MUELLER v. BOARD OF RETIREMENT OF LOS ANGELES COUNTY EMPLOYEES RETIREMENT ASSOCIATION (1992)

In this appeal we are asked to determine whether the trial court properly awarded interest on two retroactive lump sum retirement benefits payments made to the plaintiffs in this case by the defendant Board of Retirement of the County of Los Angeles Employees Retirement Association.   The payments came about as the result of administrative hearings rather than as a result of a judgment given to plaintiffs in an administrative mandamus proceeding (Code Civ.Proc., § 1094.5).

In Austin v. Board of Retirement (1989) 209 Cal.App.3d 1528, 258 Cal.Rptr. 106, we examined the provision in Civil Code section 3287, subdivision (a) ¹ for recovery of prejudgment interest on damage awards as it applies to retirement benefits obtained by law suits brought pursuant to the County Employees Retirement Law of 1937 (Gov.Code, § 31450 et seq.).   We held that in an administrative mandamus proceeding, when the trial court awards retroactive retirement benefits, the court may also properly award prejudgment interest on those benefits retroactive to the employee's last day of service.

In this case we again examine subdivision (a) of Civil Code section 3287 vis-a-vis the County Employees Retirement Law of 1937 and we hold that interest is also properly awarded by the trial court on retroactive lump sum payments which an employee or survivor obtains pursuant to an administrative appeal process, i.e., obtains without the intervention of a court of law.   We further hold that a retirement board itself is authorized to pay interest on such awards and the employee or survivor does not have to file an action in the trial court to receive such interest.

FACTUAL AND PROCEDURAL BACKGROUND

This case was instituted by two women seeking benefits from the Los Angeles County Employees Retirement Association Board of Retirement (“Board”).   Delores Mueller, the widow of a former deputy district attorney, sought survivor's benefits and Felisa Rafin, a former county employee, sought service connected disability benefits.   Initially, the Board denied both women the benefits they requested and awarded them other benefits instead.²  Both sought an administrative hearing before a referee appointed by the Board.   The referees hearing their respective cases recommended to the Board that the women receive the benefits they had requested and the Board followed the referees' recommendations.

Thereafter, the Board paid the women lump sum retroactive amounts but did not pay interest on those amounts, although the women requested they do so.   To obtain the interest, the women (hereinafter referred to collectively as the “plaintiffs”) filed a class action on July 31, 1987 ³ for a writ of mandate directing the Board to pay them, and all others similarly situated, 10 nterest “on retroactive retirement benefits which were increased as a result of a de novo hearing before the Board of Retirement, calculated from the date of entitlement to retirement benefits to the date of payment” by the Board.   The petition does not specifically state whether traditional mandamus (Code Civ.Proc., § 1085) or administrative mandamus (Code Civ.Proc., § 1094.5) was being sought by plaintiffs;  nor did the amended petition they later filed.

On June 16, 1989, plaintiffs filed a motion for summary adjudication of issues, which the Board opposed.   The court heard the limited issue of whether plaintiffs were entitled to interest.   Saying that the petition was one for administrative mandamus under section 1094.5, the court found that plaintiffs were entitled to interest on the retroactive portions of their awards.   The court cited Austin v. Board of Retirement, supra, 209 Cal.App.3d 1528, 258 Cal.Rptr. 106 and Morcos v. Board of Retirement ^** (Cal.App.).  (The Morcos opinion was later depublished by the Supreme Court's grant of review;  now see 51 Cal.3d 924, 275 Cal.Rptr. 187, 800 P.2d 543.)   An attorney order on the motion for summary adjudication of issues was signed and filed January 26, 1990.

Next, the trial court addressed the issue of class certification.   On February 21, 1990, it declined to certify the class which plaintiffs proposed.⁴  Plaintiffs filed a motion for reconsideration of that decision but their motion was denied by minute order on July 17, 1990.   Notice of that ruling was waived by the parties.

