Le Strange v. City of Berkeley

• Court: California Court of Appeals
• Writing for the Court: MOLINARI; BRAY, P. J., and SULLIVAN
• Citation: Le Strange v. City of Berkeley, 210 Cal.App.2d 313, 26 Cal.Rptr. 550 (Cal. App. 1962)
• Decision Date: 30 November 1962
• Parties: Harriet A. LE STRANGE, Plaintiff, Respondent and Appellant, v. CITY OF BERKELEY, a municipal corporation, and Police Pension Board, Fire Pension Board, Claude B. Hutchison, John D. Phillips, Fred A. Bird, Chester Moller, John Holstrom, Mrs. Lee Breckinridge Thomas, and Weldon L. Richards, Defendants, Appellants and Respondents. Civ. 20103.

Page 550

26 Cal.Rptr. 550

210 Cal.App.2d 313

Harriet A. LE STRANGE, Plaintiff, Respondent and Appellant, v. CITY OF BERKELEY, a municipal corporation, and Police Pension Board, Fire Pension Board, Claude B. Hutchison, John D. Phillips, Fred A. Bird, Chester Moller, John Holstrom, Mrs. Lee Breckinridge Thomas, and Weldon L. Richards, Defendants, Appellants and Respondents.

Civ. 20103.

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

Nov. 30, 1962.

Rehearing Denied Dec. 26, 1962.

Robert T. Anderson, City Atty., Robert P. Berkman, Asst. City Atty., Berkeley, for appellants.

Arthur Bellman, Berkeley, for respondent.

MOLINARI, Justice.

This is an appeal by both parties from a judgment of the court below involving a pension claim of the plaintiff, Harriet A. Le Strange (hereinafter sometimes referred to as the widow), against the defendants, City of Berkeley, a municipal corporation, its Police Pension Board, and its Fire Pension Board and the members thereof (hereinafter sometimes collectively referred to as the City).

The Facts

James Howard Le Strange died on November 2, 1956, while he was Chief of the Fire Department of the City of Berkeley. His death was due to a staphylococcus infection. His widow, Harriet Le Strange, filed an application with the Fire Pension Board of the City of Berkeley (hereinafter referred to as the Board) seeking a pension under either of two sections in the Firemen's Pension Ordinance of said City. Section 8 provides for a pension in the case of a fireman who dies while in the City's employ but not in the line of duty. Under this section the widow would be entitled to one-third of the salary her husband was receiving at the time of his death. The other section, section 11, provides that the surviving spouse is to receive one-half of the salary of the deceased fireman 'upon satisfactory proof' that he lost his life 'as a direct result of the actual performance of his duty * * *.' The sole question presented to the Board was whether the infection and Chief Le Strange's resulting death were a direct result of the actual performance of his duty as chief of said fire department. The Board concluded that they were not a result of the actual performance of duty and awarded the chief's widow a one-third pension under section 8, but denied her application for a pension under section 11.

There was evidence presented to the Board that: Chief Le Strange frequently visited injured firemen in the hospitals during his tenure as chief; that in 1956 he developed prostate trouble and entered the hospital on March 26 and 27 for preliminary examination and was again hospitalized from June 25 to June 30, 1956, for a prostatectomy; that on May 21, 1956, while fighting a fire, he received a cut on the back of his right hand and received first aid treatment at the fire; that said wound did not heal and was festering at the end of June; that it was still festering in early August; that toward the end of August pain developed in the upper forearm requiring a hospital entry on September 3 when the elbow was surgically explored; that he re-entered the hospital because of such infection on October 30 and remained until November 2 when he died. Testimony was adduced before the Board that the staphylococcus infection developed at some point during the times and periods abovementioned, but there was a conflict in the medical testimony as to how said infection was contracted. There was evidence that it was the result of the wound; that it was contracted while the chief was in the hospital for his prostate trouble; and also that it could have been contracted while visiting the injured firemen in the hospitals.

