McDaniel v. City & County of San Francisco

ment System. There he learned that a portion of his retirement refund had been sent to the superior court. A warrant for the remainder of his contributions was tendered to him, but he refused to accept it. He informed the clerk in the office that he “. . . didn’t want the money, because my case was being appealed, and chances are I would get reinstated by the railway, and I wanted the money -to remain in the Retirement System. ’ ’

(9) June 30, the superior court ordered the funds in its possession paid over to the attaching creditor. This payment was made without appellant’s knowledge.

(10) July 8, appellant’s attorneys notified the Retirement System of the rescission of his request to withdraw his retirement funds. His attorneys requested prompt action and noted that a levy had been made upon the controller, and that there was danger some of the funds might be paid over under the levy unless speedy action was taken. At the same time appellant notified the Retirement System of his appeal.

(11) March 22, 1965, the Civil Service Commission ordered appellant reinstated with back pay from the date of his dismissal, less amounts earned while discharged.

The respondent city did not pay the back wages ordered by the Civil Service Commission. It asserts that appellant is deficient in his retirement fund contributions because of the money withdrawn by appellant and seized by his creditor, and that this amount should be set off against the amount of back wages found due under the Commission’s order.

On the facts recited, the trial court found that appellant was indebted to the city’s retirement fund in the amount of $4,708.92 and that the city was entitled to set off this amount against any back wages due him. Accordingly, the court denied the writ. We conclude that the trial court’s judgment is correct, and therefore affirm.

One of the essential conditions for issuance of the writ of mandate is a showing on the part of the applicant that he has a clear legal right to the performance of the act the writ would compel. (Consumers Salt Co. v. Riggins, 208 Cal.. 537 , 543 [ 282 P. 954 ]; 32 Cal.Jur.2d, Mandamus, §6, p. 122; 3 Witkin, Cal. Procedure (1954)-Extraordinary Writs, §40, p. 2520.) Moreover, the writ is an equitable remedy, and will not always issue as a matter of right. (Sutro Heights Land Co. v. Merced Irr. Dist., 211 Cal. 670 , 704-705 [ 296 P. 1088 ]; Wallace v. Board of Education, 63 Cal.App.2d 611 ,

Code of Civil Procedure, section 710 establishes a procedure for enforcing money judgments against a debtor to whom money is owed by the state or a political subdivision thereof.' Insofar as applicable here, the statute allows the judgment' creditor to file an abstract of judgment with the city auditor,together with an affidavit stating the amount due, and thereupon makes it the duty of the auditor to forward to the court which issued the abstract of judgment an amount sufficient to pay the claim, or a part thereof equal to no more than one-half of the debtor’s salary or wages owing by the city to the debtor for personal services rendered within 30 days of the levy.

One of appellant’s prime contentions is that the retirement contributions paid into court by the auditor were not monies “owing and unpaid” to him within the meaning of section 710, because petitioner was not entitled to have his retirement contributions paid to him while the appeal from his discharge was pending. We find no merit in this ground of appeal.

In our opinion, appellant’s retirement contributions were “owing and unpaid” from the time of his discharge on May 21, or, at the very latest, from May 26, when he demanded a refund of his contributions in writing. The city had received his contributions over a period of years and was bound to account to him for them if for any reason his pension rights did not mature. (S.F. Charter § 165.2(F).) This was an existing and unsatisfied legal liability on the part of the city. (See Department of Water & Power v. Inyo Chemical Co., 16 Cal.2d 744 , 751 [ 108 P.2d 410 ], and cases cited.) It is true that two. days before the controller paid the funds into court, appellant appealed his discharge. But he did not revoke his demand for a refund of his retirement money or notify the

Appellant’s reliance upon Credit Bureau of San Diego, Inc. v. Getty, 61 Cal.App.2d Supp. 823 [ 142 P.2d 105 ] is misplaced. In that case a court deposited bail money with the county treasurer. A creditor of the defendant for whom it was deposited attempted to reach it under Code of Civil Procedure, section 710. The court pointed out that the bail money was not money owing by any city or county within the meaning of the statute and that it could not be reached by the statutory procedure. In Credit Bureau of San Diego, Inc. the funds, although in possession of the county, were subject to disposition by the court and not by the board of supervisors. Here, however, all money in the Retirement System is under the control of the city, although the fund is administered by the system as an agency of the city government. As we have already pointed out, the charter itself makes an employee’s contributions refundable to him if for any reason he ceases to be a city employee before his pension is due. Thus, the monies requested by appellant after his discharge and before his appeal were clearly monies “due and owing” by the city to the employee.

Nevertheless appellant argues that the city breached a statutory duty to notify him that his wife had levied upon his funds. The sum of his argument is that if he had been notified in time he could have taken steps to revoke his claim for a refund before the auditor sent the money to the court, or claim an exemption under Code of Civil Procedure, section 690. (See, e.g., Code Civ. Proc., § 690.23.) Perhaps appellant could have successfully contested the claims of his wife and the rights of his children if he had been forewarned. But appellant set the machinery in operation to obtain his money. This began on May 26, when he demanded a refund of his contributions. The creditor’s levy arrived on June 8th, but it was not until June 19th, when the Retirement System sub

Although section 710 provides a summary adversary proceeding in the superior court for one whose funds are attached while in the hands of a governmental unit (see Code Civ. Proc., §690.26), it imposes no duty on the auditor or controller to notify the debtor of the garnishment. The Legislature could have inserted such a requirement in the detailed provisions for proceeding under section 710 if it had so desired, and it may do so at any time. As drafted, however, it is significant that the statute merely requires that the controller or auditor forward the funds to the court, withholding only a wage exemption (Code Civ. Proc., §710, subd. 2). The purpose of providing a special garnishment procedure in the superior court where governmental units are involved is clearly to shift to the court the burden of adjudicating any claims of exemption which may arise and to insulate the governmental units from liability for wrongful payments to garnishing creditors. To hold the city and county liable in this case would thus defeat the purpose of section 710. Whether the garnishing judgment creditor or any other person has a duty to notify the judgment debtor of the proceedings in the superior court is a question not properly before us on this appeal.

We recognize that, under some circumstances, it has been held that a garnishee, who knows that the property levied on is subject to a claim of exemption and that the judgment debtor is ignorant of the levy, has a duty, whenever practicable, to notify the debtor of the garnishment, so that the latter may have the opportunity to claim his exemption if he desires. (Agnew v. Cronin, 148 Cal.App.2d 117 , 126 [ 306 P.2d 527 ] ; Hing v. Lee, 37 Cal.App. 313 , 317-318 [ 174 P. 356 ] ; Harris v. Balk, 198 U.S. 215 , 217 [ 49 L.Ed. 1023 , 1024, 25 S.Ct. 625 ].) But we do not think that rule is applicable where the garnishee is a governmental unit or a public officer and section 710 is involved.