Deiro v. L.A. County Civil Service Commission

Filed 10/29/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MARTIN DEIRO, B296926
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS171413)
v.
LOS ANGELES COUNTY CIVIL
SERVICE COMMISSION et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mary H. Strobel, Judge. Affirmed.
Castillo Harper and Michael A. Morguess for Plaintiff and
Appellant.
Hausman & Sosa, Jeffrey M. Hausman, Larry D. Stratton
and Vincent C. McGowan for Defendant and Respondent Los
Angeles County Sheriff’s Department.
No appearance for Defendant and Respondent Los Angeles
County Civil Service Commission.
__________________________
SUMMARY
A deputy sheriff who has obtained and continues to receive
service-connected disability retirement benefits is no longer an
employee of the county. Consequently, his appeal to the Civil
Service Commission of his discharge by the Los Angeles Sheriff’s
Department, filed before his disability retirement, is no longer
viable. The commission has no authority to order reinstatement
or any other relief to a retired person whose future status as an
employee is not at issue. The commission properly dismissed the
retired deputy sheriff’s disciplinary appeal. We affirm the trial
court’s denial of a writ of mandate.
FACTS
Plaintiff Martin Diero, who began working for the Los
Angeles County Sheriff’s Department in 1997, was injured on
duty on May 30, 2012. He continued to work through October 3,
2013, after which he had the first of two surgeries for the injury
(October 4, 2013 and September 9, 2014). He could not return to
work after October 4, 2013, and remained on leave thereafter.
On May 1, 2015, plaintiff applied to the Los Angeles
County Employees Retirement Association (LACERA) for a
service-connected disability retirement. The department did not
oppose his application.
On July 17, 2015, the department served plaintiff with a
letter of intent to terminate his employment, in connection with
conduct the department alleged brought discredit to plaintiff and
the department. After a predisciplinary meeting, on August 13,
2015, the department notified plaintiff of his discharge, effective
at the close of business on August 12, 2015. Plaintiff timely
appealed the discharge to the Civil Service Commission, and on
2
September 15, 2015, the commission referred the matter to a
hearing officer for evidentiary hearings.
A few months later, on January 6, 2016, while the
disciplinary proceedings were pending, LACERA’s Board of
Retirement granted plaintiff’s application for a service-connected
disability retirement, with the effective date to be determined.
LACERA served notice of the board’s decision a few days later, on
January 11, 2016.
On August 22, 2016, LACERA issued a notice to plaintiff
stating that, “[p]er your discussion with LACERA staff, your
effective date of retirement is August 13, 2015,” the day after
plaintiff’s discharge.
Despite plaintiff having retired, on September 26 and
November 4, 2016, the department and plaintiff participated in
hearings on plaintiff’s appeal of his discharge. The department
did not bring plaintiff’s retirement to the attention of the
commission until late April 2017. Meanwhile, on March 7, 2017,
the hearing officer issued a proposed decision recommending
plaintiff’s discipline be reduced to a 30-day suspension. On
April 12, 2017, the commission’s agenda included a proposed
decision to accept the recommendation of the hearing officer to
reduce plaintiff’s discharge to a 30-day suspension.
On April 26, 2017, the department filed a motion to dismiss
the appeal on the ground plaintiff had retired, and therefore the
commission lacked jurisdiction over any appeal relating to his
employment.
On August 16, 2017, the commission granted the
department’s motion to dismiss plaintiff’s appeal.
Plaintiff filed a verified petition for writ of mandate,
naming the commission and the department as respondents, to
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compel the commission to complete his administrative appeal.
The commission filed a notice stating it had no beneficial interest
in the outcome of the proceedings and would make no additional
appearance in the matter. Plaintiff and the department
stipulated that the issues raised in plaintiff’s petition could be
determined pursuant to ordinary mandate (Code Civ. Proc.,
§ 1085), without an administrative record, and the trial court so
ordered.
On July 20, 2018, plaintiff had another surgery related to
his on-duty injury, and as of November 27, 2018, was “still
healing.”
The parties briefed the matter in November and December
2018. With his reply papers filed January 7, 2019, plaintiff
submitted a supplemental declaration. He asserted for the first
time that if he were to prevail in his appeal and were ordered
reinstated, any retroactive salary would change his disability
retirement date to a later date, and this “would have also affected
my retirement allowance and contributions to my retiree health
benefits . . . because of seniority credits and salary increases
I expected to receive.”
The trial court denied plaintiff’s petition. The court
observed that “[n]ew issues raised in reply are improper and may
be disregarded,” and concluded on the merits the commission
lacked authority to decide the appeal or reinstate plaintiff. The
court entered judgment in favor of the department on
February 22, 2019, and this timely appeal followed.
