Abbott v. City of Los Angeles

• Decision Date: 19 February 1960
• Citation: 178 Cal.App.2d 204,3 Cal.Rptr. 127
• Court: California Court of Appeals Court of Appeals
• Parties: Ruth ABBOTT et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants and Respondents. Eva A. ADAMS et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants and Respondents. Margaret ABNEY, Special Administratrix, etc., et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants and Respondents. Margaret ABNEY, Special Administratrix, etc., et al., Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants, Respondents and Appellants. Catherine M. BEHRNS, as Administratrix, etc., et al., Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants, Respondents. and Appellants. Catherine M. BEHRNS, as Administratrix, etc., et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants and Respondents. Elizabeth M. MASON et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants and Respondents. Civ. 23791-23797.

Page 127

3 Cal.Rptr. 127

178 Cal.App.2d 204

Ruth ABBOTT et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants and Respondents.

Eva A. ADAMS et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants and Respondents.

Margaret ABNEY, Special Administratrix, etc., et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants and Respondents.

Margaret ABNEY, Special Administratrix, etc., et al., Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants, Respondents and Appellants.

Catherine M. BEHRNS, as Administratrix, etc., et al., Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants, Respondents. and Appellants.

Catherine M. BEHRNS, as Administratrix, etc., et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants and Respondents.

Elizabeth M. MASON et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, a municipal corporation, et al., Defendants and Respondents.

Civ. 23791-23797.

District Court of Appeal, Second District, Division 3, California.

Feb. 19, 1960.

Rehearing Denied March 17, 1960.

Hearing Denied April 13, 1960.

Kenneth Sperry, Long Beach, for appellants.

Roger Arnebergh, City Atty., Bourke Jones, John J. Tully, Jr., Asst. City Attys., Los Angeles, for respondents.

SHINN, Presiding Justice.

By five actions, which were consolidated for trial, a number of retired members of the police and fire departments of the City of Los Angeles (Abney, Behrns), and a number of widows of retired members (Abbott, Adams, Mason), sought to establish and enforce rights to a pension computed upon a fluctuating rather than a fixed basis.

In Abbott v. City of Los Angeles, 50 Cal.2d 438, 326 P.2d 484, a prior appeal, the Supreme Court held that amendments to the Los Angeles City Charter enacted in 1925, St.1925, p. 1085, substituting a fixed pension for a fluctuating pension were invalid as to the previously employed retired members, that similar charter amendments enacted in 1927, St.1927, p. 2020, were invalid as to the widows of such retired members, and that plaintiffs were entitled to receive fluctuating pensions. Judgments adverse to plaintiffs entered after a court trial were reversed with directions to the trial court to enter judgments in their favor for past due pension payments 'in accordance with the conclusions declared in the foregoing opinion, if the court finds that it can do so upon the present record, and, if not, then the court is directed to take such further evidence as may be necessary to compute the amounts due to each plaintiff, to make such computations, and thereupon to enter judgments accordingly.' 50 Cal.2d at page 468, 326 P.2d at page 502.

Pursuant to these directions and to plaintiffs' motions for entry of judgment the court took additional evidence, ¹ awarded a judgment to each plaintiff or to his legal representative and ordered payment of a fluctuating pension. We have for consideration cross-appeals by the city and by plaintiffs from certain judgments and parts of judgments to be described hereinafter.

We shall first discuss the appeals of the city from judgments in the Abney and Behrns cases entered November 13, 1958, determining that 14 of the 673 members in the former case and one of the 30 members in the latter case were entitled to receive a fluctuating pension and awarding past due pension payments to the members or to their legal representatives. ²

The complaints in Abney and Behrns alleged that each of the plaintiffs appearing therein had been duly employed and appointed to a position in either the police or fire department of the City of Los Angeles prior to July 1, 1925, which was the effective date of the 1925 charter amendments. Charter of 1925, art. XXXII, sec. 435, Stats.1925, p. 1151. The truth of these allegations was expressly admitted in the answers filed by the city. Upon the first trial, the court found that each member served continuously from the date of his employment until the date of his retirement. In upholding the right of each member to receive a pension computed upon a fluctuating basis, the Supreme Court ruled that the change from a fluctuating to a fixed pension constituted an unreasonable and invalid modification of the members' vested contractual rights. However, it is now contended by defendant that the pension rights of the above-listed 15 of the retired members are governed by the 1925 amendments.

