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CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
Plaintiff and Appellant,
(Super. Ct. No. 02CS01028)
CITY OF NAPA et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Sacramento
County, Lloyd G. Connelly, Judge. Affirmed.
Law Offices of John A. Bloom, John A. Bloom and David L.
Matt for Plaintiff and Appellant.
Thomas B. Brown, City Attorney, David C. Jones, Deputy City
Attorney; Liebert Cassidy Whitmore, Richard S. Whitmore, Jack W.
Hughes; and William J. Gersten for Defendants and Respondents.
Pursuant to California Rules of Court, rule 976.1, this
opinion is certified for publication with the exception of
sections II, III and IV of the Discussion.
Defendant City of Napa (City) dismissed plaintiff Jeffrey
Smith from its fire department after he failed remedial tests of
his competency at required skills.
On the effective date of his
dismissal, he filed an application for a disability retirement.
(Gov. Code, § 21150 et seq.)1
While his disability application
was pending, the City Council affirmed the appeal of his
Defendant Board of Administration of the California
Public Employees’ Retirement System (CalPERS) eventually denied
the disability claim, citing Haywood v. American River Fire
Protection Dist. (1998) 67 Cal.App.4th 1292 (Haywood), because
the plaintiff no longer had an employment relationship with the
The plaintiff filed this petition for a writ of mandate to
direct the defendants to consider the merits of his application
for a disability retirement.
As the plaintiff failed to make a
timely request for a statement of decision, the superior court
summarily denied the petition.
In the published part of this opinion, we reject his
criticisms of the Haywood holding as dictum extraneous to
its ratio decidendi and as inconsistent with Supreme Court
We also explain an oft-repeated qualification in
Haywood that its ruling does not apply to a dismissal that
“preempts” an otherwise valid claim for disability retirement.
(67 Cal.App.4th at pp. 1297, 1306, 1307.)
Contrary to the
Further undesignated section references are to the Government
belief of the defendants, it does not refer only to a dismissal
intended to thwart a claim for disability retirement, because a
dismissal for cause cannot defeat an employee’s matured right to
a disability retirement antedating the event providing cause for
The plaintiff, however, does not qualify for
this restated exception to Haywood.
We reject the remainder of
his arguments in the unpublished portion of the Discussion.
will affirm the judgment.
STANDARD OF REVIEW
In cases such as this, involving the fundamental
vested rights of a plaintiff, the superior court exercises
independent review of the administrative record to determine
if the weight of the evidence supports the findings in the
agency decision, and a plaintiff is entitled to a statement
of decision upon timely request.
(Kazensky v. City of Merced
(1998) 65 Cal.App.4th 44, 51, 67.)
The scope of our review,
however, is limited to verifying that substantial evidence
supports the trial court’s findings.
(Id. at p. 52.)
a plaintiff fails to make a timely request for a statement
of decision, we then must infer any finding to uphold the
judgment that has substantial evidence in support in the
(Code Civ. Proc., §§ 632, 634; Hall v.
Bureau of Employment Agencies (1976) 64 Cal.App.3d 482, 496;
cf. In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 11331134 [similar rule for a failure to file objections to proposed
statement of decision].)
Contrary to the plaintiff’s apparent
belief, we may not impeach the trial court’s ultimate judgment
with its remarks at the hearing on the petition or in
announcing its ruling from the bench.
(Yarrow v. State
of California (1960) 53 Cal.2d 427, 438; In re Marriage
of Ditto (1988) 206 Cal.App.3d 643, 646-647.)
through the administrative record is therefore targeted at
the substantial evidence supporting the CalPERS decision,
which we presume the trial court sustained on independent
One other factor affects our review of the record.
plaintiff never obtained judicial review of the decision of
the City Council sustaining his dismissal.2
Contrary to the
belief of the trial court, a formal judicial ruling on the
plaintiff’s petition is not a necessary event, the absence of
which is chargeable to the defendants, nor does its absence
prevent the application of the principles of issue preclusion.
In Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235
(Knickerbocker), we held that the failure of a plaintiff to
overturn a decision of an administrative agency precludes the
plaintiff from relitigating any actual adverse determination in
a subsequent action at law.
