Simon v. City of Orange CA4/3 ( 2022 )

Filed 12/29/22 Simon v. City of Orange CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JOYCE M. SIMON,
Plaintiff and Appellant, G061046
v. (Super. Ct. No. 30-2021-01181499)
COUNTY OF ORANGE, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Richard
Y. Lee, Judge. Affirmed.
Joyce M. Simon, in pro. per., for Plaintiff and Appellant.
Leon J. Page, County Counsel, and Laurie A. Shade, Deputy County
Counsel, for Defendant and Respondent.
Joyce M. Simon appeals from a judgment denying her petition for a writ of
mandate directing the County of Orange (the County) to reinstate her to her old job and
pay back wages and benefits for the time she did not work. The petition was premised on
the theory the County terminated her employment during the period the County’s board
of retirement considered her application for disability retirement under the County
1
Employees Retirement Law of 1937 (CERL). (Gov. Code, § 31450 et seq.) The trial
court sustained the County’s demurrer based on the following findings: (1) Simon failed
to comply with the Government Claims Act (§ 900 et seq.); and (2) the petition did not
state a cause of action because Simon was not dismissed from her job. On appeal, Simon
maintains the court misinterpreted provisions of the CERL and she was exempt from (or
alternatively complied with) the Government Claims Act. We affirm the court’s ruling
because the petition failed to state a cause of action. Accordingly, we need not address
Simon’s factually complicated and alternative theories regarding the Government Claims
Act.
FACTS
Simon worked for the County as a financial counselor. In 2003, she
experienced a workplace injury and was treated by doctors in the workers’ compensation
system. Her treating doctors and vocational consultant submitted reports regarding the
need for job modifications.
In her petition, Simon alleged the County did not comply with its duty to
provide reasonable accommodations. In March 2010, Simon decided she had to follow
her doctor’s orders and stopped working. She explained Dr. Seymore Levine, a state
panel qualified medical examiner (QME), determined Simon was 100 percent
“permanently and totally disabled and unable to participate in the open labor market”
1
All further statutory references are to the Government Code, unless
otherwise indicated.
2
2
because of a medical condition. Additionally, Dr. Larry Danzig, another QME, ordered
“permanent work restrictions,” which included keyboarding for no longer than 10 to 15
minutes at a time and limited to a cumulative total of two and one-half hours a day.
After receiving several months of “physical and mental therapy,” Simon
claimed she asked to return to work. She asserted the County would not let her return
unless she was cleared by employee health services (EHS) and was prepared to work
without restrictions or “rest breaks of any kind.”
Simon attached to her petition (exhibit No. 5) a form prepared by York
Insurance that was filled out and signed in November 2012 by the County’s auditor-
controller. The form was titled “Notice of Permanent Restrictions” and asked for
information about whether a modified or alternative work was available for Simon. The
notice indicated Levine determined Simon was 100 percent disabled due to fibromyalgia.
In addition, the notice acknowledged Danzig, the defense QME, determined Simon could
not perform “very heavy work” due to a lower back injury. Danzig also opined that
because of a right wrist injury Simon was “precluded from repetitive forceful gripping
[and] grasping with right upper extremity and prolong computer keyboard input with
right upper extremity (clarification: applicant should only do keyboarding for 10 to 15
minutes at which point she should switch to a different activity, not be entitled to a break
from work duties).”
The County checked the box on the insurance form stating neither modified
nor alternative work was available. The County’s auditor-controller handwrote a notation
clarifying this selection was made “[d]ue to the above statement ‘100 [percent] disabled’”
because of Simon’s medical condition.
2
In this opinion, for ease of reading, we have fixed grammatical errors and
omitted unnecessary capitalization when quoting from the parties’ documents and the
trial court’s ruling.
3
In January 2013, the County filed a disability retirement application on
Simon’s behalf as required by section 31721. The application was processed by the
Orange County Employees Retirement System (OCERS). OCERS sent Simon a letter
stating the County filed the application and invited her to “join in the application process”
by filling out several forms provided to her. Simon attached the application and
OCERS’s letter to her petition (exhibit Nos. 7 and 8).
