Skaggs v. City of Los Angeles

From a judgment awarding plaintiff the recovery of certain sums found to be due him as pension payments from the city and declaring his right to receive the pension in the future, both parties appeal. Defendant attacks the judgment in its entirety, while plaintiff appeals from the portion thereof which denies him recovery of pension payments for a period of some five years preceding the date from which the court determined the past due payments should be computed. We have concluded that plaintiff should prevail with respect to both appeals.

The facts are not disputed and findings were waived by the parties. On April 1, 1925, plaintiff became a police officer of the city of Los Angeles, and on April 1, 1945, he completed 20 years of aggregate service in the police department and became eligible to retire upon a service pension. During his period of service to the city, 4 per cent of his salary was deducted and paid into the police,, pension fund as required by section 186% of the Los Angeles city charter.

On February 16, 1951, plaintiff filed with the Los Angeles city clerk and with the board of pension commissioners a claim for some $8,200 as pension payments commencing as of July 9, 1945 (the date he had applied to the board for retirement on pension), with interest thereon, and to have monthly pension payments in sums fixed by the city charter continue during plaintiff’s life. Four days later (on February 20, 1951), before the claim was acted upon, plaintiff filed this action for recovery of past accruing pension payments and to establish his right to future payments. The court concluded that he was entitled to the pension, but that by reason of the claim provisions found in section 376 of the city charter his right to recover past installments was limited to the period commencing six months prior to February 16, 1951 (the date he filed the claim with the city clerk and the board of pension commissioners). Judgment was entered accordingly.

As grounds requiring reversal of the judgment defendant first urges the bar of the three-year statute of limitations found in subdivision 1 of section 338 (see also section 312) of the Code of Civil Procedure, which applies to “An action upon a liability created by statute, other than a penalty or forfeiture.” Although more than five and one-half years elapsed between the date the chief of police relieved plaintiff from duty and the filing of this action, it was expressly held in Dillon v. Board of Pension Commrs. (1941), 18 Cal.2d 427 , 431 [ 116 P.2d 37 , 136 A.L.R. 800 ], that “The running of the statute of limitations ... is tolled during the period of the board’s [Board of Pension Commissioners of Los Angeles] deliberations, that is, from the time the claim [pension application] is filed until the board’s decision is rendered. ’ ’ Here, as already stated, plaintiff applied to the pension board for retirement on July 9, 1945, but the board did not act upon plaintiff’s application until February 24, 1948. Since plaintiff filed this action on February 20, 1951, it was within the three-year period, exclusive of the period of the board’s deliberations. There is no merit in defendant’s suggestion that plaintiff’s “misbehavior” prevented the pension board from acting during the period (from July 9, 1945, to July 24, 1946) between the date he applied for a pension and the date the chief of police executed the order removing him from office, and that therefore the

Moreover, the declarations of section 3 of the ordinance that upon completion of the period of service specified by the charter entitling a member of the police department to retire under its provisions, the right to retire at any time thereafter “shall be a fully matured, absolute, vested property right, reserved for such member as a constituted and granted right to retire; and no event . . . shall ever operate as a forfeiture or divestiture thereof,” rather than being inconsistent with, appear to be merely confirmatory of, the mandatory charter provisions found in section 181 (quoted hereinabove), and in accord with established principles of law applicable to pensions.

In Dryden v. Board of Pension Commrs. (1936), 6 Cal.2d 575 , 578-579 [ 59 P.2d 104 ], it is stated that “The deceased was a member of the police department for approximately fourteen years before his death, during the entire period of which he paid his required 4 per cent of each salary check received. A pension based upon such facts is not a gratuity. It is a periodical allowance of money granted by the city in consideration of services rendered or of loss or injury sustained, and payments actually made for that purpose. It has been clearly held that the pension provisions of the city charter are an integral portion of the contemplated compensation set forth in the contract of employment between the city and a member of the police department, and are an indispensable part of that contract, and that the right to

More recently, in Wallace v. City of Fresno (1954), 42 Cal.2d 180 , 183, 185 [ 265 P.2d 844 ], we considered an attempted deprivation of pension rights under an amendment adopted some six years after plaintiff became a member of the police department and 22 years before he retired on pension, which directed that if a retired person was convicted of a felony his pension should terminate. Again the principles were reaffirmed that “A public employee who serves under [established] pension provisions . . . acquires a vested contractual right to a substantial pension. This right arises before the happening of the contingency which makes the pension payable, and it cannot be constitutionally abolished by subsequent" [unreasonable] changes in the law. [Citation.] . . . [P]ension payments are deferred compensation to which a pensioner becomes entitled upon performing all services required under the contract ...” It was held that the amendment constituted an unreasonable impairment of plaintiff’s contract with the city and could not operate to deprive him of his-pension rights upon his conviction of a felony some three years after he retired.

Here, in view of the mandatory provision (§181) under which plaintiff served, that “after twenty years’ aggregate service, on request of such member . . . such member shall be retired” on pension, it is apparent that the ordinance to which defendants object added nothing to the rights which accrued to plaintiff at the time he completed his 20 years’ service on April 1, 1945, and that his subsequent removal from office on charges of conduct unbecoming an officer could not operate to forfeit his previously earned pension. Particularly is this true where, as here, the attempted forfeiture is not pursuant to any charter provision or specific legislation of any nature whatsoever but is merely a refusal of the pension board to grant plaintiff’s application for retirement on pension. In MacIntyre v. Retirement Board of

Moreover, the fact that the order removing plaintiff related back to July 5, 1945—the date he was relieved from duty and four days before he applied to the pension board for retirement on pension—does not constitute under the charter a ground for depriving him of vested pension rights which had fully matured some three months earlier. As mentioned hereinabove in footnote 1, the provisions concerning the filing of police department charges against a police officer, their consideration by a board of rights, and the penalties which may be imposed in case the accused is found guilty, are set forth in section 202 of the city charter. Such penalties are therein expressly stated to be (subd. (12)), “either suspension for a definite period not exceeding six (6) months with total loss of pay, and with or without reprimand; or reprimand without further penalty; or of removal from office or position ...” and nowhere therein have we discovered nor has there been cited to us a provision authorizing the further drastic penalty of forfeiture of vested pension rights which had previously fully matured. On the contrary, it is declared in subdivision (18) of section 202 that “This section shall not be construed to in any way affect any other rights any officer or employee may have to pursue or assert any and all other legal rights or remedies in relation to his office or position or to the compensations attached thereto . . (Italics added.) (See also Holt v. Board of Police & Fire Commrs. (1948), 86 Cal.App.2d 714 , 716-719 [ 196 P.2d 94 ].) As already mentioned, pension rights are a part of the compensation attached to plaintiff’s office.

With respect to plaintiff’s appeal from that portion of the judgment which limits his recovery of past due pension payments to the period commencing six months prior to February 16, 1951 (the date he filed the claim with the city clerk and the board of pension commissioners for some $8,200 as pension installments commencing as of the date he applied for pension on July 9, 1945), it appears that the trial court was of the view that such a limitation was compelled by