Richman v. Regents of the U. of Cal. CA4/1 ( 2021 )

Filed 5/20/21 Richman v. Regents of the U. of Cal. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DOUGLAS D. RICHMAN, D076965
Plaintiff and Respondent,
(Super. Ct. No. 37-2018-00010040-
v.
CU-MC-CTL)
REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Ronald F. Frazier, Judge. Reversed with directions. Request for judicial
notice denied.
Reed Smith and Raymond A. Cardozo for Defendant and Appellant.
Law Office of Michael A. Conger and Michael A. Conger for Plaintiff
and Respondent.
For over 42 years, Douglas D. Richman, M.D. worked under a joint
appointment as a Veterans Administration San Diego Healthcare System
(VA) staff physician and also a member of the faculty at the University of
California San Diego School of Medicine (UCSD). At retirement he received a
VA pension based on 47 years of service credit, plus a University of California
Retirement Plan (UCRP) pension based on 14.22 years of service credit.1
In this declaratory relief action against the Regents of the University of
California (Regents), Richman asserted he was entitled to an additional 20
years of UCRP service credit. After a bench trial, the superior court agreed
and entered a judgment that Richman is “entitled to a total of 34.403 years of
Service Credit.”
The upshot of the judgment is that between the VA and the University
of California (UC), Richman has 76.5 years of service credit for 42.5 years of
employment. The Regents appeal, asserting the court erred as a matter of
law in interpreting the UCRP and, in any event, Richman’s claims are time-
barred.
As we explain, the case is best analyzed in two parts. Part 1 involves
the period from July 1976 (Richmond’s date of hire) to 1992, when a UCRP
policy change with respect to faculty like Richman—holding a joint VA and
UC appointment—became effective. The primary issue for this period is
whether Richman qualified as an “Eligible Employee” under the UCRP.
Contrary to the trial court’s determination, on de novo review we conclude he
was not an Eligible Employee because he lacked the requisite 50 percent or
more university appointment during this period.
1 Unless otherwise specified, all references to the UCRP are to the April
1976 version.
2
Part 2 involves the period from 1992 to 2019. Eligibility is not in issue.
Rather, the question is whether Richman earned “Covered Compensation”
and if so, the amount each year. The trial court interpreted the UCRP to
provide that all of Richman’s university compensation was Covered
Compensation. Again, on de novo review we conclude otherwise.
Accordingly, we will reverse the judgment with directions to enter
judgment in favor of the Regents, making it unnecessary to consider whether
Richman’s claims are time-barred.
FACTUAL AND PROCEDURAL BACKGROUND
A. Richman’s Joint VA and UC Appointments
The VA hospital is located on UCSD property. Beginning in the mid-
1970’s, the VA and UCSD embarked on something akin to a joint venture.
The VA paid the salary of some UCSD medical school faculty. That faculty,
in turn, provided patient care at the VA hospital, and used that clinical
setting to train medical students. This became a nationwide “model” for
cooperation between the VA and a medical school, what one witness
characterized as a “win/win for both.”
In June 1976, UCSD medical school had two open faculty positions.
One was designated a “VA slot”; the other, a “university slot.” Richman was
then working in Boston, completing his training in infectious diseases. He
had previously worked as a U.S. public health officer, where he accrued civil
service retirement service credit. UC successfully recruited him and placed
him in the VA slot.
Richman’s joint VA/UC appointment is memorialized in two documents.
The first, dated June 7, 1976, is from the VA—a “full time appointment” as a
VA “staff physician, Laboratory Services” with an annual $31,309 salary at
“Chief Grade, Step 1.” The second, issued a week later, is from UCSD—an
3
appointment as “Assistant Professor of Pathology and Medicine in Residence”
and “member of the faculty of the School of Medicine.” (Italics added in first
quote.) The UC appointment was “concurrent with [the] appointment at the
Veterans Administration Hospital at Chief Grade 1.”
Richman did not know what “in Residence,” meant—but he asked. He
was told that “in residence” means his “primary salary” would come from a
source other than state funds. In Richman’s case, initially that source was
the VA.2 But by the early 1980’s, “every penny of [his] university salary”
came from the National Institutes of Health (NIH) grants that Richman
generated.
Throughout his 42 years as a faculty member, Richman’s salary was
never paid using state funds. But that did not affect his opportunities for
advancement. Apart from the funding source for salary, the criteria for
appointment and advancement are the same for “in residence” faculty as for
“ladder rank or tenured track.”
B. The UCSD Clinical Department Compensation Plan
In 1972, the Regents adopted a Clinical Departments Compensation
and Incentive plan (Compensation Plan) for UCSD medical school faculty.
Participation in the Compensation Plan was “mandatory for all eligible
faculty.” Eligible faculty included those, like Richman, who had patient-care
responsibility at an “affiliated hospital” (such as the VA) and who
concurrently held a faculty appointment. Thus, Richman was in the
Compensation Plan throughout his UC employment.
2 The record is a bit unclear about the mechanics of this arrangement.
There is some evidence that at least initially, the VA transferred funds to the
university, which in turn used those funds to pay Richman.
4
As summarized in the table below, the Compensation Plan is comprised
of three distinct components: (1) base salary, which the university designates
“X”; (2) additional compensation, “Y”; and (3) incentive compensation, “Z.”
Designation Type of Compensation
X Base salary for teaching and university service. The
amount is set by academic rank (e.g., “assistant professor”)
and step (e.g., “Step II”) and applies across the UC system.
Y Additional salary. A negotiated salary component based
upon money the faculty member generates through, for
example, grants.
Z Incentive compensation. Income generated by
physician-faculty members, usually from treating patients.
Faculty who are not “clinically active” cannot earn Z.
In 1992, an additional compensation category was added, designated X
Prime (X′), which is a multiplier of X and results in additional base salary. In
1996, another multiplier was added, designated Y Prime (Y′).
To resolve this case it is unnecessary to explore the complexities arising
from this type of compensation system—one that Richman characterizes as
“Byzantine.” Rather, the appeal turns on answering these questions:
(1) which of these compensation elements did Richman receive;
(2) when did he receive them; and
(3) which of these, if any, are “Covered Compensation” within the
meaning of the UCRP.
