MORCOS v. BOARD OF RETIREMENT OF COUNTY OF LOS ANGELES EMPLOYEES RETIREMENT ASSOCIATION

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Court of Appeal, Second District, Division 7, California.

Saad MORCOS, Petitioner and Respondent, v. BOARD OF RETIREMENT OF the COUNTY OF LOS ANGELES EMPLOYEES' RETIREMENT ASSOCIATION, Respondent and Appellant.

No. B032848.

Decided: May 18, 1989

DeWitt W. Clinton, County Counsel and Greg Holland, Deputy County Counsel, Los Angeles, for respondent and appellant. Lemaire & Faunce and Steven R. Pingel, Los Angeles, for petitioner and respondent.

Appellant Board of Retirement of the County of Los Angeles Employees' Retirement Association (the Board) appeals from the issuance of a peremptory writ directing the Board to grant respondent Saad Morcos (Morcos) a service-connected disability retirement.   The Board argues there is no substantial evidence to support the trial court's determination that Morcos is permanently disabled and such disability is service connected.   The Board also argues Morcos is not entitled to prejudgment interest.   We find no merit in either contention and affirm the judgment.

STATEMENT OF FACTS

Morcos was employed by Los Angeles County as an accountant with the health services department.   On December 13, 1982, a five- to six-pound ceiling tile struck Morcos while he was sitting at his desk.   After being struck, Morcos began screaming.   He then became disoriented and started vomiting.   An ambulance took Morcos to the hospital where he was treated and released.

Morcos continued to suffer from various symptoms following the accident including dizziness, burning headaches and tenderness of the occipital nerve at the base of the skull.1  Tests conducted by different physicians, including an EEG and CAT scan, proved negative.

On January 31, 1983, a neurological surgeon, Dr. Earl Jordan, concluded Morcos was temporarily disabled and opined Morcos could return to work within two to four weeks.   Dr. Jordan re-evaluated Morcos on February 8, concluding his symptoms were persisting beyond the expected period of disability.   Nonetheless, Dr. Jordan stated Morcos was temporarily totally disabled for at least another two to three weeks.   On March 21, 1983, Dr. Jordan opined Morcos was no longer disabled.

Morcos returned to work although he continued to experience headaches, vertigo and nausea.2  At the suggestion of a neurologist, Morcos also began seeing a psychiatrist, Dr. Albert Bloch, for biofeedback treatment to help control the headaches.

At Dr. Bloch's direction, Morcos was evaluated by Neuropsychological Assessments, Inc.   This medical group concluded “Mr. Morcos was impaired on 80 percent of the tests in the neurobehavioral battery.   This is in the range characteristic of organic brain dysfunction.”

On August 27, 1983, Dr. Bloch prepared a report concerning Morcos.   There, he concluded Morcos suffered from situational depression and posttraumatic head syndrome resulting from his December 1982 head injury.   Dr. Bloch did not believe Morcos's condition was sufficiently stable to rate him from a psychiatric viewpoint.

On December 19, 1983, Dr. Bloch prepared a status report on Morcos stating he remained “deeply depressed and preoccupied regarding his persistent headaches, which clearly occur as reactions to stress.   He is barely holding on at work, functioning daily, but at a much-decreased level of efficiency.   A lateral transfer to less stressful duties would be of substantial benefit, but none seems to be available.”

On January 27, 1984, as part of Morcos's workers' compensation claim, Dr. Burton Wixen, a psychiatrist, conducted a complete psychiatric examination of Morcos.   In his report, Dr. Wixen concluded Morcos's psychiatric symptomatology was not severe enough to represent a period of temporary total disability.   However, Morcos's condition was not stationary and Dr. Wixen recommended Morcos continue his weekly psychotherapy.

Another psychiatrist and neurologist, Dr. Howard Baker, re-evaluated Morcos on May 10, 1984.   Dr. Baker concluded Morcos was temporarily totally disabled and suffering from a “profound degree of emotional disturbance,․”

On September 10, 1984, Dr. Bloch prepared a report stating Morcos was “substantially and permanently incapacitated from his usual and customary occupation with the County of Los Angeles.”   Dr. Bloch noted Morcos's psychiatric symptoms developed in response to the trauma to Morcos's head.

On February 8, 1985, Dr. Wixen wrote the workers' compensation claims division following his reevaluation of Morcos.   Dr. Wixen opined Morcos was disabled and his disability precluded him from working in any capacity for the County of Los Angeles.   Dr. Wixen further opined Morcos's condition was permanent and stationary.

