Olson v. County of Sacramento

• Decision Date: 02 May 1974
• Citation: 113 Cal.Rptr. 664,38 Cal.App.3d 958
• Parties: Berns T. OLSON, Plaintiff and Appellant, v. COUNTY OF SACRAMENTO, a political subdivision, Defendant and Respondent. Civ. 13944.
• Court: California Court of Appeals Court of Appeals

Page 664

113 Cal.Rptr. 664

38 Cal.App.3d 958

Berns T. OLSON, Plaintiff and Appellant, v. COUNTY OF SACRAMENTO, a political subdivision, Defendant and Respondent.

Civ. 13944.

Court of Appeal, Third District, California.

May 2, 1974.

Friedman, Collard & Kauffman, by Raymond E. Ball, Sacramento, for plaintiff-appellant.

Hardy, Erich & Brown, by William A. Wilson, Sacramento, for defendant-respondent.

GOLDSTEIN, ^* Associate Justice.

Plaintiff appeals from a judgment of dismissal, following a ruling that his cause of action is barred by the statute of limitations and sustaining, without leave to amend, a general demurrer of defendant County of Sacramento alleging that the complaint failed to state a cause of action.

The Facts

Plaintiff, a civil service employee of Sacramento County, was dismissed on June 9, 1969, from his position by Dr. Irene Hickman, County Assessor of that county, for failure to report to work. He appealed his dismissal to the Civil Service Commission. The latter, after a hearing before a referee of the commission, sustained the action taken by the assessor. Thereafter, plaintiff petitioned the Superior Court of Sacramento County for a writ of mandate setting aside and annulling the order of dismissal. His petition was denied. He then appealed to this court from the ruling of the superior court. We reversed the earlier rulings and held that he had been discharged without just cause; that his dismissal should be annulled; that the action taken by the assessor was discriminatory and illegal; and that he should be restored to his former position, with 'such back salary as he may be entitled to by law.' ¹

On June 2, 1972, 95 days after our decision was rendered, plaintiff filed a written claim for damages with the County of Sacramento alleging that his June 1969 dismissal resulted from negligence and/or intentional acts whereby he was caused emotional distress, pain and suffering resulting in the impairment of his health. On October 2, 1972, he filed the within action based on the allegations which were the subject of his claim.

Defendant County of Sacramento demurred generally to the complaint, alleging that it was barred by various statutes of limitations in both the Code of Civil Procedure and the Government Code. The trial court found that the action was barred by section 340 of the Code of Civil Procedure. ²

Contentions of the Parties

Both parties agree that if plaintiff's cause of action accrued on the date of our decision annulling his dismissal, his claim and action were timely filed. County of Sacramento, however, contends that plaintiff's cause of action accrued approximately three years previously, to wit: on the date of his dismissal.

The Issue Presented

The issue is thus sharply drawn. When did plaintiff's cause of action accrue, or conversely: Were the applicable statutes of limitations tolled until the final determination of the former action in this court on February 28, 1972?

The Law

The proliferation of administrative proceedings during the past quarter-century, particularly those having a bearing on or collateral to the assertion of independent legal rights, has had an unmistakable impact on previous rulings as to the accrual date of causes of action. This, in turn, has given rise to the related question as to when statutes of limitations in such actions begin to run or, conversely, are tolled. In each case, the answer depends on the interrelationship between the administrative proceeding and the independent cause of action. No comprehensive general rule has thus far emerged, the problem being dealt with on a case-to-case basis. We discuss four of these cases hereinafter, as guidelines in the case at bench.

In Lee C. Hess v. City of Susanville (1959) 176 Cal.App.2d 594, 1 Cal.Rptr. 586 the defendant had wrongfully cancelled a construction contract previously awarded to one Hess on the ground that he was not properly licensed to perform the work thereunder. The contract was then awarded to a competitor named Katsaros. The City then filed suit against Hess to invalidate his contract and to validate the award of the contract to Katsaros. Hess prevailed on a cross-complaint in which he sought validation of his contract. Hess later filed suit against the City of Susanville for damages resulting from the increase in construction costs during the four-year period required for the resolution of the City's validation suit. One of the questions discussed in the decision was whether Hess's action was barred by the statute of limitations. As to this, the court stated at page 598, 1 Cal.Rptr. at page 589: 'The action was not barred by the statute of limitations. The running of the statute of limitations was suspended during the pendency of The validation proceedings, hence appellant Had no cause of action until it was finally judicially determined that respondent had wrongfully breached its contract. (Citation.)' (Emphasis added.)

