Piscioneri v. City of Ontario

• Decision Date: 08 January 2002
• Docket Number: No. E029472.,E029472.
• Citation: 95 Cal.App.4th 1037,116 Cal.Rptr.2d 38
• Court: California Court of Appeals Court of Appeals
• Parties: James PISCIONERI, Plaintiff and Respondent. v. CITY OF ONTARIO et al., Defendants and Appellants.

116 Cal.Rptr.2d 38

95 Cal.App.4th 1037

James PISCIONERI, Plaintiff and Respondent. v. CITY OF ONTARIO et al., Defendants and Appellants.

No. E029472.

Court of Appeal, Fourth District, Division 2.

January 8, 2002.

Filarsky & Watt and Steve A. Filarsky, Manhattan Beach, for Defendants and Appellants.

Lemaire, Faunce, Pingel & Singer, Edward L. Faunce, Seal Beach, and Larry J. Roberts, for Plaintiff and Respondent.

OPINION

HOLLENHORST, Acting P.J.

The trial court granted a petition for writ of mandate which commands defendant City of Ontario (City) to immediately schedule a hearing on plaintiffs applications for a disability retirement. The City appeals.

FACTS

Mr. James Piscioneri was employed by the City of Ontario as a firefighter from 1984 through 1987. On November 20, 1987, he filed an application for a disability retirement with the Public Employees' Retirement System (PERS). PERS then notified the City to make a disability determination within six months, as required by former Government Code section 21025.1 (now § 21157).¹

On January 5, 1989, the city manager denied the application. The notice of determination states: "Although it has previously been determined medically and legally that Mr. Piscioneri has sustained a permanent disability as the result of his injuries on March 18, 1985 and May 22, 1985, constituting a psychiatric disability in the form of a slight phobia with respect to entering burning buildings, Mr. Piscioneri appears to be fully capable of performing the duties of Paramedic Coordinator which is a regular safety position in the Fire Department. Such position was offered to Mr. Piscioneri, without a reduction in his pay or other benefits in writing on August 17, 1988. At this time, having received no response from Mr. Piscioneri with respect to his acceptance or rejection of this offer of continued employment, I have determined that his failure to respond appropriately to the City's offer is tantamount to a rejection of the offer."

Mr. Piscioneri alleges that, on March 6, 1989, he appealed the notice of determination, and requested an administrative hearing on his application. He further alleges that he and the City agreed to continue the hearing until conclusion of his workers' compensation proceeding. The workers' compensation proceedings were allegedly completed on September 25, 1991. The City denies these allegations.

On June 14, 1992, Mr. Piscioneri filed a petition for writ of mandate which sought an order compelling the City to either give him a disability retirement or a modified duty assignment. In response, the City offered Mr. Piscioneri a firefighter job, and ordered him to report to work on December 1, 1992. He did so. On December 14, 1992, Mr. Piscioneri was examined by a psychiatrist who diagnosed posttraumatic stress disorder as a result of his two firefighting injuries. The psychiatrist found that Mr. Piscioneri was extremely angry at the City over the handling of his claim, and that he was not fit for duty because of his posttraumatic stress disorder. The psychiatrist recommended that Mr. Piscioneri be medically retired, and recommended that he be given therapy.

The City then placed Mr. Piscioneri in an off-work status, and it denied his further claim for a disability retirement on December 21, 1992. The denial was contained in a letter from the City's attorney. It stated that the City had discovered that Mr. Piscioneri had only taken a brief leave of absence from his employer in Washington state, and it called him a "total fraud [who] had no intention of returning permanently to work, and that his return to work on December 1, 1992 was for the sole purpose of orchestrating a stress claim." The letter denied that the City had sent Mr. Piscioneri for a psychiatric evaluation, and alleged that the psychiatrist had either been duped by Mr. Piscioneri or was a willing accomplice.

On January 11, 1993, the City agreed to reactivate the disability retirement proceeding, and it agreed to coordinate hearing dates with Mr. Piscioneri's counsel. On January 22, 1993, the City notified Mr. Piscioneri's counsel that a hearing was set for April 19-21. It also served a statement of issues and a request for discovery.

