KAUFMAN v. STATE (1983)

INTRODUCTION

Defendants appeal from a judgment of the Superior Court of Los Angeles County declaring plaintiff's rights to a cash award from the State Merit Award Board and awarding damages in conjunction with the declaration of his rights.

STATEMENT OF FACTS

In June 1955, plaintiff Albert I. Kaufman began work as a senior engineering aid in the Design Department of the State Division of Highways (now Department of Transportation).   Following his promotion in 1960 to assistant highway engineer assigned to the traffic department, plaintiff submitted a suggestion to the State Merit Award Board (MAB), which provides cash recognition for state employees' suggestions resulting in improved state operation or cost reduction.   Plaintiff's suggestion, submitted on June 13, 1960, described a photo-logging system capable of reducing the number of man-hours required to update state highway log books.

On August 17, 1960, plaintiff received a letter from the MAB stating that his suggestion was being studied;  prior to March 3, 1961, he was informed that his suggestion had been rejected.   In accord with the MAB's normal procedures, plaintiff requested reconsideration of his suggestion and directed the MAB's attention to a magazine article, dated March 3, 1961, which discussed a photographic survey system developed by the Aero Service Corporation (Aero Service) of Philadelphia, Pennsylvania.   Subsequently, the Division of Highways contracted to test Aero Service's survey system in Los Angeles County.

The test results were poor due to the use of a low shutter speed;  aside from the low camera shutter speed used, however, the Aero Service method substantially conformed with plaintiff's suggestion.   Shortly thereafter, plaintiff and Mr. William Chaney, a photographer with the Division of Highways, conducted a similar test using a rapid sequence 35-milimeter camera;  the results were clear and of good quality even when enlarged.   Plaintiff sent approximately 20 to 30 of the enlarged photographs to the MAB in order to establish the quality of the photography and the validity of his suggestion.

Plaintiff subsequently received a letter from the MAB, dated September 26, 1963, wherein the MAB recommended against adoption of the suggestion;  the letter was prepared for the signature of Q.E. Lesher, Administrative Assistant, but signed by E. Veglia (Veglia).   The letter advised plaintiff that “your rights to this idea will expire on November 15, 1963, three years from the date of the first rejection letter, which was mailed to you on November 16, 1960.   However, the Division of Highways, in its evaluation report, has advised that if they later adopt your proposal, they will request the reopening of your suggestion for award consideration.”

Plaintiff left the employ of the Division of Highways in 1967;  by 1975, he had become an attorney licensed to practice law in California.   On May 12, 1975, plaintiff read an article in the Los Angeles Daily Journal regarding highway photo-logging in the state of California;  on the basis of that article, plaintiff wrote to the MAB referring to his suggestion and claiming an award of $333,000.

On June 5, 1975, Mr. Bartell, assistant secretary of the MAB, notified plaintiff that the MAB had no information regarding his suggestion other than the suggestion number;  during the course of correspondence between plaintiff and the MAB throughout July, August and September of 1975, plaintiff forwarded copies of pertinent records concerning his suggestions.

The MAB forwarded plaintiff's letter to the Department of Transportation;  in response, that department informed the MAB that plaintiff's suggestion may have been “somewhat related” to the present system, but that adoption of the system was prompted by action in other states, the chief of traffic's 1968 request for development of such a system, and a federal grant in 1970.

On October 10, 1975, Veglia of the MAB informed plaintiff that a cash award was unwarranted because the MAB had found no relation between his suggestion and the Department of Transportation's adoption of a photo-logging system.

Plaintiff filed the instant complaint on April 12, 1976;  Gerald L. Russell, who took credit for initiating the California photo-logging system's use in 1970 and who was assigned to the Los Angeles office of the Department of Transportation from 1960 until 1963, testified at trial in November 1980, that he knew plaintiff on a casual basis only, that he was not plaintiff's supervisor, that there were over 250 people in the department, that he had no conversations with plaintiff concerning the photo-logging system nor was he aware that any such suggestion had been made and that he was not involved in any of the experiments.

