Judge James C. Chalfant, Case Number: 23STCP04135, Date: 2024-06-25 Tentative Ruling

Los Angeles Police Protective League v. Szabo, et al., 23STCP04135

Tentative decision on motion for judgment on petition: denied

Respondents City of Los Angeles and Kenneth Mejia (“Mejia”), City Controller for the City (collectively, “City”) move for judgment on the Petition and Complaint (collectively, “Petition”) of Petitioner Los Angeles Police Protective League (“LAPPL”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

On November 15, 2023, Petitioner LAPPL filed the Petition against Respondents City, Kenneth Mejia, and Matt Szabo (“Szabo”), and City Administrative Officer for the City for (1) writ of mandate pursuant to CCP section 1085, (2) breach of contract, (3) declaratory relief, and (4) breach of implied covenant of good faith and fair dealing. The Petition alleges in pertinent as follows.

LAPPL is a recognized organization within the meaning of Government Code section 3501(b) of the Meyers-Milias Brown Act (“MMBA”) for all employees in the classifications of Police Officer, Police Detective, Police Sergeant and Police Lieutenant employed by the Los Angeles Police Department (“LAPD”) with regard to all matters concerning wages, hours, and working conditions. Pet., ¶1.

From January to July 2023, authorized representatives of the City and LAPPL met and conferred pursuant to Government Code section 3505 of the MMBA regarding the terms of a successor Memorandum of Understanding (“MOU”) to the MOU expiring on June 30, 2023 for represented employees of the LAPPL bargaining unit. Pet., ¶6. Negotiations concluded in late July 2023 until a tentative agreement was reached on the new terms to be included in the successor MOU. Pet., ¶6.

On or about August 9, 2023, the Executive Employee Relations Committee (“EERC”) of the City Council instructed the Office of the City Administrator to transmit the tentative agreement between the parties to the City Council for its consideration pending ratification by the LAPPL membership,. Pet., ¶7. The following day, LAPPL notified the City that the tentative agreement had been ratified by its membership. Pet., ¶8.

On August 23, 2023, at a public meeting, the City Council voted 12-3 to approve the tentative agreement culminating in a successor MOU No. 24 (the “MOU”) with a term commencing July 2, 2023 and expiring on June 26, 2027. Pet., ¶9, Ex. A.

Under the MOU, LAPPL represented employees were entitled, effective July 16, 2023, inter alia, to a 6% wage increase (comprised of base wage and retention/longevity pay increase), patrol incentive pay (Geographic Patrol and Traffic Division Crime Suppression Incentive) and weekday standby compensation for employees in LAPD assignments including Homicide Units, Officer Representation Section, Force Investigation Division, and Juvenile Division/Abuse Child Unit. Pet., ¶10.

The City has failed to provide the requisite wage and compensation increases required by the MOU, as well as failed to provide such monetary increases retroactive to the contractually agreed effective date of July 16, 2023. Pet., ¶11. Szabo and Mejia, respectively, had advised authorized representatives of LAPPL that the reason for the delay in implementing the contractually agreed wages/compensation was attributable to each other’s office. Pet., ¶11.

On September 29, 2023, LAPPL, by letter to Szabo and Mejia, made a final demand for a date certain by which LAPPL’s represented employees would receive their compensation increases due under the MOU. Pet., ¶12, Ex. B.

On October 3, 2023, Szabo and Mejia responded by letter and contended that delay in implementing the compensation increases due under the MOU was occasioned by the “complexity of the contract terms and the citywide payroll system transition”. Pet., ¶13, Ex. C. While acknowledging the City’s “responsibility to implement the new contract terms and retroactive adjustments as quickly as possible”, Szabo and Mejia advised that they “should be able to implement the new MOU successfully starting with the pay period commencing October 22, 2023”. However “if testing identifies issues, additional time may be required to correct them.” Pet., ¶13, Ex. C.

The increases still have not been implemented by the City to date, despite several subsequent reminders by LAPPL and corresponding assurance by the City of imminent implementation. Pet., ¶14.

LAPPL seeks (1) a writ of mandate commanding the City to immediately provide to LAPPL’s represented employees wage increases and/or newly created and/or increased specialty pays and special compensation, and/or increased overtime inclusive of the increased base rate of pay, payable effective from July 16, 2023, as required under the MOU; (2) monetary damages in excess of $25,000; (3) damages resulting from breach of implied promise of good faith and fair dealing; (4) pre-judgment interest; (5) post-judgment interest; (6) declaration that the City has engaged in improper conduct and/or actions constituting breach and violation of the MOU by failing to timely provide LAPPL’s represented employees increases of wages and/or newly created and/or increased specialty pays and special compensation, and/or increased overtime inclusive of the increased base rate of pay, payable effective from July 16, 2023; (7) costs of suit; (8) reasonable attorney fees pursuant to CCP section 1021.5; and (9) such other relief as the court deems just and proper. Pet. at 9-10.

