Opinion
H031337
4-24-2008
RONALD BRATCHER, Plaintiff and Appellant, v. CITY OF SAN JOSE FEDERATED RETIREMENT SYSTEM, et al. Defendants and Respondents.
NOT TO BE PUBLISHED
I. INTRODUCTION
Appellant Ronald Bratcher, an employee of the City of San Jose, applied for a service-connected disability retirement. Respondent Board of Administration of the City of San Jose Federated Retirement System (Retirement Board) denied Bratchers application. Bratcher sought review of the Retirement Boards decision by filing a petition for a writ of mandamus in the superior court and a motion to augment the administrative record. The superior court denied the motion and remanded the matter to the Retirement Board, which held a second hearing and again denied Bratchers application. Thereafter, the superior court held a hearing on the writ petition, which the court denied after concluding that the evidence supported the Retirement Boards findings that Bratchers disability was not service connected and the City of San Jose could accommodate his work restrictions.
On appeal, Bratcher contends that the writ petition should have been granted because the Retirement Board violated his due process rights by failing to conduct a full evidentiary hearing that included the right to call and examine witnesses and to cross-examine opposing witnesses. For reasons that we will explain, we conclude that Bratcher failed to preserve the due process issue for appeal and therefore we will affirm the superior courts order denying his writ petition.
II. FACTUAL AND PROCEDURAL BACKGROUND
Prior to his employment with City of San Jose, Bratcher was employed as a peace officer for the City of Santa Cruz. He received a disability retirement from the City of Santa Cruz in 1993. In 1995, Bratcher obtained a position with City of San Jose as a code enforcement inspector. In 1997, Bratcher was injured on the job. The injury occurred when he was driving a City of San Jose vehicle that collided with a parked car while he was dialing 911 to report a fight. Due to the injuries to his neck and back, Bratcher could no longer perform site inspections and he was placed on light duty.
Bratcher applied for a service-connected disability retirement on February 11, 2003. An issue arose as to whether the Department of Planning, Building, and Code Enforcement (Department) could provide modified duty to Bratcher that accommodated the work restrictions recommended by the evaluating physicians, including the City of San Joses physician, Rajiv Das, M.D. On March 26, 2004, the Department advised the Retirement Board that it could accommodate Bratchers work restrictions in his current assignment as an office duty code enforcement inspector.
The Retirement Board held its first hearing on Bratchers application for a service-connected disability retirement on August 12, 2004. Bratcher was represented by counsel and he and his attorney both addressed the Retirement Board with respect to his contention that the Department could not accommodate his work restrictions. The Departments deputy director, Mike Hannon, was also present. He advised the Retirement Board that the Department could accommodate Bratchers work restrictions in the position of office duty code enforcement inspector, which involved handling telephone calls in the code enforcement call center. The Retirement Board also reviewed numerous medical reports and heard from Dr. Das, who stated that he had reviewed the work site and was satisfied that there were no significant risk factors for aggravating Bratchers condition. At the conclusion of the hearing, the Retirement Board voted to deny Bratchers application for a service-connected disability retirement.
Bratcher sought review of the Retirement Boards decision by filing a petition for a writ of mandamus in the superior court on September 17, 2004. In the verified petition, Bratcher stated that the Retirement Boards action was invalid under Code of Civil Procedure section 1094.5 because (1) the finding that he was not entitled to a service-connected disability constituted a prejudicial abuse of discretion since the decision was not supported by the weight of the evidence; and (2) the failure to conduct a full evidentiary hearing violated the Retirement Boards fiduciary duty and his due process rights. In his points and authorities in support of the petition, however, Bratcher limited his argument to the weight of the evidence issue. He did not include any argument in support of his claim that the Retirement Board had failed to conduct a full evidentiary hearing.
"Subdivision (b) of section 1094.5 of the Code of Civil Procedure provides that the scope of inquiry in a mandamus proceeding brought to inquire into the validity of a final administrative order shall extend to whether the respondent has proceeded without or in excess of jurisdiction, whether there was a fair trial, and whether there was any prejudicial abuse of discretion." (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 123.)
