Schmidt v. Retirement Board

• Citation: 37 Cal.App.4th 1204,44 Cal.Rptr.2d 297
• Decision Date: 21 August 1995
• Docket Number: No. A065160,A065160
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 6670, 95 Daily Journal D.A.R. 11,285 Joanne SCHMIDT, Plaintiff and Respondent, v. RETIREMENT BOARD OF SAN FRANCISCO CITY AND COUNTY EMPLOYEES, Defendant and Appellant.

Page 297

44 Cal.Rptr.2d 297

37 Cal.App.4th 1204, 95 Cal. Daily Op. Serv. 6670,

95 Daily Journal D.A.R. 11,285

Joanne SCHMIDT, Plaintiff and Respondent, v. RETIREMENT BOARD OF SAN FRANCISCO CITY AND COUNTY EMPLOYEES, Defendant and Appellant.

No. A065160.

Court of Appeal, First District, Division 4, California.

Aug. 21, 1995.

As Modified on Denial of Rehearing Sept. 20, 1995.

Louise H. Renne, City Atty., Dan Maguire, David Benjamin, Deputy City Attys., San Francisco, for appellant.

James F. Harrigan, San Francisco, Maryann Dresner, San Francisco, for respondent.

PERLEY, Associate Justice.

Retirement Board of San Francisco City and County Employees (appellant) appeals from a judgment granting Joanne Schmidt's (respondent) petition for a peremptory writ of mandate. The writ of mandate commanded appellant to set aside its decision denying respondent a continuation of her deceased husband's retirement benefits. Appellant contends that the trial court erred in ruling that an ex parte order establishing the date of a marriage under HEALTH AND SAFETY CODE SECTION 10550¹ et seq. is conclusive under Code of Civil Procedure section 1908, subdivision (a)(1). We reverse.

FACTUAL BACKGROUND

Under San Francisco Charter section 8.573(d), respondent is eligible for a continuation of her deceased husband's retirement benefits ("continuation allowance") only if she was married to the deceased at least one year prior to his death. On April 27, 1992, respondent obtained an ex parte order, pursuant to section 10550 et seq., from the San Francisco Superior Court, which order judicially established that respondent and her deceased husband were married in 1975. ²

On June 12, 1992, an administrative hearing was held to consider evidence relating to respondent's application for a continuation allowance. The chief factual issue was whether respondent was married to her husband for at least one year prior to his death on January 5, 1992. ³ The administrative law judge issued a decision on January 8, 1993, denying respondent's application, based upon a factual finding that no valid marriage, or marriage ceremony, took place between respondent and her husband in November 1975. Central to the administrative law judge's decision was the determination that the April 27, 1992 ex parte order created only a rebuttable presumption of the fact of the November 1975 marriage.

On June 21, 1993, respondent filed a petition for a writ of mandate directing that the administrative decision be reversed. The trial court, after reviewing the considerable briefs submitted by both parties, ruled in favor of respondent. The court's decision was based upon a determination that the April 27, 1992 ex parte order establishing the fact of the November 1975 marriage between respondent and her husband was conclusive under Code of Civil Procedure section 1908, subdivision (a)(1). The court therefore issued a peremptory writ of mandate directing appellant to set aside its decision denying

respondent's continuation allowance. Due to the ex parte nature of the April 27, 1992 order, however, the court gave appellant 120 days from the date of judgment to seek to have the order either vacated or modified by the court which originally issued the order. This appeal followed. ⁴

DISCUSSION

1. Appellate Jurisdiction

As a preliminary matter, we consider respondent's contention that appellant cannot establish appellate jurisdiction because (1) it is not an aggrieved party under Code of Civil Procedure section 902, and (2) it has impliedly waived its right to appeal. We conclude that appellant has standing to appeal.

An aggrieved party has been defined as one who has an immediate, pecuniary, and substantial interest that is injured by the judgment. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737, 97 Cal.Rptr. 385, 488 P.2d 953.) In support of its contention that appellant is not an aggrieved party, respondent cites (Hensley v. Hensley (1987) 190 Cal.App.3d 895, 235 Cal.Rptr. 684.) In Hensley, the defendants argued that the trial court should have modified, rather than set aside, a default money judgment entered against them. (Id. at p. 897, 235 Cal.Rptr. 684.) Recognizing that the defendants would as a result have to defend the case on the merits, the court nevertheless ruled that the defendants were not an aggrieved party. (Id. at p. 899, 235 Cal.Rptr. 684.) "[The defendants] seek review of a court order which, while not granting the exact form of relief sought (a modification of the damages award to zero), offers them total relief from the default judgment. The immediate result is the same: the [defendants] are no longer burdened by a money judgment against them." (Ibid.)

