DeCelle v. City of Alameda

• Decision Date: 25 October 1963
• Citation: 34 Cal.Rptr. 597,221 Cal.App.2d 528
• Court: California Court of Appeals Court of Appeals
• 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.

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.

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 E. DeCelle, for the duration of his lifetime, a monthly pension in an amount 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 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 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 payment of a pension to the widows of police officers. The court properly held that Code of Civil Procedure, section 338, subdivision 1, was applicable to bar a mandamus proceeding commenced more than three years after the cause of action had accrued. However, this decision was clearly based upon the rule previously expressed in Stern v. City Council of Berkeley (1914) 25 Cal.App. 685, 688, 145 P. 167, and Hermanson v. Board of Pension Com'rs (1933) 219 Cal. 622, 624, 28 P.2d 21, that a city charter framed and adopted pursuant to the constitutional provisions is not a law passed by a municipality but is a law of the state and hence a 'statute' within the meaning of Code of Civil Procedure, section 338, subdivision 1.

In the present case, respondent's cause of action was based upon a City of Alameda ordinance rather than upon a provision of a city charter. Under such circumstances, the liability sued upon was clearly created by municipal law rather than by statute, and the period of limitations found in Code of Civil Procedure, section 338, subdivision 1, is inapplicable.

Although it would seem apparent that respondent's cause of action was properly subject to the four-year period set forth in Code of Civil Procedure, section 343, the applicability of this section may not be considered for the first time on appeal. In the trial court, appellants, on demurrer, relied solely upon Code of Civil Procedure, section 338, subdivision 1. When the demurrer was overruled, appellants pleaded the 'Statute of Limitations' in their answer, but failed to specify the particular code section relied upon. Under such circumstances, they have clearly waived their right to rely upon Code of Civil Procedure, section 343. It is settled that the bare allegation that a cause of action is barred by the statute of limitations, without specification of a particular code section, is not sufficient to raise this defense (Code Civ.Proc. § 458; Calvary Presbyterian Church, etc. v. Brydon (1935) 4 Cal.App.2d 676, 678, 41 P.2d 377.)

Appellants next contend that the trial court erred in finding that respondent was not guilty of insubordination, urging that this amounted to an unauthorized reweighing of the evidence before the pension board and, in addition, constituted a collateral attack upon the prior decision of the Civil Service Board upholding respondent's dismissal from service. Since this latter board was vested with full power to hear and adjudicate the propriety of respondent's dismissal, appellants contend that its decision, once made, was res judicata and immune from collateral attack on other than jurisdictional grounds. Appellants' position is well taken.

At the hearing before the pension board, respondent admitted that his dismissal was the direct result of his refusal to obey the fire chief's directive that he discontinue his outside employment while receiving sick benefits. His sole defense consisted of testimony to the effect that he had informed the city attorney and the fire chief, prior to his dismissal, that he would be willing to waive sick leave benefits while continuing his outside employment, but that although he had no intention of returning to work in the fire department, he did not wish to resign for fear that it would impair his pension rights.

The California rule governing review of the decision of a local administrative body is that the reviewing court is concerned only with the presence or absence of substantial evidence in the agency record which will support the agency's determination. (Flaherty v. Board of Retirement (1961) 198 Cal.App.2d 397, 408, 18 Cal.Rptr. 256; Jenner v. City Council (1958) 164 Cal.App.2d 490, 499-500, 331 P.2d 176.) In the present case, the record before the pension board was clearly more than sufficient to support the board's finding of insubordination.

There is yet another reason, however, why the court's finding in this regard may not be allowed to stand. As appellants have recited, the pension board, in addition to making its own finding of insubordination, also found that the Civil Service Board's decision upholdi...