DISCUSSION
As the trial court observed, the material facts in this case
are undisputed. The only issue is whether the commission
retained jurisdiction to decide plaintiff’s appeal after he retired.
4
Lack of jurisdiction “constitutes a pure question of law” (Zuniga
v. Los Angeles County Civil Service Com. (2006) 137 Cal. App. 4th
1255, 1260 (Zuniga)), and so our review is de novo.
We hold the commission properly dismissed plaintiff’s
appeal because it has no jurisdiction to order reinstatement, or
any form of wage relief, to a retired person whose “future status
as an employee by definition is no longer at issue.” (County of
Los Angeles Dept. of Health Services v. Civil Service Com. of
County of Los Angeles (Latham) (2009) 180 Cal. App. 4th 391, 401
(Latham).) It does not matter whether the retirement results
from the retiree’s own decision to retire, or from a decision by the
retirement board that he or she is permanently incapacitated
from doing his job. In either case, the effect is the same: the
retiree is no longer an employee, and the commission no longer
has the authority to order reinstatement or wage relief.
1. The Applicable Legal Principles
The commission’s jurisdiction derives from the Charter of
the County of Los Angeles. (Monsivaiz v. Los Angeles County
Civil Service Com. (2015) 236 Cal. App. 4th 236, 240.) “ ‘A civil
service commission created by charter has only the special and
limited jurisdiction expressly authorized by the charter.’ ”
(Zuniga, supra, 137 Cal.App.4th at p. 1259.) The charter
specifies that the commission is to serve as an appellate body in
accordance with specified charter provisions, and as provided in
the Civil Service Rules. (Zuniga, at p. 1259.) “Thus, the
Commission has authority to act as an appellate body in very
narrow circumstances related to appeals by employees (or
applicants for employment) of discrimination claims, or appeals
by employees regarding ‘discharges and reductions.’ ”
(Monsivaiz, at pp. 240-241.)
5
Rule 2.24 of the Civil Service Rules (codified in appendix 1
of title 5 of the Los Angeles County Code) defines an employee as
“any person holding a position in the classified service of the
county. It includes officers.”
Several cases have held, under varying circumstances, that
an employee who properly appealed his discharge or other
discipline, but then resigned, retired, or died, was no longer an
employee, and the commission no longer had jurisdiction to
continue to adjudicate his appeal.
In Zuniga, a deputy sheriff challenged a suspension
without pay, but then retired from the department during the
suspension period. (Zuniga, supra, 137 Cal.App.4th at pp. 1257-
1258.) The court found the commission “lacked jurisdiction to
adjudicate [the plaintiff’s] claim after he resigned from the
Department.” (Id. at p. 1258.) The court concluded there was
“no provision in the charter granting the Commission authority
to hear a wage claim brought by a former civil servant.” (Id. at
p. 1259.)
A few years later, the Court of Appeal decided a case where
the plaintiff filed a timely appeal of her discharge, but then
retired while the proceedings were pending. (Latham, supra,
180 Cal. App. 4th 391.) After observing that the commission
initially had jurisdiction over the plaintiff’s appeal of her
discharge, Latham concluded: “Zuniga stands for the bright-line
proposition that, where an employee retires during the pendency
of a civil service appeal, her future status as an employee by
definition is no longer at issue. The then pending appeal becomes
a ‘wage claim brought by a former civil servant,’ and
under Zuniga the Commission has no jurisdiction over such a
wage claim because neither the charter nor Civil Service Rules
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vest such jurisdiction. (Zuniga, supra, 137 Cal.App.4th at
p. 1259.) In short, the Commission has authority to address only
matters involving a member of the civil service, and a person who
has retired is no longer a member of the civil service.” (Latham,
supra, 180 Cal.App.4th at p. 401.)
In Monsivaiz, we held that the death of a plaintiff during a
writ proceeding challenging his discharge “divested [the
commission] of jurisdiction, thereby mandating a dismissal of
plaintiff’s writ proceeding.” (Monsivaiz, supra, 236 Cal.App.4th
at p. 238.) We pointed out that a deceased former employee “does
not fit within the description of ‘employee’ ” under civil service
rule 2.24. (Monsivaiz, at p. 241.) We also observed that the
commission “can only resolve a claim for backpay in connection
with the restoration of an employee to service.” (Ibid.)