Section 3 of the said ordinance provides for a board of seven members and also provides that 'No action may be taken by the Board except by a majority vote of the entire membership thereof.' Two hearings were held before the Board, i. e., on May 11 and May 20, 1959. At these hearings oral and documentary evidence was presented. This included the oral testimony of physicians, reports of physicians and the transcript of the testimony before a Referee of the Industrial Accident Commission. At the morning session on May 11, all seven members of the Board were present, but only six were present in the afternoon session, Councilman Richards having been excused. On this day Acting Police Chief Fording was in attendance as a member of the Board in place of Police Chief Holstrom, the ordinance providing that in the absence of the police chief the person designated to act in the capacity of police chief shall be a member of the Board while so acting. On May 20 six members of the Board were present, Richards again being absent, and Holstrom instead of Fording serving as the police chief member. At the conclusion of this hearing the matter was taken under advisement. On May 29, 1959, the Board met to consider and determine the matter. All seven members were then present, among them being Holstrom. A motion to grant a pension under section 11 was made. The motion failed to carry, three votes being cast in favor of, and four against the motion. Three of those voting against the motion had been present at all sessions, the other so voting, being Richards. Of the three voting for the motion, two had been present at all sessions, the other being Holstrom, who had attended only one of the two hearing sessions. A motion to grant a widow's pension under section 8 (i. e., for one-third of the salary) was then made and unanimously adopted by the Board.

Following the denial of her claim for a pension of one-half of her husband's salary, the widow brought the instant action in the superior court seeking a trial de novo, a judgment in her favor awarding her a pension of one-half of her husband's former salary, a money judgment for specified sums, and for declaratory relief.

At the trial, the court preliminarily held that the plaintiff was not entitled to a trial de novo. It ruled, further, that the question to be determined was not whether there was any evidence submitted to the Board which would sustain its finding, but whether plaintiff had submitted 'satisfactory proof' that Chief Le Strange lost his life as a direct result of the actual performance of his duty. The court explained that no new evidence would be admitted and apparently stated that it would re-examine the evidence which the Board considered. Subsequently all of the evidence which was before the Board was admitted in evidence, including transcripts of the oral proceedings before the Board and a written statement of 'Facts and Issue Before the Fire Pension Board,' which was signed by counsel for the respective parties and which had been presented to the Board for its consideration at the hearing before it. Additionally, the following two exhibits which do not constitute evidence which was before the Board were admitted in evidence, to wit: the 'Findings and Award' of the Board and a deposition by Fred A. Bird, Treasurer of the City of Berkeley and exofficio member of the Board.

The trial court found: (1) That the plaintiff was denied due process in that two of the members were not present during a portion of the time during which oral testimony before the Board was taken; (2) the Board should hear the matter de novo; and (3) that pending further action the Board should continue paying the smaller pension. The trial court thereupon remanded the entire matter to the Board. Both parties have appealed from the judgment. Plaintiff widow asserts that the trial court should have decided the case de novo on its merits, while the City urges that the trial court should not have remanded the matter to the Board but should have affirmed the Board's findings and award.

The Issues

1. Is the Pension Board a quasi-judicial body?

2. What is the scope of review at the trial court level?

3. Was the plaintiff widow denied due process during the course of the hearing before the Board?

4. Should the trial court have granted the plaintiff the relief requested by her?

Contentions

The City contends that the Board was exercising judicial or quasi-judicial functions and that therefore the trial court was limited to a determination of whether the Board's decision is supported by substantial evidence; that there was substantial evidence before the Board to support its determination that Chief Le Strange did not lose his life as the direct result of the actual performance of his duty; and that plaintiff was not denied due process by the Board.

The widow asserts that she was denied due process by the Board; that the trial court should have tried the case de novo on the merits because the Board does not have fact finding powers; that the trial court should have decided the case in the interests of justice, having held a trial and received all of the evidence; that the Board acted under an erroneous interpretation of the law; and finally, that if it be determined that the Board did possess quasi-judicial powers that the plaintiff did present satisfactory proof of death resulting from injury incurred in the line of duty, while that presented by the City was merely "chance" evidence not based upon all the medical facts.

Scope of Review

The appropriate method of reviewing the decisions or orders of local administrative agencies, whether involving judicial functions or not, is by mandamus. (Boren v. State Personnel Board, 37 Cal.2d 634, 637, 234 P.2d 981; 2 Cal.Jur.2d § 220, p. 363; Code Civ.Proc. § 1094.5; 3 Witkin, Calif.Proc. § 16, pp. 2484-2486.) The complaint in the instant case is, in form, simply one in a civil action and one for declaratory relief. While such a complaint is inappropriate for review of an administrative determination, it may be regarded as a petition for writ of mandate if it states a cause of action for mandamus. (Boren v. State Personnel Board, supra, p. 638, 234 P.2d p. 983; Hostetter v. Alderson, 38 Cal.2d 499, 500, 241 P.2d 230.) The...