On March 4, 1985, Morcos was required to see an agreed medical examiner as part of his workers' compensation claim.   After an extended psychological evaluation, the examiner, Dr. Youssef Mawardi, concluded “[d]isability has occurred as a result of the injury [the falling tile] and he can be considered as permanently and totally disabled as far as resuming his former employment with Los Angeles County․  An apportionment is indicated;  it is my impression that 80% of Mr. Morcos' present psychiatric problems are work related and the remaining 20% are pre-existing and related to his family difficulties.” 3

On April 22, 1985, Dr. David Gelles, a psychiatrist and neurologist, examined Morcos at the Board's request.   Dr. Gelles concluded Morcos was “incapacitated from returning to his position as an Accounting Systems Technician with the County of Los Angeles, but this incapacity is not substantially caused by employment or the injury of December 13, 1982,․”

On September 10, 1985, Dr. Bloch wrote the adjuster for Morcos's workers' compensation claim concerning Morcos's psychiatric re-evaluation.   Dr. Bloch stated “Mr. Morcos continues to present a psychiatric disability ratable as slight to moderate, according to Workers' Compensation guidelines.   There is no basis for apportionment.”   This assessment was echoed in Dr. Bloch's January 18, 1986, report.

STATEMENT OF THE CASE

Morcos applied for a service-connected disability retirement on October 22, 1984.   The Board denied the application on July 8, 1985, concluding Morcos was not permanently disabled.4

Morcos appealed the Board's decision and a referee was appointed to determined whether Morcos suffered from a permanent service-connected disability.   The referee held in favor of Morcos, recommending the Board find Morcos was permanently disabled and his disability was service-connected.

The Board rejected the referee's recommendation and reaffirmed its earlier decision denying Morcos's application for a service-connected disability retirement.   Morcos petitioned the superior court pursuant to Code of Civil Procedure section 1094.5 (providing for review of administrative orders or decisions) for a peremptory writ directing the Board to grant the disability retirement.

The trial court tentatively granted the peremptory writ concluding the weight of the evidence established Morcos's disability.   After argument, the trial court agreed to submit the matter and review the evidence.   Following this review, the trial court granted the peremptory writ stating:

“All of the psychiatrists are in agreement that petitioner is disabled from working for the County, and this is so even though his disability is slight.   Dr. Mawardi, the agreed medical examiner is of the opinion that his disability is 80% caused by his employment.   Drs. Bloch and Wixen also state it is job-related although they do not indicate a percentage.   In fact, Dr. Wixen who initially disagreed that petitioner was disabled, has changed his opinion and as of the date of his last report was of the opinion that petitioner was disabled and that the disability was job related.   As opposed to this is the opinion of Dr. Gelles that the disability is not service connected.   Thus the court finds that petitioner has carried his burden of proof in that the weight of the evidence is to the effect that he is disabled and that the disability is service connected to a real and measurable degree.”

The trial court awarded Morcos disability retirement benefits retroactive to the day following the last day for which Morcos received regular compensation and interest thereon.   The Board timely appealed.

DISCUSSION

I. THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE TRIAL COURT'S DETERMINATION THAT MORCOS IS PERMANENTLY DISABLED.A. Standard of Review.

“ ‘After the trial court has exercised its independent judgment upon the weight of the evidence, an appellate court need only review the record to determine whether the trial court's findings are supported by substantial evidence.’  [Citation].”  (McCoy v. Board of Retirement (1986) 183 Cal.App.3d 1044, 1054, 228 Cal.Rptr. 567;  accord Hosford v. Board of Administration (1978) 77 Cal.App.3d 854, 859, 143 Cal.Rptr. 760.)   In determining whether there is substantial evidence, the appellate court resolves all evidentiary conflicts in favor of the responding party and indulges in all reasonable inferences which will support the judgment.  (Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 308, 196 P.2d 20;  McCoy v. Board of Retirement, supra, 183 Cal.App.3d at p. 1054, 228 Cal.Rptr. 567.)

B. There Is Substantial Evidence Morcos Is Permanently Disabled.

 The Board asserts that the opinion of four psychiatrists that Morcos is disabled does not constitute substantial evidence.   The assertion lacks merit.   The record is clear from the testimony of four psychiatrists that substantial evidence supports the “disability” finding below.   We summarize that evidence as follows:

Dr. Bloch:  Morcos is “substantially and permanently incapacitated from his usual and customary occupation with the County of Los Angeles.”  “Mr. Morcos continues to present a psychiatric disability ratable as slight to moderate, according to Workers' Compensation guidelines.   There is no basis for apportionment.” 5

Dr. Mawardi:  “Disability has occurred as a result of the injury [the falling tile] and he can be considered as permanently and totally disabled as far as resuming his former employment with Los Angeles County.”

