Henry v. City of Los Angeles

• Decision Date: 14 March 1962
• Citation: 20 Cal.Rptr. 440,201 Cal.App.2d 299
• Court: California Court of Appeals Court of Appeals
• Parties: Edward G. HENRY, Plaintiff and Respondent, v. CITY OF LOS ANGELES et al., Defendants and Appellants. John L. ACKER et al., Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES et al., Defendants, Respondents and Appellants. Bert K. AHRENS et al., Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES et al., Defendants, Respondents and Appellants. Austin H. CASSELBERRY et al., Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES et al., Defendants, Respondents and Appellants. Glenn M. ARMSTRONG et al., Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES et al., Defendants, Respondents and Appellants. Civ. 25188-25192.

Page 440

20 Cal.Rptr. 440

201 Cal.App.2d 299

Edward G. HENRY, Plaintiff and Respondent, v. CITY OF LOS ANGELES et al., Defendants and Appellants.

John L. ACKER et al., Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES et al., Defendants, Respondents and Appellants.

Bert K. AHRENS et al., Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES et al., Defendants, Respondents and Appellants.

Austin H. CASSELBERRY et al., Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES et al., Defendants, Respondents and Appellants.

Glenn M. ARMSTRONG et al., Plaintiffs, Appellants and Respondents, v. CITY OF LOS ANGELES et al., Defendants, Respondents and Appellants.

Civ. 25188-25192.

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

March 14, 1962.

Rehearing Denied March 28, 1962.

Hearing Denied May 16, 1962.

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

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

Bewley, Knoop, Lassleben & Whelan, and Martin E. Whelan, Jr., Whittier, as amici curiae, appearing on behalf of the Los Angeles Fire and Police Protective League and others in support of plaintiffs and appellants.

BURKE, Presiding Justice.

In these five companion cases, consolidated for trial, plaintiffs, retired fire and police department pensioners or widows of pensioners, appeal from those portions of the various judgments which are adverse to them, and the defendants, City of Los Angeles and its board of pension commissioners, appeal from certain portions of the judgments adverse to such defendants.

In Abbott v. City of Los Angeles, 50 Cal.2d 438, 326 P.2d 484 (hereinafter termed 'Abbott'), the Supreme Court, determined that retired members of Los Angeles fire and police departments who were first employed prior to July 1, 1925, were entitled to fluctuating pensions (i. e., based upon salaries currently being paid) rather than fixed amounts determined at the time the pension is granted. It was also determined that widows of members employed prior to January 17, 1927, were entitled to fluctuating pensions. The court determined that Los Angeles city charter amendments adopted in 1925 (Stats.1925, p. 1085) and 1927 (Stats.1927, pp. 2023-2024), by which fixed payment pensions were substituted for fluctuating pensions, could not properly be applied to the plaintiffs in that case. It held that such charter amendments were detrimental and hence invalid as applied to the partially earned pension rights of various members of such departments who were employed prior to the effective date thereof.

In three of the cases now before us, Acker v. City of Los Angeles (hereinafter termed 'Acker'), Casselberry v. City of Los Angeles (hereinafter termed 'Casselberry') and Ahrens v. City of Los Angeles (hereinafter termed 'Ahrens'), the plaintiffs are retired members of the Los Angeles Police or Fire Department, or widows of deceased members, who were employed prior to the 1925 and 1927 changes in the pension system. By their complaint they sought a declaratory judgment to determine the nature and extent of their respective pension rights and to recover the difference between the fluctuating monthly pension based upon the current salaries and the fixed monthly pension based upon salaries received prior to retirement, which had been paid by the defendants from the retirement fund of the city, for the three-year period preceding the filing of the complaint.

Plaintiffs further contended that defendants were estopped 'to rely upon the failure of any party plaintiff to file a claim with the City Clerk pursuant to the provisions of Sections 363 [St.1925, p. 1137] and 376 [St.1927, p. 2014] of the City Charter of the City of Los Angeles as an excuse for their failure to pay those unpaid pension benefits which accrued within three years prior to the * * *' filing of their respective claims.

In its decision and judgment in each of these three cases (Acker, Casselberry and Ahrens) the trial court determined the 1925 and 1927 amendments to the pension system were unconstitutional and invalid insofar as they purported to deprive any party plaintiff of his or her right to receive a fluctuating pension in accordance with the terms of article XI 1/2 of the city charter of 1889, as amended (Stats.1923, pp. 1412-1414), and each party plaintiff had been, since the granting of his or her pension and would in the future be '* * * legally entitled to receive from the defendant city * * *' a fluctuating retirement, disability or death benefit pension in accordance with the terms and conditions of article XI 1/2 of the charter of 1889 as amended.