Russell testified that he first became aware of a photo-logging system in 1968 when, as district traffic engineer for the Los Angeles office of the Department of Transportation, he was invited to a meeting presented by the Federal Highway Administration;  at that meeting, a representative from Oregon discussed a similar system in use in that state.   Russell subsequently wrote to Oregon requesting additional information about the system;  upon receipt of that information, he asked his staff to consider the system's feasibility.   Russell also contacted other department heads in order to determine their degree of interest in the system;  in response to one such inquiry, Russell was informed that a prior experiment conducted between 1960 and 1963 had been unsuccessful.   In 1968, when Russell contacted William Chaney with respect to the Oregon system, Chaney discussed neither the earlier experiments nor the 1961 Aero Service contract.

The photo-logging system was implemented in California between 1968 and 1970 with the aid of a federal grant and matching state funds.   Although the system was functionally identical to that suggested by plaintiff, various differences in design were noted at trial.

Veglia, executive secretary of the MAB since 1967, testified that the September 26, 1963, letter was not intended to obviate MAB rules and regulations regarding submission and resubmission of suggestions;  the department had on a number of occasions, however, reopened suggestions on its own initiative and given credit to employees despite the fact that the statutory time had run.   Veglia stated that it was the custom in 1963 to attach copies of the MAB rules and regulations to rejection letters.   The pertinent statutes limited the amount that one could receive for a merit award and any recommendation made by the MAB was subject to the approval of the Board of Control;  awards in excess of the statutory limit required approval by concurrent resolution of the Legislature.

Veglia also testified that suggestions submitted to the MAB were filed and kept by the MAB for two years, after which they were sent to storage for a period of three years;  after five years, they were destroyed.   MAB records indicated that records of plaintiff's suggestion were disposed of on January 1, 1972.

Evidence presented at trial established that the use of the photo-logging system in 1972 had saved the state approximately $130,000, less the cost of implementing the system.   The trial court found that there was a cause and effect relationship between plaintiff's suggestion and the system ultimately adopted by the state;  the state was ordered to provide plaintiff with a fair hearing and to make an award to plaintiff “in a sum equal to 10% of the annual ongoing savings of approximately $100,000 to $130,000 which may or may not be reduced if ․”;   the court also held that the state was estopped from asserting various defenses such as the Statute of Limitations and Government Code sections relating to claims against governmental agencies or their employees.   Costs of suit were awarded to plaintiff.

Defendants timely filed a notice of appeal on June 1, 1981;  plaintiff filed a notice of appeal and cross appeal on the same date.

CONTENTIONS

On AppealI

Initially, defendants assert that plaintiff's failure to file a claim against the state bars the present action in that such was a mandatory prerequisite to filing the instant action.

II

Defendants also contend that the complaint was not timely filed.

III

Defendants further aver that the complaint failed to state a cause of action by reason of sovereign immunity and Government Code sections 815, subdivision (a), 818.8, 820.2, 821, and 822.2.

IV

Defendants also contend that the trial court lacked subject matter jurisdiction.

V

Defendants further assert that the trial court erroneously held that the state was estopped from asserting the Statute of Limitations.

VI

Defendants contend that the trial court erroneously held that plaintiff had an actionable right.

VII

Focusing on the separation of powers doctrine, defendants aver that the trial court erroneously ordered defendants to pay an amount in excess of that mandated by statute.

VIII

In addition, defendants contend that the amount of plaintiff's award is limited by Government Code section 13926 (repealed Stats.1981, ch. 230, § 4;  replaced with § 19823 by Stats.1981, ch. 230, § 55) and the applicable Board of Control rules.

IX

Defendants also aver that plaintiff waived his rights to receive any award, to bring the instant lawsuit, or to assert a claim against the state of California.

X

Finally, defendants contend that the trial court's judgment is defective in that it is an advisory opinion and is too indefinite and uncertain to be enforced.

On Cross Appeal

XI

Plaintiff contends that a conflict between the Administrative Code sections and the Government Code sections pertaining to the merit award system renders the restrictions on the amount of a merit award mandated by Title 2, article 2, section 831 of the California Administrative Code void.

DISCUSSION

I

Defendants advance various arguments such as the time limitations and procedural requirements imposed by sections 4750 and 4751 of the State Administrative Manual, sections 911.2, 945.4, 950.2, 911.4 of the Government Code and section 430.30 of the Code of Civil Procedure in order to establish that plaintiff's claim is barred by his failure to file within the appropriate statutory periods.

