Opinion
A151147
06-14-2018
CELINA KAN, Plaintiff and Appellant, v. ALAMEDA COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG16804813)
In her opening brief, plaintiff Celina Kan concedes that on January 4, 2008, her "emotional difficulties caused extensive friction within the workplace, which culminated in her termination after an altercation with a supervisor," thus bringing to an end her seven years of employment with the County of Alameda. Kan applied for disability retirement, which was denied by defendant Alameda County Employees' Retirement Association (ACERA) in August 2009. Kan's administrative challenges to both her firing and her disability denial failed, as did her ensuing attempts for mandate relief. She appealed the adverse judgment on the disability determination, which this court affirmed. (Kan v. Alameda County Employees' Retirement Assn. (June 23, 2011, A129549) [nonpub. opn.].)
Meanwhile, Kan continued to seek a favorable disability determination. On this point, and again quoting from her opening brief: "Ordinarily, a governmental employee loses the right to claim disability retirement when they are terminated from their job for cause. However, case law has established two exceptions to that rule: under Haywood v. American River Protection District (1998) 67 Cal.App.4th 1292 [(Haywood)], a terminated employee should nonetheless be granted a disability retirement when the conduct which prompted termination was the result of the employee's disability (or disabilities); and (2) under Smith v. City of Napa (2004) 120 Cal.App.4th 194 [(Smith)], a terminated employee should nonetheless be granted a disability retirement when the employee had a 'matured right' to a disability retirement before the date of the conduct giving rise to their termination." Haywood and Smith have always been at the center of Kan's efforts to get disability retirement benefits.
We now quote from the thoughtful statement of decision by the Honorable James Cramer:
"In February 2015, Kan again applied to ACERA for disability benefits on the basis that she had medical records showing that she was terminated due to her disabling medical condition. ACERA denied the application.
"On 11/4/15, the ACERA Operations Committee heard the testimony of Kan and Dr. Heim. The ACERA Operations Committee denied the application because Kan was terminated for cause and none of the exceptions applied.
"On 11/12/15, the ACERA Board reviewed that testimony and also considered additional evidence. On 11/23/16, the ACERA Board issued its decision. The Board considered whether Kan was entitled to a disability pension because her employment was terminated for a cause related to her disability (Haywood[, supra,] 67 Cal.App.4th 1292) or because she had a right to a disability retirement [that] matured before her separation from service (Smith[, supra,] 120 Cal.App.4th 194). The Board denied Kan's application, stating three grounds.
"Procedurally, the Board found that Kan could not assert the Haywood exception because she had previously litigated the reason for the termination for her employment and principles of issue preclusion (collateral estoppel) prevented her from revisiting that issue.
"Substantively, the Board found that Kan could not meet the Haywood exception because her factual argument that her employment was terminated as the result of a disability was 'too speculative and attenuated to be credible.'
"Substantively, the Board found that Kan could not meet the Smith exception because she . . . 'cannot establish that she had a valid claim/matured right to a disability retirement benefit that was thwarted by her termination.' "
Kan filed a petition for a writ of administrative mandate to set aside the ACERA Board's decision. Judge Cramer denied that relief. In his statement of decision, he stated: "Kan makes two arguments: (1) that the Board erred in giving issue preclusion (collateral estoppel) effect to prior proceedings regarding Kan's employment and requests for ACERA benefits and (2) that the Board erred in finding that Kan's disabling condition was not the cause of the conduct that resulted in the termination of her employment."
On the first issue, Judge Cramer found for Kan—"principles of issue preclusion (collateral estoppel) did not prevent Kan from revisiting the issue of the reason for the termination of her employment."
On the second issue, Judge Cramer ruled against Kan. His reasoning, in full, ran as follows:
"At the hearing on 1/9/17, the court asked for additional briefing that focused on whether Kan's anxiety was a medical disability and whether she was entitled to a disability retirement under the ACERA standard as a result of the alleged medical disability. The parties submitted supplemental briefs.
