Welshans v. City of Santa Barbara

• Decision Date: 29 June 1962
• Citation: 23 Cal.Rptr. 108,205 Cal.App.2d 304
• Parties: Warner WELSHANS, Plaintiff and Appellant, v. CITY OF SANTA BARBARA, a Municipal Corporation, Defendant and Respondent. Civ. 25725.
• Court: California Court of Appeals Court of Appeals

Page 108

23 Cal.Rptr. 108

205 Cal.App.2d 304

Warner WELSHANS, Plaintiff and Appellant, v. CITY OF SANTA BARBARA, a Municipal Corporation, Defendant and Respondent.

Civ. 25725.

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

June 29, 1962.

Charles H. Lynch, Santa Barbara, for appellant.

Stanley T. Tomlinson, City Atty., Willard W. McEwen, Jr., Asst. City Atty., for defendant.

HERNDON, Justice.

This is an appeal by plaintiff from a judgment on the pleadings in favor of defendant City of Santa Barbara in an action brought by a former employee of the fire department seeking compensation for overtime work.

A motion by defendant for a judgment on the pleadings operates as a demurrer to the complaint and if the complaint states a cause of action, it is error to grant the motion. (Dragna v. White, 45 Cal.2d 469, 470, 289 P.2d 429.) As on demurrer, the defendant's motion cannot be aided by reference to the answer or to matters outside the complaint. (Douglass v. Dahm, 101 Cal.App.2d 125, 129, 224 P.2d 914; Uptown Enterprises v. Strand et al., 195 A.C.A. 45, 46, 15 Cal.Rptr. 436.)

The complaint alleges that appellant was appointed a member of the Fire Department of the City of Santa Barbara on or about September 1, 1956, which position he held continuously thereafter until his resignation on October 9, 1959; that prior to January 9, 1958, the city council enacted ordinance No. 2638 and thereby 'abrogated' section 15 of ordinance No. 2424 theretofore in effect. A copy of section 14 of ordinance No. 2638 is incorporated into the complaint. It reads as follows:

'Work Week. Full time City Employees shall work a minimum of forty (40) hours per week. Work in excess of forty (40) hours per week must be authorized by the Department Head. Such overtime work shall be compensated for either by equivalent time off or by payment at straight time. Payment for overtime shall not be allowed without approval of the Chief Administrative Officer.

'Members of the Police Department shall work a minimum of forty (40) hours per week and shall not be entitled to any pay for overtime. Department Heads, members of the Fire Department and temporary Beach Lifeguards shall not be entitled to any pay for overtime.' (Emphasis added.)

Section 15 of 'abrogated' ordinance No. 2424 is quoted in the complaint as follows: 'Full-time City Employees shall work a minimum of forty hours per week and be paid straight time for overtime. This Section as to overtime shall not apply to department heads, temporary beach lifeguards, or members of the Fire Department who shall not be entitled to any pay for overtime. The members of the Police Department shall work a minimum of forty hours per week and shall not be entitled to any pay for overtime.'

Appellant further alleges that pursuant to ordinance No. 2638, he is entitled to time off for overtime work in excess of forty hours per week performed by him during the perior from January 9, 1958, to October 9, 1959, when he resigned; that he was not granted time off; that during the said period he worked and was on duty a total of 3,012 hours overtime; that since he had resigned from the Fire Department and could not be compensated by being given equivalent time off, he filed his claim with the city clerk on January 4, 1960, demanding payment of $7,294.88, 'which sum is a fair and reasonable one for the [said] overtime work * * * and is based on the rate of pay earned by the plaintiff during the period between January 9, 1958, and October 9, 1959;' that the defendant city has rejected and refused to pay said claim.

The city filed its answer denying all the allegations of the complaint except the allegations that plaintiff was appointed a member of the fire department and continuously held the position during the period alleged, and that the verified claim which he filed with the city had been rejected. The city's motion for judgment on the pleadings was granted.

Appellant contends that his complaint states a cause of action arguing that ordinance No. 2638 requires that members of the fire department be compensated for work in excess of forty hours per week by equivalent time off, and since at the time of his resignation he had not received the time off to which he was entitled, he now has a right to recover equivalent compensation in money. The city relies on the express provision of the ordinance that 'Department Heads, members of the Fire Department and temporary Beach Lifeguards shall not be entitled to any pay for overtime.'

Appellant argues that the differences in the provisions of ordinances 2424 and 2638 are such as to indicate that it was the legislative intent, in the enactment of the latter ordinance, to confer upon firemen the right to equivalent time off for time worked in excess of forty hours. The presently effective ordinance provides that full time city employees shall be compensated for overtime work by equivalent time off or by payment at straight time. The earlier ordinance provided only the latter compensation. It is to be observed that both ordinances provide that 'full time City Employees shall work a minimum of forty (40) hours per week.'

Ordinance 2424 provided: 'This Section as to overtime shall not apply to department heads, temporary beach lifeguards, or members of the Fire Department who shall not be entitled to any pay for overtime.' As we have observed, ordinance 2638 provides that '* * * members of the Fire Department * * * shall not be entitled to any pay for overtime.' (Emphasis added.) Appellant argues that this latter provision of 2638, read with the provision in the first paragraph of the ordinance that 'overtime work shall be compensated for either by equivalent time off or by...