Dr. Wixen:  “I saw Saad Morcos today for a psychiatric reevaluation.   There has been an additional period of temporary total disability from approximately May 1, 1984 until approximately 11/15/84.   His condition can be considered permanent and stationary.   His residual disability is that he is precluded from returning to work in any capacity for the County of Los Angeles.”

Dr. Gelles:  Morcos is “incapacitated from returning to his position as an Accounting Systems Technician with the County of Los Angeles,․”

No contrary psychiatric evidence appears in the record and the Board attempt to diminish the import of the expert psychiatric opinions by claiming they are mere fragmentary portions of reports.   We do not consider a psychiatrist's conclusion or diagnosis to be a “fragmentary” portion of a report.   The argument is untenable.

The Board further argues that the report of Drs. Wixen and Mawardi's cannot constitute substantial evidence because they are outdated.   We find no contrary evidence in the record diminishing the credibility of these reports for being dated or which would indicate Morcos's condition significantly changed after the rendition of the reports.   Moreover, both psychiatrists concluded Morcos's condition was “permanent and stationary”.   A reasonable inference from these conclusions is that the reports have accurate information concerning Morcos's condition beyond the date they were issued.

The County misinterprets the record by arguing that Dr. Bloch's September 10, 1984, opinion that Morcos is disabled is contradicted by his January 18, 1986, report allegedly stating that Morcos could return to work.   We are unable to locate such a statement in Dr. Bloch's January report.   To the contrary, Dr. Bloch reaffirms his opinion that Morcos is disabled.

 Finally, the Board argues that the trial court improperly stated that Dr. Gelles found that Morcos was disabled.   The Board contends Dr. Gelles's opinion that Morcos was incapacitated from working for Los Angeles County is not the same as saying he is medically disabled.   The argument is unpersuasive.   A reasonable inference from this evidence is that incapacity is the equivalent of disability.

A review of the record indicates ample evidence supported the decision of the Board.

II. THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE TRIAL COURT'S DETERMINATION THAT MORCOS'S DISABILITY IS SERVICE–CONNECTED.

The Board next contends there is no substantial evidence that Morcos's disability is service-connected.   The contention is likewise without merit.

 There must be “substantial evidence of a real and measurable connection between an employee's disability and his employment in order for the employee to qualify for a service-connected disability retirement.”  (Hoffman v. Board of Retirement (1986) 42 Cal.3d 590, 593, 229 Cal.Rptr. 825, 724 P.2d 511;  see Bowen v. Board of Retirement (1986) 42 Cal.3d 572, 578, 229 Cal.Rptr. 814, 724 P.2d 500;  Pacheco v. Board of Retirement (1986) 188 Cal.App.3d 631, 635, 233 Cal.Rptr. 461.)   Thus, the connection between the disability and employment must be more than infinitesimal or inconsequential.   (Bowen v. Board of Retirement, supra, 42 Cal.3d at p. 578, 229 Cal.Rptr. 814, 724 P.2d 500;  DePuy v. Board of Retirement (1978) 87 Cal.App.3d 392, 399, 150 Cal.Rptr. 791.)

 The evidence here establishes a real and measurable connection between Morcos's job stress and his disability.

Dr. Mawardi stated that Morcos's disability was 80 percent connected to his employment with Los Angeles County.   The Board claims that this conclusion is based upon an inadequate medical history.   The assertion lacks an evidentiary base.   The record reveals that Dr. Mawardi reaffirmed his diagnosis after reviewing 11 medical reports concerning Morcos.

Dr. Bloch opined there was no basis for apportioning Morcos's disability to non-work related conditions.   The Board argues that this opinion is not supported by medical evidence.   Again, we are unable to locate any evidentiary basis for this position.

Finally, Dr. Wixen concluded “Mr. Morcos's disability is entirely focussed [sic] on his difficulties with the County.”   The Board contends this report is outdated and cannot be considered valid.   This contention is without evidentiary support and merely constitutes the Board's conclusion as to the construction of the evidence.

The record clearly supports the conclusion that substantial evidence supports the trial court's decision that Morcos's disability is service-connected.