2. Plaintiff’s Contentions: The Hudson Case
There is one additional precedent involving, as here, a
disability retirement, and reaching a different result on entirely
different facts: Hudson v. County of Los Angeles (2014)
232 Cal. App. 4th 392 (Hudson). Hudson concluded the Zuniga
and Latham decisions did not apply “under the circumstances”
surrounding the Hudson plaintiff’s discharge and disability
retirement. (Hudson, at p. 413.) Hudson is founded in the
egregious circumstances permeating that case and does not
control our conclusion in this case.
Plaintiff’s contention the commission has jurisdiction
hinges entirely on Hudson, to which most of plaintiff’s brief is
devoted. Hudson did not hold, as plaintiff would have it, that the
commission retains jurisdiction over a discharge claim in any
case involving a disability retirement. The commission has no
authority to order a permanently disabled employee to return to
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work. In Hudson, by contrast, the “tangled web” in which the
plaintiff was caught (Hudson, supra, 232 Cal.App.4th at p. 406)
showed her future status as an employee remained at issue.
In Hudson, as here, the plaintiff was injured, the
department fired the plaintiff for misconduct, the plaintiff
appealed the discharge, and then LACERA found the plaintiff to
be permanently disabled. There, the similarities end.
In Hudson, LACERA found the plaintiff was permanently
disabled by an injury that was not service connected, so she was
not entitled to service-connected disability benefits; and because
she had worked for the department for less than five years, she
was entitled to no retirement benefits at all. (Hudson, supra,
232 Cal.App.4th at p. 397.) In contrast, here, plaintiff sought and
obtained a service-connected disability retirement with full
retirement benefits.
In Hudson, the plaintiff’s appeal of her discharge
culminated in a final decision by the commission finding her
discharge unjustified and requiring the department to restore her
employment. The department did not challenge the commission’s
jurisdiction before its decision became final and did not appeal
the commission’s decision. But the department did not comply
with the commission’s order, instead informing the plaintiff of
her “medical release” from her position as deputy sheriff.
(Hudson, supra, 232 Cal.App.4th at p. 397.)
The Hudson plaintiff then filed a second appeal to the
commission, alleging retaliation for her successful challenge to
her wrongful discharge. (Hudson, supra, 232 Cal.App.4th at
p. 397.) While that second appeal was pending, she and the
department entered into a written settlement agreement, under
which she would return to work in a 120-day custody assistant
8
assignment; undergo a medical reevaluation by LACERA; be
restored as deputy sheriff if LACERA determined she was no
longer disabled; and hired as a permanent custody assistant if
LACERA determined she remained disabled from performing the
duties of a deputy sheriff. She did in fact return to work as a
custody assistant pursuant to the written agreement (id. at
p. 398), and obtained doctors’ releases finding her fit for duty as a
deputy sheriff (id. at pp. 398-399). But LACERA refused to
reevaluate her because, due to financial necessity, she had
withdrawn her contributions and was no longer a LACERA
member. (Id. at p. 398.) Her 120-day work assignment with the
department expired, leaving her without employment, and then
the department refused to reinstate her to any position. (Id. at
p. 399.) After that, she sued both the department and LACERA,
alleging claims for breach of contract, writ of mandate, civil
rights violations, and more. (Id. at pp. 399-400.)
We will not further lengthen this opinion with other details
of the “unique, and somewhat tortured, factual chronology
involved” in Hudson. (Monsivaiz, supra, 236 Cal.App.4th at
p. 242.) The ensuing litigation was equally complex. Suffice it to
say that, when judgments were entered for the department and
LACERA—on grounds that did not involve lack of jurisdiction by
the commission—the plaintiff appealed, and the department
challenged the commission’s jurisdiction to render the original
reinstatement order that the department had ignored. (Hudson,
supra, 232 Cal.App.4th at pp. 405, 411.) The department
contended the commission’s authority to review the propriety of
the plaintiff’s discharge had ended when LACERA first
determined the plaintiff was permanently disabled (id. at p. 411),
relying on the Zuniga/Latham principles.
9
It is not surprising, given the Hudson facts, that the court
refused to apply the “bright-line” rule of Zuniga and Latham
“under the circumstances of this case.” (Hudson, supra,
232 Cal.App.4th at p. 413.) The court did so by contrasting the
“voluntary” resignation and retirement in those cases with the
conduct of the Hudson plaintiff—who fought tooth and nail not
only to be restored to her job with backpay, but also to force
LACERA to reevaluate her injury so that she could return to her
job.
Hudson contrasted the Zuniga and Latham voluntary
decisions to end employment with the Hudson plaintiff’s
circumstances, concluding her disability retirement “was not
necessarily an unequivocal expression of an intention to forever
abandon her Department employment.” (Hudson, supra,
232 Cal.App.4th at p. 413.) Hudson also pointed out that
LACERA has the authority to reevaluate the disability status of
retirement beneficiaries, and determine whether they are still
incapacitated for service (ibid.),1 something the Hudson plaintiff
sought from LACERA and indeed sued LACERA to obtain.
