Los Angeles Fire & Police Protective League v. City of Los Angeles

• Decision Date: 21 January 1972
• Citation: Los Angeles Fire & Police Protective League v. City of Los Angeles, 99 Cal.Rptr. 908, 23 Cal.App.3d 67 (Cal. App. 1972)
• Court: California Court of Appeals
• Parties: LOS ANGELES FIRE & POLICE PROTECTIVE LEAGUE et al., Plaintiffs, Appellants, and Respondents, v. CITY OF LOS ANGELES et al., Defendants, Appellants, and Respondents. Civ. 37928.

Page 908

99 Cal.Rptr. 908

23 Cal.App.3d 67

LOS ANGELES FIRE & POLICE PROTECTIVE LEAGUE et al., Plaintiffs, Appellants, and Respondents, v. CITY OF LOS ANGELES et al., Defendants, Appellants, and Respondents.

Civ. 37928.

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

Jan. 21, 1972.

Rehearing Denied Feb. 9, 1972.

Hearing Denied March 16, 1972.

Kurlander, Solomon & Hart, and William A. Kurlander, Stephen Warren Solomon, Conrad Lee Klein, Santa Monica, and Ellis J. Horvitz, Los Angeles, for plaintiffs, appellants and respondents.

Roger Arnebergh, City Atty., John A. Daly, Executive Asst. City Atty., Jack L. Wells, Asst. City Atty., and John B. Rice Deputy City Atty., for defendants, appellants and respondents.

KINGSLEY, Associate Justice.

Plaintiff, League, sued in three counts on behalf of all uniformed police officers against the City of Los Angeles and Police Chief Davis to determine the rights of the police officers to compensatory pay including overtime for 45-minute lunch periods (known as 'Code 7' time) under Los Angeles City Ordinance number 137,042.

A trial was had and the court found that 'Code 7' time is on-duty time by reason of the restraints and obligations placed on uniformed police officers during that period and that the police officers were entitled to compensation for 22 1/2 minutes of their 45-minute lunch period. The city appeals from the entire judgment and plaintiffs appeal from that portion which denies compensation for the remaining 22 1/2 minutes of 'Code 7' time.

The Los Angeles Fire & Police Protective League is an employee organization as defined in the Meyers-Milias-Brown Act (Govt. Code, § 3500 et seq.) and it represents about 6,018 of the 6,076 members of the Los Angeles Police Department.

The salary ordinance for firemen and policemen, Ordinance No. 89,935, was amended by Ordinance No. 137,042, effective July 15, 1968. This amendment authorizes overtime compensation. Section (b) thereof defines regular hours for the police department as follows:

'Each member of the Police Department shall work two hundred sixty-one (261) days in each calendar year. Said work days shall be scheduled at such time during each month as the Chief of Police shall direct. Each member of the Police Department shall have eleven (11) days off duty each calendar year with full pay in lieu of holidays, said days off duty shall be taken at such time during each month as the Chief of Police shall direct.

'Each member of the Police Department shall be in actual attendance on duty a minimum of eight (8) hours every day except as otherwise prescribed and such eight (8) hour period on duty shall constitute one (1) day for the purpose of computing days off, vacation, sick leave, holidays and Ordinance time for such members.'

Section (c) entitled 'Definition of Overtime--Police Department,' defines overtime as follows:

'1. Except as otherwise provided, all hours worked in excess of eight (8) hours per day or in excess of the total number of hours included in regulary scheduled duty days during a calendar nonth as specified in Section 19 of this Ordinance shall be considered overtime including the following:

'(1) Hours worked by a member when on a day off in lieu of a holiday.'

Section 3 of Ordinance No. 137,042 amends subdivision (d) of section 20 of Ordinance No. 89,935 to read as follows:

'(d) Limitation on Use of Overtime. Except as provided in (b) 1(1) (b) 1(2), (b) 1(3), ¹ and (c) 1(1) above, use of overtime shall be limited to:

'(1) Purposes, the need for which could not be anticipated or scheduled in advance, and which are essential in meeting the appropriate department's responsibilities; or

'(2) Unusual major events, the occurrence of which is not subject to the control of the department and for which supplemental police or fire protection has been determined to be necessary by the appropriate board of commissioners.'

Section 4 determines the rate and method of compensation.