III. THE SUPERIOR COURT PROPERLY AWARDED MORCOS PREJUDGMENT INTEREST PURSUANT TO CIVIL CODE SECTION 3287.

The Board contends the trial court improperly awarded Morcos prejudgment interest pursuant to Civil Code section 3287.   We note the Board failed to raise this issue when it objected to the proposed judgment.   However, since the issue presented is strictly one of law, we consider it now.  (See Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167, 143 Cal.Rptr. 633.)6

Civil Code section 3287, subdivision (a) provides:  “Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law ․ from paying the debt.”  “The wrongful withholding of past due pension payments ․ fall[s] within the definition of damages and to represent obligations on which interest will run.  [Citation.]”  (Sanders v. City of Los Angeles (1970) 3 Cal.3d 252, 262–263, 90 Cal.Rptr. 169, 475 P.2d 201;  see Olson v. Cory (1983) 35 Cal.3d 390, 405–407, 197 Cal.Rptr. 843, 673 P.2d 720;  Benson v. City of Los Angeles (1963) 60 Cal.2d 355, 365–366, 33 Cal.Rptr. 257, 384 P.2d 649;  Adler v. City of Pasadena (1964) 229 Cal.App.2d 518, 527, 40 Cal.Rptr. 373.)

Prejudgment interest may be awarded in a mandamus proceeding against a state entity if the following three conditions are met:  “(1) There must be an underlying monetary obligation;  (2) the recovery must be certain or capable of being made certain by calculation;  and (3) the right to recovery must vest on a particular day.”  (Tripp v. Swoap (1976) 17 Cal.3d 671, 682, 131 Cal.Rptr. 789, 552 P.2d 749, disapproved on another point in Frink v. Prod (1982) 31 Cal.3d 166, 180, 181 Cal.Rptr. 893, 643 P.2d 476;  see Mass v. Board of Education (1964) 61 Cal.2d 612, 625–626, 39 Cal.Rptr. 739, 394 P.2d 579;  Todd Shipyards Corp. v. City of Los Angeles (1982) 130 Cal.App.3d 222, 226, 181 Cal.Rptr. 652.)   There is no dispute that all three conditions have been met in this case.

Instead, the Board argues prejudgment interest is not recoverable here because there is no express provision in the Government Code permitting such an award.   Alternatively, the Board argues interest should only be awarded from the date of the referee's hearing because prior to that date the Board was prevented by law from providing Morcos his disability benefits.   Both points are meritless.

 First, the mere fact the Government Code does not provide for prejudgment interest does not evidence a legislative intent to bar such awards.  (See Tripp v. Swoap, supra, 17 Cal.3d at p. 684, 131 Cal.Rptr. 789, 552 P.2d 749 [“the fact that the Legislature did not specify interest is not probative on the issue whether it is recoverable”].)  Indeed, the courts have consistently permitted claimants to recover prejudgment interest without specific statutory authorization in pension cases.  (See Olson v. Cory, supra, 35 Cal.3d at pp. 405–407, 197 Cal.Rptr. 843, 673 P.2d 720;  Benson v. City of Los Angeles, supra, 60 Cal.2d at pp. 365–366, 33 Cal.Rptr. 257, 384 P.2d 649;  Adler v. City of Pasadena, supra, 229 Cal.App.2d at p. 527, 40 Cal.Rptr. 373.)

 Second, the Board was not prevented by law, within the meaning of Civil Code section 3287, from awarding Morcos his disability retirement prior to the referee's hearing.   A debtor is only prevented by law from paying a debt “by reason of a judgment, order, statute, or judicial process directing it to hold the amount due,․”  (Perkins v. Benquet Cons. Min. Co. (1942) 55 Cal.App.2d 720, 769, 132 P.2d 70.)   No such impediment existed in this case.7

 Further, interest commences running from the date the benefits vest.   Thus, unless the Board's denial of disability benefits is sustained, it may be required to pay interest on those benefits which vested in Morcos.  (Mass v. Board of Education, supra, 61 Cal.2d at p. 625, 39 Cal.Rptr. 739, 394 P.2d 579;  see Tripp v. Swoap, supra, 17 Cal.3d at p. 678, 131 Cal.Rptr. 789, 552 P.2d 749.)

IV. ATTORNEY'S FEES ON APPEAL ARE NOT ALLOWABLE UNDER GOVERNMENT CODE SECTION 31536 OR CASE LAW.

 In his respondent's brief, Morcos requests this court to direct the superior court to award attorney's fees pursuant to Government Code section 31536 for the attorney's work on this appeal.   We discern no opposition by the Board on respondent's request, however, we decline to award such fees for the reasons hereafter given.

Government Code section 31536 provides in pertinent part:  “If a superior court reverses the denial by the board of an application for a retirement allowance, ․ or for a claim based on a claimed pension right or benefit, the superior court in its discretion may award reasonable attorney's fees as costs to the member ․ who successfully appealed the denial of such application.”   Our research fails to reveal any California appellate decision addressing the issue of whether such attorney's fees may also be awarded for the work involved in successfully defending the superior court's order reversing the board's denial of benefits on appeal to the appellate court.