(Id. at pp. 243, 245.)3
The plaintiff filed a petition for mandate 91 days after
the City mailed him notice of the decision affirming the appeal
of his dismissal. Thus, the allegations of the petition
demonstrated on its face that it was time-barred. (Code Civ.
Proc., § 1094.6, subd. (b).) The City notified the plaintiff
that it would not be preparing an administrative record (as
the petition was subject to dismissal), and that he had also
failed to perfect service of the petition on the City.
Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70-71,
view the present record through a filter that gives preclusive
effect to all actual determinations in the decision of the City
The plaintiff began working in the City’s fire department
In 1990, he received a partial permanent disability
rating of almost 15 percent in workers’ compensation proceedings
for an injury to his back.
In November 1999, the plaintiff settled ongoing
disciplinary charges with the City.
The settlement agreement
required him to undergo remedial training and testing on
equipment used in the course of his regular duties.
failed a test, the City dismissed him in April 2000.4
the Civil Service Commission of the City of Napa (Commission),
believing that his long tenure entitled him to a second chance,
reinstated him on the condition that he successfully complete
certification in the four areas identified in the 1999
cited Knickerbocker with approval, extending its principles even
to subsequent actions at law for employment discrimination.
(Id. at p. 65.)
After receiving a notice of impending dismissal in March
2000, the plaintiff--who had returned to full duty a month
after a July 1999 back injury without any difficulties--first
consulted with Dr. Blum for an ongoing workers’ compensation
claim based on the injury. Dr. Blum concluded that this was
a strictly subjective matter qualifying him for temporary
disability: “[t]here is no way to assess this complaint. It
is either believed or not.” The diagnosis was unchanged after
consultations in May, June, and July 2000.
settlement agreement within three months of his return to
The plaintiff returned to work on September 11, 2000,
limited to light duty because of a restriction against
lifting more than 25 pounds under the orders of Dr. Stagg
(a doctor with whom the City contracted to evaluate the
physical condition of employees, and who had also provided
treatment to the plaintiff in the past).5
The schedule for
eight certifications of the plaintiff’s skills acknowledged
that this restriction might require postponement of the final
three until further clarification of his physical status or
return to full duty.
After successfully completing five tests
during October, the plaintiff was next to undergo certification
on a ladder truck.
On October 30, the plaintiff asked to postpone the testing
process until the completion of an evaluation of his medical
status in the workers’ compensation proceedings.
He noted he
was feeling “stress” in completing tasks that he believed was
related to his physical injury.
He adverted to the possibility
In a September 12 report, while acknowledging that he had
never reviewed the “complete file,” “the records related to the
prior injuries,” “any formal medical legal reports,” or “the
report of the Qualified Medical Examiner,” Dr. Blum concluded on
the basis of his knowledge of the work of firefighters (and his
assumption that there must be a list of critical tasks similar
to the one for highway patrol officers with which he was
familiar) that the lifting restriction precluded the plaintiff
from being fit for duty. On motion of the defendants, the
CalPERS hearing officer excluded this opinion.
that he thought he would be rated as disabled in the workers’
compensation proceedings, alluding to the opinion of Dr. Blum.6
The following day, noting the certification test on the ladder
truck would not include lifting objects heavier than 25 pounds,
the operations chief denied the request for a delay as too open
ended, out of concern with the time limit in the Commission’s
The plaintiff then said he wanted to meet with
Dr. Blum before taking the certification, and the earliest
appointment was on November 2.
The operations chief again
declined to postpone the test, based on Dr. Stagg’s opinion
that the physical requirements of the certification for a
ladder truck would not exceed the restriction.
thereafter was able to get an earlier appointment.
declined to state that the plaintiff was unfit to take the test,
claiming this was in part a legal conclusion beyond his
expertise and in part a matter for a psychologist to evaluate
the claim of a physical basis for stress.
The plaintiff agreed
to take the certification “under protest and duress.”