In the present case, however, the judgment did not grant appellant "total relief." Notwithstanding the opportunity offered to seek to modify or vacate the April 27, 1992 ex parte order, which right appellant possessed in spite of the judgment (see 8 Witkin, Cal.Procedure (3d ed. 1985) Attack on Judgment in Trial Court, § 195, pp. 594-595), the effect of the judgment was to obligate appellant to pay respondent a continuation allowance for the duration of her life or until she remarries. (San Francisco Charter § 8.573.) Such an immediate, pecuniary, and substantial obligation certainly makes appellant an aggrieved party.

Respondent contends that appellant waived its right to appeal because it "voluntarily complied" with the judgment and "accepted the benefit" of the judgment. "It is well settled [that] a party who voluntarily complies with the terms of a judgment impliedly waives the right to appeal." (A.L.L. Roofing & Bldg. Materials Corp. v. Community Bank (1986) 182 Cal.App.3d 356, 359, 227 Cal.Rptr. 308; Reitano v. Yankwich (1951) 38 Cal.2d 1, 2, 237 P.2d 6.) Compliance with a judgment must be shown by way of compromise or an agreement not to appeal. (Reitano v. Yankwich, supra, at p. 3, 237 P.2d 6.) Similarly, voluntary acceptance of the benefit of the judgment bars an appeal from that judgment. (Epstein v. DeDomenico (1990) 224 Cal.App.3d 1243, 1246, 274 Cal.Rptr. 521.) Acceptance, however, must be unconditional, voluntary, and absolute. (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 744, 131 Cal.Rptr. 873, 552 P.2d 1169.) "Furthermore, where the benefits accepted are those to which the appellant would be entitled even in the event of reversal, acceptance thereof does not bar prosecution of the appeal." (Ibid.)

Here, it can hardly be said that appellant's unsuccessful motion to set aside the April 27, 1992 ex parte order constituted either voluntary compliance with, or acceptance of, the benefits of the judgment. In seeking to set aside the order, appellant was not acting voluntarily but under compulsion of having to pay respondent a continuation allowance. The record fails to disclose that this motion was made by way of compromise or an agreement not to appeal. In addition, the opportunity to pursue this motion was not a benefit conferred by the judgment, but one to which appellant was already entitled. Lastly, appellant made it abundantly clear in its memorandum of points and authorities in support of its motion to set aside the ex parte order that it was not waiving its right to appeal: "The Board does not agree that the ex parte Order is binding on the Retirement Board, or that the Board is legally required to attempt to set the order aside. [Citations.] By bringing this motion, the Board does not waive its right to appellate review of these or related issues."

2. Section 10550 et seq.

The issue presented by this appeal is whether an ex parte judicial order establishing the fact of a marriage, issued under section 10550 et seq., conclusively establishes that fact. We are unable to find any reported cases specifically addressing this issue. For the reasons discussed below, we conclude that the trial court erred not only in determining that the ex parte order was conclusive but also in according it any evidentiary effect.

"In construing a statute a court's objective is to ascertain and effectuate the underlying legislative intent." (Moore v. California State Bd. of Accountancy (1992) 2 Cal.4th 999, 1012, 9 Cal.Rptr.2d 358, 831 P.2d 798.) We turn first to the words themselves for the answer. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406.) "Words used in a statute ... should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature...." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.) However, "the 'plain meaning' rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible." (Ibid; see also DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18, 194 Cal.Rptr. 722.)

Division 9 of the Code entitled "Vital Statistics," provides a comprehensive scheme for the registration and certification of all births, deaths, and marriages. (Health & Saf.Code, § 10000 et seq.) Each of these events must be registered with the local registrar within a certain number of days after it occurs. Under this statutory scheme, marriages must "be registered by the person performing the ceremony" within 30 days. (§ 10325; Fam.Code, § 423.)

Sections 10550 through 10558 of the Code are found in Division 9, Chapter 10, which is entitled, "Court Proceedings to Establish Record of Birth, Death or Marriage." Chapter 10 provides for ex parte court proceedings "to judicially establish the fact of, and the time...