But before answering these questions, a further discussion of
Richman’s joint VA/UC appointment is necessary to place these issues in
fuller context.
5
C. Richman’s 1976 UC Appointment
Richman’s 1976 UCSD appointment letter states he would be “salaried
100% time by the Veterans Administration” and may also earn Z
compensation as described in the Compensation Plan. According to the
letter, the Compensation Plan was enclosed, but Richman testified he did not
recall receiving it. In any event, whether enclosed or not, he never looked at
it and claimed he “didn’t know what base salary was.”
The UC appointment letter says nothing about university-funded base
salary (X compensation). The only type of university compensation
mentioned is Z (i.e., clinical income).
At the time, Richman did not know what Z compensation was, and he
did not ask. He knew he would be getting “a VA base salary,” and it never
“crossed [his] mind” that he would not be receiving a university base salary.
Richman explained, “I hate to sound naïve, but I was just happy to be doing
what I wanted to do and didn’t ask questions about retirement or
compensation.”3
Richman’s UC appointment letter also says nothing about the UCRP.
Nor did anyone associated with the university discuss retirement with him.
During interviews, Richman was told he would be eligible for a VA pension
and receive “the same benefits and privileges of any faculty member at the
university.” According to Richman, it was not until 2011 that “people started
getting informed” about the UCRP.
3 From 1976 to about 1980, Richman received Z compensation. He
testified that by the early 1980’s, he no longer received Z income and “all” of
his UC compensation came from NIH grants.
6
As will be evident, the extent of Richman’s UC appointment, expressed
as a percentage, determines UCRP eligibility. His UCSD appointment letter
does not refer to any percentage with respect to the university. The only
percentage stated is for the VA—at 100 percent.
For faculty holding joint VA/UC appointments, the university
designates the extent of the VA appointment as a fraction. The denominator
is always eight—presumably representing eight hours of an ordinary working
day. For example, a 50 percent VA appointment is considered a four-eighths
VA appointment. Richman’s 100 percent VA appointment was designated
eight-eighths. He held this eight-eighths VA appointment continuously
throughout his 42-year career.
D. The UCRP
The parties stipulated that the April 1976 version of the UCRP, also
called the Standing Order, was in effect at the time of Richman’s hire.
Because it is promulgated by the Regents, it has the force and effect of a
statute. Under the UCRP, only plan “Members” who have “Credited Service”
receive retirement benefits. Each of these terms is further described below.
1. Eligible Employee
To be a plan “Member,” a UC employee must be an “Eligible Employee.”
Paragraph 2.15(i) of the UCRP (hereafter, Paragraph 2.15(i)) defines “Eligible
Employee” as an employee of the Regents or university who “[i]s appointed to
work 50% time or more” for a specified time period. (Italics added in second
quote.)
Once a person becomes an Eligible Employee, “he [or she] shall
continue to be a Member notwithstanding any change in the nature of his [or
her] appointment unless there is a Break in Service.” In other words, “once
in the retirement system, you are always in it.”
7
2. “Covered Compensation”
An Eligible Employee earns “Credited Service” only from “Covered
Compensation.” “Covered Compensation” is “the total monthly remuneration
which a Member receives from the University for his [or her] regular and
normal appointment” but excludes “[r]emuneration which exceeds 100% of
the salary . . . for the position to which a Member has been appointed.”
E. Richman’s UCSD Appointment, 1976‒1992
Gregory Ricks is employed in the university’s Retirement
Administration Service Center. He testified that prior to 1992, UCSD
medical school faculty with joint VA/UC appointments could have a
maximum total appointment between the two institutions of 100 percent.
For example, a faculty member with a five-eighths VA appointment would by
definition have a three-eighths university appointment.
Because Richman had an eight-eighths, or 100 percent VA
appointment—for the period 1976 to 1992—the university determined he
necessarily had a zero percent university appointment. As a result, the
Regents concluded Richman was not an “Eligible Employee” under Paragraph
2.15(i), and earned no service credit for this period.
This determination is reflected in UC payroll forms. For example, a
1977 “personnel action form,” an excerpt of which is copied below, states “VA
appt: Chief Grade Step I, 8/8 time.” It also indicates Richman may receive Z
compensation “subj[ect] to avail[able] funds,” but has no X compensation.
8
It is important to understand that for a UCSD medical school faculty
member holding a joint VA appointment, the percentage of his or her UC
appointment is an accounting issue—not a measure or reflection of the time
the faculty member spends doing UC work. As noted, pre-1992 a faculty
member holding a joint VA/UC appointment at three-eighths VA would
always have a five-eighths (or 62.5 percent) UC appointment, regardless of
his or her actual time spent doing university work. As explained by David
Bailey, the former chair of Richman’s pathology department:
“[T]he appointment at the university could be zero percent
time. . . . One is teaching, one is doing research at the
university, and one can do that at zero percent time.”
Richman’s career well illustrates this distinction between percentage
appointment and actual work hours. According to the university, pre-1992
Richman held a zero percent UC appointment. Yet in the spring quarter of
1977, for example, he spent 137 hours teaching. In Winter 1979, that
increased to 230 hours. Over two quarters in 1983, Richman spent 476 hours
teaching as well as significant time in research. Richman testified that until
5 or 10 years before retirement, he worked approximately 80 hours per week,
60 of which was for the university.
Richman is “one of the most eminent scholars in the world.” His UC
work generated millions of dollars in grants for the university, and he made
major contributions in the study and treatment of HIV/AIDS. He authored
more than 700 articles and is an editor or coeditor of major textbooks. The
university has recognized Richman for “extraordinary achievement” and
“sustained excellence in teaching and service.” In 2009, the university
awarded him its highest academic rank, Distinguished Professor.
If entitlement to UCRP benefits was based on hours worked, professional
accolades, and outstanding achievement, this would be an easy case to affirm.
9
But under the UCRP, it is one’s university appointment, not hours spent
doing UC work and professional stature that determines eligibility. And only
earnings that are “Covered Compensation” yield service credit.
The California Constitution grants the Regents broad powers to
organize and govern the university, including the “ ‘paramount constitutional
authority . . . to craft its employee benefits, regarding which [t]he Regents is
entitled to independent value and deference from this Court.’ ” (Jacobs v.