The name, rank, aggregate period of service and the date of the employment and retirement of each member plaintiff were set out in lengthy exhibits attached to the complaints in the Abney and Behrns cases; the exhibits also listed the amount of the fixed monthly pension currently being paid to each plaintiff, the amount allegedly due and the total amount of past due pension payments sought to be recovered. By stipulation of the parties prior to the first trial, the exhibits were amended to correct factual errors contained therein. The stipulations also provided: 'It is further stipulated and agreed that the foregoing stipulation is subject to the right of either party to have corrections made of any further errors which may be discovered by either of the parties hereto.'

At the hearing upon plaintiffs' motions for entry of judgment following the decision of the Supreme Court, defendant made a motion to amend the stipulations correcting the exhibits and the corrected exhibits; the motion related to the fourteen pensioners in Abney and the single pensioner in Behrns. The proposed amendments were as follows: (1) Three of the pensioners were firemen in the employ of the City of Venice on July 1, 1925 and did not become employes of the City of Los Angeles until the cities were consolidated nearly five months later; (2) The remaining twelve pensioners had resigned from their positions with the City of Los Angeles and were reappointed subsequent to July 1, 1925. Over plaintiffs' objections the motion was granted and defendant was permitted to introduce in evidence the service records of the fifteen pensioners. The evidence received at the hearing established, as to each of the resigned employes, that he was restored to a civil service eligibility list at his own request and without examination after July 1, 1925, that he was appointed to a position from the list, and that he served another probationary period as a new employe of the city. As to the Venice employes, the evidence established that the City of Los Angeles took over and operated the existing fire stations in the Venice area. Upon his becoming eligible for retirement, an irrevocable certificate of service was issued by the pension board to each of the fifteen giving him full credit toward his retirement pension for time served prior to July 1, 1925 as an employe either of the City of Venice or of the City of Los Angeles.

The court entered judgments in favor of the fifteen upon a theory that defendant is estopped from denying them a fluctuating pension. The grounds of estoppel were that the members were given credit for time served prior to July 1, 1925 in determining their pension rights and that they relied on the service certificated issued by the city in applying for a pension.

It is clear that the twelve resigned members lost their right to receive a fluctuating pension by reason of their resignations. The voluntary resignation of a municipal employe terminates all rights and duties of his employment and upon a rehiring he enters into a new contract with his employer. 62 C.J.S. Municipal Corporations § 732, pp. 1502-1503; Board of Trustees of Firemen's Pension Fund v. State, 205 Ind. 557, 187 N.E. 330, 89 A.L.R. 680; Doering v. Hinrichs, 289 N.Y. 29, 43 N.E.2d 709. Although the members had a vested right to a fluctuating pension by virtue of their original contracts of employment they lost it by quitting their positions before completion of the period of service necessary to qualify them for retirement. Kern v. City of Long Beach, 29 Cal.2d 848, 853, 179 P.2d 799; Board of Trustees of Firemen's Pension Fund v. State, supra, 205 Ind. 557, 187 N.E. 330. The rule is manifestly a fair one. If it were otherwise, then an employe appointed while a fixed pension plan was in force and who later resigned and was reappointed under a new contract providing for a fluctuating pension would be compelled to accept a fixed pension upon retirement.

It is also clear that the three former Venice employes acquired no pension rights from the City of Los Angeles before the change to a fixed pension plan and that their right to receive a pension is governed by the charter provisions in effect at the time of their employment by defendant.

But the pensioners urge that the court was required to award them a fluctuating pension even though the evidence adduced at the hearing conclusively established that they are not entitled to one. They contend that the decision on the prior appeal is res judicata as to the right of all plaintiffs in the five cases to receive a pension on a fluctuating basis, that the re-trial was ordered for the sole purpose of determining the amount of money to be awarded to each, and that had the trial court given effect to the evidence destructive of their right of recovery it would have exceeded the limited power conferred on it by the terms of the remittitur. If this construction of the remittitur were the correct one, we would, of course, be without power to disturb the judgments. However, we do not believe that it is the correct construction. We cannot agree that the decision of the Supreme Court must be interpreted in so narrow a fashion.

The question whether the fifteen pensioners had served continuously with the city was not in issue before the Supreme Court and that court was not called...