The court further found neither of plaintiffs' named causes of action is barred by the provisions of sections 363 or 376 of the Charter of the City of Los Angeles, '* * * but that the right of each party plaintiff to recover herein any unpaid pension benefits which accrued or became payable to such plaintiff more than six months prior to the time that a specific claim for such fluctuating pension was filed by or in behalf of each such party plaintiff is barred by the provisions of said Charter sections.' No appeal has been taken by either party from those portions of the judgment which determined that plaintiffs were entitled to receive the fluctuating pension, excepting with reference to the Ahrens case wherein the defendants have appealed from the whole and every portion of the judgment therein. Plaintiffs' appeals in these cases (Acker, Ahrens and Casselberry) are from that portion of the judgment which limited their recovery on account of past-due pension benefits to those which accrued within six months prior to the filing of their respective claims. The defendants have appealed from certain other portions of the declaratory judgment which defined the future pension rights of the surviving spouses of the various member plaintiffs, in addition to the appeal mentioned in the Ahrens case.

Subsequent to the decision in the Abbott case in 1958, the defendants placed all of the plaintiffs in the Acker and Casselberry cases upon fluctuating pensions and paid to each of them the difference between the amount of such pension and the amount of the fixed pension which each had theretofore been paid back to six months prior to the filing of a claim therefor, excluding from the calculations thereof only 'longevity pay' and 'merit pay.'

Plaintiffs rely on appeal upon certain conduct (as found by the trial court and herein summarized) of the defendants (the City of Los Angeles and its board of pension commissioners) to establish an estoppel: (a) preparation and furnishing of forms; (b) furnishing of notarial services and pick-up service where retired pensioner was ill; (c) assistance in preparing forms; (d) notice sent by the defendants on July 1, 1958, following the decision in the Abbott case, to all claimants advising they would have to file claims under the charter provisions.

It should be emphasized here that prior to the Abbott decision in June, 1958, the city was paying fixed pensions in accordance with the 1925 and 1927 charter amendments. Neither the city nor the board of pension commissioners can be criticized or accused of any misconduct in following the charter provisions and what was believed to be the law. While others may challenge the constitutionality or validity of the charter provisions, certainly the city itself and its departments were not in a position to do so. The trial court here specifically found that the city acted in good faith in that shortly after the decision in the Abbott case 'the defendant pension board mailed a written notice of the decision to each plaintiff' and that at all times prior to the rendition of the decision 'the defendants were of the opinion and belief that each party plaintiff was being paid the full amount of pension benefits to which each was legally entitled, and so represented to each party plaintiff.'

In People v. Watkins, 175 Cal.App.2d 182, 185, 345 P.2d 960, 962, the court said: 'It is well settled that the existence of an estoppel is a question of fact for the trial court, and ordinarily its decision that an estoppel has not been made out is binding on appeal, 'unless the opposite conclusion is the only one which can reasonably be drawn from the facts * * *.''

The elements of equitable estoppel have been established in many decisions of which the case of California Cigarette Concessions, Inc., v. City of Los Angeles, 53 Cal.2d 865 3 Cal.Rptr. 675, 350 P.2d 715, is a good example. Therein, at page 869, 3 Cal.Rptr. at page 678, 350 P.2d at page 718, the court stated: 'We are of the opinion that as a matter of law, the stated facts are insufficient to create an estoppel on the defendant city to rely on the statute of limitations. * * *

'Certain conditions are necessary as the basis for an estoppel: the party to be estopped must be apprised of the facts; * * * the party to be estopped must have intended that its conduct be acted upon, or so act that the other party had a right to believe that it was so intended; and the other party must rely on the conduct to its prejudice. Safway Steel Products, Inc. v. Lefever, 117 Cal.App.2d 489, 491, 256 P.2d 32.'

In Martin v. Alcoholic Bev. etc. Appeals Bd., 52 Cal.2d 287, at pages 292, 293, 341 P.2d 296, at pages 299, 300, the court says: 'One of the essential elements of estoppel is that the person to be estopped must be advised of the facts. (18 Cal.Jur.2d, § 5, p. 406.) Moreover, the principles of equitable estoppel are not ordinarily applied to deprive the public of the protection of a statute because of the mistaken action on the part of a public official or employee. Jacques, Inc. v. State Bd. of Equalization, 155 Cal.App.2d 448, 462, 318 P.2d 6; also San Diego County v. California...