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Court of Appeal, Second District, Division 5, California.

Woodrow G. LONGSHORE, etc., et al., Plaintiffs and Appellants, v. COUNTY OF VENTURA, etc., et al., Defendants and Respondents.

Civ. 51425.

Decided: January 08, 1979

Allan S. Ghitterman, Ghitterman, Schweitzer & Herreras, Ventura, for plaintiffs and appellants. Dorothy Schechter, County Counsel, Andrew B. Gustafson, Asst. County Counsel, Ventura, for defendants and respondents.

Plaintiff Longshore is a retired Ventura County deputy sheriff and the other plaintiffs are active deputy sheriffs in that county. In their complaint, plaintiffs sought damages and declaratory relief pursuant to a series of county salary ordinances concerning compensation for overtime performed before July 1, 1961. Demurrers to the complaint and the first and second amended complaint were sustained. A demurrer to the third amended complaint was sustained without leave to amend. This appeal followed.


1. The Salary Ordinances.

Plaintiffs' allegations all relate to the question whether overtime hours accumulated before July 1, 1961, are presently compensable. Overtime policies for employees of Ventura County have been set forth in a series of salary ordinances which, since 1961, have been enacted almost annually.

The fiscal year 1960-61 salary ordinances provided that authorized overtime could be compensated for only by compensatory time off, which in turn could be taken only when approved by the employee's appointing authority. So far as applicable here, overtime was “compensable only on the basis of compensatory time off. . . .”1 The ordinance made no mention of remuneration for accumulated overtime when an employee terminated his employment with the county.

Although the 1961-62 salary ordinance contained the same limitations on compensation for overtime as the previous ordinance, it also imposed an important further limitation: “If compensatory time accumulated prior to July 1, 1961 is not used on or before June 30, 1963, it shall be cancelled.” In addition, the 1961-62 ordinance provided that overtime accumulated in any given year must be taken in the following year of forfeited and that “no payment” for accumulated overtime would be made following termination of employment.

The relevant portions of the 1962-63 ordinance were identical to those of the previous year except that the new ordinance provided for cash compensation for overtime if advance approval was obtained from the Board of Supervisors.

The salary ordinance for the 1963-64 fiscal year contained two substantial changes from that of the previous year. First, only 40 hours of “compensatory time” was permitted to be carried from one year to the next and, as before, that time was cancelled if not used in the following year. Second, “(c) ompensatory time accumulated prior to July 1, 1961, and not used on or before June 30, 1963, may be used for emergencies after expiration of all other accumulated overtime, sick leave, and vacation time, with the authorization of the appointing authority.”

Although no new salary ordinance was adopted for 1965-66, for 1966-67 the overtime policies were substantially overhauled. No mention was made of pre-1961 overtime. For present purposes, the most significant change was that upon termination of employment an employee would receive “the monetary value of accrued overtime not to exceed 40 hours, unless specific prior authorization has been granted by the Board (of Supervisors) for a greater amount, . . . ”

No new ordinance was adopted in fiscal year 1967-68 and the 1968-69 salary ordinances were simply a readoption of those for 1966-67.

The relevant ordinances for 1969-70, 1970-71, 1971-72, and 1972-73 were identical with each other in all material respects. A new formula was introduced: one and one-half hours credit for each hour of overtime worked. The ordinances authorized department heads to allow leaves of absence with pay to compensate for accrued overtime. If the employee was “unable” to take such a leave within the year the overtime was accrued, the accumulated overtime could “be either compensated for or carried over into the next calendar year.” If carried over, the hours were required to be taken as compensatory time off during that next year. On termination, the employee was to be paid the “monetary value” of the accrued overtime. Finally, the ordinance provided that “(c)ompensatory overtime accrued prior to the effective date of (the overtime sections) of this Ordinance, as amended effective January 9, 1969, shall be utilized in accordance with prior prevailing policies. . . .”

The 1974-75 ordinances allowed time and a half compensation either in cash or, if authorized by a supervisor, as compensatory time off “during another workweek within the same biweekly pay period.”2 Computation of overtime was to be “ . . . determined in consistent fashion with the provisions of the Fair Labor Standards Act.” At termination, the employee was to be paid the monetary value of accrued overtime.