The July 17 minute order also directed the parties to file a stipulation regarding the addition to the petition of a cause of action for declaratory relief on the issue of whether the Board would have legal authority to pay interest sua sponte on payments it makes retroactively, (i.e. the authority to grant interest at the administrative hearing level), or whether persons seeking interest on retroactive payments must seek judicial review to get interest, as plaintiffs did in the instant case.   On July 31, 1990, the trial court ruled that the Board does not have authority to award such interest.⁵  The court based its opinion on its finding that Civil Code section 3287, subdivision (a) does not apply to administrative proceedings.

Lastly, on December 21, 1990, the court heard argument on the question of what interest rate would be used by the Board in paying post-judgment interest to plaintiffs.   The trial court determined that 7 percent is the proper rate of post-judgment interest, not the 10 percent requested by plaintiffs.   (Plaintiffs were awarded prejudgment interest at the rate of 7 percent, a rate proper under May Dept. Stores Co. v. City of Los Angeles (1988) 204 Cal.App.3d 1368, 1378, 251 Cal.Rptr. 873.)

A judgment was signed and filed December 21, 1990.   Plaintiffs filed a notice of appeal on January 30, 1991 and the Board filed a notice of cross-appeal on February 11, 1991.

ISSUES PRESENTED IN THIS APPEAL

The following issues are presented by the parties in their respective appeals.

1. Whether the trial court should have certified the class proposed by plaintiffs.

2. Whether the order denying certification was an appealable order which plaintiffs failed to appeal in a timely manner.

3. Whether the petition was one for traditional mandamus or administrative mandamus.

4. Whether the trial court had authority under Civil Code section 3287 to award interest on plaintiffs' retroactive lump sum benefits when said lump sum payments resulted from administrative hearings rather than from proceedings in administrative mandamus.

5. Whether the Board itself has authority to pay interest on retroactive pension benefits when it determines, after a hearing before a referee or otherwise, that a retroactive payment should be made.

6. Whether the post-judgment interest awarded to plaintiffs, if proper, should have been at 10 percent rather than 7 percent.

7. Whether plaintiffs are entitled to attorney's fees in connection with this appeal.

DISCUSSION

1. Class Certification

 We cannot determine the merits of the order denying certification of the class because no timely appeal was taken from it.   Under Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732, the February 21, 1990 minute order denying plaintiffs class certification was an appealable order since its legal effect was to dismiss and dispose of the action and prevent further proceedings in it as to all members of the proposed class other than plaintiffs.   However, no appeal was specifically taken from the February 21, 1990 order;  rather, plaintiffs waited to January 30, 1991 to appeal from the final judgment and in that appeal they now challenge the validity of the order denying them certification.   We cannot rule on its validity because we are precluded from reviewing, in an appeal from a judgment, an order from which an appeal could have been taken but was not.  (Morrissey v. City and County of San Francisco (1977) 75 Cal.App.3d 903, 906, 142 Cal.Rptr. 527.)   That order is now final and binding on plaintiffs.  (Id. at p. 908, 142 Cal.Rptr. 527.)   Even treating plaintiffs' motion for reconsideration of the February 21, 1990 order as a motion for new trial or a motion to vacate the judgment (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1610–1611, 275 Cal.Rptr. 887) will not relieve them of their failure to ultimately appeal from said order when their motion for reconsideration was denied.

Plaintiffs' argument that the February 21, 1990 order was not effective to start the appeal time running since it was only a minute order and not in formal attorney order form is without validity.   The order regarding class certification which was reviewed by the Supreme Court in Daar v. Yellow Cab Co., supra, 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732, was also a minute order.  (Id. at p. 698, fn. 1, 63 Cal.Rptr. 724, 433 P.2d 732.)   We reject plaintiffs' contention that the Daar court neglected the directive in Code of Civil Procedure section 581d when it determined that the appeal before it was properly taken from that minute order.  Section 581d provides that “All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action․”  The Supreme Court in Daar held that an order denying certification of a class has the effect of a dismissal of that class for purposes of determining the appealability of such an order;  the court did not hold that an order denying class certification is an order of dismissal.   Thus, section 581d did not apply in Daar and it does not apply here.

