Frank K. King, Plaintiff and Appellant v. City of San Bernardino et al., Defendants and Respondents. (1971)

Appellant filed a complaint for declaratory relief claiming he was entitled to compensatory time or monetary remuneration for hours worked in excess of forty hours per week while he was superintendent of the San Bernardino Municipal Transit System. Respondent City demurred for failure to state a cause of action in that the complaint failed to allege the existence of a law or resolution authorizing compensatory time off or overtime pay, and for the same reason that the complaint was uncertain. The demurrer was sustained on all grounds, with leave to amend. The appellant elected to stand kupon the complaint without amendment and judgment of dismissal was thereafter entered.¹ Appellant appeals from the judgment of dismissal.

Appellant's complaint raises two issues: He first alleged he had been authorized and entitled to receive compensatory time for hours worked in excess of a forty-hour week, or to receive monetary remuneration in lieu thereof. Secondly, he alleged other officers and employees of the city similarly situated received compensatory time or monetary remuneration, and the failure to grant such rights to him constitutes violations of due process and equal protection of the law under the California and Federal Constitutions.

Viewing all material and issuable facts pleaded as admitted, as we must when judging the sufficiency of a complaint challenged by a demurrer (Flores v. Arroyo, 56 Cal. 2d 492, 497), the complaint shows the following facts: Appellant has served as a civil service employee of the City of San Bernardino as the Superintendent and department head of the San Bernardino Municipal Transit System since July 1961. Appellant has submitted records showing the number of hours worked in excess of forty hours per week, and the respondent City prepared records reflecting such number of hours. Appellant has requested leaves of absence based on the accumulated hours, but respondent City has refused and continues to refuse to grant such leaves, except for short leaves deducted from the accumulated hours, because of a city resolution prohibiting compensatory time off or monetary remuneration therefor. Other employees, situated similarly to appellant have, however, received time off for hours which they have worked above a forty-hour week, or has been paid for the accumulated hours upon separation from city service.

‘It is established law in this state that in the absence of statutory provisions a public employe [sic] is not entitled to compensation for overtime worked.’ (Simposon v. Cranston, 56 Cal. 2d 63, 65; Adams v. City of Modesto, 53 Cal. 2d 833, 835; Jarvis v. Henderson, 40 Cal. 2d 600, 606; Martin v. Henderson, 40 Cal. 2d 583, 589-590; Welshans v. City of Santa Barbara, 205 Cal. App. 2d 304, 308-309.)

Recognizing this general principle, appellant concedes his claim must be based on ‘written’ laws. He contends his claim is based on Labor Code, §§ 510-556, and on § 40, subd. 27 of the San Bernardino City Charter.

Although Labor Code, §§ 510-556 were thought by Justice Carter, in his dissenting opinion in Martin v. Henderson, supra, 40 Cal. 2d 583, to be sufficient statutory authorization for overtime compensation, that view has not been adopted by any court of this state. Moreover, as pertains to cities, this statutory scheme is limited to ‘cities which are cities and counties and to the officers and employees thereof.’ (Labor Code, § 555.)

Although we do not have the San Bernardino City Charter before us, judicial notice of its provisions may be taken. (Evidence Code, § 451(a).) Section 40, subd. 27 of the Charter provides the governing body may do that which is ‘necessary and proper’ to operate the city government. Even though this provision may be sufficient to authorize the city to operate a public transportation system, it does not follow that it of necessity, entitles employees thereof to overtime compensation. Appellant suggests, however, continued ‘administrative practice’ by respondent City shows overtime compensation is required. This suggestion is foreclosed by Martin v. Henderson, supra, 40 Cal. 2d 583, 590:

‘The fact that normal hours of work are established and compensating time off is provided for work beyond those hours does not, of itself, give the employee a right to payment for overtime.’ (See also Pootel v. City and County of S. F., 125 Cal. App. 2d 378, 381.)

