Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. S-1500-CV 259421, Linda S. Etienne, Judge.
Law Offices of William D. Olcott, William D. Olcott, for Plaintiff and Appellant.
Theresa A. Goldner, County Counsel, Judith M. Denny, Deputy County Counsel, for Defendant and Respondent.
OPINION
Wiseman, Acting P.J.
Last year, we reversed a writ of mandate in which the trial court had directed respondent Kern County Employees’ Retirement Association (KCERA) to award a service-connected disability retirement to appellant John H. Benedict. The court had failed to apply the independent judgment standard of review and had failed to consider KCERA’s evidence. On remand, the trial court rejected its previous conclusion and denied the writ petition. This time, it considered all the evidence and found for KCERA. It did not, however, state that it applied the independent judgment standard of review. Instead, it explained that it found the evidence supporting KCERA’s position to be substantial. Since it appears that the court has not applied the independent judgment standard of review, we feel constrained to reverse and remand.
FACTUAL AND PROCEDURAL HISTORIES
Benedict was an air quality inspector for the San Joaquin Valley Air Pollution Control District. He was placed on leave in 2000, when he was 64 years old, after experiencing episodes of forgetfulness, excessive emotional sensitivity, difficulty communicating, and trouble performing familiar work. He retired in 2001. KCERA denied his request for a service-connected disability retirement, but granted him a non-service-connected disability retirement. (Benedict v. Kern County Employees’ Retirement Ass’n (June 2, 2008, F053711) p. 2 (Benedict I).)
By the time of Benedict’s administrative appeal in 2006, several doctors had examined him and prepared reports. In 2000, Dr. Randall C. Epperson, a psychologist to whom the employer referred Benedict, made a diagnosis of dementia and found that the condition was not work related. In 2001, Dr. Bettina Harner, Benedict’s personal physician, found dementia arising from early Alzheimer’s disease and agreed that the condition was not work related. In 2002, however, Drs. Carroll M. Brodsky, Michael A. Kasman, and Claude S. Munday evaluated Benedict and found no evidence of dementia and no impairment of work functions. Finally, in 2003, Dr. Alan R. Cole found no evidence of dementia and opined that Benedict’s period of dysfunction at work was caused by a mood disorder arising from work stress. (Benedict I, supra, F053711, at pp. 2-3.)
Benedict filed a petition for a writ of mandate on October 23, 2006. (Benedict I, supra, F053711, at p. 2.) At the hearing, the trial court said to Benedict’s counsel, “So I am really trying to isolate out facts that would—I’m looking for what is there and then disregarding essentially everything that exists that is contrary to what your client is after. I’m looking for that substantial evidence that favors your client, and if I can’t find it, you lose. If I can find it and it’s substantial, then the [w]rit gets granted.” (Id. at p. 4.) In its written order, the court granted the petition on the ground that “it cannot be said that Dr. Cole’s report and opinion does not constitute substantial evidence” in support of Benedict’s position. (Id. at p. 5.)
In our opinion reversing the judgment, we explained that the court did not apply the correct standard of review. The existence of substantial evidence on the petitioner’s side is not an adequate ground for reversing the agency’s decision. Instead, after affording the agency’s decision the benefit of a presumption of correctness, the court must consider all the evidence and make its own independent finding of whether the petitioner has shown that a preponderance of that evidence is on his side. (Benedict I, supra, F053711, at p. 6)
At the hearing on remand, the court told the parties, “I have to go back and look at [the record] through a different [lens] based on the Fifth’s instructions to me as to how I was to do that.” In its written order denying the petition, it stated:
“Pursuant to the direction of the court of appeal, review of the entire administrative record was conducted.
“The opinions and conclusions of Dr. Potter, an orthopedic surgeon, were given less weight than those of Drs. Epperson, Cole and Harner.
“The opinions of Drs. Epperson and Harner clearly support the Board’s findings. Dr. Cole differs from Drs. Epperson and Harner in his conclusions with regard to petitioner’s condition. Though the opinions of Dr. Cole were considered by the court, the findings, opinions and conclusions of Drs. Harner and Epperson constitute substantial evidence which supports the Board’s determination that petitioner’s disability was not service-connected.
“The petition is denied.”
DISCUSSION
Where, as here, a trial court reviews a final administrative decision that substantially affects a fundamental vested right, the trial court both examines the administrative record for errors of law and exercises its independent judgment upon the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8 (Fukuda); Bixby v. Pierno (1971) 4 Cal.3d 130, 143; Levingston v. Retirement Board (1995) 38 Cal.App.4th 996, 1000.) In carrying out this independent review, however, the trial court must afford the agency’s decision a strong presumption of correctness and must impose upon the petitioner the burden of showing that the agency’s findings are contrary to the weight of the evidence. (Fukuda, supra, at p. 817.)
Our task is to determine whether substantial evidence in the administrative record supports the trial court’s ruling (Bixby v. Pierno, supra, 4 Cal.3d at p. 143, fn. 10), except when the appellate issue is a pure question of law. The question presented in this case—whether the trial court applied the correct standard of review—is a question of law. We review questions of law de novo. (Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 107-108.) If the trial court did not apply the correct standard of review, we have no choice but to reverse and remand to allow the trial court to reconsider the case in light of the correct standard. (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 660.)
Here, the trial court said, orally and in its written order, that it was following our instructions. It went on, however, to say that the opinions of Epperson and Harner constituted substantial evidence in support of the agency determination, implying that this was the reason the petition was denied. It appears likely, because of this, that the court applied the substantial evidence standard of review, not the independent judgment standard.
The difference between the two standards is important. In substantial evidence review, the reviewing court defers to the factual findings made below. It does not weigh the evidence presented by both parties to determine whose position is favored by a preponderance of it. Instead, it determines whether the evidence presented by the side that prevailed was substantial—or, as it is often put, whether any rational finder of fact could have made the finding that was made below. If so, the decision must stand. In independent review, by contrast, the court does not defer to the fact-finder below and accept its findings whenever substantial evidence supports them. It must weigh all the evidence for itself and make its own decision about which party’s position is supported by a preponderance of it. The question is not whether any rational fact-finder could make the finding made below, but whether the reviewing court believes the finding is actually correct. The bottom-line question for the trial court here is whether Benedict showed that his evidence outweighed KCERA’s. Unfortunately, to simply conclude that KCERA’s evidence was “substantial” does not answer this crucial question.
The presumption of correctness owed to the agency’s decision is important but does not diminish the trial court’s responsibility to weigh the evidence independently. As our Supreme Court has explained:
“[T]he presumption ‘has the effect of an admonition to the court.’ [Citation.] In other words, the presumption provides the trial court with a starting point for review—but it is only a presumption, and may be overcome. Because the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agency’s findings.” (Fukuda, supra, 20 Cal.4th at p. 818.)
KCERA argues that the court’s order is ambiguous at worst and that appellate principles require us to resolve the ambiguity in favor of the judgment. (See, e.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We do not accept this approach where there is a serious question regarding whether the trial court applied the correct standard of review. We conclude that the language in the court’s written order warrants a remand to ensure the trial court applies the independent judgment standard of review in making its decision.
DISPOSITION
The judgment denying the petition is reversed. The case is remanded to the trial court with directions to apply the independent judgment standard of review. Appellant shall recover his costs on appeal.
WE CONCUR: Gomes, J., Hill, J.