Nor is there merit in plaintiffs' contention that California Rules of Court, rule 2(b)(2) applies here.   Plaintiffs base that contention on the fact that in its February 21, 1990 minute order denying class certification, the trial court directed plaintiffs to prepare a judgment for the case.  Rule 2(b)(2) provides that for the purpose of filing a timely appeal from an appealable minute order, the date of entry of said order is “the date of its entry in the permanent minutes, unless such minute order as entered expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing of the signed order.”  (Emphasis added.)   Here, the trial court did not direct plaintiffs to prepare a written order denying certification of the proposed class.   Rather, believing that the case had been heard in its entirety, the trial court directed plaintiffs to prepare a judgment disposing of the whole case.  (Ante, fn. 4.)   Thus, rule 2(b)(2) does not apply here.   Of course, it is true that if a judgment had been entered within the time allowed for filing an appeal from the order denying class certification, plaintiff could have challenged that denial by appealing from the judgment itself.   But, as noted above, no judgment was entered at that time because the parties prolonged the action by stipulating that plaintiffs could amend their petition to include a cause of action for declaratory relief and the trial court could then decide the issue raised in that new cause of action.

Lastly, it is of no consequence that the trial court reiterated in its July 31, 1990 minute order its decision to deny certification of the class.  (Ante, fn. 5.)   That minute order was simply a compilation of all previous rulings made in the case, with the addition of a ruling on the issue raised by the cause of action for declaratory relief.

2. The Court's Finding Regarding Sections 1085 and 1094.5

The trial court found that this action is one for administrative mandamus under section 1094.5 of the Code of Civil Procedure.   The Board argues this finding was erroneous.   It asserts this action is one for traditional mandamus under section 1085.  Section 1085 of the Code of Civil Procedure states in part:  “[A writ of mandamus] may be issued ․ to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station․”  According to the Board, this action “must fail because there is no duty for the Court to compel [since the Board is not required by law to pay interest to plaintiffs].”   As discussed infra, the Board is under a duty to pay interest on retroactive awards.   Thus, a petition for relief under section 1085 could properly have been granted in this case by the trial court.   Additionally, relief under section 1094.5 was also proper.

Section 1094.5, subdivision (a) states in part:  “Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury.”  (Emphasis added.)   According to the Board, section 1094.5 does not fit this case because the law does not require the Board to give a hearing and take evidence on the question of whether plaintiffs are entitled to interest.   We find the Board has unreasonably broken the whole of plaintiffs' administrative hearing into parts and examined just one part (the issue of interest) to see if it fits under section 1094.5.

 When plaintiffs sought administrative review from the Board, they were seeking (1) a finding that they were entitled to the benefits they requested, i.e., service connected benefits;  (2) prospective benefits of that nature;  (3) a lump sum of retroactive benefits for the period the Board denied them service connected benefits;  and (4) interest on the lump sum amount to make up for having been deprived of the use of that money.   When plaintiffs did not receive from the Board all they believed they were due after they prevailed in their administrative proceeding, an action for administrative mandamus was a rational, proper way of having a court determine whether the Board erred in handing down “a final administrative decision” that did not include their request for interest.   The Board's final administrative decision as to the amounts and types of monies the plaintiffs should receive (including the request for interest) was delivered at the end of a proceeding in which by law a hearing was required to be given and evidence was required to be taken.   Thus, section 1094.5 applies here.⁶

3. The Right of a Trial Court and/or the Board to Award Interest When the Board's Payment of Retroactive Lump Sum Benefits Is Made Pursuant to the Applicant's Success at the Administrative Hearing Level Rather Than Pursuant to a Section 1094.5 Action in the Trial Court

 We address issues four and five together because both concern the use of the word “damages” in Civil Code section 3287, subdivision (a) and both involve the rationale for allowing interest to be paid on unlawfully withheld pension benefits without the necessity of having a court determine an applicant's right to those pension benefits.

