Anderson v. City of Los Angeles

• Citation: 106 Cal.Rptr. 299,30 Cal.App.3d 219
• Court: California Court of Appeals Court of Appeals
• Decision Date: 26 January 1973
• Parties: Leo M. ANDERSON, Plaintiff and Respondent, v. CITY OF LOS ANGELES, etc., et al., Defendants and Appellants. Civ. 40168.

Page 299

106 Cal.Rptr. 299

30 Cal.App.3d 219

Leo M. ANDERSON, Plaintiff and Respondent, v. CITY OF LOS ANGELES, etc., et al., Defendants and Appellants.

Civ. 40168.

Court of Appeal, Second District, Division 4, California.

Jan. 26, 1973.

Hearing Denied March 21, 1973.

Roger Arnebergh, City Atty., James A. Doherty, John Daly, Asst. City Attys. Siegfried O. Hillmer and Arthur D. Rutledge, Deputy City Attys., for defendants and appellants.

Lemaire & Faunce and Edward L. Faunce, Los Angeles, for plaintiff and respondent.

DUNN, Associate Justice.

On June 15, 1971 plaintiff filed a verified petition for a peremptory writ of mandate. ¹ (Code Civ.Proc. §§ 1084--1087.) Named as defendants were the City of Los Angeles, the Board of Administration of the City Employees' Retirement System, and the manager-secretary of the Board. This is an appeal by those defendants from a judgment which ordered issuance of a peremptory writ of mandate, commanding them to consider and act upon the merits of plaintiff's application for disability retirement benefits.

Plaintiff's petition alleged: he was a member of the city employees' retirement system; on August 15, 1969, he injured his knee while working for the Public Works Department of the city; thereafter he worked for the city intermittently through January 28, 1970, when he telephoned his supervisors and informed them that he was 'sick because of his knee'; on May 15, 1970, plaintiff was given a notice of discharge by the city specifying as the ground for discharge that he had been absent without valid leave since January 28, 1970; on May 19, 1970, plaintiff filed an appeal of the discharge with the Board of Civil Service Commissioners; on June 3, 1970, plaintiff was granted a hearing on the appeal which hearing took place September 30 and October 1, 1970; on two occasions during September and October 1970 plaintiff requested that defendant board of administration permit him to file an application for disability retirement but on each occasion the request was denied; on October 30, 1970, the Board of Civil Service Commissioners upheld plaintiff's discharge; on the same date plaintiff sent a letter to defendant board, again requesting that he be allowed to file an application for disability retirement benefits; on November 6, 1970 plaintiff received a letter from the city attorney informing him that his application was barred because not filed within 6 months after discontinuance of his service with the city, as required by § 510 of the city charter; plaintiff was further informed that if he filed an application, the city attorney would advise defendant board to deny it because not timely filed; nevertheless, on February 1, 1971 plaintiff filed an application for disability retirement; on March 9, 1971, defendant board denied the application on the ground it was not timely filed under § 510.

Plaintiff further alleged: his service with the city was not discontinued until October 30, 1970, when defendant board upheld his discharge for which reason his application for disability retirement was filed within the six-month period prescribed by § 510; plaintiff had no adequate remedy at law and would suffer irreparable injury by the loss of his disability pension unless defendants were ordered to accept and act upon his application.

Defendants filed an answer admitting most of the factual allegations of the petition, but denying that plaintiff's application for disability retirement was timely filed under § 510. In this regard defendants alleged that § 510 must be construed with § 501 of the city charter, which defines 'service' or 'city service' to mean only those periods within which a member of the retirement system received compensation from the city as an employee. The answer further alleged: January 27, 1970, was the last day plaintiff was on the city payroll; on May 20, 1970, plaintiff was given the notice of discharge, effective as of May 15, 1970; the city attorney at no time advised plaintiff not to file an application for a disability pension.

Following the filing of the answer, plaintiff noticed a motion, to be heard November 10, 1971, for issuance of a peremptory writ of mandate which would command defendants to accept and act upon his application for disability retirement. (Code Civ.Proc. § 1088.) The motion was heard. The verified pleadings, declarations and attached exhibits were received in evidence by reference.

