Filed 1/7/20 Almeida v. Pub. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

—-

ROBERTA ALMEIDA,

Plaintiff and Appellant,

v.

PUBLIC EMPLOYEES’ RETIREMENT SYSTEM,

Defendant and Respondent.

C084436

(Super. Ct. No. 34201680002324)

From 1998 to 2009, Roberta Almeida provided information technology services under a total of 12 contractual agreements with the Public Employees’ Retirement System (CalPERS). When Almeida became a CalPERS employee in 2009, she requested that the agency backdate her employment to 1998 so that she could receive retroactive civil service employee benefits. CalPERS refused, and Almeida requested a formal administrative hearing. The hearing culminated in an administrative law judge’s decision that upheld the refusal on grounds Almeida’s claim was barred by laches, she did not meet the statutory definition of a civil service employee, and she also did not meet the common law test for being an employee. Almeida petitioned the trial court for a writ of administrative mandate. The trial court denied the writ, and Almeida appeals.

On appeal, Almeida contends (1) the equitable doctrine of laches is not applicable to the question of whether she meets the statutory definition of a civil service employee, (2) laches does not apply to “nullify an important policy for the benefit of the public,” (3) insufficient evidence supports the findings of her acquiescence and unreasonable delay in asserting her claim, (4) the evidence proved she was an employee of CalPERS, and (5) the contracts between Almeida and CalPERS “resemble employment contracts.”

We conclude laches provides CalPERS with a defense to Almeida’s claim. We further conclude CalPERS proved Almeida acquiesced to her status as an independent contractor and unreasonably delayed bringing her claim to CalPERS’s prejudice. Accordingly, we affirm the judgment.

BACKGROUND

We briefly recount the factual background of this case based on the decision made by the administrative law judge who presided over the formal hearing in this matter. The administrative law judge made the following findings of fact based on the testimony and evidence presented by Almeida and CalPERS:

Independent Contractor Agreements 1998 to 2009

On May 22, 1998, Almeida entered into a contractual agreement with Synergy Consulting, Inc. (Synergy) to provide information technology services on behalf of Synergy. Synergy then submitted a bid to provide independent contractor services to CalPERS for its information technology needs. On July 1, 1998, Synergy and CalPERS entered into a contract for Synergy to provide information technology services to CalPERS. For two years, Almeida worked as a subcontractor for Synergy in providing information technology services to CalPERS. The administrative law judge found Almeida “admitted she understood she was providing [information technology] services to CalPERS as an independent contractor the entire time she did so on behalf of Synergy . . . .” During the time she worked as a subcontractor, Synergy provided her with Form 1099s for her income.

After two years as a subcontractor to CalPERS, Almeida “opted to ‘cut out the middleman,’ formed the business ‘Roberta Almeida’ as a sole proprietorship, and contracted directly with CalPERS through her business.” (Fn. omitted.) Almeida formed the business “for the sole purpose of being able to contract directly with CalPERS.” For the business, Almeida “obtained a small business certification from the State, applied annually for a business license from the City of Davis, and deducted her business expenses from her income taxes.”

The business ultimately provided information technology services to CalPERS under a total of seven independent contractor agreements that spanned the period from January 1, 2001, through June 2009. Almeida “paid for her own health insurance and contributed to a SEP IRA with her own funds during the entire 11-year period she provided [information technology] services to CalPERS. [¶] Additionally, she was not paid for those days on which she did not provide any services.”

