BENSON v. CITY OF LOS ANGELES (1963)

By their respective actions in the trial court, plaintiffs Olive M. Benson and Carrie Mae Knabe, and cross-complainants Teresa G. Benson and Pearl Knabe, each sought a judgment for declaratory relief which would establish their asserted and conflicting claims to pension benefits payable to the ‘widow’ of the deceased pensioners, August H. Benson and Charles Knabe, respectively. In each instance, the City of Los Angeles, the Board of Pension Commissioners of the City of Los Angeles, and the individual members of said board, were named as defendants; hereinafter they will be referred to collectively as appellant City.

Judgment was rendered following a nonjury trial in favor of the plaintiffs and against the appellant City and the cross-complainants. The City has appealed from the judgment as to both plaintiffs. Cross-complainant Pearl Knabe has not appealed. Cross-complainant Teresa G. Benson appeals only from the portion of the judgment rendered against her and in favor of Olive M. Benson.

The primary assignment of error presented by appellant City concerned the question of the constitutionality of the 1925 amendment of the Charter of appellant City by the enactment of section 183 of Article XVII, St. 1925, p. 1086, which changed the requirement that a widow of a pensioner, to be entitled to a pension, need only have been married to her deceased pensioner husband one year prior to the date of his death to one requiring her to have been married to such pensioner at least one year prior to the date of his retirement. All contentions made in this regard were determined adversely to appellant City in Henry v. City of Los Angeles, 201 A.C.A. 355, 20 Cal.Rptr. 440. (Hearing denied by the California Supreme Court, May 16, 1962. See also: Eaton v. City of Los Angeles, 201 A.C.A. 382, 20 Cal.Rptr. 456, and Atwell v. City of Los Angeles, 201 A.C.A. 391, 20 Cal.Rptr. 462.) The City, therefore, has abandoned this portion of its appeal.

Appellant Teresa G. Benson, hereinafter referred to as Teresa or appellant Teresa, assigns as reversible errors (1) the holding of the trial court that as a matter of law she was not the ‘widow’ of the deceased pensioner within the meaning of that term as used in section 183 of the Los Angeles City Charter; and (2) that by the proceedings taken and by the judgment rendered herein she was denied due process of law. The case was submitted upon the facts contained in the following ‘Matters of Fact Agreed Upon’ taken from the Joint Pre-trial Statement:

‘(1) That defendant Teresa G. Benson, was married to August H. Benson on or about January 28, 1920; that said Teresa G. Benson and August H. Benson lived together in California from the time of their marriage in 1920 until at least 1945 and she has continued to live in California until the date hereof; that said defendant obtained a decree of separate maintenance from August H. Benson in the Superior Court in the State of California in and for the County of Los Angeles in case No. D–302072 which decree was entered under date of January 3, 1947; that said August H. Benson, as plaintiff, caused to be filed against Teresa G. Benson an action for divorce in the United States District Court of Columbia, to wit, Civil Action No. 564–52; that said Teresa G. Benson was not personally served with process in said action in the District of Columbia; that said Teresa G. Benson did not file an appearance in said action or personally authorize any appearance to be made on her behalf in said action; that said Teresa G. Benson was served in California with the summons and a copy of the complaint in said action as is evidenced by the amended return of service of writ filed in said action; that on or about December 23, 1952, a decree of divorce was duly made and entered in said action granting an absolute divorce to said August H. Benson; that said August H. Benson married plaintiff Olive M. Benson (Olive M. Gittings) at Bethesda, Maryland, on July 10, 1953; that said plaintiff and August H. Benson lived together as husband and wife up to and including the date of his demise.

‘(2) That said August H. Benson was duly appointed to a position in the Los Angeles Fire Department on February 21, 1916, and served regularly as a member of said Department until he was retired from active service on October 20, 1940; that the rank held by August H. Benson one year prior to his retirement from active service as aforesaid was that of Captain in the Los Angeles Fire Department.

‘(3) That August H. Benson died on February 10, 1960; that plaintiff Olive M. Benson filed a written claim for a widow's pension with the defendant Board of Pension Commissioners and with the City Clerk of the City of Los Angeles on or about the 30th day of March, 1960, and that thereafter, on or about the 26th day of April, 1960, said claim was denied by defendant Board of Pension Commissioners; that defendant Teresa G. Benson filed a written claim for a widow's pension with the defendant Board of Commissioners and with the City Clerk of the City of Los Angeles on or about the 30th day of March, 1960, and that thereafter, on or about the 26th day of April, 1960, said claim was denied by defendant Board of Pension Commissioners.’