On November 14, 2023, LAPPL served the City with the Petition and Summons via personal service.

On December 8, 2023, LAPPL served Mejia, City Controller for the City with the Petition and Summons via substituted service.

A motion for judgment under CCP section 1094 may be made where the petition for a writ of mandate (1) presents no triable issue of fact or (2) is based solely on the administrative record. The CCP section 1094 motion for judgment is a mechanism to obtain a streamlined review on a particular undisputed issue based on undisputed facts or the administrative record. Dunn v. County of Santa Barbara, (2006) 135 Cal.App.4^th 1281, 1293. See also 2 CEB California Administrative Mandamus §13.23 (3d ed. 2007).

When a question of fact is raised by the respondent’s answer, the petitioner has the right to countervail it with proof. CCP §1091; Lassen v. City of Alameda, (“Lassen”) (1957) 150 Cal.App.2d 44, 47. If the facts are undisputed or only a question of law is raised, the court may hear the matter upon the papers filed and argument. Lassen, supra, 150 Cal.App.2d at 47. The petitioner also may waive the right to present evidence, and the matter still may be heard under CCP section 1094. Ibid. If a question of fact is raised by the answer, a CCP section 1094 motion is not appropriate, and the matter must be heard at trial. See id. at 48. In denying a CCP section 1094 motion, the court may decide that the facts are disputed and hence the motion is procedurally defective, or it may decide that the undisputed facts/record show the moving party cannot prevail on that issue.

In the days after City Council ratified the MOU, Mejia and Szabo began extensive and substantial efforts to implement salary increases to more than 8,900 individual LAPD employees and union members. Quach Decl., ¶2. The efforts were initially hampered as Szabo and Mejia discovered technical errors in the wage amounts negotiated by LAPPL and Szabo in the MOU. Quach Decl., ¶2.

Mejia informed LAPPL on September 13, 2023 concerning issues with “the way the MOU was written in Appendix B-2 page taking effect July 16, 2023”. Mejia understood the terms as a “COLA increase (which is pensionable),” but Szabo clarified “the CAO ERD's intent for the following schedules were...[to] keep the base wage alone and apply a 3% nonpensionable bonus” for “Police Officers” and an increase in “base wage and non-pensionable bonus” for “Detectives and above”. Quach Decl., ¶3, Ex. A.

On September 28, 2023, Szabo issued a memorandum addressing the “technical errors” in “MOU-24, Article 5.1, Appendices B-1 through D-3” directing Mejia to recalculate the wage increases under a 3% non-pensionable “bonus” rate. Quach Decl., ¶4, Ex. B. After issuance of Szabo’s directive, implementation of the increased wages under the MOU required herculean efforts through individualized assessments of both yearly salary and specific incentive payments based on an officer’s particular deployment periods and assignments. Quach Decl., ¶5. Such individualized assessments were complicated by the technical corrections that required a split between pension and non-pension-based wage increases to employees’ salaries. Quach Decl., ¶5.

Bob Hess, an outside consultant, was hired to strategize and implement testing protocols for the wage increases to ensure their accuracy. Quach Decl., ¶6. Specialty payments including patrol bonuses or other bonuses were also to be determined at the LAPD level through individualized approvals. Quach Decl., ¶6. Mejia’s office thus required the input of LAPD’s sub-groups to verify eligibility dates and amounts for these specialty payments before any retroactive payment could be calculated, which took several months of continuous calculation and testing by dozens of City employees and consultants. Quach Decl., ¶7.

These efforts culminated in the City’s issuance of a $25,798,226.56 payment to all 8,909 LAPD employees and LAPPL union-members on December 27, 2023. Quach Decl., ¶8. The December 27, 2023 payment was a retroactive salary increase calculated based on the MOU’s effective date of July 16, 2023 and matched the amounts agreed to in Appendices B-1 through 3 of the MOU but did not include any payment of pre-judgment interest to any LAPD employee or LAPPL member. Quach Decl., ¶¶8-9.

Following the adoption of the MOU by the City Council, LAPPL initiated multiple verbal and written communications to the office of Szabo and Mejia inquiring as to the date the City would be implementing the compensation increases pursuant to the terms of the MOU. Joint Statement of Facts (“JSF”), ¶7. In response to the inquiries by LAPPL, Szabo and Mejia, each advised authorized representatives of LAPPL that the reason for the delay in implementation of the compensation increases due was attributable to the other’s office. JSF, ¶9.

On September 29, 2023, LAPPL, by letter to Szabo and Mejia, made a final demand for a date certain by which the LAPPL’s represented employees would receive their compensation increases due under the MOU. JSF ¶8; Levine Decl., ¶3, Ex.1 (Pet., ¶12, Ex. B).

On October 3, 2023, Szabo and Mejia advised LAPPL by letter that “[t]he City recognizes the responsibility to implement the new contract terms and retroactive adjustments as quickly as possible. The Controller and the CAO are in close coordination and believe that we should be able to implement the new MOU successfully starting with the pay period commencing October 22, 2023.” JSF, ¶10; Levine Decl., ¶3, Ex.1 (Pet., ¶13, Ex. C).

