Opinion
Plaintiff Maxwell M. Willens appeals from a judgment in favor of defendant state Controller (Cory) in an action seeking interest on pension funds which the state failed to pay plaintiff when due.
Facts1
Plaintiff served as a judge of the municipal and superior court from 1962 through 1970. In June 1970, he was indicted by the grand jury of San Joaquin County on charges of criminal conspiracy and bribery. While proceedings were pending, he was automatically disqualified from acting as a judge. (10 Cal.3d at p. 453; Cal. Const., art. VI, § 18, subd. (a).)
On election day in 1970, when plaintiff was defeated at the general election by a write-in candidate, he applied to the Commission on Judicial Qualifications for a disability pension. (Gov. Code, § 75060, subd. (a).) In December 1970, the commission refused plaintiff’s request. (Id. at pp. 453-454.)
In February 1973, the Court of Appeal reversed the judgment of the superior court. The Supreme Court granted plaintiff’s petition for hearing, and in December 1973, held that plaintiff was entitled to receive his disability pension despite the fact that at the time he sought a pension based on an inability “to discharge efficiently the duties of his office by reason of mental or physical disability” (Gov. Code, § 75060, subd. (a)), he was then not performing those duties because of his disqualification under the state Constitution. (Id. at pp. 455-457.)
In January 1974, the state paid plaintiff $68,712 in back disability retirement benefits accruing after December 18, 1970, but refused to pay plaintiff interest—$7,221—on that amount. The superior court found that plaintiff was not entitled to the claimed interest and entered judgment accordingly.
Discussion
There is no merit to plaintiff’s contention that he is entitled to interest under Civil Code section 3287.
In Jorgensen v. Cranston, 211 Cal.App.2d 292 [27 Cal.Rptr. 297], in response to the claimant’s assertion that she was entitled to interest on allowances owing under the Judges’ Retirement Law, the court held: “This fund, ... is a fund held in trust and over which the Controller is the trustee. Whenever a claim is made against the fund it was not only the right of the Controller, it was his obligation, to. make sure that the claimant is a party entitled and whenever any doubt reasonably exists to obtain an adjudication to settle the controversy .... Restatement Second of Trusts, section 207, vol. 1, p. 470. . . . [H] This being the general rule, we cannot therefore attribute to the Legislature by the 1959 amendment to Civil Code section 3287 an intent to include, within its scope, claims against public retirement funds reasonably challenged by the State Controller.” (Id. at pp. 301-302.)2
In Mass, the court, recognizing that some decisions had suggested that interest could not be recovered in a mandamus action held that “the present action in mandamus may support a judgment for interest since it involves recovery upon a general underlying monetary obligation.” (Italics added.) (61 Cal.2d at pp. 625-626.) In so holding, the court noted that most of the contrary cases cited, including Jorgensen, “may be distinguished on the narrow ground that they involved mandamus actions against a trustee of a special fund.” (Id. at p. 625, fn. 8.) The court then quoted from Jorgensen “ ‘Our conclusion is that whatever [the Legislature’s] intent may have been with reference to mandamus proceedings involving contractual obligations of the state or its agencies payable out of the General Fund, it does not apply to obligations payable out of the Judges’ Retirement Fund.’ ” (Id. italics in original.)
Thus, contrary to plaintiff’s assertions, we do not find that Jorgensen “has been emasculated by subsequent decisions ....”
Plaintiff’s other arguments are without merit. Even if the citation to the Restatement of Trusts in Jorgensen (see 211 Cal.App.2d at p. 302) supports plaintiff’s position, the Jorgensen .rule is valid, independent of any nonjudicial authority on which it purported to reply.
Nor can plaintiff derive comfort from any constitutional or code authority permitting the interchange of general and special funds.3 This state still recognizes a distinction between “general funds” (see, e.g., Gov. Code, §§ 16380-16384 [General Cash Revolving Fund]) and “trust funds” (Gov. Code, § 16370, see, e.g., §§ 16371-16375 [Special Deposit
Plaintiff contends that the rule denying him interest is inherently unfair, violative of public policy, and a denial of equal protection. However captioned, there is no unfairness in applying a different rule governing the right to interest between a state employee’s pension and the judges’ pension system. (See Bilyeu v. State Employees' Retirement System, 58 Cal.2d 618, 623 [24 Cal.Rptr. 562, 375 P.2d 442].)
The judgment is affirmed.
Stephens, J., and Hastings, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied January 21, 1976.
1.
The background facts are as stated in Willens v. Commission on Judicial Qualifications, 10 Cal.3d 451, 453-455 [110 Cal.Rptr. 713, 516 P.2d 1].
2.
Before the 1959 amendment (Stats. 1959, ch. 1735, § 1, p. 4186), the right, to interest on damages conferred by section 3287 did not apply to governmental units. (See Stats. 1955, ch. 1477, § 1, p. 2689.)
3.
Plaintiff relies on article IV, sections 29 and 31, which were renumbered in 1966 as article XIII, sections 23 and 25. Old article XIII, section 23 was repealed outright in November 1974; section 25 became, more or less, article XVI, section 6, which governs amongst other things the transfer of city and county funds.