Regents of the University of California (2017) 13 Cal.App.5th 17, 24‒25
(Jacobs).) Accordingly, as the parties stipulated, the UCRP has the force and
effect of statute. (Id. at p. 21.) Our analysis is, therefore, governed by
established principles of statutory interpretation, and not what we may
believe Richman fairly deserves for his extraordinary work, or our views on
the wisdom of the UCRP as applied to him. (PGA West Residential Assn., Inc.
v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 188, fn. 26 [whether the
policy behind a statute “ ‘is desirable or wise is not our duty to decide; our
role is to construe the statute as enacted”].)
Contrary to the Regents position that he held a zero percent UC
appointment from 1976 to 1992, Richman asserts that starting in 1976 he
held a 100 percent university appointment. He bases this contention mostly
on documents in his UC personnel file indicating “100% time.” He asserted
these documents “could fairly be interpreted to say that [his] UC academic
appointment . . . is for 100 percent of the time.” One of these documents is
copied below, and more are contained later in this opinion:
10
F. The 1992 Policy Change
In 1992, the university changed its policy to enable UCSD medical
school faculty holding joint VA appointments—even those like Richman with
100 percent VA appointments—to become “Eligible Employees” under the
UCRP. This is documented in a memorandum entitled, “Health Sciences
Faculty With Split Appointments.”
First, the memorandum summarizes the then-existing policy, under
which a faculty member with a five-eighths or greater VA appointment is
ineligible under the UCRP:
“Membership in the [UCRP] requires an appointment of at
least 50% time for a year or longer. Many . . . faculty hold
joint appointments between the University . . . and
affiliated hospitals, such as the Veterans’ Administration
(VA). Historically, their University appointment percentage
and their VA appointment would equal 100%. In most
cases, the VA appointment was 5/8 time or greater, by
11
definition making the University appointment 3/8 time [or
less]. Therefore, many UC/VA joint appointees were not
eligible for UCRP membership.” (Italics added.)
Second, the memorandum recognizes that “this treatment created
inequities”:
“For instance, it was possible for two [medical school]
faculty members . . . earning similar pay, to be coded
differently with respect to UCRP membership. The faculty
member without the VA appointment could be a UCRP
member if she/he held an appointment of 50% time or
greater. However, the other faculty member who had a joint
UC/VA appointment would not be a UCRP member
regardless of the amount of time actually worked at UC or
the size of the salary, unless his/her VA appointment was
4/8 time or less.” (Italics added.)
Third, the memorandum explains a change to remedy the inequity:
“Given the unique arrangement of these split
appointments, and to provide consistent treatment of
employees, the following methodology has been approved:
Regardless of the VA appointment, the UC appointment
percentage will be determined by the ratio of UC-paid
compensation to the full-time base professorial salary for
the applicable rank and step. If the ratio is 50% or greater
and the appointment is for a year or longer, then the
faculty member will become a member of UCRP and earn
service credit in proportion to the appointment percentage.”
Ricks testified that under this 1992 policy, the university would “take
the actual [university] pay of the individual, divided by the pay for the actual
position, and come up with a . . . percentage, and then based on that
percentage, if it’s 50 percent or more, then that person would be eligible”
under the UCRP. An example of how this works is contained in a 1992 letter
authored by Ronald W. Brady, the university’s senior vice president of
administration, who wrote:
12
“[T]he following sets forth a simple example of policy.
“Published Professorial Grade 3 base salary = $50,000.
“If Professor X, Grade 3, is paid $25,000 by UC (which must
be . . . coded as base compensation and remitted through
UC payroll), Professor X is then considered ‘50% time’ and
is a UCRP member . . . . UCRP service is credited
proportionally at 50% . . . . Income from other employers or
‘Y’ or ‘Z’ earnings do not comprise base compensation for
benefit eligibility purposes and such income does not
influence eligibility for UCRP.” (Italics added.)
“If Professor X UC-paid base salary subsequently drops to
$12,500, UCRP service credit would then be prospectively
calculated at 25%.”
In 1998, this policy was “further refined” in guidelines that established
a maximum 150 percent combined joint UC/VA appointment. Bailey
explained at trial, “So one could be 8/8ths or 100 percent VA and up to 50
percent of the university, or vice versa, 100 percent at the university and 50
percent at the VA.”
As a result of this change, post-1992 Richman began participating in
the UCRP, notwithstanding his 100 percent VA appointment. In 2004, for
example, Richman’s X compensation was 50 percent of the full-time base
salary ($315,000) for his position. He was, therefore, an “Eligible Employee”
under Paragraph 2.15(i). This is reflected in this June 2004 university
“salary proposal” he received showing a 50 percent university appointment
together with an “8/8ths” or 100 percent VA appointment:4
4 As reflected in this document, Richman’s “Gross UC Pay” of $165,396 is
the sum of X (base salary) and X Prime. Under the 1992 change in policy,
only the X component (here, 50 percent of $315,570, or $157,785) is used in
determining UCRP eligibility.
13
After an audit in 2003, the university discovered that it failed to
correctly implement this 1992 policy. The university retroactively credited
Richman with an additional 5.807 service credits, representing a 50 percent
UC appointment for the period 1992 to 2003. Based on the policy change
allowing for up to 150 percent joint VA/UC appointments, ultimately the
university credited Richman with 14.2177 service credits.5
G. Litigation
In 2015, a UCSD medical school faculty member contacted Richman
stating, “we are looking for several poster children to ‘test’ the system and
determine whether split-funded faculty (mainly based at the VA) are getting
a fair shake.” Richman stated, “I would be glad to serve as a poster boy.” In
2018 Richman filed a superior court complaint containing a single cause of
action for declaratory relief alleging “all years of his employment at the
University should be included in his pension calculation.” Richman had not
5 In his brief, Richman argues that the 1992 memorandum has “no
impact on the rules” governing Richman’s UC retirement benefits. If that
were true, Richman would have zero service credits, not the 14.22 the
Regents determine he had earned.
