DeCelle v. City of Alameda

• Court: California Court of Appeals
• Writing for the Court: SHOEMAKER; AGEE
• Citation: 34 Cal.Rptr. 597,221 Cal.App.2d 528
• Parties: Robert E. DeCELLE, Plaintiff and Respondent, v. CITY OF ALAMEDA, a municipal corporation, the Pension Board of Said City of Alameda, and Franz S. Collischonn, H. D. Weller, Richard S. Diament, Malcolm McGown and Edward N. Souza, as trustees constituting said Pension Board, Defendants and Appellants. Civ. 21078.
• Decision Date: 25 October 1963

Page 597

34 Cal.Rptr. 597 221 Cal.App.2d 528 Robert E. DeCELLE, Plaintiff and Respondent,
v.
CITY OF ALAMEDA, a municipal corporation, the Pension Board of Said City of Alameda, and Franz S. Collischonn, H. D. Weller, Richard S. Diament, Malcolm McGown and Edward N. Souza, as trustees constituting said Pension Board, Defendants and Appellants. Civ. 21078. District Court of Appeal, First District, Division 2, California. Oct. 25, 1963.
Rehearing Denied Nov. 5, 1963.

Page 598

[221 Cal.App.2d 530] Donald A. Way, Acting City Atty., Frederick M. Cunningham, City Atty., Alameda, for appellants.

J. W. O'Neill, Oakland, for respondent.

SHOEMAKER, Presiding Justice.

This is an appeal by the City of Alameda, the Pension Board of the City of Alameda, and the individual members of said pension board, from a judgment directing them to pay respondent Robert

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E. DeCelle, for the duration of his lifetime, a monthly pension in an amount [221 Cal.App.2d 531] equal to 13/50ths of the monthly salary being paid to members of the City of Alameda Fire Department holding the rank of lieutenant.

The facts are undisputed. Respondent entered the employ of the City of Alameda Fire Department on December 12, 1941, and was continuously so employed until he was dismissed for insubordination on April 21, 1955. However, respondent performed no actual work for the city after January 27, 1955. On January 31, 1955, respondent commenced employment for the Civil Service Employees' Insurance Company upon a full time basis.

On April 1, 1955, respondent went on sick leave, and on April 6, 1955, respondent received a written order from the Alameda Fire Chief directing him not to engage in any outside employment while he was on sick leave and receiving his sick benefits. On April 19, 1955, the fire chief sent respondent certain written interrogatories. Respondent replied thereto, admitting that he was still on sick leave from the city, and that he was still working full time for the Civil Service Employees' Insurance Company. On April 21, 1955, respondent wad dismissed from service for insubordination. Respondent thereafter appealed the order of dismissal to the Civil Service Board of the City of Alameda. On December 10, 1957, the board, after hearing, found that respondent's refusal to discontinue his outside employment while receiving sick benefits constituted insubordination and that his dismissal therefor was proper.

On April 7, 1961, respondent applied to the pension board for a pro rata pension under in Alameda ordinance authorizing the payment of such a pension to members of the police and fire departments who had been discharged from employment after serving 10 or more years. Section 17 of the ordinance then in effect (No. 1079 N.S.) specifically provided that members who had served the required number of years but who had been discharged for 'neglect of duty, insubordination, conviction of a felony, conviction of a misdemeanor involving moral turpitude, or any act or conduct which impairs the efficiency or discipline of the department' were not eligible for such a pension. Although respondent's dismissal was for one of the excepted reasons, he contended that his right to a pro rata pension was required to be determined under Ordinance No. 276 N.S., the ordinance in effect at the time he was employed by the city, rather than under the subsequently enacted Ordinance No. 1079 N.S. Pursuant to [221 Cal.App.2d 532] section 5 of Ordinance No. 276 N.S., a member of the police or fire department who was discharged after 10 years of service was entitled to a pro rata pension unless his discharge was for 'conviction of a felony; notorious or consecutive insubordination or neglect of duty.' (Emphasis added.)

On April 26, 1961, the pension board conducted a hearing on respondent's pension application and concluded: that respondent's pension rights were barred by the statute of limitations; that respondent's dismissal for insubordination had been upheld by the Civil Service Board and that said determination was final; that respondent was guilty of insubordination in refusing to refrain from engaging in outside employment while receiving full time sick leave pay from the City of Alameda.

On October 27, 1961, respondent petitioned the Superior Court of Alameda County for a writ of mandate compelling the City of Alameda to pay him a pro rata pension. The superior court issued the alternative writ and, after conducting a hearing, made the following findings of fact: that respondent was not barred by the statute of limitations; that the Civil Service Board's determination of insubordination was not final and was subject to review by the court; that respondent's failure to give up his outside employment while receiving sick pay benefits did not

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constitute insubordination; that respondent was entitled to have his pension rights determined under former Ordinance No. 276 N.S.; that the findings of the pension board, in denying respondent a pro rata pension, were unsupported by and contrary to the evidence. On June 18, 1962, the court entered judgment granting a peremptory writ of mandate compelling the payment of the pension prayed for.

Appellants first contend that the trial court erred in finding that respondent's cause of action was not barred by the three-year statute of limitations found in subdivision 1 of section 338 of the Code of Civil Procedure, which applies to 'An action upon a liability created by statute, other than a penalty or forfeiture.' This contention is without merit for the reason that the section relied upon has no application to this cause of action, which is clearly not based upon a liability created by 'statute.' In Dillon v. Board of Pension Com'rs (1941) 18 Cal.2d 427, 116 P.2d 37, 136 A.L.R. 800, upon which appellants rely, the plaintiff's cause of action was predicated upon a provision of the City of Los Angeles charter which authorized the...