The trial court concluded that defendants were barred from raising any of the applicable statutes;  for the following reasons, we agree.

On September 26, 1963, defendant MAB sent a letter to plaintiff which was signed by Veglia.   The letter informed plaintiff that the MAB had rejected his suggestion, but also mentioned that the award matter would be reopened at the MAB's initiative in the event that the suggestion was adopted at some later date.   Furthermore, the letter did not contain any form specifically drawing plaintiff's attention to the three-year statute of limitation.

 Although the letter was signed by Veglia, it was apparent that the intended signator was Q.E. Lesher, then administrative assistant to the MAB.   Despite defendant's assertion that Veglia lacked the authority to authorize the letter, the fact that Mr. Lesher apparently composed it indicates that both the administrative assistant to the MAB and Veglia, a member of the MAB, were aware of its content.   Furthermore, in that a copy of the letter was retained in the MAB's files and plaintiff received no follow-up disclaimer, we may reasonably infer that the MAB itself was aware that the letter clearly stated, “However, the Division of Highways, in its evaluation report, has advised that if they later adopt your proposal, they will request the re-opening of your suggestion for award consideration.”   We find this language a sufficient bar to defendants' use of the statutory protection sought and note that a governmental agency may be estopped from asserting strict complaince with statutory time limits.  (Fredrichsen v. City of Lakewood (1971) 6 Cal.3d 353, 99 Cal.Rptr. 13, 491 P.2d 805;  Farrell v. County of Placer (1944) 23 Cal.2d 624, 145 P.2d 570.)

Prior to our discussion of the elements of an estoppel and the applicability of that doctrine to the instant case, we pause to set out the appropriate standard of review.  “Generally, whether estoppel exists is a factual question and ordinarily the determination of the trier of fact is binding on appeal unless the contrary conclusion is the only reasonable one to be drawn from the facts.”  (Bank of California v. Connolly (1973) 36 Cal.App.3d 350, 365–366, 111 Cal.Rptr. 468.)

 The doctrine of equitable estoppel provides that one may not deny the existence of facts after intentionally leading another to believe their truth thereby causing the former party's detrimental reliance.  (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 125 Cal.Rptr. 896, 543 P.2d 264.)   Invocation of the doctrine requires:  (1) that the party to be estopped was aware of the facts;  (2) that the party to be estopped intended that his conduct would be acted upon, or the party to be estopped acted in such manner that the party asserting the estoppel had a right to believe it was intended;  (3) that the party asserting the estoppel was ignorant of the true facts;  and (4) that the party asserting the estoppel relied upon the conduct to his detriment.  (Id., at p. 725, 125 Cal.Rptr. 896, 543 P.2d 264.)

 In the instant case, the MAB was well aware of its own rules for submission and resubmission of award claims, as well as its statutory authority to expand its rules pursuant to California Administrative Code, title 2, section 829, subdivision (j), providing in pertinent part that “[o]ther rejected suggestions may be resubmitted in such manner as prescribed by the Merit Award Board.”  (Emphasis added.)   The MAB was also aware that resubmission on its own initiative was not in accord with the procedure pronounced by its own rules.

Secondly, plaintiff had a right to believe that the MAB intended to and would request that his claim be reopened upon adoption of his suggestion, in that the letter of September 26, 1963 clearly represented that such was the MAB's intent and the MAB had previously reopened other cases where pertinent time limits had run.

Defendants argue that the third element of estoppel is missing in that plaintiff had prior knowledge of the applicable statutory procedures and time limitations;  we disagree, for plaintiff could reasonably believe that the September 26, 1963 letter superseded the earlier pronouncements.   Furthermore, the MAB's pronouncement was consistent with its statutory authority to prescribe the manner in which rejected suggestions are resubmitted.   Thus, plaintiff could reasonably believe that the MAB had exercised their rule-making power by accepting the responsibility for the resubmission of rejected suggestions.