In May 2017, Hilda Garcia, the County’s human resources manager wrote
Simon a lengthy letter explaining her options for returning to work (exhibit No. 11).
Garcia began the letter by summarizing a series of meetings she had with Simon and her
husband. During their March 17, 2017 meeting, Garcia recalled Simon said OCERS
would soon be ruling on her retirement application. Simon indicated OCERS was
recommending denial of the application due to insufficient evidence of permanent
incapacity. Garcia wrote, “I informed you during our meeting (and followed up via e-
mail), that the County is willing to allow you to return to work in the same position you
had prior to January 2013, upon clearance [with EHS].” Garcia added that a few days
later, on March 27, 2017, the County received a letter from OCERS’s Board of
Retirement indicating it denied Simon’s application “due to insufficient evidence of
permanent incapacity and job causation.” Garcia reminded Simon that in early April
2017, she contacted her to schedule an “interactive process meeting.”
Garcia stated she held two telephonic interactive process meetings in April
2017, with Simon, her husband, and Leslie Sorrells, an Administrative Manager II.
During one meeting, the group reviewed medical work restrictions proposed by an
OCERS physician specializing in orthopedic surgery. They also discussed the prior
permanent work restrictions set forth by Levine and Danzig. Garcia recalled that at this
meeting, “[w]e discussed that the process to return to work is to be cleared by [the
County EHS].” Garcia recalled Simon stating EHS told her that she needed additional
documentation such as a medical certification with or without medical restrictions.
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Garcia stated Simon’s husband incorrectly opined Simon could return to work without
being cleared by EHS.
In addition, Garcia noted, “Since you had additional questions, we agreed
that I would contact you with responses to your questions and engage in the interactive
process meeting to have you return to work as soon as possible.” She added her letter
would also include a response to questions raised by Simon’s husband in recent e-mails.
She began by addressing Simon’s questions about section 31725. She clarified that under
this statutory provision the County could not dismiss an employee for disabilities, but
rather that the County was required to apply for disability retirement benefits for any
employee believed to be disabled. Garcia stated this is what the County did in her case,
filing a disability application in 2013 after receiving notice of permanent work
restrictions.
Next, Garcia sought to clarify Simon’s employment status. “[T]he County
has never dismissed you or separated you from County employment. In fact, you have
been on some form of unpaid leave status since 2010 and the auditor-controller’s office
has kept your position vacant for those [seven] years pending the determination of your
disability retirement application. And, as you are aware, in June 2016, following a
determination by OCERS that you should be given certain medical restrictions and our
telephonic interactive process meeting, the County agreed to grant your request to remain
on an unpaid leave of absence pending the final decision of OCERS on your disability
retirement application.”
Finally, Garcia responded to Simon’s question about returning to work.
She wrote, “[A]s the undersigned informed you on March 17, 2017, and again on April
28, 2017, the County remains willing to allow you to return to work in the same position
you had prior to January 2013, upon clearance by [EHS] as required by the OCEA MOU
[citation]. [¶] Please contact the undersigned . . . to advise when you have obtained
medical clearance so that we can make the necessary arrangements for your return to
5
work. In the alternative, the County remains willing to continue your unpaid leave of
absence pending the results of your appeal of OCERS’ denial of your disability
retirement application.” (Underscoring omitted.)
On January 21, 2021, Simon filed her petition for a writ of mandate
pursuant to section 31725. She challenged the County’s failure to comply with its
statutory obligations. She alleged the County was required to reinstate her to her old job
and pay back wages/benefits.
Following the statutorily required meet and confer, the County demurred to
the petition and filed a request for judicial notice. Simon opposed the motion. The
County filed a reply. In the trial court’s written tentative decision, which became its final
ruling, it determined the petition was defective because it was uncertain. It ruled, “The
court agrees with [the County’s] characterization that the petition is uncertain such that
the ability to respond is rendered difficult, if not impossible. The petition is rife with
improper case citations and excerpts and arguments. There is no logical flow regarding
the facts and legal claims.” The court sustained the demurrer and gave Simon 20 days
leave to amend her petition.
