Myers v. County of Orange

• Decision Date: 16 April 1970
• Citation: 86 Cal.Rptr. 198,6 Cal.App.3d 626
• Court: California Court of Appeals Court of Appeals
• Parties: Mildred MYERS, etc., et al., Plaintiffs and Appellants, v. The COUNTY OF ORANGE et al., Defendants and Respondents. Civ. 9489.

Page 198

86 Cal.Rptr. 198

6 Cal.App.3d 626

Mildred MYERS, etc., et al., Plaintiffs and Appellants, v. The COUNTY OF ORANGE et al., Defendants and Respondents.

Civ. 9489.

Court of Appeal, Fourth District, Division 2, California.

April 16, 1970.

[6 Cal.App.3d 629] Rimel, Harvey & Helsing, and Duffern H. Helsing, Santa Ana, for plaintiffs and appellants.

Adrian Kuyper, County Counsel, and Barry S. Michaelson, Deputy County Counsel, for defendants and respondents.

OPINION

KAUFMAN, Associate Justice.

Plaintiff ¹ appeals from a judgment of dismissal after an order sustaining defendants' demurrer to the complaint without leave to amend.

By the first amended complaint, plaintiff in the dual capacities of Administratrix of the Estate of John W. Myers, Deceased, and surviving widow of John W. Myers, seeks damages from the County of Orange and R. I. Morris, Director of Transportation for said County, for the allegedly wrongful discharge of the decedent John W. Myers.

It is alleged that, as a result of the wrongful discharge, plaintiff, as administratrix of the estate, has been damaged by the loss of death benefits under the County retirement program as well as loss of accumulated sick leave and, as surviving widow, by the loss of death benefits under the County retirement program, and life insurance and salary continuance benefits which would have been payable to her through the Orange County Employees' Association, all of which lost benefits it is alleged amount to $26,194.04.

Defendants contend that the first amended complaint, which incorporates by reference the findings of fact and conclusions of law and judgment in a prior mandate proceeding between the parties, shows on its face that it is barred by res judicata, and, also, that the first amended complaint shows on its face that no claim was filed by plaintiff with the County of Orange within one year after the accrual of her causes of action and that the rights of action are, therefore, barred by the provisions of sections 945.4, 905, 911.2 and 935 of the Government Code. Plaintiff concedes the applicability of the one-year claim period, but contends the her causes of action did not accrue until after she had exhausted her administrative remedies; that, even if the accrual of the causes of action was not thus postponed, the running of the one-year period was tolled during her pursuit of administrative remedies, including the time consumed in seeking a writ of manadate relating thereto; and that, furthermore, several of the documents served by her on agencies of the County constitute sufficient claims under the doctrine of substantial compliance.

Defendants' demurrer was made jointly. If a cause of action was stated against either defendant, therefore, the demurrer should have been overruled. (Hirshfeld v. Weill, 121 Cal. 13, 14, 53 P. 402; Rogers v. Schulenburg, 111 Cal. 281, 284, 43 P. 899; Asevado v. Orr, 100 Cal. 293, 300, 34 P. 777; Wise v. Southern Pacific Co., 223 Cal.App.2d 50, 76, 35 Cal.Rptr. 652.)

The essential allegations of the first amended complaint may be summarized as follows. John W. Myers, the decedent, was employed by the County of Orange in the Transportation Department from August 18, 1958 until the time of the alleged wrongful discharge on or about August 22, 1966. On that date John W. Myers was mentally and physically ill from a terminal cancer condition, which resulted in his death on December 5, 1966.

On August 22, 1966 said John W. Myers failed to report for work at the Transportation Department garage, and, without conferring with John W. Myers as to the reason for his failure to report for work the department head terminated him effective August 19, 1966 for his failure to report to work by mailing to him a notice of discharge. It is alleged that the notice was improper and insufficient for the reason that it was mailed to him instead of being personally served as required by the Personnel and Salary Resolution of the County of Orange then in effect, because it erroneously stated that Mr. Myers had only five days to file a notice of appeal instead of the ten days provided by the Personnel and Salary Resolution and because it did not state grounds constituting sufficient or reasonable cause for the discharge of Mr. Myers. It is also alleged that the decedent's immediate work supervisor was one Hill Arnold, foreman, who told the decedent at the time of his dismissal that it would do him no good to appeal.

