Pena v. City of Los Angeles

• Decision Date: 28 May 1970
• Court: California Court of Appeals Court of Appeals
• Parties: Manuel PENA et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents. Civ. 34876.

Page 326

87 Cal.Rptr. 326

8 Cal.App.3d 257

Manuel PENA et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

Civ. 34876.

Court of Appeal, Second District, Division 4, California.

May 28, 1970.

Rehearing Denied June 11, 1970.

Hearing Denied July 22, 1970.

Robert W. Richards, Pacoima, for plaintiffs and appellants.

Roger Arnebergh, City Atty., Bourke Jones, and Jack L. Wells, Asst. City Attys., for defendants and respondents.

IRWIN, Asociate Justice pro tem. ^*

Appellants instituted this action to seek a declaration that they were lawfully entitled to be appointed at the various times they were first certified for appointment as policemen of the City of Los Angeles, and that respondents cause appellants' service records to be corrected accordingly. Respondents, by their answer, pleaded the statute of limitations (Code Civ.Proc., § 338, subd. 1) as a defense. Appellants appropriately amended their pleadings to offset this defense by alleging estoppel. Trial was had and judgment in favor of the respondents was ordered pursuant to Code of Civil Procedure, section 631.8 on the ground, among others, that the appellants' action was barred by the statute of limitations and that there was no evidence to support appellants' contention that respondents were estopped to raise the statute as a defense. This appeal is from that judgment.

The real purpose of this action and the ultimate relief sought by appellants is a declaration to increase or extend their retirement benefits. To accomplish this, it is apparent that the city's appointment records must be corrected, if legally possible. Their pension rights could not have accrued prior to the time the records disclose they entered the service of the city. (See Jones v. O'Toole (1923) 190 Cal. 252, 256, 212 P. 9; Bowen v. City of Los Angeles (1953) 118 Cal.App.2d 297, 257 P.2d 672.)

While appellants have vigorously argued issues relating to their basic rights and seriously complain of some of the court's findings, the essential questions for our decision are whether appellants' causes of action are barred by the statute of limitations and whether respondents are estopped to raise that defense. Since we conclude that the judgment of the trial court in this respect should be affirmed, our discussion will be confined to these issues.

I

With minor exceptions, the claims of the five plaintiffs are essentially the same. Each asserts that he had a legally enforceable right to be appointed as a policeman when first certified, or (in the case of appellant Kelley) when he first should have been certified for appointment. ¹

Appellants further contend that they were refused appointment when first certified on the sole basis of their draft classifications; that other candidates had been appointed previously in 1941 while in military service and then were placed upon military leave of absence, and that this unreasonably denied appellants' rights to equal protection of the law guaranteed by the federal and state Constitutions.

For a better understanding of appellants' position, we give a brief history of their appointment records:

Appellant Manuel Pena was certified for appointment from a civil service eligible list on June 10, 1942. On July 1, 1942 he enlisted in the United States Navy. He further alleges that he was led to believe by defendants that he had been appointed to the position of police officer of the City of Los Angeles. After discharge from military service he was appointed and sworn in as a regular police officer on October 18, 1945.

Appellant Eugene C. Linton was certified for appointment on April 13, 1942. He alleges that he was on that day advised that he would not be appointed until after discharge from military service. At that time and until he went into the service December 28, 1943, he was a deputy sheriff of Los Angeles County. He was discharged from military service on November 12, 1945 and was appointed as a regular police officer on December 21, 1945.

Appellant John O'Grady was certified for appointment on May 13, 1943, and likewise was informed that he would not be appointed until after his discharge from military service. He went into the service April 8, 1944 and was discharged on November 15, 1945 and was appointed as a regular police officer on August 19, 1946.

Appellant Henry Acosta was certified for appointment on July 24, 1942, and on the following day was informed that he would not be appointed until after discharge from military service. He enlisted in the Navy September 12, 1942 and was discharged March 1, 1946. He was appointed as a regular police officer on May 1, 1946.