Mr. Piscioneri obtained new counsel at some time after February 5, 1993. On March 24, 1993, the City's counsel notified the previous attorney that it had not received a substitution of attorneys, Mr. Piscioneri was refusing to have his deposition taken, and there had been no response to the discovery request. The letter then states: "All of this leaves me no alternative but to cancel the scheduled disability retirement hearing." The City then sent a letter requesting that the hearing be taken off calendar "until such time as the parties agree to a mutually acceptable date."

Nothing further occurred until August 11, 1994. At that time, new counsel for Mr. Piscioneri requested a hearing. The City did not reset the hearing, and it alleges that the promised discovery was not provided to it.²

On February 27, 1997, Mr. Piscioneri's workers' compensation claim was resolved by compromise and release.

On March 5, 1999, Mr. Piscioneri's current counsel filed a second application for disability retirement. On March 17th, the City's counsel responded that the claim was untimely, and that it was denied. On April 13, 1999, the City's personnel services director confirmed the denial of the application and refused to submit the matter to hearing.

On August 20, 1999, the subject petition for writ of mandate was filed to compel the City to grant Mr. Piscioneri a hearing on his first application for a disability retirement and/or to file a statement of issues on the second application in order to initiate the hearing process on that application. (§ 11504.)

As noted above, the trial court granted the petition. It found that the second petition for writ of mandate is not timebarred. It concluded that the issues of an unwarranted delay in prosecuting the first claim and/or whether the second claim was filed in a timely manner are issues which should be first determined at the administrative hearing. Accordingly, it ordered that a hearing be immediately scheduled on both applications.

THE TIMELINESS OF THE SECOND APPLICATION: SECTION 2115k

The City first contends that the second application for disability retirement, filed in March 1999, was untimely because it was not filed within the time prescribed by section 21154.

Section 21154 states: "The application shall be made only (a) while the member is in state service, or (b) while the member . . . is absent on military service, or (c) within four months after the discontinuance of state service of the member, or while on an approved leave of absence, or (d) while the member is physically or mentally incapacitated to perform duties from the date of discontinuance of state service to the time of application or motion. On receipt of an application for disability retirement of a member other than a local safety member with the exception of a school safety member, the board shall, or of its own motion it may, order a medical examination of a member who is otherwise eligible to retire for disability to determine whether the member is incapacitated for the performance of duty. On receipt of the application with respect to a local safety member other than a school safety member, the board shall request the governing body of the contracting agency employing the member to make the determination." (Italics added.) Disability is defined as "disability of permanent or extended and uncertain duration, as determined by the board, or in the case of a local safety member by the governing body of the contracting agency employing the member, on the basis of competent medical opinion." (§ 20026.)

The City contends that Mr. Piscioneri's second application was time-barred because it was not filed within four months of the discontinuance of service, as required by subdivision (c) of section 21154. Mr Piscioneri relies on subdivision (d), contending that the trial court properly found that the issue should be initially resolved by the administrative hearing. The issue to be determined in that hearing is whether Mr. Piscioneri was incapacitated. (§§ 21154, 21156.) Thus, Mr. Piscioneri argues that it is premature to deny him the opportunity to show he factually comes within subdivision (d), i.e., the opportunity to show he has been physically or mentally incapacitated to perform duties from the date of discontinuance of service until the filing of the application.

The City argues that Mr. Piscioneri's interpretation of clause (d) nullifies clause (c). It discusses the legislative history of section 21154. However, its lengthy recitation of legislative history is unsupported by any citations to the record. Even if we considered the legislative material, it would not shed any light on the legislative intent.³

Mr. Piscioneri relies on the plain meaning rule, and we agree with him that resort to the legislative history of section 21154 is unnecessary. As our Supreme Court has said in a recent case: "As with any statutory construction inquiry, we must look first to the language of the statute. `To determine legislative intent, a court begins with the words of the statute, because they generally provide the most reliable indicator of legislative intent.' [Citation.] If it is clear and unambiguous our inquiry ends. There is no need for judicial construction and a court may not indulge in it. [Citation.] `If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.' [Citation.]" (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1047, 80 Cal.Rptr.2d 828, 968 P.2d 539.) At a later point in the opinion, the court said: "Only when the language of a statute is susceptible to more than one reasonable construction is it appropriate to turn to extrinsic aids,...