We must construe section 31536 in accordance with the legislative intent underlying its enactment.  (See California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836;  Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)  Section 31536 was enacted to correct the disparity between private individuals living on reduced or fixed incomes who seek to recover their pension benefits versus the government entities which enjoy their own “house” counsel.  (See Sen. Comm. on Jud., Report on AB 2365, County Employees Retirement Law of 1937—Attorney's Fees, p. 2;  Van Hook v. Board of Retirement, supra, 148 Cal.App.3d at p. 717, 196 Cal.Rptr. 186 [in enacting Government Code section 31536, the Legislature sought “to provide equity between the disabled person who successfully litigates his disability retirement case and the public body who has ‘house’ counsel”].)

It would seem that to allow a successful claimant to recover attorney's fees incurred during the appellate process would further the legislative intent to equalize the economic appellate litigation positions of both parties in disability retirement cases.   However, a clear intention to allow such fees is not manifested in either the legislative history or the statute.   We are mindful that appellate courts have allowed attorney's fees on appeal in related situations as revealed in the cases cited in the dissenting opinion herein.   However, we conclude that the preferable approach to establishing a right to attorney's fees on appeal in cases such as this is better left to the crucible of the legislative process.

DISPOSITION

The order granting the peremptory writ is affirmed.   Respondent is to recover his costs on appeal.

I concur in parts I, II and III of the opinion.   I respectfully dissent from part IV wherein the majority holds attorney's fees are not recoverable on appeal under Government Code section 31536.1  This conclusion ignores the plain language of section 31536 which authorizes a fee award for claimants who “successfully appealed ” the denial of benefits.   This conclusion likewise ignores settled case law which has established the general principle that statutes authorizing attorney's fee awards in lower tribunals include attorney's fees incurred on appeals of decisions from those lower tribunals.   Moreover, the majority's decision frustrates the intent the Legislature expressed in enacting section 31536 to remedy the disparity between government entities which enjoy captive “house” counsel and disabled applicants forced to incur attorney's fees to secure the benefits to which they are entitled.

In his respondent's brief, Morcos requested this court to direct the superior court to award attorney's fees pursuant to Government Code section 31536 for the attorney's work on this appeal.   As the majority acknowledges, albeit in more oblique terms, the county did not oppose Morcos's request for attorney's fees.   In fact, when presented with the opportunity at oral argument to argue the issue, the county expressly conceded such an award of fees on appeal is within the discretion of the court.

The reasons for this concession are manifest.   As the Supreme Court held, “it is established that fees, if recoverable at all—pursuant either to statute or parties' agreement—are available for services at trial and on appeal.”  (Serrano v. Unruh (1982) 32 Cal.3d 621, 637, 186 Cal.Rptr. 754, 652 P.2d 985, emphasis added;  accord Russell v. Thermalito Union School Dist. (1981) 115 Cal.App.3d 880, 884, 176 Cal.Rptr. 1;  County of Humboldt v. Swoap (1975) 51 Cal.App.3d 442, 445, 124 Cal.Rptr. 510;  Roberts v. Brian (1973) 30 Cal.App.3d 427, 430, 431, 106 Cal.Rptr. 360 (per J. Lillie);  see also California Attorney's Fees Award Practice (Cont.Ed.Bar 1982) p. 97 [“If attorney's fees are authorized by statute, they are authorized for appellate services as well as for trial services”];  California Civil Appellate Practice (Cont.Ed.Bar.1985) p. 514 [“Ordinarily, fee awards under statutory or contractual authority include fees for services on appeal as well as at trial”].)

Appellate courts have consistently permitted a successful party to recover his attorney's fees incurred on appeal when the statute expressly permitted such an award in the trial court or other lower tribunal.   For example, in Russell v. Thermalito Union School Dist., supra, 115 Cal.App.3d 880, 176 Cal.Rptr. 1, the Court of Appeal addressed Education Code section 44944, subdivision (e), which provides the school district is required to pay an employee's reasonable attorney's fees if the Commission on Professional Competence determines he should not be dismissed.   The court held the employee “is entitled to reimbursement for legal fees paid not only for representation before the commission, but also in the superior court and on appeal.”  (Id. at p. 884, 176 Cal.Rptr. 1.) 2

Similarly, in Roberts v. Brian, supra, 30 Cal.App.3d 427, 106 Cal.Rptr. 360, the Court of Appeal considered Welfare and Institutions Code section 10962 which provides, “[t]he applicant or recipient or the affected county, ․ may file a petition with the superior court, ․ praying for a review of the entire proceedings in the matter, ․ [¶ ] The applicant or recipient shall be entitled to reasonable attorney's fees and costs, if he obtains a decision in his favor.”   The court held this language meant the applicant or recipient is entitled to attorney's fees incurred on appeal as well as at trial.   There, Justice Lillie writing for the court reasoned, “as ‘ “[a] contract for a reasonable attorney's fee in enforcing its provisions embraces an allowance for legal services rendered upon appeal as well as during the trial.”   [Citations.]’  [Citations.] so too does the statute here.”  (Id. at p. 430, 106 Cal.Rptr. 360.)   As the court recognized, the applicant “stood as much in need of an attorney in the appellate as in the lower court [citation].”  (Ibid.)

