Le Strange v. City of Berkeley

This is an appeal by both parties from a judgment of the court below involving a pension claim of the plaintiff, Harriet A. Le Strange (hereinafter sometimes referred to as the widow), against the defendants, City of Berkeley, a municipal corporation, its Police Pension Board, and its Fire Pension Board and the members thereof (hereinafter sometimes collectively referred to as the City).

The Facts

James Howard Le Strange died on November 2, 1956, while he was Chief of the Fire Department of the City of Berkeley. His death was due to a staphylococcus infection. His widow, Harriet Le Strange, filed an application with the Fire Pension Board of the City of Berkeley (hereinafter referred to as the Board) seeking a pension under either of two sections in the Firemen’s Pension Ordinance of said City. Section 8 provides for a pension in the case of a fireman who dies while in the City’s employ but not in the line of duty.

There was evidence presented to the Board that: Chief Le Strange frequently visited injured firemen in the hospitals during his tenure as chief; that in 1956 he developed prostate trouble and entered the hospital on March 26 and 27 for preliminary examination and was again hospitalized from June 25 to June 30, 1956, for a prostatectomy; that on May 21, 1956, while fighting a fire, he received a cut on the back of his right hand and received first aid treatment at the fire; that said wound did not heal and was festering at the end of June; that it was still festering in early August; that toward the end of August pain developed in the upper forearm requiring a hospital entry on September 3 when the elbow was surgically explored; that he reentered the hospital because of such infection on October 30 and remained until November 2 when he died. Testimony was adduced before the Board that the staphylococcus infection developed at some point during the times and periods above-mentioned, but there was a conflict in the medical testimony as to how said infection was contracted. There was evidence that it was the result of the wound; that it was contracted while the chief was in the hospital for his prostate trouble; and also that it could have been contracted while visiting the injured firemen in the hospitals.

Section 3 of the said ordinance provides for a board of seven members and also provides that “No action may be taken by the Board except by a majority vote of the entire membership thereof.” Two hearings were held before the Board, i.e., on May 11 and May 20, 1959. At these hearings oral and documentary evidence was presented. This included the oral testimony of physicians, reports of physicians and the tran

Following the denial of her claim for a pension of one-half of her husband’s salary, the widow brought the instant action in the superior court seeking a trial de novo, a judgment in her favor awarding her a pension of one-half of her husband’s former salary, a money judgment for specified sums, and for declaratory relief.

At the trial, the court preliminarily held that the plaintiff was not entitled to a trial de novo. It ruled, further, that the question to be determined was not whether there was any evidence submitted to the Board which would sustain its finding, but whether plaintiff had submitted 11 satisfactory proof” that Chief Le Strange lost his life as a direct result of the actual performance of his duty. The court explained that no new evidence would be admitted and apparently stated that it would reexamine the evidence which the Board considered. Subsequently all of the evidence which was before the Board was admitted in evidence, including transcripts of the oral proceedings before the Board and a written statement of “Facts and Issue Before the Fire Pension Board,” which

The trial court found: (1) That the plaintiff was denied due process in that two of the members were not present during a portion of the time during which oral testimony before the Board was taken; (2) the Board should hear the matter de novo; and (3) that pending further action the Board should continue paying the smaller pension. The trial court thereupon remanded the entire matter to the Board. Both parties have appealed from the judgment. Plaintiff widow asserts that the trial court should have decided the case de novo on its merits, while the City urges that the trial court should not have remanded the matter to the Board but should have affirmed the Board’s findings and award.

The Issues

1. Is the Pension Board a quasi-judicial body?

2. What is the scope of review at the trial court level?

3. Was the plaintiff widow denied due process during the course of the hearing before the Board?

4. Should the trial court have granted the plaintiff the relief requested by her?

Contentions

The City contends that the Board was exercising judicial or quasi-judicial functions and that therefore the trial court was limited to a determination of whether the Board’s decision is supported by substantial evidence; that there was substantial evidence before the Board to support its determination that Chief Le Strange did not lose his life as the direct result of the actual performance of his duty; and that plaintiff was not denied due process by the Board.

