Driscoll v. City of Los Angeles

• Citation: 61 Cal.Rptr. 661,67 Cal.2d 297,431 P.2d 245
• Court: United States State Supreme Court (California)
• Decision Date: 13 September 1967
• Parties: , 431 P.2d 245 Faye DRISCOLL et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Appellants. L.A. 28479. In Bank

Page 661

61 Cal.Rptr. 661

67 Cal.2d 297, 431 P.2d 245

Faye DRISCOLL et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Appellants.

L.A. 28479.

Supreme Court of California,

In Bank.

Sept. 13, 1967.

Kenneth Sperry and John L. Kaesman, Long Beach, for plaintiffs and appellants.

Roger Arnebergh, City Atty., Bourke Jones, Weldon L. Weber, and John J. Tully, Jr., Asst. City Attys., for defendants and appellants.

Stanley T. Tomlinson, City Atty., Santa Barbara, J. F. Goux, and Kenneth R. Nuss, Santa Barbara, as amici curiae on behalf of defendants and appellants.

SULLIVAN, Associate Justice.

We are called upon to review a declaratory judgment determining the past and future pension rights of certain widows of retired former members of the Los Angeles Police and Fire Departments. Plaintiff widows, except plaintiff Gussie A. Hand, appeal from adverse portions of the judgment which limit the recovery of each of them to unpaid pension benefits accruing within six months prior to the filing of a formal claim therefor and which deny to each of them recovery of other unpaid pension benefits accruing from and after the death of the respective deceased husband of each but prior to said six-month period. Plaintiff Hand appeals from the entire judgment which denies her all recovery. Defendants ¹ (hereafter for convenience referred to collectively as the 'City') appeal from the entire judgment. We have concluded that the judgment should be affirmed insofar as, and to the extent that, it provides recovery to plaintiffs Driscoll, Beard and Powell; that it should be reversed insofar as it provides any recovery for plaintiffs Slaten and Galbreth (La Niece); and that it should be reversed insofar as it denied recovery to plaintiff Hand.

Each plaintiff is the widow of a former member of either the police of fire department who had performed services for the City prior to July 1, 1925. The deceased husband of each plaintiff had been regularly retired from service and had been paid a pension by the City up to the time of his death. Each plaintiff had been married to her husband for at least one year prior to the date of his death but none of said plaintiffs had been married to her husband for at least one year prior to the date of his retirement.

Prior to July 1, 1925, the City's charter provided for the payment of a Fluctuating death benefit pension ² as distinguished from a Fixed pension to the widow of a deceased pensioner provided only that she was married to him for at least one year prior to his Death. Before the above date, section 4 of article XI 1/2 of the 1889 charter provided 'that no widow of a pensioner shall be entitled to a pension unless she shall have been married to such deceased pensioner at least one year prior to the date of his Death.' (Emphasis added; Stats.1923, pp. 1411--1414.) Effective July 1, 1925, this provision was amended by the enactment of section 183 of article XVII of the 1925 charter to provide 'that no widow of a pensioner shall be entitled to a pension unless she shall have been married to such pensioner at least one year prior to the date of his Retirement.' (Emphasis added; Stats. 1925, pp. 1085--1088.) Pursuant to amendments to the city's charter in 1925 (Stats. 1925, p. 1085) and 1927 (Stats. 1927, pp. 2023--2024) Fixed pensions were substituted for Fluctuating pensions; the 1927 amendment effectuated this change for widows' pensions.

The present action was commenced in 1960 to obtain a fluctuating monthly death benefit pension payable to each plaintiff from the date of death of her respective husband throughout the remainder of her natural life, or until her remarriage, in accordance with the City's charter provisions in effect prior to July 1, 1925. The theory of the action was that each plaintiff was eligible for the pension under the old charter because she had been married to the deceased pensioner for at least one year prior to his Death even though she had not been married to him for at least one year prior to his Retirement as required by the new charter.

