Opinion
Rehearing Denied Oct. 27, 1965.
For Opinion on Hearing, see 48 Cal.Rptr. 865, 410 P.2d 369.
P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Henry M. Jonas, San Francisco, Albert E. Levy, San Francisco, of counsel, for appellant.
Harold A. Irish, City Atty. of City of Ukiah, Ukiah, for respondent.
SHOEMAKER, Presiding Justice.
Defendant George Fones was employed as a janitor at the City of Ukiah Library. He was dismissed from this job by the librarian and the trustees of the library on June 9, 1959. He appealed his dismissal to the city council, which agreed with him that he was a civil service employee of the city whose dismissal had not been effected in accordance with the applicable city ordinance. The council directed his reinstatement, which was refused.
On October 21, 1959, the city filed a declaratory relief action against the librarian, the board of trustees of the library and Fones. The position of Fones in the case was that of a nominal defendant, for the gist of the action was the restoration of Fones to his position in accordance with the council's determination.
The first judgment entered by the trial court determined that Fones was not a civil service employee of the city, but was an employee of the library board and held his position at its pleasure.
In City of Ukiah v. Board of Trustees, etc. (1961) 195 Cal.App.2d 344, 15 Cal.Rptr. 811, this judgment was reversed, the appellate court holding that Fones was a civil service employee under the civil service ordinance of the City of Ukiah.
The case then went back to the trial court and the balance of the evidence having to do with Fones' rights to reinstatement and compensation was heard.
The amount of Fones' earnings from the period of his discharge to the time of the filing of the complaint was received in evidence and Fones testified that his 70th birthday would be December 22, 1962.
The limited evidence bearing on Fones' compensation was in accordance with a written stipulation entered into by the city, Fones, the board of trustees and librarian, on January 20, 1960, wherein it was provided, among other things, 'that if said GEORGE FONES has been wrongfully denied a Civil Service position as janitor at said Library he is entitled to salary from the date of dismissal to the date of the filing of this Complaint minus what he earned or might reasonable [sic] have earned during said period.'
On October 31, 1962, the court filed a memorandum opinion and order for findings in which it concluded that Fones was entitled to recover back salary from the date of his dismissal until the date on which the complaint was filed, minus what he had earned or might reasonably have earned during said period. The court specifically stated that by the stipulation of January 20, 1960, Fones had relinquished any claim to back salary beyond the date on which the complaint was filed. The court also concluded that Fones was entitled to reinstatement in his position as janitor at the city library. The court observed that while city policy required an employee of 65 to retire, it had never established a retirement system, hence it was precluded, under Government Code, sections 45050-45054, from imposing any such age limit upon its employees.
Thereafter, Fones' counsel presented proposed findings of fact and conclusions of law, together with a proposed judgment in consonance therewith. The city asked a hearing thereon, which was granted. At the hearing, the city showed that it had adopted a retirement system for all city employees, which went into effect on August Subsequently, a judgment was entered, which was set aside, together with the findings of fact and conclusions of law upon which it was based, and a further hearing ordered, at which hearing it was established that Fones' back salary between the time of his dismissal and the filing of the complaint was $1,398.60, that he had earned $93.15 and received a compensation check for $450 during the same period.
On December 18, 1963, the court filed new findings of fact and conclusions of law. The court found that the position of janitor at the library was a civil service position governed by an applicable city ordinance, and that the city was without right or authority to transfer the duties of such position to non-civil service employees; that the city had adopted a written policy of compelling retirement at age 65, but that such policy was prohibited by Government Code sections 45050-45054 because the city had established no employees' retirement system; that the city had subsequently joined the State Employees' Retirement System as a contract member and that said system provided for a mandatory retirement age of 70 years; that the adoption of said systim rendered the 70-year age limitation operative under Government Code, sections 45050-45054; that Fones had falsified his age when he originally applied for city employment and that he actually became 70 years of age on December 22, 1962; that the age limitation of the State Employees' Retirement System precluded his reinstatement in the position of janitor at the city library; that Fones' right to recover back salary was limited by stipulation of counsel to the period between the date of his dismissal and the date the complaint was filed, less what he earned or might reasonably have earned in other employment and less also certain disability payments received during said period; that Fones' back salary during such period, less earnings and disability payments, amounted to $855.30.
Although the court refers to Government Code, sections 45050 and 45054, it is obvious that it intended to refer to sections 45050 through 45054.
On December 20, 1963, the court entered its judgment in accordance with its findings of fact and conclusions of law.