Simon filed a first amended petition (FAP) and the County again demurred,
arguing it suffered from the same defects as the original petition. Simon filed an
opposition, and the County filed a reply.
The court prepared a lengthy minute order, sustaining the demurrer without
leave to amend. In addition to ruling the claims were barred due to Simon’s failure to
comply with the Government Claims Act, the court concluded the FAP failed to state a
cause of action because there was no showing Simon was dismissed from her
employment. The court paraphrased the County’s arguments and supporting case
authority. “In sum, [the County] argues that [Simon] was never dismissed and is
improperly conflating the filing of the disability application with ‘dismissing her for
disability’ in order to invoke section 31725. [¶] Lastly, [the County] points out that the
6
FAP itself proves [Simon] remains a[n] . . . employee as set forth in exhibit No. 11 to the
FAP. That document, [the County] claims, shows it engaged in the interactive process,
repeatedly offered [Simon] her to return to active duty, and kept her position open,
placing her on an extended unpaid leave of absence. [¶] [Simon] argues she was
dismissed when [the County] retired her under section 31721. [¶] [Simon’s]
interpretation of sections 31721 and 31725 are misplaced. [Simon’s] retirement under
section 31721 was not a dismissal since that statute specifically states that the employer
may not separate but shall apply for retirement for the employee based on disability. [¶]
Section 31725 requires reinstatement if there was a dismissal based on disability. Here,
as set forth in the FAP and discussed above, [Simon] was never dismissed but given
extended unpaid leave to return to her position.”
The court discussed analogous case authority. (See Stephens v. County of
Tulare (2006) 38 Cal.4th 793 (Stephens); Mooney v. County of Orange (2013)
212 Cal.App.4th 865 (Mooney); and Kelly v. County of Los Angeles (2006) 141
Cal.App.4th 910 (Kelly).) It ruled as follows: “Based on those cases and the allegations
in the FAP, [Simon] has not sufficiently stated a cause of action as she was not
‘dismissed’ under sections 31721 and 31725. [¶] The defects in the FAP are unlikely to
be cured by amendment. For the reasons stated herein, the court sustains the demurrer to
the FAP without leave to amend.”
DISCUSSION
Simon, who is representing herself on appeal, argues the trial court
erroneously sustained the County’s demurrer without leave to amend for multiple
reasons. Her opening brief is difficult to comprehend, but to the extent we can
understand her arguments, they are either forfeited or unpersuasive. And because we
conclude her claims fail as a matter of law, we need not address her Government Claims
Act contentions.
7
I. Self-represented Litigants
The trial court’s orders are presumed to be correct, and the appellant has the
burden to prove otherwise by presenting legal authority and analysis on each point made,
supported by appropriate citations to the material facts in the record. If the appellant does
not meet this burden, the argument will be deemed forfeited. (Ewald v. Nationstar
Mortgage (2017) 13 Cal.App.5th 947, 948 [“the failure to provide legal authorities to
support arguments forfeits contentions of error”].) These rules of appellate procedure
apply to Simon even though she is representing herself. (Nelson v. Gaunt (1981)
125 Cal.App.3d 623, 638-639.) “When a litigant is appearing in propria persona, he [or
she] is entitled to the same, but no greater, consideration than other litigants and attorneys
[citations].” (Ibid.) This is not intended to penalize self-represented litigants; instead, it
is necessary to maintain stability in appellate proceedings, requiring adherence to the
forms and procedures that govern appeals. This in turn supports the appellate court’s
independence and unbiased decision-making.
II. Standard of Review
“On appeal from a judgment dismissing an action after sustaining a
demurrer without leave to amend, . . . [t]he reviewing court gives the complaint a
reasonable interpretation and treats the demurrer as admitting all material facts properly
pleaded. [Citations.] The court does not, however, assume the truth of contentions,
deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one
of the several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is
error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action
under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a
demurrer without leave to amend if the plaintiff shows there is a reasonable possibility
any defect identified by the defendant can be cured by amendment. [Citation.]” (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
8
III. Applicable Legal Principles
The County’s employee retirement system is governed by the CERL.
