LORENSON v. CITY OF LOS ANGELES

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District Court of Appeal, Second District, Division 3, California.

LORENSON et al. v. CITY OF LOS ANGELES.*

Civ. 19218.

Decided: March 09, 1953

Ray L. Chesebro, City Atty., Bourke Jones and Alan G. Campbell, Asst. City Attys., George William Adams, Deputy City Atty., Los Angeles, for appellant. Thomas D. Kelly, Los Angeles, for respondents.

The City of Los Angeles appeals from a judgment in favor of plaintiffs for a balance of salary due Harry M. Lorenson as a captain in the city police force.

On April 12, 1949, plaintiff Harry M. Lorenson of the Los Angeles Police Department was indicted for conspiracy to commit assault, robbery and to obstruct justice. See Lorenson v. Superior Court, 35 Cal.2d 49, 216 P.2d 859. On the same day, Chief of Police Horrall filed charges against Lorenson, asking his removal upon grounds stated as follows: ‘Cause 1. Conduct unbecoming an officer. Count 1. In that on or about April 12, 1949, he was indicted by the Los Angeles County Grand Jury on a charge of conspiracy to violate Sections 245, 211, and 182, subd. (5) of the Penal Code, such action causing embarrassment to the Department.’ On the following day the Chief of Police temporarily relieved Lorenson from duty under § 202(2) of the City Charter, which authorizes the Chief of Police to: ‘(a) Temporarily relieve from duty any officer or employee of the Police Department pending a hearing before and decision by the Board of Rights of any charge or charges pending against such officer or employee;’ or ‘(b) Suspend such officer or employee for a total period not to exceed thirty (30) days with loss of pay and with or without reprimand, subject, however, to the right of such officer or employee to a hearing before a Board of Rights.’ A Board of Rights was duly organized and set the matter for hearing at various times but did not dispose of it until March, 1950, at which time, without a trial, the board ordered the charges dismissed and restoration of Lorenson to duty without loss of pay. This action was taken immediately after the dismissal of the criminal charges in the superior court for insufficiency of evidence. After restoration to duty Lorenson retired. He had not received any pay since April 13, 1949. On April 19, 1950, he filed a claim for $5,652.74. It was allowed for the six months' period immediately preceding the filing of the claim, but was disallowed for the balance of $3,110.97. The ground for disallowance was the fact that Lorenson had not filed claims for salary within six months after each semimonthly instalment fell due. As authority for this position the city at that time contended, and it now contends, that the claim, insofar as it related to instalments falling due more than six months prior to the filing of the claim was barred by § 376 of the charter.1 This, as we shall see, is the only question to be decided on the appeal.

A preliminary question is whether the order relieving Lorenson from duty was valid and sufficient to temporarily deprive him of his salary as it accrued. If it was a void order he was entitled to receive his salary semimonthly while the charges were pending. The city contends, and we agree, that the attempted relief from duty was ineffective for failure to comply with charter provisions. We quote from § 202(1) as set out below,2 and also from § 202(3).3

The mere fact that Lorenson had been indicted would not have furnished legal ground for his suspension, dismissal, or other disciplinary action. It would have justified an order temporarily relieving him from duty, but such an order would have been upon conditions stated in the charter.

The only charges filed were those we have quoted, and since no complaint was filed containing ‘a statement in clear and concise language of all the facts constituting the charge made,’ the failure to file the same rendered applicable the language of § 202(3): ‘[t]he aforesaid order of temporary relief from duty or order of suspension shall thereupon become void and of no effect and shall be automatically revoked, and the accused officer or employee restored to duty with the department without loss of pay and without prejudice, the same as if no order of relief from duty or order of suspension had been made.’ (Emphasis added.) It follows that in the absence of the filing of a sufficient complaint within five days after the order of relief from duty the order became void and of no effect. Lorenson was to be deemed a member of the department at all times and was entitled to his salary as it accrued semimonthly from and after April 13, 1949. The fact that he was automatically restored, as of the date of the attempted layoff, rendered it unnecessary for him to make a demand for reinstatement under § 112 1/212 of the charter before suing for his compensation. See Verela v. Board of Police Commissioners, 107 Cal.App.2d 816, 238 P.2d 62.

In contending that Lorenson should have filed a separate claim for each instalment of salary, the city relies upon the case of Dryden v. Board of Pension Com'rs, 6 Cal.2d 575, 59 P.2d 104. That was a case where the widow of a police officer sued for a pension under the Los Angeles City Charter. She first filed a claim for a pension some ten months after the death of her husband. Her claim was denied by the Board of Pension Commissioners ‘on the sole ground that section 376 of the city charter required all such claims or demands to be presented within six months, and that, since more than six months had elapsed since the death of petitioner's husband, the said claim was barred and petitioner entitled to no relief under the pension provisions of the city charter of the city of Los Angeles.’ 6 Cal.2d 577, 59 P.2d 105. In the opinion of Mr. Justice Pro Tempore Roth of the District Court of Appeal, adopted by the Supreme Court, it was said: ‘The sole point presented on petitioner's appeal (Civ. No. 9912) [Dryden v. Board of Pension Com'rs, Cal.App., 51 P.2d 177] is the correctness of the trial court's ruling in this respect.’ The court held that the widow was entitled to present and future payments but that those which had accrued more than six months prior to the filing of the claim were barred. Inferentially, the court held that the final phrase of the provision of § 376 that the claim must be filed ‘within six (6) months after the last item of the account or claim accrued’ does not apply in the case of a life pension. A reference to the briefs discloses that the petitioner was contending that the claim was timely filed because ‘the last item would not accrue until petitioner dies or remarries.’ It will be noticed that the section relates to the time the last item accrued. This use of the past tense renders the language inapplicable to instalments of a life pension.

