year period, plaintiff could, under section 13416 of the Education Code, have brought action 434449 (the action filed by the board against him) to trial and obtained an adjudication of the same rights (reinstatement and back salary) which he now seeks to establish, but he did nothing.
Fourth: He delayed another four months (until May 30, 1960) before obtaining a new credential.
Fifth: He delayed almost another year (until April 18, 1961) before moving to dismiss action 434449.
Sixth: He delayed more than five years after the expiration of his credential before bringing the present action (November 30, 1956, to February 16, 1962).
Seventh: During this period the board was paying the salary of another teacher in plaintiff's place. ("It is presumed that where one has been dismissed from an active position in the public service, someone else has been chosen to take his place." [Wolstenholme v. City of Oakland, 54 Cal.2d 48, 50  (4 Cal.Rptr. 153, 351 P.2d 321), cert. denied, 364 U.S. 865 (81 S.Ct. 110, 5 L.Ed.2d 88).]) Meanwhile, plaintiff was running up a claim to back salary and damages totaling to date $132,476 ($82,476 salary and $50,000 general damages), plus interest and fringe benefits in an undisclosed amount. (Only $18,915 of plaintiff's salary claim is for the period prior to expiration of his credential.)
The rule of laches is founded in sound policy, and its application prevents inequity and injustice. (Callender v. County of San Diego, 161 Cal.App.2d 481, 484 [327 P.2d 74].) Rights should be promptly asserted to protect against dual
In United States ex rel. Arant v. Lane, 249 U.S. 367, 372 [39 S.Ct. 293, 63 L.Ed. 650], it is stated: "When a public official is unlawfully removed from office, whether from disregard of the law by his superior or from mistake as to the facts of his case, obvious considerations of public policy make it of first importance that he should promptly take the action requisite to effectively assert his rights, to the end that if his contention be justified the Government service may be disturbed as little as possible and that two salaries shall not be paid for a single service."
In Wolstenholme v. City of Oakland, supra, 54 Cal.2d 48, 50 , we said: "Public policy requires that an employee of a public body who claims to have been improperly or illegally discharged must act with the utmost diligence in asserting his rights." At page 51 (54 Cal.2d) we referred to cases holding that delays of 9, 12, 15, 16, and 18 months were incompatible with the utmost diligence with which an employee of a public body must assert his rights. The delay held to constitute laches in Wolstenholme was 19 months.
To similar effect, and reversing judgments because of laches, are Hayman v. City of Los Angeles, 17 Cal.App.2d 674, 680-681 [62 P.2d 1047] (9 months' delay), and Kramer v. Board of Police Comrs., 39 Cal.App. 396, 400-401 [179 P. 216] (4 years, 9 months' delay). (See also Doan v. City of Long Beach, 130 Cal.App. 526, 528  [20 P.2d 777], affirming a judgment based on an order sustaining a demurrer where the delay was 18 months.)
The prompt action which plaintiff, in the exercise of diligence, should have taken to assert his rights was to (1) renew his credential instead of letting it expire, thus keeping alive the charges against him, (2) have action 434449 retried instead of waiting more than four years (January 27, 1957, to April 18, 1961) to move for its dismissal for want of prosecution, (3) apply promptly for a new credential after he let his old one expire, instead of waiting 3 1/2 years (November 30, 1956, to May 30, 1960), and (4) promptly after November 30, 1956, seek a dismissal of action 434449 and bring
Under the circumstances, plaintiff did not act with "the utmost," or any, diligence.
Schauer, J., concurred.
The petition of the defendants and appellants for a rehearing was denied September 10, 1964. Schauer, J., and McComb, J., were of the opinion that the petition should be granted.