Simon brought her writ of mandate action under Article 10 of CERL. This article
“provides the mechanism for disability retirement of qualified county employees.”
(Rodarte v. Orange County Fire Authority (2002) 101 Cal.App.4th 19, 23.) “As with all
statutory retirement systems, CERL must be given a liberal construction in favor of the
employee to carry out its beneficent policy.” (Ibid.)
This appeal concerns interpretation of sections 31721 and 31725, two
provisions found in Article 10 of the CERL. As will be described in more detail below,
any cause of action based on alleged violations of sections 31721 and/or 31725 requires
proof the employee was dismissed from employment. These provisions do not apply to
employees taking an unpaid leave of absence and to those who are still employed by the
County.
The first statutory provision under Article 10 of the CERL, section 31720,
subdivision (a), states in relevant part that a member who is “permanently incapacitated
for the performance of duty shall be retired for disability regardless of age” if the injury
arose during the course of employment and the member’s duties contribute to the
3
incapacity. (Italics added.)
The second provision, section 31721, subdivision (a), at issue in this case,
identifies the persons having standing to apply for disability retirement: “A member may
be retired for disability upon the application of [1] the member, [2] the head of the office
3
The retiring member has the burden of proof to show he or she is
permanently incapacitated and that such incapacity substantially was the result of
performing his or her job duties. (§§ 31723, 31725; Masters v. San Bernardino County
Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 46.) The retirement board has the
constitutional and statutory duty to manage the retirement fund and, in so doing, to
determine whether the fund is obligated to pay benefits to any particular applicant.
(McIntyre v. Santa Barbara County Employees’ Retirement System (2001)
91 Cal.App.4th 730, 734-735.)
9
or department in which he [or she] is or was last employed, [3] the board or its agents, or
[4] any other person on his [or her] behalf, except that an employer may not separate
because of disability a member otherwise eligible to retire for disability but shall apply
for disability retirement of any eligible member believed to be disabled, unless the
member waives the right to retire . . . .” In other words, the focus of section 31721,
subdivision (a), is to provide the procedural rules for permanent disability applications.
In addition, section 31721, subdivision (a), imposed a ministerial duty on
the County to apply for disability retirement on behalf of any employee believed to be
permanently disabled. The statute expressly provides the County, while performing this
ministerial duty, cannot “separate” an employee from his or her employment because of a
disability. (Ibid.) A different panel of this court has determined “‘separate’” and
“‘dismissal’” are interchangeable terms in the context of the CERL, and both refer “to an
involuntary termination of an employee’s employment. [Citation.]” (Mooney, supra,
212 Cal.App.4th at p. 879.) Thus, to the extent Simon alleges the County violated section
31721, subdivision (a), she had to prove both (1) she was terminated from her
employment; and (2) the County did not help her with her retirement application or
appeal.
Similarly, Simon’s claim asserting the County violated section 31725
required proof she was dismissed from employment. That statute provides: “Permanent
incapacity for the performance of duty shall in all cases be determined by the [county
board of retirement per section 31459, subdivision (c)]. If the medical examination and
other available information do not show to the satisfaction of the board that the member
is incapacitated physically or mentally for the performance of his duties in the service and
the member’s application is denied on this ground the board shall give notice of such
denial to the employer. The employer may obtain judicial review of such action of the
board by filing a petition for a writ of mandate in accordance with the Code of Civil
Procedure or by joining or intervening in such action filed by the member within 30 days
10
of the mailing of such notice. If such petition is not filed or the court enters judgment
denying the writ, whether on the petition of the employer or the member, and the
employer has dismissed the member for disability the employer shall reinstate the
member to his employment effective as of the day following the effective date of the
dismissal.” (§ 31725, italics added.) If this statute applies, the employer must also pay
the member wages and benefits she would have accrued during the period of her
dismissal. (Stephens, supra, 38 Cal.4th at p. 801.)
