Opinion
Rehearing Denied Nov. 12, 1941.
Hearing Granted Dec. 22, 1941.
Appeal from Superior Court, Los Angeles County; Emmet H. Wilson, Judge.
Proceeding by Manuel A. Moreno for a writ of mandate to compel James Cairns and others, constituting the Board of Fire Commissioners of the City of Los Angeles, to reinstate petitioner as assistant fire chief of such city, restore his seniority rights, and pay him back pay. From a judgment against petitioner following an order sustaining a demurrer to his second amended petition without leave to amend, he appeals.
Affirmed.
Hearing granted; HOUSER, J., not participating. COUNSEL
Arthur J. Mullen and Joseph K. Coady, both of Los Angeles, for appellant.
Ray L. Chesebro, City Atty., Frederick von Schrader, Asst. City Atty., and George William Adams and Marvin Chesebro, Deputy City Attys., all of Los Angeles, for respondents.
OPINION
SHAW, Justice pro tem.
This appeal is taken by petitioner from a judgment against him following an order sustaining a demurrer to his second amended petition for writ of mandate, without leave to amend. The writ is sought to compel respondents, who are the Board of Fire Commissioners of the City of Los Angeles, and the individual members thereof, to reinstate petitioner to the position of assistant fire chief of the fire department of that city, which he formerly held, and to his seniority rights, and to pay him back pay claimed to be due him. The petition alleges that after petitioner had served in the fire department for forty-two years with an unblemished record, and while he held the position of assistant fire chief and was in good health, he resigned his position. The circumstances attending this resignation are alleged as follows:
"VI. That your petitioner has not been unlawfully suspended, laid off, or discharged from his position as assistant chief of said Fire Department, but on the contrary, your petitioner under duress, misrepresentation, fraud and undue influence, in that he would be deprived of all pension rights, was forced against his will and desire, to resign from his position with said department; that on July 1, 1939, your petitioner, without any notice other than two hours, was summoned before the Board of Fire Commissioners; that at such time your petitioner was told that if he did not then and there, within two hours, resign from his position with the Fire Department, he would be summarily discharged, and that if he was so discharged he would suffer a complete loss of all pension rights; that because of the pressure of duress, misrepresentation, fraud, and undue influence of complete loss of all pension rights, your petitioner did resign under protest; that no just or reasonable cause existed that your petitioner should have been resigned, other than fear of loss of pension rights with which he was threatened; that no charges of any kind were ever preferred against him.
"VII. That at the time your petitioner was forced to retire, he was informed that four positions as assistant fire chief were to be eliminated, but the rules of seniority then in force and applicable to petitioner were not applied in the case of your petitioner.
"VIII. * * * That your petitioner was deprived of his position arbitrarily and summarily, in that the procedure required by section 135 of the City Charter was not followed, but by intimidations, duress and threat of loss of all pension rights, your petitioner, against his will and without advice of counsel, or allowance of time to secure such advice and counsel, was forced under protest to resign."
"XIII. * * * That your petitioner herein has never been guilty of any misconduct upon which an order for removal could be made."
Respondents contend, and petitioner denies, that this proceeding is barred by section 112 1/2 of the Los Angeles City Charter. That section provides that, "Whenever it is claimed by any person that he has been unlawfully suspended, laid off or discharged, and that such lay-off, suspension or discharge is ineffective for any reason, any claim for compensation must be made and a demand for reinstatement must be presented in writing within ninety days following the date on which it is claimed that such person was first illegally, wrongfully or invalidly laid off, suspended or discharged"; and said section further provides that failure to comply with these requirements shall bar any action for reinstatement or for recovery of compensation claimed.
The questions in dispute here are, whether the action taken against petitioner, as alleged in the petition, constituted a "lay-off, suspension or discharge", and, whether section 112 1/2 is applicable at all to members of the fire department, for whose discipline, removal and reinstatement section 135 of the charter provides an elaborate scheme. We do not find it necessary to decide these questions, for we are satisfied that, whether section 112 1/2 applies to the case or not, the petition must fail for other reasons.
