Olson v. Cory
| Decision Date | 28 February 1983 |
| Parties | Lester E. OLSON, Robert L. Bostick, Kenneth Williams, Pat Mullendore, Newell Barrett, Roberta Ralph, Lawrence E. Drumm, Vincent M. Erickson, Maurice J. Hindin, Thomas A. Newell, Benjamin Landis, M. Peter Katsufrakis, Kathleen D. Kurland, Joseph Lodge, William F. Levins, Donald Dungan, and all others similarly situated, Plaintiffs and Appellants, v. Kenneth CORY, et al., Defendants and Respondents. Civ. 64385. |
| Court | California Court of Appeals Court of Appeals |
Stroock & Stroock & Lavan, and William H. Levit, Henry J. Silberberg and Margaret A. Nagle and Gibson, Dunn & Crutcher and Richard Chernick, Los Angeles, for plaintiffs and appellants.
Lawrence E. Gercovich and D. Robert Shuman, Sacramento, for State Controller Kenneth Cory.
Richard J. Moore, County Counsel, Oakland, Daniel Blackstock, County Counsel, Chico, John B. Clausen, County Counsel, Martinez, Floyd R.B. Viau, County Counsel KLEIN, Presiding Justice.
Fresno, Raymond W. Schneider, County Counsel, Eureka, James H. Harmon, County Counsel, El Centro, Ralph B. Jordan, Jr., County Counsel and Peter A. Warmerdam, Deputy County Counsel, Bakersfield, Douglas J. Maloney, County Counsel, San Rafael, Russell Koch, County Counsel and Blair H. Checketts, Deputy County Counsel, Merced, Paul DeLay, County Counsel, Salinas, Stephen W. Hackett, County Counsel, Napa, Adrian Kuyper, County Counsel and Richard D. Oviedo, Deputy County Counsel, Santa Ana, James H. Angell, County Counsel, Riverside, Lee B. Elam, County Counsel, Sacramento, Alan K. Marks, County Counsel, San Bernardino, Donald L. Clark, County Counsel, Barstow, and Arlene Prater, Deputy County Counsel, San Diego, Gerald A. Sherwin, County Counsel and Michael McGrew, Deputy County Counsel, Stockton, James B. Lindholm, Jr., County Counsel, San Luis Obispo, Scovil F. Hubbard, Deputy County Counsel, Pismo Beach, Keith C. Sorenson, County Counsel and Lemuel M. Summey, Deputy County Counsel, Redwood City, George P. Kading, County Counsel and Marvin Levine, Deputy County Counsel, Santa Barbara, Selby V.I. Brown, Jr., County Counsel, San Jose, Clair A. Carlson, County Counsel and Jonathan Wittwer, Asst. County Counsel, Santa Cruz, Milton Goldinger, County Counsel, Fairfield, James P. Botz, County Counsel, Santa Rosa, and John Chapin, Deputy County Counsel, Fairfield, Gilbert Boyne, County Counsel, Modesta, Darrell Larsen, County Counsel, Yuba City, Calvin E. Baldwin, County Counsel, Visalia, Dorothy L. Schechter, County Counsel and Mary C. Ward, Deputy County Counsel, Ventura, Charles R. Mack, County Counsel, Woodland, John H. Larson, County Counsel and Halvor S. Melom, Deputy County Counsel, George P. Agnost, City and County Counsel and David E. Goldman, Deputy City Atty., Richard Radosh, Deputy Atty. Gen., Los Angeles, Poland K. Bowns, Staff Counsel, Sacramento, Howard, Prim, Rice, Nemerovski, Canady & Pollak and Ann Brick, San Francisco, for defendants and respondents.
Plaintiffs and appellants appellate justices, superior and municipal court judges and judicial pensioners, representing their respective classes (appellants), appeal from a denial of their motion for an order specifying their right to receive interest as an issue without substantial controversy. The contend on appeal that they have met all the conditions for awarding interest pursuant to Civil Code section 3287, subdivision (a).
For reasons hereinafter discussed, the judgment is reversed in part and affirmed in part.
PROCEDURAL HISTORY
On August 3, 1977, this class action was commenced on behalf of the named appellants and all justices of the Supreme Court and Courts of Appeal, all judges of the superior and municipal courts and all judicial pensioners under the Judges' Retirement Law. The original named defendants were Kenneth Cory (Cory), as Controller of the State of California, 1 and Mark H. Bloodgood (Bloodgood), as Auditor-Controller of the County of Los Angeles (collectively respondents).