The City, disputing the opinion of Dr. Blum, wanted an agreed
medical examiner to evaluate the plaintiff. The appointment
was for December 5, 2000. Dr. Thompson, the agreed medical
examiner, also expressed the opinion that the plaintiff could
not perform the duties of a firefighter based on his subjective
reports of pain, and thus should be eligible for vocational
rehabilitation. The City’s workers’ compensation carrier
ultimately accepted Dr. Thompson’s opinion after deposing him
in February 2001 and agreed to rehabilitation services because
the fire department did not have any permanent positions with
modifiable duties. The CalPERS hearing officer excluded
Dr. Thompson’s opinion on the motion of the defendants.
The certification required the successful completion of
all 12 components.
The plaintiff made two critical driving
First, he got out of the driver’s seat and walked
toward the rear of the truck while leaving it in reverse gear
(though the parking brake kept the truck from moving).
Hearing the backup alarm, he returned and put the truck in
Second, he ran over the curb with the right front
tire when parking on a downhill slope.
a failing grade.
The examiner issued
The examiner had never seen anyone else
make these mistakes.
The City notified the plaintiff on
December 8, 2000, that his dismissal would be effective as
of December 15.
In its decision affirming the dismissal of the plaintiff,
the Commission concluded that two medical opinions authorized
the administration of the certification on its scheduled date;
that his physical condition did not contribute to his inability
to pass the certification;8 that the plaintiff had not otherwise
shown a valid reason for a postponement of the certification;
and that the certification tasks represented the regular duties
of a firefighter under stress at the scene of a fire, thus
The plaintiff committed a similar error at the scene of a
fire in February 1999, which resulted in the truck rolling a
few feet toward a crowd of onlookers before he was able to set
the parking brake. This was among the bases for discipline
underlying the 1999 settlement agreement.
The Commission’s decision did not otherwise address any effect
of the plaintiff’s physical condition on his ability to perform
his regular duties.
“testing” stress that the plaintiff may have experienced did not
excuse his failure.
The Commission concluded there was cause to
dismiss him for inability to perform his duties.
As noted earlier, on the December 15, 2000, effective
date of his dismissal, the plaintiff filed an application
for disability retirement with CalPERS dated August 31, 2000.
CalPERS referred the matter to the City for its initial
determination of whether the plaintiff satisfied the criterion
for a disability, namely a medical condition resulting in a
substantial inability to perform his usual duties.
supra, 67 Cal.App.4th at pp. 1303-1304.)
Citing Haywood, the
City notified the plaintiff that he was ineligible for a
disability retirement as a result of his dismissal for cause
“You were terminated from
employment for reasons that were not the result of a disabling
Additionally, the termination does not
appear to be for the purpose of preventing a claim for
Therefore, under the Haywood case,
you are not eligible for disability retirement.”
The plaintiff filed an administrative appeal of the adverse
(Cal. Code Regs., tit. 2, § 555.1.)
He argued “that
his having failed the November 2, 2000[,] testing was directly
linked to his degraded performance due to his work-related low
back injury . . . :
the same back condition that is the subject
of his application for service-connected disability retirement.”
Although not framed as part of the issue of a medical basis for
his dismissal for cause, he also argued that the reports of his
treating physician were unrebutted evidence of an eligibility
for disability antedating his test failure.
The hearing officer concluded that the plaintiff failed the
test because of his test anxiety, and his “effort to attribute
his test failure to a disability is not competently or credibly
established by a preponderance of [the] evidence.”
In the view
of the hearing officer, “What emerges from a consideration of
the evidence submitted [to] this tribunal is a [claimant] who,
in an effort to establish eligibility, recharacterizes past
events to suit his goal.
The effort is not lost on this
[hearing officer] but bears little fruit and diminishes the
compelling force of [his] testimony and credibility.”
hearing officer did not make any findings on whether the
plaintiff had been eligible for a disability retirement before
failing the test, because the defendants (as we have noted
elsewhere) had successfully moved to exclude consideration of
whether his physical condition rendered him unfit for duties
other than the certification test.
On appeal to CalPERS, the
plaintiff cited the exclusion of this evidence as reversible
CalPERS adopted the hearing officer’s decision.
As the plaintiff raises this among his issues on appeal, we
have alluded to the excluded evidence in this factual summary.
