Kimball v. County of Santa Clara

• Decision Date: 06 April 1972
• Citation: 24 Cal.App.3d 780,101 Cal.Rptr. 353
• Court: California Court of Appeals Court of Appeals
• Parties: Burnham KIMBALL, Plaintiff and Respondent, v. COUNTY OF SANTA CLARA, Defendant and Appellant. Civ. 29342.

Page 353

101 Cal.Rptr. 353

24 Cal.App.3d 780

Burnham KIMBALL, Plaintiff and Respondent, v. COUNTY OF SANTA CLARA, Defendant and Appellant.

Civ. 29342.

Court of Appeal, First District, Division 1, California.

April 6, 1972.

William M. Siegel, County Counsel, Robert T. Owens, Deputy County Counsel, San Jose, for defendant and appellant.

Morgan, Beauzay & Hammer, San Jose, for plaintiff and respondent.

MOLINARI, Presiding Justice.

This is an appeal from a judgment in favor of plaintiff following an order granting a motion for summary judgment.

Plaintiff was employed by defendant in its sheriff's department as a correctional officer. He became disabled on or about January 22, 1968, by illness arising out of and in the course of his employment, and was temporarily totally disabled from pursuing any employment until September 30, 1968. On July 16, 1968, plaintiff applied to defendant for a leave of absence as provided in Labor Code section 4850. ¹ His application was denied and he then brought the instant declaratory relief action seeking to have a determination that section 4850 is applicable to him. Plaintiff thereafter filed a motion for summary judgment which was accompanied by a declaration in which he set forth the duties he performed while employed by defendant as a correctional officer in the sheriff's office. In support of his motion plaintiff also relied on defendant's answer to interrogatories. Defendant filed no counteraffidavit or declaration in opposition to the motion but did submit a memorandum of points and authorities. The trial court granted the motion for summary judgment and judgment was thereupon entered thereon.

Section 4850 provides, in relevant part, as follows: 'Whenever . . . any officer or employee of a sheriff's office, . . . who is a member of the Public Employees' Retirement System or subject to the County Employees Retirement Law of 1937 . . . is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his duties, he shall become entitled, . . . to leave of absence while so disabled without loss of salary, in lieu of temporary disability payments, if any, which would be payable under this chapter, . . . This section shall apply only to . . . any officer or employee of a sheriff's office, . . . who are members of the Public Employees' Retirement System or subject to the County Employees Retirement Law of 1937 . . . and excludes such employees of a county sheriff's office whose principal duties are those of a telephone operator, clerk, stenographer, machinist, mechanic, or otherwise, and whose functions do not clearly come within the scope of active law enforcement service. . . .'

Defendant contends that section 4850 does not confer benefits on correctional officers. The facts, as presented below, were not in dispute. Therefore, the question is not whether there is a triable issue of fact but one involving the interpretation of section 4850 in the light of the undisputed facts. (See Noroian v. Department of Administration, 11 Cal.App.3d 651, 654, 89 Cal.Rptr. 889.

We first observe that plaintiff's uncontradicted declaration states that during his employment by the sheriff's office he was subject to the County Employees Retirement Law of 1937. (Gov.Code, § 31450 et seq.) This statement was not challenged by defendant in the court below, although in its closing brief defendant now asserts that plaintiff is not subject to the County Employees Retirement Law because an allegation to this effect in plaintiff's complaint was denied in defendant's answer. It is elementary, of course, that a defendant may not remedy his failure to disclose by counteraffidavit evidence supporting a possible defense by resort to verified pleadings. (Coyne v. Krempels, 36 Cal.2d 257, 262, 223 P.2d 244; McHugh v. Howard, 165 Cal.App.2d 169, 174, 331 P.2d 674.) In any event, defendant concedes that plaintiff is a member of the Public Employees' Retirement System. (Gov.Code, § 20000 et seq.) Membership in such system suffices to bring plaintiff within the provisions of section 4850 if the other requirements of the statute are satisfied. Accordingly, our sole inquiry is whether plaintiff is an employee of the sheriff's office whose duties are such as to entitle him to the benefits provided for in section 4850.