Section 3281 of the Civil Code defines “damages” as compensation in money for detriment suffered from another's unlawful act or omission.  Civil Code section 3287 (hereinafter “§ 3287”) sets out the circumstances under which a person may recover prejudgment interest on such damages awarded to her.   Relevant to this case is subdivision (a) of section 3287.⁷  Our Supreme Court has stated:  “Amounts recoverable as wrongfully withheld payments of salary or pensions are damages within the meaning of [the] provisions [in subdivision (a) of section 3287].  [Citations.]   Interest is recoverable on each salary or pension payment from the date it fell due.  [Citation.]”  (Olson v. Cory (1983) 35 Cal.3d 390, 402, 197 Cal.Rptr. 843, 673 P.2d 720;  and see Austin v. Board of Retirement, supra, 209 Cal.App.3d 1528, 258 Cal.Rptr. 106.)

In this appeal, the Board argues that while an applicant may be able to obtain section 3287 interest on retroactive payments which are ordered by a trial court or a reviewing court, she may not obtain such prejudgment interest when the award of retroactive benefits is given to her during the administrative appeal process.⁸  According to the Board, retroactive benefits awarded pursuant to an administrative appeal are not truly “damages” because they are not awarded in an “action,” i.e., in a lawsuit.   That position was rejected in Goldfarb v. Civil Service Com. (1990) 225 Cal.App.3d 633, 275 Cal.Rptr. 284.   In Goldfarb, the plaintiff was wrongfully demoted, and after a civil service hearing he was restored to his former position and received a backpay award.   His request for interest on said award was rejected by the defendant county and the defendant civil service commission.   Thereafter he petitioned the trial court for a peremptory writ of mandate directing defendants to pay the interest.   The Goldfarb court held that defendants had a legal duty under section 3287 to pay interest on the backpay award.  (Id. at p. 635, 275 Cal.Rptr. 284.)   The court stated:  “We see no reason ․ why [Goldfarb] should be denied interest on his backpay simply because he was vindicated in an administrative proceeding and did not have to contest his demotion in court.”  (Id. at p. 636, 275 Cal.Rptr. 284.)   The court concluded that Goldfarb's backpay award was for “damages” within the meaning of section 3287, subd. (a)'s provision for interest on damages.  (Id. at p. 634, 275 Cal.Rptr. 284.)

We can find no fault with Goldfarb's holding.   As noted above, Civil Code section 3281 defines “damages” broadly—as compensation, in money, to one who suffers detriment from the unlawful omission or act of another.   As further noted above, retroactive pension awards for benefits wrongfully withheld come within this definition.  (Olson v. Cory, supra, 35 Cal.3d at p. 402, 197 Cal.Rptr. 843, 673 P.2d 720.)   Nothing in section 3281 shows it only applies to money compensation obtained by an injured party through a lawsuit.   Nor does section 3287 on its face, limit its provisions to damages obtained in lawsuits.   Additionally, it would not be reasonable to hold that in order for a claimant to truly be made whole, she must first be unsuccessful in her administrative appeal.   We cannot support the system proposed by the Board, in which winning in the administrative appeal process means you lose the right to be made whole by the payment of interest on your backpay award.   Statutes should be construed so that reasonable, not absurd, consequences flow from the construction.  (People ex rel. Riles v. Windsor University (1977) 71 Cal.App.3d 326, 332, 139 Cal.Rptr. 378;  In re O'Neil (1977) 74 Cal.App.3d 120, 123, 141 Cal.Rptr. 338.)

The Board contends that the County Employees Retirement Law of 1937 does provide for payments of interest in certain instances and payment of interest on awards of retroactive benefits is not one of them.⁹  The thrust of this argument is that since the Legislature has seen fit to enact legislation governing interest in some situations, if the Legislature had wanted to provide for interest on retroactive payments of retirement benefits awarded during an administrative appeal process, it would have done so.   We rejected an argument with similar reasoning in Austin v. Board of Retirement, supra, 209 Cal.App.3d 1528, 258 Cal.Rptr. 106, by saying that since section 3287 already provides for interest on such damages, there would be no need for the Government Code to also provide for them.  (Id. at pp. 1532–1533, 258 Cal.Rptr. 106.)

