Opinion
Page __
__ Cal.App.2d __ 227 P.2d 292 BOREN v. STATE PERSONNEL BOARD et al. Civ. 17681. California Court of Appeals, Second District, Third Division Feb. 15, 1951.Hearing Granted April 12, 1951.
Rehearing Denied March 7, 1951.
[227 P.2d 293] George E. Cryer and R. Alston Jones, Los Angeles, for appellant.
Fred N. Howser, Atty. Gen., Bayard Rhone and Howard S. Goldin, Deputy Attys. Gen., for respondents.
WOOD, Justice.
Appeal from a judgment of dismissal entered upon an order sustaining a demurrer to the second amended complaint without leave to amend. By that complaint, plaintiff sought to annul an order dismissing him from his civil service position as assistant medical director in the Department of Employment of California.
It was alleged in the second amended complaint in part as follows: Plaintiff is a physician and surgeon licensed to practice as such in California. For purposes of administration of the affairs of the department of employment, the State of California is divided into three administrative areas, one of which has an area office located at Los Angeles and is known as the 'Southern Area Office.' The territory served from that office embraces those counties in the southern sector of the state, and it is commonly known as Southern California. About September 3, 1947, pursuant to certification from the civil service rolls, plaintiff was duly appointed to the position of assistant medical director in the department of employment in and for the southern area of California and at all times since said date plaintiff has been and is a civil service employee in the southern area office of the disability insurance section of defendant Department of Employment at a salary of $530 per month. Prior to his taking the civil service examination, the defendant State Personnel Board represented to plaintiff that it was the policy of said board to allow employees to serve only at a location at which they had indicated a willingness to serve, that if plaintiff took said examination for said position, and if he should qualify, his name would not be certified for appointment for service except at a location at which he had indicated [227 P.2d 294] a willingness to serve. For many years last past plaintiff has owned and maintained his home in Southern California and did not desire to accept employment elsewhere. In applying for said position, plaintiff relied upon said representations of said board relative to the location at which he would be required to serve, and in the course of his oral examination plaintiff stated to his examining board that he would not accept appointment except for service in Southern California. About July 21, 1947, after plaintiff had qualified in said examination, plaintiff received from defendant State Personnel Board, through the mail, a questionnaire in the form of a reply postal card, reading in part as follows:
'Position Assistant Medical Director, Department of Employment
'Will you accept permanent work (more than 6 months) Yes or No
* * *
* * *
'Certify my name for employment only in the following locations:
'(Blank for reply)
'I understand that my name will be certified in this classification only in accordance with the conditions set forth above, and I waive right to appointment to all other vacancies subject to my right to change the above information at any time.'
That plaintiff inserted in the space in the above postal card, marked 'blank for reply,' the following:
'On and after September 1, 1947, as follows:
'(1) Part or full time at San Diego, California, and/or
'(2) Full time at Los Angeles, California or other Southern California area';
On July 22, 1947, plaintiff signed said card, with blanks filled in as aforesaid, and deposited it in the mail addressed to defendant State Personnel Board. Thereafter said board duly certified plaintiff's name for appointment as assistant medical director in the department of employment at Los Angeles. On September 3, 1947, plaintiff was duly appointed as assistant medical director in said department for permanent work in the southern area office at Los Angeles. A photostatic copy of said card, as answered, completed, and mailed to said board, is attached to said complaint and marked 'Exhibit A' and made a part thereof. About May 13, 1948, in violation of the above condition of his employment in said position, plaintiff's superior, defendant Bert S. Thomas, directed plaintiff to report for work at Sacramento, California, on May 18, 1948. Plaintiff declined to report for work at Sacramento, and in explanation of his action in so declining plaintiff stated to his said superior that he had not been certified by said board for service at Sacramento and he had not accepted appointment for service at said city; that it was a condition of his employment that he should serve only in Los Angeles or elsewhere in Southern California. By reason of plaintiff's refusal to report for work at Sacramento on said May 12th (18th) he was on May 19, 1948, suspended from his position without pay, pending the filing of charges against him. Ever since the making of said order plaintiff has been suspended from said position without pay. On May 21, 1948, pursuant to said order of suspension, the department of employment filed with said personnel board charges of insubordination and willful disobedience against plaintiff, based upon plaintiff's failure to report for work at Sacramento on said May 13th (18th). On July 1, 1948, within the time allowed by law, plaintiff filed his answer denying said charges, and alleging that his appointment was for service at Los Angeles and that it was a condition of his said employment contract that his field of service was to be limited and restricted to Southern California. On September 16, 1948, the matter of said charges came on for hearing before a hearing officer for said board, and on behalf of plaintiff said questionnaire card, 'Exhibit A,' was placed in evidence and plaintiff testified that the representation of said board that plaintiff would be required to serve only at Los Angeles or other Southern California area was a material inducement in causing him to accept appointment to said position; and that without such assurance on the part of said board plaintiff would not have accepted appointment [227 P.2d 295] to said position. The defendants offered no evidence whatever relative to this matter, and did not question or deny that plaintiff had been certified for appointment to the position of assistant medical director at Los Angeles, and did not deny that it was a condition of plaintiff's employment contract that he should not be required to work in his said position except at Los Angeles or other Southern California area. On January 9, 1949, said board made findings and rendered its decision, dismissing plaintiff from his said position and from any and all other positions which he holds or has eligibility for in said department of employment. Said board made no findings as to the location at which plaintiff had been appointed to serve, or as to the condition upon which he had accepted appointment to his position as set forth in said 'Exhibit A,' and said board entirely ignored plaintiff's defense that his employment contract, and said condition thereof, justified his failure to obey the order of his superior to report for duty at Sacramento and rendered him not guilty of the charge of willful disobedience. On January 15, 1949, plaintiff filed with said board his written petition for a rehearing in said matter, and on February 19, 1949, said petition was denied. Plaintiff has exhausted his administrative remedy.