Appellant Eugene Kelley was certified for appointment September 22, 1943 after he had enlisted in the Navy on June 14, 1943. He alleges that sometime in early June 1943 he was informed by the Personnel Division of the Police Department that his number on the eligible list had been reached and passed, but that he would not be certified because of his draft classification. He was discharged from military service February 3, 1946 and was appointed as a regular police officer on March 21, 1946.

Employment in each case, after military service, was pursuant to the original certifications from the civil service examinations held in 1942--1943.

II

Assuming, but without deciding, that appellants had enforceable rights to demand appointment at the time they were first rejected following certification for appointment, they could have sought writs of mandate to enforce their rights at that time. Their causes of action accrued when they were first refused appointment and the statute of limitations started to run as to each appellant on the day he was informed that he would not be so appointed because of his military draft classification. Appellant Pena makes the additional point that he had been led to believe that he had been appointed and was on military leave when he enlisted in the Navy. Certainly, as to him, the statute started to run at least on the day he was actually appointed and sworn in, to wit, October 18, 1945, for then he must have become aware that he had not been appointed previously.

The statute of limitations applicable to a liability created by statute is three years (Code Civ.Proc., § 338, subd. 1). ² Subdivision 1 of section 338 is applicable to actions in mandamus. (Dillon v. Board of Pension Commrs. (1941) 18 Cal.2d 427, 429, 116 P.2d 37; Baldwin v. Fresno City Etc. School District (1954) 125 Cal.App.2d 44, 50, 269 P.2d 942.)

Civil actions must be commenced within the periods prescribed in the code after the cause of action shall have accrued. A cause of action accrues when a suit may be maintained thereon, and the statute of limitations begins to run on the date of the accrual. If declaratory relief is sought with reference to an obligation which has been breached and the right to commence an action for 'coercive' relief upon the cause of action arising therefrom is barred by the statute, the right to declaratory relief is likewise barred. (Leahey v. Dept. of Water and Power (1946) 76 Cal.App.2d 281, 285, 173 P.2d 69.) As was said in Tostevin v. Douglas (1958) 160 Cal.App.2d 321, 330, 325 P.2d 130, 135:

'Until some conventional right of action has accrued, the statute of limitations does not operate independently to cut off the right to bring one for declaratory relief, and after a 'coercive' right of action has accrued the alternative right to bring an action for the declaratory remedy continues concurrently with the 'coercive' right of action. But after the 'coercive' remedy is barred by the statute of limitations, a declaratory relief action may not be utilized to circumvent the purpose of the statute. (Citations of authorities.) The court made this clear in the case of Maguire v. Hibernia (S. & L. Soc.), Supra, ((1944) 23 Cal.2d 719, 146 P.2d 673) at page 734, 146 P.2d at page 681: 'We are of the opinion that the period of limitations applicable to ordinary actions at law and suits in equity should be applied in like manner to actions for declaratory relief. Thus, if declaratory relief is sought with reference to an obligation which has been breached and the right to commence an action for 'coercive' relief upon the cause of action arising therefrom is barred by the statute, the right to declaratory relief is likewise barred.''

The conventional right of action referred to in Tostevin v. Douglas, Supra, as applied to the facts of this case, is the right plaintiffs had to file an action in 1942 or 1943, immediately after they were allegedly refused employment. For three years after that right accrued (plus time during which the Soldiers and Sailors Relief Act tolled the statute of limitations), the right to declaratory relief existed concurrently with the right to obtain a writ of mandate, injunction or other effective coercive relief. Thereafter, the right to obtain a declaratory judgment as to their right to be appointed by reason of their certification was barred by the statute of limitations just as the right to coercive relief was then barred.

Appellants cite Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 326 P.2d 484, and Dryden v. Board of Pension Commissioners (1936) 6 Cal.2d 575, 59 P.2d 104, as authority for the proposition that their causes of action in declaratory relief are not barred by the statute of limitations. In our judgment these cases are not applicable to the facts of the case at bench. In neither case did the plaintiffs seek coercive action to determine their status as employees, as pensioners or widowers of pensioners. Abbott determined whether plaintiffs were entitled to a fixed or fluctuating pension, and held that the statutory time limitation upon the right to sue for each pension installment commences to run from the time that that installment falls due. Dryden is authority for the proposition that a charter provision barred recovery of monthly pension payments...