Almeida admitted she understood she was working as an independent contractor during her first three contractual agreements between her business and CalPERS. During her fourth contractual agreement with CalPERS in 2003, Almeida “began to view her relationship with CalPERS as one pursuant to which ‘I was working directly for CalPERS and they were paying me for my services.’ During that agreement, she told other consultants at CalPERS that ‘CalPERS should not be telling us that we had to ask for vacation and that type of thing.’ She also explained that she did not like ‘that they were being so controlling.’ ”

During her fourth contractual agreement with CalPERS between June 2005 and July 2006, Almeida “told other consultants that she felt she was not being treated as an independent contractor, but rather as an employee of CalPERS. However, in 2005 she began wondering why CalPERS had not issued any Form 1099s for her business while Synergy Consulting, Inc., issued her at least some Form 1099s for the years she worked as its subcontractor.” During the administrative hearing, Almeida stated “she did not receive a Form 1099 for any of the years [the business] contracted directly with CalPERS, except for 2009. [Almeida] contacted CalPERS’s fiscal unit in 2005 to ask why she had not received any Form 1099s.” She did not follow up on the inquiry.

Between July 1, 1998, and June 29, 2009, Almeida provided information technology services under “12 separate independent contractor agreements between CalPERS and either Synergy Consulting, Inc., or [the business]. She earned in excess of $1,659,473 doing so.”

Civil Service Position Beginning in 2009

Almeida began applying for vacant positions as a programmer/analyst with the State of California no later than August 13, 2008. Almeida explained she “ ‘was interested in State employment for years, and I always had a contract going, so you would get on the exam and . . . get on the list was my backup plan for the . . . .’[ ] Her best estimate was that she began taking state job examinations in 2003. But she did not apply for any positions relative to those examinations because ‘they sent out a notice; and if I was in the middle of the contract, I would not walk away from the current contract for an unknown.’ ” CalPERS hired Almeida as a full-time employee, effective June 30, 2009. In December 2010, she requested that CalPERS “backdate the effective date of her employment to July 1, 1998, for purposes of determining her eligibility for membership in CalPERS.” CalPERS denied the request, and Almeida requested a hearing to appeal the denial.

Administrative Decision

The administrative hearing culminated with the administrative law judge’s issuance of a proposed decision that the agency adopted as its decision. The decision denied Almeida’s claim on grounds that (1) her unreasonable delay and acquiescence triggered the doctrine of laches, (2) she did not meet the definition of employee under the Public Employees’ Retirement Law (Gov. Code, § 20000, et seq.), and (3) she did not meet the definition of an employee under the common law test for distinguishing between independent contractors and employees.

On the issue of laches, the administrative law judge found that “[t]he persuasive evidence established that [Almeida] knew, or should have known, her designation as an independent contractor was potentially erroneous no later than July 31, 2006. She admitted she was an independent contractor while serving as Synergy Consulting, Inc.’s, subcontractor and while providing services pursuant to [her] first three agreements with CalPERS. She understood the distinction between working as an independent contractor versus an employee at all times relevant . . . .”

Based on the timeline of events, the administrative law judge found Almeida unreasonably delayed in bringing her claim for status as a CalPERS employee. The decision notes that Almeida “began feeling she was being treated as an employee instead of an independent contractor no later than January 7, 2003. She continued to have those feelings while providing services between June 20, 2005, and July 31, 2006. And despite having received at least some Form 1099s while subcontracting for Synergy Consulting, Inc., [Almeida] waited until sometime in 2005 before inquiring about such forms not having been issued to” the business. The administrative law judge expressly found Almeida “acquiesced to the very conduct about which she now complains . . . . Such acquiescence lulled CalPERS into relying on the status quo by continuing to enter into agreements with” the business.

On the merits, the administrative law judge additionally found Almeida did not meet the Public Employees’ Retirement Law’s definition of a state employee because she was neither paid out of funds directly controlled by the state nor was she in the employ of the state. And, under the common law test of employment, the administrative law judge found that “the evidence established that she was acting as independent contractor prior to June 30, 2009 . . . .”

After CalPERS adopted the proposed decision, Almeida filed a request for reconsideration, which was denied.

