Talbot v. City of Pasadena

California Court of Appeal Aug 25, 1938 No. Civ. 11824Published

Before: Crail

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Holding. The court held that a demurrer should not have been sustained without leave to amend against the City of Pasadena because the complaint stated a cause of action for a continuing pension right, but affirmed the dismissal as to other defendants who could only be sued via mandamus.

Issues

Whether a complaint for pension payments is barred by the statute of limitations or failure to file claims for subsequent accruals.
Whether a pension claim against a city can be brought as a civil action or must be pursued via mandamus.
Whether the defense of prior adjudication can be raised by demurrer when not apparent on the face of the complaint.

Disposition. Reversed in part and affirmed in part.

Quotations verified verbatim against the opinion

“The right, if any, to a pension is a continuing one.”

“We do not understand that where the owner thereof has once made proper demand, and the claim is flatly rejected by the city, he must continue to make demands for the accruals on said pension.”

“The judgment is reversed as to the City of Pasadena and affirmed as to all other defendants.”

CRAIL, P. J.

This is an appeal from a judgment sustaining a demurrer to a fourth amended complaint without leave to amend.

This fourth amended complaint was a suit to recover trust funds alleged to be held for the benefit of plaintiff under charter provisions of the City of Pasadena regarding firemen’s pension funds. The action is brought for the recovery of the pension due to the plaintiff, a widow of Edgar R. Talbot, a deceased fireman, who it is alleged died within one hundred days after injury as a result of a wetting received in extinguishing a fire, which brought on influenza and developed into bronchial pneumonia.

The complaint states a cause of action unless it be for the reasons set forth in the defendant’s brief and which are hereinafter referred to.

The defendant first sets forth that the plaintiff has brought two prior actions to recover the same pension, numbers 319334 and 369043 of the superior court. The defendant says that the first of said cases was an application for a writ of

mandamus

which was tried in said court in July of 1932, and that after a full and fair hearing on the merits it was decided by said court that Edgar R. Talbot, deceased husband of the plaintiff herein, did not die as a result of injuries arising out of his employment as fireman of said city but that his death was proximately caused by a heart ailment of long duration and chronic condition, and that consequently the plaintiff is not entitled to the pension she is seeking to

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recover on this appeal. The answer to this contention is that said facts do not appear upon the face of the complaint, and in order to get this defense before the trial court it will be necessary for the defendant to plead the prior adjudications.

The defendant’s next contention is that as the plaintiff’s suit was filed on April 15, 1936, and alleges that Edgar R Talbot died on April 15, 1930, therefore that all claims for pension payments accruing more than three years prior to the time of filing the complaint are barred by the statute of limitations. The period of limitation prescribed by subdivision 1 of section 338 of the Code of Civil Procedure will run against a claim for accrued pension payments.

Talbot v. City of Pasadena

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CRAIL, P. J.

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