Filed 12/1/20 Guillermo v. Los Angeles County Dept. etc. CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

MARICELA GUILLERMO,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY 

DEPARTMENT OF HEALTH 

SERVICES,

Defendant and 

Respondent.

 B296925

 (Los Angeles County

 Super. Ct. No. BS159674)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mary H. Strobel, Judge. Affirmed.

Rosen Marsili Rapp, Howard Z. Rosen, Amanda Pitrof, 

for Plaintiff and Appellant.
2

Hausman & Sosa, Jeffrey M. Hausman, Larry D. 

Stratton, for Defendant and Respondent.

__________________________

In 2012, the Los Angeles County Department of Health 

Services (the Department) terminated appellant Maricela 

Guillermo’s employment. Guillermo successfully petitioned 

the trial court for a writ of mandate, and the court ordered 

that she be reinstated and compensated pursuant to Los 

Angeles County Code section 6.20.100 (section 6.20.100). 

Guillermo was awarded back pay, which she received as a 

lump sum, and because of the lump-sum nature of the 

payment, incurred an additional tax liability of $226,862. 

Guillermo requested that the trial court award her a “grossup” to neutralize the tax increase.1 The trial court denied 

the motion, concluding that section 6.20.100 does not 

authorize such an award.

On appeal, Guillermo contends that, pursuant to 

section 6.20.100, the Department must compensate her for 

the increased tax liability she incurred through no fault of 

her own. The Department contends that we lack jurisdiction 

to hear Guillermo’s appeal, but that, even if the court’s order 

is appealable, section 6.20.100 does not authorize a gross-up 

award to compensate Guillermo for tax consequences over 

1 A “gross-up” is an award to a prevailing employee of 

an additional sum of money to compensate for the increased 

tax burden created by a back pay award made in a lump 

sum.
3

which it has no control (and which have changed over the 

years).

We agree with Guillermo that we have jurisdiction over 

the appeal. However, we affirm the trial court’s order,

because we conclude that section 6.20.100 does not permit a 

trial court to award a wrongfully terminated employee a 

gross-up payment.

FACTS AND PROCEDURAL BACKGROUND

In April 2009, the Department hired Guillermo in the 

position of Pharmacy Services Chief II. On September 14, 

2012, the Department discharged Guillermo based on her 

“insubordination and refusal to follow instructions” as well

as her “failure to maintain confidentiality.” She appealed to 

the Civil Service Commission (the Commission).

After an administrative hearing, the hearing officer

found that Guillermo was “‘not a model, but in general, a 

problem as well as a problematic employee who tends to go 

rogue in performing her duties, nonetheless, [the 

Department] failed to present evidence sufficient . . . to meet 

[the] preponderance of the evidence [standard]’ necessary to 

support a discharge.” The hearing officer concluded that

“‘[w]hile the Department failed on technical grounds to 

support its disciplinary action of discharging [Guillermo], 

nevertheless it was successful in clearly establishing that 

[Guillermo] was an extremely difficult employee to manage[,]

and . . . an out-of-control employee . . . . [T]he Hearing 
4

Officer is compelled to recommend that [Guillermo] be 

reinstated to employment with the Department without any 

back pay and not necessarily to her former position as 

Pharmacy Services Chief II.’” On October 7, 2015, the 

Commission sustained the discharge, stating: “‘The 

Department was successful in clearly establishing that 

[Guillermo] was an extremely difficult employee to manage 

and that she marches to the beat of her own drum. The 

portrait of [Guillermo] as an out-of-control employee 

persuades the Commission to sustain the Department.”

On December 22, 2015, Guillermo petitioned for writ of 

administrative mandate. On January 31, 2017, the court

remanded the matter to the Commission to “make additional

findings or clarify the findings on which it relied to reach its

decision to discharge” Guillermo.

On November 29, 2017, following remand proceedings, 

the Commission reinstated Guillermo, and imposed a 30-day 

suspension.

On January 19, 2018, the trial court entered judgment

granting the writ of mandate, and ordering the Department

to reinstate Guillermo without loss of seniority and to 

compensate her pursuant to section 6.20.100, with interest 

thereon at a rate of 7 percent per annum from the date of her 

discharge, September 12, 2012, through the date of payment. 