Finally, plaintiff's detrimental reliance on the MAB's letter is apparent, in that he believed he was relieved of the responsibility of monitoring whether the Department of Transportation had adopted a photo-logging system.   Had he done so, plaintiff would have been able to resubmit his claim within time limits set by the MAB rules and the pertinent statutes.

 Moreover, even though the doctrine of estoppel is inapplicable against government agencies when its application would obviate a strong policy adopted for the public benefit, the doctrine is applicable when justice requires it.  (Page v. City of Montebello (1980) 112 Cal.App.3d 658, 169 Cal.Rptr. 447;  Strong v. County of Santa Cruz, supra, 15 Cal.3d 720, 125 Cal.Rptr. 896, 543 P.2d 264.)

In Page, this court held that the doctrine of estoppel was inapplicable where a police officer's promise to an informant's family, that the family would be provided for if the informant was injured, was neither authorized, ratified nor approved by the government body.   The court ruled “[i]t is established that the unauthorized promise of an employee does not constitute grounds for an estoppel as to the governmental body by which he or she is employed where the means and limitations on its power to act are prescribed by statute.”  (Page v. City of Montebello, supra, 112 Cal.App.3d 658, 669, 169 Cal.Rptr. 447.)  (Emphasis added.)

The instant situation differs in that Veglia signed the pertinent letter in his capacity as assistant secretary to the MAB;  in addition, the procedure mentioned in that letter had been invoked by the MAB more than a dozen times before.   Thus, the Page decision does not negate our application of the estoppel doctrine for the facts in Page concern an employer's unauthorized promise, whereas in our situation Veglia's statement was authorized by the MAB's knowledge of the letter's contents as well as by the MAB's previous conduct.

 Furthermore, we note that the application of the estoppel doctrine here would not obviate a strong policy adopted for the public benefit;  on the contrary, our application of the doctrine would result in a strengthening of the merit award system.   As that system was instituted in order to foster innovative ideas likely to reduce state expenditures, we cannot permit the MAB to conduct its affairs in a manner likely to inhibit such efforts;  in order for employees to trust that their efforts will be rewarded, the rules and procedures disseminated by the MAB must be reliable.   The application of the estoppel doctrine here will encourage the MAB to pronounce only those rules which accurately reflect the procedures which it follows.

Therefore, we conclude that plaintiff's estoppel argument is reasonable and that the trial court's determination should be upheld (Bank of California v. Connolly, supra, 36 Cal.App.3d 350, 366, 111 Cal.Rptr. 468), as the trial court correctly applied the doctrine of estoppel to bar defendants from asserting the plaintiff's failure to file a claim against the state as a prerequisite to the instant action.

II

 We find no further merit in defendants' contention that the complaint was not timely filed.

Defendants rely on California Administrative Code, title 2, section 828, subdivision (h), which provides, “[t]o be considered elligible [sic] for an award a suggestion must be submitted for consideration not later than six months after the date the suggestion was first put into effect.”

Defendants' reliance is clearly misplaced;  this particular section applies to the situation where an employee requests an award for a program initiated before his suggestion has been formally submitted.   Plaintiff submitted his suggestion in June of 1960, well in advance of the beginning of the implementation of the system in 1968.   Thus, California Administrative Code, title 2, rule 828, subdivision (h), is inapplicable and provides no bar to the instant action.

III

Defendants also assert that the complaint failed to state a cause of action by reason of sovereign immunity pursuant to Government Code sections 815, subdivision (a), 818.8, 820.2, 821, and 822.2.

 Sections 818.8 ¹ and 822.2 ² respectively preclude governmental and public employee liability for injuries caused by the negligent or intentional misrepresentation of an employee when made within the scope of employment, unless accompanied by actual fraud, corruption or malice.   Thus, because immunity pursuant to these sections requires a misrepresentation, both sections are inapplicable in the instant case;  Veglia's letter was neither an intentional nor negligent misrepresentation.

A negligent misrepresentation has been defined as a statement made to guide others but which is unwarranted by the knowledge of the person making it.  (Grenell v. City of Hermosa Beach (1980) 103 Cal.App.3d 864, 163 Cal.Rptr. 315.)   Here Veglia's statement that “the Division of Highways, in its evaluation report, has advised that if they later adopt your proposal, they will request the reopening of your suggestion for award consideration” was warranted by his knowledge that the MAB had, in his own words, in the interests of “fair play and justice” reopened at least 12 claims after the applicable statutory period had run.