On or about the same date, Mr. Myers was also sent a form for the withdrawal of his accumulated contribution to the retirement fund. 'In an extremely weakened condition, suffering from terminal cancer, and the accompanying pain, and without advice of counsel, or being advised by his department head concerning the effect of signing this form, Mr. Myers executed the same and returned it.' ² The accumulated retirement contributions were paid to Mr. Myers on September 13, 1966. Plaintiff has offered to return and redeposit these retirment contributions together with interest thereon upon the reinstatement of John W. Myers as an employee from the date of his discharge until the date of his death.

Between August 22, 1966 and August 31, 1966 Mr. Myers was unable to sleep or eat and had severe headaches. His condition became progressively worse with each succeeding day and, on October 19, 1966 he was hospitalized, at which time it was determined that he had a malignant cancer. He was released from the hospital on October 29, 1966. On December 3, 1966 he was again hospitalized and on December 5, 1966 he died as a result of said cancer.

On April 5, 1967 plaintiff, through her attorney, wrote to the Personnel Director of Orange County and requested information necessary to appeal the dismissal of her deceased husband. On April 12, 1967 plaintiff made application to the Retirement Board of the County of Orange ³ asserting the wrongful discharge, requesting that the Board rescind the order of dismissal and reinstate Mr. Myers as a county employee from August 19, 1966 to the date of his death, noting that this 'would restore Mrs. Myers' eligibility for death benefits, retirement benefits, life insurance and also salary continuance insurance for Mr. Myers' illness during the interval between his dismissal and his death.' This letter request dated April 11, 1967 was verified by plaintiff under penalty of perjury.

By letter from the County of Orange dated May 12, 1967, signed by the Orange County Treasurer, plaintiff was notified that her letter request for hearing had been referred to the County Counsel's Office; that the County Counsel had issued an opinion holding that the Retirement Board had no jurisdiction to grant a hearing because the separation from service was not by discharge but by the employee's 'resignation,' and that, therefore, no hearing would be scheduled and no appeal entertained.

On June 13, 1967 plaintiff filed in the Orange County Superior Court a petition for a writ of mandate to compel the Appeal Board to set aside its decision as set forth in its letter of May 12, 1967 and to hold a hearing under the provisions of section 8 of Division II of the Personnel and Salary Resolution of the County of Orange. A demurrer to the petition was overruled, and, in due course, the mandate proceeding was tried on August 10, 1967. On November 9, 1967 a judgment was entered denying the peremptory writ of mandate. No appeal was taken by plaintiff from this judgment, and it became final on January 8, 1968 at the earliest (60 days after notice of entry). ⁴ (Code of Civ.Proc. sec. 1110 and California Rules of Court, rule 2(a).)

It is further alleged that plaintiff exhausted her administrative remedies prior to filing the action and that her cause of action could not accrue until she had exhausted her administrative remedies and that said remedies were not fully and completely exhausted until the judgment denying the peremptory writ of mandate became final.

On February 14, 1968 plaintiff filed a claim for damages with the Board of Supervisors, County of Orange, a true copy of which is attached as an exhibit. The claim was rejected on February 20, 1968 and this action was filed on March 7, 1968.

It is further alleged that the acts of defendants in discharging John W. Myers without reasonable cause or justification were without authority under the Orange County Personnel and Salary Resolution; and that plaintiff, in her several capacities, suffered the damages hereinbefore summarized as a result of the wrongful discharge of John W. Myers.

Res Judicata Effects of Mandate Proceeding

It is at once apparent that the judgment in the prior mandate proceeding does not constitute a bar to the present action. This action is for damages to plaintiff in her several capacities resulting from wrongful discharge. The mandate proceeding was an attempt by plaintiff to compel the Appeal Board to set aside its decision not to hold a hearing and to compel it to hold a hearing under the provisions of the Personnel and Salary Resolution of the County of Orange. It is clear from the petition, findings of fact and conclusions of law and judgment in the mandate proceeding that there was no attempt in that proceeding to adjudicate whether or not Mr. Myers was wrongfully discharged. ⁵

A second action between the same parties on a different cause of action is not precluded by the judgment in the former action. (Clark v. Lesher, 46 Cal.2d 874, 880, 299 P.2d 865; 3 Witkin, California Procedure, 1947.) It is possible, of course, that the judgment in the mandate proceeding may be determinative of some issues between the parties upon the application of the doctrine of collateral estoppel (see Louis Stores, Inc. v. Department of Alcoholic Beverage Control, 57 Cal.2d 749, 757 22 Cal.Rptr. 14, 371 P.2d 758; Clark v. Lesher, Supra, 46 Cal.2d at 880, 299 P.2d 865; Mitchell v. Jones, 172 Cal.App.2d 580, 585, 342 P.2d 503; 3 Witkin, California Procedure,...