DILLON v. BOARD OF PENSION COM RS OF CITY OF LOS ANGELES

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

DILLON v. BOARD OF PENSION COM'RS OF CITY OF LOS ANGELES et al.

Civ. 12419

Decided: March 25, 1940

Pollock & Pollock, Edward I. Pollock, and David Pollock, all of Los Angeles, for appellant. Ray L. Chesebro, City Atty., Frederick von Schrader, Asst. City Atty., and Robert J. Stahl, Deputy City Atty., all of Los Angeles, for respondents.

From a judgment of dismissal entered in favor of respondent predicated upon the sustaining of a demurrer without leave to amend to the first amended petition for a peremptory writ of mandate requiring respondents to award petitioner a pension, petitioner appeals.

The petition, after setting forth the capacity of respondents, alleges:

“II. That your petitioner was the lawfully wedded wife of the deceased, Arnold G. Dillon, and had been married to said Arnold G. Dillon since December 25th, 1930; and continuously to the date of the death of the said deceased Arnold G. Dillon; that your petitioner is now the lawful widow of the said deceased Arnold G. Dillon, and has not remarried since the death of her aforesaid husband.

“III. That said deceased Arnold G. Dillon, was, at the time of his death, and had been continuously prior thereto for a period of more than seventeen (17) years, a member of the Los Angeles Police Department, to-wit: a patrolman, and for more than three (3) years next immediately preceding his death, the said deceased, Arnold G. Dillon, had received, as such police officer, a salary of Two Hundred ($200.00) dollars per month, the same being his average monthly rate of salary during said last mentioned period.

“IV. That on or about the 15th of April, 1934, the said Arnold G. Dillon died as a result of injuries received during the performance of his duties as a police officer of the City of Los Angeles; that the immediate occasion of his death was a self-inflicted gun shot wound of the head, which said Arnold G. Dillon inflicted upon himself as a result of his unbalanced mental condition at the said time.

“V. That on or about the 25th of April, 1931, and during the course of his employment as such police officer, said Arnold G. Dillon suffered severe injuries to his body, nervous system and head, as a result of a collision between the automobile in which he was riding and an automobile being driven by a Mrs. Greenhaw; said accident occurred at or near the intersection of Soto and Houston Streets, City of Los Angeles, State of California.

“VI. That thereafter and on or about the 10th of June, 1932, and during the course of his employment as such police officer, the said Arnold G. Dillon suffered severe injuries to his body, nervous system and brain, as a result of being struck by a truck at the aforesaid time, while escorting children across the street at or near the intersection of Ann and North Main Streets, Los Angeles, California.

“VII. That your petitioner is informed and believes and upon such information and belief alleges that the injuries resulting from either or both of the above described accidents caused said Arnold G. Dillon to become mentally unbalanced and while so mentally unbalanced, and as a direct and proximate result thereof, the said Arnold G. Dillon took his life as aforesaid; that the death of the said Arnold G. Dillon was directly and proximately caused by and resulted from said injuries so received by him during the performance of his duties as a police officer of the City of Los Angeles, State of California.

“VIII. That on or about the month of September, 1934, your petitioner filed with the respondent The Board of Pension Commissioners of the City of Los Angeles an application for a pension as provided in Article 17, Section 183 of the Charter of the City of Los Angeles, and demanded payment of same.

“IX. That your petitioner thereafter produced evidence in support of her application but that thereafter or on or about the 26th of February, 1935, the said Board of Pension Commissioners of the City of Los Angeles, arbitrarily and unreasonably denied the said application and refused to award and ever since have refused to award and has not paid petitioner herein the pension to which she is entitled by virtue of the Article 17, Section 183 of the Charter of the City of Los Angeles, State of California, or any pension whatsoever.

“X. That your petitioner is informed and believes and upon such information and belief alleges that there are sufficient monies on deposit in the city treasury of the City of Los Angeles, to the credit of the Fire and Police Fund to pay your petitioner any and all pensions to which she is entitled.

“XI. That it is the plain, ministerial and absolute duty of said Board of Pension Commissioners of the City of Los Angeles and of the respondents as members thereof, to make its and their order awarding your petitioner the pension to which she is entitled by virtue of Article 17, Section 183, of the Charter of the City of Los Angeles; that your petitioner has no plain, speedy and adequate remedy at law.

“Wherefore, petitioner prays judgment that a peremptory Writ of Mandate issue out of this Court commanding said Board of Pension Commissioners of the City of Los Angeles, and respondents, members thereof, to:

“1. Make its and their order awarding to petitioner herein the pension to which she is entitled by virtue of Article 17, Section 183, of the Charter of the City of Los Angeles; and that said pension be paid to her upon the first of each and every month during her lifetime and commencing upon the first day of the month immediately following the date of said order;

“2. Make its and their order that there be paid to your petitioner herein, in cash, a sum equal to the amount of pension funds due for the period of three (3) years immediately preceding the date of filing of the within petition; and a sum equal to the amount of pension which will accrue to and including the date of said order, together with interest thereon at the rate of Seven (7%) per cent per annum;

“3. For the costs of your petitioner incurred herein and for such other and further relief as to the Court may seem just and proper.”

This is the sole question to be determined:

Does the foregoing petition state a cause of action not barred by the statute of limitations (sec. 338, subd. 1, Code Civ.Proc.)?

This question must be answered in the negative and is governed by the following established principles of law:

(1) A claim for a pension is one upon a liability created by statute and, in the absence of an express charter provision fixing a time within which an action may be filed to enforce the right to a pension, is subject to the limitation of three years as provided in section 338, subdivision 1, of the Code of Civil Procedure. Hermanson v. Board of Pension Com'rs, 219 Cal. 622, 624, 28 P.2d 21; Dryden v. Board of Pension Com'rs, 6 Cal.2d 575, 580, 59 P.2d 104.

(2) The statute of limitations may be relied upon as a defense in a special proceeding for a writ of mandate. Hermanson v. Board of Pension Com'rs, supra, 219 Cal. at page 625, 28 P.2d 21.

(3) It is an essential element of a cause of action for a pension to allege and prove that a claim for the same has been presented and rejected in accordance with the requirements of section 376 of article XXVIII of the charter of the city of Los Angeles. No suit can be maintained on such a claim unless the same shall be presented to the city or the appropriate board of said city within six months after the last item sued upon has accrued. Dryden v. Board of Pension Com'rs, supra, 6 Cal.2d at page 580, 59 P.2d 104.

From the facts alleged in the petition it appears that petitioner's husband died April 15, 1934, that in September of the same year petitioner filed her application for a pension with respondent board, which application was denied on the 26th day of February, 1935. The present proceeding was commenced December 5, 1938, which was more than three years after the rejection of petitioner's claim. Hence, under the rules of law, (1) and (2), above stated, any cause of action which petitioner may have had based upon her application for a pension filed with respondent board in September of 1934 was barred by the statute of limitations on and after February 27, 1938, more than nine months before the present proceeding was filed.

Since there is no allegation in the petition that any subsequent claim or demand for a pension has been filed by petitioner with either of respondents, under rule of law (3) above stated, there is a total absence of the allegation of an essential fact to support a cause of action for a pension, and the trial court properly sustained the demurrer to the petition without leave to amend.

Because of the foregoing conclusions, it is unnecessary for us to consider the discussion in Talbot v. City of Pasadena, 28 Cal.App.2d 271, 82 P.2d 483, as to the nature of a claim for a pension, to-wit, whether or not the right to a pension is a continuing one.

For the foregoing reasons the judgment is affirmed.

McCOMB, Justice.

We concur: MOORE, P.J.; WOOD, J.

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