Wilson v. County of Santa Clara

• Decision Date: 15 March 1977
• Citation: 68 Cal.App.3d 78,137 Cal.Rptr. 78
• Court: California Court of Appeals Court of Appeals
• Parties: Tom WILSON, Plaintiff and Appellant, v. COUNTY OF SANTA CLARA et al., Defendants and Respondents. Civ. 38283.

Page 78

137 Cal.Rptr. 78

68 Cal.App.3d 78

Tom WILSON, Plaintiff and Appellant, v. COUNTY OF SANTA CLARA et al., Defendants and Respondents.

Civ. 38283.

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

March 15, 1977.

Cottrell, Hofvendahl & Roessler, Russell V. Roessler, San Jose, for plaintiff and appellant.

William M. Siegel, County Counsel, Steven M. Woodside, Deputy County Counsel, San Jose, for defendants and respondents.

SIMS, Associate Justice.

Plaintiff, a deputy sheriff and president of the county deputy sheriffs association, has appealed from a judgment of dismissal entered following an order sustaining, without leave to amend, the demurrer to plaintiff's first amended petition for writ of mandate interposed by the county, its sheriff, the members of its board of supervisors and its county executive, who were named as defendants. In his petition plaintiff sought on behalf of himself, and for the members of the association and all other badge personnel employed by the county, a peremptory writ of mandate commanding the defendants and each of them to approve his request and the requests of all similarly situated, employed in the sheriff's office, for all overtime actually spent in off-duty hours meeting the training requirements mandated in section 217 of the Health and Safety Code, ¹ and to pay him and the others for such overtime.

From the allegations of the amended petition it appears that the plaintiff and others were directed to undertake such training on their own time under threat of disciplinary action. ² The plaintiff contends that the statutory provision that the training 'shall be provided at no cost to the trainee' requires the county to compensate the trainees for the time spent in training if they are required to undertake it outside of their normal duty hours. Alternatively, he asserts that the trainnees, under those circumstances, are entitled to overtime compensation under general contract principles and specific provisions of a county ordinance. We conclude that although the state statute may be neutral on the issue of whether or not the trainee should be compensated for the time he is undergoing training, general contract principles demonstrate that the plaintiff has stated a cause of action for overtime pay or for compensating time off. The trial court erred in sustaining the general demurrer, and the judgment must be reversed.

The first amended complaint after setting forth the names and capacities of the parties, refers to the directive mentioned above. (See fn. 2.) It then alleges that the plaintiff, and others on whose behalf he filed the petition, took the training as required by section 217 of the Health and Safety Code as directed by the sheriff. It is further alleged on information and belief that the State Department of Health designated the county and/or the county sheriff's office as the agency to provide the training required by section 217. Alternatively, it is alleged that the defendants are estopped to deny such designation. ³ Plaintiff states that he and others filed written requests for overtime approval for the training taken, as directed, in off-duty hours, and that such requests were disapproved. There follow allegations of legal conclusions giving rise to the right to a writ of mandate.

The defendants demurred 'on the ground that it fails to state facts sufficient to constitute a cause of action.' The defendants took their cue from the order of the judge who decided the first demurrer. He not only ruled as has been noted (fn. 3 above), but further stated: 'The court does not understand why the County failed to demur on the ground of no cause of action stated, in that the statute doesn't require payment for off-duty time devoted to such training. Had they done so, this matter could have been determined one way or the other at this stage.' Accordingly, the defendants urged that '. . . section 217 only requires that the designated agency provide the training at no cost, i.e., without charge, to the trainee and does not mandate that the deputies be paid for their off-duty time.' They relied on the opinion and decision of the first judge to support that contention.

In supplemental points and authorities the plaintiff brought to the attention of the court a communication from the county executive to the board of supervisors explaining the impact of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.) on county employment, and specifically with relation to training time. The plaintiff urged, '. . . that even without the Fair Labor Standards Act's Amendments of 1974, which are to be liberally interpreted, that mandated training in the public sector should be treated no differently than mandated training in the private sector.' In response the defendants pointed out that the federal legislation, since held inapplicable to local government (see below), was not yet in effect with respect to law enforcement personnel, and in any event had standards which were not exceeded by duty time plus training time. They also renewed their general objection to the lack of a requirement of compensation for off-duty time spent in training.