Other than his misdirected effort to avoid the preclusive
effect of the Commission’s decision, the plaintiff’s 11
remaining arguments (which echo each other under their different
headings in contravention of the requirements for focused
briefing (Opdyk v. California Horse Racing Bd. (1995)
34 Cal.App.4th 1826, 1830, fn. 4)), coalesce around three
the applicability of Haywood, the trial
court’s errors in its review of the record, and the purported
failure of defendant City to fulfill its duty to apply on his
behalf for a disability retirement.
We shall treat these in
Under various headings, the plaintiff contends that Haywood
is inconsistent with the reasoning in Willens v. Commission
on Judicial Qualifications (1973) 10 Cal.3d 451 (Willens).
also contends that Haywood is an “unenacted rule of law” not
reflected in the Government Code, and is “premised on mere
Finally, he believes that Haywood is inapposite,
because he was willing to continue at his job, was disabled
before his dismissal, and submitted an application for a
disability retirement on the effective date of his dismissal.
We must first digest the holding of Haywood.
Haywood manifested an insubordinate attitude during his career,
eventually leading to his dismissal in April 1993.
prior to his dismissal, he filed a workers’ compensation claim
for psychic injuries from “excessive supervision.”
to consult with psychiatrists for depression after his
dismissal, and eventually recovered.
After his dismissal, he
applied for a disability retirement on the ground that he was
psychologically unable to work for the fire district because his
belief that it had treated him unfairly would trigger renewed
depression and render him unable to perform his duties.10
employer denied the application in March 1994.
at pp. 1295-1296, 1298-1299, 1302.)
We noted the lack of any evidence that Haywood was eligible
for a disability retirement before the dismissal, or of any
basis in a physical or mental disability for the conduct
resulting in the dismissal.
(Haywood, supra, 67 Cal.App.4th at
We concluded that the legislative intent underlying
the disability retirement laws presupposed a continuing if
abated employment relationship--the disabled annuitant can
petition to return to active service, and the employing agency
can compel testing to determine if the disability is no longer
continuing (at which point it can insist on a return to active
Therefore, if an applicant is no longer eligible for
reinstatement because of a dismissal for cause, this also
disqualifies the applicant for a disability retirement.
To interpret the statutes otherwise overrides
the power of public agencies to discipline employees, and would
reward poor employees with early retirement.
(Id. at p. 1306.)
However, he was able to work for any other fire district.
Finally, we rejected an argument that the timeliness of an
application for disability retirement is determinative of
(Id. at pp. 1306-1307.)
In the first place, our conclusion that a dismissal for
good cause unrelated to a medical disability disqualifies an
employee for a disability retirement was essential to the
dispute before us and our analysis.
Nothing about it exceeds
the necessary ratio decidendi of the case.
We therefore reject
the plaintiff’s characterization of the principle as mere
We are also unimpressed with his criticism of our holding
as an “unenacted” rule of law.
A fundamental role of the courts
is to apply legislative enactments to sets of circumstances
on the basis of the perceived intent of the legislative body.
We found our holding inherent in the structure of the statutes
governing disability retirement, and the respect we are to
accord the disciplinary powers of state agencies.
were indeed a judicial derelict on the waters of the law of
disability retirement (Crouse v. Brobeck, Phleger &
Harrison (1998) 67 Cal.App.4th 1509, 1543), the Legislature
has had five years in which to scuttle it.
The absence of
legislative action supports our belief in the propriety of
Turning to the plaintiff’s claim that Haywood conflicts
with controlling authority, nothing in Willens compels another
result, as it turns on peculiarities of the office of judge.
June 1970, the judge ran unopposed in the primary for a new term
on the San Joaquin County Superior Court starting January 1971.
The grand jury indicted him for bribery, which suspended him
automatically from office with pay pursuant to our Constitution.
A write-in candidate defeated him in the November 1970 general
election, and the judge filed for a disability retirement on
the same day before the end of his term.
the charges in June 1971.
fn. 4, 456.)
He was convicted of
(10 Cal.3d at pp. 453-454, 455,
There was substantial evidence that the judge
had physical and emotional disabilities at the time of his
application dating back to late 1969.
(Id. at p. 455.)
The Commission had denied the application on the basis of
his suspension from office.
(Id. at p. 454.)