The Board also contends that if the Legislature intended section 3287 to apply to awards given at the administrative level, the Legislature would not have needed to later enact other statutes that specifically authorize the payment of interest by administrative agencies.   Specifically, the Board refers to Labor Code section 5800 (dealing with workers' compensation) and Government Code section 21211.6 (dealing with the state employees' retirement system).   However, these statutes are not relevant here.  Labor Code section 5800 deals with post-judgment interest.  Government Code section 21211.6 sets out a specific time limit within which the state employees' retirement system must pay certain benefits and provides that failure to pay within that time limit will necessitate payment of interest.   Government Code section 21211.6 deals with a topic (setting specific time limits) not addressed by section 3287, subdivision (a).   Clearly neither Labor Code section 5800 nor Government Code section 21211.6 prevent application of Goldfarb v. Civil Service Com., supra, 225 Cal.App.3d 633, 275 Cal.Rptr. 284 to the case before us.

Lastly, the Board argues that even assuming arguendo that section 3287 applies to retroactive benefits obtained during the administrative process, “the period of time during which interest is payable would not commence until the Board completes its administrative proceedings.”   Board contends there are two bases for its position.   First, Board asserts that the right to retirement benefits does not vest until the administrative proceedings are complete and the applicant has shown she is entitled to the benefits.   Second, the Board owes a fiduciary duty to the members of the retirement association not to award benefits until an applicant's eligibility for them has been proven.

These positions are without merit.   To begin with, we rejected similar assertions in Austin v. Board of Retirement, supra, 209 Cal.App.3d at pp. 1532–1534, 258 Cal.Rptr. 106.   Additionally, it is the Board that controls the timing of the administrative process.   The employee's or survivor's benefits can be delayed through no fault of his or her own.   And while the Board is holding on to those benefits, it is receiving interest on that money.   The interest should be paid over to the employee or the survivor.

4. The Proper Rate of Post–Judgment Interest

 Code of Civil Procedure section 685.010 provides that post-judgment interest on a money judgment is 10 percent per year.  Section 685.010 is part of Division 1 of Title 9 of Part 2 of the Code of Civil Procedure.   Division 1 is entitled “Definitions and General Provisions” and Title 9 itself is entitled “Enforcement of Judgments.”   Division 2 of Title 9, discussed infra, is entitled “Enforcement of Money Judgments.”

Government Code section 970.1, subdivision (b) states:  “A judgment, whether or not final, is not enforceable under Title 9 (commencing with Section 680.010) of Part 2 of the Code of Civil Procedure but is enforceable under this article after it becomes final.” ¹⁰  Government Code section970.1 is part of Chapter 2 of Part 5 of Division 3.6 of Title 1 of the Government Code.  Division 3.6 is known as the California Tort Claims Act, and is entitled “Claims and Actions Against Public Entities and Public Employees.”  Part 5 is entitled “Payment of Claims and Judgments.”   Chapter 1 of Part 5 deals with payment of judgments against the state and Chapter 2 of Part 5 deals with payment of judgments against local public entities, such as is involved in the instant case.

In San Francisco Unified School Dist. v. San Francisco Classroom Teachers Assn. (1990) 222 Cal.App.3d 146, 272 Cal.Rptr. 38, the court held that judgments for back pay rendered against a school district were not subject to the 10 percent interest rate set out in Code of Civil Procedure section 685.010.   The court reasoned that Government Code section 970.1, subdivision (b) made that 10 percent interest rate inapplicable to the judgments, impliedly finding that subdivision (b) of section 970.1 excepts judgments against local public entities from the entirety of the provisions found in Title 9 of Part 2 of the Code of Civil Procedure, of which section 685.010 is a part.   The court held that article XV, section 1 of the California Constitution mandates that the judgments against the school district receive a 7 percent post-judgment interest rate.  Article XV, section 1 states in pertinent part:  “The rate of interest upon a judgment rendered in any court of this state shall be set by the Legislature at not more than 10 percent per annum․  [¶] In the absence of the setting of such rate by the Legislature, the rate of interest on any judgment rendered in any court of the state shall be 7 percent per annum.”