Writ of Administrative Mandate

Almeida filed a petition for writ of administrative mandate to set aside the decision by CalPERS. After conducting a hearing, the trial court affirmed the agency’s decision and adopted the facts from the decision of the administrative law judge. The trial court reasoned Almeida’s business earned “in excess of $1.6 million from CalPERS. This equates to nearly $200,000 a year. In contrast, the top step for a Staff Programmer/Analyst (Specialist) paid less than $80,000 a year. Even with benefits; [Almeida’s] total compensation as a state employee would not have approached her compensation as an independent contractor.” Thus, the trial court concluded: “Having fully reaped the financial benefits of her consulting contracts, [Almeida] now seeks to receive retroactive retirement service credit, and to do so without having to pay any of the member contributions that would have been collected from her if she had, in fact, been an employee. The [trial court] agree[d] with the [administrative law judge] that [Almeida] unreasonably delayed challenging her classification as an independent contractor, and acquiesced to that classification. CalPERS relied to its detriment on her acquiescence by continuing to enter into costly consulting contracts with her.” The trial court rejected Almeida’s contention that public policy considerations barred the application of the doctrine of laches to her case.

The trial court also addressed the merits of Almeida’s contentions, determining the agency’s decision was supported by the findings and weight of the evidence presented at the administrative hearing. Although the duration of Almeida’s working relationship with CalPERS tilted slightly in favor of finding an employment relationship, the remainder of the factors in the common law analysis weighed against employee status. The trial court also determined Almeida did not meet the statutory definition of a civil service employee.

From the judgment of dismissal, Almeida timely filed a notice of appeal.

DISCUSSION

I

Administrative Mandate Standard of Review

Under Code of Civil Procedure section 1094.5, subdivision (a), a writ of administrative mandate may issue “for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal . . . .” To this end, subdivision (b) of Code of Civil Procedure section 1094.5 provides that “[t]he inquiry in such a case shall extend to the questions whether the [agency] has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.”

In reviewing claims of insufficient evidence in support of an agency’s decision, “if the order or decision of the agency substantially affects a fundamental vested right, the court, in determining under section 1094.5 of the Code of Civil Procedure whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence.” (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 44.) In Strumsky, the California Supreme Court noted, “It has long been established that retirement benefit rights of the nature here involved are vested.” (Id. at p. 45.) Nonetheless, “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)

The courts bear responsibility for the proper interpretation of statutes. For this reason, “[c]ourts must, in short, independently judge the text of the statute, taking into account and respecting the agency’s interpretation of its meaning, of course, whether embodied in a formal rule or less formal representation. Where the meaning and legal effect of a statute is the issue, an agency’s interpretation is one among several tools available to the court. Depending on the context, it may be helpful, enlightening, even convincing. It may sometimes be of little worth.” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8.)

On appeal, we independently review “conclusions as to the meaning and effect of constitutional and statutory provisions.” (Department of Finance v. Commission on State Mandates (2016) 1 Cal.5th 749, 762.) However, “[i]f a fundamental vested right was involved and the trial court therefore exercised independent judgment, it is the trial court’s judgment that is the subject of appellate court review.” (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058.) With these principles of review in mind, we turn to the merits of Almeida’s argument that her claim to CalPERS benefits during the period from 1998 to 2009 is not barred by laches.

II

Whether the Defense of Laches is Barred as a Matter of Law

Almeida argues that, “as a matter of law, laches may not be used to defeat CalPERS legal requirement to enroll Almeida in membership.” Almeida further argues that considerations of public policy preclude the defense of laches in this case. We disagree.

A.

Claimed Statutory Prohibition on the Defense of Laches

Civil Code section 3527 states that “[t]he law helps the vigilant, before those who sleep on their rights.” This provision supports the equitable doctrine of laches. As the California Supreme Court has explained, “ ‘The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359 (Conti), fns. omitted.)” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68 (Johnson).) For purposes of determining whether laches applies, “[p]rejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his [or her] burdens of proof and the production of evidence on the issue. ([Conti, supra,] at p. 361.) Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances, and in the absence of manifest injustice or a lack of substantial support in the evidence its determination will be sustained.” (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624.)