Nor are Roberts and Russell the exceptions.   Courts have also awarded attorney's fees incurred on appeal pursuant to the following statutes, none of which expressly mention the prevailing party is entitled to attorney fees on appeal:  Civil Code section 1717 (T.E.D. Bearing Co. v. Walter E. Heller & Co. (1974) 38 Cal.App.3d 59, 64–65, 112 Cal.Rptr. 910);  Civil Code section 2983.4 (Leaf v. Phil Rauch, Inc. (1975) 47 Cal.App.3d 371, 378, 379, 120 Cal.Rptr. 749);  Civil Code section 3250 (Winick Corp. v. Safeco Insurance Co. (2nd Dist., Div. 7 1986) 187 Cal.App.3d 1502, 1508, 232 Cal.Rptr. 479);  Civil Code section 3496 (People ex rel. Cooper v. Mitchell Brothers' Santa Ana Theater (1985) 165 Cal.App.3d 378, 387, 211 Cal.Rptr. 501);  Code of Civil Procedure section 1021.5 (Serrano v. Unruh, supra, 32 Cal.3d at p. 639, 186 Cal.Rptr. 754, 652 P.2d 985);  Corporations Code section 317 (Fed–Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 229, 168 Cal.Rptr. 525);  Government Code section 27648 (Municipal Court v. Bloodgood (1982) 137 Cal.App.3d 29, 48, 186 Cal.Rptr. 807);  Government Code section 54960.5 (San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 781, 192 Cal.Rptr. 415.) 3

What Justice Lillie said in Russell applies with equal force in the instant case.   This pensioner “stood as much in need of an attorney in the appellate as in the lower court.”   Certainly there is nothing in the language of section 31536 suggesting otherwise.   The statute before this court actually creates a stronger case for fee awards on appeal than the statutes considered in Roberts and Russell.   In both Roberts and Russell, the statutes provided for the recovery of attorney's fees incurred by the successful party in a lower tribunal.   The courts, however, followed settled law and extended the statutory provisions to include fees incurred on appeal.   Here the statute expressly mentions awards are authorized for a successful appeal of the denial of benefits, an appeal which was not fully successful in this case until this court upheld the claimant's position.   Thus, since under Roberts and Russell appellate fees are authorized even though the statute speaks solely of allowing fee awards for proceedings in the trial court or other lower tribunal, a fortiori appellate fees are appropriate in the instant case where the statute expressly mentions awarding attorney's fees for the successful appeal of a lower tribunal's decision.

It is anomalous for the majority to deny fees incurred on appeal under section 31536 when appellate courts have consistently permitted such awards under other less explicit statutes.   The sole justification they offer for this position is that nowhere in the legislative history did the Legislature bother to expressly state it intended pensioners to be entitled to awards for attorney's fees incurred at the appellate stage of proceedings challenging denials of their benefits.   But silence in the legislative history by no means justifies refusal of appellate fees under this statute.

To begin with, the first and most important evidence of legislative intent is the language of the statute.   So we return once again to the words the Legislature chose to use in section 31536.   The plain language of the statute itself clearly demonstrates the Legislature intended to allow attorney's fees incurred at the appellate stage.   The statute provides attorney's fees for the member “who successfully appealed the denial of such application.”  (Govt.Code, § 31536, emphasis added.)   The proceedings before this court are manifestly part of the member's appeal from the denial of his benefits for which he should be entitled to attorney's fees.   Until the appellate process is complete, one cannot fairly say the member has “successfully appealed” the Board's decision.  (See Board of Education v. Commission on Professional Competence (1980) 102 Cal.App.3d 555, 566, 162 Cal.Rptr. 590 [attorney's fees awarded on appeal pursuant to Ed.Code, § 44944 because “it is never determined whether the employee is in fact to be retained until the final appeal is exhausted”];  Roberts v. Brian, supra, 30 Cal.App.3d at p. 430, 106 Cal.Rptr. 360;  cf. Painter v. Estate of Painter (1889) 78 Cal. 625, 627, 21 P. 433.)

