Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG-09-485745
Kline, P.J.
On November 23, 2009, appellant, Celina Kan, petitioned the Alameda County Superior Court for a peremptory writ of mandamus (Code Civ. Proc., § 1094.5) commanding respondent, the Board of the Alameda County Employees’ Retirement Association (ACERA) to accept and process her application for disability retirement benefits and grant an evidentiary hearing regarding her eligibility for such benefits. The petition was denied on May 28, 2010. Judgment was entered on June 28, 2010, and notice of this appeal was timely filed on August 26, 2010. We shall affirm the judgment.
FACTS AND PROCEEDINGS BELOW
ACERA is a public pension system organized under the County Employees Retirement Law of 1937 (Gov. Code, § 31450 et seq.) which administers retirement, disability, and death benefits for employees or former employees of Alameda County. The management of the retirement system is vested with the ACERA Board of Retirement. (Gov. Code, § 31520.) Kan became a member of ACERA in February 2001, when she was employed by Alameda County as a senior system analyst in its Information Technology Department.
On January 4, 2008, Kan was placed on administrative leave with pay, and on May 30, 2008, her employment was terminated for cause “as the result of an incident that occurred between her and her supervisor in the course of their employment” on the date she was placed on administrative leave.
The quoted statement, which is uncontradicted, appears in petitioner’s opening brief in support of her petition for writ of mandate, which is exhibit F to appellant’s appendix. Neither the brief nor anything else in the appendix reveals the nature of the “incident” that resulted in appellant’s termination. The administrative record we received from ACERA (see post, at pp. 8-9), indicates that on January 4, 2008, Kan’s immediate supervisor, Angie Pecot-Smith, asked Kan to reposition a fan that was blowing directly into her cubicle. Kan moved the fan but did not prevent it from continuing to blow air into Ms. Pecot-Smith’s cubicle. Later, Ms. Pecot-Smith’s supervisor met with Kan and directed her to eliminate the problem. When, after this meeting, Kan declined to do so, Ms. Pecot-Smith entered Kan’s cubicle, reached for the fan and said: “how about we try moving it this way?” Kan then jumped up, grabbed the fan, and pushed a coat rack in Ms. Pecot-Smith’s direction, striking her on the shoulder. Kan then pushed a chair between herself and Pecot-Smith and “physically forced” Pecot-Smith out of the cubicle. The ACERA investigator found Pecot-Smith’s description of the events of January 4th credible, and that of Kan not credible.
On September 19, 2008, Kan applied to ACERA for disability benefits. Kan’s petition alleged that the claimed disability was “due to a cumulative and disabling mental illness for which she had been undergoing treatment since 2002.” On October 28, ACERA informed Kan that her application was “administratively withdrawn” because, “without a showing that her termination was the ultimate result of a disabling condition or preemptive of an otherwise valid claim for disability retirement, her right to disability retirement was extinguished by her discharge for cause.”
The processing of disability retirement applications is governed by ACERA’s Disability Retirement Procedures (DRP), which implement Government Code sections 31450 through 31895. ACERA’s withdrawal of Kan’s application was based on DRP section 2.12, which provides that a disability retirement application “may be withdrawn at any time before the Board makes a final determination on the Completed Application, ” and that an application may be withdrawn, with or without prejudice, “[w]hen an Applicant fails to comply with these Procedures, fails to submit required documents, fails to cooperate, or fails to timely respond to requests for information” Kan’s application was withdrawn under section 2.12 of the DRP because she failed to satisfy certain minimum eligibility requirements for disability retirement set forth in DRP section 2.2. Section 2.2 states, among other things, that a member “terminated for cause... may be ineligible for disability retirement, ” for which proposition the proviso cites Haywood v. American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292, 1297 (Haywood) [“where... an employee is fired for cause and the discharge is neither the ultimate result of a disabling medical condition nor preemptive of an otherwise valid claim for disability retirement, termination of the employment relationship renders the employee ineligible for disability retirement”].)
Section 2.2 also provides that a member is ineligible for disability retirement unless “[a] Completed Application is timely filed.” This proviso cites Government Code section 31722, which declares that, with exceptions seemingly inapplicable to Kan, “[t]he application [for disability benefits] shall be made while the member is in service [or] within four months after his or her discontinuance of service....” As indicated, Kan applied for disability benefits more than four months after she was terminated for cause. It is unclear whether ACERA’s withdrawal of Kan’s application was also due to the fact that it was not “complete” within the meaning of DRP section 2.12 and/or untimely.