Section 135 of the charter, which deals specially with the fire department, provides that, "No officer or employee of the Fire Department shall be suspended, removed, deprived of his office or position, or otherwise separated from the service of the Fire Department (other than by resignation), except for good and sufficient cause", and provides an elaborate procedure for determining whether such cause exists, which, the petition alleges, was not followed in this case. The words, "other than by resignation", in the above quotation, clearly show that the section does not apply to resignations. The petition alleges that petitioner resigned. This resignation, if voluntary, worked a final severance of petitioner’s relation to the fire department. Kramer v. Board of Police Commissioners, 1919, 39 Cal.App. 396, 400, 179 P. 216. The case just cited assumes that an acceptance is necessary to make a resignation effective. The contrary was declared, though possibly by way of dicta, in People v. Porter, 1856, 6 Cal. 26, 27, 28; Meeker v. Reed, 1924, 70 Cal.App. 119, 123, 232 P. 760; and In re Estate of Grafmiller, 1938, 27 Cal.App.2d 253, 256, 81 P.2d 181. We need not decide the point, for while an acceptance is not directly alleged here, if one is necessary it appears by clear implication from the allegations that petitioner was deprived of his position and respondents refused to reinstate him.
Petitioner’s claim is that his resignation was induced by duress, fraud and undue influence and therefore was not voluntary or effective. We have above quoted all the allegations of the petition in that respect. We regard them as insufficient. It is apparent from a reading of the petition that petitioner’s whole claim in this matter is based on the allegations of statements made to him when he was summoned before the Board of Fire Commissioners, at the time he resigned, that "if he did not then and there, within two hours, resign from his position with the fire department, he would be summarily discharged, and that if he was so discharged he would suffer a complete loss of all pension rights", and that "four positions as assistant fire chief were to be eliminated". It is not alleged and is not now claimed that either the statement of the effect of a discharge on pension rights, or that regarding the prospective elimination of positions, was not true, and the other statement, that he would be discharged if he did not resign, was not a statement of fact. Hence the charge of fraud cannot be supported on any of the statements above quoted. No others are set forth in the petition.
Neither are the allegations as to duress and threats sufficient to show that the resignation was involuntary. The only threat alleged is that if petitioner did not resign he would be summarily discharged. This is coupled with the allegations, (1) that no just or reasonable cause existed why he should have resigned, (2) that no charges were ever preferred against him, and, (3) that he had been guilty of no misconduct justifying his removal. The second allegation has no significance here, for after he resigned no charges could be preferred. The first and third are not equivalent to a statement that no sufficient cause for his removal existed. If the position occupied by petitioner were in good faith abolished his discharge or separation from it would necessarily follow without any misconduct on his part, unhindered by section 135 of the charter or other provisions regarding removals for misconduct. Kabisius v. Board of Playground, etc., 1935, 4 Cal.2d 488, 493, 50 P.2d 1040. The petition suggests, by recital of information given petitioner, that four positions of assistant fire chief were to be eliminated, without allegation that this was not to be done in good faith, and for all that appears in the petition, this may have furnished proper ground for petitioner’s discharge. It does not, therefore, appear from the petition that there was anything unlawful about the threat made to petitioner. In the absence of such unlawfulness, the resignation following upon it was not induced by duress or coercion, in the legal sense, but must be regarded as voluntary. Kramer v. Board of Police Commissioners, supra, 39 Cal.App. at page 399, 179 P. 216.
