Smith v. City of Napa

• Decision Date: 30 June 2004
• Docket Number: No. C044944.,C044944.
• Citation: 14 Cal.Rptr.3d 908,120 Cal.App.4th 194
• Court: California Court of Appeals Court of Appeals
• Parties: Jeffrey SMITH, Plaintiff and Appellant, v. CITY OF NAPA, et al., Defendants and Respondents.

14 Cal.Rptr.3d 908

120 Cal.App.4th 194

Jeffrey SMITH, Plaintiff and Appellant, v. CITY OF NAPA, et al., Defendants and Respondents.

No. C044944.

Court of Appeal, Third District.

June 30, 2004.

Certified for Partial Publication.^*

Rehearing Denied July 19, 2004.

Review Denied September 22, 2004.^**

Law Offices of John A. Bloom, John A. Bloom and David L. Matt, Santa Rosa, for Plaintiff and Appellant.

Thomas B. Brown, City Attorney, David C. Jones, Deputy City Attorney; Liebert Cassidy Whitmore, Richard S. Whitmore, San Rafael, Jack W. Hughes, Mountain View; and William J. Gersten for Defendants and Respondents.

DAVIS, J.

Defendant City of Napa (City) dismissed plaintiff Jeffrey Smith from its fire department after he failed remedial tests of his competency at required skills. On the effective date of his dismissal, he filed an application for a disability retirement. (Gov.Code, § 21150 et seq.)¹ While his disability application was pending, the City Council affirmed the appeal of his dismissal. Defendant Board of Administration of the California Public Employees' Retirement System (CalPERS) eventually denied the disability claim, citing Haywood v. American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292, 79 Cal.Rptr.2d 749 (Haywood), because plaintiff no longer had an employment relationship with the City.

The plaintiff filed this petition for a writ of mandate to direct the defendants to consider the merits of his application for a disability retirement. As the plaintiff failed to make a timely request for a statement of decision, the superior court summarily denied the petition.

In the published part of this opinion, we reject his criticisms of the Haywood holding as dictum extraneous to its ratio decidendi and as inconsistent with Supreme Court precedent. We also explain an oft-repeated qualification in Haywood that its ruling does not apply to a dismissal that "preempts" an otherwise valid claim for disability retirement. (67 Cal.App.4th at pp. 1297, 1306, 1307, 79 Cal.Rptr.2d 749.) Contrary to the belief of the defendants, it does not refer only to a dismissal intended to thwart a claim for disability retirement, because a dismissal for cause cannot defeat an employee's matured right to a disability retirement antedating the event providing cause for the dismissal. The plaintiff, however, does not qualify for this restated exception to Haywood. We reject the remainder of his arguments in the unpublished portion of the Discussion. We will affirm the judgment.

STANDARD OF REVIEW

In cases such as this, involving the fundamental vested rights of a plaintiff, the superior court exercises independent review of the administrative record to determine if the weight of the evidence supports the findings in the agency decision, and a plaintiff is entitled to a statement of decision upon timely request. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 51, 67, 76 Cal.Rptr.2d 356.) The scope of our review, however, is limited to verifying that substantial evidence supports the trial court's findings. (Id. at p. 52, 76 Cal.Rptr.2d 356.) If a plaintiff fails to make a timely request for a statement of decision, we then must infer any finding to uphold the judgment that has substantial evidence in support in the administrative record. (Code Civ. Proc., §§ 632, 634; Hall v. Bureau of Employment Agencies (1976) 64 Cal.App.3d 482, 496, 138 Cal.Rptr. 725; cf. In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134, 275 Cal.Rptr. 797, 800 P.2d 1227 [similar rule for a failure to file objections to proposed statement of decision].) Contrary to the plaintiff's apparent belief, we may not impeach the trial court's ultimate judgment with its remarks at the hearing on the petition or in announcing its ruling from the bench. (Yarrow v. State of California (1960) 53 Cal.2d 427, 438, 2 Cal.Rptr. 137, 348 P.2d 687; In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-647, 253 Cal.Rptr. 770.) Our course through the administrative record is therefore targeted at the substantial evidence supporting the CalPERS decision, which we presume the trial court sustained on independent review.

