Voorhis v. Yee

• Decision Date: 14 February 2023
• Docket Number: A161350
• Parties: BRUCE VAN VOORHIS, Plaintiff and Appellant, v. BETTY YEE et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

BRUCE VAN VOORHIS, Plaintiff and Appellant,
v.
BETTY YEE et al., Defendants and Respondents.

A161350

California Court of Appeals, First District, Second Division

February 14, 2023

NOT TO BE PUBLISHED

(Contra Costa County Super. Ct. No. MSC19-00021)

RICHMAN, ACTING P. J.

Appellant Bruce Van Voorhis is a former Superior Court judge with retained pension rights under the Judges' Retirement System Law (Gov. Code,^[1] § 75500 et seq.). As such, he was a beneficiary of the celebrated Mallano litigation that concluded in 2018, the result of which was that judges, including retired judges, received significant five-figure payments for past years where raises required by the governing legislature had not been paid.

Van Voorhis thought he was entitled to more, and in January 2019, filed a lawsuit alleging nine causes of action, all styled for "declaratory relief including monetary recovery." The trial court granted summary adjudication

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against Van Voorhis on some issues, and later summary judgment, holding that none of his causes of action had merit. We affirm.

BACKGROUND

The Mallano Litigation and the Legislation

In early 2014, then-Justice Robert Mallano filed a class action lawsuit in Los Angeles County on behalf of a class of current and retired judges. The lawsuit named three defendants, the State Controller, Judges' Retirement System (JRS), and Judges' Retirement System II (JRS II), and alleged that defendants had not raised judicial salaries as required by the governing legislation, section 68203.^[2] As Van Voorhis would later put it is his complaint, he "was eligible for and was automatically included as a member of the class in this class action lawsuit."

Mallano did not name the Department of Human Resources (CalHR) as a defendant, or allege any wrongdoing on its part. To the contrary, Mallano adopted CalHR's figures as the presumptively correct calculation of the "average percentage salary increase" under section 68203. Instead, Mallano's quarrel was with the Controller, JRS, and JRS II, alleging that since 2008, they had not raised judicial salaries despite having actual knowledge of CalHR's calculations-and thus not raised judicial salaries as required. Mallano argued that under section 68203 as it then existed, the transmission of a pay letter from CalHR to the Controller was not required to implement

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CalHR's calculations, when the Controller had actual knowledge of CalHR's calculations.^[3]

Mallano won, and the superior court ordered the defendants to implement CalHR's calculations of the "average percentage salary increase" for fiscal years 2008-2009 to 2015-2016. In an unpublished opinion the Court of Appeal affirmed. (Mallano v. Chiang (Apr. 5, 2017, Nos. B272124 & B276842 [nonpub. opn.]); 2017 WL 1247811 (Mallano I.) The appellate court emphasized the Controller's actual knowledge of CalHR's calculations. And, describing testimony that "the Controller's office 'is well aware' of CalHR's salary increase calculations . . .," the Court held that when they had actual knowledge of CalHR's calculations, the Controller, JRS, and JRS II were required to implement those calculations, even if they had not received a pay letter from CalHR or obtained a separate appropriation to pay for the judicial salary increases. (Id. at *8.) Like Mallano and the trial court, the Court of Appeal accepted CalHR's calculations of the "average percentage salary increase" as presumptively correct. (Id. at *7.) A second unpublished opinion was filed in 2018: Mallano v. Chang (June 26, 2018, B285285 [nonpub. opn.]; 2018 WL 3121536 (Mallano II).

The Mallano litigation resulted in a judgment directing payment of arrearages and benefits for the years 2008-2016. (See Mallano I, supra, 2017 WL 1247811.)

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As noted, the two Mallano opinions were not certified for publication.^[4]Despite that, this court granted Van Voorhis's motion to take judicial notice of them. The reason for our ruling appears to have been that judicial notice was taken by the trial court. (See Evid. Code, § 459, subd. (a) ["The reviewing court shall take judicial notice of . . . each matter properly noticed by the trial court"].) While the trial court gave no reason for its ruling, simply noting the absence of opposition, in its written decision the trial court noted that it previously concluded that "all of [Van Voorhis's] claims for fiscal years before 2016-17" were barred by res judicata and collateral estoppel. As will be seen, the trial court order went on to discuss and quote from the first Mallano opinion, as it was deemed relevant to applying the doctrines of collateral estoppel and res judicata. This is proper and does not violate rule 8.1115. (See Friends of Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1106.) This especially true if, as here, the unpublished opinion is not being cited as legal authority but merely to establish the legal and factual background to this action. (See The Utility Reform Network v. Public Utilities

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Com. (2014) 223 Cal.App.4th 945, 951, fn. 3; Pacific, Gas & Electric Co. v. City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10.)

