Moreno v. Cairns

TRAYNOR, J.

—Petitioner appeals from a judgment against him entered upon an order sustaining a demurrer, without leave to amend, to his second amended petition for writ of mandate to compel respondents, members of the Board of Fire Commissioners of the City of Los Angeles, to reinstate him to the position of assistant fire chief and to his seniority rights, and to pay the balance on back salary that he claimed due him. The second amended petition alleges that petitioner served in the fire department for forty-two years with an unblemished record, that he was adjudged in excellent health in the last health examination ordered by the board, and that he was summoned before the board and was forced under protest to resign. The circumstances attending this resignation are alleged to be as follows:

“VI

“That your petitioner has not been unlawfully suspended,

[533]

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 Are 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.