Case Number: BS169304 Hearing Date: September 10, 2019 Dept: 85

Mitra Rashti v. County of Los Angeles, et al., BS169304

Tentative decision on petition for writ of mandate: denied

Petitioner Mitra Rashti (“Rashti”) seeks a writ of mandate compelling Respondent Civil Service Commission (“Commission”) to set aside its decision refusing to grant her a hearing on her claims that Respondent County of Los Angeles (“County”) and its Department of Public Works (“DPW”) violated duties to seek a disability retirement for her and reinstate her when her disability retirement application was denied. Rashti alternatively seeks an order requiring the County to compensate her for her back pay and benefits (collectively referred to as “back pay”).

The court has read and considered the moving papers,[1] opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

Petitioner Rashti commenced this proceeding on April 18, 2017, alleging a cause of action for mandamus. The verified Petition alleges in pertinent part as follows.

Rashti was first employed by the County in 1988, and at all relevant times has been assigned as an Architectural Assistant in DPW’s Design Division. In 1993, while attending a DPW meeting, Rashti suffered serious injuries when a box of books fell and struck her on the neck, shoulders, and back. From then on, Rashti complained of injuries to these areas and perceived herself as suffering from disabilities within the meaning of the Americans with Disability Act (“ADA”) as well as the Fair Employment and Housing Act (“FEHA”). The County and DPW treated Rashti as disabled and provided various ergonomic accommodations that did not resolve Rashti’s physical impairments, but rather aggravated them.

In 2002, the County placed Rashti on long-term disability but refused to apply for her disability retirement as required by Govt. Code section 31721(a), instead opting to cause those benefits to be stopped after two years. The County then at various times returned Rashti to work, only to order her off work.

Rashti sought legal redress but was unable to procure orders compelling continuation of her long-term disability benefits. Rashti filed grievances in 2007, 2009, and 2010, which were placed in abeyance because Rashti was not allowed to work. On April 9, 2014, the Los Angeles County Employees Retirement Association (“LACERA”) Retirement Board (“Board”) rejected Rashti’s application for permanent disability, and then DPW refused to reinstate her. Rashti filed another grievance and DPW agreed to combine all her previous grievances and granted her a hearing.

At the grievance hearing on July 9, 2015, DPW’s Head of Personnel assured Rashti that the matter would be amicably resolved, only to later state that the grievance process would not be completed.

Rashti filed a Petition with the Commission seeking compliance with Civil Service Rule (“CSR”) 9.08 and applicable state laws prohibiting an employer from denying employment on the ground of disability and then denying disability retirement on the ground that the employee is not is permanently disabled. Rashti also sought to compel the County to make her whole for all losses sustained preceding the determination that she was not eligible to receive a permanent disability retirement.

The County and DPW opposed, asserting inter alia that Rashti’s petition was untimely. The Commission agreed, declining to calendar her case for hearing even though she is still suffering the consequences of disability discrimination.

Petitioner Rashti contends that the County has bypassed the legislative intent of a statute ensuring that a disabled public employee is not deprived of their right to continuing public employment, without benefit of due process, a fair trial, and fundamental fairness.

B. Governing Law

1. Disability Retirement

The County Employees Retirement Law (“CERL”) (Govt. Code[2] §31450 et seq.) was enacted to recognize a public obligation to county employees who become incapacitated by age or long service in public employment and its accompanying physical disabilities, as well as provide a means by which employees who become incapacitated may be replaced by more capable employees without inflicting hardship on the employee removed. §31451.

Section 31720 provides for disability retirement of county employees as follows: “Any member permanently incapacitated for the performance of duty shall be retired for disability regardless of age if, and only if: (a) The member’s incapacity is a result of injury or disease arising out of and in the course of the member’s employment, and such employment contributes substantially to such incapacity, or (b) The member has completed five years of service,…” See Pearl v. Workers’ Compensation Appeals Bd., (2001) 26 Cal.4th 189, 193. For purposes of disability retirement, case law defines incapacity as “the substantial inability of the applicant to perform his usual duties.” Hosford v. Board of Administration of Public Employees Retirement System, (1978) 77 Cal.App.3d 85, 860 (quoting Mansperger v. Public Employees’ Retirement System, (1970) 6 Cal.App.3d 873, 876).

Permanent incapacity boils down to two issues: (1) whether the applicant is physically or mentally incapacitated by reason of injury or sickness, and (2) if so, whether the incapacity prevents the applicant from performing the duties to which he might be assigned. See Winn v. Board of Pension Commissioners, (1983) 149 Cal.App.3d 532, 539. Because of well recognized public policy favoring the employment and utilization of physically handicapped persons, if a person is not disabled to a degree which prevents him from serving in any position in a department or agency, he should not be retired with payment of a disability pension. Id. at 540; Craver v. City of Los Angeles, (1974) 42 Cal.App.3d 76, 80.

A member may be retired for disability upon the application of the member, the head of the office or department in which he is or was last employed, the county retirement board or its agents, or any other person on his behalf, except that an employer may not separate because of disability a member otherwise eligible to retire for disability but shall apply for disability retirement of any eligible member believed to be disabled, unless the member waives the right to retire for disability and elects to withdraw contributions or to permit contributions to remain in the fund with rights to service retirement. §31721(a).

Permanent incapacity for the performance of duty shall in all cases be determined by the county retirement board. If the medical examination and other available information do not show to the satisfaction of the board that the member is incapacitated physically or mentally for the performance of his duties in the service and the member’s application is denied on this ground the board shall give notice of such denial to the employer. §31725.

The employer may obtain judicial review of the board’s action by filing a petition for a writ of mandate or by joining or intervening in such action filed by the member within 30 days of the mailing of such notice. §31725. If such petition is not filed or the court enters judgment denying the writ, and the employer has dismissed the member for disability, the employer shall reinstate the member to his employment effective as of the day following the effective date of the dismissal. §31725.

Section 31725 was enacted to “eliminate severe financial consequence to an employee resulting from inconsistent decisions between an employer and the Retirement Board as to whether a particular employee is incapacitated and unable to perform the duties of his position.” Stephens v. County of Tulare, (2006) 38 Cal.4th 793, 804. Section 31725 requires that if (1) the county board of retirement rules an applicant/employee is not permanently disabled so as to be entitled to a disability retirement, (2) the board denies the employee’s disability retirement application on that ground, and (3) no appeal is filed or all appeals are final, then the applicant/employee is entitled to reinstatement to his or her prior position if (4) the employing county has previously dismissed the employee for disability. Stephens v. County of Tulare, supra, 38 Cal.4th at 801. Some form of dismissal is required to activate section 31725. While no particular formality to the dismissal is required, “some form of termination is nevertheless required.” Id. at 806.