14
yet retired, but sought a judicial determination “regarding his entitlement to
the UCRP pension . . . so that he can make retirement plans.” While this
litigation was pending, Richman retired and elected to receive a monthly
$5,871.94 UCRP payment (net of taxes).
After a bench trial, the court issued a statement of decision. It
determined that Richman’s “initial appointment” as a UCSD assistant
professor was “a one-hundred percent (100%) appointment” and that he
“spent the vast majority of his career working for the University, not the
Veteran’s Administration.” The court ruled that Richman became an Eligible
Employee “upon the commencement of his employment on July 1, 1976”
because the eligibility provisions “have nothing to do with whether an
employee works elsewhere, such as at the VA.”
The Regents introduced into evidence Richman’s payroll records
showing a distinction between his gross UC pay and amounts the Regents
considered to be “Covered Compensation.” For some years, the difference was
substantial. For example, in 2018, Richman’s gross UC pay was $246,189.12.
But his Covered Compensation was $151,545.78.
Nevertheless, the trial court further determined that Richman’s gross
UC pay, as reflected in “his W-2 records of earnings from the University”
constituted “Covered Compensation.” In so holding, the trial court refused to
apply the Compensation Plan (which states that only base salary is covered
compensation), determining it created an irreconcilable conflict with the
UCRP. It ultimately concluded, “Under the unambiguous provisions of the
UCRP, Dr. Richman had a right to earn a pension from his first day of UCSD
employment.” Moreover, to the extent there was any “doubt,” the court
resolved it in Richman’s favor on the grounds that pension laws are to be
15
liberally construed in favor of the pensioner and under Civil Code section
1654, ambiguities in a contract are resolved against the drafter.
After rejecting the Regents’ statute-of-limitations and laches defenses,
the court entered judgment determining that Richman is entitled to the
UCRP pension based on all of his years of UCSD employment from July 1,
1976 to April 1, 2019—a total of 34.403 years of service credit.6
DISCUSSION
Part 1: 1976 through 1992
A. As a Matter of Law, Richman was Not an “Eligible Employee” Until 1992.
“The Regents established the UCRP through its constitutional
authority to do so. As our Supreme Court has recognized: ‘Article IX, section
9 [of the California Constitution], grants the [R]egents broad powers to
organize and govern the university . . . . “ ‘[The] power of the Regents to
operate, control, and administer the University is virtually exclusive.’ ” ’ ”
(Jacobs, supra, 13 Cal.App.5th at p. 24.) “The UCRP is the Regents’ plan for
certain employment benefits to University employees, including . . .
retirement benefits. Since the UCRP was adopted pursuant to the Regents’
constitutional power, it has the force of statute.” (Id. at p. 21.)
Under Paragraph 2.15(i), an Eligible Employee is one who is
“appointed to work 50% time or more” for a specified duration (e.g., for one
year or longer). . Because there is no dispute that Richman’s 1976 UC
appointment was for more than one year, the eligibility question here turns
on whether he met the 50 percent appointment criteria.
6 The court also determined that employee contributions should be
deducted from the pension along with interest.
16
Focusing on the period 1976 to 1992, the Regents contend that as a
matter of law Richman had a zero percent UC appointment. The argument is
logical and straightforward:
1. In 1976, a faculty member holding a joint VA/UC
appointment would have a total 100 percent appointment
between the two entities.
2. Richman’s had an eight-eighths, or 100 percent VA
appointment, as documented in his appointment letter.
3. Therefore, Richman had a zero percent UC appointment.
Thus, the Regents argue, until the 1992 policy change allowing for up
to a 150 percent VA/UC appointment, Richman was not an Eligible Employee
under Paragraph 2.15(i). Moreover, that Richman actually worked a
substantial amount of time for the university is, in the Regents’ view,
irrelevant under Paragraph 2.15(i) because eligibility is defined by his
percentage of appointment, not time actually worked.
Because the UCRP has the force and effect of a statute, we
independently review the trial court’s interpretation of the relevant
provisions. (See Christensen v. Lightbourne (2019) 7 Cal.5th 761, 771
[statutory interpretation is de novo review].) Paragraph 2.15 states:
“Eligible Employee means an officer or employee of The
Regents who:” [¶] . . . [¶]
“(i) Is appointed to work 50% time or more on a fixed
percent of time basis for an indefinite period, for a definite
period of one year or longer, or for a shorter definite period
with the reasonable prospect of renewal or extension by the
Governing Board . . . .” (Italics added.)
“ ‘The fundamental purpose of statutory interpretation is to ascertain
the intent’ of the legislative body that adopted the enactment.” (Boshernitsan
v. Bach (2021) 61 Cal.App.5th 883, 892.) Here, the “legislative body” is the
Regents. The plain meaning of the words themselves generally provides the
17
most reliable indicator of intent. (See Subaru of America, Inc. v. Putnam
Automotive, Inc. (2021) 60 Cal.App.5th 829, 836.) “[E]ach word and phrase
should be given significance” (Kaplan v. Fairway Oaks Homeowners Ass’n
(2002) 98 Cal.App.4th 715, 719), and is presumed to “ ‘perform a useful
function.’ ” (Anderson Union High School Dist. v. Shasta Secondary Home
School (2016) 4 Cal.App.5th 262, 278.)
Under Paragraph 2.15(i), eligibility is based on the employee’s 50
percent or greater appointment to work (“appointed to work 50% time or
more”). Eligibility is not determined by the number of hours actually worked.
The trial court erred in interpreting Paragraph 2.15(i) to mean that Richman
is an Eligible Employee in part because he “spent the vast majority of his
career working for the university.” That interpretation is possible only by
deleting “appointed to work” and rewriting Paragraph 2.15(i) to provide that
an eligible employee is one who “works 50% time or more.” The court’s role
“is to ascertain the meaning of the words used, ‘ “not to insert what has been
omitted” ’ or otherwise rewrite the law to conform to an intention that has not
been expressed.” (Salawy v. Ocean Towers Housing Corp. (2004) 121
Cal.App.4th 664, 674.)
The evidence also leaves no room for an interpretation other than
Richman received a 100 percent VA appointment, not a 100 percent UC
appointment. His UC appointment letter states he will be “salaried 100%
time by the Veterans Administration.” This is an eight-eighths VA
appointment. At trial, even Richman acknowledged this was a 100 percent
VA appointment:
“Q: And your appointment at the VA was 8/8ths[,] correct?