Several months after filing his writ petition, Bratcher filed a motion in the superior court on May 11, 2005, for leave to augment the administrative record with additional documents, including recent reports of his treating physician, copies of correspondence, and a transcript of a San Jose Federated Employees Retirement System Committee meeting. On June 30, 2005, the superior court issued an order denying the motion and remanding the matter to the Retirement Board, "where [Bratcher] may renew his retirement disability application."
The Retirement Board held its second hearing on Bratchers application on January 12, 2006. Bratcher was present and was again represented by counsel. The witnesses who spoke at the hearing included Bratcher, Mike Hannon, Dr. Das, and Ed Overton, the director of retirement services. Overton clarified that the issue before the Retirement Board was whether the employer could provide Bratcher with work within his medical restrictions. Bratcher did not ask to present any other witnesses and his attorney did not request cross-examination of any witnesses.
During the hearing, Bratcher told the Retirement Board that he was in pain all day at work and his physician had advised him that a potentially risky surgery was the only option for pain relief. Bratcher also disagreed with Mike Hannons representation that the Department could accommodate his work restrictions, asserting that any amount of keyboarding caused an increase in pain. Dr. Das answered the Retirement Boards questions about Bratchers disability and work restrictions. Dr. Das was uncertain that the degenerative changes in Bratchers neck were caused by his work, but he believed that the work restrictions imposed on Bratcher were adequate.
The hearing also included the argument of Bratchers attorney regarding Bratchers contention that he was entitled to a service-connected disability retirement because the Department could not accommodate all of his work restrictions, particularly the limitation on keyboarding. Mike Hannon responded with the Departments position that the Department could accommodate the keyboarding limitation and the other work restrictions in the position of office duty code enforcement inspector. In disputing the Departments position, Bratchers attorney asserted that the medical evidence showed that Bratchers work restrictions could not be accommodated.
The Retirement Board also reviewed Bratchers medical record, which included approximately 46 medical reports from Dr. Das, Bratchers treating physicians, and other physicians, as well as approximately 21 disability slips. Additionally, the Retirement Board reviewed the job descriptions for code enforcement inspectors and internal memoranda regarding Bratchers work restrictions.
At the conclusion of the hearing held on January 12, 2006, the Retirement Board voted to deny Bratchers application for a service-connected disability retirement. The Retirement Boards decision was reflected in a resolution adopted February 9, 2006, which stated that the application was denied because (1) "There is insufficient medical evidence to support a finding that [Bratchers] inability to perform the functions warranting work restrictions is work-related"; (2) "The written documentation and the testimony at the hearing show that the requirements of [Bratchers] position as an office-duty Code Enforcement Inspector II are within [his] work restrictions"; and (3) "The Department of Planning, Building and Code Enforcement can accommodate a Code Enforcement Inspector II with [Bratchers] work restrictions."
The superior court held a hearing on Bratchers petition for writ of mandamus on November 14, 2006. On January 18, 2007, the court issued its order denying the petition. In its order, the court stated, "It is noted that during this [Retirement Board] meeting there was substantial discussion of [Bratchers] restrictions as well as the accommodations that the department would make. Following this discussion, the board voted that [Bratchers] disability was not service connected and `that the requirements of [Bratchers] position as an office-duty Code Enforcement Inspector II are within [Bratchers] work restrictions. [Citation.] [¶] The court cannot reach the conclusion advanced by [Bratcher]. The evidence supports the decision of the board. Despite [Bratchers] challenge of Mr. Hannons credibility, the board accepted his representations. So does the court. The independent review of Mr. Hannons writings and statements to the board show no reason to disbelieve him."
Bratcher filed a timely notice of appeal from the superior courts order.
III. DISCUSSION
On appeal, Bratcher does not challenge the sufficiency of the evidence supporting the Retirement Boards decision to deny his application for a service-connected disability retirement. Bratcher raises only one issue: that his due process rights were violated because the Retirement Board did not conduct the full evidentiary hearing to which he is entitled.
