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Court of Appeal, Second District, Division 4, California.

Faye DRISCOLL et al., Plaintiffs, Appellants and Cross-Respondents, v. CITY OF LOS ANGELES et al., Defendants, Respondents and Cross-Appellants.

Civ. 29469.

Decided: January 30, 1967

Kenneth Sperry and John L. Kaesman, Long Beach, for plaintiffs and appellants. Roger Arnebergh, City Atty., Bourke Jones, Weldon L. Weber, and John J. Tully, Jr., Asst. City Attys., for defendants and respondents.

Each of the plaintiffs is a widow of a former member of the police or fire departments of defendant city. The several husbands had been employed by the city, and had performed services, prior to July 1, 1925, and had thereafter retired from service. Each of the plaintiffs had been married to her husband for at least one year prior to his death, but none of them had been married to the employee for one year prior to the date of his retirement.

Under the provisions of the city charter in force prior to July 1, 1925, pensions were payable to retired employees and to their widows on a fluctuating basis—that is, the pensions increased as the compensation payable to active employees of the same grade and position were increased. Under the pre-1925 pension system, a widow's right to a pension required only that she have been married to the pensioner for at least one year prior to his death. By subsequent charter amendments, the pension scheme was modified in two particulars herein important: (1) a fixed pension was substituted for the fluctuating pension; and (2) a widow was entitled to a survivor's pension only if she had been married to the pensioner for at least one year prior to the date of his retirement.

The present action was brought to determine the claim of each plaintiff to a widow's pension under the pre-1925 scheme.

After the action was commenced, the cases of Henry v. City of Los Angeles (1962) 201 Cal.App.2d 299, 20 Cal.Rptr. 440, and Atwell v. City of Los Angeles (1962) 201 Cal.App.2d 336, 20 Cal.Rptr. 462, were decided. As a result of those decisions, the city recognized the claims of plaintiffs Davis, Edwards and Frum and the action was dismissed as to them as moot.

The city concedes that the 1925 and subsequent charter provisions are unconstitutional as to the remaining plaintiffs.1 It resists their present claims on the grounds: (1) that the action was not filed until more than three years after the death of the pensioners involved; and (2) that, in any event, no rights can be retroactively enforced for more than six months prior to the filing of formal claims. The trial court sustained the first contention as to plaintiff Hand, and the second as to the other plaintiffs. Each plaintiff has appealed, those other than plaintiff Hand from the refusal to give retroactive effect to their claims beyond a six-month period; the city has appealed from the judgment granting partial relief to plaintiffs other than Hand.


It is clear that sections 312 and 338, subdivision (1) of the Code of Civil Procedure establish a three-year period of limitations for actions such as that herein involved2 and that none of the plaintiffs involved in this appeal filed an action until more than three years after the date of death of their respective husbands.

As plaintiffs point out, the pension rights are continuing rights, and it is, therefore, arguable that the cause of action on each pension installment does not run until three years after that particular installment became payable. However, the Supreme Court has held in Dillon v. Board of Pension Com'rs, (1941) 18 Cal.2d 427, 116 P.2d 37, 136 A.L.R. 800, that the statute began to run from the date of death of the person from which the pension right was derived. We do not regard the fact that Dillon was an action in mandamus, rather than for declaratory relief, as being significant.

The chief issue is whether or not the defendant city was estopped, by reason of the conduct of its officials, from relying on the bar of the statute of limitations. We think that the trial court correctly found such estoppel to exist in the cases of plaintiffs other than Mrs. Hand and that it was in error in not making a similar finding in her case.

Mrs. Hand testified that the manager secretary of the Police and Fire Pension Board advised her that she was not eligible for a pension and Mrs. Hand also had a letter to that same effect. Mrs. Hand also testified that she relied on that advice. Mrs. Woodruff, a secretary, manager and executive assistant in the pension department, testified that all applications for pensions by widows who had not been married at least one year prior to retirement were customarily denied by the board prior to the decision of the District Court of Appeal in Atwell v. City of Los Angeles, supra (1962) 201 Cal.App.2d 336, 20 Cal.Rptr. 462.

Many cases have gradually developed the law of estoppel as it relates to erroneous advice given by public bodies. In Tyra v. Board of Police, etc., Com'rs (1948) 32 Cal.2d 666, 197 P.2d 710, the pension board was estopped from relying on Code of Civil Procedure section 338, subdivision (1), because defendants and their attorneys erroneously advised the plaintiff that, so long as he received workmen's compensation, he was not entitled to a pension. And in Lerner v. Los Angeles City Board of Education (1963) 59 Cal.2d 382, 29 Cal.Rptr. 657, 380 P.2d 97, the Supreme Court held that the defendant school board was estopped to rely on a three-year statute of limitations where plaintiff's delay was largely attributable to the erroneous opinion of persons standing in privity with the school board, including the Attorney General, concerning the right of the State Board of Education to revoke a teaching credential without a hearing because of a former conviction of a sex crime.