The trial court further ordered the Department to provide 

Guillermo with “all of the fringe benefits that she would 

have had but for her termination until her reinstatement 

less the period of her 30-day suspension . . . .”
5

In June 2018, the Department reinstated Guillermo, 

and the following month, paid her $655,849.96 in back pay 

and $180,691.27 in interest, most of which relates to years 

prior to 2018.

On November 9, 2018, Guillermo filed a motion in the 

trial court for an order directing the Department to 

compensate her for the excess tax liability she incurred as 

the result of the lump-sum reinstatement payments. As 

authority to make such a compensation award, the motion 

relied solely on section 6.20.100, which provides: “In the 

event an employee is reduced, suspended and/or discharged, 

and upon appeal the civil service commission or a court 

having jurisdiction does not sustain such reduction, 

suspension and/or discharge, the employee shall be entitled 

to his base rate of salary, vacation and sick leave as if such 

unsustained reduction, suspension or discharge had not been 

invoked. However, in no event shall an employee be entitled 

to any salary or credit for vacation and sick leave for any 

period of time covered by a suspension which is sustained or 

for any period of time waived by an employee as a condition 

to the granting of a continuance of his civil service or judicial 

hearing.” Based on the calculations of a CPA and expert in 

tax planning and preparation, Guillermo contended her

federal and state tax liability was $226,864 greater than the 

amount she would have paid in each tax year had she not 

been discharged.

In a written order filed on February 19, 2019, the trial 

court denied the motion for excess tax liability 
6

compensation, concluding that the “express language of the 

ordinance says nothing about payment of tax liability. Even 

as modified by the phrase ‘as if such unsustained . . . 

discharge had not been invoked,’ the terms ‘base rate of 

salary,’ ‘vacation,’ and ‘sick leave’ cannot reasonably be 

interpreted to include payment of tax liability.”

Guillermo appealed to this court on April 15, 2019.

DISCUSSION

This Court Has Jurisdiction 

The Department contends that we lack jurisdiction to 

hear the appeal because Guillermo’s post-judgment motion 

seeking gross up relief neither enforced nor stayed the trial 

court’s judgment, and she did not file her appeal until 

approximately 15 months after the judgment was entered. 

We disagree.

Code of Civil Procedure section 1097 authorizes a trial

court to “make any orders necessary and proper for the 

complete enforcement” of a writ of mandate. It is a “‘well 

settled rule that the court which issues a writ of mandate 

retains continuing jurisdiction to make any orders necessary 

and proper for the complete enforcement of the writ.’ 

[Citations.]” (King v. Woods (1983) 144 Cal.App.3d 571, 

578.) Code of Civil Procedure section 904.1, subdivision 

(a)(2), in turn, permits an appeal from an order to enforce a 
7

judgment. (Lakin v. Watkins Associated Industries (1993) 6 

Cal.4th 644, 651–652.)

The Department relies on APRI Ins. Co. v. Superior

Court (1999) 76 Cal.App.4th 176 (APRI), which holds that a 

trial court loses jurisdiction to reconsider its ruling after 

entry of judgment. (Id. at p. 180.) APRI is inapposite. The 

trial court did not reconsider its ruling in this case. 

Guillermo’s motion for relief could not have been made until 

the Department determined the amount of her back pay;

accordingly, the motion was an effort to enforce the 

underlying writ of administrative mandate under Code of 

Civil Procedure section 1097. The trial court had 

jurisdiction to hear the motion, and the notice of appeal, 

which was filed within 60 days of the court’s order, was 

timely. (Cal. Rules of Court, rule 8.104(a)(1)(B) & (C).) We 

have jurisdiction to hear the appeal.2

Section 6.20.100 Does Not Permit Gross Up Awards

Guillermo received her back salary payment from the 

Department in a lump sum in 2018, which pushed her into a 

2 The Department also argues that Guillermo failed to 

file a Government Code claim in connection with her motion. 

The argument is simply another version of the primary 

jurisdictional argument—that the motion for a gross-up was 

an attempt to modify rather than to enforce the judgment. 