In a letter dated January 5, 2009, Kan claimed ACERA’s rejection of her application for disability benefits was “premature, ” because the administrative appeal of her termination for cause was still pending before the civil service commission, and ACERA could not decide the disability claim until the propriety of her termination had been finally decided. Kan claimed that at a hearing on her disability claim before the ACERA Board she would be able to show that her right to a disability retirement matured prior to her termination for cause. The letter also asked the ACERA Board “for an order to compel the Disability Unit to accept and set for hearing [her] application for disability retirement, or, alternatively, defer the rejection of her application pending the resolution of [her] appeal to the Civil Service Commission of her termination of employment for cause.”
In its opposition to Kan’s writ petition, ACERA maintained, as it does here, that Kan failed to offer any documentary evidence or make any showing of facts supporting her claim that her disability preceded her termination.
In a written response to Kan’s January 5, 2009 letter, ACERA reiterated its reasons for rejecting her application for disability benefits and explained that the rejection was without prejudice to her right to reapply for retirement benefits if her appeal of her termination succeeded. ACERA also reiterated that Kan was not entitled to any evidentiary hearing before ACERA because her application could not be deemed “complete, ” as required by section 2.12 of the DRP.
In a letter to ACERA dated March 2, 2009, Kan claimed a right to an evidentiary hearing before the ACERA Board to determine (1) whether she is incapacitated to substantially perform the essential functions of her employment, and (2) if she is so incapacitated, did her incapacity preexist the cause of her termination. ACERA responded in a letter informing Kan that she could appear at a meeting of ACERA’s Operations Committee.
Kan served ACERA a brief in support of her application for disability retirement on March 22, 2009, and orally presented her case on May 6, 2009, at a hearing before ACERA’s Operations Committee. At the close of that hearing, the Committee indicated it required further legal research and analysis of whether Kan’s failure to successfully challenge her termination would thereafter bar ACERA from accepting her application for disability retirement. In a letter to Kan’s counsel dated May 14, 2009, Marguerite M. Malloy, ACERA associate counsel, stated that ACERA’s legal department would, at the Operations Committee meeting scheduled for June 3, 2009, explain why the Committee should follow its recommendation that Kan’s application be rejected. The letter explains that ACERA attorneys had repeatedly “invited” Kan to state any facts that could reasonably be interpreted to establish either of the two exceptions set forth in Haywood to the rule that “termination extinguishes the right to disability retirement benefits, ” and that Kan “has failed to state such facts.”
The letter concludes that “Kan’s right to a disability retirement benefit has been extinguished by her termination for cause. She is ineligible for disability retirement benefits. If, based on her asserted defenses at her administrative appeal hearing on her termination, she successfully obtains an order overturning the termination, she would be entitled to reinstatement and back pay to the date of termination. In that event, if she wishes to file a disability retirement application, she can do so and the ‘effective’ filing date of the application and the ‘effective’ or commencement date of the disability retirement allowance would be determined under Cal. Gov. Code Sec. 31724.”
The letter informed Kan that if she could produce facts showing that the circumstances of her case fell within one of the exceptions to the general rule that a member terminated for cause is ineligible for disability retirement—i.e., that her termination was either (a) the result of a disabling medical condition, or (2) preemptive of an otherwise valid claim for disability retirement (Haywood, supra, 67 Cal.App.4th 1292 at p. 1307)—it would “receive her application and initiate the review/evaluation process.” Two weeks later, Kan submitted a “supplemental” pleading alleging that “her claimed disabling mental condition... was the ultimate cause of the incident leading to her termination.”
ACERA responded to this pleading in a letter dated June 5, 2009 to Kan’s attorney, George Engler, stating that Kan “should submit an application to [ACERA], ” which “will be reviewed by the ACERA Disability Unit to determine if Ms. Kan may have a right to disability retirement benefits based on claims her termination for cause was the ultimate result of a disabling medical condition, ” one of the exceptions allowing a terminated employee to receive disability benefits. (Haywood, supra, 67 Cal.App.4th 1292 at p. 1307; Smith v. City of Napa (2004) 120 Cal.App.4th 194, 205-206.) On June 19, 2009, Deputy County Counsel Raymond MacKay, who represented ACERA, sent attorney Engler a letter acknowledging Kan’s request for administrative review of ACERA’s rejection of her application for disability benefits, and assured him “that the matter is or will be on the agenda for the upcoming [meeting of the] ACERA Operations Committee.”
