Chase v. City of Los Angeles

Filed 3/5/07 Chase v. City of Los Angeles CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from judgments of the Superior Court for the County of Los Angeles. Rodney E. Nelson, Judge. Affirmed.

Warren Chase, Plaintiff and Appellant, in propria persona.

Laquer, Urban, Clifford & Hodge, R. Scot Clifford, Jodi Anne Lumsdaine and J. Paul Moorhead for Defendants and Respondents County of Los Angeles and Los Angeles County Fire Department.

Bannan, Green, Frank & Terzian, Richard R. Terzian and Brian I. Hamblet for Defendants and Respondents Los Angeles County Employees Retirement Association and its Board of Retirement.

________________________________

SUMMARY

A fire captain employed by the County of Los Angeles sued the county and other public entities alleging his mandatory retirement at age 60 violated age discrimination statutes and Federal and state constitutional provisions. When the trial court denied defendants motions for summary judgment, the defendants sought writ relief. This court issued a notice of its intention to issue a peremptory writ directing the trial court to vacate its order and enter a new order granting summary judgment. The trial court subsequently entered judgments for the defendants, and the fire captain appealed. We affirm the judgments.

FACTUAL, LEGAL AND PROCEDURAL BACKGROUND

Warren Chase was hired by the Los Angeles County Fire Department (County) in April 1986 as a firefighter and was later promoted to fire captain. When he reached age 60 in the year 2000, he was forced to retire under the mandatory retirement provisions of Government Code section 31662.4.[1] Section 31662.4, which becomes operative if the board of supervisors of a county adopts a resolution making the section applicable in the county, requires safety members of county retirement systems who have attained age 60 to be retired.[2] Los Angeles County Board of Supervisors passed a resolution making section 31662.4 applicable in Los Angeles County in December 1986, and Chase was therefore retired at age 60.[3]

Meanwhile, in March 1997, before Chase reached mandatory retirement age, the Board of Supervisors adopted a resolution terminating the application of section 31662.4s mandatory retirement provisions to safety members whose service began after March 31, 1997. The County did so under the authority of section 31483, which permits a county governing body which has made mandatory retirement provisions applicable in the county to, at any time thereafter adopt a further ordinance or resolution terminating the applicability of such . . . provisions as to employees of the county . . . whose services commence after a given future date . . . . As a result of the Countys 1997 resolution, safety members hired after March 31, 1997 are not required to retire at age 60. The Countys resolution had no effect on the applicability of the mandatory retirement provisions to Chase, because section 31483 authorized the County to make changes to the mandatory retirement provisions only for prospective employees.

Chase, who did not wish to retire, filed a complaint contesting his forced retirement. The complaint contained, in its third amended version, 20 causes of action, asserted variously against the County and against the Los Angeles County Employees Retirement Association (LACERA). Chase made three types of claims: claims alleging age discrimination; claims alleging state and federal constitutional claims founded on equal protection and due process provisions; and breach of contract and tort claims. Thereafter, the following procedural events occurred.

        The County and LACERA demurred to Chases claims for breach of contract and violation of the covenant of good faith and fair dealing. These demurrers were sustained without leave to amend.[4]

        The County and LACERA answered the third amended complaint, and then brought motions for summary judgment.

        The trial court denied the motions for summary judgment, without explanation and without ruling on the Countys objections to Chases evidence.

        The County and LACERA sought a peremptory writ of mandate directing the trial court to grant summary judgment.

        This court issued a notice of its intention to grant a peremptory writ in the first instance, to which the trial court responded by vacating its order and issuing new orders granting summary judgment to the County and LACERA.

        Judgments were entered in favor of the County and LACERA, and Chase filed appeals which were consolidated for purposes of briefing, oral argument and decision.

DISCUSSION

In this courts order stating its intention to grant the peremptory writ sought by the County and LACERA, we concluded, after reviewing the record filed with the writ petitions, that the trial court erred when it initially denied the summary judgment motions filed by the County and LACERA. The record from the trial courts subsequent judgments contains no relevant new matter, and our views remain the same: the County and LACERA were entitled to summary judgment.[5]

We reiterate the principal points addressed in our March 21, 2005 orders.

The relevant facts are undisputed. Chase was forced to retire in accordance with applicable provisions of state law described above. The only question requiring resolution is whether his forced retirement violated any of his statutory, constitutional or other legal rights. The answer to that question is no, on all counts.