The widow asserts that she was denied due process by the Board; that the trial court should have tried the case de novo on the merits because the Board does not have fact-finding powers; that the trial court should have decided the case in the interests of justice, having held a trial and received all of the evidence; that the Board acted under an erroneous interpretation of the law; and finally, that if it be determined that

Scope of Review

The appropriate method of reviewing the decisions or orders of local administrative agencies, whether involving judicial functions or not, is by mandamus. (Boren v. State Personnel Board, 37 Cal.2d 634 , 637 [ 234 P.2d 981 ] ; 2 Cal. Jur.2d § 220, p. 363; Code Civ. Proc., § 1094.5; 3 Within, Cal. Procedure, § 16, pp. 2484-2486.) The complaint in the instant case is, in form, simply one in a civil action and one for declaratory relief. While such a complaint is inappropriate for review of an administrative determination, it may be regarded as a petition for writ of mandate if it states a cause of action for mandamus. (Boren v. State Personnel Board, supra, p. 638; Hostetter v. Alderson, 38 Cal.2d 499 , 500 [ 241 P.2d 230 ].) The sufficiency of the complaint insofar as it states a cause of action has not been challenged by the City. Indeed, the complaint not only states facts entitling the plaintiff to some type of relief, but it also states sufficient facts to justify granting the relief sought. Accordingly, we shall here regard the complaint as a petition for writ of mandamus.

The inquiry on review in administrative mandamus proceedings extends to the questions: “(1) whether the respondent agency has proceeded without or in excess of jurisdiction ; (2) whether there was a fair trial; and (3) whether there was any prejudicial abuse of discretion. Abuse of discretion is established if (a) the respondent has not proceeded in the manner required by law, (b) the order or decision is not supported by the findings, or (c) the findings are not supported by the evidence.” (2 Cal.Jur.2d § 220, pp. 363, 364; see Code Civ. Proc., § 1094.5, subd. (b).) Where it is claimed that the findings are not supported by the evidence, abuse of discretion is established as follows: (1) In cases in which the court is authorized by law to exercise its independent judgment on the evidence, then if the court determines that the findings are not supported by the weight of the evidence; or (2), in eases where the court is not authorized by law to exercise its independent judgment on the evidence, then, if the court determines that the findings are not

Where local agencies or boards exercise judicial or constitutional quasi-judicial power the superior court in its review of the decisions of such agencies or boards is confined to determining whether there was substantial evidence before the agency or board to support its findings. (Thompson v. City of Long Beach, 41 Cal.2d 235 , 239-240 [ 259 P.2d 649 ] ; Corcoran v. San Francisco etc. Retirement System, 114 Cal. App.2d 738 , 740-741 [ 251 P.2d 59 ] ; Dornell v. Retirement Board, 72 Cal.App.2d 197 , 198-199 [ 164 P.2d 266 ]; Ballf v. Public Welfare Dept., 151 Cal.App.2d 784 , 788-789 [ 312 P.2d 360 ].) In cases where local agencies or boards cannot exercise such judicial powers, the superior court is authorized to exercise its independent judgment in a trial de novo and in its review has the right to judge of the intrinsic value of the evidence and to weigh it. (French v. Cook, 173 Cal. 126 [ 160 P. 411 ] ; Sheehan v. Board of Police Comrs., 197 Cal. 70 [ 239 P. 844 ] ; Mogan v. Board of Police Comrs., 100 Cal.App. 270 [ 279 P. 1080 ]: 3 Witkin, Cal. Procedure § 18, pp. 2488-2489.)

When the superior court has rendered its judgment on mandamus and the judgment is appealed, the power of the appellate court is governed by the substantial evidence rule, i.e., the determination of whether the evidence, viewed in the light most favorable to the respondent, sustains the findings of the trial court, resolving any reasonable doubts in favor of those findings. This rule obtains whether the appellate court is reviewing the findings of the trial court where the latter has exercised independent judgment or whether the findings involve the decision of a local administrative agency. In the former situation the appellate court is confined to the evidence received by the trial court; in the latter ease it is limited to the evidence in the agency record. (Endo v. State Board of Equalization, 143 Cal.App.2d 395 , 399 [ 300 P.2d 366 ] ; Corcoran v. San Francisco etc. Retirement System, supra, 114 Cal.App.2d 738 , 741; Moran v. Board of Medical Examiners, 32 Cal.2d 301 , 308-309 [ 196 P.2d 20 ]; Thain v. City of Palo Alto, 207 Cal.App.2d 173 , 193 [ 24 Cal.Rptr. 515 ].)

Is the Pension Board a Quasi-Judicial Body?