2. The Complaint.

The complaint purports to state four “causes of action.” In count 1, Longshore claims that he began working for the county on July 1, 1955, and “sought to retire” in September 1974. He claims that through December 1962 he accumulated 762 hours of overtime. He further alleges that prior to June 30, 1963, he attempted to “exhaust” his accrued overtime by taking compensatory time off; however, defendants “charged compensatory time against current time” and represented to him “that any other compensatory time he had accrued would be held in abeyance until such current compensatory time hours were exhausted.” Because of defendants' representations that “all such hours would be credited to him for future use . . . ,” Longshore did not exhaust his accrued overtime before June 30, 1963, and, he claims, defendants are “estopped from asserting” that his pre-1961 overtime was cancelled. He alleges that he is entitled to the “monetary value” of the accrued overtime, both by virtue of the provisions of the 1974-75 salary ordinance (which, as noted above, provided for monetary compensation for overtime upon termination of employment) and because of defendants' “prior representations.” Longshore also claims he has exhausted “all available administrative means to compel payment. . . .” and, to substantiate that claim, attached to the complaint a series of letters between his attorney and the Ventura County Counsel's Office in which he requested and was denied compensation for the pre-1961 overtime.

Count 2 realleges all facts pleaded in count 1 and further claims that because of the refusal to compensate him for the pre-1961 overtime “. . . plaintiff has been unjustly and unfairly impoverished and defendants have been unjustly enriched . . .” in violation of the due process protections of the state and federal constitutions.

Count 3 is a request for declaratory relief by all plaintiffs except Longshore, i. e., deputy sheriffs currently employed by the county who had accrued pre-1961 overtime hours. They claim that during their tenure of county employment, overtime policies have been governed by “numerous and conflucting (sic) ordinances” which have been unjustly applied by defendants. They claim that as a result of defendants' actions they stand to lose accumulated time off: “. . . under the particular ordinances applicable to each plaintiff's factual situation according to the time period worked and the ordinances then in effect as will be ascertained by proof at tirl (sic), they are entitled to take compensatory time off, or, if not so taken, entitled to the monetary value of such accrued overtime at termination.” They therefore request “judicial determination of their rights and duties . . .” They further allege no adequate administrative remedy.

Finally, in count 4, all plaintiffs ask for a declaration that the provision of the 1961-62 ordinance which cancelled all pre-1961 overtime not used before June 30, 1963, was violative of article I, section 9 of the California Constitution in that it was a “law impairing the obligation of contracts” and arbitrarily deprived them of an “accrued property right” without due process of law.

Longshore prays for the monetary value of his accrued overtime (“an amount in excess of $5000.00”) and attorney's fees, costs, and other relief the court deems proper. All other plaintiffs pray for a declaration that they are entitled to receive either compensatory time off or the monetary equivalent thereof at the time of termination, a declaration of their rights under the salary ordinances, specific performance of defendants' obligations under the ordinances, attorney's fees, costs, and any other relief deemed proper.


1. Actions for Monetary Compensation.

Counts 1 and 2 purport to allege causes of action for the amount of cash compensation due Longshore for the hours of overtime accumulated prior to July 1, 1961. Both in the court below and in this court defendants make a series of arguments which, they claim, defeat at inception Longshore's attempts to recover.

Defendants argue that Longshore's failure to allege compliance with the claim filing provisions of Government Code sections 810 et seq. bars the present action under Government Code section 945.4.3 Citing Tietz v. Los Angeles Unified Sch. Dist. (1965) 238 Cal.App.2d 905, 911, 48 Cal.Rptr. 245, defendants contend that the absence of such an allegation is fatal to counts 1 and 2.

Although Government Code section 905 requires the filing of “all claims for money or damages against local public entities . . . ,” the section goes on to list various exceptions to the claim filing requirement, among which are “(c) laims by public employees for fees, salaries, wages, mileage or other expenses and allowances.” (Gov.Code s 905(c).) Defendants' argument that the complaint does not expressly refer to “ ‘fees, salaries, wages' or anything else” which would bring plaintiffs' claim within the exception is sophistry. The whole point of the lawsuit is that compensation for overtime was one of the emoluments of county service to which Longshore was entitled at the time of his termination. If such compensation is not strictly “salary” or “wages,” it is surely one of the “other . . . allowances” of employment referred to in section 905(c).

Defendants also assert that the action is barred by Government Code sections 815.2(b) and 820.2, which immunize public entities and their employees from liability for injuries resulting from acts or omissions which occur as a consequence of an employee's authorized exercise of discretion. Since the various ordinances in question vested the sheriff with discretion to determine when compensatory time off could be taken, defendants argue that Longshore's allegations establish no more than that his loss of pre-1961 overtime was due to the sheriff's discretionary determination that he could not take compensatory time off during the period in question.