Neither the record nor the briefs of the parties are clear on the matter, but we assume ACERA’s “Disability Unit” consists of ACERA staff who review and process applications for disability benefits, whereas the ACERA “Operations Committee” consists of members of the ACERA Board authorized to conduct hearings at which they grant or reject such applications.
Because the Committee did not receive Kan’s application until after its June meeting, the matter was placed on the agenda of the July 16, 2009 meeting of the ACERA Board, as Kan requested. However, after Kan failed to appear at that meeting, ACERA rejected her application, as recommended by its Operations Committee. On August 25, 2009, ACERA issued a “Notice of Board Decision, ” stating that at its July 16, 2009 hearing it decided to: “Deny the appeal by Cecilia Kan of ACERA’s rejection of her application for disability retirement.”
Kan’s petition for a peremptory writ of mandate was denied by the trial court on May 28, 2010. Judgment was entered on June 28, 2010, and notice of this appeal was timely filed on August 26, 2010.
STANDARD OF REVIEW
Kan’s petition is by its own terms “pursuant to Section 1094.5 of the Code of Civil Procedure or, alternatively, under Section 1085.” Section 1094.5 is often referred to as administrative mandamus. A superior court’s review of an adjudicatory administrative decision is subject to two possible standards, depending on the nature of the rights involved. (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313; SP Star Enterprises, Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 459, 468.) If the administrative decision substantially affected a “fundamental vested right”—as appears to be the case here (see, e.g., Smith v. City of Napa, supra, 120 Cal.App.4th at p. 198)—the superior court exercises its independent judgment upon the evidence disclosed in a limited trial de novo. That is, it must both examine the administrative record for errors of law and exercise its independent judgment upon the evidence. (Code Civ. Proc., § 1094.5, subd. (c).) The theory is that abrogation of a fundamental right “is too important to the individual to relegate it to exclusive administrative extinction.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144.) However, “[i]n exercising its independent judgment, a trial court must accord a strong presumption of correctness concerning the administrative finding, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)
Code of Civil Procedure section 1085 provides that a writ of mandate “may be issued by any court to any inferior tribunal... [or] board... to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal... [or] board....” Appellant wholly fails to identify the pertinent act of ACERA “which the law specially enjoins, ” or the right to which she is entitled and unlawfully precluded by ACERA from enjoying, that she relies upon, and we deem it inappropriate for us to speculate what these may be.
The standard of appellate review is somewhat different. “Notwithstanding the nature of the right involved, appellate courts reviewing the superior court’s decision always apply a substantial evidence standard: i.e., even if the trial court exercised its independent judgment, the appellate court will not conduct an independent review of the evidence.” (Eisenberg et al, Cal. Practice Guide: Civil Appeals and Writs (2010) [¶] 8:128 (Eisenberg), citing, inter alia, Bixby v. Pierno, supra, 4 Cal.3d at p. 143 and Fukuda v. City of Angels, supra, 20 Cal.4th at p. 824.) “The substantial evidence test on appeal is applied to either the trial court judgment or the administrative decision, depending on whether the superior court exercised independent judgment or applied the substantial evidence test.” (Eisenberg, at ¶ 8:128.) Where, as here, the trial court exercised independent judgment, because a vested fundamental right is involved, the appellate court will review the record to determine whether the trial court judgment is supported by substantial evidence. (Eisenberg, at ¶ 8:128.1, citing Bixby v. Pierno, at p. 143; County of Alameda v. Board of Retirement (1988) 46 Cal.3d 902, 910; Mann v. Dept. of Motor Vehicles (1999) 76 Cal.App.4th 312, 321; accord, Smith v. City of Napa, supra, 120 Cal.App.4th at p. 198.)