"Based on its independent review of the record, the court finds that the County did not terminate Kan's employment for a cause related to her disability.
"First, 'In carrying out this independent review . . . the trial court must afford the agency's decision a strong presumption of correctness.' (Alberda [v. Board of Retirement of Fresno County Employees' Retirement Assn. (2013) 214 Cal.App.4th 426, 433].) The ACERA Board found on 11/23/15 that Kan's factual argument that her employment was terminated as the result of her medical condition was 'too speculative and attenuated to be credible.' The court gives this finding a strong presumption of correctness.
"Second, Kan has not demonstrated that she was unable to work as a result of her disability. Kan had depression, anxiety, and panic disorder that interfered with her ability to work with others in the workplace. The medical evidence does not, however, demonstrate that Kan was unable to work. The psychiatric disability evaluation dated 3/17/04 concluded that Kan had anxiety, but indicated that her problems at work were related to her specific workplace rather than a more general inability to work. The evaluation states 'One might then wonder why she persists in remaining in a work environment in which she is so unhappy' and 'The amount of effort that she has put into documenting her position relative to management's decisions might have been better spent finding an alternative position.' Kan continued to work for several months after the incident on 1/4/08.
"Third, Kan has not demonstrated that Alameda County terminated her employment on 5/30/08 as a result of her medical condition. Kan's medical condition was depression, anxiety, and panic disorder and her symptoms included hyperventilation, chronic headaches, sleep loss, skin rash, hair loss, acid reflux, and heart palpitations. Kan's treating doctor stated on 7/9/09 that 'Her MO when challenged or threatened by authority is to panic, whereby she freezes, experiences tachycardia, has shortness of breath, hyperventilates, experiences "pins and needles" on face and hands. . . . Violence was not part of her MO.' Alameda County terminated Kan's employment due to an act of violence and not due to the symptoms of depression, anxiety, and panic disorder that she suffered on the job."
Judge Cramer concluded his statement of decision by noting that "Kan does not argue that she had a valid claim/matured right to a disability retirement benefit that was thwarted by her termination." In other words, Kan did not assert that she qualified for the Smith exception.
In this timely appeal, Kan advances three contentions. The last, which we address first, is that "remand to ACERA is required for consideration of the Smith exception." This exception allows that an employee terminated for cause may nonetheless be granted a disability retirement when the employee had a "matured right" to a disability retirement before the date of termination. However, we just quoted Judge Cramer noting that Kan did not rely on this exception. It cannot be raised for the first time on appeal: "The failure to raise an issue in the trial court in a writ proceeding waives the issue on appeal." (Fox v. State Personnel Bd. (1996) 49 Cal.App.4th 1034, 1039.) Moreover, "a judgment will not be reversed on appeal because of the failure of the lower court to grant relief . . . which it was not asked to give, that is, in effect, an error which the trial court did not make." (Buck v. Canty (1912) 162 Cal. 226, 238.)
Kan's primary contention (judging by it being the first in her brief) is stated as follows: "ACERA's decision was expressly made in reliance on unspecified employment records not provided to Ms. Kan and the resulting decision was improper and must be reversed." Kan concedes "this issue was not raised in the trial court," but she believes the "sub rosa review of unidentified records from Ms. Kan's employer" by the ACERA Board implicates due process and thus should be treated as an issue of law which, in our discretion, can be considered for the first time on appeal.
We will not excuse Kan from the waiver rule. We note that Kan's formulation of her argument is puzzling, for there is nothing in the four-page decision indicating that the ACERA Board did in fact place "express[] . . . reliance on unspecified records" in reaching its decision. The supposed proof of the claimed impropriety is a letter from ACERA's counsel to Kan's attorney. The letter is dated July 16, 2015. As recited in Judge Cramer's statement of decision quoted above, the hearing before the ACERA Board occurred four months later, in November, and a month before the Board made its decision. This span of time was more than adequate for Kan's counsel to become aware of the situation and respond.