Defendants' reading of the complaint is simply inaccurate. Longshore is not claiming that his loss of compensation was due to defendants' discretionary determination that he could not take compensatory time off; rather, he is claiming that he was told by defendants that his pre-1961 overtime would be “held in abeyance” for use at a later time so that he need not worry about exhausting it prior to June 30, 1963. This sort of representation is obviously outside the scope of discretionary authority contemplated by the ordinances.

Similar considerations apply with respect to defendants' contention that the present action is barred by Government Code section 818.2. That section provides: “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” However, as the court in Elson v. Public Utilities Commission (1975) 51 Cal.App.3d 577, 589, 124 Cal.Rptr. 305, explained, the purpose of that section is simply to ensure that no public entity would be held liable for actions taken within the scope of its discretionary activities.4 Longshore's claims do not involve discretionary actions of either the sheriff or the Ventura County Board of Supervisors. He is claiming that the salary ordinances authorize compensation for overtime, or, if they do not, that the representations of his superiors in the sheriff's department representations made outside the scope of their authorized discretion estop defendants from claiming that the ordinances do not authorize such payment. Since Longshore is not asserting that defendants are liable for any act which was discretionary in nature, section 818.2 simply does not apply.

Defendants' prime argument is that “(t)he recovery of . . . cash payment (for compensation of pre-7/1/61 overtime) is barred by section 17 of article IV (5 ) of the California Constitution and by the general legal rule that civil servants cannot, after they have discharged their duties, legally claim additional compensation for such discharge.” As authority for this proposition they cite Martin v. Henderson (1953) 40 Cal.2d 583, 591, 255 P.2d 416, where the Supreme Court held that the predecessor section of the Constitution, article IV, section 32,6 prohibited the Legislature from granting retroactive compensation for overtime accrued by public employees upon their separation from public service.

Martin v. Henderson, supra, involved State Highway Patrol officers who had accumulated a substantial number of overtime hours prior to 1943 pursuant to a series of internal highway patrol orders and information bulletins which permitted officers to take time off in compensation for the overtime. It was not until February 6, 1943, however, when the Legislature made effective section 150.5 of the State Civil Service Act (Stats.1937, ch. 753), which provided for the payment to an employee of a lump sum equivalent to unused overtime hours as compensation upon the employee's separation from state service. It was this statute which the court held could not constitutionally be applied to afford retroactive compensation. Defendants argue by analogy from that holding that the provision of the salary ordinance authorizing lump sum payment is also constitutionally barred from retroactive application.

However, there are some critical distinctions between the instant case and Martin. On its way to the holding explained above, the Supreme Court in effect held that the pre-1943 departmental orders and information bulletins did not operate to authorize compensation for overtime because “(t)he terms and conditions of civil service employment are fixed by statute and not by contract. (Citations.)” (Id. 40 Cal.2d p. 590, 255 P.2d p. 420.) Since pre-1943 statutes did not authorize compensatory time off or monetary compensation for overtime as a matter of right, the plaintiffs could not rely on internal departmental memoranda as establishing such a right. (Id., pp. 590-591, 255 P.2d 416.)

In the present case, compensation of Ventura County employees has at all relevant times been regulated not by state statute but by county ordinance. Moreover, each of the ordinances for the years at issue here has made some provision for overtime compensation. Consequently, unlike the plaintiff in Martin, Longshore can legitimately claim that during all the time of his relevant county service, the fixed conditions of employment as provided in the salary ordinances consistently provided for overtime compensation and, again unlike Martin, that the “right” to such compensation does not depend solely upon retrospective application of the 1972-73 ordinance. It is obvious that since the right which Longshore seeks to vindicate was one which existed at the time the services were rendered, there is no violation of the constitutional prohibition of extra compensation for past services contained in article IV, section 17.

The nub of the question here is whether defendants can claim that the various limitations upon compensation for pre-7/1/61 overtime which were included in the ordinances of 1961-62, 1962-63 and 1963-64 are applicable here to defeat Longshore's claim. As mentioned above, the 1961-62 and 1962-63 ordinances purported to “cancel” any pre-7/1/61 accrued overtime if it was not used before June 30, 1963, and the 1963-64 ordinances limited the use of such overtime hours to “emergencies” and further conditioned their use upon the exhaustion of “all other accumulated overtime, sick leave, and vacation time . . .” Relevant here are the allegations in the complaint that: (1) when Longshore attempted to exhaust his pre-7/1/61 accumulated overtime prior to June 30, 1963, defendants “. . . refused to credit (him) with all of his compensatory hours accrued before July 1, 1961 and charged compensatory time against current time”; (2) that defendants told him that the pre-7/1/61 time would be “. . . held in abeyance until . . . current compensatory time hours were exhausted” and that the pre-7/1/61 hours “. . . would be credited to him for future use”; and (3) that in reliance upon these representations, Longshore did not exhaust his pre-7/1/61 overtime hours prior to June 30, 1963. The question now is whether these representations estop defendants from relying upon the limitations contained in the ordinances.