Because we conclude that the motion was a lawful attempt 

to enforce the judgment under section 6.20.100, the 

argument necessarily fails.
8

higher tax bracket than would have applied if she had been 

paid the salary over each of the years to which a particular 

back pay amount applied (2012 to 2018). As a result, she 

suffered greater tax liability than she would have if she had 

been paid over time as an employee. She argues that section 

6.20.100 requires that she be paid as if her termination had 

not occurred—i.e. the Department must compensate her to 

cover the additional tax liability. We reject Guillermo’s 

contention, because the plain language of the ordinance does 

not authorize gross up payments.

“Where, as here, an appeal from administrative

mandamus proceedings presents questions of law, our 

review is de novo.” (Alameida v. State Personnel Bd. (2004)

120 Cal.App.4th 46, 52.) We employ the same rules to 

interpret both statutes and ordinances. (Chaffee v. San 

Francisco Public Library Com. (2005) 134 Cal.App.4th 109, 

114.) In construing [an ordinance], our task is to discern the 

drafters’ intent. (Wells v. One2One Learning Foundation

(2006) 39 Cal.4th 1164, 1190 [statutory interpretation].) We 

start with the ordinance’s words, “assigning them their 

usual and ordinary meanings, and construing them in

context. If the words themselves are not ambiguous, we 

presume the [drafters] meant what [they] said, and the 

[ordinance’s] plain meaning governs.” (Ibid.) Our role “is 

simply to ascertain and declare what is in terms or in 

substance contained therein, not to insert what has been 

omitted, or to omit what has been inserted; and where there 

are several provisions or particulars, such a construction is, 
9

if possible, to be adopted as will give effect to all.” (Code Civ.

Proc., § 1858.)

We again quote the language of section 6.20.100, as it 

is key to the question we are asked to decide. “In the event 

an employee is reduced, suspended and/or discharged, and 

upon appeal the civil service commission or a court having 

jurisdiction does not sustain such reduction, suspension 

and/or discharge, the employee shall be entitled to his base 

rate of salary, vacation and sick leave as if such unsustained 

reduction, suspension or discharge had not been invoked. 

However, in no event shall an employee be entitled to any

salary or credit for vacation and sick leave for any period of 

time covered by a suspension which is sustained or for any 

period of time waived by an employee as a condition to the 

granting of a continuance of his civil service or judicial 

hearing.” (§ 6.20.100.)

Guillermo argues that section 6.20.100 unambiguously

provides for a gross-up award because it entitles a reinstated

employee to her “base rate of salary . . . as if” she had not 

been discharged, which necessarily encompasses tax 

neutralization, where appropriate. Without a gross-up, 

Guillermo would receive significantly less than the taxable 

salary she would have received had she never been 

discharged.

The Department contends that “base rate of salary” 

refers to one part of an employee’s overall compensation—

direct monetary compensation at a monthly rate. The 

Department argues that the meaning is reflected in section 
10

6.26.040, the County of Los Angeles Salary Table, which lists 

the monthly rates for positions that are on a one-step, twostep, three-step, four-step, and five-step rate of 

compensation. (See L.A. County Code, § 6.26.010.) The 

Department asserts that the base rate of salary is unaffected 

by the tax liability an employee incurs.

We agree with the Department that the language of 

section 6.20.100 is unambiguous. The section lists “base rate 

of salary, vacation and sick leave,” which are separate 

elements of an employee’s compensation. If there were any 

ambiguity in the plain meaning of “base rate of salary,” it 

would be easily resolved by consulting the County of Los 

Angeles Salary Table included in the Los Angeles County 

Code, which lists monthly rates of monetary compensation

as “salary.”

We are not persuaded that the commonly understood 

definition of “base rate of salary” renders the ensuing 

phrase, “as if such . . . discharge had not been invoked,” 

superfluous. “[A]s if such . . . discharge had not been 

invoked” clearly sets forth the time period for which the 

employee is to be paid—i.e., the period between the date of 

the unsustained discharge and the date of the employee’s 

reinstatement. The subsequent sentence in section 6.20.100 

reinforces this interpretation, as it creates an exception for 

the days that an employee is suspended or waives time 

within the relevant time period. (“However, in no event 

shall an employee be entitled to any salary or credit for 

vacation and sick leave for any period of time covered by a 
11

suspension which is sustained or for any period of time 

waived by an employee as a condition to the granting of a 

continuance of his civil service or judicial hearing.”) When 

“salary” is read as commonly defined, there is no overlap 

with the phrase “as if such . . . discharge had not been 

invoked,” and full effect is given to all of the language in 

section 6.20.100. (Medical Board v. Superior Court (2001) 88 

Cal.App.4th 1001, 1013 [courts are to construe language in a 

manner that gives effect to all parts of a statute where 

possible].)

