Flaherty v. Board of Retirement of Los Angeles County Emp. Retirement Ass'n

• Decision Date: 22 December 1961
• Citation: 198 Cal.App.2d 397,18 Cal.Rptr. 256
• Parties: Franklin S. FLAHERTY, Plaintiff and Appellant, v. BOARD OF RETIREMENT OF the LOS ANGELES COUNTY EMPLOYEES RETIREMENT ASSOCIATION, an Unincorporated Association; H. L. Byram, Gladys Johnson, Milton J. Brock, Jr., Allen D. Harper, Mary Ann Hollisbaugh, James P. Nunnelley, and Luther D. Russell, Constituting the Members of Said Board; Los Angeles County Employees Retirement Association, an Unincorporated Association, Defendants and Respondents. Civ. 25197.
• Court: California Court of Appeals Court of Appeals

Page 256

18 Cal.Rptr. 256

198 Cal.App.2d 397

Franklin S. FLAHERTY, Plaintiff and Appellant, v. BOARD OF RETIREMENT OF the LOS ANGELES COUNTY EMPLOYEES RETIREMENT ASSOCIATION, an Unincorporated Association; H. L. Byram, Gladys Johnson, Milton J. Brock, Jr., Allen D. Harper, Mary Ann Hollisbaugh, James P. Nunnelley, and Luther D. Russell, Constituting the Members of Said Board; Los Angeles County Employees Retirement Association, an Unincorporated Association, Defendants and Respondents.

Civ. 25197.

District Court of Appeal, Second District, Division 3, California.

Dec. 22, 1961.

Hearing Denied Feb. 14, 1962.

Jordan, Dodge, Kemble & Loveridge and Paul F. Loveridge, Santa Ana, for appellant.

Harold W. Kennedy, County Counsel, and Edward H. Gaylord, Deputy County Counsel, Los Angeles, for respondents.

Henry A. Dietz, County Counsel of San Diego County, and Joseph Kase, Jr., Deputy County Counsel, San Diego, amici curiae on behalf of respondents.

FORD, Justice.

The plaintiff, who had been employed by the East Los Angeles Fire Protection District, sought to compel the Board of Retirement of the Los Angeles County Employees Retirement Association to pay him a pension on the basis that he had become permanently incapacitated for the performance of duty as a result of injury arising out of and in the course of his employment. The Board of Retirement had determined that he should be 'retired as a safety member under an unmodified nonservice-connected disability retirement allowance, effective November 5, 1958.' A writ of mandate was denied. The plaintiff has appealed. ¹

At the time of the determination made by the board, the plaintiff was a 'safety member' ² of the Los Angeles County Employees Retirement Association under the provisions of the County Employees Retirement Law of 1937. (Gov.Code, § 31450 et seq.) During his employment as a fireman, the plaintiff was directed to participate in physical activities while on duty, including the playing of games such as volleyball. He claimed that his disability was due to an injury suffered by him during such a game on July 27, 1957.

At its meeting on November 5, 1958, the Board of Retirement had before it Captain Flaherty's application for disability retirement and written statements from physicians and surgeons who had attended or examined him, including statements addressed to the State Compensation Insurance Fund. The board heard the testimony of Gerald A. Heidbreder, M.D., its adviser on medical matters (see Gov.Code, § 31530), but no phonographic record was made of the testimony. However, the board had before it the letter of Dr. Heidbreder of November 3, 1958, in which, after reviewing written statements of some of the other medical doctors, he stated in part as follows: 'The applicant is permanently disabled for performance of his duties as a fire captain in the Fire Department as a result of chondromalacia, left femur, discoid left medial semilunar cartilage with hypertrophy of the fat pad of the left knee. Therefore, disability retirement is recommended. Service connection, in the opinion of the writer, has not been established.' The application for a service-connected disability retirement allowance was denied without prejudice by the board.

On or about December 3, 1958, Chief Engineer K. E. Klinger of the Los Angeles County Fire Department requested the board to reconsider its action of November 5, 1958. Thereupon the board ordered that an examination of Captain Flaherty be made by an orthopedic surgeon. Pursuant thereto, such an examination was made by C. W. Lambert, M.D. At its meeting on May 6, 1959, the board had before it additional written statements of physicians and surgeons. That of Stanley S. Haft, M.D., stated: 'Please note that Mr. Flaherty was disabled as the result of an industrial injury which occurred on 7-27-57.' In Dr. Lambert's report, based upon the examination of Captain Flaherty and the history related by him as well as upon a study of the record of the surgical procedure carried out on the left knee by Dr. Haft, the opinion was expressed that Captain Flaherty's disability was 'due to a non-industrial injury.' Dr. Heidbreder testified again but no phonographic record was made of his testimony. His letter of April 10, 1959, which was before the board, contained the statement that Dr. Lambert's report substantiated Dr. Heidbreder's opinion previously expressed that 'service-connection had not been established.' On May 6, 1959, the board again denied without prejudice the request for retirement because of service-connected disability.