The trial court found that the plaintiff was denied due process because: two of the seven members of the Board who

A municipality may lawfully confer quasi-judicial powers on boards or commissions dealing solely with municipal affairs. This power is acquired by municipalities under Article XI, section 8%, subdivision 4 of the Constitution. (Dierssen v. Civil Service Com., 43 Cal.App.2d 53 , 60 [ 110 P.2d 513 ].) This provision of the Constitution does not, however, automatically confer quasi-judicial power upon local boards. A municipality must, by charter or ordinance, expressly or impliedly confer such power upon the board or the power does not exist. (Dierssen v. Civil Service Com., supra, 43 Cal.App.2d 53 , 61.)

Section 11 of the ordinance in question provides that in order to be awarded the pension therein provided for, satisfactory proof of the fact that a member lost his life as a direct result of the actual performance of his duty and that such a member left a surviving wife must be made to the Board. Section 19 of said ordinance provides that a written application for a claim on the retirement fund under any provisions of the ordinance must be filed; and section 20, thereof, provides for a hearing to the applicant upon notice with the right in the applicant to be present at the hearing and “to present such testimony, evidence or proof in support of his claim as may be necessary and proper under the terms of this ordinance.” The Board, pursuant to section 4 of said ordinance, is granted the power “To compel witnesses to attend and testify before the Board upon all matters con

The essential characteristic of the quasi-judicial body is its fact finding power and the concomitant requirement to make a determination or adjudication of fact in connection with matters properly submitted to it after a hearing. (Thompson v. City of Long Beach, supra, 41 Cal.2d 235 , 240; English V. City of Long Beach, 35 Cal.2d 155 , 158 [ 217 P.2d 22 , 18 A.L.R.2d 547 ] ; La Prade v. Department of Water & Power, 27 Cal.2d 47 , 51 [ 162 P.2d 13 ]; Ware v. Retirement Board, 65 Cal.App.2d 781 [ 151 P.2d 549 ]; Flaherty v. Board of Retirement, 198 Cal.App.2d 397 , 408-409 [ 18 Cal.Rptr. 256 ].) This essential is eminently met by the instant ordinance. Its provisions clearly indicate an intent to confer quasi-judicial powers upon the Board. The ordinance by its terms provides for a hearing and the giving of notice thereof; grants the Board the power to compel the attendance of witnesses and their examination under oath; requires the Board to keep records of its proceedings; and invests the Board with the duty of reaching a decision and communicating it to the applicant. These statutory requirements, duties and powers, when read in conjunction with section 11 which empowers the Board to order the payment of the pension therein provided “upon satisfactory proof” of the “facts” therein specified manifest a legislative intent that the Board should receive and weigh such facts, make an adjudication thereof, and thereupon grant the proper pension.

In Ware and Flaherty the local boards were found to possess quasi-judicial powers under laws which empowered them to grant retirement and pension benefits, respectively, upon evidence or proof “to the satisfaction” of the board. In Ware the San Francisco Charter provided that “ ‘ [t] he retirement board shall be the sole authority and fudge, under such general ordinances as may be adopted by the supervisors, as to the conditions under which members may receive and may continue to receive benefits of any sort under the retirement system,’ ” (P, 792; emphasis added.) An ordinance enacted

Considerable stress is placed by the widow upon French v. Cook, supra, 173 Cal. 126 , where the Supreme Court held that the board there involved did not have quasi-judicial powers. That case involved the terms of a city charter which provided for a pension to a widow of a police officer whose death was caused by an injury received while in the performance of his work. The board there had the power to administer oaths, to issue subpoenas, and to take and hear testimony concerning any matter pending before it, but as the Supreme Court noted, the charter made “no provision whatever as to any hearing or finding by the board.” (P. 127.) The essence of the holding in French is that the charter did not “confide to the board the power to finally determine any question of fact in connection with such a pension,” (p. 129) and that hence its functions were “really ministerial only....” (P. 130.) “These facts existing,” (i.e., the death of a policeman within one-year from an injury received in the performance of his duty), sai<i the court, “the plain duty to.make the provision exists,”

Cooper considered subdivision (a) of the same Government Code section which provides: “Where a contested case is heard before an agency itself, no member thereof who did not hear the evidence shall vote on the decision.” The question there presented involved a situation where an eight count accusation seeking to revoke the petitioner’s license as a drug-less practitioner was heard, and evidence taken thereon, before the Board of Medical Examiners. After such hearing five of the ten members of the board were replaced with five new members. Thereafter count nine was added to the accusation and a hearing was held by the newly constituted board and evidence taken on the new count. Three days later the board rendered its decision holding the petitioner guilty of unprofessional conduct as charged in counts seven and nine. The opinion in Cooper indicates that the new members of the board were acquainted with the record before the board as to count seven. The Supreme Court held that the requirements of due process were met because all the members of the board were acquainted with the record and each had exercised his own independent judgment in the case, notwithstanding that some of them were not physically present when the evidence as to count seven was produced.