Meanwhile, shortly following the judgment in favor of the Mallano class, in apparent response to it the Legislature enacted, and the Governor signed, Senate Bill No. 848, which amended section 68203 (Stats. 2016, ch. 35, §22). And by the time Mallano became final, in mid-2018, section 68203 had been amended, including with language that provides:

"(a) On July 1, 1980, and on July 1 of each year thereafter, the salary of each justice and judge named in Sections 68200 to 68202^[5], inclusive, and 68203.1 shall be increased by the amount that is produced by multiplying the then current salary of each justice or judge by the average percentage salary increase for the current fiscal year for California state employees; provided, that in any fiscal year in which the Legislature places a dollar limitation on salary increases for state employees the same limitation shall apply to judges in the same manner applicable to state employees in comparable wage categories.

"(b)(1) For the purposes of this section, average percentage salary increases for California state employees shall be those increases as reported by the Department of Human Resources to the State Controller in a pay letter."

The Proceedings Below

On January 8, 2019, representing himself, Van Voorhis filed a complaint styled "For Declaratory Relief And Monetary Recovery." It named three defendants: Betty Yee, the State Controller, JRS, and the Board of Administration of the Public Employees Retirement System of California (CalPERS) (when referred to collectively, respondents). Van Voorhis alleged

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that he named CalPERS because it allegedly "administers JRS and has the duty to demand that the Controller draw warrants (make payments) from the Judges' Retirement Fund . . . for judicial retirement benefits lawfully owed to Plaintiff."

The complaint was, as noted, for "declaratory relief, including monetary recovery." And it went on to allege nine causes of action, also styled for declaratory relief, seeking the ordering of "increased judicial salaries" and "increased judicial retirees' benefit payments that correspond . . . to the increased judicial salaries." The first four causes of action alleged that the Controller had in the previous three years not complied with section 68203 in calculating judicial salaries and "retiree benefits," thereby warranting numerous forms of declaratory relief. And causes of action five through nine alleged that the Controller and JRS have an independent duty to calculate, verify, or correct CalHR's calculation of the "average percentage salary increase." Despite attacking CalHR's calculations of the "average salary increase," Van Voorhis did not name CalHR as a defendant.^[6]

The case was assigned for all purposes to a most experienced superior court judge, the Honorable Edward Weil, in a complex department. Early in the litigation Judge Weil directed the parties to "file cross-motions . . . related only to the issue of to what extent Mallano v. Chiang . . . and related appellate cases . . . have claim-preclusive or issue-preclusive effect in this

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case." In August 2019, both sides filed such motions, Van Voorhis for summary adjudication, and respondents for summary judgment or, in the alternative, summary adjudication.

On September 30, Judge Weil denied Van Voorhis's motion and granted in part respondents' motion on preclusion issues, holding that "all claims based on retirement payments for the years 2008-[20]09 through 2015-[20]16 [i.e., the fiscal years covered by the Mallano judgment] . . . are barred by both claim preclusion and issue preclusion." For fiscal years 2016-2017 and later, Judge Weil denied respondents' motion without prejudice to it being asserted later with additional supporting evidence, determining that the Legislature's amendment of section 68203 in response to Mallano meant there might be "new calculation practices that went into effect during the 2016-[20]17 fiscal year or later" that could not have been challenged in Mallano-and therefore not claim-precluded.

In April 2020, respondents moved for summary judgment. The motion was accompanied by four lengthy declarations of: Jennifer Watson, Dave Ide, Lisa Dean, and Manpreet Singh. Ide was a personnel program manager of CalHR, a position he held since 2013, having begun his employment at CalHR in 2001. From 2003 to 2008 his job responsibilities included the calculation of the average state employees pursuant to section 68203; and in 2007 his responsibilities shifted to verifying the accuracy of the calculations. And, he testified, from 2003 to 2020 the calculations were correctly made each year.

Watson, the assistant division chief at CalPERS, testified that it implemented the Mallano decision. Dean was the analysis...