“A: Yes, 40 hours.
“Q: And that was a 100 percent appointment[,] right?
18
“A: Yes.
“Q: And that lasted the entire time that you were
employed by the university, correct?
“A: Yes.
“Q: And based on this letter, you were informed that you
would be, quote, salaried 100 percent time by the Veterans
Administration[,] right?” [¶] . . . [¶]
“A: That’s what it says, yes.
“Q: And by salaried 100 percent time, you understood that
you would be getting a full-time salary from the VA[,]
correct?
“A: Yes.
“Q: And that you would be getting a supplemental amount
of compensation from the university[,] right?
“A: Yes.”
It is true, as Richman points out, that his UC appointment letter also
acknowledges an “appointment as Assistant Professor” in the medical school.
But whereas the letter noted a 100 percent VA appointment, it states nothing
about the percentage of UC appointment, or that Richman would be eligible
under the UCRP. Richman’s testimony concedes these points:
“Q: Now, the letter doesn’t reference any specific
percentage appointment at the university, does it?
“A: No.
“Q: And the only percentage appointment that’s listed in
there is for the VA[,] correct?
“A: Yes. That’s a hundred percent time.” [¶] . . . [¶]
“Q: And the offer letter that we’re looking at, there was no
mention of any pension or retirement plan as part of your
employment in the letter[,] correct?
“A: No, that was never discussed . . . .
“Q: But it was not in the letter[,] correct?
19
“A: Correct.
“Q: And you never received a document at the time that
you were hired that you were deemed eligible for the
[UCRP][,] correct?
“A: This is all of the letters that I ever received.
“Q: So the answer is no?
“A: No.”
Moreover, before the policy change in 1992, UCSD medical faculty with
a joint VA appointment could not have more than a total 100 percent
appointment at both institutions. There is no contrary evidence. Ricks
testified:
“Q: As part of your job duties, have you come to learn how
the university applied the [UCRP] to faculty with joint
appointments at the VA?
“A: Yes.” [¶] . . . [¶] “Well, prior to 1992, the faculty could
only have ratio percentage appointments [totaling] 100
percent between both the VA and the UC positions. . . .
“Q: All right. And with respect to those appointments, if a
faculty member had an 8/8ths appointment at the VA prior
to 1992, then would they be eligible for the [UCRP]?
“A: They would not.
“Q: And that was because the total percentage
appointment could be 100 percent between the university
and the VA prior to 1992.
“A: Right.”
The inescapable conclusion from the plain words in Paragraph 2.15(i)
and Richman’s testimony is that starting in 1976 he had a 100 percent VA
appointment. Pre-1992, that necessarily means he had a zero percent UC
appointment. Therefore, as a matter of law he was not an Eligible Employee
20
under the UCRP, which requires at least a 50 percent university
appointment.
In urging a different conclusion, Richman starts by framing the issue
as one invoking the deferential substantial evidence standard of review. He
contends “all of the issues raised by the Regents on appeal are challenges to
factual determinations.” He argues the Regents have either forfeited these
issues (by not presenting all the relevant evidence in the opening brief), or if
not forfeited, the findings must be affirmed. Specifically with respect to
Paragraph 2.15(i), Richman contends the judgment is based on two “factual
determinations”—(1) the terms of the 1976 UCRP; and (2) whether
Richman’s employment was “at least 50 percent of the time at UCSD.”
We disagree; neither of these two issues present factual questions. The
“terms” of Paragraph 2.15(i) are not disputed. The issue is not what the
words are, but what they mean. As noted earlier, this is in effect an issue of
statutory interpretation, subject to independent appellate review.
As to the second question—whether his employment was “at least 50
percent of the time at UCSD”—Richman’s argument belies a fundamental
misunderstanding of Paragraph 2.15(i). The dispositive inquiry under
Paragraph 2.15(i) is not whether employment was “at least 50 percent of the
time at UCSD.” The key, which like the trial court Richman also ignores, is
his UC “appointment.” The percentage UC appointment is calculated not on
actual hours worked, but rather in reference to the extent of the VA
appointment:
UC appointment = 100 - (percentage of VA Appointment)
In a related argument, Richman asserts that “abundant evidence,”
including his 1976 university appointment letter and his teaching hours,
supports a factual determination that he was an Eligible Employee “effective
21
July 1, 1976.” But as Richman conceded at trial, the 1976 appointment letter
does not contain any UC percentage appointment. And no one disputes he
worked thousands of hours teaching. The problem is that actual hours
worked is a distinctly different issue from appointment, and under Paragraph
2.15(i), it is only the appointment that counts.
Richman further points out that he served on the UC Academic Senate
and received numerous academic promotions and accolades. But there is no
dispute he worked long hours and was a highly valued UC employee. Those
facts are just not relevant in determining eligibility as defined in Paragraph
2.15(i).
Richman also contends that even pre-1992, faculty members with joint
UC/VA appointments could hold a combined 150 percent appointment. In
closing argument, for example, his attorney argued there was a “glitch” that
the university needed to and did “fix,” and there is “no evidence that any plan
was changed.” However, the 1992 memorandum announcing the new policy
starts by summarizing the then-existing policy: “Historically, their
University appointment percentage and their VA appointment percentage
would equal 100%. In most cases, the VA appointment was 5/8 time or
greater, by definition making the University appointment 3/8 time.
Therefore, many UC/VA joint appointees were not eligible for UCRP
membership.” Going from a maximum combined 100 percent (pre-1992) to a
combined maximum 150 percent (post-1992) is a change in policy.
In 1981, the Regents amended Paragraph 2.15 to specifically exclude
from eligibility “[a]n employee who receives remuneration under a special
compensation plan but who receives no Covered Compensation.” Invoking
22
the so-called “California Rule,”7 Richman also contends the Regents “may
not, under the guise of ‘interpreting’ the [UCRP], conjure language that is not
included and was not inserted until years later.” But even before the 1981
amendment, Richman was not an Eligible Employee under Paragraph 2.15
because he lacked at least a 50 percent university appointment. After 1981,
he may have been ineligible for an additional reason—that he received
remuneration under the Compensation Plan but received no Covered
Compensation. That there is an alternative basis for determining
ineligibility after 1981, however, does not mean the Regents’ correct
determination based on the pre-1981 version of Paragraph 2.15 is any less
valid. Accordingly, we reject Richman’s claim that the Regents “used a 1981-
created exclusion to deny Dr. Richman 1976 eligibility in the UCRP.”
