COUNTY OF ALAMEDA v. CARNES

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Court of Appeal, First District, Division 3, California.

COUNTY OF ALAMEDA, Plaintiff and Respondent, v. BOARD OF RETIREMENT of the ALAMEDA COUNTY EMPLOYEES RETIREMENT ASSOCIATION, Defendant and Respondent. Roger L. CARNES, Real Party in Interest and Appellant.

A028490.

Decided: January 31, 1986

Airola, Wiliams & Dietrich by Lowell A. Airola, San Francisco, for real party in interest. Richard J. Moore, County Counsel, Alameda County by George M. Braue, Oakland, for respondent Alameda County.

Appellant and real party in interest, Roger Carnes, appeals from a judgment of the Superior Court of Alameda County which granted a peremptory writ of mandate to petitioner and respondent County of Alameda, ordering respondent Board of Retirement of Alameda County Employees Retirement Association (Board) to set aside its decision which had granted Carnes service-connected disability retirement benefits.   We affirm the judgment of the trial court.

State of Facts

Robert Carnes was initially employed by the County as a deputy sheriff on February 15, 1969.   As a result of such employment, Carnes became a member of the Alameda County Employees Retirement Association.   On November 1, 1979, Carnes filed an application with the Board for service-connected disability retirement.   In that application, Carnes asserted an alleged incapacity for the performance of his usual duties as a deputy sheriff due to various alleged injuries to his back, including a work-related automobile accident which occurred on January 8, 1979.

The Board of Retirement is a legal entity separate and distinct from the County, established pursuant to the provisions of the County Employees Retirement Law of 1937.  (Gov.Code, § 31450 et seq.)

On September 24, 1981, an adjudicatory hearing was held by the Board, pursuant to Carnes' claim.   The Board listened to all of the evidence presented, then took the matter under submission.   The Board later made certain findings of fact and conclusions of law, in which it concluded that Carnes was “permanently incapacitated for the performance of the usual duties of the deputy sheriff position within the meaning of the retirement law of 1937 (Government Code, § 31724)”, and that Carnes' “incapacitation results from injury arising out of [and] occurring in the course of his employment to his back and left leg.”

On October 13, 1983, respondent County petitioned the superior court for a writ of mandate, pursuant to section 1094.5 of the Code of Civil Procedure.1  On February 7, 1984, a hearing on the matter was held in superior court.   After independently reviewing and weighing the evidence, the court issued a writ of mandate, commanding the Board to set aside its decision, and to enter an order denying the application for disability retirement.   This appeal followed.

Discussion

I. The Propriety of Mandamus Review by the Superior Court.

 Though the issue of the propriety of mandamus review by the superior court is not addressed by the parties, it is a condition of the court's jurisdiction, which we must address before turning to Carnes' contentions.

Section 1094.5 provides for judicial review of adjudicative administrative hearings.  “Code of Civil Procedure [section] 1094.5 may be invoked only if the action being reviewed is adjudicatory in nature.   This means there must be a determination by the agency of what the facts are in relation to specific private rights or interests.” 2  (Cal.Admin.Mandamus (Cont.Ed.Bar 1966), § 2.2, p. 10.)   In the instant case, the hearing conducted by the Board involved a specific private right (Carnes' disability retirement benefits), the parties were represented by counsel, exhibits were admitted as evidence, witnesses were duly sworn before testifying, and all the testimony presented was transcribed by a court reporter.   This hearing was, therefore, adjudicatory in nature, and review under section 1094.5 was proper.  (Rau v. Sacramento County Ret. Bd. (1966) 247 Cal.App.2d 234, 55 Cal.Rptr. 296.)

II. The Trial Court Properly Exercised Its Independent Judgment.

 In the mandamus proceeding initiated by the County, the trial court exercised its independent judgment on the weight of the evidence.   Carnes contends the trial court should have limited itself to a determination of whether the Board's decision was supported by substantial evidence.   We disagree.

Section 1094.5, subdivision (c) provides:  “Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence;  and in all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.”

