Ragan v. City of Hawthorne

• Decision Date: 08 August 1989
• Docket Number: No. B038098,B038098
• Citation: 261 Cal.Rptr. 219,212 Cal.App.3d 1361
• Court: California Court of Appeals Court of Appeals
• Parties: Pamela RAGAN, Plaintiff and Appellant, v. CITY OF HAWTHORNE, Defendant and Respondent. Civ.

Page 219

261 Cal.Rptr. 219

212 Cal.App.3d 1361

Pamela RAGAN, Plaintiff and Appellant, v. CITY OF HAWTHORNE, Defendant and Respondent.

Civ. No. B038098.

Court of Appeal, Second District, Division 5, California.

Aug. 8, 1989.

Lewis, Marenstein & Kadar and Thomas J. Wicke, Los Angeles, for plaintiff and appellant

Adams, Duque & Hazeltine and Richard R. Terzian, Margaret L. Oldendorf and Remy Kessler, Los Angeles, for defendant and respondent.

ASHBY, Associate Justice.

Appellant Pamela Ragan was formerly employed as a police officer for respondent City of Hawthorne. She applied for an industrial disability pension. Without giving appellant an evidentiary hearing, respondent's city manager denied appellant's application for a pension. Three years later, appellant petitioned the superior court for a writ of mandate (Code Civ.Proc. § 1085) to compel the city manager to conduct an evidentiary hearing, as required by law, on the issue of disability. The trial court denied the petition on the ground it was untimely. The trial court ruled that the petition was governed by the 30-day statute of limitations (Gov.Code, § 11523) for judicial review of administrative adjudication under the Administrative Procedure Act (APA) (Gov.Code, § 11370), and, alternatively, that the petition was barred by laches.

We reverse. Government Code section 11523 is not applicable to appellant's circumstances, because that statute contemplates judicial review after an agency has conducted an adjudicatory hearing pursuant to the APA. Here the City has steadfastly refused to give appellant a hearing, and this is an action in ordinary mandamus to compel the City to provide a hearing required by law. Appellant satisfied the statute of limitations which we find to be applicable to her case, which is three years for a liability created by statute. (Code Civ.Proc., § 338, subd. (a).) Furthermore, although a petition for writ of mandate can be denied on the equitable ground of laches, even if filed within the applicable statute of limitations, an essential element of laches is prejudice to the defendant. Finding no substantial evidence of prejudice to respondent in this case, we reverse with directions to grant the petition.

BACKGROUND

The legal issues in this case require a brief review of the pension system of which appellant is a member and the rights to which she is entitled. Under the Public Employees' Retirement Law (Gov.Code, § 20000, et seq.), the City of Hawthorne by contract with the state Public Employees' Retirement System (PERS), has made its public safety employees members of PERS. (Gov.Code, § 20450.) The contract subjects the City as contracting agency and its employees "to all provisions of this part." (Gov.Code, § 20493.) Under PERS a local safety member incapacitated for the performance of duty as a result of an industrial disability shall be retired for disability. (Gov.Code, § 21022.)

Although the application for industrial disability pension is formally submitted to the governing board of PERS, the determination whether a local safety member is incapacitated for the performance of duties is delegated to the governing body of the contracting agency, which then certifies its determination to PERS. (Gov.Code, §§ 21024, 21025.) As authorized by Government Code section 21034, the city council as governing body of the City of Hawthorne has delegated its authority in this determination to the city manager.

Although Government Code sections 21024 and 21025 did not expressly specify the procedures by which the local contracting agency would make its determination, Reynolds v. City of San Carlos, 126 Cal.App.3d 208, 219, 178 Cal.Rptr. 636 suggested as early as 1981 that the contracting agency would be governed by the APA. In July 1985, it was expressly so held in Garner v. City of Riverside, 170 Cal.App.3d 510, 515-517, 216 Cal.Rptr. 486. In Watkins

v. City of Santa Ana (1987) 189 Cal.App.3d 393, 396-397, 234 Cal.Rptr. 406, the court summarized that the employee "had a fundamental vested right to disability retirement benefits if, in fact, he was disabled. The city's decision on that threshold question substantially affects that right. Therefore, a hearing is contemplated, indeed required, by the Administrative Procedure Act. Since PERS is expressly governed by that statutory scheme, the city, as the statutory delegate of PERS when determining whether a police officer is disabled, is likewise governed by those sections. It must therefore hold an evidentiary hearing to determine whether Watkins is capable of performing his duties." (Citations omitted.)