Section 820.2 ³ is also inapplicable in that it precludes employees' personal liability for an injury resulting from the exercise of discretion;  however, inasmuch as plaintiff is suing the state of California, the MAB, and the Department of Transportation, not Veglia, the latter's personal liability is not at stake.   Furthermore, Veglia's statement to plaintiff was not a mere act of discretion, but rather a reflection of the MAB's policy of reopening claims after the statutory period had run.

Section 821 is likewise inapplicable in that it precludes the employee's liability “caused by his adoption of or failure to adopt an enactment or by his failure to enforce an enactment.”   Again, Veglia's liability is not at stake.

Were any one of these sections applicable, it would be section 815, subdivision (a), which provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”   However, the legislative comment to section 815 indicates that section 815's immunity does not affect liability arising out of “the right to obtain specific relief against public entities and employees” pursuant to Government Code section 814.   Furthermore, the legislative comment to section 814 provides that “the appropriate way to seek review of discretionary governmental actions is by an action for specific or preventive relief ․, not by tort action for damages.”   Thus, inasmuch as defendants' liability will be determined by plaintiff's action for declaratory relief, defendant does not enjoy governmental immunity.

 Furthermore, it is clear from the legislative and judicial history of the Tort Claims Act that the Legislature intended to “create liability on the part of government entities when injury was caused by the failure to perform a mandatory duty.”  (Elson v. Public Utilities Commission (1975) 51 Cal.App.3d 577, 587, 124 Cal.Rptr. 305.)   In that the MAB is empowered by California Administrative Code, title 2, section 829, subdivision (j), to establish standards for resubmission of claims for merit awards and is required to evaluate the merits of suggestions in accord with the applicable rules by Administrative Code section 827, subdivision (a), the MAB has a mandatory duty to review appellant's suggestion pursuant to its own procedures, including resubmission of plaintiff's claim in accord with the procedure pronounced in its letter of September 26, 1963.

IV

Defendants also contend that the superior court lacked subject matter jurisdiction in that the amount in controversy was limited to $1,000 by Government Code section 13926 (repealed, Stats.1981, ch. 230, § 4) ⁴ and that jurisdiction was therefore proper only in the municipal court.   Once again, we disagree.

Plaintiff's action is for declaratory relief and damages.  Code of Civil Procedure section 1060 permits “[a]ny person ․ who desires a declaration of his rights ․ with respect to another ․” to “bring an original action in the superior court ․   He may ask for a declaration of rights or duties, either alone or with other relief;  and the court may make a binding declaration of such rights or duties ․”

 Having accepted a cause of action for declaratory relief, the court had jurisdiction to declare plaintiff's rights and was entitled, in the interests of judicial economy, to render a money judgment consistent with those rights.  (California Bank v. Diamond (1956) 144 Cal.App.2d 387, 301 P.2d 60.)

V

Our discussion of defendants' first contention, ante, clearly establishes that the trial court was justified in holding that the defendants were estopped from asserting the Statute of Limitations.

VI

Defendants contend that plaintiff lacked an actionable right.   We agree and explicate the reasons for our conclusion below.

 The pertinent statutes clearly demonstrate the Legislature's intention that merit awards be given at the discretion of the MAB.  California Administrative Code, title 2, section 827, subdivision (b), provides that “[t]he Merit Award Board shall recommend to the Board of Control employee suggestions, ․ which justify cash awards.”  (Emphasis added.)   Thus, the MAB shall recommend to the Board of Control only those suggestions for which an award is justified.   The introductory language to both Government Code section 19823, adopted 1981, and Government Code section 13926, repealed but in effect when plaintiff filed his complaint, specifically states that “[t]he department may make awards to state employees ․” (emphasis added) and further provides for the appointment of merit award boards “․ to make recommendations to the board ⁵ as to the merits of the proposals, ․ and whether or not the proposals ․ justify an award.”   This language clearly establishes the MAB's statutory duty to make a finding of justification before recommending payment of any award to the State Board of Control.   Furthermore, the Legislature has provided the MAB with guidelines for its determination of justification:  The MAB shall recommend to the Board of Control those employee suggestions which the MAB finds have been adopted, put into effect, and which result “in eliminating or reducing state expenditures or improving operation.”  (Gov.Code, § 19823, adopted Stats.1981, ch. 230, § 4;  Gov.Code, § 13926, repealed Stats.1981, ch. 230, § 55.)   Once the MAB has made the requisite finding, it formulates an official recommendation for the State Board of Control's approval (Cal.Admin.Code, tit. 2, § 829, subds. (h) and (i));  however, if the MAB finds justification lacking, it is authorized to do no more than inform the employee that his claim has been rejected, for an administrative agency may not enlarge upon its statutory power.  (Cal. Drive-In Restaurant Assn. v. Clark (1943) 22 Cal.2d 287, 140 P.2d 657.)