At the outset, we observe that it is well established that "[t]he protections of procedural due process apply to administrative proceedings." (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90.) Thus, "when local boards act as judicial bodies of limited jurisdiction, even though they are not bound by technical rules of judicial procedure, they must afford the parties appearing before them a reasonably fair hearing. [Citations.]" (Id. at p. 93; Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.) This due process requirement is applicable to a hearing before a local agency retirement board. (Rogers v. Retirement Board of San Francisco City Employees Retirement System (1952) 109 Cal.App.2d 751, 758.) Accordingly, in Robinson v. Board of Retirement (1956) 140 Cal.App.2d 115, the appellate court determined that a retirement board had failed to provide procedural due process where an applicant for death benefits was not given notice of the hearing on her application and an opportunity to be heard. (Id. at p. 118.)
In his opening brief, Bratcher asserts that "a full evidentiary hearing would have allowed the proper and complete investigation of the available medical evidence, construction of the restrictions and consideration of the actual job requirements and impediments to accommodation." The Retirement Board disputes the contention that Bratcher was denied due process. Alternatively, the Retirement Board maintains that Bratcher waived his due process issue by failing to raise the issue in the superior court. Bratcher replies that he properly raised his due process claim in his writ petition and in his points and authorities in support of the writ petition, and that the superior courts reference to Code of Civil Procedure section 1094.5 in its order of January 18, 2007, constituted an acknowledgement of "the fair hearing concept."
As a general rule, our appellate review is limited to those issues that the appellant has preserved for appeal. The California Supreme Court has instructed that " `[a]n appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. [Citation.] [Italics added.] " (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; see also In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.)
Our Supreme Court has also stated that "`"[n]o procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation]" [Citation.] " (People v. Saunders (1993) 5 Cal.4th 580, 589-590.)
Thus, a partys failure to object to an error in the superior court results in a forfeiture of that claim of error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn.2.) "As many courts have noted, any other rule would permit a party to trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable." (In re Urayna L. (1999) 75 Cal.App.4th 883, 886.)
"In contrast, a waiver is the `"intentional relinquishment or abandonment of a known right." [Citations.]" (In re S.B., supra, 32 Cal.4th at p. 1293, fn.2.)
These principles have been applied to claims arising from retirement board proceedings. In Corcoran v. San Francisco City and County Employees Retirement System (1952) 114 Cal.App.2d 738, the appellant argued that he had not received a fair trial before the retirement board because he was not represented by counsel. Since the appellant raised the due process issue for the first time on appeal, the appellate court declined to consider it. (Id. at pp. 745-746.)
In the present case, after carefully reviewing the record on appeal, including the transcript of the Retirement Board hearing of January 12, 2006, and the proceedings before the superior court, we find that Bratcher failed to preserve his due process issue for appeal. The record reflects that Bratcher was represented by counsel during the hearing of January 12, 2006. The witnesses included Bratcher, Mike Hannon, Dr. Das, and Ed Overton. Neither Bratcher nor his attorney ever requested that the Retirement Board allow Bratcher to present additional witnesses or to cross-examine a witness. Bratcher also failed to object, during the proceedings before the Retirement Board, that he had not been afforded a full evidentiary hearing. Thus, even assuming that Bratcher did not receive the full evidentiary hearing to which he was entitled, Bratchers failure to object to the lack of a full evidentiary hearing, or to assert any other procedural errors, at the time of the Retirement Board hearing results in a forfeiture of his due process claim on appeal. (People v. Saunders, supra, 5 Cal.4th at pp. 589-590.)
At the trial court level, Bratcher only made the conclusory assertion in his superior court writ petition that the Retirement Boards "failure to conduct a full evidentiary hearing when a fundamental vested right is at issue, constitutes a violation of its fiduciary duty and a violation of [his] due process rights." He failed to include any argument in his points and authorities in support of the petition regarding his claim that the Board had violated his due process rights by failing to conduct a full evidentiary hearing. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [an issue unsupported by legal argument may be deemed abandoned].) Further, Bratcher failed to argue his due process issue during the hearing on his writ petition that was held on November 14, 2006. The superior court therefore did not address the issue in its ruling on the writ petition.
For these reasons, we conclude that Bratcher did not preserve for appeal the issue of whether the Retirement Board violated his due process rights by failing to conduct a full evidentiary hearing on his application for a service-connected disability retirement.
IV. DISPOSITION
The order of January 18, 2007, denying the petition for writ of mandamus is affirmed. Costs on appeal are awarded to respondents.
We concur:
MIHARA, J.
DUFFY, J.