DILLON v. BOARD OF PENSION COMMISSIONERS OF CITY OF LOS ANGELES (1941)

Plaintiff's husband, a police officer for the city of Los Angeles, committed suicide in April, 1934. Within six months, plaintiff presented an application to the Board of Pension Commissioners of the city of Los Angeles for the allowance of a widow's pension under article 17, section 183 of the charter of the city of Los Angeles. The application was denied by the board in February, 1935. In December, 1938, she filed the present proceeding in mandamus to compel the board to issue an order for the payment to her of a pension in future and a cash sum equal to the amount of pension funds accrued in the three years preceding the date of the filing of the petition plus the amount of pension which will have accrued from that date to and including the date of such order with interest. The petition alleged that in the course of his duties as police officer plaintiff's husband suffered two accidents entailing severe injuries to his body and nervous system which gave rise to a condition of mental unbalance during which he took his life. Defendants demurred to the petition on the grounds that the petition did not state sufficient facts as to the nature and extent of the deceased's injuries and his mental condition before death and that any cause of action was barred by the statute of limitations. The trial court sustained the demurrer without leave to amend holding that the cause was barred by the statute of limitations. Upon being refused leave to file a second amended petition, plaintiff appealed from the judgment. of dismissal.

Sections 338 and 312 of the Code of Civil Procedure, which are applicable to actions in mandamus, Code Civ.Proc. sec. 1109, provide that an action upon a liability created by statute, other than a penalty or forfeiture, must be commenced within three years after the cause of action has accrued. Defendants contend that under these provisions the action is barred because it was commenced more than three years after the death of plaintiff's husband. In the language of this court, however, ‘The right to pension payments is a continuing right.’ Dryden v. Board of Pension Commissioners, 6 Cal.2d 575, 580, 59 P.2d 104, 107. The right to each installment accrues at the time it becomes payable, not at the time of the decedent's death. In the Dryden case the court was concerned with section 376 of the Charter of the City of Los Angeles which requires that any claim against the city other than for damages be presented within six months after the last item of the claim has accrued. A deceased police officer's widow had presented her claim more than six months after her husband's death. The court in upholding her claim declared: ‘Petitioner by her conduct may have barred herself from collecting payments which have accrued, but this does not mean that she is without means to enforce the right to present and future pension payments, as distinguished from past and accrued pension payments. * * * It is our opinion that the petitioner is entitled to all those periodic pension payments which fell due within a period of six months prior to her application to the Board of Pension Commissioners, and to all those periodic pension payments which have accrued since that date and which will continue to accrue in the future * * *.’ Dryden v. Board of Pension Commissioners, 6 Cal.2d 575, 580, 59 P.2d 104, 107. In Talbot v. City of Pasadena, 28 Cal.App.2d 271, 82 P.2d 483, defendants claimed that a widow's action for a pension six years after the death of her husband was barred by section 338(1) of the Code of Civil Procedure. The court stated: ‘The period of limitation prescribed by subdivision 1 of section 338 of the Code of Civil Procedure will run against a claim for accrued pension payments. * * * From the allegations of the plaintiff's complaint all claims for pension payments accrued before April 15, 1933, would be subject to the bar of the statute of limitations. The fact that some of the payments may be barred does not justify an order sustaining the demurrer without leave to amend.’ 28 Cal.App.2d at page 273, 82 P.2d at page 484. ‘The right if any, to a pension is a continuing one.’ 28 Cal.App.2d at page 274, 82 P.2d at page 484.

These cases are controlling herein. Defendants rely upon Hermanson v. Board of Pension Commissioners, 219 Cal. 622, 28 P.2d 21, for the proposition that a pension claim is completely barred if action thereon is not brought within three years of the death of the decedent. The court there held, however, that the plaintiff was not entitled to a pension on the merits. It then added without discussion a statement not essential to the decision to the effect that the action was also barred by the statute of limitations. Whatever implications lay therein have been dispelled by this court's statement in the Dryden case, supra, that ‘Defendants contend that the conclusion reached above is inconsistent with our decision in Hermanson v. Board of Pension Commissioners, [supra]. In that case we held that on the merits the petitioner was not entitled to a pension, and added that the statute of limitations was a bar to his claim. The point raised in the instant case, that the right to a pension is a continuing one, was not made in the Hermanson Case, and, in view of the adverse determination against the applicant on the merits, would have been unavailing.’

Defendants' contention that in any event the action is barred because the plaintiff did not bring it within three years after the board's denial of her claim for a pension is also without merit. Sections 183 and 376 of the City Charter require that a pension claim must be presented first to the Board of Pension Commissioners, and denial of the claim by the board must precede any court action to enforce the claim. The running of the statute of limitations, however, is determined not by the time of the board's denial, but by the time when the right to each payment accrues. Talbot v. City of Pasadena, supra. Nor is it necessary for the plaintiff to present her claim to the board anew because more than three years have elapsed from the date of the last denial. One proper claim, even though denied by the board, serves to satisfy the requirements of the City Charter with regard to any claim for future payments. Talbot v. City of Pasadena, supra.

We therefore hold that the statute of limitations has not run upon any right which plaintiff may have to payments which have accrued within three years prior to the bringing of this action and to payments which may accrue in the future.

The judgment of the trial court is reversed.

TRAYNOR, Justice.

We concur: GIBSON, C. J.; SHENK, J.; CURTIS, J.; HOUSER, J.; EDMONDS, J.; CARTER, J.