Collier v. City of Pasadena

• Decision Date: 11 May 1983
• Citation: 142 Cal.App.3d 917,191 Cal.Rptr. 681
• Court: California Court of Appeals Court of Appeals
• Parties: Sammy L. COLLIER, Petitioner and Appellant, v. CITY OF PASADENA; Fire and Police Retirement System of the City of Pasadena; Fire and Police Retirement Board of the City of Pasadena, Respondents and Respondents. Civ. 66284.

Page 681

191 Cal.Rptr. 681

142 Cal.App.3d 917

Sammy L. COLLIER, Petitioner and Appellant, v. CITY OF PASADENA; Fire and Police Retirement System of the City of Pasadena; Fire and Police Retirement Board of the City of Pasadena, Respondents and Respondents.

Civ. 66284.

Court of Appeal, Second District, Division 7, California.

May 11, 1983.

As Modified May 25, 1983.

[142 Cal.App.3d 919] Joseph Posner, Los Angeles, for petitioner and appellant.

Evelynn M. Finn, City Atty., City of Pasadena, for respondents and respondents.

Kegel, Tobin & Hamrick and Charles H. Carpenter, Los Angeles, for respondents and respondents.

JOHNSON, Associate Justice.

Two issues are presented in this case. The major question is whether filing a workers' compensation claim equitably tolls a statute of limitation for filing a disability pension claim arising out of the same disabling injury. The second issue is whether an action in the nature of administrative mandate is timely when filed more than three years after the administrative decision but less than three months after the petitioner became aware of that decision. In the circumstances of this case, we hold, first, the statute of limitations was equitably tolled on the disability pension claim and, secondly, the action to review the administrative decision denying that claim was timely.

I. SUMMARY OF FACTS ¹ AND PROCEEDINGS BELOW

Sammy Collier, then 24, was hired as a Pasadena fireman in October 1971. On that date he also automatically became a member of the Pasadena Fire and Police Retirement System. This system guaranteed Collier immediate pension protection for employment-related disabilities. Nearly four years later, on August 30, 1975, he was injured while fighting a fire in Pasadena. Within two months Collier filed a workers' compensation claim for employment-related disabilities suffered in the August 30 fire.

On January 16, 1976, Collier and Ernest Boerner, a lawyer hired to handle his workers' compensation claim, met with the Pasadena Fire Chief and a Pasadena Deputy City Attorney. These officials informed Collier the city intended to discharge him because he was no longer able to function as a fireman. There is nothing in the record to suggest the fire department offered him continued employment in a light duty assignment. Instead the fire chief advised Collier he was not entitled to a disability pension because he had not been employed long enough. ² However, the fire chief did promise to send a letter to the retirement board advising it of Collier's termination.

Collier was terminated from the Pasadena Fire Department effective January 16, 1976. A copy of this termination letter was sent to the retirement board. Two months later the retirement board sent a pension application form to Collier. This form was silent as to when the application had to be filed. Nonetheless, Collier completed the form requesting a disability pension and turned it over to his lawyer, Boerner, on March 26, 1976. Boerner did not file the disability application at this time.

During the ensuing months, the city prepared its defense against the workers' compensation claim. The city contended Collier's disabilities, if any, were not related to his employment. Several medical doctors chosen by the city examined Collier. In addition, the city was supplied with the results of examinations by doctors treating Collier's physical and mental conditions.

On April 29, 1977, while the city was still contesting Collier's workers' compensation claim, the staff of the city's retirement board prepared a form purporting to request a refund of Collier's accumulated pension Collier's pension application form was considered at a retirement board meeting September 12, 1977. Collier was not notified of the meeting. Nor was he advised of his right to present evidence or argument to the board. "On advice of the City Attorney" (whose office was still contesting Collier's workers' compensation claim at that time), the retirement board denied the disability pension claim "on the grounds that at the time of filing he was not a member of this system." The board's secretary was instructed to advise Collier of this action, but failed to do so then or later.

contributions. This [142 Cal.App.3d 921] form was never submitted to Collier nor signed by him. Instead it was "ratified" by the retirement board itself on May 9, 1977. Pursuant to this "request" a $5,291.57 check was mailed to Collier. He received the check but did not cash it. Rather his lawyer, Boerner, transmitted the disability pension application form to the city's retirement board on August 20, 1977.