2. The CRSs

a. CSR 4.01

CSR 4.01 provides as follows:

“Any employee or applicant for employment may petition for a hearing before the commission who is:

A. Adversely affected by any action or decision of the director of personnel concerning which discrimination is alleged as provided in Rule 25;

B. Adversely affected by any action or decision of the commission made without notice to and opportunity for such person to be heard other than a commission decision denying a petition for hearing;

C. Otherwise entitled to a hearing under the Charter or these Rules.”

b. CSR 4.02

CSR 4.02 provides the requirements for a petition requesting a hearing:

“Such petition shall be in writing, signed by the petitioner, or the petitioner’s representative, and shall…specify the ruling or action appealed and in plain language and in detail sufficient facts and reasons upon which the petitioner’s case is based….”

c. CSR 4.03

CSR 4.03 governs the Commission’s action on a petition for hearing and provides in pertinent part:

“A. In cases of discharge or reduction of a permanent employee other than a probationary employee covered by the provisions of Rule 18, or suspension in excess of five days, a timely petition for hearing shall be granted if it states sufficient specific facts and reasons in support of the employee’s appeal as provided in Rule 18.02. The petition shall be denied if such facts and reasons are not stated.

B. In all other cases provided for in Rule 4.01, the commission may, at its discretion, grant a hearing or make its decision on the merits based on a review of written materials submitted by the parties concerned. The commission shall deny both a request for a hearing and a review of written materials if the petition fails to state sufficient specific facts and reasons, or if, in the opinion of the commission, the specific facts and reasons stated, if true, would not entitle the petitioner to any relief. Moreover, no hearing need be granted if the commission is of the opinion, based on the moving papers and any responses thereto, that the petitioner is not likely to prevail on the merits of the petition.”

d. CSR 4.05

CSR 4.05 provides the time within a petition must be filed:

“A. Unless otherwise provided in these Rules, a petition for hearing before the commission must be filed within the following time limits:

1. In a discharge, reduction or suspension over five days within 15 business days after service of letter of discharge, reduction or suspension of over five days;

2. In all other matters except as provided in Rule 6.07, not later than 10 business days after the ruling or order complained of.”

B. Commission may extend the time limits for filing a petition only after consideration of a showing of good cause for the delay which has been submitted in writing….The filing of a departmental grievance or an appeal in another jurisdiction, such as the Employee Relations Commission [“ERCOM”], shall not constitute good cause for extending the time limits for filing a petition with the commission….”

e. CSR 9.08

CSR 9.08 governs the employer’s duties in a determination of a continuing medical incapacity in County employment:

“Whenever, upon medical reevaluation or competent medical or legal evidence, an employee who has previously qualified is found to be unable to perform the duties of his/her position satisfactorily, due to a medical incapacity of a continuing nature:

A. The employee may submit a request to the appointing authority for reassignment, voluntary demotion, or transfer to a position for which the employee has the qualifications. Any voluntary demotion under this rule must be with the approval of the director of personnel.

B. If no action is taken under paragraph A of this Rule, the director of personnel shall, consistent with his determination of the employee’s medical capacities, recommend the most appropriate of the following alternatives:

1. Return of the employee to suitable work through one of the following means:

a. Modification of the employee’s duties or change of his/her assignment,

b. Change of classification or reduction to another position in the employee’s department,

c. Transfer to a position in another department. Where appropriate, this recommendation will include a retraining program;

2. Disability retirement of the employee, in accordance with the employee’s eligibility under appropriate provisions of the Government Code;

3. Release of the employee in accordance with paragraph C of this Rule. The appointing authority considering the recommendations of the director of personnel may change classification or reduce the employee to a position for which the employee is qualified or for which the employee can be trained within a reasonable period of time. Where the appointing authority indicates that he/she cannot follow the recommendation of the director of personnel for a change of classification or reduction, the director shall place the employee on appropriate departmental reemployment lists, provided the employee’s performance has been competent or better. Such lists shall only be applicable to positions that are compatible with the employee’s medical capacities, and training and/or experience.

C. If there is no suitable position in which the employee can perform satisfactorily, the appointing authority may release the employee, subject to the applicable provisions of Rule 18, said release to be without prejudice as to reemployment should the employee’s condition improve.”

f. CSR 25.01

CSR 25.01 governs unlawful discrimination in County employment:

“A. No person in the classified service or seeking admission thereto shall be appointed, reduced or removed, or in any way favored or discriminated against in employment or opportunity for employment because of race, color, religion, sex, physical handicap, medical condition, marital status, age, national origin or citizenship, ancestry, political opinions or affiliations, organizational membership or affiliation, or other non-merit factors, any of which are not substantially related to successful performance of the duties of the position. “Non-merit factors” are those factors that relate exclusively to a personal or social characteristic or trait and are not substantially related to successful performance of the duties of the position. Any person who appeals alleging discrimination based on a non-merit factor must name the specific non-merit factor(s) on which discrimination is alleged to be based. No hearing shall be granted nor evidence heard relative to discrimination based on unspecified non-merit factors.

B. Nothing in this Rule shall preclude appropriate action by an appointing power when membership in, or affiliation with, an organization may cause a conflict of interest relative to the duties of a position.”

C. Standard of Review

Petitioner Rashti contends that she was entitled to a hearing before the Commission. The standards of review for administrative mandamus and traditional mandamus differ and the question is which standard governs the Commission’s failure to conduct a hearing. Under CCP section 1094.5, an agency abuses its abuse of discretion if it has not proceeded in the manner required by law and the failure to hold a hearing required by law is an abuse of discretion. See CCP §1094.5(c). Under traditional mandamus, judicial review is limited to an examination of the proceedings before the agency to determine whether its action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether it did not follow the procedure and give the notices required by law. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84.

CCP section 1094.5 is the exclusive remedy for judicial review of a final administrative decision. Woods v. Superior Court (1981) 28 Cal.3d 668, 682. Administrative mandamus applies only where there is a hearing is required by law. Traditional mandamus challenges an agency’s failure to perform an act required by law, rather than the conduct or result of an administrative hearing that was required by law to be held. Conlan v. Bonta, (2002) 102 Cal.App.4th 745, 748. Traditional mandamus under CCP section 1085 would seemingly apply to a situation where an agency has failed to hold a hearing that is required by law. However, some case law states that CCP section 1094.5, not traditional mandamus under section 1085, applies to review of a proceeding that requires a hearing, the taking of evidence, and discretionary administrative determination of the facts, whether or not the hearing was actually held. Helene Curtis v. Los Angeles County Assessment Appeals Board, (2004) 121 Cal.App.4th 29, 37. The key is whether the hearing is required by law, not whether it was held. So, if an agency refuses to hold a hearing required by law to be held, the agency is reviewed by administrative mandamus. Pomona College v. Superior Court, (1996) 45 Cal.App.4th 1716, 1729-30 (procedural defects in private college’s tenure review process, including any failure to hold hearing, reviewable by administrative mandamus). See also, Gutkin v. University of Southern California, (2002) 101 Cal.App.4th 967, 976-79. Conversely, if an agency holds an evidentiary hearing, but the hearing was not required by law, the agency decision is reviewed under traditional mandamus. Coelho v. State Personnel Board, (1989) 209 Cal.App.3d 968, 970-71.