On November 9, 2023 the Petition was filed. Levine Decl., ¶3, Ex.1. On November 14, 2023, the lawsuit was served on the City. Levine Decl., ¶4, Ex. 2. On December 8, 2023, the lawsuit was served on Mejia. Levine Decl., ¶5, Ex. 3.

On or about December 27, 2023, the City issued a payment to certain LAPPL represented employees. JSF, ¶11. The December 27, 2023 payment was a retroactive payment calculated based on an effective date of July 16, 2023. JSF, ¶12. The City’s retroactive payment did not include any pre-judgment interest to any LAPD represented employees. JSF, ¶13.

The City moves for judgment under CCP section 1094 on the grounds that (1) it has no duty to pay pre-judgment interest, (2) pre-judgment interest cannot be enforced by mandamus in this case, and (3) LAPPL fails to state a claim because it seeks an unlawful double recovery and the issue is moot.

1. Pre-Judgment Interest Is Available to LAAPL’s Members in an Action for Damages

The right to pre-judgment interest against the debtor under Civil Code section 3287 (“section 3287”) flows from the date a person had the right to recover damages upon a particular date:

“A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state.” Civil Code §3287(a) (emphasis added).

An action to recover wrongfully withheld pay increases or past due pension payments from public entities is an action for damages within the meaning of section 3287. See Sanders v. City of Los Angeles, (“Sanders”) (1970) 3 Cal.3d 252, 262-63 (pre-judgment interest awarded for retroactive fireman pay increase); Olson v. Cory, (1983) 35 Cal.3d 390, 402. Interest is recoverable on each salary or pension payment from the date it fell due. Currie v. Workers Compensation Appeal Board, (2001) 24 Cal.4th 1109, 1115 (pre-judgment interest awarded on backpay when employee reinstated).

The elements required to obtain pre-judgment interest under section 3287 are as follows: (1) an underlying monetary obligation, (2) damages which are certain or capable of being made certain by calculation, and (3) a right to recovery that vests on a particular day.” Flethez v. San Bernardino County Employees Retirement Assn., (2017) 2 Cal.5th 630, 640.

For the first element – an underlying monetary obligation -- “[i]n applying the Meyers-Milias-Brown Act, the courts have uniformly held that a memorandum of understanding, once adopted by the governing body of a public agency, becomes a binding agreement." Glendale City Employees' Ass'n v. Glendale, (“Glendale”) (1975) 15 Cal.3d 328, 337. Article 1.4 of the MOU provides that “[t]his MOU shall become effective when: A. The agreement has been ratified by the employees of the Unit; and B. The agreement has been approved by the City Council in the manner required by law.” JSF, ¶5. It is undisputed that LAPPL ratified the MOU and that the City Council approved it on August 23, 2023. JSF, ¶¶ 3-5. Therefore, following the City Council’s approval, the City had a legal monetary obligation under the MOU.

For the second element -- damages which are certain or capable of being made certain by calculation -- the MOU includes certainty by means of detailed appendices/spreadsheets/charts regarding the amount of increased base wages and special compensation corresponding to the employees’ job classification and salary step which were to be effective on July 16, 2023. JSF ¶4. According to the City’s supporting declaration, on December 27, 2023 the City quantified the amount of retroactive salary increases and specific incentive payments payable to LAPPL’s represented employees in the total sum of $25,798,226.56 based on the MOU's effective date of July 16, 2023, which matched the amounts agreed to in Appendices B-1 thru 3 of the MOU. Quach Decl., ¶¶ 5-8. Accordingly, the MOU’s compensation increases and new specific incentive payments were capable of being made certain by calculation.

For the third element -- a right to recovery that vests on a particular day -- in Olson v. Cory, (1983) 35 Cal.3d 390, the California Supreme Court held that judges and judicial pensioners were entitled to pre-judgment interest pursuant to Civil Code section 3287 on salary and pension increases. Id. at 402. In response to the defendant state and county controllers’ argument that the salary and pension claims were not damages capable of being made certain by calculation under section 3287(a), the court answered that generally the certainty required is absent when the amount turns on disputed facts, but not when the dispute is confined to the rules governing liability. Id. The court stated:

“Here, the amount due each member of the plaintiff class -- judges of courts of record and judicial pensioners -- at any point in time between January 1, 1977, and June 27, 1980…was either of two readily calculable amounts: (1) the salary or pension due under section 68203 as it read before the 1976 amendment or (2) that due under the section as amended. The question whether to pay any judge or pensioner under one version of the statute or the other did not depend on any factual uncertainty or dispute but solely on the proper answers to the questions of law ultimately resolved. Uncertainty over those legal issues did not prevent the amounts due from being “certain or capable of being made certain by calculation” (Civ. Code, § 3287, subd. (a)).” Id. (emphasis added).

