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Hess v. San Bernardino Professional Firefighters Union11/6/2002
stoppel principles cannot fill the factual gap.
Plaintiff may also be able to show that the Union's refusal to provide him with representation increased his damages. If so, the Union may be liable for the increased damages. (Vaca v. Sipes, supra, 386 U.S. 171, 197-198.) Assuming plaintiff eventually establishes a breach of duty, the trier of fact would have to allocate fault between the employer and the Union. "If both the union and the employer have independently caused damage to employees, the union cannot complain if separate actions are brought against it and the employer for the portion of the total damages caused by each." (Czosek v. O'Mara (1970) 397 U.S. 25, 29.) Plaintiff should have the opportunity to show a breach of the duty of fair representation, and independent damages arising from breach of that duty.
WAIVER
The Union also argues that waiver principles entitle it to judgment as a matter of law. The trial court found in its favor on the eighteenth affirmative defense, waiver and release.
The Union argues that the waiver doctrine is applicable because the compromise and release signed by Mr. Hess in his workers' compensation proceeding released the employer, City, and its employees and agents from all causes of action related to Mr. Hess's employment with the City. It seeks to take advantage of this finding by concluding that plaintiff's complaint is actually directed at employees of the City who are also officers and members of the Union.
There is no merit in this argument. The Union is a separate suable entity. It was neither a party to, nor a necessary beneficiary of, plaintiff's actions against the City. Although Union officials are also City employees, suit against the Union is not a suit against the City or its employees. A suit charging a breach of the duty of fair representation is also not a suit against individual union representatives because individual union representatives have no duty of fair representation to union members. (Fontanilla v. City and County of San Francisco (N.D. Cal. 1997) 987 F.Supp. 1206, 1221.) The duty, and the liability for breach of that duty, belongs to the Union alone.
Plaintiff analogizes his cause of action to an attorney malpractice action. He cites Vahle v. Barwick (2001) 93 Cal.App.4th 1323. In that case, plaintiff had filed a personal injury action against a country club and obtained a settlement. She then sued her attorney for malpractice. The trial court held that the release of all persons in the settlement agreement with the country club barred her suit against the former attorney. The appellate court reversed, finding that the question of whether the parties intended to release the attorney was a question of fact which precluded summary judgment. Specifically, the court held that since the attorney was not a party to the release agreement, the attorney could benefit from it only if she was an intended beneficiary of it. (Id. at p. 1328.) The question of whether she was an intended beneficiary of the release agreement is a factual question that could not be resolved on summary judgment.
The waiver issue thus cannot be resolved as a matter of law. Trial is needed to bring out the facts supporting this defense, if any exist. The trial court therefore erred in ordering the action dismissed on waiver grounds without trying the factual issue.
OTHER ALLEGED DEFECTS IN THE COMPLAINT
On appeal, the Union introduces several new arguments directed at the alleged failure of the complaint to state a cause of action for breach of the duty of fair representation. It argues that plaintiff did not allege, and cannot show, that the Union had exclusive c
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