A County employee may petition for a Commission hearing only where a commission action is made without notice and an opportunity to be heard, the claim is one of discrimination, or the employee is otherwise entitled to a hearing under the CSRs. CSR 4.01. In cases where an employee has been discharged, demoted, or suspended for more than five days as covered by CSR Rule 18, the Commission must grant a hearing for a timely and factually adequate petition. CSR Rule 4.03.A. In all other cases, the Commission has discretion whether to grant a hearing. CSR Rule 4.03.B. This includes a claim of discrimination under CSR 25.01.

In Fuchs v. Los Angeles County Civil Service Commission, (1973) 34 Cal.App.3d 709, 714-15, the petitioner challenged the design of the examination for promotion and his examination score. The court found that the “petitioner’s claim that he is entitled to a hearing as a matter of right cannot be sustained, as there is no express provision in the operational law which requires the Commission to automatically grant a hearing to consider the merits of a promotional dispute.” The court went on to state that “the spirit and the intent of the governing regulations appear to be that hearings concerning matters other than those explicitly described are to be granted at the discretion of the Commission.” Ibid. Finally, the court noted that “there is not presently a requirement that all persons who are potential recipients of a governmentally bestowed benefit, such as a promotion in public employment, are entitled as a matter of course to a hearing, before the benefit may constitutionally be withheld.” Ibid.

The court in Weary v. Civil Service Commission, (1982) 140 Cal.App.3d 189, 194-95, distinguished the Commission’s mandatory hearings (discharge, suspension in excess of five days, and demotion), and discretionary hearings (all other cases provided in CSR Rule 4.01)]. The court held that where the Commission exercised its discretion in granting a hearing regarding an “Improvement Needed” employee evaluation, this discretionary decision could be reviewed only under CCP section 1085 because no hearing was required by law. Id. at 195.

Rashti sought a Commission hearing on the grounds that (a) in violation of CSR 9.08, DPW improperly denied her employment on the ground of medical condition and failed to apply for her disability retirement, (b) in violation of section 31725, failed to reinstate her when LACERA denied her disability retirement application, and (c) unlawfully discriminated against her medical condition in doing so. The Commission had discretion to hold a hearing on these issues. Since a hearing was not required by law, the Commission’s refusal to do so is reviewed under traditional mandamus. The Commission’s decision is reviewed for whether it was arbitrary, capricious, or entirely lacking in evidentiary support, or whether it did not follow the procedure and give the notices required by law. Pomona Police Officers’ Assn. v. City of Pomona, supra, 58 Cal.App.4th at 583-84

D. Statement of Facts

The parties present a blizzard of wildly excessive evidence,[3] almost all of which is historical or background and irrelevant to the issue of an untimely request for hearing.

1. Evidence from the Record

From 2007 through 2014, Rashti filed numerous grievances against DPW, claiming, inter alia, discrimination, retaliation, and that DPW refused to return her to work. AR 224-25, 239-40, 243-45. These grievances were ultimately placed in abeyance until Rashti returned to work. AR 223.

On March 14, 2014, LACERA’s Board dismissed with prejudice Rashti’s appeal for a service-connected disability retirement. AR 39.

Rashti and DPW subsequently attempted to resolve her grievances. DPW offered Rashti a global settlement on May 17, 2016. AR 203. DPW’s proposed settlement would grant Rashti back pay from the date in March 2014 when LACERA denied her disability retirement and she submitted a “return to work” note to the date in July 2014 she was reinstated. AR 203. Rashti rejected DPW’s proposal and countered with a proposed settlement of $726,795 in back pay from 2002 and nine years of LACERA service credit. AR 205. DPW rejected the counter-proposal, stating that her requested remedy was inappropriate and not permitted under the law. AR 207. DPW further stated that it has never separated her from service as an employee and her grievances were denied. AR 207.

Rashti submitted additional grievances in July and August 2016 (AR 215-18), which essentially restated her previous arguments that DPW failed to apply for a service-connected disability retirement for her after repeated attempts to return her to work showed that she was not fit, that LACERA’s denial of retirement disability triggered retroactive payment of salary and benefits from 2005 to July 1, 2014, and that DPW failed to comply with section 31721’s prohibition against medically releasing an employee who is eligible for disability retirement. AR 217-18.

On July 12, 2016, DPW’s Deputy Director Pat Proano issued a blanket denial of Rashti’s grievances. AR 207. See AR 209. A September 1, 2016 email, authored by Rashti’s union representative, confirmed a telephone conversation in which DPW stated that it would not respond further to Rashti’s grievances, which principally concerned (1) DPW’s failure to apply for disability retirement in 2002 and (2) DPW’s failure to return her to work by March 15, 2014, the next day after she submitted her medical certificate to return to work when LACERA denied her disability retirement. AR 221.

On September 16, 2016, Rashti filed a petition with the Commission requesting a hearing on the issues that DPW (1) improperly denied her employment on the ground of medical condition in violation of CSR 9.08 and (2) wrongly failed to apply for her disability retirement on the ground that she was not permanently disabled. AR 276. In doing so, DPW failed to act in accordance with section 31725. AR 276. Rashti’s proposed a back pay remedy of $726,795. AR 274, 278. Rashti also asserted that, pursuant to section 31725, DPW should have reinstated her on March 14, 2014, when the LACERA Board denied her appeal for disability retirement, and that she entitling her to retroactive back wages and benefits. AR 277.

DPW opposed Rashti’s petition, claiming that: (1) Rashti’s request was untimely, (2) the Commission did not have jurisdiction to grant Rashti her a remedy of damages, (3) the claim that DPW has interfered with Rashti’s return to work is a matter arising under the ADA for which the Commission has no jurisdiction, (4) the request fails to state sufficient specific facts and reasons in violation of CSRs 4.02 and 4.03.B, and (5) Rashti was not likely to prevail on the merits. AR 259-61.

Rashti filed a reply on January 4, 2017, asserting that the Commission had jurisdiction to consider DPW’s discriminatory actions under CSR 25.01.A and 4.01.B, and that her request was timely under CSR 4.05’s 10/15-day requirement because DPW’s decision to deny her benefits was not final as its own August 2, 2016 letter indicates. AR 4-7.

In a surreply, DPW stated that Rashti’s contention that her grievances were pending until September 1, 2016 does not aid her. CSR 4.05.B states that the filing of a grievance or appeal in another jurisdiction, such as ERCOM, shall not constitute good cause for extending the time limits for filing a petition before the Commission. AR 10. Accordingly, Rashti’s request for a hearing was untimely. AR 10.

On January 26, 2017, the Commission issued its decision denying Rashti’s request for a hearing as untimely.[4]

2. Petitioner’s Evidence

a. Lamb Declaration

Doctor Nancy Lamb (“Lamb”) is a licensed neurologist who has diagnosed and treated Rashti’s neurological symptoms since May 30, 2002. Lamb Decl. ¶1. Based on Lamb’s examinations and testing of Rashti, as well as her ongoing consultation with Doctor Mohsen Hamza, Lamb’s professional opinion is that Rashti suffers from permanently disabling physical disabilities attributable to industrial injuries sustained at work. Lamb Decl. ¶2. Lamb believes Rashti’s injuries could be accommodated ergonomically as well as through vocational rehabilitation. Lamb Decl. ¶2.

