ADAMS v. CITY OF MODESTO (1959)

A rehearing was granted in this action in order that we might give further consideration to the question as to whether certain of the claims sued upon had been presented to the City Manager of the respondent city within the time required by resolution enacted by the city.

This is an appeal from a judgment entered after sustaining a demurrer to appellants' first amended, complaint without further leave to amend. It appears from the memorandum opinion filed by the trial court that the demurrer was sustained on the grounds ‘(1) that the Complaint does not state facts sufficient to constitute a cause of action against the Defendant, (2) that the Statute of Limitations has barred all claims excepting possibly of those claimants still in the City's employ, and (3) that said claims are barred by failure to file proper claims within the time required as to those Plaintiffs who have left the service.’

All of the appellants are police officers, or former police officers of the city of Modesto. Between March 1, 1944, and July 1, 1951, they worked on certain holidays without receiving compensation therefor. Also, during some of those years, two of the appellants did not take the annual two weeks' vacation to which they were entitled pursuant to Resolution No. 6135–N.S., which the City Council of respondent city enacted on March 1, 1944. The resolution provided that: ‘Every employee of the City of Modesto shall be granted two (2) weeks vacation each year without loss of compensation.’ Resolution No. 6133–N.S. also enacted by the City Council on March 1, 1944, provided that: ‘* * * every employee of the City of Modesto, * * * shall be granted holidays without loss of compensation * * *.’ The resolution sets forth the days of the year which are declared to be holidays. Resolution No. 6135–N.S. provides that payment for vacation and allowed periods of absence shall be made from certain specific funds. Neither resolution expressly provides for compensating time off nor for payments in the event that the employee works on the named holidays or fails to take the vacation provided for.

Appellants contend that by virtue of the resolutions above mentioned they have a claim for compensation. They concede that their only basis for recovery is under these resolutions, although they have also attempted to base their action on contract. On the other hand, it is the contention of the respondent city that there is no statutory basis for appellants' claim since the resolutions do not expressly provide for compensatory time off nor for payment in the event that the employee works on the named holidays or fails to take the vacation provided for. We do not agree with respondents. We feel that the resolutions may not reasonably be so interpreted. The express intent of the resolutions is that the salaries paid for the performance of the duties of Modesto city employees do not compensate, and shall not be considered as compensating, for any work that may be done on order from superiors during holidays and the granted two weeks' vacation each year. Thus the Modesto city employees are taken out from under the common-law rule stated in Pootel v. City and County of San Francisco, 125 Cal.App.2d 378, 270 P.2d 553, and the cases cited therein to the effect that in the absence of either a valid authorizing contract or statute that there is no basis for a recovery by a public employee for overtime work; that his annual salary is payment in full for all his services without regard to the number of extra hours or days which he has worked. The rule is stated in Jarvis v. Henderson, 40 Cal.2d 600, at page 606, 255 P.2d 426, at page 430, as follows:

‘* * * In the absence of a statute specifically authorizing compensation in addition to a fixed monthly salary, there is no right to payment for overtime. * * * When the salary is fixed by time, as by the day or month, the employee is bound, in the absence of statute, to render services without regard to the number of hours worked. * * * The rule is equally applicable to work performed upon what otherwise would have been off or holidays. If time off is not granted by statute * * *, it is then included within the period for which the employee is being paid his salary and is time when he may be required to perform services.’

We feel that the reasonable interpretation to be given the resolutions in question is that when Modesto city employees were required to work on the holidays granted to them and were not given their granted vacation time each year, the city became obligated under the resolutions themselves to grant the employee lieu time off to compensate for time off granted by resolution but not received, or to pay extra money for the extra time worked and not paid for by salary. The superiors of all the employees could require them to work on holidays if the need of the service required such work. For instance, it could not have been intended that the ordinance granting time off for specified holidays would place it beyond the power of such superiors to order employees to work on such holidays. A contrary instruction would mean, with regard to police officers, that on the 12 holidays granted during each year there would be no police officers on duty in the city of Modesto. The same power of determining when, during a year, vacation time granted could be taken was likewise left to the judgment of the superiors. The resolutions did not purport to fix any special time when such vacations were to be taken, and if the need of the service required that an employee work the full year without receiving the granted two weeks' vacation, it could be competent for his superior to so order; but such extra work could not result in loss of compensation. Such loss certainly would result unless compensating time was given during the employee's service to the city or money was paid in lieu of time off granted and not received when the employee separated from service. Before separation from service the city would have the right through its superior officers to grant compensating time off, but if this was not done the time off granted and not received would have to be paid for on separation from service to prevent a violation of the plain language of the resolutions.

