Ivens v. Simon

• Decision Date: 21 January 1963
• Citation: 212 Cal.App.2d 177,27 Cal.Rptr. 801
• Court: California Court of Appeals Court of Appeals
• Parties: Faye IVENS, Plaintiff and Appellant, v. Nathan A. SIMON, William G. Baum, J. J. Emanuelll, Ted J. Porter, and William V. Brown, as City Council of the City of Fontana, City of Fontana, a municipal corporation, Defendants and Respondents. Civ. 7005.

Page 801

27 Cal.Rptr. 801

212 Cal.App.2d 177

Faye IVENS, Plaintiff and Appellant, v. Nathan A. SIMON, William G. Baum, J. J. Emanuelll, Ted J. Porter, and William V. Brown, as City Council of the City of Fontana, City of Fontana, a municipal corporation, Defendants and Respondents.

Civ. 7005.

District Court of Appeal, Fourth District, California.

Jan. 21, 1963.

Richman, Garrett & Ansell, Los Angeles, for plaintiff and appellant.

Donald S. Gillespie, Hollis G. Hartley and William A. Flory, San Bernardino, for defendants and respondents.

COUGHLIN, Justice.

This is an appeal from a judgment after order sustaining a general demurrer without leave to amend.

The plaintiff, who is the appellant herein, by a first amended complaint as to a third cause of action against the City of Fontana and its council, the defendants and respondents herein, alleged: That, in 1954, the defendants employed Kroeger Associates to propose a classification and pay plan for the city's employees; that, pursuant thereto, Kroeger Associates presented its recommendation in the premises through a document entitled 'Position Classification Plan'; that, as a part thereof, under a subheading entitled 'Administration of the Pay Plan' it was provided that employees 'shall be paid on a 'five step' basis'; that the provisions in question in part read as follows:

'The five steps of the pay ranges should be used as follows:

'a. The A step is the minimum and normal hiring rate. New employees should start at the first step unless they are already receiving more for employment in another City classification. The Council should have authority, upon the recommendation of the Personnel Commission, to start a new employee at the second or third step if it is impossible to recruit at the first step, in which case all employees in the class should be paid at least as much as the newcomer.

'b. The B step is available for employees who have worked successfully for six months * * *.

'c. The C step is available for those employees who have worked successfully for eighteen months * * *.

'd. The D step is available for those employees who have worked successfully for one year at step C * * *.

'e. The E step is available for those employees who have worked successfully for two years at step D and are certified by their department head as meriting the increase. This is the maximum for the class above which no employee should be advanced while his class is allocated to the range.

'The increases outlined should be made effective at the beginning of the first pay period following completion of the time intervals listed.';

that thereafter, by resolution, the foregoing document was adopted by the defendants 'and the recommendation thereof made mandatory'; that the plaintiff was an employee of the city of Fontana; that, prior to January 1, 1961, she had worked successfully as a Senior Steno-Clerk at Step D and had been certified by her department head and the Personnel Board as meriting an increase to step E; and that the defendants have refused to increase the plaintiff's compensation and pay her in accord with the E step rating. By this complaint the plaintiff petitioned for a writ of mandate to compel the defendants to compensate her on an E step basis.

In support of the order sustaining their general demurrer, the defendants contend that the placement of the plaintiff in step E was a matter within their discretion and, for this reason, is not subject to control by the courts through mandamus proceedings, citing Faulkner v. California Toll Bridge Authority, 40 Cal.2d 317, 326, 253 P.2d 659, and other cases stating this general rule. The decisive issue for determination, therefore, is whether, under the resolution adopting the Kroeger Associates proposed classification and pay plan, the placement of the plaintiff in step E is within the discretion of the city council.

The city of Fontana is a city of the sixth class. (See Cozzolino v. City of Fontana, 136 Cal.App.2d 608, 609, 289 P.2d 248.) Its city council has the duty and authority to fix the compensation payable to its employees. (Mitchell v. Walker, 140 Cal.App.2d 239, 242, 295 P.2d 90.) This may be done by resolution. (Gov.Code, § 36506.) There can be no doubt that the council, by its resolution in the instant matter, purported to adopt a classification and pay plan. The plaintiff accepted employment as a city employee under the plan so adopted; its provisions formed a part of her contract of employment. (Buck v. City of Eureka, 109 Cal. 504, 508, 509, 42 P. 243, 30 L.R.A. 409; cf. Kern v. City of Long Beach, 29 Cal.2d 848, 852, 179 P.2d 799; Abbott v. City of San Diego, 165 Cal.App.2d 511, 517, 332 P.2d 324); and, purportedly, it fixed the wage scale by which her compensation was to be measured. The defendants contend that, nevertheless, the plan in question retains in the city council a discretionary authority to advance an employee from one step to another. This contention is based upon an interpretation of those parts of the plan which state, among other things, that the designated steps are 'available' for those employees who have complied with certain time and recommendation requirements; that use of the term 'available' is not a mandate to council action; and, in substance, that the resolution adopting the plan merely defines certain steps into which an employee may be placed by council action. The complaint alleges that the proposed plan 'provided that employees shall be paid on a 'five step' basis.' (Italics ours.) This allegation, which is admitted by the general demurrer for its purpose, positively states that, under the proposed plan, the employee shall be paid on a five step basis; not on a four step basis; and not on a step basis that the council, in the exercise of its discretion, might dictate in each individual case. This interpretation conforms to a consideration of the plan as a whole and to the apparent object for its adoption. Paragraph 'a' of the proposal, which heretofore has been set forth in full, suggests that the city council 'should have authority, upon the recommendation of the Personnel Commission, to start a new employee at the second or third step if it is impossible to recruit at the first step, in which case all employees in the class should be paid at least as much as the newcomer.' Obviously, if, as contended by the defendants, the matter of placement in a particular step is subject to the further exercise of discretion by the council in each case, there would be no need for making the foregoing reservation of authority. Equally obvious is the conclusion that if the council were to exercise a discretion respecting the step placement of each employee, it should...