Based on Lamb’s own diagnoses and her review of various other medical reports regarding Rashti, her office concluded that Rashti’s injuries to her neck, shoulders, and spine resulted in neurological symptoms that were sufficiently disabling to warrant a finding that Rashti is permanently and substantially incapacitated. Lamb Decl. ¶¶ 3-4. Lamb’s office issued work restrictions which would permit Rashti to take a break and move around for at least 15 minutes, after 90 minutes of performing her largely sedentary job. Lamb Decl. ¶4.

The County objected to the use of the language “as tolerated” in Rashti’s Certificates to Return to Work, but that language was necessary to ensure that if Rashti suddenly started experiencing sever pain from sitting less than 90 minutes, she should be allowed to stand and move around without fear of being disciplined. Lamb Decl. ¶4.

From May 30, 2002 through October 6, 2004, Lamb’s office deemed Rashti unable to work, and issued detailed reports reflecting the same through that time period. Lamb Decl. ¶5. Rashti desired to return to work in late 2004, and Lamb’s office submitted certifications for a return with accommodations. Lamb Decl. ¶5. Rashti was subsequently removed from the workplace after losing consciousness on December 30, 2014. Lamb Decl. ¶5.

Lamb’s office followed up with additional appointments and testing when ordered, issuing reports from 2005 through 2007. Lamb Decl. ¶6. Lamb’s office attempted to return Rashti to work again in December 2006, issuing certifications that stated Rashti “should avoid prolonged sitting and lifting objects (maximum 5 pounds in right side). She should sit for 90 minutes maximum followed by a 15-minute break from work and to leave the work area for this break.” Lamb Decl. ¶6.

When presented with a Work Hardening Agreement dated December 28, 2016, Lamb’s office issued a Supplemental Return to Work Report dated February 6, 2007 and an additional Certificate of Return to Work, dated March 12, 2007. Lamb Decl. ¶6, Ex. 2.

Rashti did not give up on her desire to return to work and repeatedly advised Lamb of DPW’s refusal to allow her to work, even though Rashti had exhausted her benefits, including sick pay, and even applied for Social Security Disability, only to learn it was denied because the County did not participate in such system. Lamb Decl. ¶6.

Lamb’s office conducted additional examinations and sought a further MRI of Rashti’s brain and spine on March 6, 2007, and also recommended vascular studies on April 18, 2007. Lamb Decl. ¶7.

On January 28, 2008, Lamb’s office received notice that Rashti was being examined by Doctor Alexander Angerman (“Angerman”), an Agreed Upon Medical Examiner (“AME”). Lamb Decl. ¶7. Angerman reported that Rashti required work restrictions precluding her from performing heavy work and prolonged sitting and also found that Rashti could not perform the duties of an Architectural Assistant because of the prolonged sitting required. Lamb Decl. ¶7, Ex. 4. Angerman issued a finding on October 3, 2008, stating that Rashti should be allowed to work as a Building Inspector since she could move around. Lamb Decl. ¶7, Ex. 5. Lamb’s office was then informed that, based upon an Interactive Meeting conducted on October 7, 2008, the County would not allow Rashti to work as a Building Inspector, nor would it find a different light duty assignment for her. Lamb Decl. ¶7.

On January 2, 2009, Lamb’s office issued another Certificate of Return to Work, seeking to facilitate Rashti’s return to work in a light duty assignment. Lamb Decl. ¶8, Ex. 6.

Lamb’s office conducted additional examinations of Rashti in February and December 2009, wherein it found abnormal results regarding Rashti’s doppler veins/arteries. Lamb Decl. ¶9. Throughout 2009, Rashti stated to Lamb that she wished to work but DPW refused to accommodate her and refused to allow employees to donate some of their leave benefits to ensure that Rashti could have continuing medical care. Lamb Decl. ¶9.

Rashti participated in an ergonomic study in November 2009 as a precursor to her return to work in January 2010. Lamb Decl. ¶10. When Rashti reported for work in January 2010, DPW stated Rashti would return to her position as an Architectural Assistant, even though Angerman stated that Rashti was prohibited from doing that job. Lamb Decl. ¶10. Rashti also noted that she did not have the ergonomic equipment which had allegedly been ordered for her. Lamb Decl. ¶10. After Rashti questioned when she would be allowed to take a break and having her lawyer advise DPW that it was violating Angerman’s work restrictions, DPW again removed Rashti from work at the beginning of March 2010 and refused to return her to work despite Lamb’s office issuing certificates and Angerman stating that Rashti could work with restrictions. Lamb Decl. ¶10.

Lamb’s office continued to examine Rashti from 2010 through 2014. Lamb Decl. ¶11. Lamb provided statements pertaining to Rashti’s medical conditions and disabilities on February 4, 2013 and November 22, 2013. Lamb Decl. ¶13, Ex. 8.

b. Rico and Rashti Declarations

Rudolph Rico (“Rico”) is a SEIU Local 721 union representative who assisted Rashti with her discrimination claims. Rico Decl. ¶¶ 3-4.

In December 2004, Rashti attempted to return to work and was found semi-unconscious at her work desk and transported to a local medical facility. Rico Decl. ¶22. Rashti received work restrictions requiring that she be allowed to stand up and take a 15-minute break after every 90 minutes of work. Rico Decl. ¶22. In December 2006, the DPW refused to reinstate Rashti, stating it would not respect the work restrictions and declined to return her to work unless she agreed to a Work Hardening Agreement stating that Rashti would be given additional work during her 15-minute breaks. Rico Decl. ¶22.

In the ensuing years, DPW tried to avoid work restrictions by prolonging Rashti’s work day so that rather than being physically scheduled for a ten-hour shift, Rashti would be expected to start work at 6:45 a.m. and end her shift more than 12 hours later. Rashti Decl. ¶26; Rico Decl. ¶23.

At an Interactive Meeting in October 2008, Rico proposed that Rashti be allowed to work as a Construction Inspector, as the prolonged sitting required as an Architectural Assistant went against Angerman’s work restrictions, but the DPW refused to reassign Rashti. Rashti Decl. ¶18; Rico Decl. ¶24. The DPW continued this refusal at interactive meetings in 2008 through 2011. Rashti Decl. ¶20; Rico Decl. ¶24.

In November 2009, Rashti participated in an ergonomic evaluation for two work stations, one standing and one sitting, to perform the work of an Architectural Assistant. Rashti Decl. ¶¶ 25, Ex. 18; Rico Decl. ¶26. The DPW purportedly ordered ergonomic equipment and promised to provide Rashti with Computer-Aided Design and Drafting (“CADD”) training but when Rashti reported to work in January 2010, the equipment had not arrived and she was not given the promised training. Rashti Decl. ¶26, Ex. 10; Rico Decl. ¶26. When Rashti insisted on taking her break as ordered by her work restriction, DPW immediately terminated her position. Rico Decl. ¶26.

From 2002 through 2014, the County failed to engage in good faith interactive with Rashti. Rico Decl. ¶8. The County improperly prevented Rashti from receiving leave donations from County employees, falsely claiming that the practice had been stopped. Rico Decl. ¶¶8-10, Ex. 3.