Perhaps Richman’s best argument is that documents in his personnel
file show “100% time” next to or near his university titles. In its statement of
decision, the trial court cited these documents to support its conclusion that
Richman’s university appointment “was a one-hundred percent (100%)
appointment.” The following are examples:
7 “Under the ‘California Rule,’ as it has come to be known [(Cal Fire
Local 2881 v. California Public Employees’ Retirement System (2019)
6 Cal.5th 965, 971)], the contract clause of the state Constitution requires
any modification of public employee pension plans to satisfy a standard
established in a long line of California Supreme Court decisions, including
most prominently Allen v. City of Long Beach (1955) 45 Cal.2d 128.”
(Alameda County Deputy Sheriff’s Association v. Alameda County Employees’
Retirement Association (2020) 9 Cal.5th 1032, 1053.)
23
For several reasons, these documents cannot reasonably be interpreted
to mean Richman had a 100 percent UC appointment. The form above states,
“VA appointment: Chief Grade 9, 8/8 time.” (Italics added.) That means a
100 percent VA appointment. Bailey explained:
24
“Q: Now, according to that document, do you see that next
to the salary designations it lists ‘VA’ in parentheses?
“A: Yes.
“Q: What does that mean?
“A: That means to me that the time that is put there, the
100 percent time, is time at the VA.
“Q: And then under the section called ‘UC Academic
Employment’ in the middle of the page. [¶] Do you see
that?
“A: Yes.
“Q: It refers to the various titles that Dr. Richman held
during his employment[,] right?
“A: Yes.
“Q: And if you go over to the right-hand column, . . . .
“A: Yes.
“Q: [I]t lists in the department column ‘VA’ in
parentheses[,] right?
“A: Correct.
“Q: Why do you think that’s listed there?
“A: Because it means that the time spent was 100 percent
at the VA.”
Moreover, these documents are not used for payroll. They are
“employment history,” kept in the Richman’s personnel file. Bailey cautioned
to not confuse the zero percent UC “appointment” with the distinct issue of
hours he actually worked:
“Remember, this is not a payroll document. That is an
academic summary page. So it’s saying that his
appointment is a hundred percent at the VA. It’s not
saying that he—that he never worked at the university.”
25
In a related argument, Richman points to other parts of Bailey’s
testimony where he stated that the Compensation Plan applies only to
faculty having “50 percent or more” UC appointment. Because it is
undisputed that Richman was in the Compensation Plan, he contends that
means he had at least a 50 percent UC appointment. However, Bailey’s
testimony on this point is self-contradictory and confusing. In a portion of
the reporter’s transcript that Richman ignores, Bailey also testified, “I might
add that people can be in the plan at zero percent time because the plan is
governed by title of the faculty. So all faculty titles in Health Sciences are in
the plan including Professor in Residence.” (Italics added.)
In any event, it is unnecessary to grapple with Bailey’s testimony on
this point—the Compensation Plan itself is in evidence. Like the UCRP,
having been promulgated by the Regents in governing its internal affairs, it
has the force and effect of statute. (See Lachtman v. Regents of University of
California (2007) 158 Cal.App.4th 187, 198 (Lachtman) [“the University
academic personnel policies controlled the terms of . . . employment and ‘have
the force and effect of statute.’ ”].) Parts B and C of the Compensation Plan,
entitled Membership and Eligibility respectively, provide that UCSD medical
school faculty—like Richman—who had patient care responsibilities at the
VA and concurrently held faculty appointments were governed by the
Compensation Plan. In the 1972 Compensation Plan applicable here, there is
no 50 percent UC appointment criteria.8
8 In closing argument, the Regents’ lawyer intimated that the
Compensation Plan was later amended to require a 50 percent UC
appointment. There is no evidence of that in the record; but if true, that
might explain Bailey’s inconsistent testimony on the point. In closing
argument, the Regents’ lawyer noted, “Bailey didn’t give in his testimony
what period of time that 50 percent triggered in the plan . . . .”
26
Last, Richman asserts that the trial court found he “qualified” as an
Eligible Employee under “three separate clauses” of Paragraph 2.15(i). While
this is true, it does not advance Richman’s argument because each of those
clauses requires at least a 50 percent university appointment. The first
clause requires the 50 percent UC appointment to run “for an indefinite
period,” the second, “for a definite period of one year or longer,” and the third,
“for a shorter definite period with the reasonable prospect of renewal or
extension.”
Part 2: 1992 through 2019
A. Additional Factual Background
Under the UCRP, the amount of service credit accrued each fiscal year
is a fraction less than or equal to one. The numerator is the eligible
employee’s “Covered Compensation.” The denominator is his or her
“Permissible Compensation:”
“The amount of Credited Service earned by a Member for
any fiscal year shall be equal to the ratio of his Covered
Compensation for the fiscal year to his Permissible
Compensation for the fiscal year. The maximum amount of
Credited Service for any fiscal year shall not exceed one
year . . . .”
“Permissible Compensation” is defined as the full-time Covered
Compensation for the employee’s position:
“Permissible Compensation means the monthly amount of
Covered Compensation which a Member would earn if
employed on a full-time basis and if he worked full time.”
Assuming the employee is “Eligible” under paragraph 2.15, to
determine each year’s service credit, one must first determine the employee’s
Covered Compensation. The larger the Covered Compensation, the larger
the fraction and amount of service credit. When Covered Compensation
27
equals or exceeds Permissible Compensation, the employee earns the
maximum of one service credit for that fiscal year.
The amount of Richman’s “Permissible Compensation” is established by
salary scales the court received in evidence. The litigation issue, therefore, is
the amount of his “Covered Compensation.”
Under the 1976 UCRP, Covered Compensation is defined as:
“[T]he total monthly remuneration which a Member
receives from the University for his regular and normal
appointment . . . .”