First, all of Chases claims of age discrimination under state law fail, because state law expressly permits the County to do what it did. Section 31662.4 authorized the Board of Supervisors to require mandatory retirement at age 60, and section 31483 authorized the board to terminate those provisions, but only for prospective employees. While we sympathize with Chases dissatisfaction with forced retirement, the County was authorized by state statute to proceed as it did. Thus, Chases claims of wrongful termination in violation of public policy, violation of the Fair Employment and Housing Act, and violation of the county charter and civil service rules are all without merit.[6]

Second, none of the statutes authorizing the Countys actions operated in violation of Chases state or federal constitutional rights. Thus:

        Chase asserts the statutes authorizing his mandatory retirement at age 60, while permitting other safety members of the retirement system to work beyond age 60, violate his constitutional right to equal protection of the laws. However, classifications based on age are analyzed under the deferential rational basis standard. (Massachusetts Bd. of Retirement v. Murgia (1976) 427 U.S. 307, 312-314 [mandatory retirement at age 50 for uniformed state police officers is examined under the rational-basis standard, a relatively relaxed standard reflecting . . . that the drawing of lines that create distinctions is peculiarly a legislative task; [p]erfection in making the necessary classifications is neither possible nor necessary]; Schmidt v. Superior Court (1989) 48 Cal.3d 370, 389 [rejecting claim that all classifications on the basis of age should be subjected to strict scrutiny under the equal protection clause, finding no persuasive reason for equating age classifications with race or ethnic origin classifications].) In this case, the Legislature in section 31483 has permitted counties to terminate mandatory retirement provisions, but only for newly hired employees. Section 31483 provides counties with flexibility to make adjustments in their retirement systems to ensure the fiscal integrity of pension plans. As the court observed in Aquilino v. Marin County Employees Retirement Assn. (1998) 60 Cal.App.4th 1509, 1516, section 31483 was intended to clarify the authority of . . . counties to rescind for new employees more generous optional retirement benefits extended under [the County Employees Retirement Law] so that counties could reduce pension fund liabilities during the economic downturn of the late 1970s. At the same time, pension rights are an integral part of compensation and, once vested, cannot be destroyed without impairing a contractual obligation (Miller v. State of California (1977) 18 Cal.3d 808, 815), and section 31483 therefore operates only as to prospective employees. Obviously, section 31483, including its application only to prospective employees, was rationally related to legitimate state interests. (See Brown v. Merlo (1973)8 Cal.3d 855, 861 [under state and federal equal protection provisions, a statute may single out a class for distinctive treatment if the classification bears a rational relation to the purposes of the legislation].) Accordingly, whether the classification challenged is viewed as an age classification or, perhaps more aptly, as a classification based on the date of employment, its rational basis is not open to question. No violation of equal protection principles occurred.[7]

        Chases claims of due process violations fail under the authority of Miller v. State of California, supra, 18 Cal.3d 808. In Miller, the court rejected claims that a reduction in plaintiffs mandatory age of retirement, from 70 to 67, violated the due process clauses of the federal and state constitutions and the contract clause of the federal constitution. (Id. at pp. 811-812.) The court observed it is well settled that no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law. [Citations.] (Id. at p. 813.) The court concluded the Legislatures power to shorten [plaintiffs] state service, by changing the mandatory retirement age was not and could not be limited by any contractual obligation. (Id. at p. 814.) Further, the court held plaintiffs membership in the state retirement system did not confer on him the right to remain in state employment beyond age 67 and he had no constitutionally protected right to continue in his position until age 70 in order to receive a larger retirement allowance. (Id. at p. 817.) The court recapitulated:

[P]laintiff had no vested contractual right to remain in public employment beyond the age of retirement established by the Legislature. Upon being required by law to retire at age 67 rather than age 70, plaintiff suffered no impairment of vested pension rights since he had no constitutionally protected right to remain in employment until he had earned a larger pension at age 70. (Miller v. State of California, supra, 18 Cal.3dat p. 818.)

Accordingly, Chases claims of due process violations are without merit.[8]

Third, LACERA is entitled to judgment as a matter of law on the claims asserted against the County and LACERA on the additional ground that LACERA was not Chases employer and was not responsible for Chases involuntary retirement. LACERA administers retirement benefits, and has no discretion to refuse to apply governing law. Fourth, Chase asserts several tort claims against LACERA, for failure to perform fiduciary obligations, negligence and constructive fraud. He claims, for example, that LACERA failed to warn him of the consequences of not taking legal action, negligently gave him faulty advice about legal issues involving age-based mandatory retirement, negligently handled Chases claim letter, and gave him faulty advice indicating no legal basis existed to avoid retirement. He fails to identify with specificity any legal duty breached by LACERA, and further fails to specify how any action by LACERA resulted in any damages to him. Consequently, these claims too fail as a matter of law.

