Garner v. City of Riverside

• Decision Date: 23 July 1985
• Citation: 170 Cal.App.3d 510,216 Cal.Rptr. 486
• Court: California Court of Appeals Court of Appeals
• Parties: David C. GARNER, Petitioner and Appellant, v. CITY OF RIVERSIDE, Respondent. Civ. 33340. E000748.

Page 486

216 Cal.Rptr. 486

170 Cal.App.3d 510

David C. GARNER, Petitioner and Appellant, v. CITY OF RIVERSIDE, Respondent.

Civ. 33340.

E000748.

Court of Appeal, Fourth District, Division 2, California.

July 23, 1985.

Review Denied October 23, 1985.

Samuel J. Wells, Los Angeles, for petitioner and appellant.

Parker & Dally and Joan E. Partritz, Pomona, for respondent City of Riverside.

OPINION

KAUFMAN, Associate Justice.

David C. Garner (petitioner) appeals from an order dismissing his petition for writ of administrative mandate on the ground it was not timely filed. We affirm.

Facts

Petitioner was employed as a police officer by respondent City of Riverside from approximately April 13, 1972, through December 25, 1978. The city had elected to have certain of its employees, including petitioner, become members of the Public Employees' Retirement System (PERS) and entered into a contract for that purpose pursuant to Government Code sections 20450 ¹ and 20493 ². (All statutory references will be to the Government Code unless otherwise specified.)

In April 1979, petitioner applied for service-connected disability retirement. His application for retirement was received by PERS on April 17, 1979. On September 26, 1980, PERS corresponded with the City of Riverside's City Manager concerning petitioner's application (see § 21024). ³ On November 6, 1980, Riverside's City Manager, Douglas G. Weiford, wrote to PERS stating in pertinent part: "David Garner was terminated for cause on April 13, 1979 and there were no mental or physical difficulties at the time he was separated. [p] Pursuant to authority delegated to me by action of the City Council of the City of Riverside under section 21034 Government Code and after review of evidence relevant thereto, I hereby determine that David C. Garner, a local safety member of the Public Employees Retirement System and formerly employed by the City of Riverside, was not incapacitated physically or mentally within the meaning of the Public Employees Retirement law for performance of his duties in the position of police officer at the time of his separation."

On November 26, 1980, PERS wrote to petitioner, stating in relevant part: "In accordance with Government Code, Section 21025, ⁴ your employer has determined that you are not incapacitated for the performance of your duties as a Policeman. [p] In accordance with the determination of City of Riverside, the application for your disability retirement is denied."

Apparently petitioner obtained a writ of mandate in Riverside Superior Court action No. 146067 which directed that a further hearing be held, because the parties are agreed that on August 27, 1982, the city manager conducted a hearing in accordance with an order of the court in that case. Thereafter, on October 15, 1982, the city manager issued his findings and decision in a letter addressed to petitioner with a copy sent to petitioner's attorney. Although the findings were stated in some detail, the ultimate finding was that at the time petitioner was terminated from employment with the Riverside Police Department he was not incapacitated either mentally or physically from performing the duties of a police officer. Accordingly, the application for disability was denied.

By letter dated October 22, 1982, to PERS with a copy to petitioner, the city manager notified PERS of his findings and determination in accordance with section 21025. (See fn. 4, ante.)

More than 10 months later, on September 2, 1983, petitioner filed the petition for writ of administrative mandate underlying this appeal. The petition alleged in relevant part: "On October 15, 1982, Respondent, BOARD OF RETIREMENT issued a Decision and the Findings of Fact denying the application of Petitioner for a service-connected disability retirement. ⁵ ... [p] The Findings of Respondent Board of Retirement are not supported by the weight of evidence...."

Although the city filed an answer to the petition for writ of administrative mandate and later an amended answer, it also filed what was denominated a motion to dismiss the petition on the ground it was not timely filed. After hearing, the court granted the motion, thereafter denied petitioner's motion for reconsideration and ultimately ordered the petition dismissed. It is from that order that petitioner appeals.