“In requiring reinstatement with backpay following a determination by the
local retirement board that the employee is not permanently disabled, section 31725
represents a legislative effort to address the problem that arises when an employee is
caught between inconsistent decisions of the employer and the retirement association on
the question of disability and left with neither employment nor disability income.
[Citation.] Section 31725 ‘solve[s] this problem by giving the retirement board the final
word on whether an employee [i]s disabled and providing that dismissed employees must
be reinstated if the board f[inds] they [ar]e not disabled, while also giving local
governments the right to take a judicial appeal of the board’s decision. In this way, the
Legislature [has] ensured that county employees dismissed for disability w[ill] have
either employment or disability income and not be left destitute.” (Kelly, supra,
141 Cal.App.4th at pp. 919-920.)
IV. Simon’s Arguments
A. Section “31721 is Terminating Employment”
In her briefing, Simon asserts she was “terminated then dismissed under”
sections 31721 and 31725. Simon repeatedly states, like a mantra, section “31721 is
terminating employment.” She criticizes the trial court and the County for failing to
follow the law and reading section 31721 as not dismissing Simon “as it pertains to
[section] 31725.” These somewhat cryptic contentions are difficult to understand
because typically a dismissal determination depends on factual circumstances, not
11
statutory provisions. In other words, a statutory provision cannot, by its mere existence,
terminate an employee.
We found the factual genesis of Simon’s argument buried in her brief’s
factual summary. Mixed among factual allegations, Simon makes the legal conclusion
the County officially terminated her from employment in January 2013, when the County
filed a disability retirement application on her behalf. Because section 31721 imposed
this ministerial duty on the County, we interpret Simon’s legal argument section “31721
is terminating employment” as meaning compliance with section 31721 results in an act
of dismissal. In essence, Simon is arguing section 31721 defines a specific duty that
when properly executed should be viewed as conclusive evidence of a dismissal from
employment.
There are several problems with this argument. First, the purpose of
section 31721 is not to define when an employee is terminated. It simply outlines the
procedural rules for filing disability retirement applications. Second, the statute clearly
explains that when a county undertakes the application process on behalf of its employee,
it cannot simultaneously “separate” from that employee because of a disability.
(§ 31721.) Thus, not only does section 31721 expressly forbid the County from
terminating Simon’s employment, but it also simultaneously created a ministerial duty for
employers to assist current employees. It should go without saying the County had no
duty to file an application on behalf of a former employee.
Third, there are no rules of statutory interpretation or case authority
supporting Simon’s theory section 31721 should be interpreted as requiring the County to
dismiss an employee. The statute’s plain and ordinary meaning requires the opposite
result. It plainly mandates the employer must file a retirement application while
maintaining an employment relationship.
To accept Simon’s interpretation that filing an application effectively
dismissed Simon, we would have to ignore the statutory language mandating a contrary
12
result. “It is a familiar rule of statutory interpretation that ‘[a] construction making some
words surplusage is to be avoided.’ [Citation.]” (Lee v. Amazon.com, Inc. (2022)
76 Cal.App.5th 200, 235; Jaime Zepeda Labor Contracting, Inc. v. Department of
Industrial Relations (2021) 67 Cal.App.5th 891, 905 [we must seek to give the
Legislature’s words their usual and ordinary meaning and “‘we may neither insert
language which has been omitted nor ignore language which has been inserted’”].)
Finally, we also cannot ignore that Simon’s evidence (exhibits attached to
the FAP) directly contradict her interpretation of section 31721. For example, exhibit
No. 8 contained OCERS’s letter to Simon inviting her to participate in the process
evaluating the disability retirement application. The letter stated, “Under the provisions
of [section] 31724 . . . if you are awarded a disability retirement, the effective date of that
retirement will be no earlier than January 7, 2013, the date of the application filed by
your employer. [¶] If you feel the effective date of your disability retirement should be
earlier than stated above, please submit written evidence . . . as soon as possible.” (Italics
added.)
