Opinion

The sanitation district appeals from a judgment granting a writ of mandate ordering the reinstatement of an employee of the district. We affirm the judgment.

The employee, Kim Lyman, was a permanent employee of the district. In July of 1976 there occurred a work stoppage by certain “blue collar” workers of the district. Lyman participated in that work stoppage in the face of an injunction against it and against coercion of other employees, issued by the superior court in its action C-166, 219. Lyman’s friend, Butler, did not participate. At approximately 2 a.m., on July 9, 1976, Lyman, accompanied by another employee, Thompson, went to Butler’s home and attempted to talk to Butler. An altercation ensued. On July 14, 1976, the district sent to what it believed to be Lyman’s home address, a letter of termination. That letter read as follows:

I

The briefs discuss, at length, whether the proceeding below should have been treated as one for traditional mandate under section 1085 of the Code of Civil Procedure, or as one for administrative mandamus under section 1094.5 of that code. We conclude that the trial court properly treated the case before it as one under section 1094.5. That section reads, in pertinent part, as follows:

Those requirements, based on both the state and federal Constitutions, make such a hearing a matter required by law, within the meaning of subdivision (a) of section 1094.5.

II

The district appears to argue that, in any event, the trial court should have applied the “substantial evidence” test in determining the petition for mandate. That contention is in direct opposition to Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28 [ 112 Cal.Rptr. 805 , 520 P.2d 29 ], where the Supreme Court said (at p. 32); “If the order or decision of the agency substantially affects a fundamental vested right, the trial court, in determining under section 1094.5 whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence. If, on the other hand, the order or decision does not substantially affect a fundamental vested right, the trial court’s inquiry will be limited to a determination of whether or not the findings are supported by substantial evidence in the light of the whole record.” It cannot be doubted that Lyman’s right to continue in his permanent public employment was a “vested right” within the meaning of that rule.

Ill

Although the briefs for the district discuss, at great length, the fact that Lyman was engaged in an unlawful strike, it is clear, as the language of the first notice shows, that he was not terminated because he participated in the work stoppage, but solely because of the altercation with Butler. On that issue, the trial court, properly exercising its independent judgment, found:

IV

The district argues that, in reaching its decision, the trial court improperly relied on depositions that were not presented at the “hearing” before its managing officers. The short answer to that contention is that the district stipulated to the receipt and consideration of those depositions.

V

The judgment herein appealed from reads as follows:

The judgment is affirmed.

Jefferson (Bernard), J., and Alarcon, J., concurred.

The petition originally sought, as an alternative remedy, an order for impartial arbitration of the termination. A demurrer to that cause of action was sustained.on the ground that, at the time involved, no memorandum of understanding calling for arbitration existed. The case,then proceeded on the count seeking mandate. The trial court found, in its finding of fact No. 14: “There is no evidence in the record that Respondent [district] terminated Petitioner Lyman for participating in the work stoppage engaged in by Petitioner Local 660.”