Opinion
12-1-1950
BUCKMAN v. BOARD OF SUP'RS OF SAN LUIS OBISPO COUNTY et al. Civ. 17977.
Martin Polin, San Luis Obispo, for appellant. H. C. Grundell, Dist. Atty., San Luis Obispo, Kingsley T. Hoegstedt, Deputy Dist. Atty., San Luis Obispo, for respondents.
BUCKMAN
v.
BOARD OF SUP'RS OF SAN LUIS OBISPO COUNTY et al.
Dec. 1, 1950.
Rehearing Denied Dec. 19, 1950.
Hearing Granted Jan. 29, 1951. *
Martin Polin, San Luis Obispo, for appellant.
H. C. Grundell, Dist. Atty., San Luis Obispo, Kingsley T. Hoegstedt, Deputy Dist. Atty., San Luis Obispo, for respondents.
McCOMB, Justice.
From a judgment in favor of respondents predicated upon the sustaining of a general demurrer to appellant's petition for a writ of mandate whereby she sought reinstatement as a registered nurse at the Atascadero General Hospital in the county of San Luis Obispo, and for back pay from the time she was discharged until a civil service commission ordered her restored to duty, petitioner appeals.
Facts: The essential facts alleged in the petition are that appellant was an employee of the county of San Luis Obispo as a registered nurse and a member of the staff of the Atascadero General Hospital; that during the time of her employment she had been assigned on the night shift from 11:00 p. m. until 7:00 a. m.; that on February 11, 1949, the superintendent of the hospital wrongfully dismissed her; that on March 28, 1949, the civil service commission ordered her restored to her position at the hospital; that on March 30, 1949, the superintendent of the hospital offered appellant a position as a nurse on the afternoon-evening shift from 3:00 p. m. to 11:00 p. m.; that said offer was not made in good faith but was for the purpose of complying with the civil service commission's order and for the purpose of depriving appellant of her position since the superintendent knew that she had always refused to work on the day shift, and had refused to accept such duty.
Question: Did the complaint state a cause of action?
This question must be answered in the affirmative. If a complaint states a cause of action it is not vulnerable to a general demurrer. In the instant case appellant's petition disclosed that she had been wrongfully dismissed from her position as a nurse at the general hospital, and that she had been ordered reinstated by the civil service commission. Therefore she was entitled to recover the amount of salary which had accrued during the period that she had been unlawfully deprived of her position after deducting the total of any accrued compensation she had received in public or private employment during such period. (State Bd. of Equalization v. Superior Ct., 20 Cal.2d 467, 474, 127 P.2d 4; Wiles v. State Personnel Board, 19 Cal.2d 344, 352, 121 P.2d 673; Ahlstedt v. Board of Education, 79 Cal.App.2d 845, 857, 180 P.2d 949.)
It is immaterial so far as appellant's cause of action to recover back pay is concerned that she may have refused to perform services after she was ordered reinstated. Upon being reinstated she might have resigned and still have been entitled to recover the compensation which would have accrued prior to such date and of which she had been wrongfully deprived.
The judgment is reversed with directions to the trial court to permit respondent to file an answer within 10 days after the remittitur is filed with the clerk of that court if respondents be so advised.
MOORE, P. J., and WILSON, J., concur. --------------- * Subsequent opinion 231 P.2d 496.