Hrabak v. City of Los Angeles

[384]

ROTH, J.,

pro tem.

This is an appeal from a judgment entered upon an order sustaining without leave to amend a demurrer to an amended petition for a writ of mandate to compel respondents to reinstate petitioners in the employ of the department of water and power of the City of Los Angeles as linemen.

We ignore defects of pleading.which were not cured in the amended petition, and because of which the order sustaining the demurrer without leave to amend might be technically justified as a proper exercise of discretion, inasmuch as- a previous demurrer had already been sustained, and proceed to the merits. It appears from a reading of the amended petition that petitioners (seven in number) were first employed as linemen by the department of water and power at various dates, but commencing approximately in the year 1922. They continued in the employ of that department in such capacity until about 1925, when said petitioners, of their own volition and upon their own initiative, took and passed examinations for line foremen. They were promoted and certified to the position of line foremen in the year 1925 and continued in the latter capacity until September 6, 1932, when they were “laid off” for lack of funds and lack of work. The initial point made by petitioners is that they were “laid off” contrary to the provisions of the city charter, specifically section 112 (a) thereof. Petitioners also contend that, since they were linemen before they were line foremen, they retained their civil service seniority as linemen, and therefore that if there was no work for them as foremen, they automatically reverted to their classification as linemen; that the department of water and power must recognize their seniority ranking as linemen as of the date of their original employment in the capacity of linemen; and that if it becomes necessary to discharge or lay off other linemen in order to make room for petitioners, that the department should do so, since petitioners have seniority over such linemen who took up that- kind of work subsequent to the date that petitioners commenced to work for the department as linemen.

On the first point petitioners contend that they were not “laid off” in accordance with law for the reason that they were not given a written notice and opportunity for hearing, as required by section 112 (a) of the Charter of the