Supreme Court held that his suspension from office under the
Constitution did not include a forfeiture of salary until his
conviction was final, and his salary included his disability
There was no basis in the judicial disability
statutes for forfeiting his benefits upon his later conviction,
and absent a clear legislative direction to that end, the
Supreme Court would not supply one.
(Id. at pp. 453, 456, 458-
The plaintiff, by contrast, was not suspended from his job
at the time he applied for a disability retirement.
his “term of office” had already ended, based on events even
further antedating his disability application.
in Willens otherwise involve the subject we took pains to
exclude from our holding in Haywood:
a party otherwise entitled
to a disability retirement before a dismissal for cause.
Willens therefore is not of any assistance to the plaintiff.
It is not a material factual distinction from Haywood that
the plaintiff desired to continue working.
the “unwilling” firefighter with an employee “unable” to perform
That was, however, only the manner in which the
facts in Haywood presented the dichotomy.
The distinction with
which we were concerned is between employees dismissed for cause
and employees unable to work because of a medical disability.
Equally immaterial is the plaintiff’s emphasis on the
filing date of his application for disability retirement.
he filed it on the effective date of his dismissal rather than
thereafter is a distinction without a difference.
As we stated
in Haywood, the timeliness of the application is a procedural
issue without any significance to the substantive entitlement to
a disability retirement.
(67 Cal.App.4th at p. 1307.)
This leaves the sole subject on which the plaintiff has
correctly interpreted Haywood in contrast with the defendants.
As earlier noted, we repeatedly cautioned that our holding would
not apply where the cause for dismissal was the result of a
disabling medical condition, or where the dismissal would be
“preemptive of an otherwise valid claim for disability
(67 Cal.App.4th at p. 1307.)
This caveat flows
from a public agency’s obligation to apply for a disability
retirement on behalf of disabled employees rather than seek to
dismiss them directly on the basis of the disability (id. at
p. 1305 [citing § 21153]) or indirectly through cause based on
the disability (Patton v. Governing Board (1978) 77 Cal.App.3d
Our use of the term “preempt” admittedly could lead
one to the interpretation that both defendants have embraced:
an intent to thwart an otherwise valid claim for disability.
However, as the plaintiff has correctly attempted to argue
throughout the CalPERS proceedings, even if an agency
dismisses an employee solely for a cause unrelated to a
disabling medical condition, this cannot result in the
forfeiture of a matured right to a pension absent express
legislative direction to that effect.
10 Cal.3d at pp. 458-459; Skaggs v. City of Los Angeles
(1954) 43 Cal.2d 497, 503-504; see Pearson v. County of Los
Angeles (1957) 49 Cal.2d 523, 543-544.)
Thus, if a plaintiff
were able to prove that the right to a disability retirement
matured before the date of the event giving cause to dismiss,
the dismissal cannot “preempt” the right to receive a disability
pension for the duration of the disability.
(See In re Gray
(1999) State Personnel Bd. Precedential Dec. No. 99-08, p. 6
[disability retirement effective before dismissal does not
forestall dismissal; however, dismissal does not affect receipt
of disability retirement].)
Conversely, “the right may be lost
upon occurrence of a condition subsequent such as lawful
termination of employment before it matures . . . .”
Retirement Board (1976) 16 Cal.3d 745, 749 (Dickey).)
The key issue is thus whether his right to a disability
retirement matured before the plaintiff’s separation from
A vested right matures when there is an unconditional
right to immediate payment.
(In re Marriage of Mueller (1977)
70 Cal.App.3d 66, 71; see In re Marriage of Brown (1976)
15 Cal.3d 838, 842.)
In the course of deciding when the
limitations period commenced in a mandate action against a
pension board, the Supreme Court noted that a duty to grant the
disability pension (i.e., the reciprocal obligation to a right
to immediate payment) did not arise at the time of the injury
itself but when the pension board determined that the employee
was no longer capable of performing his duties.
(Tyra v. Board
of Police etc. Commrs. (1948) 32 Cal.2d 666, 671-672 [“the right
has not come into existence until the commission has concluded
that the condition of disability renders retirement
In the present case, a CalPERS determination of
Neither the facts nor the briefing in the present case
require us to decide whether the event extinguishing a right to
a disability retirement is the effective date of the dismissal,
the date of the decision to dismiss the employee, or the date of
the underlying conduct giving cause for the dismissal.