It is well-established that “. . . (t)he government may be bound by an equitable estoppel in the same manner as a private party . . .” (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 496, 91 Cal.Rptr. 23, 48, 476 P.2d 423, 448; see also Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725, 125 Cal.Rptr. 896, 543 P.2d 264.) “To create an equitable estoppel, ‘it is enough if the party has been induced to Refrain from using such means or taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss.’ (Citation omitted).” (Benner v. Industrial Acc. Com. (1945) 26 Cal.2d 346, 349-350, 159 P.2d 24, 26.)

The major stumbling-block to the application of the doctrine of equitable estoppel to government entities is “the well-established proposition that an estoppel will not be applied against the government if to do so would effectively nullify ‘a strong rule of policy, adopted for the benefit of the public, . . .’ (Citation omitted.)” (City of Long Beach v. Mansell, supra, 3 Cal.3d at p. 493, 91 Cal.Rptr. at p. 45, 476 P.2d at p. 445.) However, in cases involving the employment rights of public employees, the courts have found “no harmful effect upon any specific public policy or interest which would result from invoking estoppel . . . .” (Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567, 584, 108 Cal.Rptr. 293, 306; see also Baillargeon v. Department of Water & Power (1977) 69 Cal.App.3d 670, 680, 138 Cal.Rptr. 338.) Thus in Crumpler, supra, estoppel was applied because public employees had been misled about their pension rights both prior to and during their period of employment. In Baillargeon, supra, the doctrine was invoked because of the plaintiff's reliance upon misleading statements concerning benefits available to workers who received on the job injuries.

In the instant case, according to the allegations in the complaint, Longshore was materially misled to his detriment about the availability of compensation for pre-7/1/61 overtime hours not exhausted before June 30, 1963. Like the courts in Crumpler And Baillargeon, we can discern no public policy which would be violated by application of the doctrine of estoppel to the facts present here. Consequently, we conclude that Longshore has pleaded sufficient facts which, if proved, would estop defendants from relying upon the limitations in the ordinances on their right of compensation for pre-7/1/61 accrued overtime.7

2. Requests for Declaratory Relief.

Counts 3 and 4 request declaratory relief. In count 3, all plaintiffs but Longshore assert that defendants “. . . have failed and refused, and consistently fail and refuse to apply (the county) ordinances in a manner to make compensatory time off available . . .” Although these plaintiffs do not specifically maintain that defendants made precisely the same representations which were made to Longshore, they at least strongly suggest that similar representations were made to them in the above allegations and in their claim that defendants' inability to fairly apply the ordinances is “indicated by defendants' treatment of plaintiff Longshore.” The other critical allegations regarding the necessity of declaratory relief are contained in paragraph 28 of the complaint:

“28. An actual controversy has arisen and exists between plaintiffs and defendants concerning their respective rights and duties under the current ordinances in that defendants contend that plaintiffs are not entitled to any compensation whatsoever for overtime work and plaintiffs contend that, under the particular ordinances applicable to each plaintiff's factual situation according to the time period worked and the ordinances then in effect as will be ascertained by proof at tirl (sic) they are entitled to take compensatory time off, or, if not so taken, entitled to the monetary value of such accrued overtime at termination.”

Plaintiffs have alleged that they constitute a class of Ventura County Deputy Sheriffs, all of whom were employed by the county prior to July 1, 1961, and are currently so employed; they clearly ask for a declaration of the effect of specified ordinances (which are incorporated in the complaint) upon the availability of compensation for the hours of overtime they accrued prior to that date. Since the critical date here is July 1, 1961, there is no necessity that each member of the class plead precisely the number of pre-7/1/61 hours of overtime accrued or other facts particular to each individual. As to the critical facts, plaintiffs have adequately pleaded that they are entitled to a declaration of their rights under the specified ordinances.

In count 4, all plaintiffs seek a declaration that “the 1961-1962 Salary Ordinance, which arbitrarily cancelled all pre-1961 overtime effective June 30, 1963” is violative of the California Constitution in that it is a prohibited “law impairing the obligation of contracts” and constituted a taking of property without due process. (Cal.Const. art. I, s 9.)