In the appeal before us, plaintiffs contend that the court's analysis in San Francisco Unified School Dist. is flawed because it failed to consider Code of Civil Procedure section 695.050.¹¹  According to plaintiffs, when section 695.050 and Government Code section 970.1, subdivision (b) are read together, it becomes clear that section 970.1, subdivision (b) has reference only to one particular division of Title 9, to wit, Division 2, (in which section 695.050 is found), a division which plaintiffs characterize as containing the “mechanisms of enforcement” of judgments.   Thus, according to plaintiffs, when Government Code section 970.1, subdivision (b) states that a judgment is “not enforceable under Title 9,” section 970.1, subdivision (b) really means the judgment is “not enforceable under those provisions of Title 9 which deal with enforcement means and mechanisms,” provisions which are located in Division 2 of Title 9.   According to plaintiffs, since the provision for 10 percent interest is located in Division 1 of Title 9, Government Code section 970.1, subdivision (b) does not prevent application of that 10 percent rate to this case.

Our review of several provisions in Title 9 of Part 2 of the Code of Civil Procedure and in Part 5 of Division 3.6 of Title 1 of the Government Code, as well as certain Law Revision Commission comments and a Senate legislative committee comment relating to those provisions, causes us to conclude that plaintiffs are correct.   To begin with, if Government Code section 970.1, subdivision (b)'s mention of Title 9 really refers to the entirety of Title 9 and not to just the “mechanisms of enforcing money judgments” found in Division 2 of Title 9, then why did the Legislature state in Code of Civil Procedure section 695.050 (which is in Division 2) that “A money judgment against a public entity is not enforceable under this division if the money judgment is subject to Chapter 1 (commencing with Section 965) of, or Article 1 (commencing with Section 970) of Chapter 2 of, Part 5 of Division 3.6 of Title 1 of the Government Code.”  (Emphasis added.)   The same question applies to Code of Civil Procedure section 683.320, which is in Title 9.  Section 683.320 states:  “This chapter does not apply to a money judgment against a public entity that is subject to Section 965.5 or 970.1 of the Government Code.”  (Emphasis added.)   By singling out a certain division and chapter in Title 9 which will not apply to money judgments against the state and local public entities, we perceive the Legislature as impliedly saying that other portions of Title 9 do apply to such judgments.   Otherwise, if the entirety of Title 9 does not apply to money judgments against local public entities (or to money judgments against the state [Gov.Code § 965.5] ), then sections 695.050 and 683.320 are superfluous.

Code of Civil Procedure section 681.010 is also worth examining on the issue of whether Government Code section 790.1, subdivision (b) precludes application of all of Title 9 of Part 2 of the Code of Civil Procedure when a person with a money judgment against a local public entity wishes to enforce that judgment.  Section 681.010 is found in Title 9.   It begins with the words “Except as otherwise provided by statute:  [¶](a) A money judgment is enforceable as provided in Division 2 [of Title 9]․”  (Emphasis added.)  (The remainder of section 681.010 provides that other types of judgments [e.g. judgments for possession or sale of real or personal property and judgments of mandate] are enforceable as provided in certain chapters of Division 3 of Title 9.)

The Law Revision Commission comment for section 681.010 states in part:  “[Section 681.010] refers to the provisions of [Title 9] that provide the means available for the enforcement of a judgment entered in this state.   The introductory clause recognizes that this title does not provide the exclusive means for enforcing all judgments entered in this state.”  (See Cal.Law Revision Com. com., 17 West's Ann.Code Civ.Proc. (1987 ed.) § 681.010, pp. 63–64, emphasis added.)   The Commission's comment cites several Civil Code and Government Code sections as examples of other statutes that provide the means for enforcement of specific types of orders and judgments, such as family law orders and judgments and, citing Government Code section 970.1, judgments against local public entities.

Since Code of Civil Procedure section 681.010 sets out the portions of Title 9 that are to be used for enforcing the various types of judgments, and since that section specifically states that money judgments are enforceable according to the provisions in Division 2 of Title 9, it is reasonable to conclude that when Government Code section 790.1, subdivision (b) directs that “judgments” (which section 970 states means money judgments) against local public entities are not enforceable under Title 9, section 970.1, subdivision (b) really means such judgments are not enforceable under the provisions for enforcement of money judgments which are contained in Division 2 of Title 9.