LAPPL argues that it is undisputed that the right to recovery for all LAPPL’s represented employees to salary increase and certain special compensation vested on a particular day, to wit: “effective July 16, 2023.” JSF, ¶6. Indeed, in December 2023 the City retroactively compensated LAPPL’s represented employees to that date, conclusively proving that their right to recovery vested on a particular day. Opp. at 12.

The City acknowledges that it had a contractual duty to pay wage increases effective from July 16, 2023. It argues that LAPPL can point to no contractual provision in the MOU requiring it City to disburse the wage increases on July 16, 2023. MOU Articles 5.1, 5.4, and 6.5 state that the increased “salaries and longevity payments shown in the Appendices [B-1 thru 3] will be operative” or “effective on the following dates: July 16, 2023.” Pet. Ex. A, pp. 37, 54. But the terms “operative” or “effective” are not defined in MOU-24. LAPPL’s position contradicts MOU Articles 1.2 and 1.4 that state “[t]his MOU shall become effective” only after ratification by both parties. JSF ¶4; Pet. Ex. A, pp. 1-2 (emphasis added). Ratification is a condition precedent that did not occur until the City approved the MOU on Aug. 23, 2024. Pet. ¶ 9. See Platt Pac. v. Andelson, (1993) 6 Cal. 4th 307, 313 (non-occurrence of condition precedent precludes emergence of further contractual duties). Thus, LAPPL’s contention that the City owed a contractual duty to disburse wages weeks before such contract was even enforceable is unsupported by the plain language of the MOU. Mot. at 11-12; Reply at 3.

The City concludes that the only reasonable interpretation of the MOU is that it imposed a ministerial duty for the City to calculate salary increases with the “effective” or “operative” date of July 16, 2023. See Employers Reinsurance Co. v. Superior Court, (2008) 161 Cal. App. 4th 906, 919 (“In determining if a provision is ambiguous, we consider not only the face of the contract but also any extrinsic evidence”). The City could not even conduct such calculation until September 28, 2024 when the Chief Administrative Officer issued technical directives to address the inconsistencies in the MOU wage increase provisions. Quach Decl., ¶4, Ex. B. Mot. at 12.

The City argues that resolution of this issue is a factual claim not capable of certainty. A duty to calculate is not the same as a duty to disburse. The MOU does not set any date by which the City had a legal duty to disburse the salary increases. It at most references the “effective” and “operative,” dates of July 16, 2024 pertaining to the calculation of salary increases, not their disbursement. The contract was not even enforceable until City Council approved the MOU on August 23, 2024, five weeks after the July 16 effective date. LAPPL cannot point to any provision in the MOU mandating that the City disburse the wage increases by a specific date. At most, Article 6.1.3 of the MOU, governing “Timely Payment of Overtime,” suggests that the City has a duty to pay “overtime compensation [] as soon after the regular pay period as is practicable,” but not to “be delayed for a period longer than is reasonably necessary for the employer to compute and arrange for payment of the amount due.” JSF ¶4; Pet. Ex. A, p. 48. This says nothing about the increased base wages owed under Article 5.1. Nor do the Appendices B-1 through 3 provide any clarity; they merely set forth the amounts of salary increases by rank and salary step, not the deadline to disburse such wages. JSF ¶4; Pet. Ex. A, pp. 37, 109-14. Mot. at 12.

This contractual ambiguity requires resort to disputed facts and contractual analyses. See Suffolk Constr. Co., Inc. v. Los Angeles Unified Sch. Dist., (2023)0 90 Cal. App. 5th 849, 878 (“We agree with the trial court that Fisk’s claim [for prejudgment interest] was uncertain” as “the jury was required to determine the amount owed to Fisk based on the varied evidence presented at trial.”); see also Mass v. Bd. of Ed. of San Francisco Unified Sch. Dist., (1964) 61 Cal. 2d 612, 625 (prejudgment interest permissible only where “the salary payments became vested as of the dates they accrued” based on a specific “contractual monetary obligation”). Mot. at 10, 12.

Adjudication of the issue would require a review of facts dating back decades reflecting the parties’ course of dealings in disbursing wage increases under prior iterations of the MOU. See Code Civ. Proc., § 1856(c) (“The terms set forth in a writing described in subdivision (a) may be explained or supplemented by course of dealing or usage of trade or by course of performance.”). See Magic Carpet Ride LLC, 41 Cal. App. 5th at 366 (triable issues of fact precluded summary judgment because court could not determine “such a cryptic provision” without considering “[w]hat performance at what time is a condition of what party’s duty to do what?”). For example, “[t]he general rule in equity is that time is not of the essence unless it has been made so by its express terms or is necessarily so from the nature of the contract.” Katemis v. Westerlind, (1953) 120 Cal. App. 2d 537, 543. Because there are no disbursement deadlines in the MOU, a fact-finding jury would need to exercise its judgment whether the City made the salary payments within a reasonable time under the contract. See Magic Carpet Ride LLC v. Rugger Inv. Grp., L.L.C., (2019) 41 Cal. App. 5th 357, 364 (2019) (“[W]here time is not of the essence of a contract, payment made within a reasonable time after the due date stated in the contract constitutes compliance therewith.”) (citations omitted). Mot. at 10, 12, 14.