Respondents (defendants) assert that there is no allegation in the second amended complaint relative to the evidence in support of the board's findings and decision sustaining appellant's dismissal. Of course, for the purpose of testing the legal sufficiency of a complaint, upon the hearing of a demurrer, the allegations of fact in the complaint are deemed to be true. In the second amended complaint, it was alleged that defendants offered no evidence whatever at said hearing relative to the place at which this plaintiff had been employed to work, and did not question or deny that plaintiff had been certified for appointment to the position of Assistant Medical Director at Los Angeles. It does not appear from said complaint (or a prior complaint) that any evidence in support of the findings and decision of the board was omitted from the said complaint.
Respondents also assert that it was not a condition of appellant's employment that he work only in Los Angeles or other Southern California area; and that the postal card questionnaire constituted 'a mere request for information changeable at the whim of the prospective employee, and nothing more.' The above assertion is a denial of an allegation of said complaint that there was such a condition. The questionnaire, in the form of a reply postal card, which was sent by the board to appointment, recited in part as follows: 'Certify my name for employment only in the following locations;' In the blank space on said card immediately following that statement, the appellant wrote as follows: 'On & after September 1, 1947, as follows. (1) Part or Full time at San Diego, Calif. and/or (2) Full time at Los Angeles, Califor other So. Calif. area.' On said card, immediately following said answers of appellant, there is the following statement which is a part of the mimeographed form on the card: 'I understand that my name will be certified in this classification only in accordance with the conditions set forth above and I waive right to appointment to all other vacancies subject to my right to change the above information at any time.' Appellant's signature is immediately below said last above mentioned statement. The sending of the card by the board to appellant inviting him to answer the questions thereon, and his answers and signature thereon, are circumstances corroborative of the allegations of said complaint that it was a condition of appellant's employment that he should serve only in Los Angeles or elsewhere in Southern California. Other facts alleged, supporting said allegations, are (1) that prior to taking the examination the board represented to plaintiff that it was the policy of the board to allow employees to serve only at a location at which they had indicated a willingness to serve; (2) that if he took said examination for the position of assistant medical director and if he should qualify, his name would not be certified for appointment for service except [227 P.2d 296] at a location at which he had indicated a willingness to serve; and (3) that in the course of his oral examination he stated that he would not accept appointment, except for service in Southern California.
Respondents also assert that appellant accepted the position with the knowledge that it was subject to the provisions of section 19360 of the Government Code. That section provides: 'An appointing power may at any time transfer any employee under his jurisdiction from one position to another in the same class or in another class having substantially similar duties, responsibilities, and qualifications, and substantially the same salary range. In every such case the appointing power shall give written notice of his action to the board, according to board rule.' It seems that respondents contend that said section gives the appointing power the right to transfer the employee to a distant place in the state, over the employee's objection, even though the employee had accepted the employment expressly upon the basis that he would not be required to serve at a place at which he had not expressed a willingness to serve. Such contention is not sustainable. The section pertains to the transfer from one position to a new position which is in the same class or another class wherein the duties, qualifications and salary are substantially the same; and the section confers authority upon the appointing power to transfer an employee to such a new position without requiring the employee to submit to another civil service examination. The word 'position' in said section refers to the kind of work which the employee is presently performing or to which he may be assigned, and it does not refer to a geographical position or place in the state where the employee is performing work or where he may be assigned to perform work. The case of Noce v. Department of Finance, 45 Cal.App.2d 5, 113 P.2d 716, pertained in part to section 144 of the Civil Service Act, upon which said section 19360 was based. In that case the court said 45 Cal.App.2d at page 10, 113 P.2d at page 718: 'Ordinarily a civil service employee may not be transferred from one distinct classification to another without competitive examination. [Citations.] The only exception to that rule is when the duties, qualifications, responsibilities and salaries of the different classifications are substantially the same.' It is correct that the appellant herein accepted the position with the knowledge that it was subject to the provisions of said section 19360, but the provisions of the section do not authorize the appointing power to transfer an employee, over his objection, to a place in the state not contemplated by the contract of employment.
Respondents assert further that estoppel will not be invoked against the state or its agencies where alleged representations of governmental employees are in direct conflict with a specific statute. They argue that said section 19360 precludes any claim of estoppel by appellant. As above indicated, the provisions of said section are not inconsistent with the alleged representations of respondents. 'It has been broadly stated that there can be no estoppel against * * * a state. Nevertheless, subject to * * * exceptions * * * it is well established that * * * the doctrine of equitable estoppel may apply as against * * * state governments, and that under circumstances which would estop a private individual an estoppel may be asserted against * * * a state, or a state agency * * *.' 31 C.J.S., Estoppel, § 140, p. 411. 'A state * * * may be estopped where the necessary elements or grounds of estoppel are present * * * and if may be estopped by the acts of its public officials done in the exercise of powers expressly conferred by law, and by their acts or omissions when acting within the scope of their authority.' People v. Gustafson, 53 Cal.App.2d 230, 242, 243, 127 P.2d 627, 634. See Tyra v. Board of Police etc. Comm'rs, 32 Cal.2d 666, 671, 197 P.2d 710. The allegations of the second amended complaint, regarding the circumstances under which the appellant was employed, were sufficient to plead estoppel.
[227 P.2d 297] The judgment is reversed, and the superior court is directed to overrule the demurrer and grant respondents time within which to answer.
SHINN, P. J., and VALLEE, J., concur.