Fifth, Chase asserts the County violated section 12950, subdivision (a), by failing to post required notices of employee rights in the fire station where he worked, delaying Chase in his efforts to avoid mandatory retirement. This claim lacks merit because section 12950 requires employers to act to ensure a workplace free of sexual harassment by implementing specified minimum requirements. These requirements include amend[ing] its current poster on discrimination in employment to include information relating to the illegality of sexual harassment. ( 12950, subd. (a).) Section 12950, subdivision (a), has no relation to or causal connection with Chases claims relating to his forced retirement.

Finally, Chase appeals the trial courts order sustaining without leave to amend demurrers by the County and LACERA to Chases claims for breach of contract and violation of the covenant of good faith and fair dealing. Chase alleged he had a vested contractual right to pension benefits from the County; he had a membership contract with LACERA; and his forced retirement prevented him from obtaining full retirement benefits. As is evident from the Supreme Courts decision in Miller v. State of California, supra, 18 Cal.3d 808, Chase had no vested contractual right to remain in public employment beyond the age of retirement established by the County (id. at p. 818), so he can state no claim for breach of contract. Absent a breach of contract, there can likewise be no claim for breach of the covenant of good faith and fair dealing that inheres in every contract. Consequently, the trial court did not err in sustaining the demurrers to these causes of action without leave to amend.

DISPOSITION

The judgments are affirmed. The respondents are entitled to recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

RUBIN, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

[1] All further statutory references are to the Government Code, unless otherwise stated.

[2] Membership in the retirement system is divided into two classes, general members and safety members. (Board of Retirement v. Lewis (1990) 217 Cal.App.3d 956, 960; Gov. Code, 31470, 31550 et seq.) Safety members include, among others, persons employed in active law enforcement and active fire suppression. (Gov. Code, 31469.3.)

[3] The boards resolution stated that it adopted the mandatory retirement age in order to insure that the interests of the public are protected by firefighters and law enforcement officers capable of meeting the vigorous and stressful demands of those occupations . . . .  The federal Age Discrimination in Employment Act (ADEA) permits political subdivisions of a state to impose age restrictions on the employment of firefighters or law enforcement officers pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of the ADEA. (29 U.S.C. 623(j).)

[4] The County also demurred to several of Chases constitutional and federal statutory claims on statute of limitations grounds. This aspect of the Countys demurrer was overruled.

[5] This court granted Chases request for judicial notice of Assembly Bill 2366, approved by the Governor on July 24, 2006. Assembly Bill 2366 adds a new section 31680.8 to the Government Code, permitting a retired safety member in Los Angeles County who was required to retire because of age to be reemployed by the county and reinstated to active membership under specified conditions. (Legis. Counsels Dig., Assem. Bill No. 2366 (2005-2006 Reg. Sess.) (approved July 24, 2006).) Assembly Bill No. 2366 was not in effect when Chases claim arose and does not affect our analysis of the claims he raises in this appeal.

[6] Likewise without merit are Chases fourth, fifth, sixth and tenth causes of action (claims for discrimination based on age against the County; violation of state civil right and public policy; pension violations including state retirement law Govt. Code 31451 and 33010; and violation of Govt. Code 31662.4, 31662.6).

[7] Chase also claims, without pertinent authority, that the mandatory retirement provisions of 31662.4, together with the 1997 resolution of the board of supervisors terminating the applicability of those provisions for prospective employees, constituted special legislation violating article 4, section 16 of the California Constitution, which specifies that all laws of a general nature must have uniform operation, and that a local or special statute is invalid if a general statute can be made applicable. We discern no violation. (See Serve Yourself Gas Etc. Assn. v. Brock (1952) 39 Cal.2d 813, 820-821 [[i]t is . . . clear that the constitutional prohibition against special legislation does not preclude legislative classification, but only requires that the classification be reasonable].)

[8] Chase also alleged a violation of section 1983 of title 42 of the United States Code. Section 1983 authorizes a civil action against any person who, under color of law, subjects another to the deprivation of any rights secured by the Constitution and laws. Chases allegations fail for lack of a constitutional or statutory predicate.