If the Los Angeles County Board of Supervisors (Board 

of Supervisors) had intended for section 6.20.100 to include 

payment of tax liability it would have expressly said so, or 

incorporated catch-all language authorizing the court to 

provide other equitable relief.3 Section 6.20.100 does not 

expressly provide for a gross up or vest the court with 

3 At the invitation of the court, both parties submitted 

letter briefs on the significance of section 5.25.055 of the Los 

Angeles County Code, which provides that a reinstated 

employee receive a gross-up in connection with the Deferred 

Compensation and Thrift Plan. The parties agree that 

section 5.25.055 does not shed light on the interpretation of 

section 6.20.100. We therefore deny the parties’ requests for 

judicial notice of the legislative history of section 5.25.055 

and the County’s related motion to present additional 

evidence.
12

equitable powers that would permit it to award a gross up.4 

Guillermo points to no authority holding that a court has the 

authority to award a gross up based on statutory language 

as precisely limited as section 6.20.100.5

4 We previously granted Guillermo’s request for 

judicial notice of various ordinances relating to the 

legislative history of section 6.20.100. We hereby deny 

Guillermo’s additional request, deferred to this panel, to 

take judicial notice of certain email correspondence between 

appellant’s counsel and the county’s customer service center 

regarding an ordinance (No. 10,034) missing from the 

county’s archives.

5 Guillermo cites to authority, including Ofsevit v. 

Trustees of California State University & Colleges (1978) 21 

Cal.3d 763, 777, fn. 14, for the general proposition that the 

purpose of a back pay order is to make employees whole for 

losses suffered as a result of unfair labor practices. This 

general proposition, however, does not address the specific 

issue of compensation for increased tax liability under 

section 6.20.100. Guillermo relies on several federal 

antidiscrimination cases that have held that a trial court has 

the authority to award a gross up where a discharged 

employee has been reinstated. (Clemens v. CenturyLink Inc. 

(9th Cir. 2017) 874 F.3d 1113, 1115–1117 (Clemens); EEOC 

v. Northern Star Hospitality, Inc. (7th Cir. 2015) 777 F.3d 

898, 903–904 (Northern Star Hospitality); Eshelman v. Agere 

Sys. (3rd Cir. 2009) 554 F.3d 426, 441–443 (Eshelman); 

Sears v. Atchison, T. & S. F. R. Co. (10th Cir. 1984) 749 F.2d 

1451, 1456–1457 (Sears).) These cases are inapposite. 

Guillermo was not terminated for a discriminatory reason, 

and section 6.20.100 does not authorize “any other equitable 
13

As Guillermo concedes, the single California case to 

which she cites that addresses gross up damages, Economy 

v. Sutter East Bay Hospitals (2019) 31 Cal.App.5th 1147

(Economy), does so in a different context. There, the Court 

of Appeal held that a hospital was required to provide an

anesthesiologist with appropriate peer review procedures 

and due process protections prior to terminating his ability 

to practice, and that the anesthesiologist was entitled to lost 

income damages for period in which the discipline he 

suffered was invalid. (Id. at pp. 1156–1162.) The Economy

court further held that the anesthesiologist’s expert’s 

testimony was sufficient to support award of damages for tax 

neutralization. (Id. at pp. 1163–1164.) Notably, in 

Economy, the hospital argued only that the evidence in 

support of the trial court’s award of damages for tax 

neutralization was speculative, not that an award for tax 

neutralization damages was unauthorized. (Ibid.) Thus, the 

appellate court did not need to address the issue before us to 

resolve that matter.