Contentions, Issues and Discussion

In the appellant's opening brief petitioner asserts that his mandate action was dismissed by the trial court "on the sole ground that Appellant was guilty of laches" without any evidence having been presented of either acquiescence or detrimental reliance by the city. Petitioner then proceeds to discuss only the laches question. However, petitioner's assertion as to the basis for the court's ruling and his decision to discuss only the question of laches are sadly mistaken. City's motion was made on the ground the petition was not timely filed and in support of that ground the city argued both laches and the 30-day statute of limitations prescribed in section 11523. ⁶ And in its order dismissing petitioner's action the court did not specify whether it did so on the basis of laches or the statute of limitations or both. If, therefore, the order of dismissal was proper on either basis, the order must be affirmed.

Happily, in the appellant's reply brief petitioner does address the statute of limitations problem. He asserts that the statute of limitations found in section 11523, which is part of the Administrative Procedures Act, is inapplicable to local agency decisions and because the decision-making power here was vested in the City of Riverside, he was not required to file his petition for mandate within the period specified in section 11523. We conclude the city is right and petitioner is wrong on this point, that his petition for mandate is barred by section 11523 and that the order of dismissal was therefore providently made. In view of these conclusions, we do not address the laches issue.

As indicated, section 11523 is part of the Administrative Procedures Act. There is no question but that if the decision denying petitioner's application for service-connected disability retirement is considered to have been made by the Board of Administration of PERS, the Administrative Procedures Act, including section 11523, is applicable. Sections 11500 and 11501 in combination expressly so provide. However, petitioner asserts the decision here was made by the City of Riverside, not PERS. We are not so certain.

As a technical matter, the statutory scheme appears to us to repose the legal responsibility to grant or deny an application for disability retirement in the Board of Administration, relegating the determination as to whether or not the employee is incapacitated for the performance of duty to the governing body of the contracting agency where a local safety member is involved. Section 21024 specifically provides that on receipt of an application with respect to a local safety member, "the board shall request the governing body of the contracting agency employing such member to make such determination [whether the member is incapacitated for the performance of duty]." Section 21025 requires the governing body of a contracting agency upon receipt of such a request from the Board of Administration to "certify to the board its determination under this section that the member is or is not so incapacitated." The statute does not provide or even authorize that the governing body of the contracting agency shall grant or deny the application. Indeed, the first part of section 21025 reads: "If the medical examination and other available information show to the satisfaction of the board, or in case of a local safety member the governing body of the contracting agency employing such member, that the member is incapacitated physically or mentally for the performance of his duties in the state service and is eligible to retire for disability, the board shall forthwith retire him for disability...." (Emphasis added.)

Thus, the statutory language indicates that the only determination to be made by the governing body of the contracting agency is whether or not the safety member is incapacitated for performance of his or her duties and that the formal decision to grant or deny the application for disability retirement is to be made by the Board of Administration. In fact, that was the procedure originally followed in this very case back in November 1980 before issuance of the writ in the earlier mandate action between the parties (Riverside Superior Court action No. 146067). (See text accompanying fn. 4, ante.) In addition, the statutory interpretation we suggest comports with petitioner's allegations in the petition in the present mandate action that "[o]n October 15, 1982, Respondent, BOARD OF RETIREMENT [sic: Board of Administration] issued a Decision ... denying the application of Petitioner for a service-connected disability retirement." (See fn. 5 and accompanying text, ante.)

If the suggested interpretation is correct, technically, the decision was by the Board of Administration of PERS and the petition for mandate was barred by the provisions of section 11523. However, even if the governing board of the contracting agency or its authorized representative is considered to have rendered the decision, the result is the same.

Petitioner is, of course, correct that generally the Administrative Procedure Act is not applicable to local agency decisions unless the local agency has adopted an ordinance, rule or regulation that it shall be bound by the Act. (See, e.g., Allen v. Humboldt County Board of Supervisors (1963) 220 Cal.App.2d 877, 883, 34 Cal.Rptr. 232.) However, petitioner is incorrect in asserting the decision of the city here was made in its capacity as a local agency. We agree with city that in making its determination whether or not a safety employee is incapacitated to perform his or her duties...