DISCUSSION
Kan’s opening brief—which is unpaginated, contains no table of contents, no table of authorities, does not cite to the appellate record, and otherwise fails to comply with most of the requirements set forth in rule 8.204 of the California Rules of Court —consists of only two and one-half pages. The first two pages provide an “Introduction” and “Statement of Case”; the remaining half page presents Kan’s entire “Argument, ” which consists of the following three sentences (which refer to Kan by her first name): “CELINA’S application was timely filed following her termination for cause. The staff of ACERA, relying upon Haywood, supra, [67 Cal.App.4th 1292], rejected the application without an evidentiary hearing as to whether CELINA did have a valid disability claim that preexisted the cause of her termination or [that] the circumstances resulting in her termination were the ultimate result of a disabling mental condition. [¶] The question as to whether CELINA was eligible for and qualified to receive a disability retirement under the proscriptions of Haywood, supra, is a question of fact and law to be determined after an evidentiary administrative hearing under ACERA’s Disability Retirement Procedures and not by the staff of ACERA. (See Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037 [(Piscioneri)].)” Although ACERA’s responsive brief addresses this argument in detail, Kan filed no reply brief.
All further “rule” references are to the California Rules of Court.
Before addressing Kan’s argument, it is appropriate to point out the deficiencies of the record Kan has presented. As our Supreme Court often reiterates, error is never presumed. “ ‘ “All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown.” ’ [Citation.] As we explained in Maria P. [v. Riles (1987) 43 Cal.3d 1281]: ‘It is the burden of the party challenging [the ruling] to provide an adequate record to assess error. [Citations.]...’ [Citation.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.)
Kan did not follow the conventional course of filing a notice in the superior court designating the items to be included in the record on appeal by the clerk of the superior court, as provided in rule 8.121; nor did she seek a stipulation to use the original superior court file, as authorized by rule 8.128. Instead, informing the clerk that she was not requesting a reporter’s transcript of any oral proceeding, Kan elected to herself prepare an “appellant’s appendix, ” as authorized by rule 8.124.
Kan’s appendix consists of nine documents: the notice of appeal (exh. A); the judgment (exh. B.); the register of actions (exh. C); Kan’s petition for writ of mandate and ACERA’s answer (exhs. D and E); Kan’s opening brief in support of the petition (exh. F); ACERA’s opposition (exh. G); Kan’s reply (exh. H); and the May 28, 2010 ruling affirming the tentative denial of the petition (exh. I). Although the pleadings in support of and in opposition to the petition cite to the administrative record of the ACERA proceedings, that record is not a part of appellant’s appendix.
Rule 8.124 specifies that the record of an administrative proceeding admitted in evidence, refused, or lodged in the trial court must not be contained in the appendix, but “must be transmitted to the reviewing court [by the appellant] as specified in rule 8.123.” (Rule 8.124(b)(3)(C).) Rule 8.123 provides that where, as in this case, the record of an administrative proceeding was admitted in evidence or lodged in the superior court, the appellant’s notice designating the record “must identify the administrative record by the title and date or dates of the administrative proceedings” (rule 8.123(b)(1)), and the clerk of the superior court “must transmit the original administrative record with any clerk’s or reporter’s transcript sent to the reviewing court under rule 8.150” (rule 8.123(d)).
Though we have no responsibility to perfect an inadequate record (see, e.g., Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498-499), we directed the clerk of the Alameda County Superior Court to transmit the administrative record to this court so that we could insure that the citations to that record in the pleadings set forth in appellant’s appendix and the parties’ briefs in this court are accurate. However, the clerk of the Alameda County Superior Court informed this court that the administrative record had been lodged in Department 31 of that court but, after a diligent search, could not be found. A copy of the administrative record was, however, provided the court by counsel for ACERA.
On May 20, 2011, the clerk of the Alameda County Superior Court filed herein a certificate stating that “Appellant filed their [sic] Designation of Record on October 4, 2010, requesting for the Administrative Record to be sent to the Court of Appeal. After a thorough search, we have been unable to locate this record. Therefore, no further record will be forthcoming from this office.”
Our attempt to rectify this particular deficiency in the record is, however, in vain; because the administrative record is itself inadequate.
As the trial court noted, Kan’s chief argument is that ACERA’s withdrawal of her application and rejection of her appeal “constituted a prejudicial abuse of discretion and that it did not proceed in the manner required by law.” The trial court pointed out, however, that Kan “omitted from the administrative record crucial parts of the proceedings that would permit the court to make such a determination. Among other things, [Kan] did not include her original disability application, her employment records that ACERA reviewed in connection therewith, or a transcript of the hearing that took place on May 6, 2009.” As the trial court stated in its ruling (quoting Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354), “ ‘[i]n a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings;... otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed prejudicial abuse of discretion.’ [Citation.]”