Rashti filed numerous grievances seeking reinstatement, accommodations, and payment of wages for periods of time when she attended ergonomic evaluations and Interactive Meetings. Rashti Decl. ¶6. Upon the insistence of the County, Rashti agreed to place all grievances in abeyance based on the guarantee that they would be resurrected and addressed upon Rashti’s return to work. Rashti Decl. ¶6, Ex. 4; Rico Decl. ¶5.

When the Board turned down Rashti’s application for disability retirement in March 2014, Rico ensured that DPW resurrected all of the pending grievances that had been placed in abeyance. Rico Decl. ¶6. The County ultimately reneged on its promise to achieve a global settlement when it refused to resolve any of Rashti’s grievances in July 2016. Rico Decl. ¶7.

Rashti was effectively dismissed from December 2006 up until July 1, 2014. Rashti Decl. ¶34; Rico Decl. ¶29. DPW reinstated Rashti on July 1, 2014. Rashti Decl. ¶33; Rico Decl. ¶26. Rashti did not refuse to work from 2006 through 2014, but rather DPW refused to allow her to work. Rashti Decl. ¶3.

The County has received sufficient notice of the matter, as evidenced by the many Interactive Meetings with Rashti, Rashti’s numerous grievances, Rashti’s various Tort Claims filed from 2009 to 2017, and the various lawsuits that have discussed these matters. Rashti Decl. ¶7, Ex. 5; Rico Decl. ¶12.

During her time of employment with DPW, Rashti experienced a history of discrimination and was subjected to a hostile work environment, including being passed over for promotions and receiving unwarranted negative performance evaluations. Rashti Decl. ¶¶ 9-15; Rico Decl. ¶¶ 15-18, Exs. 4, 6. Rashti was also ostracized and received “hate” messages from her colleagues. Rashti Decl. ¶14; Rico Decl. ¶¶ 19-21. DPW also refused a request to transfer Rashti or to modify her work schedule. Rashti Decl. ¶15; Rico Decl. ¶20.

3. Respondents’ Evidence

Rashti’s was first employed by the County on April 1, 1988. Espinoza Decl. ¶6. She has been employed continuously with the County since that date. Rashti was first employed by DPW on October 1, 1995, and she is currently an employee of DPW. Espinoza Decl. ¶6; Howard Decl. ¶16.

Over time, Rashti has had numerous injuries and work restrictions limiting her ability to work at DPW and submitted medical certifications for the period of May 7, 2002 to January 3, 2005, stating that for that 31-month period Rashti was unable to return to work. Espinoza Decl. ¶9.

On December 21, 2004, Rashti submitted a medical certification to DPW stating that she could return to work “on a trial basis as tolerated.” Espinoza Decl. ¶10. Rashti reported to work on December 30, 2004 but was later found unresponsive after three hours at work. Espinoza Decl. ¶11. Rashti again went on medical leave. Espinoza Decl. ¶11.

On December 20, 2006, Rashti submitted a medical certification stating she could return to work “as tolerated” and that she should avoid prolonged sitting and lifting objects. Espinoza Decl. ¶12, Ex. 4. DPW instructed Rashti not to report to work until it could confirm its ability to accommodate her work restriction and that it required clarification of said restrictions. Espinoza Decl. ¶13. DPW found the “as tolerated” language of Rashti’s certification to be ambiguous, preventing it from determining if it could comply with the restriction. Howard Decl. ¶¶ 6-7.

DPW subsequently received clarification on the work restriction from Rashti’s doctor and Rashti reported to work on December 28, 2006. Espinoza Decl. ¶¶ 15-17. Upon reporting to work, DPW provided Rashti with a Work Hardening Agreement, an offer of duties given as part of the interactive process, which outlines duties which the employer considers consistent with the employee’s work restrictions. Espinoza Decl. ¶17, Ex. 1. The Work Hardening Agreement is usually a temporary assignment or limitation of regular duties in anticipation of a future time when the employee can return to the full duties of the position. Espinoza Decl. ¶17.

Rashti attempted to modify the Work Hardening Agreement, handwriting her own comments on the draft. Espinoza Decl. ¶19, Ex. 1. DPW informed her that she could not make modifications to the Agreement and that she could not return to work without signing a Work Hardening Agreement. Espinoza Decl. ¶19. Rashti declined to sign the Work Hardening Agreement. Espinoza Decl. ¶20.

Rashti applied for long-term disability benefits and she was approved for benefits from October 25, 2002 to October 25, 2004. Espinoza Decl. ¶99. For long-term disability benefits to extend beyond two years until age 65, an employee must be found disabled by the Social Security Administration (“SSA”) and must apply for retirement. Espinoza Decl. ¶99. Rashti was found disabled by SSA and was notified of the requirement to apply for retirement. Rashti filed a LACERA service-connected disability retirement application on August 16, 2002, which was denied by LACERA on January 7, 2004. Espinoza Decl. ¶99. Since Rashti was not approved for service-connected disability retirement, she was required to file for regular retirement in order to extend her long-term disability benefits to the age of 65. Espinoza Decl. ¶99.

On February 4, 2004, Rashti appealed the denial of her service-connected disability retirement application with LACERA. Espinoza Decl. ¶100. Since Rashti failed to file for regular retirement, her long-term disability benefits ceased on September 30, 2005. Espinoza Decl. ¶100. During this time, Rashti was given an extension to apply for regular retirement and continued to receive long-term disability benefits from October 26, 2004 through September 30, 2005. Espinoza Decl. ¶100. Following a hearing in June 2007, a hearing officer denied long-term disability benefits beyond two years due to Rashti’s failure to file for retirement. Espinoza Decl. ¶101, Ex. 25.

On March 21, 2008, Rashti amended her service-connected disability retirement application and added additional medical conditions, which the LACERA Board again denied on May 6, 2009. Espinoza Decl. ¶101.

From 2006 through 2009, Rashti continued to submit various medical work restrictions, including her permanent work restrictions from Angerman, noting that she was precluded from performing heavy lifting or sitting for prolonged periods, and met with the DPW on several occasions in attempting to negotiate accommodations to allow Rashti to return to work. Espinoza Decl. ¶¶ 23-41, 88, 91. Negotiations were unsuccessful due to the ambiguity of some of Rashti’s work restrictions and DPW’s inability to accommodate Angerman’s permanent restrictions. Espinoza Decl. ¶¶ 23-24, 31, 40.

In January 2009, DPW offered Rashti a modified assignment based upon Rashti’s work restrictions which suggested that Rashti could engage in the inspection of construction work. Espinoza Decl. ¶42, Ex. 7. Rashti reported to work for the modified assignment on February 2, 2009, and the assignment ended on March 5, 2009. Espinoza Decl. ¶44. There was a total 190 working hours within that time period, but Rashti only reported to work for 28.25 hours, of which 13.25 hours were for training. Espinoza Decl. ¶44.

On June 2, 2009, DPW met with Rashti and offered her an alternative permanent position of Traffic Checker in an effort to accommodate her disability claims and work restrictions. Espinoza Decl. ¶48, Ex. 15. Rashti rejected the offer, refusing to accept any position that involved a change in job title. Espinoza Decl. ¶¶ 49-50, Ex. 8.