This letter indicates Simon has not yet retired, and more importantly, there
was no guarantee of a disability retirement severing the employment relationship.
OCERS notified Simon it would select an “effective date” only after her application was
approved. We understand Simon’s argument that if she had retired, her employment
would be terminated. But because OCERS rejected the application there was no
designated date of retirement. The County responded to the rejection by asking Simon
when she would seek clearance from EHS and resume working, which would not be
necessary if the employment relationship had been permanently severed. These exhibits
do not support Simon’s theory the County dismissed her from employment.
Exhibit No. 11, containing Garcia’s letter to Simon, also supports the
conclusion the County never terminated Simon’s employment. Garcia stated the County
invited Simon to return to work or remain on an unpaid leave of absence. The letter also
13
suggests Simon understood she was still employed but not actually working while the
parties were sorting out their protracted dispute over reasonable medical
accommodations.
Likewise, in her briefing, Simon repeatedly contends that after her
retirement application was denied, her employer refused to return her to work under the
correct medical restrictions. We read this to be a concession she would have accepted the
County’s offer to resume working at her old job if there were suitable accommodations
for her medical issues. Thus, by making this point Simon has unwittingly admitted she
knows she has a job waiting for her with the County, but she will not return because she
does not like/accept the terms of employment or workplace conditions. Simon’s
accommodation-related claims fall outside the scope of section 31725 [requiring
employer to reinstate member to his/her employment effective on date employer
dismissed the member for disability]
B. Procedural Defect
We reject Simon’s assertion the County’s demurrer should have been
overruled because of its failure to cite applicable and supporting case authority as
required by Code of Civil Procedure section 430.41. She asserts the County failed to
produce “one iota of authority” supporting its demurrer. Not so. The County cited to
numerous applicable cases, including Mooney and Kelley, which are the same cases
Simon refers to her in briefing.
We believe the disconnect regarding this perceived procedural defect stems
from Simon’s belief the County and the trial court have cited to, but are misreading, the
Mooney opinion. She fails to appreciate that having a disagreement about the meaning of
legal authority or the interpretation of a statute, is not the same thing as a party failing to
“provide legal support for its position that the pleading[s]” are legally insufficient. (Code
Civ. Proc., § 430.41, subd. (a)(1) [requirements of meet and confer process before filing a
demurrer].)
14
In her briefing, Simon is clearly appalled that the County, who also
happened to be the defendant in the Mooney case, had the audacity to take a contrary
position in her case. She asserts, without citing to any legal authority, that the County “is
in violation of the doctrine of judicial estoppel.” The argument is waived due to the lack
of legal analysis. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785
[“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as waived”].) In addition, we
conclude the County has taken the same legal position in both cases, i.e., there is no
requirement to reinstate an employee who was not dismissed from employment.
(Mooney, supra, 212 Cal.App.4th at p. 868.)
C. Conduct Resulted in Effective Dismissal
Simon alleges that because the County would not allow her to return to
work, or modify her work to accommodate her disability, she was effectively dismissed
from her employment. To support this claim, she points to exhibit Nos. 7 and 8, showing
the County would not allow her to work due to her disabilities and instead filed a
retirement application. She noted exhibit No. 5 proved the County would not offer her
“modified or alternative work” due to the QME report concluding she was 100 percent
disabled. She adds exhibit No. 11 confirms that after OCERS’ denial of her application,
the County was not going to let her return to work.
Although not well pleaded, we interpret her argument as raising a question
about whether the County’s conduct during the retirement application process, and
following OCERS’s decision, demonstrated a full separation from employment that
should be treated as a dismissal. We appreciate why Simon felt separated from her
employment after being placed on involuntary leave, and told she could not return to
work, and was no longer being paid wages. She was physically apart from her workplace
and disconnected from any job duties. Simon relies on case law holding the terms
separation and dismissal are interchangeable (citing Mooney, supra, 212 Cal.App.4th at
15
p. 879) to support her argument her forced separation from the workplace qualifies as a
dismissal as defined by section 31725. She misunderstands the cases. A separation from
employment can be temporary or permanent. It can be initiated by the employee or the
employer. Thus, not all types of separations in the employment context qualify as
dismissals as defined in section 31725.