FACTS

Appellant was employed by respondent as a police officer from October 1980 to May 1984. In April 1985, appellant submitted her application for disability retirement to PERS. PERS requested respondent to determine whether appellant was disabled. Without giving appellant an evidentiary hearing, the city manager wrote to PERS on June 6, 1985, that "[p]ursuant to the authority delegated to me ... and after review of medical and other evidence relevant thereto, I hereby determine that Pamela Ragan, ... is not incapacitated within the meaning of the Public Employees' Retirement Law for the performance of her duties in the position of police officer. Accordingly, the application is denied." A carbon copy of this letter was sent to appellant personally. On July 15, 1985, PERS wrote to appellant personally that "[i]n accordance with the determination of City of Hawthorne, the application for your disability retirement is denied." Neither of these letters discussed any procedures or time limits for appeal, reconsideration or review of the decision.

Although the application for pension had been sent to PERS with a cover letter from appellant's attorney, there is no evidence that the City or PERS notified the attorney in 1985 of the denial. On May 27, 1986, appellant's attorney wrote to the City inquiring about the status of the retirement application. The City replied to the attorney on June 6, 1986, that the retirement application "was handled in a timely manner," enclosing copies of the correspondence between the City and PERS. On June 18, 1986, appellant's attorney wrote to the City, requesting that the matter be set for a hearing pursuant to the Government Code as quickly as possible. The City replied on June 30, 1986 that "[a]s far as the City is concerned, Ms. Ragan's application for retirement was resolved in 1985. Since there was no timely appeal, it is a closed matter."

Appellant's attorney wrote back to the City on October 30, 1986, specifically citing Reynolds v. City of San Carlos, supra, 126 Cal.App.3d 208, 219, 178 Cal.Rptr. 636, Garner v. City of Riverside, supra, 170 Cal.App.3d 510, 517, 216 Cal.Rptr. 486 and Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29, for the proposition that appellant was entitled to a hearing under the APA or under due process.

In December 1986, the City referred the matter to legal counsel. Appellant's attorney again requested that the City give appellant a hearing in order to avoid the filing for a writ in superior court. In February 1987 legal counsel for the City replied that "we consider this to be a closed matter." Appellant's attorney wrote one more letter in April 1987, stating "the City has not met its most minimal due process obligations in this regard. Why doesn't your client just go ahead and have a retirement [hearing] as it should rather than force Ms. Ragan to go through the costs and time of having to file a Writ before the Superior Court?" The record does not indicate any additional reply from the City.

DISCUSSION

Statute of Limitations

The trial court erred in holding the 30-day statute of limitations in Government Code section 11523 to be applicable to appellant's present circumstances. The language of section 11523, and its placement in the chapter of the APA involving adjudicatory hearings (Gov.Code, § 11500, et seq.) show that it was intended to apply to petitions seeking judicial review after an agency has held a formal hearing in compliance with the APA. That stage has not yet been reached in this case. Appellant is here seeking to compel the City to conduct such a hearing. By its own terms, section 11523 is not applicable at this stage of the case.

Section 11523 appears near the end of the chapter, commencing with Government Code section 11500, on adjudicatory hearings by agencies which are subject to the APA. Such hearings are defined in section 11500, subdivision (f) to include testimony under oath, the right of cross-examination and confrontation of witnesses, the right to representation, and the issuance of a formal decision. That chapter specifies in great detail the procedural requirements for hearings. (See, e.g., notice of hearing ( § 11509), subpoenas and attendance of witnesses ( § 11510), hearing officers ( § 11512), reporter (Id.), evidence and examination of witnesses ( § 11513), decision in writing containing findings of fact ( §§ 11517, 11518), and reconsideration ( § 11521).)

Section 11523 itself provides in pertinent part, "Judicial review may be had by filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure.... Except as otherwise provided in this section any such petition shall be filed within 30 days after the last day on which reconsideration can be ordered.... The complete record of the proceedings, or such parts thereof as are designated by the petitioner, shall be prepared by the agency.... The complete record includes the pleadings, all notices and orders issued by the agency, any proposed decision by a hearing officer, the final decision, a transcript of all proceedings, the exhibits admitted or rejected, the written evidence and any other papers in the case." (Emphasis added.)

Here appellant is not seeking to review a hearing but to compel one, and there is no...