The complaint sought a declaration that the 1976 amendment to Government Code section 68203 was unconstitutional because it reduced the salary of judges by limiting the cost of living increases provided by the former statute. 2 It also requested a declaration The complaint additionally sought damages consisting of all salary and retirement benefits due to be paid from September 1, 1977, to the date of judgment, under the prior law, together with interest.
that Bloodgood was obligated to pay to the judges of the Municipal Court of Los Angeles County all payments due on and after September 1, 1977, pursuant to the formula prescribed under Government Code section 68203 prior to the 1976 amendment, and that Cory was obligated similarly to make payments under the former statute to pensioners and to all judges other than municipal court judges.
On February 21, 1978, the superior court issued a declaratory judgment declaring the 1976 amendment unconstitutional and reserving jurisdiction to consider, subsequent to any appeal from the judgment, matters such as certification of the plaintiff class and the awarding of past due salary and interest. Cory and Bloodgood appealed.
On March 27, 1980, as modified on May 30, 1980, the California Supreme Court decided that the 1976 amendment "insofar as it would limit cost-of-living salary increases as provided by section 68203 before the 1976 amendment, cannot be constitutionally applied to (1) a judge or justice during any term of office, or unexpired term of office of a predecessor, if the judge or justice served some portion thereof (a 'protected term') prior to 1 January 1977, 3 and (2) a judicial pensioner whose benefits are based on some proportionate amount of the salary of the judge or justice occupying that office." (Olson v. Cory (1980) 27 Cal.3d 532, 546, 178 Cal.Rptr. 568, 636 P.2d 532.)
On April 18, 1980, municipal court judges of three other California counties, filed a complaint in intervention on behalf of all present and former municipal court judges against Cory and the auditor-controllers of the counties of California. They requested a judgment against county auditor-controllers for payment under former Government Code section 68203 of all salaries due from September 1, 1977, to the date of the final judgment in the case, plus interest.
After the California Supreme Court issued Olson v. Cory, plaintiff intervenors and the original-named plaintiffs obtained a temporary restraining order and a subsequent preliminary injunction prohibiting defendants and defendants-by-intervention from making any payments to members of the class in excess of 75 percent of back salaries. They subsequently filed a notice of motion and motion for an order specifying their right to receive interest as an issue without substantial controversy.
On December 12, 1980, the superior court certified the action as a class action on behalf of all justices and judges of courts of record of California and all judicial pensioners as of December 12, 1980, and shortly thereafter denied the motion regarding the right to receive interest.
Appellants appealed.
DISCUSSION 4
Appellants base their claim for interest on Civil Code section 3287, subdivision (a), 5 This provision authorizes prejudgment interest in actions based upon a general underlying monetary obligation, including the statutory obligations of a governmental entity. (Tripp v. Swoap (1976) 17 Cal.3d 671, 681, 131 Cal.Rptr. 789, 552 P.2d 749, disapproved on other ground Frink v. Prod (1982) 31 Cal.3d 166, 180, 181 Cal.Rptr. 893, 643 P.2d 476; Mass v. Board of Education (1964) 61 Cal.2d 612, 625-626, 39 Cal.Rptr. 739, 394 P.2d 579.) Our Supreme Court also has determined that actions against governmental bodies to recover retroactive salary increases and improperly withheld pension benefits are actions for damages within the meaning of the statute. (Tripp v. Swoap, supra, 17 Cal.3d at p. 682 fn. 12, 131 Cal.Rptr. 789, 552 P.2d 749; Sanders v. City of Los Angeles (1970) 3 Cal.3d 252, 262-263, 90 Cal.Rptr. 169, 475 P.2d 201; Benson v. City of Los Angeles (1963) 60 Cal.2d 355, 365-366, 33 Cal.Rptr. 257, 384 P.2d 649.)
which provides:
To recover interest against the counties and the state, appellants must initially satisfy three conditions flowing from the statute as outlined in Tripp v. Swoap, supra, 17 Cal.3d at p. 682, 131 Cal.Rptr. 789, 552 P.2d 749: "(1) There must be an underlying monetary obligation; (2) the recovery must be certain or capable of being made certain by calculation; and (3) the right to recovery must vest on a particular day."
The instant case satisfies these three requirements. As to the first, the state and the counties have a statutory obligation to pay the salaries of all judges of courts of record within the state, and these salary payments include periodic cost of living increases. (Gov.Code, §§ 68200-68206.5, 71220.) An action to recover improperly withheld increases is therefore an action on an underlying monetary obligation. (See Tripp v. Swoap, supra, at p. 682 fn. 12, 131 Cal.Rptr. 789, 552 P.2d 749; Sanders v. City of Los Angeles, supra, 3 Cal.3d at pp....
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