Dickey pointed out that Tyra’s discussion of when the right
to disability was sufficiently mature to enforce did not apply
to the question of when the right had vested so as to entitle
the employee to the independent judgment standard of review in
a writ of administrative mandate. (16 Cal.3d at pp. 749-750,
eligibility did not antedate the unsuccessful certification on
the ladder truck.
His right to a disability retirement was thus
immature, and his dismissal for cause defeated it.
Conceivably, there may be facts under which a court,
applying principles of equity, will deem an employee’s right to
a disability retirement to be matured and thus survive a
dismissal for cause.
This case does not present facts on which
to explore the outer limits of maturity, however.
It is not as if the plaintiff had an impending ruling on a
claim for a disability pension that was delayed, through no
fault of his own, until after his dismissal.
Rather, he did not
even initiate the process until after giving cause for his
Nor, for that matter, is there undisputed evidence that the
plaintiff was eligible for a CalPERS disability retirement, such
that a favorable decision on his claim would have been a
foregone conclusion (as perhaps with a loss of limb).
the record contains medical opinions of a permanent disability
for purposes of the prior and pending workers’ compensation
But a workers’ compensation ruling is not binding on
the issue of eligibility for disability retirement because the
focus of the issues and the parties is different.
City of San Diego (1989) 214 Cal.App.3d 563, 567; Summerford v.
Board of Retirement (1977) 72 Cal.App.3d 128, 132.)
purposes of the standard for a disability retirement, the
plaintiff’s medical evidence is not unequivocal.13
defendants would have a basis for litigating whether this
evidence demonstrated a substantial inability to perform his
duties or instead showed only discomfort making it difficult to
perform his duties, which is insufficient.
(Hosford v. Board of
Administration (1978) 77 Cal.App.3d 854, 862; Mansperger v.
Public Employees’ Retirement System (1970) 6 Cal.App.3d 873,
877; In re Keck (2000) CalPERS Precedential Bd. Dec. No. 00-05,
Thus, an entitlement to a disability retirement
cannot rest on the medical evidence of the plaintiff.
As Dr. Blum noted in his initial evaluation, the basis for a
finding of disability was not the physical condition of the back
but the subjective experience of pain; while there was “a long
history of multiple complaints and prior back problems . . . ,
he has always recovered in short order previously . . . .”
On his return to work in September 2000, the plaintiff objected
to the weight restriction on his duties, telling Dr. Blum that
he could lift heavier objects. In Dr. Blum’s September 2000
opinion that the plaintiff’s condition was permanent and
precluded a return to full duty, he relied on the plaintiff’s
report that the jarring inherent in his work caused pain that
interfered with his work, but did not find a physical basis
for disability. Finally, after reviewing a videotape of
the plaintiff from the fall of 2000 in which he lifted his
young child and a small keg without apparent difficulties,
Dr. Thompson reaffirmed his opinion but noted that permanent
work preclusions might not be as severe “in that the patient
is certainly observed as having periods of time over an extended
period in which he appears to be functioning fairly normally
with respect to his back”; as he explained this in a deposition
in connection with the CalPERS proceedings, he meant that the
plaintiff “has intermittent significant episodes of back
disability. He also has an exposure to conditions which exist
in firefighting which intermittently expose him to increased
risk of the appearance of symptoms and disability. He is not
that way all of the time.”
In short, the plaintiff does not come within the exceptions
His dismissal for cause consequently extinguished
his right to a disability retirement.
The plaintiff under various headings attempts to establish
that his inability to pass his certification for the ladder
truck was the result of his physical disability.
attempts to relitigate whether there was a medical basis for the
previous incident involving a rolling fire truck that underlay
the discipline resolved in the 1999 settlement agreement.
His arguments regarding the 1999 disciplinary proceedings
are doubly barred.
His execution of the settlement agreement
limits any inquiry into the cause for his dismissal to his
compliance with the terms of that agreement, and thus any issues
underlying it are now irrelevant.
(Robison v. City of Manteca
(2000) 78 Cal.App.4th 452, 457.)