Findings of fact and conclusions of law were signed and filed, the court finding: under § 510 of the city charter, which requires that an application for disability retirement be filed within 6 months 'after the discontinuance of the service' of a city employee, some action by the city is required in order to effectuate the discontinuance; such action was taken by the city when it issued to plaintiff a notice of discharge on May 20, 1970; plaintiff appealed his discharge to the civil service commission which, after a hearing, issued a ruling on October 30, 1970; plaintiff's application for disability retirement was filed February 1, 1971. The court drew the following conclusions of law: plaintiff acted reasonably in appealing his discharge; under Myers v. County of Orange, 6 Cal.App.3d 626, 86 Cal.Rptr. 356 (1970) the six-month period specified in § 510 began to run November 1, 1970; thus, plaintiff's application was timely filed and defendants were under a duty enjoined on them by law to consider the merits of the application.

Appellants contend the trial court erred in its interpretation of § 510 of the city charter. Section 510 is found in article XXXIV ('City Employees' Retirement System') of the charter, and provides in part: 'A. Any member (of the retirement system) who has five (5) or more years of continuous service and who has become physically or mentally incapacitated and who is incapable, as a result thereof, of performing his duties, may be retired upon written application of such member . . .. Any such Written application may be made at any time within, but not exceeding, six months after the discontinuance of the service of such employee . . ..' (Emphasis added.) Appellants argue that the meaning of 'service,' as used in the italicized portion of § 510, is as defined in § 501, which provides in pertinent part: 'For the purpose of this Article (XXXIV), the following words and phrases shall have the meaning ascribed to them in this section unless a different meaning is clearly indicated by the context: . . . 'City Service' or 'Service': Shall mean only those periods during which a member received compensation from the city as an employee or during which he not only received Workmen's Compensation benefits (Div. IV, Labor Code) for temporary disability on account of any injury or illness arising out of and in the course of his employment with the city but for which he also made contributions to the fund as provided in this Article. . . .'

Based upon this definition of service, appellants contend that the term, 'discontinuance of . . . service,' in § 510 must be construed to mean the last date on which an applicant for disability retirement was on the city payroll; that since this date in respondent's case was January 27, 1970, ² and his application for disability retirement was filed more then 6 months thereafter, the application was barred.

There is no rule of interpretive law which requires the same meaning to be given to the same word when used in different places in the same statute. (Lambert v. Conrad, 185 Cal.App.2d 85, 95, 8 Cal.Rptr. 56 (1960).) When the occasion demands it, the same word may have different meanings to effectuate the intention of the act in which the word appears. (Wall v. Board of Directors, 145 Cal. 468, 473, 78 P. 951 (1904).) 'It is a cardinal rule, to be applied to the interpretation of particular words, phrases, or clauses in a statute, . . . that the entire substance of the instrument or of that portion thereof which has relation to the subject under review should be looked to in order to determine the scope and purpose of the particular provision therein of which such words, phrases, or clauses form a part, and in order also to determine the particular intent of the framers of the instrument in that portion thereof wherein such words, phrases, or clauses appear.' (Wallace v. Payne, 197 Cal. 539, 544, 241 P. 879, 881 (1925).) Section 501 recognizes these principles, by providing that the words and phrases therein 'shall have the meaning ascribed to them in this section Unless a different meaning is clearly indicated by the context.' (Emphasis added.)

Article XXXIV sets up a retirement system and establishes a fund out of which benefits are paid to city employees upon retirement. (§§ 500, 504.) Every employee is a member of the system and is required to contribute a portion of his salary to the fund. (§§ 502, 507.) A member receives benefits from the fund after completing the minimum number of years of service entitling him to retire, and his benefits are based upon the accumulated contributions at the time of his retirement. (§ 508.) In this context, the word 'service' obviously has the meaning ascribed to it in § 501, I.e.: 'those periods during which a member received compensation from the city as an employee.'

However, it is by no means clear that 'service' has this same meaning in the phrase 'discontinuance of . . . service' which appears in § 510. Contrary to appellants' contention, this language is ambiguous, and hence is subject to judicial construction. (See: Gibson v. City of San Diego, 25 Cal.2d 930, 933--935, 156 P.2d 737 (1945).) Such language must be construed in context, keeping in mind the nature and...