As discussed in the Mooney case, “the terms ‘separate’ and ‘dismissed,’
when used generally in employment law, are not necessarily interchangeable terms.”
(Mooney, supra, 212 Cal.App.4th at p. 879.) A dismissal from employment refers to
when an employer has elected to end the employment relationship. (Stephens, supra,38 Cal.4th at p. 802.) “Because the relationship has ended, (1) the employer no longer
has an obligation to pay salary or other forms of compensation, and (2) the employee has
no basis for expectation that a position exists, will be kept open, or will be made available
upon the employee's offer to return to work.” (Ibid.) A separation can be temporary or
permanent, and it may be initiated by either the employee or employer. However,
consideration of “the terms ‘dismissed’ and ‘separate’ in the context of the particular
statute in which they appear sheds great light on their meaning in those statutes.”
(Mooney, supra, 212 Cal.App.4th at p. 879.)
“Because section 31725 is concerned only with the consequences of
‘[p]ermanent incapacity for the performance of duty,’ we can reasonably assume the
statute addresses permanent, not merely temporary, absence from employment. An
employee who is temporarily absent from the workplace due to illness or vacation, where
both employer and employee understand, the employee will return to work when the
reason for the leave ceases, would have no need to pursue a disability retirement before
the board of retirement.” (Stephens, supra, 38 Cal.4th at p. 802.)
Accordingly, “a dismissal as contemplated by section 31725 requires an
employer action that results in severance of the employment relationship. An employee
who is neither sent away nor removed, but voluntarily absents himself or herself from the
16
job, without more, cannot validly claim he or she was ‘dismissed’ by the employer.”
(Stephens, supra, 38 Cal.4th at p. 802.)
“Nor is a dismissal established merely by the fact that [the employee] was
taken off the regular payroll. . . . [T]he term ‘dismissed’ does not simply mean the
absence of a salary. A person could be on unpaid leave, perhaps as a reasonable
accommodation under the Fair Employment and Housing Act for a significant period of
time, but that alone is not sufficient to find a termination. [Citation.]” (Kelly, supra,
141 Cal.App.4th at p. 924, citing Stephens, supra, 38 Cal.4th 793.)
For example, the court in Kelly, supra, 141 Cal.App.4th 910, held that an
employee was not “dismissed” within the meaning of section 31725 when her employer
“(1) advise[d] her it currently ha[d] no available position to accommodate her work
restrictions imposed following her industrial injury; (2) place[d] the employee on unpaid
industrial-injury leave, but (3) offere[d] the employee vocational rehabilitation (including
a maintenance allowance) to train for another position.” (Id. at p. 913.)
In Mooney, the court held the employee was not “dismissed” within the
meaning of section 31725 where she was physically unable to perform the duties of the
job because of permanent work restrictions. (Mooney, supra, 212 Cal.app.4th at p. 870.)
The employee was on disability leave, and the employer continued to explore alternate
employment for her (she rejected two offers as demotions). (Ibid.) The employee did not
look for another job and did not file for or receive unemployment insurance benefits (thus
supporting that she did not consider herself terminated). (Ibid.) The employer also
engaged in an interactive process for her claim of disability discrimination. (Id. at p.
877.)
Simon’s briefing shows she fails to understand the Legislature used
different terminology in two statutes (sections 31721 [separation] and 31725 [dismissal]),
and Mooney simply holds both statutes impose duties on the employer only when the
employer’s act of separating the employee from employment is permanent. “Such an
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involuntary separation from employment, from the employee’s perspective, is
indistinguishable from a dismissal from employment.” (Mooney, supra, 212 Cal.App.4th
at p. 879, italics added.)