On November 17, 2009, Rashti met with DPW to discuss returning to work for a day to engage in an ergonomic evaluation of her workstation. Espinoza Decl. ¶51. Rashti reported for the evaluation on November 24, 2009, and the evaluation was conducted the same day. Espinoza Decl. ¶54; Babakanian Decl. ¶¶ 17-19.

Rashti reported for work on January 19, 2010 for a modified assignment and on January 21, 2010 discussed recommendations for ergonomic equipment with DPW. Espinoza Decl. ¶¶ 57-58. The modified assignment ended on February 2, 2010, with Rashti reporting for approximately 28 of the 90 working hours, with 6.5 of those hours spent in training. Espinoza Decl. ¶58, Ex. 10.

From 2010 through 2013, Rashti and DPW continued to meet to resolve their disputes but were unsuccessful in reaching an agreement. Espinoza Decl. ¶¶ 59-65. Rashti requested to return to work on March 14 and 27, 2014, but DPW still required clarification of Rashti’s ambiguous work restrictions. Espinoza Decl. ¶¶ 66-68. DPW contacted Rashti’s physician, Dr. Lamb, and requested clarification of the work restriction. Espinoza Decl. ¶¶ 69-71, Ex. 11. DPW received a June 3, 2014 response that she could work with no restrictions. Ibid.

DPW met with Rashti on July 1, 2014 and she returned to work the same day without any work restrictions other than Angerman’s permanent restrictions. Espinoza Decl. ¶¶ 72-75, Ex. 12.

D. Analysis

Petitioner Rashti seeks a writ of mandate compelling the Commission to hold a hearing on her claims that DPW violated CSR 9.08, which governs the County employer’s duties in a determination of an employee’s continuing medical incapacity, and section 31275, which requires an employee’s reinstatement when a disability retirement is denied. Rashti alternatively seeks an order requiring the County to compensate her for her back pay. Pet. Op. Br. at 5.

1. Rashti’s Position

Much of Rashti’s evidence is irrelevant or merely historical background. A summary of her position pertinent to the issue in this case, which is her Commission petition’s timeliness and equitable tolling is as follows.

Rashti suffered severe orthopedic injuries to her cervical spine stemming from a box of books dropping on her during a meeting. Pet. ¶44. Rashti pursued workers’ compensation claims and was placed on medical leave commencing in 2002. Between 2004 and 2010, Rashti was refused reinstatement to work for any measurable period. The County also withdrew her long-term disability benefits when she refused to apply for non-service connected retirement. AR 274. Rashti unsuccessfully sought orders compelling continuation of the long-term disability benefits.

The County steadfastly refused to allow Rashti to work for any appreciable length of time, including when she unsuccessfully sought court orders compelling her return. Pet. Op. Br. at 8. Although Rashti’s physicians gave her work restrictions, the County largely ignored them until 2008 when AME Angerman, an orthopedic surgeon, issued restrictions which he reconfirmed in April 2010. AR 147-49. Pet. Op. Br. at 9.

Rashti contends that the County deliberately engaged in a practice in which she was brought back to work so that she could accrue some vacation and sick leave benefits and then she was placed off work again under the guise that the County could not accommodate her injuries, even though she had medical certifications that she could work with work restrictions. The County’s conduct forced Rashti to draw upon the new accruals until they also were exhausted. Pet. Op. Br. at 8, 9-10. Partly in light of the County’s misconduct, Rashti was diagnosed with psychiatric injuries stemming from the abuse and her orthopedic injuries. Pet. Op. Br. at 8.

To ameliorate the adverse effects stemming from DPW’s whipsawing her and from its denial of fellow DPW employees’ Good Samaritan employees’ efforts to donate their hours to her, Rashti and her union representatives filed grievances, including on January 9, 2007, November 25, 2009, January 25, 2010 and June 22, 2010. This process became futile when DPW’s managers and supervisors unilaterally placed the grievances in abeyance after taking Rashti off work again. Pet. Op. Br. at 12. Starting in mid-2010, Rashti lost even the meager monies she had periodically received, and the County persisted in refusing to apply for a service-connected disability on her behalf. Pet. Op. Br. at 9-10.

Rashti then applied for disability retirement. LACERA denied her application (AR 39), and neither Rashti nor the County contested the decision. Upon the denial, Rashti sought immediate reinstatement under section 31725. Pet. Op. Br. at 11. Because DPW initially refused to reinstate her, Rashti filed another grievance on April 9, 2014. Rashti then was reinstated on July 15, 2014. DPW agreed to resurrect all pending grievances and wanted to combine them with other grievances Rashti had filed on May 5, 2014, July 1, 2014, July 15, 2015, September 20, 2015, and April 6, 2016. Pet. ¶7; AR 223-25. In good faith, Rashti agreed to this process. Pet. Op. Br. at 12.

At a July 9, 2015 grievance hearing, Jeff Howard, DPW’s head of Human Resources, assured Rashti that these matters would be amicably resolved. DPW delayed the formal hearing until April 20, 2016. DPW’s Deputy Director conducted the grievance hearing and he agreed to issue a resolution of all outstanding grievances and to comply with applicable Government Code provisions. Thereafter, the parties exchanged settlement proposals. AR 203-05. After receiving Rashti’s monetary demand (AR 204-05), DPW’s Deputy Director Pat Proano (“Proano”) issued a blanket denial on July 12, 2016. AR 207. In doing so, Proano failed to complete the mandatory grievance form. See AR 215. Pet. Op. Br. at 12.

Because of the cavalier manner in which Proano disposed of the grievances, Rashti, with the assistance of union representative Analisa Alvarez, filed additional grievances dated July 28 and August 28, 2016. The two also made oral and written communications about her complaints. AR 25-27; Pet. ¶7; Alvarez Decl. As of September 1, 2016, the County steadfastly refused to provide a response and withdrew from the grievance process.

Rashti seeks to equitably estop the County from asserting a time bar defense for the more than two years that the County prolonged submission of her Commission petition. Pet. Op. Br. at 13.

2. Inappropriate Remedy and Irrelevant Merits Argument

a. Back Pay Cannot Be Awarded by the Court

Mandamus is an inappropriate remedy for Rashti’s requested alternative relief of back pay. Generally, back pay (including all pertinent benefits) is awarded incidental to a decision to reinstate employment as a matter of both logic and law. For this reason, it is not subject to the claims filing requirements of the Govt. Claims Act (§§ 810-996.6) (“Claims Act”)[5] for damages against the employing agency. Eureka Teacher’s Assn. v. Board of Education, (1988) 202 Cal.App.3d 469, 475.