It is noteworthy, therefore, that the action was brought after our decision in Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 326 P.2d 484 wherein we held, Inter alia, that the 1927 amendment to the city's charter changing widows' pensions from a fluctuating to a fixed basis could not validly be applied to widows whose husbands had retired prior to the effective date of such amendment and that such widows were entitled to fluctuating pensions. (50 Cal.2d at pp. 454--455, 326 P.2d 484.) Subsequent to the commencement of the instant action the Court of Appeal rendered its decisions in Henry v. City of Los Angeles (1962) 201 Cal.App.2d 299, 20 Cal.Rptr. 440 and Atwell v. City of Los Angeles (1962) 201 Cal.App.2d 336, 20 Cal.Rptr. 462 wherein it determined, Inter alia, that the 1925 amendment to the city's charter was and is unconstitutional as applied to a widow of a deceased pensioner appointed to his position prior to the amendment and that such a widow was legally entitled to receive a death benefit pension upon the death of her pensioner husband provided she was married to him for at least one year prior to his Death. ³

After the last two decisions, the City conceded in the court below that the 1925 amendments to the charter were and are unconstitutional as applied to these plaintiffs and that plaintiffs were eligible for death benefit pensions having met the requirement under the old charter of having been married to the deceased pensioner for at least one year prior to his death. Nevertheless the City contended below (1) that the cause of action of each plaintiff except Mrs. Hand was barred by Code of Civil Procedure sections 312 and 338, subdivision 1, for the reason that the action was not commenced until more than three years after the demise of her respective husband; and (2) that the right of each plaintiff to recover any unpaid pension benefits accruing more than six months prior to the date upon which each plaintiff filed her respective written claim therefor with the City was barred by sections 363 and 376 of the City's charter. Plaintiffs on their part contended that none of their causes of action were barred by the provisions of any statute and that the City was estopped from relying upon either the statute of limitations or the aforementioned claims provisions of the City's charter. The trial court held that as to each plaintiff except Mrs. Hand the City was estopped to assert the statute of limitations but not the claims provisions, and that as to plaintiff Mrs. Hand the City was not estopped to assert the statute of limitations 'for the reason that her claim was denied by the defendant board on February 19, 1964, 'upon the advice of the City Attorney.''

The trial court found so far as is here pertinent that shortly after the demise of her husband each plaintiff, other than plaintiffs La Niece and Slaten, made inquiries of employees of defendant Board of Pension Commissioners concerning her right to receive a pension; that each such plaintiff was advised that she was not eligible to receive a pension of any kind for the reason that she had not been married to her husband for at least one year prior to his retirement; that each such plaintiff to whom said statement was made believed it and did not file any claim or take any further steps to assert her rights at that time; that the City's employees believed, prior to the decision in Henry, supra, that plaintiffs were not entitled to a widow's pension for the reasons stated; that in so advising plaintiffs the employees had acted in good faith; that thereafter each plaintiff, shortly prior to filing her instant claim, was independently advised that because of recent appellate court decisions she might now be eligible to receive her pension; that the instant claims were then filed and diligently pursued; that the claims were rejected by the City upon the ground that plaintiffs, other than plaintiff Hand, had not been married to a retired employee for at least one year prior to his retirement and that as stated above in the case of plaintiff Hand the claim was rejected "upon the advice of the City Attorney."

The record supports the foregoing findings as to plaintiffs other than La Niece and Slaten. The former, having died before this action came to trial, did not testify and there is no evidence of record as to representations made to her following her husband's death. Plaintiff Slaten appeared as a witness but testified only that, although she had gone to the office of the board shortly after the death of her husband in 1947, she was unable to recall what had transpired at that meeting. Counsel for plaintiffs attempted on numerous occasions to introduce in evidence testimony that it was the custom of the board to contact widows of all pensioners shortly after the deaths of their respective husbands in order to advise them of their pension rights and that it was the custom and practice of the board at the time of the deaths of the husbands of plaintiffs Slaten and La Niece to advise persons situated the same as those plaintiffs that they were not entitled to a pension. The trial court sustained objections to each inquiry or offer of proof until, finally, the city attorney withdrew his objection and the witness, an employee of the board, was permitted to testify that it was the custom of the board, prior to the decision in Atwell (Atwell v. City of Los Angeles, supra, 201 Cal.App.2d 336, 20 Cal.Rptr. 462), ⁴ to deny applications of widows situated as in the case of the instant plaintiffs. ⁵ The testimony, however, did not relate to the board's practice with respect to Advising widows ⁶ and counsel did not pursue the matter further.

It is manifest that the scant evidence in the record bearing upon advice by the City to plaintiffs Slaten and La Niece concerning their eligibility for a pension justifies the trial...