We further note that the letter Kan sees as a smoking gun is far less damaging upon full examination of its four pages. That examination shows that the alleged "unspecified records" were almost certainly generated during the course of "the lengthy administrative appeal process before the administrative law judge and the Alameda County Civil Service Commission" concerning Kan's challenge to her termination. In these circumstances, there is considerable room for doubting whether "records from Ms. Kan's employer," that is the County of Alameda, were truly unknown to her counsel. The issue before the ACERA Board was whether Kan qualified for a disability retirement. Records from her employer concerning her employment had already been considered in other administrative proceedings (without protest by Kan, so far as shown from the record before us), and would certainly be relevant to the Board determining the employment-related issue before it. Indeed, the connection was patent, accounting for the "issue preclusion (collateral estoppel)" discussion by Judge Cramer.
Kan's final contention is: "The finding that the conduct which resulted in Ms. Kan's termination was not the result of her medical disabilities was based on irrelevant evidence and improper legal criteria." She maintains "the only relevant and probative evidence establishes that her discharge was 'the ultimate result of a disabling medical condition,' " thus bringing her within the Haywood exception.
Kan's analysis is not persuasive. Where Judge Cramer identified her mental problems as "depression, anxiety, and panic disorder," Kan expands them to include "Schizotypal and histrionic traits." But this diagnosis was actually disputed by Dr. Heim, Kan's own expert.
Kan argues "the only stated 'factual' basis for ACERA's finding of 'too attenuated and speculative to be credible' was ACERA's assertion that she should have brought the claim seven years before, in the initial challenge to her termination." This is not entirely accurate. The ACERA Board was not considering the matter de novo, it was reviewing the decision of the Operations Committee, which, as Judge Cramer noted, "heard the testimony of Kan and Dr. Heim."
Kan argues that "ACERA made absolutely no reference whatsoever to any medical evidence in reaching its decision." But Judge Cramer did refer to such evidence, evidence Kan does not address.
Kan implies that Judge Cramer exceeded his proper role when he relied on "two grounds never mentioned in the agency decision." But that is an accepted part of independent review. (E.g., Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811-812 [independent review " 'does not mean that the preliminary work performed by the administrative board . . . is wasted effort . . . the courts can and should be assisted by the findings of the board,' " but courts are entitled to reweigh the evidence]; id. at p. 818 ["the court is free to substitute its own findings after first giving due respect to the agency's findings"]; REA Enterprises v. California Coastal Zone Conservation Com. (1975) 52 Cal.App.3d 596, 613 ["the court is to exercise an independent judgment from facts elicited from the record"].) This means that Judge Cramer, like the ACERA Board, and like the Operations Committee, could disregard Dr. Heim's conclusion that Kan's "preexisting anxiety and panic disorders were manifested in the events that resulted in her termination of employment." Moreover, one of the supposedly improper grounds—Kan's ability to perform her job—is no such thing; it permeates the Haywood opinion. (See, e.g., Haywood, supra, 67 Cal.App.4th at pp.1295-1296 ["Evidence presented . . . established that . . . Hayward . . . was fully capable of performing the duties of his former job"]; id. at pp. 1296-1297 ["Disability retirement laws address only" "an employee who has become medically unable to perform his usual duties"; "They are not intended . . . as a means by which an unwilling employee can retire . . . in derogation of the obligation of faithful performance of duty"]; id. at p. 1303 ["This controversy presents the situation of an employee who . . . is capable of fully performing his former duties"].) Indeed, it is not possible to conceive of a disability retirement that has no reference to what labors the person is incapable of performing, which is why it is the statutory standard for disability retirement. (Gov. Code, § 21156.)
It was Kan's burden to establish that the ACERA's Board's decision was wrong. Judge Cramer was amply justified in concluding Kan failed to carry that burden.
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.