Fones has appealed from that judgment.
Fones first contends that the trial court erred in finding that the written stipulation of January 20, 1960, limited his right to recover back salary to the period between his dismissal and the filing of the complaint. Fones asserts that the stipulation was signed by his attorney without his authorization, and therefore cannot be binding upon him. This contention is untenable. Although it is the general rule that an attorney has no implied authority to dispose of his client's substantive rights (Duffy v. Griffith Co. (1962) 206 Cal.App.2d 780, 789, 24 Cal.Rptr. 161; People v. Davis (1957) 48 Cal.2d 241, 256, 309 P.2d 1; Britschgi v. McCall (1953) 41 Cal.2d 138, 142, 257 P.2d 977), there is a rebuttable presumption that the attorney has such authority. (Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 645-646, 39 Cal.Rptr. 731, 394 P.2d 571; Duffy v. Griffith Co., supra, 206 Cal.App.2d at p. 790, 24 Cal.Rptr. at p. 166.) In the instant case, the record contains no evidence even remotely tending to demonstrate that Fones' counsel was not authorized to enter into the stipulation.
He next asserts that the stipulation was one of law rather than fact, and inoperative for that reason. He also argues that the stipulation was presumably drafted by the city and therefore ought to be most strongly construed against it and thus held to establish the minimum rather than the maximum amount of back salary which he was entitled to recover.
In order to properly evalute these arguments, it is first necessary to comment upon certain unusual aspects of the instant action. Although Fones is nominally a defendant, he was in fact originally allied City of Ukiah v. Board of Trustees, Inc.,
Since the peculiar ramifications of bringing such an action must certainly have been anticipated by the city (and which have been borne out by the course of this litigation), it is not at all unreasonable to assume that it commenced the action only after Fones had agreed to limit his claim to back salary within specified bounds. It is likewise not unreasonable to assume that Fones deemed the disadvantages of such an agreement to be outweighed by the possibility that he might obtain reinstatement in his former position, in addition to an agreed amount of damages, by means of an action prosecuted by the city on his behalf.
That the parties did in fact enter into such an agreement is apparent from an examination of the complaint, Fones' answer, and the written stipulation of January 20, 1960. The ninth paragraph of the complaint alleged that Fones was entitled to salary 'from the date of dismissal to the date of the filing of this Complaint minus what he earned or might reasonably have earned during the period that he is wrongly denied his civil service position.' Fones' answer specifically states that the ninth paragraph of the complaint is true. The written stipulation of January 20, 1960, provides that if Fones was wrongfully denied a civil service position as janitor at the library, 'he is entitled to salary from the date of dismissal to the date of the filing of this Complaint minus what he earned or might reasonable [sic] have earned during said period.'
Fones' contention that the stipulation was one of law is clearly untenable. In their briefs, both the city and Fones agree that a civil service employee unlawfully deprived of his position is entitled to recover the amount of the salary which would have accrued to him had he not been unlawfully discharged up to the date of his reinstatement, less those deductions allowed by law. Fones' brief contains no suggestion that the parties were not equally well aware of this controlling legal principle when they entered into the stipulation of January 20, 1960. Indeed, Fones asserts that said principle is one of 'elementary law' which is 'firmly established' in California and which 'has not been challenged in the course of the present proceedings.' Under such circumstances, it is apparent that the written stipulation could not have represented the parties' agreement as to the applicable law but must have represented their agreement to limit Fones' recovery to an amount less than that to which he would otherwise have been entitled.
Fones' contention that the stipulation ought to be construed against the city, and held to establish the minimum rather than the maximum limit of his recovery, is patently unsound. We find nothing to support an assumption that the parties would enter into the pointless stipulation that if Fones were to recover damages, he was guaranteed a minimum award less than that to which he was entitled under an 'elementary' principle of law which was known to all the parties. Moreover, the occasion for adopting any such strained construction of the stipulation is totally lacking, since the record contains no evidence in support of Fones' contention that the stipulation was drafted by the city. It must be remembered that the stipulation limiting Fones' right to recover back salary was but one provision in a stipulation of facts admitted by all the parties. This document, which was signed by the secretary of the library board, by the librarian and by Moreover, Fones is subject to the rule that relief from a stipulation may not be granted when requested for the first time on appeal. (Warburton v. Kieferle (1955) 135 Cal.App.2d 278, 286, 287 P.2d 1.) The record discloses that Fones never requested such relief in the trial court, hence it cannot be granted here and he is accordingly bound by the written stipulation.