1 Government Code section 31729 states: “The board may
require any disability beneficiary under age 55 to undergo
medical examination. . . . Upon the basis of the examination the
board shall determine whether the disability beneficiary is still
physically or mentally incapacitated for service in the office or
department of the county or district where he was employed and
in the position held by him when retired for disability.”
Section 31730 states: “If the board determines that the
beneficiary is not incapacitated, and his or her employer offers to
reinstate that beneficiary, his or her retirement allowance shall
be canceled forthwith, and he or she shall be reinstated in the
county service pursuant to the regulations of the county or
10
Here, plaintiff offers Hudson as authority for a new bright-
line rule in the case of disability retirement: that when an
employee applies for disability retirement, is subsequently
discharged, timely appeals, and then is granted a disability
retirement, the commission retains jurisdiction over his civil
service appeal, no matter what the circumstances. According to
plaintiff, this is because permanent incapacity is not voluntary
and is determined by the LACERA retirement board (Gov. Code,
§ 31725), without regard to the employee’s intention. And,
because LACERA has the authority to reevaluate the incapacity
of a disability retiree under age 55 (see fn. 1, ante), a disability
retiree’s future employment status “remains at issue,” and “may
change in the future.” We disagree with plaintiff’s conclusion.
Hudson said nothing about displacing the Zuniga/Latham
rule in the case of any disability retirement. To the extent
Hudson may be read to suggest that the commission retains
jurisdiction unless a retiree “unequivocally demonstrate[s] his
intention and determination not to seek restoration of his
employment” (Hudson, supra, 232 Cal.App.4th at p. 412), and
that a disability retiree never does so, we disagree with that
analysis. The essence of the Zuniga/Latham rule is that a
plaintiff’s future status as an employee is not at issue after he
has retired. In the ordinary case, this is just as true of disability
retirees as it is of retirees who choose to retire after years of
district for reemployment of personnel.” Section 31733 states, in
part: “If a disability beneficiary is determined by the board to be
no longer incapacitated and re-enters the service of a public
agency covered by the retirement system under which he retired,
his disability retirement allowance shall cease immediately upon
such re-entry.”
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service: their future status as employees is not at issue, unless
they or their former employer choose to place it in issue. The
commission no longer has the authority to restore a disability
retiree to employment; only LACERA can determine that a
retiree is not, in fact, permanently incapacitated. (Gov. Code,
§ 31725.) As in any other retirement case, only a wage claim
remains, over which the charter gives the commission no
authority. (Zuniga, supra, 137 Cal.App.4th at p. 1259.)2
The existence of a case like Hudson—where the commission
did order the plaintiff’s employment restored, where the plaintiff
actively sought LACERA’s reevaluation so she could return to
work, and where the department actually agreed with the
plaintiff to return her to work and did return her to work in an
unsworn position during the course of the proceedings—does not
change the general rule. It is the exception, on egregious facts—
and it was clear throughout the long saga that the plaintiff’s
future status as an employee was at issue. Nothing in this case
suggests anything of the sort.
2 Plaintiff cites Hughes v. County of San Bernardino (2016)
244 Cal. App. 4th 542, saying Hughes supports the proposition
that we are not compelled to read the charter as we do. Hughes
held that San Bernardino County’s personnel rules did not
deprive its civil service commission of jurisdiction over a properly
initiated administrative appeal of an employee who later resigns
or retires before the appeal is concluded. (Id. at p. 553; see ibid.
[“the County has failed to show any grounds in the Personnel
Rules to deny that person a hearing if he or she thereafter
resigns or retires”].) The Zuniga line of cases concern the Los
Angeles County charter and civil service rules, not the San
Bernardino County personnel rules.
12
Plaintiff insists that LACERA has “a duty to re-evaluate
disability retirees,” and so he “may . . . face reinstatement in the
future.” This is complete speculation. Certainly, LACERA has
the authority to reevaluate plaintiff. (Gov. Code, § 31729.) But
there is not the slightest intimation in this record that he or the
department would seek such a reevaluation from LACERA. And
unless they do, there is nothing the commission can do to restore
plaintiff to employment. As we said in Monsivaiz, where the
plaintiff’s death prevented the restoration of employment, there
was “no act the superior court could mandate the Commission to
perform that was within its authority to undertake.” (Monsivaiz,
supra, 236 Cal.App.4th at p. 242.)
DISPOSITION
The judgment is affirmed. The department shall recover
costs on appeal.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
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