Over a year after the retirement board meeting, October 23, 1978, the workers' compensation case was finally concluded, some three years and two months after Collier's initial injury. This "Compromise and Release" resulted in a $22,000 payment to Collier, equivalent to a finding of 60% permanent disability. Collier's attorney, Boerner, died in January 1980. As of that time neither Collier nor his attorney had yet heard from the city's pension retirement board about its disposition of the disability pension claim.

Collier learned some months later of Boerner's death. He quickly retained a new lawyer, Joseph Posner, specifically to look into the disability pension claim. From April through July 1980, Posner sought to file a pension claim, first with the Public Employees Retirement System (PERS) and then with the Pasadena Fire and Police Retirement System. Ultimately, on July 30, 1980, the city attorney sent a letter denying Collier's claim. This rejection rested on the new defense that Collier's application had not been timely filed. A week later Posner was given access to the city's file on the Collier case. For the first time, he and Collier learned of the September 12, 1977, action of the retirement board rejecting Collier's disability application form.

Two and a half months after discovering the city had rejected Collier's application form, October 30, 1980, Posner filed a Petition for Peremptory Writ of Mandate against the City of Pasadena and its fire and police retirement system and board. On December 16, 1980, Pasadena's demurrer was sustained with leave to amend. On January 14, 1981, Collier filed a "First Amended" Petition and Complaint. This pleading added a claim for damages under 42 U.S.C. 1983 to the request for writ of mandate. This amended pleading, in turn, was subjected to a demurrer from the City of Pasadena. On March 10, 1981, the court sustained the demurrer without leave to amend as to the Petition for Writ of Mandate but without prejudice to asserting the damage claims in an appropriate manner. On March 27, 1981, the "First Amended" petition was dismissed pursuant to the demurrer on the specific ground this petition "shows on its face that the action is barred by the statute set forth in Pasadena Municipal Code section 2.54.150, subdivision d, ...."

On April 15, 1981, Collier filed a timely notice of appeal in forma pauperis. Appellant's opening brief was filed on September 20, 1982. An application to extend time for filing respondent's brief was granted and that brief was received on January 3, 1983. Appellant's closing brief followed on January 19, 1983. The appeal was transferred to this division on February 9, 1983.

II. THE DOCTRINE OF EQUITABLE TOLLING APPLIES TO COLLIER'S DISABILITY PENSION CLAIM

Collier's own alleged facts reveal his lawyer did not file the application for disability pension until August 20, 1977. This date was nearly two years after the fire which caused his disabling conditions; nineteen months after he was terminated from employment as a firefighter; and, nearly seventeen We first briefly rehearse the evolution of the "equitable tolling" doctrine in California, including the three prerequisites currently required for invocation of the doctrine. We then apply this three-pronged test to Collier's inter-related claims for workers' compensation and disability pension from the City of Pasadena.

                months after he received the blank application form from the city.  Pasadena ordinances require proceedings for disability pensions to be commenced within six months "from the date of the injury or illness or the date the right accrued." 3  These facts form the basis for the trial court's order sustaining a demurrer against Collier's petition for the express reason that "on its face" Collier's petition demonstrated he failed to file within the statutory period created by Pasadena's ordinance.  However, "on its face" the complaint also alleges facts which raise the possibility Pasadena's statute of limitations was "equitably tolled" during the pendency of the worker's compensation proceeding
                

A. The Prerequisites and Policies of the Doctrine of Equitable Tolling

The "equitable tolling" doctrine is a recent innovation in California law. It evolved quickly and quietly during the 1970's out of other related rationales for tolling statutes of limitation. Yet the doctrine can be traced back at least to 1944 and a decision of the United States Supreme Court, Telegraphers v. Ry. Express Agency (1944) 321 U.S. 342, 64 S.Ct. 582, 88 L.Ed. 788. In that case the Court tolled the statute of limitations for a court action during the pendency of a lengthy administrative proceeding over the same claim for wages. Twenty years later, in Burnett v. New York Central R. Co. (1965) 380 U.S. 424, 434, 85 S.Ct. 1050, 1057, 13 L.Ed.2d 941 the Supreme Court first articulated a rationale for the doctrine, "Congress would not wish a plaintiff deprived of his rights when no policy underlying a statute of limitations is served in doing so." (380 U.S. at 434, 85 S.Ct. at 1058.)

The precursors of equitable tolling in California can be found in three lines of cases. Prior to the 1970's, statutes of limitation had been tolled when a plaintiff filed a case which promised to lessen the damages or other harm that might have to be remedied through...