Secondly, I observe that none of the statutes construed in the cases cited above contained an express provision that attorney fees were to be allowed for appeals from the trial court or other tribunal specifically mentioned in the statute.   Nonetheless, every appellate court, including the Supreme Court, concluded it was proper to construe the statute in question to permit attorney's fee awards for costs incurred on appeal.   I further note these courts did not rely on express statements of legislative intent contained in the legislative history of these other statutes to the effect that appellate fee awards were to be allowed.   Rather they relied on common sense interpretation of the language and purpose of these laws.

Thirdly, one may fairly presume the Legislature was aware of the judicial construction which extended attorney's fee provisions to fees incurred on appeal when it enacted section 31536 and, therefore, felt no compulsion to expressly provide for such an award.  (See People v. Slaughter (1984) 35 Cal.3d 629, 640, 200 Cal.Rptr. 448, 677 P.2d 854;  Estate of McDill (1975) 14 Cal.3d 831, 839, 122 Cal.Rptr. 754, 537 P.2d 874.)   In fact, had such an express provision for attorney's fees on appeal been included in Government Code section 31536, the necessary corollary under the majority's opinion would require the courts to conclude all other attorney's fee statutes lacking an express provision for attorney's fees on appeal prohibit such an award.   Absent legislative amendment of all of these statutes, the appellate courts would be required to overrule the decisions construing at least ten different attorney's fee statutes.   The Legislature already has used language in section 31536 which is more definitive than any of these other statutes in authorizing fees for “successful appeals ”.   The only way it could respond to the majority's construction of section 31536 is by adding an amendment specifically mentioning appellate courts by name and authorizing attorney's fee awards for representation in those courts.   And the only way it could avoid the risk other courts will infer the absence of this express authority in other attorney fee statutes means appellate fee awards are precluded under those statutes would be to insert identical language in all these code provisions.   Clearly, this places an enormous and unnecessary burden on the Legislature—the kind of burden inherent when a court departs from a long-established judicial principle on which the Legislature as well as litigants have depended for many years.

Finally, as the majority concedes, construction of section 31536 to permit an award of attorney's fees incurred on appeal furthers the legislative intent underlying the attorney's fee statute.  Section 31536 was enacted to correct the disparity between private individuals living on reduced or fixed incomes who seek to recover their pension benefits versus the government entities which enjoy their own “house” counsel.  (See Sen. Comm. on Jud., Report on AB 2365, County Employees Retirement Law of 1937—Attorney's Fees, p. 2;  Van Hook v. Board of Retirement, supra, 148 Cal.App.3d at p. 717, 196 Cal.Rptr. 186 [in enacting Government Code section 31536, the Legislature sought “to provide equity between the disabled person who successfully litigates his disability retirement case and the public body who has ‘house’ counsel”].)

Construing section 31536 to permit a successful claimant to recover attorney's fees incurred during the appellate process furthers this legislative intent.   Construing it otherwise, as the majority opinion does, defeats that legislative intent.   As this case so eloquently demonstrates, the county possesses the resources to pursue appeals without any concern for the merits.   Any parity between the government entity and the successful applicant is lost if the government is free to pursue appellate review with its “house” attorneys while the applicant is forced to incur nonrecoverable fees defending the trial court's decision.   Clearly the Legislature did not intend such a result.

In sum, the plain language of section 31536 expressly authorizes an award of attorney fees for the “successful appeal ” of a denial of benefits and the attorney's efforts in our court were clearly part of that “successful appeal ” in this case.   This alone is enough to justify allowing the trial court to grant an attorney fee award for the reasonable costs of representation in our court.

But even if the language of section 31536 had not been so explicit in mentioning fees for successful appeals, a well-established legal principle holds that fees on appeal are allowed whenever a statute authorizes fee awards for proceedings in lower tribunals.   Because of this long standing legal principle it would have been redundant for the legislative history to have specifically mentioned the allowance of fees for work done in the appellate courts.   Accordingly, the Legislature's silence on this issue does not give rise to a legitimate inference it intended to exclude appellate fees from the awards granted under this statute.  (Indeed given the statutory language authorizing fee awards for “successful appeals ” it would have taken a definitive statement in the legislative history outlawing an allowance of fees for work in the appellate courts to overcome the clear implication such fees are covered in section 31536.)