Defendant's job description for the position of correctional officer describes the duties of such an officer as follows: 'Supervises the conduct of inmates in living quarters, during meals and bathing, at recreation and on work assignments; maintains security of inmates by taking periodic counts and by surveilance of activities; supervises groups of inmates assigned to shop, farm, road, or other maintenance activities and insures that the work is performed properly; conducts shakedowns and confiscates contraband; inspects quarters for cleanliness and proper order; reports infractions of rules and regulations and irregular and suspicious occurrences; reports unauthorized absences and escapes; prepares written reports on the work, conduct, and habits of inmates and their adjustment to the program; may recommend assignment to work furlough program or return to more secure confinement at the main jail; exercises influence toward motivating inmates to modify their antisocial attitudes and behavior; orients new inmates to rules and regulations and advises and instructs them on their responsibilities; admits visitors with proper credentials within the authorized regulations and time schedule and advises them on the rules and procedures; and does other related work as required.'

Plaintiff's uncontroverted declaration ² respecting his duties stated as follows: 'My duties as a correctional officer at the Elmwood Rehabilitation Center involved the supervision of prisoner inmates, including the detection of criminal activities within the facility, confiscation of contraband materials, the preservation of such materials for evidentiary purposes, and arrest and processing or criminal offenders (including advising the suspects of their legal rights), and the subsequent rendering of crime reports and testifying in court. During my tenure at the Elmwood facility, I have made over one dozen arrests.'

Adverting to the construction of section 4850, '. . . our concern is to ascertain and to give effect to the legislative intent. (Citations.) In ascertaining the intent articulated in a statute, the court should first turn to the words of the statute to determine the will of the Legislature (citations) and give effect to the statute according to the usual, ordinary import of the language employed in framing it. (Citations.)' (Noroian v. Department of Administration, supra, 11 Cal.App.3d 651, 654--655, 89 Cal.Rptr. 889, 891.)

We first observe that section 4850 applies to an officer or employee of a sheriff's office. It is undisputed that plaintiff is an employee of defendant's sheriff's office. The subject statute provides, however, that its benefits are not available to employees 'whose principal duties are those of a telephone operator, clerk, stenographer, machinist, mechanic, or otherwise . . ..' Construing this language according to ordinary usage, we must conclude that the principal duties associated with the specific occupations do not correspond in any respect with the principal duties of plaintiff as set forth in either the county job description or in plaintiff's declaration. We note, further, that section 4850 goes on to provide that such employees are excluded 'whose functions do not clearly come within the scope of active law enforcement service.' The question posed is thus whether the Legislature intended that the functions performed by plaintiff be considered as 'within the scope of active law enforcement service.'

In resolving this issue, it is permissible to turn to certain extrinsic sources for guidance. (Noroian v. Department of Administration, supra, 11 Cal.App.2d 651, 655, 89 Cal.Rptr. 889.) Although the opinions of the Attorney General are not controlling, they are entitled to great weight. (Noroian v. Department of Administration, supra, at p. 656, 89 Cal.Rptr. 889, fn. 2.) The Attorney General has expressed the following opinion as to the Legislature's intent in enacting section 4850: 'The reason for such exceptional treatment for policemen and firemen is obvious: Not only are their occupations particularly hazardous, but they undertake these hazards on behalf of the public. The Legislature undoubtedly sought to ensure that policemen and firemen would not be deterred from zealous performance of their mission of protecting the public by fear of loss of livelihood.' (51 Ops.Cal.Atty.Gen. 32, 34.)

It cannot be seriously contended that the supervision of prison inmates is any less hazardous than the supervision of the general public by policemen. Detection of criminal activity within the walls of a prison cannot be functionally distinguished from the detection of criminal activity in society. Fellow correctional officers and prison inmates are entitled to the same expectation as the general public with respect to protection against criminal attack. It follows that correctional officers should not be deterred from zealous performance of their mission by fear of loss of livelihood. It would therefore serve the apparent intent of the Legislature to find that plaintiff is entitled to the benefits provided by section 4850.

The Legislature has provided that the provisions of Division 4 of the Labor Code, which includes section 4850, 'shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.' (§ 3202.) "Where provisions of such laws are susceptible of an interpretation either beneficial or detrimental to injured employees or ambiguity appears, they must be construed favorably to the employees.' (Citation.)' (Burns v. Workmen's Comp. App. Bd., 2...