The inadequacy of the record is hardly Kan’s only problem. As earlier indicated, her position is not that she is entitled to a disability retirement, but only that her eligibility for disability retirement benefits under the limiting criteria set forth in Haywood, supra, 67 Cal.App.4th 1292, is a factual question that can only be decided on the basis of an evidentiary hearing before ACERA on the question whether her disability predated and was the cause of the incidents that led to her termination, as she claims. ACERA has always agreed that the governing principle in this case is that set forth in Haywood.
As we have said, Haywood holds that “where, as here, an employee is fired for cause and the discharge is neither the ultimate result of a disabling medical condition nor preemptive of an otherwise valid claim for disability retirement, the termination of the employment relationship renders the employee ineligible for disability retirement regardless of whether a timely application is filed.” (Haywood, supra, 67 Cal.App.4th at p. 1307.) The ruling in Haywood and the principle for which it stands were reaffirmed in Smith v. City of Napa, supra, 120 Cal.App.4th 194, 203. As ACERA has pointed out throughout these proceedings, Kan has repeatedly failed to assert any facts bringing her within either of the two exceptions set forth in Haywood to the general rule that termination for cause renders the employee ineligible for disability retirement benefits.
Kan relies on Piscioneri, supra, 95 Cal.App.4th 1037, for the proposition that it was premature for ACERA to reject her application without a hearing. In Piscioneri, the trial court granted a writ of mandate commanding the defendant city to immediately schedule a hearing on the plaintiff firefighter’s applications for a disability retirement, ruling that the city’s claim that the plaintiff was guilty of laches should be determined at the hearing. The Court of Appeal affirmed, holding that the factual extent of the city’s responsibility for the delay had to be determined at the administrative hearing before the defense of laches could be properly sustained. The plaintiff had a fundamental vested right to disability retirement benefits if, in fact, he was disabled. Piscioneri is inapposite. First of all, the plaintiff in that case had not been terminated. Moreover, unlike the present case, the defendant in Piscioneri had accepted and denied an application for disability retirement benefits without any hearing whatsoever.
Kan’s reliance on Haywood and Piscioneri simply ignores ACERA’s main argument, and the trial court’s most significant factual finding—which is that Kan was provided the hearing she claims she was denied.
As earlier described, in June 2009, ACERA’s counsel, Raymond MacKay, sent Kan’s attorney, George Engler, a letter acknowledging Kan’s request for reconsideration of the rejection of Kan’s application for disability benefits. MacKay assured Engler “that the matter is or will be on the agenda for the [June meeting of the] ACERA Operations Committee.” Kan failed to appear at the June meeting or to otherwise produce any evidence that her disability predated her termination for cause. Kan then asked ACERA to place the matter on the agenda of its July 16, 2009 Board meeting, and it agreed to do so. It was only after Kan failed to appear before the ACERA Board that it denied Kan’s appeal of the rejection of her application.
As the trial court stated in its May 28, 2010 ruling, Kan “fails to explain why she ignored ACERA’s entreaties for her to submit a new or amended application.... For example, on May 14, 2009, ACERA’s counsel wrote to [Kan’s] counsel and stated that it had previously written to [Kan] and ‘invited her to respond by stating facts to show... her circumstance fell within one of the exceptions’ to extinguishment of her claim upon termination for cause, and she ‘failed to state such facts.’ ACERA stated that ‘[i]f Ms. Kan were to state facts reasonably supportive of one of the exceptions, ACERA would receive her application and initiate the review/evaluation process.... [Kan] failed to do so. She also failed to appear at the Board Meeting on July 16, 2009, at which ACERA’s decision to reject the application was affirmed, despite receiving notice thereof. Accordingly, [Kan] has either waived or failed to exhaust her administrative remedies with respect to the relief she is seeking in this petition.”
Kan, who filed no reply brief and waived oral argument, provides this court no reason whatsoever to set aside the findings and ruling of the trial court, and we can think of none.
DISPOSITION
For the foregoing reasons, the judgment is affirmed. Costs on appeal are awarded to ACERA.
We concur: Haerle, J., Richman, J.
The notice of disciplinary action, sent to Kan on May 16, 2008, noted that the above conduct “standing alone is grounds for termination. However, you have been counseled in the past surrounding your insubordinate and obstinate behavior.... Progressive discipline has been imposed; yet, you continue to act in an unprofessional and aggressive manner which has now escalated to physical violence against your manager as described above.”