Besides the matters already considered, the petition contains, as above noted, allegations that "your petitioner under duress, misrepresentation, fraud and undue influence, in that he would be deprived of all pension rights, was forced against his will and desire, to resign"; that "because of the pressure of duress, misrepresentation, fraud, and undue influence of loss of all pension rights, your petitioner did resign under protest"; and that "by intimidations, duress and threat of loss of all pension rights, your petitioner * * * was forced under protest to resign". All of these are but conclusions of law, which are insufficient to state a cause of action without a statement of the facts from which the fraud, compulsion or undue influence arises, and add no strength to such a statement. Hanford Gas, etc., Co. v. Hanford, 1912, 163 Cal. 108, 113, 124 P. 727; Metropolis, etc., Sav. Bank v. Monnier, 1915, 169 Cal. 592, 596, 147 P. 265; Hannon v. Madden, 1931, 214 Cal. 251, 267, 5 P.2d 4; In re Estate of Sheppard, 1906, 149 Cal. 219, 85 P. 312; see, also, Smith v. Bentson, 1932, 127 Cal.App., Supp., 789, 15 P.2d 910.
The judgment is affirmed.
YORK, P. J., concurred.
WHITE, Justice (dissenting).
I dissent. Respondents’ contention that the proceeding herein is barred by section 112 1/2 of the Los Angeles City Charter is without merit. It is clear from a reading of the petition that petitioner was neither laid off, suspended nor discharged. The manner and method adopted by respondent board to effectuate petitioner’s retirement or separation from his employment is foreign to any procedure for suspension or removal contemplated by the cited charter provision, and the issue raised in connection therewith should be definitely decided in favor of appellant.
The majority opinion holds that the averments contained in the petition are legally insufficient to effectively charge fraud. In my opinion, the allegations of the petition clearly set forth a factual situation which, if true, amounts to duress, coercion and fraud, and further establishes the fact that appellant’s resignation was involuntary and forced. The element of unlawfulness, which the majority opinion asserts is lacking in the allegations of the petition in the instant case, is to my mind clearly present under the allegations contained in the pleading before us. Such unlawfulness consisted of the alleged threats to take from petitioner his position in the fire department unless he resigned therefrom; a position definitely characterized and denominated by the city charter itself, in subdivision 1 of section 135, as "a substantial property right of which he shall not be deprived arbitrarily or summarily, nor otherwise than as in this section provided". Surely the treatment allegedly accorded petitioner, as appears from his petition herein, was both arbitrary and summary, as well as violative of the spirit and letter of the charter, and therefore unlawful.
In my judgment, the allegations contained in the petition on file herein are sufficient to state a cause of action requiring that the demurrer be overruled and that a trial be had thereon. Should the truth of such allegations be established, then certainly the interests of justice and the law as well require judicial intervention, because if administrative boards, working as they do in a field peculiarly exposed to political demands, some of which boards may be competent and fair, yet others subservient to the appointive power, can ruthlessly, by threats, intimidation and coercion such as is alleged in the instant proceeding, deprive a civil service employee of his position, when such position is declared by the charter to constitute a property right, then the vaunted protection against injustice claimed for civil service descends to a mere mockery and we may as well return to the spoils system, where such injustices against a faithful public servant are at least administered without the alloy of hypocrisy.
The petition avers that appellant was a member of the fire department for some 42 years, with a perfect record of fidelity to duty and without a blemish by way of reprimand or discipline for any dereliction upon petitioner’s part. The allegations contained in the petition, if true, set forth an unwarranted, unlawful and illegal circumvention of the plain protective provisions of section 135 of the city charter.
In the recent case of Rhodehamel v. Civil Service Board, 18 Cal.2d 709, 117 P.2d 349, it was directly and positively held that courts are empowered to prevent such excess or abuse of powers and claimed jurisdiction of civil service and kindred boards upon the petition of one adversely affected by the action of such boards.
Instances of what constitutes unreasonable and arbitrary action on the part of administrative boards, as well as the illegality thereof, and the right of courts to correct such abuses, are pointed out in the recent case of Kaesur v. Board of Trustees, 18 Cal.2d 586, 116 P.2d 593.
The judgment should be reversed, with directions to the court below to overrule the demurrer and permit respondents to file answers to the petition, should they be so advised.