In view of all of the above, we conclude that the purpose of subdivision (b) of Government Code section 970.1 is not to preclude all of the portions of Title 9 of Part 2 of the Code of Civil Procedure from being used by one seeking to enforce a judgment against a local public entity.   This conclusion is bolstered by the Law Revision Commission comment to said section 970.1 and the Senate's Legislative Committee's comment to Government Code section 965.5.¹²  The comment for section 965.5 states in part:  “Subdivision (b) [of section 965.5] makes clear that execution and other remedies under the Code of Civil Procedure for the enforcement of money judgments do not apply to enforcement of a money judgment against the state or a state agency.   The effect of subdivision (b) is that no money or property belonging to, in the custody of, or owing to the state or any state agency is subject to garnishment, execution, or attachment to enforce a claim, settlement, or judgment against the state or any state agency for the payment of money.”  (See legis. committee com., 32 West's Ann.Gov.Code (1992 pocket supp.) § 965.5, 100.)

Similarly, the comment for Government Code section 970.1 states, in part:  “Subdivision (b) [of section 970.1] changes prior law to provide that execution and other remedies under the Code of Civil Procedure for enforcement of money judgments do not apply to enforcement of a money judgment against a local public entity.   Such a judgment is payable under this article, anda writ of mandate is an appropriate remedy to compel payment.”  (See Cal.Law Revision Com. com, 32 West's Ann.Gov.Code (1992 pocket supp.) § 970.1, p. 102.)   The sections following section 970.1 provide that money judgments against a local public entity are to be paid from the monies set aside by said entity in its budget, for payment of money judgments.   Section 970.2 states that a writ of mandate is the appropriate remedy to compel a local public entity to perform any act required by those provisions for payment.

In conclusion, we hold that Government Code section 970.1, subdivision (b) does not preclude application, to plaintiffs' judgments, of the provision in Code of Civil Procedure section 685.010 for post-judgment interest at the rate of 10 percent per year.

5. The Issue of Attorney's Fees on Appeal

Citing Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 275 Cal.Rptr. 187, 800 P.2d 543, plaintiffs request attorney's fees on appeal.   In Morcos, a retirement board rejected an employee's application for service connected retirement benefits and the employee sought review in the superior court under Code of Civil Procedure section 1094.5.   The trial court ruled in the employee's favor and overturned the retirement board's decision.   The court granted attorney's fees under Government Code section 31536.¹³  When the retirement board appealed the trial court's ruling, the Court of Appeal affirmed the ruling but denied the employee attorney's fees for his appellate efforts, saying that section 31536 did not authorize fees at the appellate level.   The Supreme Court disagreed.   After a grant of review, it held that section 31536 should be construed to provide for attorney's fees at both the trial and appellate levels.

 In the instant case, the Board argues that Morcos and Government Code section 31536 do not apply here because plaintiffs did not seek, in the trial court, to reverse a denial of pension benefits but rather only sought to reverse the Board's denial of interest on benefits which the Board did award them.   We disagree with the Board's conclusion.  Section 31536 provides for attorney's fees not only when the Board denies retirement or survivor's benefits but also when there has been a denial by the Board of “a claim based on a claimed pension right or benefit.”   Plaintiffs' claim for prejudgment interest was a claim based on their entitlement to lump sum retroactive benefits.   Therefore, plaintiffs may receive attorney's fees for their efforts on appeal.   The amount of the fees can be determined by the trial court upon remand of this matter.

DISPOSITION

The judgment appealed from is reversed insofar as it (1) determines and declares that the Board of Retirement of the County of Los Angeles Employees Retirement Association is without legal authority to pay prejudgment interest on retroactive lump sum disability or retirement benefits which it awards to applicants and (2) awards post-judgment interest to plaintiffs at the rate of 7 percent.   In all other respects, the judgment is affirmed.   The cause is remanded to the trial court for further proceedings consistent with the opinions expressed herein.   Costs on appeal to plaintiffs.