In commenting upon the Dryden case the court in Dillon v. Board of Pension Com'rs, 18 Cal.2d 427, at page 431, 116 P.2d 37, at page 40, 136 A.L.R. 800, said: ‘Thus, a claimant can assert his right to a pension before the board at any time after the event giving rise to the claim has occurred so long as the claim is made within six months after any payment would have accrued. If the pension is granted he is entitled to receive payments in the future but can recover only those past payments which would have accrued within a period six months prior to the time of the making of the claim. This result is compelled by the peculiar wording of this charter provision, which establishes as the point of reference for the running of the six months' period, not the time when the right to the pension first accrues, but the time at which the last item of the claim accrues. In the case of pensions, items accrue indefinitely.’ (Emphasis added.)

It is settled that the provision of § 376 that the six months' period runs from the time the last item of the claim accrued, does not apply in the case of life pensions, and that the time therefore runs from the date each periodic payment accrued prior to the filing of a claim. It is clear, however, that the rule has but limited application. It cannot be extended to all accounts and claims without completely disregarding the provision that the time commences to run when the last item accrued. If this provision is inapplicable in the present case, it would be inapplicable in any case of an open account with the city under which goods were being sold or services rendered, and to all instalment or periodic payments that might become due to a creditor of the city under a single contract or obligation.

In order to sustain the contention of the city it would be necessary to hold that Lorenson was not presenting a single claim but a multiplicity of claims, each consisting of a half month's salary. This would be the equivalent of saying that each item of the claim is a claim in itself. The very purpose of the wording of § 376 was to avoid the necessity of filing separate claims for each of the items or amounts of indebtedness having origin in a common source which, when combined, would make up a single claim. An ‘item’ is defined in Webster's New International Dictionary, 2nd Ed., as ‘a separate particular in an enumeration, account or total; a detail; as, the items in a bill.’ An account or claim is itemized when it sets forth separate sums which add up to the total amount of the account or claim. The separate amounts are the items of the account or claim.

The clear meaning of § 376 is that if the claim is on an account consisting of several charges, or is based upon a contract or obligation under which payments fall due from time to time (but not indefinitely, as in life pension cases), the six months' period for filing a claim does not commence to run until the last charge was made or the last payment accrued.

The demand of Lorenson was made up of the semimonthly accruals of salary for the period April 13, 1949 to March 16, 1950. The last item was the sum which accrued on the latest pay day during that period. The entire sum for which demand was made had accrued. The claim filed was sufficient as to all the salary that had accrued.

The judgment is affirmed.

FOOTNOTES

1.  ‘Sec. 376. No suit shall be brought on any claim for money or damages against the City of Los Angeles, or any officer or board of the city, until a demand for the same has been presented, as herein provided, and rejected in whole or in part. If rejected in part, suit may be brought to recover the whole. Except in those cases where a shorter period of time is otherwise provided by law, all claims for damages against the city must be presented within six (6) months after the occurrence from which the damages arose, and all other claims or demands shall be presented within six (6) months after the last item of the account or claim accrued.’

2.  ‘Sec. 202. (1) * * * No officer or employee of the Police Department shall be suspended, removed, deprived of his office or position, or otherwise separated from the service of the Police Department (other than by resignation), except for good and sufficient cause shown upon a finding of ‘guilty’ of the specific charge or charges assigned as cause or causes therefor after a full, fair and impartial hearing before the Board of Rights (except as otherwise specifically provided in paragraphs two (2) and seven (7) of this section). Such charges must be based upon some act committed or omitted by such officer or employee within one (1) year prior to the filing of the complaint referred to herein. No case of suspension with loss of pay shall be for a period exceeding six (6) months.'

3.  ‘Sec. 202. (3) In the event any order of relief from duty or order of suspension is made under either subparagraphs (a) or (b) of paragraph two (2), such order must contain a statement of the charges assigned as causes therefor, and the Chief of Police must (within five (5) days after such order of relief from duty or order of suspension is served as in this section prescribed) file with the Board of Police Commissioners a copy of a verified written complaint upon which such order of relief from duty or order of suspension is based, with a statement that a copy of such order of relief from duty or order of suspension and copy or verified complaint was served upon the accused. Such complaint must contain a statement in clear and concise language of all the facts constituting the charge made. In the event that the Chief of Police fails to file the aforesaid statement and complaint within the five (5) day period heretofore prescribed, the aforesaid order of temporary relief from duty or order of suspension shall thereupon become void and of no effect and shall be automatically revoked, and the accused officer or employee restored to duty with the department without loss of pay and without prejudice, the same as if no order of relief from duty or order of suspension had been made.’

SHINN, Presiding Justice.

PARKER WOOD and VALLÉE, JJ., concur.

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