The portion of the Los Angeles Charter relevant to the issues here presented provides ‘* * * that no widow of a pensioner shall be entitled to a pension unless she shall have been married to such deceased pensioner at least one year prior to the date of his death.’ The word ‘widow’ as used therein clearly has no unusual or peculiar meaning. It refers simply to that party married to a deceased pensioner at the time of his death. If there could be any doubt thereon, it is removed by the additional requirement that this marriage must have existed for at least one year prior to the pensioner's death.

Appellant Teresa would have us distort the universally accepted meaning of the term ‘widow’ so as to include a party who had been married to the pensioner during the period of his employment, but who had been legally divorced from him many years before his death and to exclude from its meaning the party legally married to the pensioner at the time of his death. This contention clearly is without merit. (Cf. Atwell v. City of Los Angeles, supra, 201 A.C.A. 391, 393, 395, 20 Cal.Rptr. 462, upholding the pension rights of a widow whose marriage to the pensioner had followed the latter's retirement; see also Henry v. City of Los Angeles, supra, 201 A.C.A. 355, 370, 20 Cal.Rptr. 440.)

Appellant's arguments regarding the alleged denial of due process rest upon a wholly fallacious line of reasoning. Although she necessarily concedes the effectiveness of the decree of divorce to terminate her status as the pensioner's wife, she nevertheless argues that it was ineffective to deprive her of the status of widowhood upon his death, insofar as her rights with respect to receive the pension were concerned.

It should be noted at the outset that under the issues tendered to the trial court, any question concerning the respective rights of appellant and her ex-husband, inter se, with regard to their community property was totally immaterial. Therefore, cases such as Cheney v. City & County of San Francisco, 7 Cal.2d 565, 61 P.2d 754 and Crossan v. Crossan, 35 Cal.App.2d 39, 94 P.2d 609, indicating that pensions such as the one here involved constitute community property, are not in point. As stated by the court in Packer v. Board of Retirement, 35 Cal.2d 212, 216, 217 P.2d 660, 663, in discussing the constitutionality of legislation changing the contractual terms of a pension:

‘It may be conceded that the husband's pension rights derived from his employment during marriage are community property, but this does not furnish any basis for the claim that the widow has a separate, vested right to a pension that is different from her community interest in her husband's pension rights.’

Likewise, it may be conceded in the instant case that the husband's pension rights were community property, but this assumption furnishes no sufficient basis for a holding that the clear and unequivocal terms of their contractual provisions may be so distorted as to permit appellant to take as a ‘widow’ notwithstanding her concession that she enjoyed no such status at the time of the pensioner's death.

In the judgment granting appellant's prayer for separate maintenance, it was declared that these pension rights were community property. We recognize, of course, that retirement income generally is regarded as the community property of the parties who were husband and wife during the period when the services were rendered giving rise to the pension rights. (French v. French, 17 Cal.2d 775, 778, 112 P.2d 235, 134 A.L.R. 366.) Appellant's judgment of separate maintenance, however, contained no provision whatsoever purporting to make any division or allocation of any pension rights. Subsequently, as we have pointed out, appellant's marriage to the pensioner was legally terminated by an absolute judgment of divorce. The terms of that judgment are not in the record so that we do not know whether or not it purported to make any determination with respect to the property rights of the parties.

It bears emphasis that neither the trial court nor this court has been called upon to decide whether or not appellant, by some sppropriate action or proceeding, might have asserted her community property claims against the pension payments made to her ex-husband during his lifetime. In the instant action, she urged only her claim to take the pension benefits payable following his death in her own right as ‘widow’. This she could not do under the clearly expressed terms of the pension law. Further, even if it be assumed that after the dissolution of the marriage, the pensioner still retained a ‘right’, in the nature of a ‘property right’, to make a party other than his ex-wife eligible to receive payments as his widow under the contractual provisions of the pension law, the possible exercise of such right would be a mere ‘expectancy which is not subject to division as community property.’ (French v. French, supra, 17 Cal.2d 775, 778, 112 P.2d 235, 237; cf. Secondo v. Secondo, 218 Cal. 453, 458, 23 P.2d 752; Hill v. Hill, 82 Cal.App.2d 682, 701, 187 P.2d 28.)

The one remaining assignment of error urged by appellant City as ground for reversal of the judgment is the ruling of the trial court permitting an amendment to the prayer of respondents' complaint to include interest upon the pension payments due but unpaid by the City prior to the entry of judgment. Appellant City asserts that: (1) section 3287 of the Civil Code, even as amended in 1959, does not authorize such interest; (2) since the pre-trial statement did not set forth as an issue the right to such interest, the allowance of such an amendment thereafter was error; and (3) respondents' claim filed with the City precedent to the commencement of the action did not specifically refer to interest in addition to claiming the accrued but unpaid pension payments.