Under LAPPL’s theory, the City would always be liable for interest on negotiated salary increases made effective retroactively because of the procedural hurdles inherent in the process: The City would accrue interest (1) during the time in which it took the LAPPL membership to ratify the agreement, (2) during the time in which it took the City Council to approve the agreement, and (3) during the tine in which it took the City to modify its computer programmed payroll systems in order to accurately implement the retroactive pay increase with all applicable withholdings for each, uniquely situated employee. It goes without saying that the City would never agree to such terms, nor did it do so in this case. Reply at 3.

LAPPL responds that the parties engaged in good faith negotiations and adopted an effective date for compensation increases of July 16, 2023. Irrespective of any claimed contractual ambiguity respecting the timing of the City’s payment of the wage increases under the MOU, the City has an explicit contractual obligation to increase the specified wage increases and implement new incentive pay “effective July 16, 2023”. Specifically, under the MOU, LAPPL represented employees were entitled, effective July 16, 2023, to, inter alia, a 6% wage increase comprised of base wage and retention/longevity pay increase (see Pet., Ex. A, Article 5.1, p. 53 and Appendices B1-3, pp. 109-114) and a Geographic Patrol and Traffic Division Crime Suppression Incentive (Pet., Ex. A, Section 5.4, pp. 53-55.

Whether the City delayed disbursement of the MOU salary and benefit increases/new incentive pays for a period of two months or six months, it nevertheless had a ministerial and contractual duty to make such payment of compensation increases retroactive to the effective date of July 16, 2023. Therefore, pre-judgment interest under section 3287(a) accrued on the underlying monetary obligation commencing with the effective date of July 16, 2023 specified with certainty in the MOU. If the City did not intend to create a contractual obligation to pay as of July 16, 2023, it should have bargained for a later effective date, such as the date of adoption of the MOU by the City Council. It did not do so, which shows the City understood that its obligations would include the requirement to pay back wages, and that, as a matter of law, the delay in payment of those wages and benefits would lead to the accrual of interest. Opp. at 12, 16.

The City is correct that the MOU creates a conditional ministerial duty to make salary and longevity payments, effective on July 16, 2023, only after it has been ratified by LAPPL and approved by the City Council. But the mere fact that the MOU does not become effective until these events occur does not affect this ministerial duty. Ratification is a condition precedent to the effective date of the MOU (see Platt Pac. v. Andelson, (1993) 6 Cal. 4th 307, 313), but once the condition precedent is satisfied the City’s duties springs into existence. This is true for the duty to pay wage increases and incentive pay as well as the duty to pay any pre-judgment interest.

The City also is correct that extrinsic evidence is admissible in determining if a contract is ambiguous (Employers Reinsurance Co. v. Superior Court, supra, 161 Cal. App. 4th at 919) and that the parties’ course of dealing in disbursing wage increases under prior iterations of the MOU could be such relevant extrinsic evidence. See CCP §1856(c). But the City points to no course of dealing or other extrinsic evidence required to determine if the MOU is ambiguous. The court does not find any ambiguity without such evidence. The MOU clearly states that LAPPL members are entitled to the salary and longevity payments as of July 16, 2023. As a result, based on the evidence presented, the third element of section 3287(a) is satisfied and LAPPL’s members are entitled to pre-judgment interest from that date until paid.

2. The City’s Duty to Pay Pre-Judgment Interest Is Enforceable by Mandamus

The City suggests that LAPPL’s claim for pre-judgment interest flows from its damages in its breach of contract causes of action. Those money damages require resort to an action at law and jury and may not be adjudicated by this court of equity. Mot. at 17.

Under California law, damages are not awardable on a mandamus cause of action. While “the [ordinary mandamus] action has the practical effect of awarding plaintiffs money (which has routinely been referred to as “damages” by all parties), in law it is simply an action in mandamus to compel by ministerial act the release of funds, not one for damages from the sovereign.” County of Sacramento v. Lackner, (1979) 97 Cal. App. 3d 576, 588. See Pomona Police Officers' Ass'n v. City of Pomona, (“City of Pomona”) (1997) 58 Cal.App.4th 578 (denial of mandamus petition proper as “[t]he City should not be denied procedural safeguards, such as claim statutes and the right to a jury trial, which it would enjoy in an ordinary action at law.”).