More importantly, his failure
to obtain judicial review of the administrative decision that
sustained his dismissal forecloses any challenge to the finding
that the cause for dismissal was unrelated to the plaintiff’s
(Knickerbocker, supra, 199 Cal.App.3d at
pp. 243, 245.)
The plaintiff faults the trial court for applying the
wrong burden of proof and the wrong definition of disability,
for not applying a rule of liberal interpretation, for failing
to find prejudicial error from the hearing officer’s exclusion
of the medical evidence regarding his ability to perform his
duties, and for failing to give Dr. Blum’s opinions their proper
We do not find any merit to these arguments singly or
Relying on the trial court’s remarks in the course of its
ruling from the bench, the plaintiff contends it applied too
stringent a burden of proof on the issue of whether the cause
for dismissal had its genesis in a disabling medical condition.
In the first place, we find the remark no more than a verbal
misstatement on the part of the experienced jurist, who (as the
plaintiff concedes) elsewhere correctly expressed the burden as
preponderance of the evidence.
More importantly, the issue is
not open for relitigation in the present proceedings, as we have
The plaintiff contends the trial court erred when it stated
in its oral ruling that he was not disabled if he was continuing
to work in a light-duty capacity.
However, as we have explained
at length above, the plaintiff’s light-duty status, even though
considered to be permanently disabling for purposes of workers’
compensation, does not as a matter of law establish a matured
right to disability retirement predating the cause for his
Any misapprehension on the part of the trial court
regarding the definition of disability is immaterial.
The plaintiff contends the trial court, “in deciding the
disputed issues of his case,” failed to accord him the benefit
of the rule of liberal interpretation in favor of a disability
(Haywood, supra, 67 Cal.App.4th at p. 1304.)
not provide any authority for applying a principle of statutory
interpretation to the resolution of disputed issues of fact, nor
to the legal issue of whether his right to a disability pension
We therefore reject this argument.
As we have noted at various points, the hearing officer did
not allow the plaintiff to introduce testimony or documentary
evidence from Drs. Blum and Thompson on the issue of whether he
was capable of performing his duties in the fall of 2000.14
also excluded the lay observations of another firefighter on the
The plaintiff contends the trial court improperly
applied the principles of harmless error to this exclusion of
He also contends the trial court erred in giving the
greatest credence to Dr. Blum’s report that did not find a
physical basis for postponing the test, without considering it
in the context of the other evidence.
On the question of whether the hearing officer deprived the
plaintiff of due process, the trial court’s ruling is immaterial
because it is a question of law that we review de novo, the
issue of prejudice not requiring the resolution of disputed
(Fox v. State Personnel Bd. (1996) 49 Cal.App.4th 1034,
To the extent he yet again under this heading raises the
issue of whether the cause for dismissal was the result of a
disabling condition, we ignore it for the reasons that we have
already stated passim.
We have ruled in the published portion of the opinion
that the plaintiff’s evidence adduced in his workers’
compensation claim regarding his fitness for duty did not
establish beyond challenge that he was entitled to a disability
retirement before giving cause for dismissal.
Our ruling took
into account the medical reports of both doctors and the
depositions of Dr. Thompson.
Therefore, the exclusion of this
evidence and any additional testimony from Dr. Blum or the lay
witness did not affect the outcome of the proceedings, because
the plaintiff simply does not come within the “existing
eligibility for disability retirement” exception to Haywood.
For the same reason, it does not matter what weight the trial
court may have assigned to any of the medical opinions of
Dr. Blum, as they are all immaterial.
This leaves the plaintiff’s skeletal contention that the
City disregarded its duty under section 21153:
may not separate because of disability a member otherwise
eligible to retire for disability but shall apply for disability
retirement of any member believed to be disabled[.]”
plaintiff disregards the absence of any factual predicate for
the City did not dismiss him for his disability
but for cause; there is no evidence that he was “otherwise
eligible” for disability retirement, as we have explained at
some length; and the City did not believe the plaintiff was
permanently disabled, as the record shows that the City
contested the opinions of his doctors to that effect in
the workers’ compensation proceedings.
We thus find this
The judgment is affirmed.