The Morgan ease, which is often cited as authority for the principle that “he who decides must hear” is clearly distinguishable. There the decision was made by the Secretary of Agriculture who, while he assumed responsibility for the decision, did not hear or read any of the evidence or argument, but derived his sole information with respect to the proceeding from consultation with subordinates who had heard but who assumed no responsibility for the findings and decision.

The basis of the trial court’s decision in the instant case is that a member of the Board who had not heard all of the

The widow asserts that she was deprived of due process by the Board because of certain statements made by the four members, who voted against the pension under section 11, during the course of their deliberations in the meeting of May 29. The asserted deprivation of due process is predicated upon the deposition of Bird taken after the Board had made its findings and award. This deposition, which was admitted over the City’s objection, includes certain exhibits consisting of notes made by Bird during the course of said meeting and certain “rough minutes” prepared by him immediately after the meeting. The widow claims that these “rough minutes” are the “true minutes” of said meeting. These exhibits purport to contain statements which indicate the following occurrences : that two of the members were acting under a mistake of law as to the meaning of 1 ‘ death in line of duty ’ ’ under the ordinance; three of them expressed an opinion that the matter should be settled by the courts; and two of them expressed a concern for the precedent that would be set. The widow’s assertion of deprivation of due process was not presented to or considered by the court below. Moreover, it is not set out as an issue in the pretrial conference order. It is not, therefore, an issue in the ease, nor can it be raised for the first time on appeal. (City of Los Angeles v. County of Mono, 51 Cal.2d 843 [ 337 P.2d 465 ] ; Campbell v. Magana, 184 Cal. App.2d 751 [ 8 Cal.Rptr. 32 ].) We also note that the issue of due process which was ruled upon by the trial court, and discussed above, was not included as an issue in the pretrial conference order. In this instance, however, the parties have permitted the issue to be litigated and accordingly they cannot escape its consequences. (Collison v. Thomas, 55 Cal.2d 490 [ 11 Cal.Rptr. 555 , 360 P.2d 51 ].)

Suffice it to say, the widow has not supported her claim of lack of due process either by a showing or by citation of authority. Her arguments amount to a reiteration of her assertions as to the ministerial nature of the Board’s functions. These contentions have no relevancy to the area of due process. At best they amount to a claim of judicial error on the part of the Board in the exercise of its quasi-judicial functions. Such alleged error was not urged before, or considered by, the

Bach of the parties has given considerable attention to the admissibility of Bird’s deposition. This deposition was not admitted by the trial court as evidence to be considered by it in reviewing the Board’s determination but merely for “whatever it is worth” in throwing light on the meaning of the minutes of the meeting of May 29. As we have seen, the deposition was not considered by the court below in view of its holding that there was no meeting at all upon which minutes could be predicated. Accordingly, said deposition did not enter into the trial court’s decision and any error predicated thereon need not be considered by us. Upon the trial of the issue remaining before the trial court it may be confronted with the admissibility of said deposition in the light of said issue. This determination is for the trial court in the first instance under applicable legal principles. As we have pointed out above the official minutes of a board are not conclusive. Thus parol evidence is admissible to explain the meaning of an entry therein where such explanation is required. (Wes terman v. Cleland, supra, 12 Cal.App. 63 ); the minutes may be impeached by other evidence as to their accuracy or the credibility and weight to be given them (People v. Fairfield, 90 Cal. 186 [ 27 P. 199 ]; Swamp Land Dist. No. 307 v. Gwynn, 70 Cal. 566 [ 12 P. 462 ]) ; or the minutes may be contradicted by other evidence. (Swamp Land Dist. No. 307 v. Gwynn, supra; Lewetzow v. Sapiro, supra, 188 Cal.App.2d 841 .) Except for the purpose of explaining the official minutes, if that be necessary, we cannot see how Bird’s deposition can be used for any other purpose, because other

The judgment is reversed with directions to the trial court to proceed to determine whether the findings of the Board are supported by substantial evidence in the light of the whole record before the Board. Bach party shall bear his own costs on appeal.

Bray, P. J., and Sullivan, J., concurred.

A petition for a rehearing was denied December 26, 1962.