“In proceedings involving claims for wages by municipal employees or by parties to a contract with a municipality,” such as this case, “it is generally held that an ordinary action at law for damages is adequate, and a writ of mandate will be denied.” Tevis v. City & Cnty. of San Francisco, (1954) 43 Cal. 2d 190, 198. However, an exception exists where “the payment of the wages of a public employee requires certain preliminary steps by public officials”, such as appropriating funds or approving a payroll. Glendale City Employees' Assn., Inc. v. City of Glendale, (“City of Glendale”) (1975) 15 Cal. 3d 328, 343. A court may thus grant a mandamus petition to direct a respondent city to compute and pay the salaries as fixed by a MOU. Id. at 344. A court may also grant prejudgment interest if “precise mathematical standards which, applied to the survey data, yield the exact sums due.” Id. at 344-45 (mandate for payment of public employee wages under MOU, including pre-judgment interest).

In Tripp v. Swoap, (1976) 17 Cal.3d 671, the California Supreme Court reiterated that pre-judgment interest under section 3287(a) is properly awarded in mandamus proceedings based upon an underlying statutory monetary obligation of the public entity. Id. at 681. In the case of the welfare statute at issue, the elements of section 3287(a) were satisfied for pre-judgment interest on retroactive payments, including that the right to receive welfare benefits vests in the recipient on the first day of his entitlement. Id. at 683. The statute was not intended to deny pre-judgment interest and an award of such interest conformed with the statutory mandate that public assistance programs be liberally construed. Id. at 685. See also Sanders, supra, 3 Cal.3d at 262-63 (mandate requiring city to pay employees retroactive salary and wage increases required by ordinance, with pre-judgment interest); Squire v. City and County of San Francisco, (“Squire”) (1970) 12 Cal.App.3d 974, 982 (mandamus ordering city to comply with trial court’s interpretation of charter regarding salary for union employees, including pre-judgment interest); City and County of San Francisco v. Cooper, (1975) 13 Cal.3d 898, 932 (mandate compelling controller to issue warrants reflecting salary increases with pre-judgment interest for school district employees after adoption of the city's salary standardization ordinance).

In the instant case, at a duly noticed public meeting on August 23, 2023, the City Council adopted the MOU between the City and LAPPL which as a matter of law became the monetary obligation for the City to pay the contractually required salary increases and new incentive pays effective July 16, 2023. It is undisputed that the City had to “take preliminary steps by public officials” with respect to these payment obligations, including the Chief Administrative Officer’s technical directives to address the inconsistencies in the MOU wage increase provisions. Quach Decl., ¶4, Ex. B. Mandamus therefore is an appropriate means for LAPPL to compel the payment. City of Glendale, supra, 15 Cal. 3d at 343. The City’s contractual obligation to pay as of July 16, 2023 supports mandamus both to pay the salary increases and incentives and any pre-judgment interest under section 3287(a) that accrued on any delayed disbursement. Because the salary increases and incentives were owed as of July 16, 2023, it is clear that “precise mathematical standards” applied to the City’s calculations will yield the exact sums due for the pre-judgment interest owed to LAPPL’s members. See City of Glendale, supra, 15 Cal. 3d at 344-45.

The City argues that in all the mandamus cases relied upon by LAPPL, either a statute or a contract creating the obligation to pay clearly established both the method of calculating the amount due and a date certain by which the payment must be made by the governmental entity. Olson v. Cory, supra, 35 Cal.3d at 401 (awarding pre-judgment interest in dispute about the statutory requirements of original and amended statute where payment was not made within either deadline); Sanders, supra, 3 Cal.3d at 252 (awarding pre-judgment interest base on failure to meet fixed payment date); Squire, supra, 12 Cal. App. 3d at 982 (pre-judgment interest awarded based on due date in salary ordinance). Reply at 2-3.

This is true. The case law establishes that there must be a statutory or contractual obligation to pay as of a date certain for pre-judgment interest to be awarded in mandamus. But the MOU establishes a July 16, 2023 date for the pay increases and incentive pay.

The City argues that the contractual ambiguity warrants dismissal of LAPPL’s mandamus claim. In Pomona Police Officers' Ass'n v. City of Pomona, (“City of Pomona”) (1997) 58 Cal.App.4th 578, the Second District affirmed dismissal of a plaintiff police union’s mandamus claim where the terms of the parties’ “collective bargaining agreement” failed to show a clear “official duty” to provide plaintiff’s requested salary adjustments. Id. at 590.

In Crestwood Behav. Health, Inc. v. Baass, (“Crestwood”) (2023) 91 Cal. App. 5th 1, 18-19, the appellate court affirmed the denial of a mandamus claim where the plaintiff’s cited statute “does not prescribe any ‘act’ the Department must take” or any “ministerial duty on the Department’s part to act in a particular way[.]” Mot. at 12-13.

The court in Bull Field, LLC v. Merced Irrigation Dist., (“Bull Field”) (2022) 85 Cal. App. 5th 442, 455, similarly affirmed the dismissal of a mandamus petition where the applicable statute “cannot reasonably be interpreted to impose a mandatory duty on the District” under plaintiff’s proposed theory. Mot. at 13.