One other factor affects our review of the record. The plaintiff never obtained judicial review of the decision of the City Council sustaining his dismissal.² Contrary to the belief of the trial court, a formal judicial ruling on the plaintiff's petition is not a necessary event, the absence of which is chargeable to the defendants, nor does its absence prevent the application of the principles of issue preclusion. In Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 244 Cal.Rptr. 764 (Knickerbocker), we held that the failure of a plaintiff to overturn a decision of an administrative agency precludes the plaintiff from relitigating any actual adverse determination in a subsequent action at law. (Id. at pp. 243, 245, 244 Cal.Rptr. 764.)³ We thus view the present record through a filter that gives preclusive effect to all actual determinations in the decision of the City Council.

BACKGROUND

A

Plaintiff began working in the City's fire department in 1981. In 1990, he received a partial permanent disability rating of almost 15 percent in workers' compensation proceedings for an injury to his back.

In November 1999, the plaintiff settled ongoing disciplinary charges with the City. The settlement agreement required him to undergo remedial training and testing on equipment used in the course of his regular duties. After he failed a test, the City dismissed him in April 2000.⁴ However the Civil Service Commission of the City of Napa (Commission), believing that his long tenure entitled him to a second chance, reinstated him on the condition that he successfully complete certification in the four areas identified in the 1999 settlement agreement within three months of his return to duty.

The plaintiff returned to work on September 11, 2000, limited to light duty because of a restriction against lifting more than 25 pounds under the orders of Dr. Stagg (a doctor with whom the City contracted to evaluate the physical condition of employees, and who had also provided treatment to the plaintiff in the past).⁵ The schedule for eight certifications of the plaintiff's skills acknowledged that this restriction might require postponement of the final three until further clarification of his physical status or return to full duty. After successfully completing five tests during October, the plaintiff was next to undergo certification on a ladder truck.

On October 30, the plaintiff asked to postpone the testing process until the completion of an evaluation of his medical status in the workers' compensation proceedings. He noted he was feeling "stress" in completing tasks that he believed was related to his physical injury. He adverted to the possibility that he thought he would be rated as disabled in the workers' compensation proceedings, alluding to the opinion of Dr. Blum.⁶ The following day, noting the certification test on the ladder truck would not include lifting objects heavier than 25 pounds, the operations chief denied the request for a delay as too open-ended, out of concern with the time limit in the Commission's decision. The plaintiff then said he wanted to meet with Dr. Blum before taking the certification, and the earliest appointment was on November 2. The operations chief again declined to postpone the test, based on Dr. Stagg's opinion that the physical requirements of the certification for a ladder truck would not exceed the restriction. The plaintiff thereafter was able to get an earlier appointment. Dr. Blum declined to state that the plaintiff was unfit to take the test, claiming this was in part a legal conclusion beyond his expertise and in part a matter for a psychologist to evaluate the claim of a physical basis for stress. The plaintiff agreed to take the certification "under protest and duress."

The certification required the successful completion of all 12 components. The plaintiff made two critical driving errors. First, he got out of the driver's seat and walked toward the rear of the truck while leaving it in reverse gear (though the parking brake kept the truck from moving). Hearing the backup alarm, he returned and put the truck in neutral.⁷ Second, he ran over the curb with the right front tire when parking on a downhill slope. The examiner issued a failing grade. The examiner had never seen anyone else make these mistakes. The City notified the plaintiff on December 8, 2000, that his dismissal would be effective as of December 15.

In its decision affirming the dismissal of the plaintiff, the Commission concluded that two medical opinions authorized the administration of the certification on its scheduled date; that his physical condition did not contribute to his inability to pass the certification;⁸ that the plaintiff had not otherwise shown a valid reason for a postponement of the certification; and that the certification tasks represented the regular duties of a firefighter under stress at the scene of a fire, thus "testing" stress that the plaintiff may have experienced did not excuse his failure. The Commission concluded there was cause to dismiss him for inability to perform his duties.

B

As noted earlier, on the December 15, 2000, effective date of his dismissal, the plaintiff filed an application for disability retirement with CalPERS dated August 31, 2000. CalPERS referred the matter to the City for its initial determination of whether the plaintiff satisfied the criterion for a disability, namely a medical condition resulting in a substantial inability to perform his usual duties. (Haywood, supra, 67 Cal.App.4th at pp. 1303-1304, 79 Cal.Rptr.2d 749.) Citing Haywood, the City notified the plaintiff that he was ineligible for a disability retirement as a result of his dismissal for cause from employment. CalPERS agreed: "You were terminated from employment for reasons that were not...