However, Covered Compensation excludes:
“Remuneration which exceeds 100% of the salary . . . for the
position to which a Member has been appointed . . . .”
Also addressing “Covered Compensation,” under the heading, “Retirement
Benefits,” the Compensation Plan provides:
“The additional compensation paid in addition to the base
salary on the fiscal-year clinical salary scale is not included
in “covered compensation” for purposes of establishing
regular retirement benefits . . . .” [¶] . . . [¶]
“The incentive compensation is not included in ‘covered
compensation’ for purposes of establishing regular
retirement benefits . . . .”
Based upon these provisions, the university considers Richman’s
Covered Compensation to consist of X (base salary) as well as its multipliers
(X′ and Y′). However, Y (incentive compensation) and Z (additional
compensation) are not Covered Compensation.
Richman’s payroll documents reflect these distinctions. For example,
his 1978‒1979 payroll document is copied below:
28
The notation “Y B/A” indicates he was paid additional compensation (Y) in a
negotiated amount. The document also shows “NON SALARIED”; no X
compensation is indicated. In sum, the Regents contend Richman was not
paid any Covered Compensation that year.
The university determined that Richman received Covered
Compensation each year from 1994 to his retirement in 2019. Based on those
amounts (as distinguished from gross UC pay, which includes Y and Z
income), the university credited him with 14.2177 years of service credit.
In contrast, Richman contends that his gross UC earnings, which
include Y and Z income, constitute Covered Compensation. His argument is
in two parts. First, he points to the plain language in UCRP’s definition of
Covered Compensation—“total monthly remuneration which a Member
receives from the University.” Second, he argues that the UCRP alone—not
the Compensation Plan—governs because the UCRP does not incorporate the
Compensation Plan by reference, nor state that in the event of a conflict or
ambiguity, “ ‘which policy prevails.’ ” Elaborating on this second point,
Richman acknowledges that the Compensation Plan narrows the definition of
Covered Compensation by excluding Y and Z income. But he
(1) characterizes the Compensation Plan as “extrinsic evidence” of the
29
Regents’ intent in enacting the UCRP, (2) asserts this “extrinsic evidence”
creates ambiguity in what constitutes Covered Compensation under the
UCRP, and (3) invokes the rule that extrinsic evidence cannot be used to
“create an ambiguity . . . and then us[e] the original extrinsic evidence to
construe an ambiguity created in itself.” (Italics added in first quote.)
The trial court agreed with Richman’s analysis. The court was
particularly troubled by the fact that although the UCRP was amended in
1976, it contains “absolutely no reference” to the 1972 Compensation Plan.
Because the UCRP itself does not define Covered Compensation in terms of
X, Y, and Z components, the court determined that a “conflict” exists between
the UCRP and the Compensation Plan. Finding an “inherent ambiguity”
resulting from that conflict that “cannot be reconciled,” the court essentially
threw out the Compensation Plan on the grounds that ambiguities in a
pension statute must be resolved in favor of the person seeking the pension.
For the same principle, the court also invoked Civil Code section 1654, which
states that when interpreting a contract, in cases of uncertainty the language
should be interpreted against the party who caused the uncertainty to exist.
B. The Regents Have Not Forfeited This Issue
Richman contends the Regents have “waived” any challenge to the
amount of service credit the court awarded by failing to specifically object to
the proposed statement of decision on this ground. This argument doubly
fails. First, no objection to the statement of decision was necessary to
preserve the point on appeal. Objections to a proposed statement of decision
are appropriate only where it “does not resolve a controverted issue” or is
“ambiguous.” (Code Civ. Proc., § 634.) Neither is involved here. Second,
even if an objection were necessary, the Regents did so. In a filing entitled,
30
“Objections to the Court’s Proposed Statement of Decision,” the Regents
stated:
“Dr. Richman admitted he included all of his actual
earnings for every year in the ‘Covered Compensation’
column . . . which is not consistent with the University’s
consistent interpretation that service credit computation
concerns base salary compensation.”
C. The Compensation Plan is Not “Extrinsic Evidence”; Properly Construed
with the UCRP, Covered Compensation Excludes Y and Z Earnings.
The fundamental mistake in Richman’s argument and the trial court’s
ruling is they both treat the Compensation Plan as “extrinsic evidence” of the
Regents intent in enacting the UCRP, or alternatively as a contract. But the
Compensation Plan is not a contract. “Employment by the State of
California, including employment by the University of California, is held by
statute rather than by contract.” (Lachtman, supra, 158 Cal.App.4th at
p. 198.) Nor is the Compensation Plan “extrinsic evidence” of the Regents’
intent with respect to the UCRP. Rather, for the same reasons the UCRP
itself is treated as a statute, the Compensation Plan too has the force and
effect of statute. This is because the Regents “have rulemaking and
policymaking power in regard to the University; their policies and procedures
have the force and effect of statute.” (Kim v. Regents of University of
California (2000) 80 Cal.App.4th 160, 165.)
Accordingly, in considering how the UCRP interacts with the
Compensation Plan, familiar rules of statutory interpretation apply.
Statutes governing a single subject “ ‘must be read together and so construed
as to give effect, when possible, to all the provisions thereof.’ ” (Turner v.
Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1056.)
Statutes “ ‘should be interpreted in such a way as to make them consistent
with each other, rather than obviate one another.’ ” (City of Martinez v.
31
Workers’ Comp. Appeals Bd. (2000) 85 Cal.App.4th 601, 616.) And
“[p]otentially conflicting statutes must be harmonized whenever possible.”
(Department of Fair Employment and Housing v. Superior Court (2020)
54 Cal.App.5th 356, 384.)
Thus, instead of declaring an “irreconcilable conflict” between the
UCRP and the Compensation Plan and resolving it by throwing out the
Compensation Plan, the trial court was required to harmonize them if at all
possible. In doing so, it is important to note that the UCRP is a generally
applicable retirement program. It applies statewide, to all UC employees—
not just to UCSD medical school faculty. Thus, it is hardly surprising that
the UCRP does not define “Covered Compensation” with terms like X, Y, and
Z, which are terms specific to physician faculty.