FOOTNOTES

1.   Subdivision (a) of Civil Code section 3287 is set out in footnote 7.

2.   Mueller requested service connected death benefits and was initially awarded an “optional death allowance.”   Rafin requested service connected disability benefits and was initially awarded non-service connected disability retirement allowance.

3.   The class described in the petition is that “composed of persons who have increased their retirement benefits from the Los Angeles County Employees Retirement Association through the Board of Retirement's de novo hearing process without going through Writ of Mandate procedures in the Superior Court.”Later in the trial court proceedings, the parties stipulated to amending this description of the class.   The class was then defined as all living persons, regardless of where they live, who received a lump sum payment or award of service connected or non-service connected disability or survivor's benefits made retroactive to, or based upon, a specified date previous to the payment or award, under the County Employees Retirement Law of 1937, from the Board, after the January 1, 1960 effective date of the 1959 amendment to Civil Code section 3287, on which interest was not paid.

FOOTNOTE.   Reporter's Note:  Review granted, Aug. 24, 1989 (5010851).

4.   Having decided the issues raised by the petition for writ of mandate—whether the plaintiffs were entitled to interest and whether the class would be certified—the trial court ordered plaintiffs' attorney, in its February 21, 1990 minute order, to prepare a judgment for the case.   However, due to other matters raised thereafter by the parties (discussed infra ), a written judgment became unnecessary at that point in time.

5.   The finding that the Board does not have authority to award interest sua sponte was made in a five-page minute order dated July 31, 1990.   The minute order begins with an introductory paragraph stating:  “This matter having been submitted for decision, the court gives Judgment, as follows.”In addition to setting out its ruling on the issue of the Board's authority to grant interest sua sponte, the order reiterated the court's January 26, 1990 decision on the petitioner's motion for summary adjudication of issues (wherein plaintiffs were awarded interest on their retroactive awards) and it also reiterated its decision denying class certification.   The minute order directs plaintiffs' attorney to prepare a formal proposed judgment.

6.   A portion of the Board's own rules suggests a section 1094.5 hearing was proper.   Part 32 of the Board's “Procedures for Disability Retirement Hearings” states:  “Code of Civil Procedure section 1094.6 has been adopted and applies to judicial review of any decision of the Board․”

7.   Civil Code section 3287, subdivision (a) states:  “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, or by the act of the creditor from paying the debt.   This section is applicable to recovery of damages and interest from any such debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state.”

8.   This issue was touched on in Tripp v. Swoap (1976) 17 Cal.3d 671, 685, fn. 14, 131 Cal.Rptr. 789, 552 P.2d 749, a case involving interest on wrongfully withheld welfare benefits.   However, the Supreme Court stated that the issue was not squarely before it and therefore it would not be addressed by the Court at that time.  (Tripp v. Swoap was overruled on another point in Frink v. Prod (1982) 31 Cal.3d 166, 180, 181 Cal.Rptr. 893, 643 P.2d 476.)

9.   Board has reference to Government Code section 31591 which provides for crediting interest on contributions to the retirement fund, and to Government Code sections 31641.2 and 31641.5, which provide that members of the retirement system who elect to “purchase” retirement service credit for prior public service must make the interest payments that would have accrued on the contributions which they use to purchase that credit.

10.   As used in Government Code section 970.1, “judgment” means a judgment for the payment of money.  (Gov.Code § 970.)

11.   Code of Civil Procedure section 695.050 states:  “A money judgment against a public entity is not enforceable under this division if the money judgment is subject to Chapter 1 (commencing with Section 965) of, or Article 1 (commencing with Section 970) of Chapter 2 of, Part 5 of Division 3.6 of Title 1 of the Government Code.”

12.   As noted above, subdivision (b) of Government Code section 965.5 is similar to subdivision (b) of Government Code section 970.1.   The former provides that money judgments against the state or a state agency are not enforceable under Title 9 of Part 2 of the Code of Civil Procedure but rather are enforceable under the provisions set out in the chapter which contains section 965.5.

13.   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 survivor's allowance based on such 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 or beneficiary of the member who successfully appealed the denial of such application.”

CROSKEY, Associate Justice.

KLEIN, P.J., and HINZ, J., concur.