In Adler v. City of Pasadena (1962) 57 Cal.2d 609, 615, 21 Cal.Rptr. 579, 582, 371 P.2d 315, 318; the Supreme Court held that the doctrine of estoppel must depend on whether the public agency ‘acted in an unconscionable or unreasonable manner or * * * either intentionally or otherwise, * * * set out to, or did, take unfair advantage of plaintiffs.’ The court held in the Adler case, as did the District Court of Appeal in Henry v. City of Los Angeles (1962) 201 Cal.App.2d 299, 20 Cal.Rptr. 440, that the city was not estopped to set up the six month claims provision even though the delay was due to the city's advice, because the advice was not ‘unreasonable.’

The Supreme Court recently reiterated the general test set forth in the Adler case in City of Los Angeles v. Industrial Acc. Comm., and Curtis D. Dillin (hereinafter called Dillin) (1965) 63 Cal.2d 255, 258, 46 Cal.Rptr. 105, 107, 404 P.2d 809, 811, and added that ‘* * * ‘reasonableness' must be viewed in the light of the right the employee-plaintiff seeks to assert; the greater the right of the claimant, the heavier the obligation upon the agency not to mislead him.’

The Dillin court, distinguishing and approving prior cases on estoppel, emphasized that in Henry and Adler, the conduct of the city involved only increased amounts for past pensions, and it did not affect the right to pension in the future. The Dillin court also approved of the decisions in Lerner and Tyra, distinguishing those cases from Henry and Adler on the reasonableness of the advice on one case, and on the nature of the right affected in the other case, pointing out that in Tyra, the city's erroneous advice rested on a misreading of the charter itself.

Applying the twofold test developed by the Dillin case and preceding authorities to the case at hand, we find that in one sense the advice of the city was ‘reasonable’; that is, the city in the instant case gave an interpretation of the charter that was correct at the time, and it was only many years later that such advice was held incorrect. (See City of Los Angeles v. Industrial Acc. Comm., supra (1965) 63 Cal.2d 46 Cal.Rptr. 105, 404 P.2d 809, and Henry v. City of Los Angeles, supra (1962) 201 Cal.App.2d 299, 311, 20 Cal.Rptr. 440.) This is to be distinguished from Tyra in which there was a misreading of the charter itself and therefore the advice in Tyra was unreasonable. However, viewed in the light of the importance of the right the claimants are attempting to assert, we find that the city must be estopped from setting up the statute of limitations. Unlike the situation in the Henry and Adler cases, Mrs. Hand would lose her entire pension and not merely past pension, putting a very heavy duty on the public body to not mislead her.

The evidence on behalf of Mrs. Hand was at least as strong as that which was held by Division One of this court to be sufficient to raise an estoppel in Bowers v. City of Los Angeles (1966) 243 Cal.App.2d 789,a 52 Cal.Rptr. 753, that for the other plaintiffs was even stronger. A fortiori, none of the plaintiffs are here barred by the three-year statute of limitations.

Defendants assert that the trial court made certain erroneous findings and that the court erroneously found the pension board denied claims on the sole ground that plaintiffs had not been married one year prior to retirement, that the board could not waive the statute of limitations and that a waiver must be in writing, and, therefore, that such a waiver could not lead to estoppel. Even if these findings were erroneous, the elements of estoppel are still present. A ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329, 48 P. 117; Zak v. State Farm, etc., Ins. Co. (1965) 232 Cal.App.2d 500, 42 Cal.Rptr. 908.)

Defendants also assert that plaintiff Beard is barred because she did not commence her action until October 9, 1963. By written stipulation Alice Beard and Sallie Lou Powell were joined, and, therefore, Alice Beard was in the same position as the other plaintiffs.

Plaintiffs contend that the court erred when it refused to allow plaintiffs to establish the policy of the board with respect to the circumstances under which widows' pensions were customarily paid to the surviving widow. Since Gladys Woodruff was permitted to testify as to what the policy of the pension department was prior to the Atwell case, and since plaintiff Hand testified as to what she was told by the board, such evidence, even if relevant, was merely cumulative. Error in failing to admit cumulative evidence is harmless. (Larimer v. Smith (1933) 130 Cal.App. 98, 104, 19 P.2d 825; see Kalfus v. Fraze (1955) 136 Cal.App.2d 415, 423, 428, 288 P.2d 967.)