In Dillon v. Board of Pension Commrs. (1941) 18 Cal.2d 427, 116 P.2d 37, plaintiff, the widow of an employee of the City of Los Angeles, became entitled to pension rights upon his death. A question arose as to when her cause of action for pension payments arose, and whether the statute of limitations was a bar thereto.

The Los Angeles City Charter required that an application be made to the Board of Pension Commissioners before court action could be taken on the pension claim. Plaintiff, in compliance with the foregoing provision, filed a claim with the board. It was rejected. More than three years after such rejection she instituted suit for the pension. The court held that although her action was barred by the three-year statute of limitations (Code Civ.Proc., § 338), nevertheless the statute of limitations Was tolled while her claim was under consideration by the board. The court stated at pages 430--431, 116 P.2d at page 39:

'Since, however, action by the board must precede court proceedings to obtain a pension, a claimant who has applied to the board cannot sue for the pension while the claim is under consideration by the Board. It is well recognized that the running of the statute of limitations is Suspended during any period in which the plaintiff is legally prevented from taking action to protect his rights.' (Emphasis added.)

This brings us to the leading case of Lerner v. Los Angeles City Board of Education (1963) 59 Cal.2d 382, 29 Cal.Rptr. 657, 380 P.2d 97, in which both Hess and Dillon, supra, are cited with approval.

Lerner entered a plea of guilty to a misdemeanor morals offense on July 15, 1948. He was placed on probation and fined. In January 1949, after the successful completion of his probation, he was permitted to withdraw his former plea of guilty and enter a not guilty plea and the case was dismissed pursuant to section 1203.4 of the Penal Code.

In September 1948, while he was still on probation, Lerner obtained employment with the Los Angeles City Board of Education as a probationary teacher. His tenure became permanent in 1950. In 1954, the State Board of Education became aware, for the first time, of his conviction of a morals offense prior to his employment as a teacher. Acting on the authority of section 12756 of the Educational Code (as then enacted) the state board, without prior notice, revoked his teaching credential. Four days later he was dismissed by the Los Angeles City Board of Education from his position as a teacher on the ground that he no longer held a teaching credential.

Lerner took no legal action for the restoration of his credential. He did make personal appeals for assistance in getting his credential restored to the Attorney General and the Governor, without success. In 1958, the decision was rendered in Fountain v. State Board of Education, 157 Cal.App.2d 463, 320 P.2d 899 (hg.den.). The court there held in a case involving basic facts identical with those in Lerner that the action taken by the board in revoking a teaching credential based on the retrospective operation of a morals conviction was invalid. In December 1968, Lerner sued the Los Angeles City Board of Education for restoration to his former position. The board interposed the statute of limitations as a defense. It contended that his cause of action accrued immediately upon his wrongful dismissal, and that, like Fountain, upon his discharge he could have petitioned by writ of mandate for restoration to his former position. The court rejected the board's contention, stating at page 391 of 59 Cal.2d at page 662 of 29 Cal.Rptr. at page 102 of 380 P.2d: 'Since Lerner's cause of action against the city board could not have accrued unless and until the state board restored his credential, Such favorable action of the state board constituted a condition precedent to effective action against the city board. A writ of mandate against the city board could not, of course, have issued to command the reinstatement of Lerner until the state board granted his credential. (California Highway Com. v. Riley (1923) 192 Cal. 97, 112, 218 P. 579 . . ..)' (Emphasis added.)

The court additionally pointed out at page 390, 29 Cal.Rptr. at page 661, 380 P.2d at page 101: 'Thus, when the state board reinstated Lerner's credential as though never revoked, the state board removed the basis for the city board's termination of his employment; the city board in turn became obligated to reinstate him. (Matteson v. State Board of Education (1943) 57 Cal.App.2d 991, 136 P.2d 120 . . ..)'

It will be noted that Lerner took no steps to test the legality of his dismissal. In the case at bench, on the contrary, plaintiff actively pursued every available prescribed administrative and legal remedy to obtain the annulment of his dismissal.

In A. Teichert & Son, Inc. v. State of Cal. (1965) 238 Cal.App.2d 736, 48 Cal.Rptr. 225, the plaintiff had entered into a highway construction contract with the defendant. A dispute arose as to whether the plaintiff was entitled...