In dealing with a review of an adjudicatory function of an agency of legislative origin, as we have here, “[i]f the order or decision of the agency substantially affects a fundamental vested right, the trial court, in determining under section 1094.5 whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence.   If, on the other hand, the order or decision does not substantially affect a fundamental vested right, the trial court's inquiry will be limited to a determination of whether or not the findings are supported by substantial evidence in light of the whole record.”  (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32, 112 Cal.Rptr. 805, 520 P.2d 29.)

The issue before this court, therefore, is whether the decision of the trial court substantially affects a fundamental vested right.   As the County argues, it is well established that retirement benefit rights of the nature here involved are fundamental vested rights.  (See Strumsky v. San Diego Employees Retirement Assn., supra, 11 Cal.3d 28, 45, 112 Cal.Rptr. 805, 520 P.2d 29.)   Carnes correctly argues, however, that the party who seeks judicial review of the administrative hearing must itself possess the fundamental vested right.   Since the County, not Carnes, pursued judicial relief from the Board's decision, that the retirement benefits constitute a fundamental vested right is irrelevant.  “ ‘[A] party has no standing to assert that an independent judgment review rather than a substantial evidence review is required unless it possesses a fundamental vested right on its own behalf which was involved in an administrative agency's action.”  (Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 781, 163 Cal.Rptr. 619, 608 P.2d 707, quoting Sierra Club v. California Coastal Zone Conservation Com. (1976) 58 Cal.App.3d 149, 155–156, 129 Cal.Rptr. 743, emphasis in original;  Northern Inyo Hosp. v. Fair Emp. Practice Com. (1974) 38 Cal.App.3d 14, 112 Cal.Rptr. 872.)

Does the County have a fundamental vested right to challenge the Board's award of disability payments?   We have found no case which has addressed this issue.   In Transcentury Properties, Inc. v. State of California (1974) 41 Cal.App.3d 835, 116 Cal.Rptr. 487, the court characterized the right of a coastal developer challenging decisions of the California Coastal Zone Conservation Commission as vested and fundamental in nature, stating:  “Here, respondents' asserted right is fundamental;  it derives from the constitutional guarantee that property may not be taken without due process of law.   (Flournoy v. State of California (1964) 230 Cal.App.2d 520, 530–533 [41 Cal.Rptr. 190]․)”  (Id., at p. 844, 116 Cal.Rptr. 487.)

In Interstate Brands v. Unemployment Ins. Appeals Bd., supra, 26 Cal.3d 770, 163 Cal.Rptr. 619, 608 P.2d 707, the Supreme Court held that a plaintiff's right to be free from erroneous charges to its unemployment insurance reserve account is a fundamental vested right.  (Id., at p. 780, 163 Cal.Rptr. 619, 608 P.2d 707;  see also Kilpatrick's Bakeries, Inc. v. Unemployment Ins. Appeals Bd. (1978) 77 Cal.App.3d 539, 547, 143 Cal.Rptr. 664.)   The Supreme Court noted in Interstate Brands, however, that “[i]n holding that plaintiff's right to be free from erroneous charges to its unemployment insurance reserve account is a fundamental vested right ․ we should not be understood to espouse a principle of necessary reciprocity between the right of an applicant to benefits and the right of the employer.”  (Id., 26 Cal.3d at pp. 780–781, 163 Cal.Rptr. 619, 608 P.2d 707.)   There, the employer was statutorily required to make contributions to an unemployment fund, and therefore, it possessed a fundamental vested right to protect its contributions.

In the instant case, the County, as well as the employees, makes contributions to the retirement fund which is administered and distributed by the Board.   (Gov.Code, §§ 31453, 31453.5.)   We hold that the County has a fundamental vested right to protect the retirement fund since it contributes to that fund.   We find, therefore, that the trial court properly applied the independent judgment standard of review.

III. Substantial Evidence Supports the Judgment of the Trial Court.

 Where the trial court has properly exercised its independent judgment in an administrative mandamus action, the appellate court need only review the record to determine whether the trial court's findings are supported by substantial evidence.  (Bixby v. Pierno (1971) 4 Cal.3d 130, 149, 93 Cal.Rptr. 234, 481 P.2d 242;  Rivard v. Board of Pension Comrs. (1985) 164 Cal.App.3d 405, 412, 210 Cal.Rptr. 509.)

