Morgado v. City and County of S.F.

Filed 8/26/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

PAULO MORGADO, Plaintiff and Respondent, A157320 v. CITY AND COUNTY OF (San Francisco County SAN FRANCISCO et al., Super. Ct. No. CGC-12-518287) Defendants and Appellants.

The City and County of San Francisco and affiliated defendants (collectively, the City) challenge an order requiring them to pay Paulo Morgado for future income lost due to his wrongful termination. In an earlier chapter of the litigation, we granted an alternative writ of mandate directing the trial court to clarify that order in certain respects or show cause for not doing so. In response, the court ruled that the City may not avail itself of deductions for side income Morgado earned while waiting for reinstatement. Because the trial court’s clarification order failed to resolve the issue, the parties return to this court, continuing to dispute the extent of the City’s obligation to pay Morgado. The City contends Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4th 1122 (Davis) and Bevli v. Brisco (1989) 211 Cal.App.3d 986 (Bevli) entitle it to the deductions it took. Morgado argues to the contrary, and further claims that even if the City’s

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reliance on Davis and Bevli was correct, its deductions were calculated incorrectly. We agree with the City’s reading of Davis and Bevli and now confirm it was correct to take deductions for Morgado’s side income, but conclude the amount it deducted was incorrect. We therefore reverse the trial court’s decision and remand for further proceedings consistent with this opinion. I. BACKGROUND In a previous appeal, we concluded that the City’s procedural approach to punishing Morgado for misconduct violated the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.) by not providing him a valid avenue for administrative appeal of his 2011 termination. (Morgado v. City and County of San Francisco (2017) 13 Cal.App.5th 1, 12.) We also affirmed the trial court’s 2014 injunctive order directing the City to vacate Morgado’s termination and reinstate him pending administrative appeal. (Id. at p. 16.) Morgado was duly reinstated, but was suspended without pay retroactive to his 2011 termination. He sought and in April 2018 obtained an order holding the City in contempt for its failure to comply with the prior injunction. The contempt order required the City to vacate “unconditionally” Morgado’s termination and suspension, compensate him with front pay and benefits lost, and “refrain from attempts to suspend, withhold pay and benefits, and take any other action” against Morgado. Morgado then complained the City again took the route of partial compliance. Instead of paying in full, it offset the payment owed to him based on his post-termination earnings from side income as a mortgage broker. Morgado originally did not dispute the City’s claimed entitlement to an offset and suggested the issue could be worked out informally, but later 2