Whether Rashti is entitled to compensation for the alleged loss of back pay is a question for another proceeding, administrative or judicial, because Rashti admits that she was reinstated on July 1, 2014 and that events after that date are immaterial. Rashti cannot seek mandamus for an award of back pay without either a final decision from the Commission in which she is reinstated after discharge, or a court’s mandamus decision in her favor reversing the Commission on that issue. Accordingly, Rashti can only seek her primary remedy of traditional mandamus reversing the Commission’s decision of untimeliness and compelling it to hold a hearing.

b. The Merits Argument

Rashti’s merits argument is historical in nature. Rashti argues that she was effectively discharged between an unstated date (possibly 2002) and her reinstatement on July 1, 2014. While she was not formally discharged, an employee’s date of dismissal for purposes of section 31725 is defined by a number of factors, including whether she was receiving pay or benefits while awaiting the outcome of a disability application. Pet. Op. Br. at 15-16. Rashti contends that she was well below the poverty line between 2002 and July 1, 2014 when she was reinstated, and therefore was effectively discharged until July 2014. Pet. Op. Br. at 16-17. She contends that CSR 9.08 required the County to apply for disability retirement if it believed she could not perform her duties without accommodation, and it failed to do so. Additionally, section 31725 provides that an employee cannot be denied both employment on the ground of disability and disability retirement on the ground that she is not disabled. When LACERA’s Board denied her disability retirement, the County was obligated immediately to return her to work. The remedy for a violation of section 31725 is back pay retroactive to the date of medical release. Pet. Op. Br. at 14.

Rashti’s claims involve and interplay between the jurisdiction of the Commission, ERCOM, and LACERA. Disability retirement is within the LACERA Board’s jurisdiction. §31725. It is undisputed that LACERA’s Board denied Rashti’s disability retirement application in March 2014, neither party appealed, and that decision is final.

The Commission “has only the special and limited jurisdiction expressly authorized by the [County’s] charter” (Zunigu v. Los Angeles County Civil Service Commission, (2006) 137 Cal.App.4th 1255, 1259), and it decides specified employment actions such as discharges, reductions, and certain suspensions. CSR 4.03.A. As pertinent herein, Rashti must be a discharged employee to obtain a mandatory hearing and must have been discriminated against based on her medical condition for a discretionary Commission hearing,.

ERCOM is a separate agency established by County ordinance with authority to hear and decide charges of unfair employee relations practices. ERCOM Ordinance §§ 5.04.100-190. A “grievance” is defined to include a dispute concerning the rules and regulations governing personnel practices or working conditions. §5.04.230. ERCOM would hear any claim by Rishti in which she contended the County’s treatment of her was an unfair labor practice.

Essentially, Rashti argues that she should have a hearing before the Commission on her claim that she was effectively discharged until July 1, 2014 and is entitled to back pay for two operative periods – an unstated date (possibly 2002) until March 2014 from March 204 until July 1, 2014. The Commission does not hear damages claims – that would be an issue for a FEHA or ADA lawsuit – and could award Rashti back pay only as a means of reinstating her or determining that she had been subject to discrimination under CSR 25.01. But Rashti already was reinstated when she filed her petition to the Commission.

Although Rashti alleges that she faced discrimination by DPW as a result of her medical condition (Pet. ¶9), she fails to discuss this issue in her briefs, which means it has been waived. While her appeal to the Commission referred to discrimination, it did not mention CSR 25.01 (AR 274-77), and the Commission had discretion to deny a hearing on Rashti’s discrimination argument under CSRs 4.02 and 4.03.B.

Thus, Rasht’s claims to the Commission may be moot. However, the Commission did not deny Rashti a hearing on the merits; it was denied as untimely. The court will address that issue.

2. Equitable Tolling

Rashti implicitly concedes that her petition to the Commission did not meet the 10 or 15-business day requirement of CSR 4.05. Her claim that she was effectively discharged until March 2014 when LACERA’s Board denied her disability claim should have been presented within 15 days[6] and her claim that the County violated section 31725 should have been presented within 10 days of July 1, 2014. Instead, she argues that her petition is timely because it was tolled by the principle of equitable tolling.

The doctrine of equitable tolling exists to prevent unjust and technical forfeitures of a right to trial when the purpose of the statute of limitations has been satisfied. Broadly speaking, when a person has several legal remedies and reasonably and in good faith pursues one, the statute of limitations period is equitably tolled. McDonald v. Antelope Valley Community College District, (“McDonald”) (2008) 45 Cal.4th 88, 100. The doctrine applies to two different lawsuits, or pursuit of an administrative remedy and then a lawsuit. By alleviating the fear of claim forfeiture, grievants have the opportunity to pursue informal remedies, a process the California Supreme Court repeatedly has encouraged. Id. at 100. Equitable tolling may extend even to the voluntary pursuit of alternate remedies. Id. at 101. So, where an aggrieved party voluntarily elects to pursue an administrative remedy, he or she should be permitted to do so. Id. at 103 (citation omitted). The doctrine of equitable tolling is judicially created and operates independently of the literal wording of most statute of limitations, but it is not immune to statutes of limitation where the Legislature expressly negates equitable tolling or the purpose of the policy underlying the statute cannot be reconciled with equitable tolling. Id. at 105.

The elements of equitable tolling are: (1) the first claim must have been filed within the statutory period, and must alert the defendant in the second claim that it should be investigating the facts which form the basis of the second claim, which occurs as a matter of course when the defendant is the same in the first and second claims; (2) the facts of the two claims must be identical or at least so similar that the defendant’s investigation of the first claim will place him in position to defend the second claim, and (3) the plaintiff exhibits “reasonable and good faith conduct.” Id. at 102, n.2.

Rashti asserts that her grievances and attempts at informal internal resolution tolled the statute of limitations between LACERA’s March 14, 2014 decision denying service-connected disability retirement and July 1, 2014 under McDonald. Pet. Op. Br. at 17; Reply at 6. She argues that her pursuit of grievances to redress prior violations of her employment rights and ultimately her claim for retroactive pay before March 14, 2014 should be tolled as well. Ibid. She notes that she was reinstated, the County consolidated the grievances for resolution, and she contends that Jeff Howard promised to pay her salary and benefits from March 2014 to July 1, 2014. AR 25. Ibid. Rashti argues that she was deliberately mislead when she agreed to submit all of her grievances, some of which had been pending for close to a decade. Pet. Op. Br. at 18.

Rashti partly meets the elements of equitable estoppel. The first claim, which must be timely, must alert the defendant that it should investigate the second claim and their facts must be close to identical.

The first claim is Rashti’s collective grievances, and they are best described in her union representative’s September 1, 2016 email: (a) DPW failed to apply for her service-connected disability retirement as required by CSR 9.08, and (b) DPW failed to return her to work by March 15, 2014 in compliance with section 31725. AR 221.

The second claim, Rashti’s claim to the Commission, is that she was effectively discharged until July 1, 2014 and she is entitled to back pay until that date. She contended that DPW (1) improperly denied her employment on the ground of medical condition in violation of CSR 9.08 and (2) wrongly failed to apply for her disability retirement as required by CSR 9.08. AR 276. Rashti claimed that in doing so, DPW failed to act in accordance with section 31725. AR 276. DPW should have reinstated her on March 14, 2014, when the LACERA Board denied her appeal for disability retirement, entitling her to retroactive back wages and benefits. AR 277.

