Filed 4/1/20 Johnson v. Public Employees’ Retirement System CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

LEE TURNER JOHNSON, Individually and as Executor, etc.

Plaintiff and Appellant,

v.

PUBLIC EMPLOYEES’ RETIREMENT SYSTEM et al.,

Defendants and Respondents.

C087439

(Super. Ct. No. 34-2016-

80002459-CU-WM-GDS)

Lee Turner Johnson, the widow of decedent Grantland Lee Johnson, filed a petition for a writ of mandate challenging the ruling of the administrative board of defendant Public Employees’ Retirement System (PERS) that she was not entitled to survivor retirement benefits. The trial court twice ruled on demurrers that her action was time-barred. On her appeal from the second ruling, she contends the time to file her action did not begin to run until she received a satisfactory administrative record. We disagree, and shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On appeal from a ruling sustaining a demurrer without leave to amend, we assume the truth of well-pleaded factual allegations, shorn of any legal conclusions. (Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 959 (Fuller).) We may also consider facts that are properly subject to judicial notice. (Ellis v. County of Calaveras (2016) 245 Cal.App.4th 64, 70.) Few of the substantive allegations are material to this appeal.

Decedent initiated divorce proceedings from his estranged wife in April 2013. The trial court granted a judgment of dissolution in November 2013, reserving jurisdiction over the division of property. Decedent married plaintiff shortly thereafter.

Decedent had first contacted PERS about changing the beneficiary designation for his retirement benefits from his former wife to plaintiff in February 2013. After his remarriage, he then made a written request to the same effect, enclosing his divorce decree. He added plaintiff to his health coverage through PERS in December 2013. While hospitalized in June 2014, decedent again sent a letter to PERS requesting the designation of plaintiff as the survivor for purposes of his retirement benefits.

While housed in the intensive care unit, decedent completed forms PERS sent him, and in August 2014 PERS acknowledged that it had received the beneficiary designation form naming plaintiff. Five days after receipt of this acknowledgment, decedent died.

Two weeks after his death, decedent’s former wife agreed to a property settlement in which she relinquished any interest in his retirement benefits. She filed the settlement agreement in October 2014, and the court entered judgment in December 2014. Plaintiff submitted a copy of the judgment to PERS in February 2015. PERS denied her request for survivor retirement benefits because decedent had neither executed a “ ‘recalculation election document,’ ” nor met the conditions for a change in beneficiary before his death.

A hearing officer affirmed the denial of retirement benefits to plaintiff. Following plenary consideration, the PERS board adopted the decision of the hearing officer on May 18, 2016.

The decision of the PERS board became effective in June 2016. Plaintiff filed a timely request with both PERS and the Office of Administrative Hearings (OAH), which had provided the hearing officer, for the administrative record. Pursuant to section 11523, a petition for a writ of mandate to review an administrative decision must be filed within 30 days of the effective date of the decision, but upon a request for the administrative record, “the time within which a petition may be filed shall be extended until 30 days after its delivery” to the petitioner. PERS delivered its version of the administrative record to plaintiff in August 2016. Plaintiff alleges this record was “substantially incomplete,” specifying in her trial court briefing 12 documents that we will discuss later at length. OAH delivered its version of the administrative record in September 2016. Plaintiff filed her petition for writ of mandate in October 2016.

It is unclear why the parties believe the first demurrer is material to this appeal. We note only that the trial judge (Frawley, J.) stated without elaboration that there was “a reasonable possibility” that plaintiff could amend her petition to establish substantial compliance with section 11523 for timely filing her petition. (However, as noted in Elliott v. Contractors’ State License Bd. (1990) 224 Cal.App.3d 1048, 1054, “Late filing is not the same as technical noncompliance.”)

On defendant’s demurrer to the amended petition, the trial court concluded that the 30-day limitations period began to run upon receipt of an administrative record that did not omit any material essential to judicial review. As the 12 items that plaintiff identified as missing from the PERS administrative record were not essential to judicial review because none of them related to the substance of the PERS ruling, her petition was untimely. The court also ruled that the doctrine of equitable tolling did not apply.

DISCUSSION

1.0 The Petition Was Untimely

Our review of an order sustaining a demurrer is de novo. A complaint disclosing on its face that the limitations period has expired is properly subject to demurrer. (Fuller, supra, 216 Cal.App.4th at p. 962.)

Section 11523 is an undivided paragraph. After establishing the 30-day period in which to file a judicial challenge to a final administrative ruling, it then prescribes the obligation of the agency in responding to a request for the administrative record: “the complete record of the proceedings . . . shall be prepared by the [OAH] or the agency and . . . delivered to the petitioner . . . . 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.” (§ 11523.) Where a petitioner “requests the agency to prepare . . . the record” (italics added), the limitations period “shall be extended until 30 days after its delivery” to the petitioner. (Ibid.)

The statute thus establishes that an administrative agency is obligated to provide a complete record on request. On the other hand, the tolling period runs only from delivery of “the” administrative record. The question is thus whether plaintiff was entitled to wait to file her petition until she had received every document in the administrative record that she desired.

The parties have identified little authority on this question. However, one case is determinative, on which the trial court relied.

