Dillon v. Board of Pension Commissioners

Plaintiff’s husband, a police officer for the city of Los Angeles, committed suicide in April, 1934. Within six months, plaintiff made application to the Board of Pension Commissioners of the City of Los Angeles for a widow’s pension under article 17, section 183 of the charter of the city of Los Angeles. The board denied the application in February, 1935. In December, 1938, plaintiff filed the present proceeding in mandamus to compel the board to issue an order for the payment to her of a pension including a cash sum equal to the pension funds accrued in the three years preceding the date of the filing of the petition plus the amount of pension that will have accrued from that date to and including the date of such order with interest. The petition alleged that plaintiff’s husband, in the course of his duties as police officer, suffered two accidents which caused severe injuries to his body and nervous system, giving 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 regarding 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. Whether or not the plaintiff’s action is barred by this statute of limitations, therefore, turns upon when her cause of action accrued. The right to receive periodic payments under a pension is a continuing one (see Dryden v. Board of Pension Commrs., 6 Cal. (2d) 575 [59 Pac. (2d) 104]), and any time limitation upon the right to sue for each instalment necessarily commences to run from the time when that instalment actually falls due. Before plaintiff can claim these periodic payments, however, she must establish her right to a pension. If the Board of Pension Commissioners refuses to acknowledge this right upon application, she can properly bring an action of mandamus in the superior court to review the soundness of the board’s decision, and to establish as a matter of law that she is entitled to the status of a pensioner. (French v. Cook, 173 Cal. 126 [160 Pac. 411]; Sheehan v. Board of Police Commrs., 197 Cal. 70 [239 Pac. 844].) An action to determine the existence of the right thus necessarily precedes and is distinct from an action to recover instalments which have fallen due after the pension has been granted.

A cause of action accrues when a suit may be maintained thereon, and the statute of limitations therefore begins to run at that time. (Osborn v. Hopkins, 160 Cal. 501, 506 [117 Pac. 519, Ann. Cas. 1913A, 413].) The cause of action to establish the right to a .pension accrued to plaintiff at the time of her husband’s death. At any time following the death she could demand a pension from the board and upon refusal could maintain a suit to enforce such action. The city charter requires an application to the board before court proceedings can be instituted, but it is established in California that a claimant cannot delay the running of the statute of limitations by postponing the time of demand upon the proper officials; the statute therefore begins to run at the time when the plaintiff first had the power to make such demand. (Barnes v. Glide, 117 Cal. l [48 Pac. 804, 59 Am. St. Rep. 153]; Jones v. Board of Police Commrs., 141 Cal. 96 [74 Pac. 696]; Curtin v. Board of Police Commrs., 74 Cal. App. 77 [239 Pac. 355]; Wittman v. Board of Police Commrs., 19 Cal. App. 229 [125 Pac. 265]; Harrigan v. Home Life Insurance Co., 128 Cal. 531 [58 Pac. 180, 61 Pac. 99]; San Luis Obispo County v. Gage, 139 Cal. 398 [73 Pac. 174].) Since, however, action by the board must precede court proceedings to obtain a pension, a claimant who has applied to the board cannot sue for the pension while the claim is under consideration by the board. It is well recognized that the running of the statute of limitations is suspended during any period in which the plaintiff is legally prevented from talcing action to protect his rights. (Code Civ. Proc., 356; Wolf v. Gall, 174 Cal. 140, 145 [162 Pac. 115]; Hutchinson v. Ainsworth, 73 Cal. 452 [15 Pac. 82, 2 Am. St. Rep. 823]; Hoff v. Funkenstein, 54 Cal. 233; Union Collection Co. v. Soule, 141 Cal. 99 [74 Pac. 549]; Elliott & Horne v. Chambers Land Co., 61 Cal. App. 310, 312 [215 Pac. 99]; see Christin v. Superior Court, 9 Cal. (2d) 526 [71 Pac. (2d) 205, 112 A. L. R. 1153]; 16 Cal. Jur. 562, 564.) The running of the statute of limitations, therefore, is tolled during the period of the board’s deliberations, that is, from the time the claim is filed until the board’s decision is rendered. In the present case plaintiff, upon the death of her husband, had the power to apply immediately to the board for a pension and to bring an action in mandamus upon its failure to comply. Her cause of action therefore accrued at the time of the death of her husband. The present action, commenced more than three years after that time, exclusive of the period of the board’s deliberations, is barred by section 338 of the Code of Civil Procedure. Talbot v. City of Pasadena, 28 Cal. App. (2d) 271 [82 Pac. (2d) 483], so far as it is inconsistent with this conclusion, is disapproved.

This decision is not contrary to that of Dryden v. Board of Pension Commissioners, supra, in which the court interpreted 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 account or- claim has accrued. (Stats. 1927, p. 2014.) With regard to pensions, the court interpreted the provision as meaning that a claim could be made to the board within six months after the time when any given payment would have accrued had the right to a pension been established. Thus, a claimant can assert his right to a pension before the board at any time after the event giving rise to the claim has occurred so long as the claim is made within six months after any payment would have accrued. If the pension is granted he is entitled to receive payments in the future but can recover only those past payments which would have accrued within a period six months prior to the time of the making of the claim. This result is compelled by the peculiar wording of the charter provision, which establishes as the point of reference for the running of the six months’ period, not the time when the right to the pension first accrues, but the time at which the last item of the claim accrues. In the case of pensions, items accrue indefinitely.

The charter provision, however, does not affect the time limitation upon the right of the plaintiff to bring an action of mandamus in the superior court. That limitation, which begins to run when the right first accrues,- is governed by the Code of Civil Procedure. A claimant may assert the right to a pension before the board at any time within six months after the time when any payment would accrue under the pension; but if the board denies the claim, the claimant has no remedy by mandamus in the courts if more than three years have elapsed from the time when the right first arose exclusive of the time the matter was under consideration by the board. The charter provision does not, of course, require a claimant to make a succession of claims every six months in order to keep alive his right pending court action, but requires the filing of only one claim with the board. If he does so and his claim is refused he may thereafter maintain an action in the superior court at any time within three years from the time when the right first accrued.

Since the plaintiff’s action here was commenced more than three years after the time when her cause of action accrued, the judgment of the trial court is affirmed.

Gibson, C. J., Shenk, J., Curtis, J., Edmonds, J., and Pullen, J., pro tem., concurred.