Viewing the UCRP and Compensation Plans as complimentary rather
than antagonistic—with the UCRP providing general rules, and the
Compensation Plan having specific application to UCSD medical school
faculty—the proper interpretation is relatively simple. “[S]pecific provisions
take precedence over more general ones.” (Stoetzl v. Department of Human
Resources (2019) 7 Cal.5th 718, 748.) And if conflicting statutes cannot be
reconciled, “ ‘more specific provisions take precedence over more general
ones.’ ” (Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 634.)
The UCRP excludes from covered compensation “Remuneration which
exceeds 100% of the salary . . . for the position to which a Member has been
appointed . . . .” The UC salary scales—that is, “Permissible
Compensation”—are base salary. They do not include incentive or additional
compensation. The Compensation Plan provides that “additional
compensation in addition to the base salary . . . is not included in ‘covered
compensation’ for purposes of establishing regular retirement benefits.”
32
Read together with the goal of harmonizing the provisions, and with the
specific governing the general, the only reasonable conclusion is that
Richman’s Y and Z compensation “exceeds 100% of the [base] salary” for his
appointed UC position and, therefore, “is not included in ‘Covered
Compensation.’ ”
It is, therefore, unnecessary to consider doctrines that would resolve
ambiguous retirement provisions in favor of the pensioner. There is no
ambiguity. But even if there were some doubt, the trial court’s reliance on
Civil Code section 1654 was misplaced. Neither the UCRP nor the
Compensation Plan is a contract. Nor was it appropriate to rely on the rule
that pension statutes are generally construed in favor of the person seeking
the pension. (See, e.g., San Francisco Fire Fighters v. Retirement Board
(1983) 143 Cal.App.3d 604, 609.) The purpose of that rule is to effectuate the
presumed legislative intent to favor the pensioner. (Overend v. Board of
Administration (1991) 232 Cal.App.3d 166, 171.) Here, however, it is
unnecessary to presume the intent of the legislative body. The Regents has
clearly expressed its intent that Y and Z income is not Covered
Compensation. Where “the reason of a rule ceases, so should the rule itself.”
(Civ. Code, § 3510.)9
9 In an unopposed request for judicial notice, Richman asks we judicially
notice 46 pages of the prior 1971 version of the UCRP. Without analysis, he
contends this document “helps to explain and interpret” the 1976 UCRP. He
also requests judicial notice of eight other documents that he contends show
that the Regents “did not collect employee or employer contributions” from
November 1990 through April 2010. The request for judicial notice is denied
because the documents are not relevant to disposition of this appeal.
(Unzueta v. Akopyan (2019) 42 Cal.App.5th 199, 221, fn. 13.)
33
D. Reversal with Directions is the Appropriate Disposition
Richman’s theory at trial was that the Covered Compensation can only
be interpreted to mean his total or gross UC pay, as evidenced by his W-2’s
and in some cases his UC payroll record of gross pay. He testified that his
service credits should have been calculated based on “the income received
from the university” and for the period 2007 to 2017, which was based on his
W-2 amounts of gross pay. Richman claimed it was impossible for him to
segregate his Y and Z income from X, X′ and Y′ earnings based on documents
he “could get from the university.”
We are frankly at a loss to understand how Richman can fairly claim
that university payroll records do not distinguish his Covered Compensation
for retirement purposes from gross pay. One is right above the other:
Even a person not versed in payroll parlance could reasonably infer
that RETR has something to do with retirement. Consistent with this
commonsense interpretation, Kathryn Brumfield, a UCSD payroll
department supervisor, testified that “for retirement purposes in the UCRP,
the $151,545 figure would be used as opposed to the $246,189 figure for
covered compensation.”
On cross-examination, the Regents’ lawyer showed Richman this
payroll document:
Richman testified he used “the total gross YTD figure” of $172,435.26 in
calculating the service credits he claims and asserted, somewhat incredibly,
34
that he had “no idea” what “RETR GROSS YTD” represents. (Italics added in
second quote.)
The trial court completely adopted Richman’s argument that his service
credits should have been calculated based on his gross UC pay constituting
his Covered Compensation. The court incorporated Richman’s calculations
into the statement of decision and judgment. In so doing, the court erred
because, as a matter of law, Richman’s Covered Compensation under the
UCRP and the Compensation Plan is not the same as his gross UC pay. In
short, Richman was required to establish service credits based on this
formula:
(Covered Compensation) ÷ (Permissible Compensation)
But instead he proved something else:
(Gross Compensation) ÷ (Permissible Compensation)
In the opening brief, the Regents ask us to reverse the judgment with
directions to enter judgment in their favor, or “at a minimum” remand with
directions to recalculate the service credit owed. Richman’s brief does not
address the disposition, except to urge that the judgment be “affirmed in
full.”
When the plaintiff has had full and fair opportunity to present the case,
and the evidence is insufficient as a matter of law to support the judgment, a
judgment for defendant is required and no new trial is ordinarily allowed,
unless there is newly discovered evidence of the type that would have
justified the grant of a motion for new trial. (Cardinal Health 301, Inc. v.
Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 153‒154; see also Acqua
Vista Homeowners Association v. MWI, Inc. (2017) 7 Cal.App.5th 1129.)
Here, Richman had a full and fair opportunity to litigate his claimed service
credits. Payroll records in evidence contain this information. And that could
35
not have come as any surprise. Five months before trial, his attorney
deposed the payroll department supervisor who so testified.
Moreover, although the record indicates that some payroll information
over the course of 42 years was missing, Richman testified that he ultimately
obtained record of earnings for all years except part of 1984. And Ricks
testified that the university sent Richman retirement account statements
spanning the period 1980 through 2018.
For obvious tactical reasons, Richman tried the case on the theory that
his gross UC pay constituted Covered Compensation. Since we have
concluded that theory fails as a matter of law and Richman had a full and
fair opportunity to try the case on the correct legal basis, retrial on a different
theory is unwarranted. This disposition makes it unnecessary to consider the
Regents’ claims that the action is time-barred, and we express no opinion on
those issues.
DISPOSITION
The judgment is reversed with directions to enter a new judgment in
favor of the Regents. The Regents are entitled to costs on appeal.
DATO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
IRION, J.
36