On November 16, 1959, in a proceeding entitled Franklin S. Flaherty, Applicant, vs. East Los Angeles Fire Protection District, and State Compensation Insurance Fund, Defendants, the Industrial Accident Commission made findings of fact and rendered an award in favor of Captain Flaherty. One of such findings was that 'Franklin S. Flaherty, * * * while employed as a fire captain on July 27, 1957, * * * by East Los Angeles Fire Protection District, sustained injury arising out of and occurring in the course of the employment, to both knees, more specifically, to the left knee.' A further finding was that such injury caused permanent disability. By a letter dated December 1, 1959, Captain Flaherty requested that the board reconsider his application. At its meeting on January 6, 1960, in addition to the documents theretofore before it, the board had a copy of the findings and award of the Industrial Accident Commission. Dr. Heidbreder testified but again no phonographic record was made of his testimony. However, his letter of January 5, 1960, was in the record. After stating that he had 're-reviewed' the entire file, Dr. Heidbreder wrote: 'It is still the considered opinion of this reviewer that the applicant is permanently disabled for the performance of his duties as a fire captain in the Fire Department as a result of a chondromalacia of the left femur and that a non-service-connected disability retirement recommendation is reaffirmed. It is still the further considered opinion of this reviewer that service-connection has not been established.' The application for retirement because of service-connected disability was again denied without prejudice. Thereafter the petition of the appellant was filed in the superior court.

The first contention of the appellant is that the findings of fact of the Industrial Accident Commission, to which reference has been made, are res judicata. In the consideration of this question, it is to be noted that each determination of the Board of Retirement was stated to be without prejudice to the renewal of the application and hence was not a final determination. (See Wilkins v. Wilkins, 95 Cal.App.2d 611, 613, 213 P.2d 752.) In support of his position, the appellant places reliance on French v. Rishell, 40 Cal.2d 477, 254 P.2d 26, in which it was held that a finding of fact made by the Industrial Accident Commission that the death of a captain of the Oakland Fire Department proximately resulted from an injury occurring in the course of and arising out of his employment was res judicata with respect to his widow's claim of a right to receive a pension payable out of the Firemen's Relief and Pension Fund of the City of Oakland. The answer admitted that the city had failed to seek any review of the commission's award which had become final. The Supreme Court said at page 479, 254 P.2d at page 27: 'The doctrine of res judicata is applicable where the identical issue was decided in a prior case by a final judgment on the merits and the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication.' In applying the doctrine to the case before it, the court stated (40 Cal.2d, at page 482, 254 P.2d at page 29): 'It is immaterial that the pension board was not a party to the Industrial Accident Commission proceeding. The city, which is not only a party herein but the real party in interest, was also a party to and appeared in the prior proceeding. Under the city charter, the pension board acts as an agent of the city, and, in this representative capacity, it is bound by the commission's decision if the city is bound.'

While in the French case the City of Oakland was a party in both proceedings, in the present case the East Los Angeles Fire Protection District was a party to the proceeding before the commission and the Los Angeles County Employees Retirement Association was not. In the retirement proceeding, the party against whom the claim of Captain Flaherty was asserted was the association. Therefore, in determining the applicability of the doctrine of res judicata, it is necessary to consider the respective natures of the district and the association and the relation of each to the other.

The East Los Angeles Fire Protection District is not a department or agency of the County of Los Angeles but is a separate entity formed under state law. (See Johnson v. Fontana County Fire Protection District, 15 Cal.2d 380, 387-388, 101 P.2d 1092; Firestone Tire & Rubber Co. v. Board of Supervisors, 166 Cal.App.2d 519, 529, 333 P.2d 378; cf. Orinda-County Fire Protection Dist. v. Frederickson and Watson Co., 174 Cal.App.2d 589, 344 P.2d 873; Moore v. Municipal Court, 170 Cal.App.2d 548, 554, 339 P.2d 196.) Its employees are not ipso facto employees of the county. (Health & Saf.Code, § 14451.)

The Los Angeles County Employees Retirement Association exists pursuant to the provisions of the County Employees Retirement Law of 1937. ,(Gov.Code, § 31450 et seq.) The benefits of the retirement law are obtained by membership in the retirement association. (McNeil v. Board of Retirement, 51 Cal.2d 278, 281, 332 P.2d 281; see Gov.Code, § 31474.) Under section 31557 of the Government Code, such membership is obtained for officers and employees of a district of which the board of supervisors is the governing body as a result of the adoption by such...