In Asante v. California Dep't of Health Care Servs., (“Asante”) (N.D. Cal. Apr. 12, 2016) 2016 WL 1427495, at *1, a plaintiff filed a mandamus claim challenging the respondent agency’s disbursement of “payments to out-of-state hospitals” on grounds that such payments violated its constitutional duties. The court noted that plaintiff’s “calculation of damages . . . was subject to extensive debate” and that “[u]nlike in writ of mandate cases [], th[is] court must undertake a close and somewhat complex analysis that involves judgment” as to “the clarity of the duty breached . . . rather than a simple ministerial determination.” Id. at *4-5. Such complexity meant “there is no clear, ministerial duty in this case, [and] Plaintiffs cannot rely on writ of mandate under § 1085 to recover retroactive damages.” Id. at *6. Just as Asante held that complex determinations of fact and law precluded relief by mandamus, so too should the court dismiss LAPPL’s mandamus claim. Mot. at 13.

None of these cases involved a public agency’s ministerial duty to pay retroactive benefits. In City of Pomona, the petitioner sought mandamus to compel the city to amend its contract with PERS to validate a retirement conversion option or otherwise cause the retirement allowance of the union’s members to be increased by the agreed upon amount in the MOU. 58 Cal.App.4^th at 583. The court found that that city did not have a duty to implement the MOU provision regarding conversion of employer-paid employee retirement contributions to salary after the date that the city discovered that the MOU’s retirement conversion option violated the Public Employees’ Retirement Law. Id. at 589-90.

In Crestwood the court concluded that the Department of Health Care Services had no ministerial duty under Welf. & Inst. Code to include unaudited special treatment program days in Skilled Nursing Facility Quality and Accountability Supplemental Payment System calculations.

In the present case, it is undisputed that the City had a ministerial duty to pay the salary and incentive increases and there is no claim of illegality which would excuse the City from performing its contractual MOU obligation to do so.

LAPPL distinguishes Bull Field and Asante as not involving mandate to compel a public employer to implement a MOU provision with a union. Opp. at 17. More important and unlike Bull Field and Asante, the City’s ministerial duty to make retroactive payments is clear and undisputed; the only issue is pre-judgment interest. Neither Bull Field nor Asante addressed the issue of pre-judgment interest where there was a ministerial duty to make retroactive payments.[1]

LAPPL may use mandamus to enforce the City’s ministerial duty to pay the salary and incentive increases, and pre-judgment interest.

The City argues that LAPPL’s demand for pre-judgment interest contravenes basic due process principles. An award of prejudgment interest would constitute a double recovery because the December 27, 2024 wage disbursements to LAPPL’s members were calculated based on a retroactive date of July 16, 2024. Given that LAPPL’s members already received the benefit of their contractual bargain, an award of interest would place them in a position superior to what was promised under the MOU. Mot. at 14-15.

Under Civil Code section 3358 “no person can recover a greater amount in damages for the breach of an obligation, than he could have gained by the full performance thereof on both sides.” This is because “the breaching party is only responsible to give the nonbreaching party the benefit of the bargain to the extent the specific breach deprived that party of its bargain.” Postal Instant Press v. Sealy, (1996) 43 Cal. App. 4th 1704, 1709 (citations omitted). The MOU promised LAPPL’s members an increase in wages to be calculated with an effective date of July 16, 2024. Any award of pre-judgment interest violates basic contract and due process principles because it would award LAPPL’s 8,909 members a recovery greater than the City promised in the MOU. Mot. at 15.

Courts have denied pre-judgment interest in similar contexts where the award would constitute excess or duplicative recovery. See Lewis Jorge Constr. Mgmt., Inc. v. Pomona Unified Sch. Dist., (2004) 34 Cal. 4th 960, 973 (reversing award of pre-judgment interest because “[f]ull performance by the District would have provided Lewis Jorge with full payment of the contract price.”); Burnett & Doty Dev. Co. v. Phillips, (1978) 84 Cal. App. 3d 384, 391 (affirming denial of pre-judgment interest based on “offset” and denying claim for costs because “[t]o award the plaintiff not only lost profit but also the cost of producing the profit causes a double recovery.”) (citations omitted). The City argues that the same logic applies here. This is particularly true given the LAPPL is required to elect one remedy—either specific performance through mandamus, or damages on its contract claim. See Darbun Enterprises, Inc. v. San Fernando Cmty. Hosp., (2015) 239 Cal. App. 4th 399, 409 (“A plaintiff may seek specific performance, an equitable remedy, as an alternative to damages, but a plaintiff may not receive both for breach of contract to the extent such an award would constitute a double recovery.”). Mot. at 15-16.