The situation created by the resolutions was one where twelve specific holidays and two weeks' vacation each year, without loss of pay, was a matter of statutory right. Just as in Pohle v. Christian, 21 Cal.2d 83, 90, 130 P.2d 417, 421, the resolution did ‘not expressly or otherwise provide that an employee having a right to a vacation loses his right to compensation for that time upon being separated from the service.’ There the court held that in such a situation separation from service should in no way affect the employee's right to receive pay for accrued vacation rights. And in Tevis v. City and County of San Francisco, 43 Cal.2d 190, 195–196, 272 P.2d 757, 761, the court said:

‘Section 375 [of the San Francisco Charter] does not concern the length of, or payment of compensation for, annual vacations, but merely defines the employee's right to receive them. The limitation as to the time of employment serves two purposes. It insures to an employee that his right to an annual vacation will continue throughout his service with the city and county; it also prevents him from claiming the right to such a vacation for any year after the termination of his service. But separation from service should in no way affect his right to receive pay for accrued vacation rights. In an analogous situation, it has been held that, in the absence of a clear indication of a contrary statutory intent, an employee's separation from governmental service should not prevent him from receiving the cash equivalent of vacation rights accrued to him for services rendered prior to his separation.’ Citing Pohle v. Christian, supra.

The complaint here alleges that the granted time off was not compensated for during service by lieu time. Where separation has occurred it can only be compensated for by money and that must be done. As said in Martin v. Henderson, 40 Cal.2d 583, 592, 255 P.2d 416, 422:

‘No cause of action to compel the payment of overtime claims accrued * * * prior to * * * separation from service. Until that date, they might have been given compensating time off whenever their departmental superiors deemed it convenient to the service. The petitioners had no legal remedy to compel their superiors to give them time off at any specific time, or at all. Only in the event that uncompensated overtime remained upon their separation from service did a right accrue to them to compel action by the department.’

It is only equitable that the appellants here, whose right of action has accrued by separation from service, should be compensated for work performed on holidays and during vacation periods unless they have waived such compensation by refusing to take the earned time prior to separation from service. Their monthly salaries did not include payment for such work since the resolutions provided that they should be free from their regular duties on the specified days and for two weeks during each year of their employment but should not suffer a loss of compensation for such time off granted to them.

Nor are the claims barred by the statute of limitations with the exception of the claim of Allen H. Simms (Exhibit ‘V’ appended to the complaint) which appellant U. H. Pickering now holds as the assignor thereof, and possibly Pickering's claim for his own personal services as a police officer of the respondent city (Exhibit ‘T’ appended to the complaint). The amended complaint reveals that neither claim was presented to the city manager within 90 days as required by section 1312 of the Charter of the city of Modesto. Stats.1951, p. 4332. However the ninetieth day for the presentation of the Pickering claim fell on November 20, 1954, which happened to be a Saturday (see calendar for the year 1954), and it may have been a full holiday, in which event the claim was timely filed on the following Monday, November 22d. The assumption is that the claim was filed in time since records lodged with this court by the respondent reveal that the city manager's office is not normally open to the public for official business on Saturday mornings.

Section 12a of the Code of Civil Procedure provides in part:

‘If the last day for the performance of any act provided or required by law to be performed within a specified period of time shall be a holiday, then such period is hereby extended to and including the next day which is not a holiday. The term ‘holiday’ as used herein shall mean all holidays specified in Sections 6700 and 6701 of the Government Code and, to the extent provided in Section 12b of this code, all days which by terms of said section 12b are required to be considered as holidays; * * *.'

Section 12b provides:

‘If any city, county, state, or public office, other than a branch office, is closed for the whole of any day, insofar as the business of that office is concerned, that day shall be considered as a holiday for the purposes of computing time under Sections 12 and 12a.’

Since every Sunday is also a holiday (Gov.Code, sec. 6700), it becomes a question of fact as to whether the city manager's office was open for business on November 20, 1954. If so, the Pickering claim is barred, otherwise not.

As to all other appellants who have separated from the service of the respondent city, the complaint shows that they presented their claims within 90 days thereafter and less than three years therefrom joined in this action. As to them the action is timely (Code Civ.Proc. sec. 338, subd. 1), since prior to separation from service they had no cause of action. As hereinabove stated, ‘Until that date, they might have been given compensating time off whenever their departmental superiors deemed it convenient to the service. The petitioners had no legal remedy to compel their superiors to give them time off at any specific time, or at all. Only in the event uncompensated overtime remained, upon their separation from service did a right accrue to them to compel action by the department.’ Martin v. Henderson, supra. Consequently, those appellants who are still employed by the respondent city have no cause of action at this time. Neither are the causes of action alleged by those appellants who have separated from the service subject to the equitable defense of laches. Abbott v. City of Los Angeles, 50 Cal.2d 438, 461–462, 326 P.2d 484. We conclude as to those employees who have separated from the service, with the exception of the claim of U. H. Pickering, as assignor of Allen H. Simms, the amended complaint states a cause of action.

It is ordered that the judgment be affirmed as to those appellants who are still in the employment of the respondent city and further that it be affirmed as to the appellant U. H. Pickering insofar as it applies to his cause of action as assignor of the claimant Allen H. Simms.

It is further ordered that the judgment be reversed as to the remaining appellants who have separated from the service of respondent and also reversed insofar as it applied to the personal claim of U. H. Pickering.

WARNE, Justice pro tem.

VAN DYKE, P. J., and SCHOTTKY, J., concur.