The provisions of Ordinance No. 89,935 were thereafter condified without substantive change as part of the Los Angeles Administrative Code, and the relevant provisions are sections 4.168--4.169. Section 4.168 provides that members shall be in attendance for an 8-hour work day except as otherwise prescribed, and the section is entitled 'Regular Hours of Work.' Section 4.169(c), entitled 'Overtime,' defines overtime and states 'except as otherwise provided' all hours worked in excess of 8 hours per day shall be considered overtime. Section 4.169(d) states that 'except as provided in (b) 1(1), (b) 1(2), (b) 1(3), and (c) 1(1) above,' use of overtime shall belimited to overtime purposes the need for which could not be anticipated or scheduled in advance, and to unusual major events, the occurrence of which is not subject to police department control. Section 4.169(e) provides for the rate ² and method of compensation.

Effective July 15, 1968, the city council and mayor authorized overtime for 1968--1970. Plaintiff League requested overtime pay for meal periods by letter to the board of police commissioners on November 14, 1968. On the request of then Chief Reddin for an interpretation, the city attorney issued an opinion on January 20, 1969, that officers were not entitled to overtime pay for meal periods. On January 29, 1969, the police commissioners denied the League's request. On June 2, 1969, a single claim was filed on behalf of all officers, and again on June 11, 1969. These claims were denied.

The evidence at the trial showed that the police officers on whose behalf this action is brought regularly serve a daily tour of duty covering 8 hours and 45 minutes. The purpose of this is to provide a 45-minute period at the beginning of each shift during which time any necessary briefing may be given before the previous shift ends its tour of duty. ³ The result is to have a 45-minute overlap, with the previous shift carrying on with its regular patrol or other duties while the incoming shift is being briefed, so that there is a continuous staffing in the field. The 'Code 7' time is taken, at a time prescribed by supervising authority, during the 8 hours which follow the briefing period. Since the 45-minute briefing period admittedly is 'working' or 'duty' time, the officers herein involved work a shift of 8 hours and 45 minutes if the 'Code 7' time also is 'working' or 'duty' time.

The evidence also shows that, by regulation and administrative practice, the officer is subject to substantial control and limitation on his freedom of action during the 'Code 7' time. The officers are subject to call by their superiors, they are required to respond to requests by citizens, they are required to respond to emergencies, they may not eat at home or at the home of a friend even with prior approval, the officers may not remove their guns or uniforms (except for hat and coat) when eating in a public place, they must inform 'communications' where they are eating so they can be reached, and supervisory approval is required to take a meal out of their area. As above indicated, they may take their 'Code 7' time only at a time approved by their superiors and not at any regularly scheduled time of day or night. Other restrictions exist.

I

Defendants contend that this is not a proper class action because there is no community of interest between all members of the class as to questions of law and fact. Defendants argue that, because there are 19 separate distinct and identifiable subgroups in the department, created by differing assignments and ranks, the community of interest is lacking. Class actions are predicated on an ascertainable class and a community of interest in law and fact. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732.) The requirement of a community of interest does not depend on an identical recovery (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 94 Cal.Rptr. 796, 484 P.2d 964), and there is a community of interest when each member can rely on adequate representation on equivalent facts and questions of law. (Daar v. Yellow Cab Co., Supra.)

In the instant case, there are common issues of law and fact applicable to all members of the class. For example, all members are claiming overtime compensation for 'Code 7' time under the same city ordinance, which presents a common question of law. Also, all members are claiming to be subject to many of the same restrictions and obligations during the 'Code 7' mealtime period, which presents common questions of fact. The minor differences in sub-groups as to assignments and ranks in no way detract from or effect the above common issues of fact and law. ⁴ A class action was proper.

II

Defendants claim the plaintiffs are guilty of laches in presenting their claim. However, even if defendants are correct that the defense of laches is available in the kind of action that is at bench, the trial court's findings that plaintiffs were not guilty of laches and that the city has not been prejudiced, are supported by substantial evidence. Laches consists of: (1) unreasonable delay and (2) acquiescence by or prejudice to the defendant. (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 82 Cal.Rptr. 337, 461 P.2d 617.) "In determining what will constitute such unreasonable delay, regard will be had to the circumstances which justify the delay, to the nature of the case and the relief demanded, and to the question whether the rights of the defendant, or of other persons, have been prejudiced by such delay." (Cahill v. Superior Court (1904) 145 Cal. 42, 46, 78 P. 467, 469.)

Plaintiffs prosecuted their action without unreasonable delay. The resolution authorizing overtime pay was passed in July 1968, and slightly less than 4 months later a letter was submitted requesting overtime pay. Two months later, on January 29th, the board of police commissioners denied the request. A single claim was filed on June 2, and a corrected one on ...