The court agrees with LAPPL (Opp. at 18) that this argument ignores the purpose of pre-judgment interest, which is to compensate the plaintiff for the loss of use of his or her property. Lewis C. Nelson & Sons, Inc. v. Clovis Unified School Dist., (2001) 90 Cal.App.4th 64, 71–72. The award of pre-judgment interest compensates LAPPL’s represented employees for the loss of use of the unpaid salary increases commencing from the contractually agreed effective date of July 16, 2023 until the December 27, 2023 date on which the retroactive salary increases were paid. The award of pre-judgment interest does not place these employees in a position superior to that promised in the MOU and only makes them whole. As LAPPL argues, the City’s position would permit it to delay payment indefinitely without remedy. When finally compelled to pay the back wages owed, it then would owe nothing beyond back pay. That position is not consistent with the parties’ intent in the MOU or the law.

If the evidence demonstrates the respondent’s willingness to perform without coercion, a writ of mandate may be denied as unnecessary, and if the respondent shows actual compliance, the proceeding will be dismissed as moot. No purpose would be served in directing the [respondent] to do what has already been done.” TransparentGov Novato v. City of Novato, (2019) 34 Cal. App. 5th 140, 147.

The City notes that paid $25 million in increases wages in accordance with the MOU on December 27, 2024. JSF ¶11; Quach Decl., ¶8. The City argues that the Petition is both unnecessary and moot. It is unnecessary because there are no facts showing that the City ever refused to disburse the increased salary payments without coercion. The Petition concedes as much as the incorporated exhibits show the City acknowledged its “responsibility to implement the new contract terms” requiring increased wage payments. JSF ¶ 10; Pet. ¶¶ 13-14, Ex. C (“The CAO . . . [and Controller] have moved as quickly as possible to accomplish the objective of successfully implementing the updated and new terms and conditions in MOU 24 with little to no errors so as to avoid further consternation of your members.”). The City provides additional facts that dozens of City employees and consultants worked to implement the wage increases in the MOU. Quach Decl., ¶¶ 2-8. The mandamus claim is unnecessary because the facts reflect a willingness to perform without coercion. The Petition is also moot given the City “issued a [retroactive] payment of $25,798,226.56 to all 8,909 LAPD employees and LAPPL union-members” based on the MOU’s effective date of “July 16, 2023. JSF ¶¶ 11-12; Quach Decl., ¶8. This moots the LAPPL’s central mandamus remedy of the payment of “represented employees increases of wages.” Pet. ¶24. Mot. at 16-17.

LAPPL presents the history of the parties’ communications. Following the City Council’s August 23, 2023 adoption of the MOU, LAPPL contacted the office of the City Administrative Officer and City Controller to inquire when the City would be implementing the compensation increases. JSF ¶7. On September 29, 2023, LAPPL made a final written demand as to the date by which its represented employees would receive their compensation increases due under the MOU. JSF ¶ 8; Pet., Ex. B. On October 3, 2023, the City Administrative Officer and City Controller advised LAPPL by letter that “[t]he City recognizes the responsibility to implement the new contract terms and retroactive adjustments as quickly as possible. The Controller and the CAO are in close coordination and believe that we should be able to implement the new MOU successfully starting with the pay period commencing October 22, 2023”. JSF ¶10; Pet. ¶13, Ex. C. Opp. at 13.

On November 9, 2023, after there still was no disbursement of the required retroactive salary/benefit increases, LAPPL filed the Petition. LAPPL served the City on November 14, 2023 and served the Controller on December 8, 2023. Levine Decl., Ex.2. The City failed to pay to the contractually required retroactive salary increases and new special incentives/pays until December 27, 2023. JSF ¶ 11. Opp. at 13.

LAPPL argues that, irrespective of any complexity claimed by the City in timely disbursing the contractually required retroactive salary increases and new special incentives, and notwithstanding the City eventual payment of retroactive salary increases five months after the contractually agreed effective date of such increases, the court remains vested with jurisdiction to award pre-judgment interest commencing July 16, 2023 until the City’s date of payment of such salary increases on December 27, 2023. Opp. at 13-14.

The case is not moot. The City’s $25 million disbursement of wage increases on December 27, 2023 mooted only part of the Petition. The Petition seeks mandamus to compel the City to pay the required retroactive salary/benefit increases and pre-judgment interest. Pet., ¶¶ 20-21. Opp. at 14.

[1] In reply, the City relies on Weber v. Bd. of Ret. of Los Angeles Cnty. Ret. Ass'n., (“Weber”) (1998) 62 Cal.App.4th 1440, in which a class action on behalf of county disability retirees sought interest from the date of the administrative determination of an entitlement to the benefits. Id. at 1445. As in this case, the petitioners were seeking interest on a retroactive benefit payment. Id. The court refused to award pre-judgment interest because the retroactive lump sum payments were paid as promised and thus the petitioners were not denied any benefits and did not suffer damage. Id. at 1446-47. Reply at 4.

The City’s reliance on Weber is misplaced. The Weber court held that a retirement board was not statutorily authorized to award pre-judgment interest when granting retroactive benefits. Id. at 1446. Conversely, a trial court could award pre-judgment interest following a successful administrative mandamus action to recover benefits wrongfully withheld by the retirement board. Id. That is the situation here.