Section 11523 was identical in material part at the time of the decision in Compton v. Board of Trustees (1975) 49 Cal.App.3d 150 (Compton). (Id. at p. 154, fn. 2.) The “entire argument on the limitations issue hinges on respondent’s failure to include a copy of the [rejected] proposed decision in the administrative record.” (Id. At p. 154.) “[I]f the time for seeking judicial relief starts to run not when the aggrieved party is furnished with an administrative record, but rather when [the party] has received the record to which [she] is arguably entitled, that time never starts . . . .” (Id. at p. 155, italics added.) Compton concluded the tolling period extended only until the plaintiff received a record containing matters “essential for judicial review.” (Id. at pp. 156, 158.) It discussed at length why a rejected proposed decision did not qualify as an essential item. (Id. at pp. 156-158.) It noted that upon filing a petition for administrative mandamus, a record can be otherwise completed to the petitioner’s satisfaction (id. at p. 159), a point echoed in the present trial court’s ruling (citing other authorities we do need to recapitulate).

Plaintiff does not cite any authority to the contrary that is remotely apposite on this point, for which reason we simply mention the two without sustained analysis. Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 305-307, holds only that a request to the agency’s shorthand reporter for a transcript of proceedings is the equivalent of a request to the agency itself for the record in order to trigger the tolling provision. The present case does not in any respect involve this principle. Jahangiri v. Medical Bd. of California (1995) 40 Cal.App.4th 1657, 1663, simply stands for the proposition that the request to prepare an administrative record does not require the concurrent tender of any necessary fees in order to trigger the tolling provision, again a holding not of any pertinence.

We accordingly come to plaintiff’s wan effort to establish that the PERS record had material defects that prevented her from filing her petition within 30 days thereafter. This is premised on arguments in the trial court, rather than any allegations or exhibits in the petition, but as the trial court presumably had the administrative records lodged with it in making its ruling (and the parties do not dispute the nature of the omitted items that plaintiff identifies), we will simply accept these factual matters as properly embraced in the ruling on the demurrer, the trial court having treated them as admissions on the part of plaintiff. (E.g., Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 175, fn. 3; County of El Dorado v. Misura (1995) 33 Cal.App.4th 73, 77.)

As the trial court noted, “[t]he vast majority of the [12] omitted documents do not relate to the substance of the administrative adjudication or the allegations of the pending writ petition.” As listed in plaintiff’s briefing in the trial court and on appeal, these 12 items are: an August 2015 request to set the administrative hearing; a notice in September 2015 of assigned hearing dates; copies of three sections of the Government Code; a request for a witness conference call at the administrative hearing; an order that granted a request for the telephonic appearance of witnesses; a motion relating to the briefing schedule; an attachment (regarding legislative history) to plaintiff’s closing and amended closing brief; the cover letter for the amended PERS closing brief; the March 2015 letter rejecting plaintiff’s claim for benefits; a January 2016 protective order; and the notice of the March 2016 hearing before the PERS board. The trial court concluded, “The[se] documents relate to routine procedural matters . . . . A few of the omitted documents concern ‘Attachment A’ . . . . As described in footnote 1 to the [PERS] decision, Attachment A is [legislative history], which was not considered by the [hearing officer] or [PERS]. Petitioner cannot explain how any of these documents are ‘essential’ for judicial review of [the PERS] decision, or why the petition could not be filed without them.” The only significant item was the March 2015 rejection letter, but as that had already sparked the present action it could not be considered to be a material document.

PERS makes the same points: six of the documents are mere notices, and plaintiff does not raise any claim regarding procedural due process; three of the documents relate to the immaterial legislative history; neither the cover letter nor the protective order has any relevance to her contentions; and a document containing statutes cannot possibly be essential to the preparation of a petition for mandamus. We agree with PERS and the trial court. The facts involved in plaintiff’s claim are not in dispute; it is at best an ineffectual challenge premised on a question of law of the ability of the decedent to redesignate a beneficiary before his death when the former beneficiary did not grant him the right to do so. The 12 documents missing from the administrative record that PERS provided do not have any bearing whatsoever on this question. As a result, plaintiff was not entitled to wait until OAH filed its administrative record as the end of the tolling period for filing her petition. As we have noted in the past, the preparation of a complete administrative record is not essential to filing a petition for mandamus, because it can always be amended on receipt. (California Standardbred Sires Stakes Com., Inc. v. California Horse Racing Bd. (1991) 231 Cal.App.3d 751, 761.)

2.0 Equitable Tolling is not Applicable

Plaintiff asserts her late filing is excused under the doctrine of equitable tolling. She is mistaken.

Equitable tolling applies only where a plaintiff has alternative remedies (Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 434 [dismissal and refiling of same case does not implicate equitable tolling]; accord, McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100 [equitable tolling relieves pressure on parties seeking relief in multiple fora]; 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 744, p. 975 [action is tolled “when an injured person has several legal remedies and reasonably and in good faith pursues one”].) Plaintiff does not provide any authority for applying equitable tolling merely to extend a limitations period. The doctrine therefore cannot excuse her late filing of her petition.

DISPOSITION

The judgment is affirmed. PERS is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

BUTZ, J.

We concur:

BLEASE, ACTING P. J.

MURRAY, J.