relief as the court deems appropriate,” as the statutory 

language implicated in those cases did. (Clemens, supra, at 

p. 1115–1117 [Title VII]; Northern Star Hospitality, supra, at 

pp. 903–904 [Title VII]; Eshelman, supra, at pp. 440–443

[Americans with Disabilities Act]; Sears, supra, at pp. 1456–

1457 [Title VII].) Likewise, Guillermo’s examples of gross-up 

awards in the private sector for unlawful discharge under 

the National Labor Relations Act (29 U.S.C. § 158(a)(1) &

(3)) do not inform the inquiry with respect to section 

6.20.100.
14

The only case in California that addresses whether a 

statute authorizes the award of a gross up to a reinstated 

public employee is Barber v. State Personnel Bd. (2019) 35 

Cal.App.5th 500 (Barber). There, a divided court found that, 

under Government Code section 19584, an employee who 

was reinstated by the State Personnel Board was not 

entitled to recover the amount equal to the increased tax 

liability resulting from a lump sum payment. As Barber

addressed whether gross ups were authorized under 

Government Code section 19584,6 and not section 6.20.100, 

it, too, is not directly on point. Significantly, however, the 

court held that increased tax liability was not encompassed 

in the term “salary” as used in that statute, because tax 

liability “is neither earned nor a payment.” (Id. at p. 513.) 

Although the plain language of section 6.20.100 clearly 

conveys that compensation for increased tax liability is not 

6 Government Code section 19584 provides, in relevant 

part: “Whenever the board revokes or modifies an adverse 

action and orders that the employee be returned to his or her 

position, it shall direct the payment of salary and all interest 

accrued thereto, and the reinstatement of all benefits that 

otherwise would have normally accrued. ‘Salary’ shall 

include salary, as defined in Section 18000, salary 

adjustments and shift differential, and other special salary 

compensations, if sufficiently predictable.”
15

contemplated, Barber’s holding lends additional support to 

the Department’s arguments.7

There are policy arguments from the perspective of a 

successful claimant that would support requiring the 

Department to pay a gross up award and there are policy 

arguments from the perspective of the Department (which 

has no control over tax rules adopted by the Federal and 

State governments) that counsel in favor of a contrary 

conclusion. The policy debate is not for us to resolve. The 

Board of Supervisors has not authorized gross up payments 

in Section 6.20.100, and if the Board of Supervisors thinks a 

different rule would be more just, it is the Board of 

Supervisors that must change it.

7 Notably, in Barber, the dissent interpreted 

Government Code section 19584’s reference to “special salary 

compensations” as “being a catchall provision that allows . . . 

courts to fashion appropriate remedies to ensure the 

employee is made whole.” (Barber, supra, 35 Cal.App.5th at 

p. 527 (dis. opn. of Slough, J.).) The dissent found the word 

“compensation” “broad enough to cover compensating the 

employee for work and for injuries related to the wrongful 

termination.” (Ibid.) Section 6.20.100 contains no similar 

catch-all category.
16

DISPOSITION

The judgment is affirmed. Respondent Los Angeles 

County Department of Health Services is awarded its costs 

on appeal.

MOOR, J.

I concur:

BAKER, J.
1

Guillermo v. Department of Health Services – B296925

RUBIN, P. J. concurring and dissenting:

BACKGROUND

Under Los Angeles County Code section 6.20.100 (section 

6.20.100) a wrongfully discharged employee “shall be entitled to 

his base rate of salary . . . as if such unsustained . . . discharge 

had not been invoked.” In my view, the plain purpose of this 

ordinance and the remedy of back pay in general is to make the 

employee whole “for losses suffered on account of an unfair labor 

practice.” (Ofsevit v. Trustees of Cal. State University & Colleges 

(1978) 21 Cal.3d 763, 777, fn. 14.) The question raised by this 

appeal is whether a statute designed to compensate an employee 

for losses incurred due to her wrongful termination allows a 

“gross-up” award in order to accomplish that end?

The availability of a “gross-up” award gained particular 

significance after the federal tax code eliminated income 

averaging. (See 1986 Tax Reform Act, P.L. 99-514, § 141 (1986).)1 

Income averaging had allowed taxpayers to allocate income on an 

average basis over several years, rather than in a single year. 

(See Schmalbeck, Income Averaging After Twenty Years: A Failed

1 Current section 6.20.00 was enacted in 1968 as section 245 

and amended several times before federal income averaging was 

repealed in 1986. (See Ord. 6222, § 245 (1968, added by Ord. 