The legislative history speaks loud and clear on the purpose of section 31536—to place the government and individual pensioners on a level playing field when it comes to litigation over benefits.   The only way this legislative purpose can be achieved is to allow pensioners to recover attorney fees they incur in the appellate courts as well during the earlier stages of their appeals in the trial courts.   Yet despite protestations of concern for legislative intent, the majority adopts a position guaranteed to defeat rather than further the Legislature's clearly expressed purpose in enacting section 31536.   I am very troubled by that.   I am equally troubled by their failure to implement the express language the Legislature used in this statute to authorize fee awards for “successful appeals ” of pension denials.   And I am further troubled by this radical, unjustified departure from a long-standing legal principle supported by a procession of Supreme Court and Court of Appeal decisions, one of them authored by Justice Lillie herself.   As these cases have established, since attorney's fees are properly recoverable in the trial court for Morcos's success there, they also should be recoverable for his continued success on appeal.  (See, e.g., Serrano v. Unruh, supra, 32 Cal.3d at pp. 637–638, 186 Cal.Rptr. 754, 652 P.2d 985;  Painter v. Estate of Painter, supra, 78 Cal. at p. 627, 21 P. 433.)   For all these reasons, I am compelled to dissent.   I would remand the matter of fees on appeal for consideration by the trial court.  (Govt.Code, § 31536;  Van Hook v. Board of Retirement, supra, 148 Cal.App.3d at p. 719, 196 Cal.Rptr. 186.)

FOOTNOTES

1.   Morcos was asymptomatic prior to the accident.

2.   While at work, Morcos's supervisors questioned the necessity of his medical treatment and complained of the time he took off for medical visits.

3.   Dr. Mawardi reviewed numerous medical reports following his initial opinion concerning Morcos.   This review did not alter his initial diagnosis.

4.   On August, 20, 1986, Morcos settled his workers' compensation claim against the County of Los Angeles.   By stipulation, the parties agreed Morcos was injured on December 13, 1982, during the course of employment and the injury caused 25 percent permanent disability.   The award was approved by the Workers' Compensation Appeals Board referee on September 23, 1986.

5.   Dr. Bloch's reference to a “slight to moderate” rating refers to the rating schedule used for neurosis resulting in permanent disability.   (See California Worker's Compensation Practice (Cont.Ed.Bar 1985) § 16.26, p. 695.)   A “slight to moderate” rating is equal to 20 to 50 percent.   (Ibid.)

6.   We note the trial court's award of prejudgment interest is not without precedent.   In Van Hook v. Board of Retirement (1983) 148 Cal.App.3d 714, 196 Cal.Rptr. 186, the trial court also awarded the claimant prejudgment interest.  (Id., at p. 716, fn. 1, 196 Cal.Rptr. 186.)   The Board in that case did not challenge the award on appeal.

7.   The Board claims state law prevented them from paying Morcos the benefits to which he was entitled.   However, it fails to identify the statute which so barred it.

1.   Section 31536 provides:  “If a superior court reverses the denial by the board of an application for a retirement allowance, ․ or for a claim based on a claimed pension right or benefit, the superior court in its discretion may award reasonable attorney's fees as costs to the member ․ who successfully appealed the denial of such application.”

2.   Education Code section 44944, subdivision (e) provides in pertinent part:  “If the Commission on Professional Competence determines that the employee should not be dismissed or suspended, the governing board shall pay the expenses of the hearing, including ․ reasonable attorney fees incurred by the employee.”

3.   The pertinent language of these statutes is quoted herein.Civil Code section 1717:  “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the ․ prevailing party on the contract, ․ shall be entitled to reasonable attorney's fees․”Civil Code section 2983.4:  “Reasonable attorney's fees ․ shall be awarded to the prevailing party in any action on a contract or purchase order․”Civil Code section 3250:  “In any action [on the payment bond], the court shall award to the prevailing party a reasonable attorney's fee, to be taxed as costs.”Civil Code section 3496:  “In any of the following described cases [public nuisances], the court may award costs, including ․ reasonable attorney's fees ․ to the prevailing party.”Code of Civil Procedure section 1021.5:  “Upon motion, a court may award attorney's fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest․”Corporations Code section 317, subdivision (b):  “A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any proceeding ․ by reason of the fact that the person is or was an agent of the corporation, against expenses, ․ and other amounts actually and reasonably incurred in connection with the proceeding if that person acted in good faith․”Government Code section 27648:  “If, because of a declared conflict of interest, any judge, who is otherwise entitled to representation ․ is required to retain his own counsel, such judge is entitled to recover from the appropriate public entity such reasonable attorney's fees, ․ as were necessarily incurred thereby.”Government Code section 54960.5:  “A court may award court costs and reasonable attorney's fees to the plaintiff in an action brought pursuant to section 54960 or 54960.1 where it is found that a legislative body of the local agency has violated this chapter.”

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.

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