As stated by our Supreme Court, there is no case authority holding “an
employer functionally or effectively terminates an employee by telling the employee to
go out on sick leave until his or her medical condition abates sufficiently to enable return
to the job.” (Stephens, supra, 38 Cal.4th at p. 809.) Similarly, there is no need to file a
retirement application for a worker temporarily placed on leave due to an injury but
intends to return to work and the employer has held the job position vacant. Simon’s
evidence of a temporary separation from the workplace and the lack of pay does not
describe the degree of separation needed to trigger an employer’s duty of reinstatement
under section 31725. (Mooney, supra, 212 Cal.App.4th at pp. 874-875; Kelley, supra,
141 Cal.App.4th at p. 924.)
Another reason Simon’s argument fails is because she cites to and relies on
appellate court decisions that preceded the Supreme Court’s interpretation of section
31725 in Stephens, supra, 38 Cal.4th 793. (See, e.g., Hanna v. Los Angeles County
Sheriff’s Dept. (2002) 102 Cal.App.4th 887; Tapia v. County of San Bernardino (1994)
29 Cal.App.4th 375; Phillips v. County of Fresno (1990) 225 Cal.App.3d 1240; McGriff
v. County of Los Angeles (1973) 33 Cal.App.3d 394.) The Supreme Court agreed with
these cases to the extent they stood for the proposition that “a qualifying dismissal within
the meaning of section 31725 need not be accompanied by any particular formality,” but
held that “some form of a termination is nevertheless required.” (Stephens, supra,38 Cal.4th at p. 806.) The Mooney opinion explained these pre-Stephens appellate court
cases are distinguishable. Those courts did not “directly addressed the meaning of the
word ‘dismissed’ in the context of section 31725 and the analyses in those cases assumed
a dismissal, within the meaning of that statute, had been effected.” (Mooney, supra,
212 Cal.App.4th at p. 877.) Simon’s reliance on this stale case authority is misplaced.
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D. Leave to Amend
“Generally, for a writ of mandate to issue, two basic requirements are
essential, namely, a clear, present and usually ministerial duty on the part of the
defendant and a clear, present and beneficial right in plaintiff to performance of that duty.
[Citations.]” (Taylor v. Board of Trustees (1984) 36 Cal.3d 500, 507.) Here, Simon filed
a writ of mandamus to compel the County to comply with the requirements of section
31725 by reinstating her to her employment and paying back wages and benefits. As
stated above, we have concluded the trial court correctly determined Simon’s FAP did
not plead facts sufficient to demonstrate the County owes her this duty, triggered only
when an employer “has dismissed the member for disability.” (§ 31725.)
Simon asserts the court should have given her leave to amend her complaint
because she had evidence proving she was separated from her employment. As stated,
Simon has already proved there was a “separation,” but it was temporary, and therefore,
not the type of employer-driven and involuntary permanent termination of the
employment relationship required to trigger the County’s duties under section 31725.
Simon’s exhibits confirm she was on an unpaid leave of absence from her job and the
County held her position for seven years. After the QMEs reported Simon was 100
percent disabled, the County appropriately complied with is ministerial duty of filing a
disability retirement application. (§ 31721.) When OCERS denied the application due to
insufficient evidence Simon was incapacitated, the County arranged meetings with Simon
and discussed viable accommodations. Simon does not suggest what additional facts or
information she could add to her petition to establish the County took additional action
and, at some point, permanently severed the employment relationship. To the contrary,
Simon discusses why her ability to return to her job has been delayed due to disputes
about whether she must be cleared first with EMH and the County’s failure to
acknowledge necessary work restrictions. Simon does not suggest how she could plead
around this admission. An employed person need not be reinstated to an existing job.
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And finally, it should not be overlooked the trial court gave Simon leave to
amend her initial petition. Simon’s vague suggestion there exists additional facts
supporting a viable cause of action is insufficient to justify further leave to amend.
Simon had the burden of showing “‘the trial court’s denial of leave to amend was an
abuse of discretion.’ [Citation.]” (Eghtesad v. State Farm General Ins. Co. (2020)
51 Cal.App.5th 406, 411.) She failed to do so.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
MARKS, J.*
*Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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