9577, § 19); Ord. 6222, § 245 (1972, amended by Ord. 10273, 

§ 24); Ord. No. 6222, § 245 (1979, amended by Ord. 12022, § 28); 

Ord. No. 6222, § 6.20.100 (1982, amended by Ord. 84-0149P, § 3.)
2

Experiment in Horizontal Equity (1984) 1984 Duke L.J. 509, 510–

512.) The amendment to the Internal Revenue Code had the 

effect of “ ‘leaving all those receiving a lump sum award to suffer 

the consequences of additional tax liability.’ ” (Barber v. State 

Personnel Bd. (2019) 35 Cal.App.5th 500, 507 (Barber), review 

denied Aug. 21, 2019; see Polsky & Befort, Employment

Discrimination Remedies and Tax Gross Ups (2004) 90 Iowa L. 

Rev. 67, 77.) Employees who thereafter received a lump sum 

back pay award were not able to allocate a portion of their award 

to the respective tax years when the lost earnings would have 

been earned. The result was that, under a progressive income 

tax system, a lump sum award likely pushes an employee into a 

higher tax bracket than she would have occupied if she had 

received her pay regularly over several years. (See generally 

Ireland, Tax Consequences of Lump Sum Awards in Wrongful

Termination Cases, 17 J. Legal Econ. 51, 51-52 (2010).)

Over the years, the term “gross-up” has slowly crept into our 

legal lexicon but is found in only one published California 

appellate opinion, Barber, supra, 35 Cal.App.5th 500.2

2 Several federal circuits have held that a district court has 

the discretion to award a gross-up in Title VII suits. (See Sears v.

Atchison, T. & S. F. R., Co. (10th Cir. 1984) 749 F.2d 1451;

Eshelman v. Agere Sys., Inc. (3d Cir. 2009) 554 F.3d 426; EEOC v. 

Northern Star Hospitality, Inc. (7th Cir. 2015) 777 F.3d 898; and 

Clemens v. CenturyLink Inc. (9th Cir. 2017) 874 F.3d 1113.) Title 

VII provides in part that “the court may . . . order . . . any other 

equitable relief as the court deems appropriate.” No similar 

provision is found in section 6.20.100.
3

SECTION 6.20.100

Section 6.20.100 broadly provides general authority for an 

award that compensates an employee for the salary lost due to 

wrongful termination. Under section 6.20.100, a wrongfully 

terminated employee is “entitled to his base rate of salary . . . as 

if . . . such discharge had not been invoked.” A reading of section 

6.20.100 that limits an award to only an employee’s “base rate of 

salary” fails to take into account the “as if” clause, essentially 

rendering the latter phrase superfluous. (See People v. Arias

(2008) 45 Cal.4th 169, 180 [“Significance should be given, if 

possible, to every word of an act. [Citation.] Conversely, a 

construction that renders a word surplusage should be 

avoided.”].) 

By couching “base rate of salary” in terms of “as if . . . such 

discharge had not been invoked,” the ordinance provides for 

compensation to an employee for all salary truly lost, not just her 

monthly gross pay. The gross-up achieves that purpose without 

creating a windfall for those wrongfully terminated employees 

like appellant whose court and administrative proceedings drag 

on for years. Instead, those who receive a lump sum back pay 

award covering a period of years receive the same net-of-tax 

salary they would have received had there been no wrongful 

discharge. 

The majority reads the “as if” clause differently, but the 

construction I give to the ordinance effectuates the make-whole 

purpose of the statute. As our Supreme Court has reminded, the 

purpose of the remedy of back pay is to make the employee whole 

“for losses suffered on account of an unfair labor practice.” 

(Ofsevit v. Trustees of Cal. State University & Colleges, supra,

21 Cal.3d at p. 777, fn. 14.) In cases like appellant’s, without a 
4

gross-up an employee is not restored to the same financial 

situation as she was before termination. Instead, many 

wrongfully discharged employees will effectively receive 

significantly less than their base rate of salary.3

BARBER v. STATE PERSONNEL BD.