The court concludes that Rashti meets the first two elements of equitable tolling for back pay from March 14, 2014 to July 1, 2014. However, nothing in Rasti’s collective grievances contends that she had been denied employment on the ground of medical condition in violation of CSR 9.08 and she does not meet these elements for her pre-March 14, 2014 claim.

The third element is the plaintiff’s good faith. The County argues that Rashti did not act in good faith because she was confrontational and uncooperative as follows: (a) in 2006 she failed to engage in a Work Hardening Agreement Espinoza Decl. ¶¶17-20); (b) in 2006-07 she failed to clarify her own medical certifications (id., ¶¶ 23-28); (c) she failed to attend meetings in April 2009 (¶45); (c) she had a cavalier attitude towards attendance from 2002 to 2014, (¶¶ 54, 94); and (d) she failed to meaningfully participate in the interactive process on June 10, 2010 (id. Ex. 18). Opp. at 12-13. The issue of Rashti’s good faith was never presented to the Commission, and the County’s evidence relates only in part to the period between March 14 and July 1, 2014. While the County’s evidence suggests that she acted in bad faith from 2002 to 2014, the court cannot say Rashti did not act in good faith during the pertinent period of March 14 to July 1, 2014.

Without any other consideration, Rashti would establish equitable tolling for her claim that the Commission should have awarded her back pay from March 14 to July 1, 2014. However, McDonald also points out that the doctrine of equitable tolling is judicially created. While it operates independently of the literal wording of most statute of limitations, it is not immune to statutes of limitation where the legislature expressly negates equitable tolling or the purpose of the policy underlying the statute cannot be reconciled with equitable tolling. Id. at 105. The McDonald court cited two statutes, CCP sections 340.6 and 366.2, as examples of express negation of equitable tolling. CCP section 340.6 provides that the limitations period for attorney malpractice shall tolled for three listed reasons. CCP section 366.2(b) provides that the limitations period for wrongful death shall not be tolled or extended except as listed.

DPW’s surreply to the Commission pointed out that CSR 4.05.B has a similar express negation of equitable tolling. AR 10. In pertinent part, CSR 4.05.B provides:

“….The filing of a departmental grievance or an appeal in another jurisdiction, such as [ERCOM], shall not constitute good cause for extending the time limits for filing a petition with the commission….”

This is just the type of express negation of equitable tolling to which McDonald referred. While CSR 4.05.B mentions good cause and not tolling, it is a clear statement that a pending ERCOM grievance shall have no bearing on the 10/15-business day requirement for filing a petition. Equitable tolling cannot apply to Rashti’s claims.

E. Conclusion

Rashti is trying to put a square peg in a round hole. To the extent she has claims of unlawful treatment in violation of CSR 9.08 and section 31725, they are damages claims for a FEHA, ADA, or similar lawsuit. She cannot obtain back pay from the court, she cannot compel the Commission to hear a mandatory claim on discharge after she has been reinstated, she cannot compel the Commission to hear a discrimination claim under CSR 25.01, and equitable tolling does not apply to her Commission petition.

The petition for writ of mandate is denied. The County’s counsel is ordered to prepare a proposed judgment, serve it on Rashti’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for October 10, 2019 at 9:30 a.m.

[1] Petitioner prepared the Administrative Record, Trial Notebook, and separate evidence in five-inch binders. Aside from the fact that this mountain of evidence is wholly unnecessary for a case evaluating only the timeliness of her petition, five-inch binders are unwieldy and never appropriate for mandamus. Petitioner’s counsel is directed to read and follow LASC 3.231(g) and (l) concerning preparation of the record and trial notebook, respectively, before appearing in any future writs case.

[2] All further statutory references are to the Government Code unless otherwise stated.

[3] Rashti requests judicial notice of: (1) the Petition for Writ of Mandate in the instant case (Ex. A), (2) the Answer to the Petition in the instant case (Ex. B), (3) the Proposed Findings of LACERA Referee, dated March 31, 2013 (Ex. C), (4) LACERA Letter, dated July 6, 2017, re: Retirement Service Credits (Ex. D), (5) Letter from Jeff Howard to Helena Wise, dated August 27, 2018 (Ex. E), (6) Rashti v. County of Los Angeles, et al., BC708438, filed August 20, 2018 (Ex. F), (7) Proposed Decision of LACERA Hearing Officer, issued March 2018 (Ex. G), (8) Final Decision of LACERA Hearing Officer, issued May 8, 2013 (Ex. H), (9) LACERA Decision dismissing Appeals with Prejudice, issued March 14, 2014 (Ex. I), (10) Selected evidence from Index of Exhibits in Support of Motion for Summary Judgment in Case No. BC404323 (Ex. J), and (11) Exhibits 1, 6, 9, and 10 from Defendant’s Request for Judicial Notice in Case No. BC404323 (Ex. K).

Exhibits A and B are documents from the instant case file and there is no need to judicially notice them; a judge can always review those files. Rashti appears to have mislabeled Exhibit C, which is another letter from Jeff Howard rather than the Proposed Findings of the LACERA Referee. The correspondence from LACERA (Exhibits C-E) is not subject to judicial notice and the request is denied. Exhibits G-I are official acts of a governmental agency and their existence, but not the truth of their contents, could be judicially noticed. Evid. Code §452(c); Cruz v. County of Los Angeles, (1985) 173 Cal.App.3d 1131, 1134. Exhibits J-K are court-filed documents and their existence, but not the truth of their contents, also could be judicially noticed. Evid. Code §452(d); Sosinsky v. Grant, (1992) 6 Cal.App.4th 1548, 1551 (judicial notice of findings in court documents may not be judicially noticed). However, none of LACERA’s findings nor documents from other court files are relevant to the mandamus issue herein, and the requests to judicially notice Exhibits G-K are denied.

The parties have submitted both a record and separate evidence. The court has ruled on the parties’ evidentiary objections, many of which were sustained on foundation and relevance grounds. The court sustained objections to all post-July 2014 evidence on relevance grounds.

[4] Both parties cite to AR 1 for the Commission’s decision, but the Administrative Record is missing this page. The Commission decision is included in the lodged Trial Notebook.

[5] The County argues that Rashti’s action is monetary in nature, as she seeks back pay and service credits, making the Claims Act applicable. Opp. at 11. The County notes that Rashti’s Petition failed to plead compliance with the statute, which is fatal to the action pursuant to State of California v. Superior Court (Bodde), (2004) 32 Cal.4th 1234, 1242 n. 10. Opp. at 11. Rashti asserts that she filed multiple claims under the Claims Act (Reply at 5-6) and attempts to rectify the Petiton’s failure to plead as much by applying ex parte for an order shortening time on a motion to amend her Petition to allege compliance. Rashti never noticed an ex parte hearing, and the ex parte application was never ruled upon. Nor does the court need to do so. As stated ante, Rashti can obtain back pay in mandamus only as incidental damages to the court’s reinstatement to her job. Rashti’s claim for lost pay is not within this court’s mandamus authority, and instead is a matter for a damages claim under FEHA, the ADA, or some other legal theory of damages.

[6] Rashti does not argue that she was never served with a notice of discharge triggering the 15-day period. See CSR 4.05.A.1