Fones' final contention is that the trial court erred in holding that Fones' age precluded reinstatement in his former position and in failing to hold that Fones was entitled to such reinstatement prior to attaining the age of 70.
The court's decision that Fones could not be reinstated to his former position was based upon Government Code, sections 45050-45054.
Section 45052 provides that '[t]his article does not require not authorize any city to employ any person in a particular city employment if he has attained the retirement age for that particular employment prescribed by any city employees' retirement system.'
Fones asserts that section 45052, when read in conjunction with its companion sections, authorizes a city to impose a maximum age limit upon a civil service employee other than a policeman or fireman only if such employee has attained the retirement age 'for that particular employment' prescribed by the city employees' retirement system. It is Fones' contention that plaintiff City of Ukiah never established a retirement system prescribing age 70 as the maximum age limit for an employee holding the position of 'Janitor of the Municipal Library' and that the existence of a general retirement system for city employees does not fulfill the requirements of section 45052. This argument is without merit.
Although section 45052 has never been judicially construed, it is apparent that the language upon which Fones relies does not require a city to establish a separate retirement system for each job classification. The language in question was obviously intended to apply in a situation where the particular retirement system is applicable to employees in more than one type of employment, but does not prescribe a uniform retirement age for all such types of employment.
In the instant case, the city introduced evidence that on August 1, 1962, by virtue of a contract between the city and the Board of Administration of the California State Employees' Retirement System, all city employees became members of such retirement system.
The State Employees' Retirement Law is contained in Government Code, sections 20000 through 21500. Pursuant to sections 20004, 20005, and 20010 of said law, a contracting agency is defined as any public agency which has elected to have all or any part of its employees become members of the State Employees' Retirement System, and which has contracted with the Board of Administration for that purpose. Section 20018 defines a local miscellaneous member as an employee of a contracting agency who has by contract been included within the State Employees' Retirement System, except local safety members and school members where inconsistent provisions relating to such members appear. Section 20019 defines a local safety member as a policeman, fireman or county peace officer employed by a contracting agency and included within the State Employees' Retirement System. Section 20019.1 defines a school member as an employee of a school district or county superintendent of schools who is or becomes a member pursuant to Government Code, sections 20580 through 20586. Section 20983 provides that every local Since Fones makes no attempt to assert that he was either a local safety member or a school member, it follows that he was a miscellaneous member subject to retirement at age 70, as required by Government Code, section 20983.
Fones also contends, as above noted, that the court ought to have held that he was entitled to reinstatement until he reached the age of 70. He asserts that a holding to that effect would entitle him to recover back salary from the date upon which the complaint was filed until the date upon which he attained age 70. This latter point is clearly untenable for the reason that the court's determination that Fones was not entitled to recover back salary accrued subsequent to the filing of the complaint was based upon its finding that he was bound by the stipulation of January 20, 1960.
There is another reason, however, why Fones might benefit by an adjudication that he was entitled to reinstatement prior to age 70. Although Fones does not raise the point, it is certainly possible that a holding to that effect might have some bearing upon his rights as a member of the State Employees' Retirement System. This issue would appear to be within the scope of the action, since the complaint, as above noted, sought a complete declaration of the rights of Fones, the city and the library board.
An examination of the court's findings and judgment leaves no doubt whatever that it did in fact hold that Fones was entitled to reinstatement in his former position prior to reaching age 70.
The judgment contains declarations that the city library was at all times subject to all provisions of the city civil service ordinance; that Fones did become a permanent civil service employee in the classification of janitor when said ordinance became effective; that the library board was subject to the provisions of said ordinance; that Fones was a city civil service employee at the time of his dismissal and that the position of janitor at the city library does exist as a classified city civil service position.
In the light of the foregoing, it is apparent that the court's adjudication that Fones was not entitled to reinstatement was based solely upon its finding that is retirement at age 70 was required by the State Employees' Retirement System, and that it did hold, by necessary implication, that he was entitled to reinstatement prior to reaching such age. It is settled that a trial court need not make an express finding on an issue, consistent with the judgment, if such finding results, by necessary implication, from the express findings made. (Richter v. Walker (1951) 36 Cal.2d 634, 640, 226 P.2d 593; Green v. Antoine (1955) 133 Cal.App.2d 269, 275, 284 P.2d 76.)
Judgment affirmed.
AGEE and TAYLOR, JJ., concur.