The Department relies almost exclusively on Barber, supra, 

35 Cal.App.5th 500, the only case in California that addresses 

whether a statute authorizes the award of a gross-up to a 

reinstated public employee. Barber concluded that Government 

Code section 19584 gave no such authorization. That statute 

provides, in part: “Whenever the [State Personnel Bd.] revokes 

or modifies an adverse action and orders that the employee be 

returned to his or her position, it shall direct the payment of 

salary and all interest accrued thereto, and the reinstatement of 

all benefits that otherwise would have normally accrued. ‘Salary’ 

shall include salary, as defined in Section 18000, salary 

adjustments and shift differential, and other special salary 

compensations, if sufficiently predictable.” The Barber majority 

concluded that the statute limited “backpay relief recoverable to 

lost salary and benefits,” and construed “special salary 

compensation” as referring only to “income paid for work 

performed.” (Barber, supra, at pp. 513–514.) The Barber court 

found that, because increased tax liability was “neither earned 

3 I am not persuaded that the phrase, “as if such . . . 

discharge had not been invoked” is necessary to set forth “the 

time period for which the employee is to be paid—i.e., the period 

between the date of the unsustained discharge and the date of 

the employee’s reinstatement.” (Maj. Opn., pp. 8-9.) Without the 

“as if,” the ordinance would be read temporally in the same 

manner.
5

nor a payment,” a reinstated employee could not be awarded a 

gross-up. (Id. at p. 513.) 

The Barber court also held that a determination of 

increased tax liability was not “sufficiently predictable” under the 

statute because “at the time of the wrongful termination, it is 

unpredictable as to whether this will occur, [as] increased tax 

liability turns on a multitude of factors, including the employee’s 

unique financial situation at the time the lumpsum award is 

received, the amount of the lumpsum award, applicable tax 

exemptions and deductions, the employee’s previous and current 

tax brackets, the past and current tax laws, and the length of 

time it takes to resolve the reinstatement claim.” (Barber, supra, 

35 Cal.App.5th at p. 514.)

Not even the majority’s litany of unpredictables could deter 

Justice Slough from dissenting. Her dissent interpreted 

Government Code section 19584’s reference to “special salary 

compensations” as “being a catchall provision that allows . . . 

courts to fashion appropriate remedies to ensure the employee is 

made whole.” (Barber, supra, 35 Cal.App.5th at p. 527 (Slough, 

J., dis.).) In so holding, the dissent took “a different view of the 

meaning of the word ‘compensation[],’ ” finding the word “broad 

enough to cover compensating the employee for work and for 

injuries related to the wrongful termination.” (Ibid.) Because the 

term “compensation” itself is “broad and general,” the dissent 

found it was designed “as a true catchall.” (Ibid.)

The Barber dissent reasoned that its interpretation 

“effectuates the purpose of the statute. Section 19584’s plain aim 

is making whole employees injured by their employer’s 

misconduct or mistake. . . . As our Supreme Court has 

recognized, about this provision as well as other backpay 
6

provisions, ‘ “[t]he purpose of the remedy is clear. ‘A backpay 

order is a reparation order designed to vindicate the public policy 

of the statute by making the employees whole for losses suffered 

on account of an unfair labor practice.’ ” ’ [Citation.]” (Barber, 

supra, 35 Cal.App.5th at p. 528 (Slough, J., dis.).) 

There is no “catch-all” “other special salary compensations” 

in section 6.20.100 but in my view the “as if such unsustained . . . 

discharge had not been invoked” is both “broad and general”

(Barber, supra, 35 Cal.App.5th at p. 528 (Slough, J., dis.)) and 

supports a gross-up award under section 6.20.100 to make 

appellant “whole for losses suffered on account of an unfair labor 

practice.” (Ibid.)

CONCLUSION

In this case, appellant was paid six years’ salary and 

benefits in one lump sum. She presented evidence that she owed 

approximately $227,000 more in taxes than she would have owed 

had she worked during those years and was paid per pay period. 

I would reverse the trial court’s decision and remand for a 

determination of whether the evidence supports a gross-up 

award.

Although I disagree with the majority on the merits of 

appellant’s appeal, I concur in two respects. First, I agree with 

the majority that this court has appellate jurisdiction. (Maj. 

Opn., pp. 5-6.) I also agree that there “are policy arguments from 

the perspective of a successful claimant that would support 

requiring the Department to pay a gross up award.” The 

majority also cites “policy arguments from the perspective of the 

Department (which has no control over tax rules adopted by the 

Federal and State governments) that counsel in favor of a 

contrary conclusion.” Neither the Barber opinion nor this one 
7

was unanimous, as each garnered a dissent. It does seem time 

for government entities, such as the County of Los Angeles, to 

address head on whether gross-up awards are authorized in 

wrongful termination litigation.

RUBIN, P. J.