The second judge ruled, 'A reasonable construction of the relevant part of Sec. 217 of the Health and Safety Code compels the conclusion that the plain legislative intent is that the actual training only is to be provided by the designee agency without monetary charge or expense to the trainee. Had the legislature intended that the term 'no cost' would include compensatory overtime pay for the time expended in undergoing such training, it would have so provided.' The demurrer was sustained without leave to amend, a judgment was entered and this appeal followed.

I

As the judge ruling on the original demurrer pointed out, '. . . (t)he word 'cost' is a word of variable meaning and . . . it must be construed according to the circumstances in which it is used. A review of the authorities is of little value, except to illustrate the fact just stated that, in order to arrive at the intent with which it was used in the particular case, the word is to be construed in the light of all attending circumstances.' (Meyers v. Texas Co. (1936) 6 Cal.2d 610, 619--620, 59 P.2d 132, 136--137.) 'Construction of a statute is a question of law for the court. (Citations.)' (County of Monterey v. Madolora (1959) 171 Cal.App.2d 840, 841, 341 P.2d 333, 334.) We are mindful it is apparent from the statute itself, and has been noted, that the Legislature recognized that the public employees referred to in the statute were all in a position where they may frequently come in contact with persons needing first aid, and, since 1972, cardiopulmonary resuscitation, and that it is in the public interest that they be trained to be of assistance to persons in need of such care. (See Op.No. 68--86 (1968) 51 Ops.Cal.Atty.Gen. 125, 126.) As a statute directed at the protection of the public health and safety it should be construed broadly in order to promote that salutary purpose. (Id.; and see Askew v. Parker (1957) 151 Cal.App.2d 759, 762, 312 P.2d 342.)

Application of the foregoing principles does not answer the problem here. So long as the training and refresher courses are satisfactorily completed, as required by the statute, the public is equally well served whether the state, the local agency, or the trainee himself bears the burden and expense of the training. From 1967 to 1973 the statute was silent with respect to the source of the training or its cost. All that was required was that the training 'shall at least meet the standards of the standard American Red Cross training in first aid.' (See fn. 1 above.) It was apparent, or should have been apparent, to any public employee of the designated classifications, and to the local or state agency by which he was employed that such training was compulsory. We can only assume that the time, cost and manner in which such training would be secured was a matter to be negotiated between the public employee and his public employer.

In 1972, effective March 1973, the statute was amended to give the state health department the responsibility to prescribe the standards for training, to approve the refresher courses, and to designate the agency to provide for each county the training required by the section. It was at this time that the section was amended to provide, 'Such training shall be provided at no cost to the trainee.' We read this statute as restricting the bargaining between employer and employee concerning the burden of qualifying for public employment in the classifications set forth in the statute. It clearly requires that the prescribed training shall be provided at no cost to the trainee at least to the extent that the designated agency incurs expenses in providing that training. We express no opinion as to whether the state, or the public employer, when not itself a designated agency, or the designated agency must bear such expense. The question here is whether the 'cost' referred to in the statute includes the time of the employee.

Webster's Third New International Dictionary (1961) gives the following definitions for 'cost': '1a: the amount or equivalent paid or given or charged or engaged to be paid or given for anything bought or taken in barter or for service rendered: charge, price b: whatever must be given, sacrificed, suffered, or forgone to secure a benefit or accomplish a result . . . 2: loss, deprivation, or suffering as the necessary price of something gained or as the unavoidable result or penalty of an action . . . 3: the expenditure or outlay of money, time, or labor . . .'

Plaintiff would delete the references to 'charge' or 'price' and stresses 'the outlay of . . . time or labor.' The defendants for their part insist that the charge or price for the training is all that is encompassed by the statutory prohibition, and that in the absence of express language so providing...