In Abbott v. City of Los Angeles, 50 Cal.2d 438, at pages 466 to 468, 326 P.2d 484, at pages 501 and 502, the leading case on the general subject of the pensions here involved, the court stated: ‘In September, 1955, subsequent to the commencement of these actions, section 3287 of the Civil Code was amended to read as follows: ‘Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any such debtor, including any political subdivision of the State.’ (The italicized portion was added in 1955; Stats. 1955, ch. 1477, #1.)

‘Prior to the 1955 amendment the rule was that municipal corporations were not liable for interest in the absence of express statutory provision. [Citations.] Defendants do not dispute that pending cases should be determined in accordance with the amendment if it is otherwise applicable, thus authorizing interest (on past due claims) from its effective date [citation], but contend that a municipality is not a ‘political subdivision of the State’ within the meaning of section 3287. * * *

‘It is thus apparent that the interest provisions of section 3287 are not applicable to municipal corporations. * * * Plaintiffs suggest, however, that the purpose of amending the section was ‘to remedy the inequitable situation which was brought to light by the opinion’ in the case of Imperiale v. City & Country of San Francisco (1954), supra, 128 Cal.App.2d 277, 282–283[2], 275 P.2d 569. If the amendment were intended by the Legislature to apply to municipal corporations as well as to the state's political subdivisions it would have been easy to use specific language so declaring. In the absence thereof, we conclude that the section does not authorize interest against municipal corporations, and that its recovery in the present cases must be denied.'

Following the filing of the Abbott decision on June 6, 1958, the Legislature, by the statutes of 1959 (ch. 1735, section 1, page 4186), again amended section 3287 so that the concluding sentence now reads: ‘This section is applicable to recovery of damages and interest from any such debtor, including the State or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the State.’ (Emphasis added.)

It is clear that municipal corporations now fall within the terms of section 3287 and that appellant City's contentions that Civil Code section 3302 is in some fashion in conflict with section 3287 are without merit. Section 3302 provides: ‘The detriment caused by the breach of an obligation to pay money only, is deemed to be the amount due by the terms of the obligation, with interest thereon.’ Clearly this section authorizes the payment of interest, but does not purport to determine when such interest shall commence or against whom it may be charged. Section 3287 does contain provisions governing the latter points, and the two sections are in no sense conflicting.

Since respondents' claims otherwise meet all the requirements of section 3287, the allowance of interest was proper. Certainly sections 3358¹ and 3359² have no application in the present context and we need not discuss appellant City's comments in regard thereto.

Regarding appellant City's argument that the court could not properly allow an amendment to the pleading, adding a specific prayer for an allowance of interest, it should be sufficient answer to state that interest may be awarded in a contested action even if there be no specific prayer therefor. (Sears, Roebuck & Co. v. Blade, 139 Cal.App.2d 580, 595, 294 P.2d 140, and cases cited therein.) Even if any question existed thereon, the granting of the amendment was entirely proper. ‘The purpose of pretrial proceedings is to expedite and not to obstruct the administration of justice.’ (Rocky Mountain Export Co. v. Colquitt, 179 Cal.App.2d 204, 206, 3 Cal.Rptr. 512, 514. Also, Atkins v. Atkins, 177 Cal.App.2d 207, 210–212, 2 Cal.Rptr. 104; Wickman v. Opper, 188 Cal.App.2d 129, 134, 10 Cal.Rptr. 291.)

We need not consider appellant City's assertions regarding the failure to specify interest in the claims filed against the City, for the City raised no issue regarding their sufficiency in the trial court. In addition, since appellant City denied respondents' applications for pension payments, and the claims subsequently filed for the principal amounts thereof, the addition of a statement that interest also was sought would have been a patently useless act.

The judgment is affirmed.

FOOTNOTES

1.  Section 3358: ‘Limitation of Damages. Notwithstanding the provisions of this Chapter, no person can recover a greater amount in damages for the breach of an obligation than he could have gained by the full performance thereof on both sides, except in the cases specified in the Articles on Exemplary Damages and Penal Damages, and in Sections 3319, 3339, and 3340.’

2.  Section 3359: ‘Damages to be Reasonable. Damages must, in all cases, be reasonable, and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered.’

HERNDON, Justice.

FOX, P. J., and ASHBURN, J., concur.