 Having noted the MAB's discretionary power, we pause to set out the standard of review applicable where, as here, an administrative agency's decision affects neither a fundamental nor a vested right.   The decision of an administrative agency which does not affect a fundamental right will not be disturbed on review unless the decision is not supported by substantial evidence in light of the entire record.  (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29.)   While we do not mean to imply that the trial court has no authority to review discretionary decisions of administrative agencies, we note that the trial court's authority to order an administrative agency to act with respect to its discretionary powers is limited to instances wherein the substantial evidence rule renders the agency's decision clearly erroneous (Cal. Drive-In Restaurant Assn. v. Clark, supra, 22 Cal.2d 287, 140 P.2d 657) or where the agency has failed to exercise its discretion.  (Fowler v. Peirce (1852) 2 Cal. 165.)

 Despite the 15-year span between the initial submission of plaintiff's suggestion and plaintiff's 1975 claim for a $333,000 award, the facts indicate that the MAB waived statutory limitations and processed plaintiff's claim promptly in accord with statutorily mandated procedures.   Thus, in accord with California Administrative Code, title 2, section 829, subdivision (f),⁶ the MAB referred plaintiff's letter to the Department of Transportation for its determination of whether the suggestion had been adopted.   The Department of Transportation's report indicated that plaintiff's suggestion may have been “somewhat related” to the present system, but that adoption of the system was prompted by action in other states, the chief of traffic's 1968 request for development of such a system, and a federal grant in 1970.   Then, in accord with California Administrative Code, title 2, section 829, subdivision (h),⁷ the MAB evaluated the suggestion and concluded that an official recommendation for a merit award was unwarranted.   Shortly thereafter, plaintiff was notified that the “Board could find nothing in the facts surrounding the case which would permit the recommendation of an award ․   There is no indication that suggestion number 23816 had any effect upon the decision of the Department of Transportation.”   Thus, the MAB had clearly exercised its discretionary duty;  absent a reasonable judicial determination that its decision was not supported by substantial evidence, the decision was entitled to the respect of the courts and should not have been disturbed.  (Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29.)

In the instant action, the MAB's decision clearly was supported by substantial evidence.   The agency had good cause to doubt any relation between plaintiff's suggestion and the system ultimately adopted by the state in that plaintiff's suggestion was rejected in 1963 after unsatisfactory test results;  was filed for two years, then transferred to storage.   In contrast to the relative inaccessibility of plaintiff's records, information concerning the present system was thrust upon the Department of Transportation in 1968 when Gerald Russell (Russell), state traffic engineer, attended a meeting of the Federal Highway Administration.   Consequently, Russell wrote to Oregon and acquired information describing the system in use there.   Although Russell was subsequently informed that his department had tested a similar system several years earlier, the MAB was justified in accepting his testimony that the disclosure did not prompt him to investigate the suggestion as the information he received was that the prior experiments had been unsuccessful.   As he was already receiving data from Oregon detailing a successful system, he had no reason to invest either time or energy ferreting out the details of an unsuccessful design.   Furthermore, the evidence supports a finding that Russell had no knowledge of the content of plaintiff's suggestion:  Although the two men worked in the same department, there were over 250 employees;  they knew each other only casually and had never discussed the suggestion, its contents, or the Aero Service test.   Moreover, Russell's testimony established that he had not gained any such knowledge from other sources.