Defendants argue that the question is moot because the 1961-62 ordinances in question were “rescinded” by the 1963-64 ordinances. However, that argument begs the very question posed by count 3, i. e., what Was the effect of the various ordinances adopted over the years?

That question can be answered only after full proof in the trial court. Essential to any resolution of whether the subsequent ordinances unconstitutionally impaired contractual obligations or violated due process guarantees is evidence of the nature of the “contracts” which plaintiffs and defendants entered into when plaintiffs were hired and the salary ordinances, if any, in effect at those times. These are matters subject to proof at trial; absent such proof, appellate resolution of the issue at this juncture is impossible.

Defendants' second point is that the action pleaded in count 4 is barred by the statute of limitations. Although at first blush it does seem that the sixteen years which have passed between the passage of the 1961-62 ordinances and the filing of this lawsuit raise a prima facie statute of limitations problem, we also note that in that count, as distinguished from count 3, plaintiffs have incorporated by reference the earlier allegations of Longshore which constituted government estoppel. If, as is inferable from the incorporated allegations, defendant county officials made similar representations to the other plaintiffs, defendants might well be estopped from asserting the statute of limitations. (See Phillis v. City of Santa Barbara (1964) 229 Cal.App.2d 45, 60, 40 Cal.Rptr. 27.) As we note above, the complaint as a whole contains allegations sufficient to notify defendants that all plaintiffs are indeed claiming that they were misled by representations similar to those made to Longshore.

The judgment after the order sustaining demurrer without leave to amend is reversed.


1.  Although the 1960-61 salary ordinance permitted cash payment for overtime hours in certain county departments, the Sheriff's Department was not among those.

2.  Overtime compensation for employees “represented by the Ventura County Sheriff's Association” was governed by somewhat different provisions. Plaintiffs have never claimed that they are so represented, but even if they were, that fact would not appear to affect the outcome of the present case.

3.  As relevant here, section 945.4 provides: “. . . (N)o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required . . . until a written claim therefor has been presented to the public entity . . . .”

4.  The Law Revision Commission's comment to section 818.2 is that “(t)his section would be unnecessary except for a possible implication that (may) arise from section 815.6 . . .” The latter section imposes liability upon a public entity when it fails to discharge a “mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury . . .” After a thorough review of the history of the California Tort Claims Act (Stats.1963, ch. 1681), of which sections 815.6 and 818.2 are a part, the court in Elson, supra determined that the purpose of section 818.2 was to make clear that a public entity would be liable only in the case of the breach of a mandatory duty, not where an injury resulted from a discretionary, legislative, or quasi-legislative action. (See also Morris v. County of Marin (1977) 18 Cal.3d 901, 913-917, 136 Cal.Rptr. 251, 559 P.2d 606.)

FN5. Article IV, section 17 states: “The Legislature has no power to grant, or to authorize a city, county, or other public body to grant, extra compensation or extra allowance to a public officer, public employee, or contractor after service has been rendered or a contract has been entered into and performed in whole or in part, or to authorize the payment of a claim against the State or a city, county, or other public body under an agreement made without authority of law.”.  FN5. Article IV, section 17 states: “The Legislature has no power to grant, or to authorize a city, county, or other public body to grant, extra compensation or extra allowance to a public officer, public employee, or contractor after service has been rendered or a contract has been entered into and performed in whole or in part, or to authorize the payment of a claim against the State or a city, county, or other public body under an agreement made without authority of law.”

6.  When article IV section 32 was renumbered to become article IV section 17, it was also “restated in more concise language but without any change in meaning.” (Social Workers Union Local 535 v. County of Los Angeles (1969) 270 Cal.App.2d 65, 78 fn. 14, 75 Cal.Rptr. 566, 575 n. 14.)

7.  The pleading of these facts constituting estoppel forecloses the county's argument that Longshore cannot recover cash compensation for his accrued overtime because the ordinances in existence at the time of accrual provided only for compensatory time off. (Cf., Markman v. County of Los Angeles (1973) 35 Cal.App.3d 132, 135, 110 Cal.Rptr. 610.) If, as Longshore has pleaded, county officials effectively prevented him from exhausting his accrued overtime when that option was available to him, the county cannot claim that Longshore's recovery now must be limited to compensatory time off, a species of payment totally useless to him since he is no longer a county employee.

KAUS, Presiding Justice.