 “To be ‘substantial,’ evidence must be reasonable in nature, credible, and of solid value.  (Estate of Teed (1952) 112 Cal.App.2d 638, 644 [247 P.2d 54].)”  (Rivard v. Board of Pension Comrs., supra, 164 Cal.App.3d 405, 409–410, 210 Cal.Rptr. 509.)   In determining whether the supporting evidence is reasonable, credible, and of solid value, an appellate court should consider the evidence in the light of the whole record.  (Ibid.)  “Where there is conflicting evidence, or evidence susceptible of conflicting inferences, the general rule is not to disturb the judgment.   All presumptions are in favor of the judgment.   Trial judges and juries are the exclusive judges of credibility and may disbelieve any witness.   Trial courts are designed and responsible for determining facts.   Appellate courts are designed to review errors of law.   Economy, efficiency, and practicality require recognition of those specialized roles.”  (Id., at p. 412, 210 Cal.Rptr. 509.)

Government Code section 31724, which governs county retirement systems, provides in part:  “If the proof received, including any medical examination, shows to the satisfaction of the board that the member is permanently incapacitated physically or mentally for the performance of his duties in the service, it shall retire him effective on the expiration date of any leave of absence with compensation to which he shall become entitled under the provisions․”

In Mansperger v. Public Employees' Retirement System (1970) 6 Cal.App.3d 873, 86 Cal.Rptr. 450, incapacity was defined as the substantial inability of the employee to perform his or her usual duties.  (Id., at p. 876, 86 Cal.Rptr. 450.)   The court in Harmon v. Board of Retirement (1976) 62 Cal.App.3d 689, 133 Cal.Rptr. 154, applied this ‘substantial inability’ test to Government Code section 31724.  (Id., at pp. 694–695, 133 Cal.Rptr. 154.)   The question we must confront, therefore, is whether the judgment of the trial court that Carnes is able to perform the substantial portion of his duties, is supported by substantial evidence.

 At the Board hearing, three doctors testified regarding Carnes' back problems, a film was introduced by the County which depicted Carnes shoveling horse manure on the weekend prior to the hearing, and Deputy Carnes testified on his own behalf.   All of this evidence was before the lower court when it reviewed the petition for a writ of mandate.

Dr. Handon, the Board's independent medical advisor testified:  “I really don't think there's a disability in this case.”   He also testified that he thinks Carnes “can go back to work and perform the substantial portion of his duties.”

Dr. Powlan, the County's medical expert, testified that although he could see from the x-rays that Carnes had had a herniated disc which was removed, he could see no signs of present irritation.

Dr. Indeck, testifying for Carnes, stated that in his opinion Carnes is incapacitated, but he also testified that he felt that Carnes could perform all of the duties listed in the job specification for deputy sheriff, but that repetitive lifting or one altercation might do additional harm to Carnes' back.

Mr. James Parker, a private investigator who was hired by the County, presented a three and one-half minute film of Carnes shoveling horse manure on the weekend prior to the hearing.   This film was shown at the hearing, and was available to the trial judge.

We find the evidence which indicates that Carnes was not substantially unable to perform his duties as sheriff, to be reasonable, credible, and of solid value, and we find that a reasonable trier of fact could have ruled in favor of the County based on this record.

IV. Conclusion.

For the foregoing reasons, we find that (a) the trial judge properly applied the independent judgment test, and (b) substantial evidence supports the judgment.   The judgment is affirmed.   Costs to respondents.

FOOTNOTES

1.   Hereafter all section references are to the Code of Civil Procedure unless otherwise specified.

2.   Compare quasi-legislative action which is a type of administrative action that predetermines what the law shall be for future cases, e.g., fixing safety regulations for the operation of elevators.   (Cal.Admin.Mandamus, op. cit. supra, p. xxi.)

WHITE, Presiding Justice.

SCOTT and MERRILL, JJ., concur.

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