The MAB could clearly infer that the adoption of the present photo-logging system resulted from external stimuli rather than the adoption of plaintiff's suggestion, for Russell's interest was not piqued until he attended the meeting of the Federal Highway Administration and he gained additional information from the state of Oregon.   Further, the present system was adopted only after federal funds covering 60 per cent of the initial costs became available.   Thus, in that the exercise of the MAB's discretionary power resulted in a decision which is supported by substantial evidence in light of the entire record, we hold that the trial court exceeded its jurisdiction by ordering the MAB to reach a contrary decision.

 We are unconvinced by plaintiff's additional argument that the court is entitled to overturn an administrative agency's finding and order state officials to expend funds which have previously been appropriated by legislative action.   Although the proposition is accurately stated (Mandel v. Myers (1981) 29 Cal.3d 531, 174 Cal.Rptr. 841, 629 P.2d 935;  Fowler v. Peirce (1852) 2 Cal. 165), it is inapplicable to the facts before us;  Mandel v. Myers establishes no more than the judiciary's power to compel the state controller to disburse funds which the controller is under a duty to disburse.  (Mandel v. Myers, supra, 29 Cal.3d 531, 174 Cal.Rptr. 841, 629 P.2d 935.)   Contrary to plaintiff's assertion, Mandel v. Myers does not establish the court's power to order the disbursement of funds payable at the discretion of an administrative agency.

An examination of the cases cited in Mandel v. Myers supports our conclusion.   In McCauley v. Brooks (1860) 16 Cal. 11, the state controller was ordered to disburse funds pursuant to a valid contract.   As a contractual indebtedness was involved, the controller had no choice other than to pay the contested funds.   Similarly, in Flora Crane Service Inc. v. Ross (1964) 61 Cal.2d 199, 37 Cal.Rptr. 425, 390 P.2d 193, the court stated that the payment of funds sought by the plaintiff was dependent upon whether the state controller had a duty to certify the availability of those funds.

In the case at bar, absent a recommendation from the MAB, neither the state controller nor the Board of Control has a duty to disburse funds in payment of a merit award.   As no such recommendation was forthcoming, no such duty was created and the separation of powers doctrine prohibits the court from ordering the Legislature to appropriate specific funds.  (Mandel v. Myers, supra, 29 Cal.3d 531, 540, 174 Cal.Rptr. 841, 629 P.2d 935.)   Thus, the trial court exceeded its power by ordering the disbursement of funds properly disbursed at the discretion of the MAB.

In view of the conclusion we reach, we find it unnecessary to resolve either defendants' or plaintiff's remaining contentions.

The judgment is reversed.

FOOTNOTES

1.   Government Code section 818.8 provides:“A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.”

2.   Government Code section 822.2 states:“A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.”

3.   Government Code section 820.2 provides:“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the discretion vested in him, whether or not such discretion be abused.”

4.   Government Code section 13926 stated in pertinent part:“Any award granted under the provisions of this section shall be limited to one thousand dollars ($1000) unless a larger award is approved by concurrent resolution of the Legislature.”   Section 19823;  enacted by Statutes 1981, chapter 230, section 55;  retains this language.

5.   State Board of Control.

6.   California Administrative Code, title 2, section 829, subdivision (f) provides:“Suggestions shall be referred at once to the state agency or agencies affected for consideration.   Within 30 days the agency shall report its findings and recommendations to the Merit Award Board.   The agency report shall indicate whether a suggestion has been adopted;  the date on which it was placed in effect;  any actual or estimated reduction, elimination, or avoidance of expenditures or improvement in operations made possible by a suggestion;  the availability of funds for payment of proposed awards;  or the reasons in detail for rejection.”

7.   California Administrative Code, title 2, section 829, subdivision (h), provides:“The Merit Award Board shall evaluate each suggestion, taking into consideration agency action, staff recommendations, and the objectives of the merit award program.   For each suggestion eligible for an award the Merit Award Board shall formulate an official recommendation to the State Board of Control covering the merits of the suggestion, and the amount of recommended award.”

SPENCER, Presiding Justice.

LILLIE and DALSIMER, JJ., concur.