Appellant argues, citing City of Long Beach v. Mansell, 3 Cal. 3d 462, respondent City should be estopped from arising the lack of statutory authorization for overtime compensation, since he was led to believe he would be entitled to compensatory time for hours worked in excess of forty per week and since other employees similarly situated were granted monetary remuneration in lieu of compensatory time when they terminated their employment with respondent City.

Mansell established the broad proposition that:

‘The government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel.’ (3 Cal. 3d 462, 496-497.)

Mansell recognized, however, the government conduct there involved and the extensive reliance thereon created ‘an extremely narrow precedent for application in future cases.’ (3 Cal. 3d 500.) Appellant cites no cases, and independent research has disclosed none, where an estoppel has disclosed none, where an estoppel has been raised against a public entity under like circumstances of employment.

In both Martin v. Henderson, supra, 40 40 Cal. 2d 600, however, the circumstances were similar to those alleged by appellant. In both Martin and Jarvis, highway patrolmen had worked hours in excess of a forty-hour week, while Highway Patrol Orders were in effect which authorized compensatory time off. Both Martin and Jarvis had accumulated compensatory hours, recorded on Highway Patrol records. Several years later, the accumulated hours were cancelled, however, and compensatory payment refused because the Highway Patrol could find no statutory authorization for granting compensatory time off, or compensatory payment. Because, at the time the services were rendered, no statute existed which permitted additional compensation for services performed under the monthly fixed salaries, neither Martin or Jarvis could recover. The court noted:

‘The statutory and regulatory limitations upon compensation for services are but a codification and application to civil servants of the oft-repeated rule ‘that a person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary.’ . . . The rule applies not only to the duties themselves . . . but also to the hours of work. Where the employee is paid by time, as by the day, week, or month rather than by the amount of work which he does, he is bound, in the absence of statute, to render services without regard to the number of hours worked.' (40 Cal. 2d 589-590.)

Because appellant worked in a position of professional responsibility which required, not a specific number of hours of work, but instead, that his services accomplish a particular task at a fixed salary, we do not perceive an injustice under the alleged facts which would require us to find an estoppel and overturn the long-established rule, recapitulated in Martin v. Henderson, supra, 40 Cal. 2d 583.

Appellant suggests, without full discussion, that ‘other officers and employees of said City similarly situated to plaintiff have received such compensatory time or monetary remuneration in lieu thereof.’ If he was denied such benefits for overtime worked, and no law or resolution provided for such payment, he is not denied the equal protection of the laws simply because others are improperly given such benefits. His exclusion is not due to any intervention of the law. The law as to appellant is the same as the law for everyone else. The discrimination he alleges is due to improper, perhaps illegal, acts of other public officials. Such illegality or impropriety does not justify his inclusion in the improperly benefited group. If administrators of the City of San Bernardino do discriminate in favor of certain other employees similarly situated, remedies exist to stop such discrimination. We hold the appellant cannot seek to augment the group improperly benefited.

Assuming intentional discriminatory action improperly benefited some employees, what relief may the trial court grant appellant? Any judgment would have to be framed to stop all improper reimbursement to employees for overtime worked. While we have every sympathy for appellant, assuming the truth of the matters pleaded, they do not state a cause of action and the demurrer was properly sustained.

The judgment is affirmed.

FOOTNOTES

1.  Technically, the trial court erred in sustaining the demurrer and entering the judgment of dismissal thereafter. In an action for declaratory relief the complaint is sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a contract and requests that the rights and duties be adjudged. If these requirements are met, the court must declare the rights of the parties whether or not the facts alleged establish that the plaintiff is entitled to a favorable declaration. (Maguire v. Hibernia S. & L. Soc., 23 Cal. 2d 719, 729, 730.)Since, however, the judgment of dismissal, entered after the demurrer was sustained, effectively determined the issues raised, failure to enter a judgment on the declaratory relief demand is not reversible error. (Haley v. L A. County Flood Control Dist., 172 Cal. App. 2d 285, 292-294.)

GABBERT, J.