In Bowers v. City of Los Angeles, supra (1966) 243 Cal.App.2d 789,b 52 Cal.Rptr. 753, it was held, on evidence no stronger than that in this case, that the city was also estopped from relying on the charter provision which requires that claims be filed within six months and that the plaintiffs there were entitled to retroactive pensions from the date of the employees' deaths and not merely for a six month period prior to the time the claims were filed.

We find that holding difficult to reconcile with the prior holding of this division in Henry3 and with the holding of the Supreme Court in Adler.4 Unlike the invocation of the statute of limitations, which creates a total deprivation of all pension rights, past and future, the invocation of the claims procedures results in only a partial deprivation of past rights and no deprivation of future rights. We think that where, as here, the advice relied on was honestly given and reasonable in the light of the charter language, the city should be allowed to invoke the claims procedure to limit retroactivity. It is one thing to forever bar a widow from her future rights, it is another thing to insist that her claims be limited to a reasonable retroactive period. As to her future rights, the city can intelligently budget to meet the payments as they fall due. But a retroactive claim, of necessity, requires the city to find funds to meet an obligation not anticipated when budgets were established. The six-month claims provision is a reasonable reconciliation of these fiscal problems. We do not think that the plaintiffs here, on this record, have shown any basis for enforcing rights other than in futuro and for a limited period of retroactivity.

Were it not for the recent holding in Bowers, we would affirm the judgment in the cases of the plaintiffs other than Mrs. Hand. However, the Bowers decision was rendered in the light of, and after consideration of, all of the cases hereinabove cited. We do not think it appropriate for us to attempt to impose our own reconciliation, in opposition to that of our sister division. Accordingly, and solely in order to avoid a conflict within this district, we reverse the judgment on the appeals of all of the several plaintiffs.

The judgment is reversed; the cause is remanded to the trial court with directions to enter judgment in favor of the several plaintiffs as prayed for by them. Plaintiffs shall recover costs in this court.


1.  The trial court finding read that the changes were unconstitutional as to all plaintiffs ‘except plaintiff Gussie A. Hand.’ In the brief for plaintiffs, it is objected that this finding, running counter as it does to defendants' concession, was erroneous. Taken literally, the finding is open to this objection. But, reading the findings as a whole, we think it clear that the court intended only to exclude Mrs. Hand entirely from any finding, favorable or adverse, on the issue of constitutionality because it had concluded (erroneously as we shall point out) that her cause of action was barred by the statute of limitations. We do not construe this language as holding that the factors which made the charter changes unconstitutional as to the other widows did not apply equally to Mrs. Hand, if the latter had acted with sufficient promptness.

2.  Plaintiffs assert that the gravamen of their cause of action was ‘mistake,’ and therefore Code of Civil Procedure section 338, subdivision (4) is the appropriate statute of limitations. Although this question was not considered directly, the court in Henry v. City of Los Angeles, supra (1962) 201 Cal.App.2d 299, at page 308, 20 Cal.Rptr. 440, at page 445 stated: ‘In the instant cases, there was undoubtedly a mutual mistake of law. On this point, the court in Gilbert v. City of Martinez, 152 Cal.App.2d 374, at page 378, 313 P.2d 139, at page 141, says: ‘When the parties to a transaction labor under a mutual mistake of law, ‘acts performed in reliance upon such mutual mistake do not, as a matter of law, create an estoppel.’ [Citation].''Thus it appears that mistake is merely incidental to plaintiffs' cause of action. Plaintiffs cite People v. Union Oil Company (1957) 48 Cal.2d 476, 310 P.2d 409: County of Santa Cruz v. McLeod (1961) 189 Cal.App.2d 222, 11 Cal.Rptr. 249, in support of their argument, but since each case must turn on its own facts, these cases do not aid plaintiffs' cause. Neither case dealt with estoppel.

FOOTNOTE.  FNa. 243 A.C.A. 996, 244 A.C.A. 548.

FOOTNOTE.  FNb. 243 A.C.A. 996, 244 A.C.A. 548.

3.  Adler v. City of Pasadena, supra (1962) 57 Cal.2d 609, 21 Cal.Rptr. 579, 371 P.2d 315.

4.  Henry v. City of Los Angeles, supra (1962) 201 Cal.App.2d 299, 20 Cal.Rptr. 440.

KINGSLEY, Associate Justice.

FILES, P. J., and JEFFERSON, J., concur.