Statutes that are silent on the applicability of laches do not preclude the defense. “It is a fundamental tenet of statutory interpretation that absent any indication that the Legislature intends a statute to supplant common law, the courts should not give it that effect. (Lacher v. Superior Court (1991) 230 Cal.App.3d 1038, 1050.) . . . Absent any legislative indication that laches has been supplanted as an equitable defense, we refuse to condone its supplantation by fiat.” (In re Marriage of Plescia (1997) 59 Cal.App.4th 252, 261, superseded by statute on other grounds as recognized in In re Marriage of Fellows (2006) 39 Cal.4th 179, 185.)

Almeida relies on sections 20160 and 20164 of the Government Code to argue that laches is a defense unavailable in this case. Nothing in these sections indicates the Legislature’s intent to eliminate the defense of laches for claims to civil service employment. To the contrary, these provisions indicate the Legislature intended to require putative civil service employees to timely bring their claims. Section 20160 provides, in pertinent part, that “the board may, in its discretion and upon any terms it deems just, correct the errors or omissions of any active or retired member, or any beneficiary of an active or retired member, provided that all of the following facts exist: [¶] (1) The request, claim, or demand to correct the error or omission is made by the party seeking correction within a reasonable time after discovery of the right to make the correction, which in no case shall exceed six months after discovery of this right. [¶] (2) The error or omission was the result of mistake, inadvertence, surprise, or excusable neglect, as each of those terms is used in Section 473 of the Code of Civil Procedure. [¶] (3) The correction will not provide the party seeking correction with a status, right, or obligation not otherwise available under this part.” (Gov. Code, § 20160, subd. (a), italics added.)

Not only does Government Code section 20160 not preclude the defense of laches, it indicates that six months marks the outer limit of a reasonable delay in bringing a claim for civil service employment status. Government Code section 20164 also does not preclude the defense of laches. Section 20164 provides limitations periods for instances when CalPERS has made an erroneous payment to a member. (Gov. Code, § 20164, subds. (b)(1) [three year limitations period of erroneous payment to member], (c) [ten year limitations period where payment to member was erroneous due to death of retired member or beneficiary or due to remarriage of beneficiary].) Subdivision (b)(2) of section 20164 provides that “[i]n cases where this system owes money to a member or beneficiary, the period of limitations shall not apply.” However, the section also states that “[t]he board shall determine the applicability of the period of limitations in any case, and its determination with respect to the running of any period of limitation shall be conclusive and binding for purposes of correcting the error or omission.” (§ 20164, subd. (e).) Section 20164 does not address the defense of laches, let alone preclude its operation.

California case law confirms the defense of laches is available to CalPERS. In Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037 (Piscioneri), the Court of Appeal addressed a claim for retirement benefits based on disability. (Id. at p. 1040.) The trial court in Piscioneri issued a writ of mandate commanding the agency that had employed the petitioner to schedule a hearing on petitioner’s second disability retirement claim. (Ibid.) In issuing the writ, the trial court rejected agency’s claim of laches on grounds that petitioner had a vested due process right to a hearing. (Id. at p. 1045.) The Piscioneri court reversed and remanded on the applicability of laches. (Id. at p. 1050-1051.) Even though the petitioner applied for disability retirement under the Public Employees’ Retirement System, laches provided the agency with a defense. (Ibid.)

In Duff v. City of Gardena (1980) 108 Cal.App.3d 930 (Duff), the Court of Appeal also considered a claim for disability retirement by a firefighter under the Public Employees’ Retirement Law. (Id. at p. 933.) Duff affirmed a determination that the firefighter had not acquired retirement benefits because he had been terminated for cause during his probationary period. (Id. at pp. 936-937.) The affirmance also had another basis: laches. As the Duff court stated: “[P]erhaps most forcefully, we conclude the record does support the trial court’s determination that Duff is precluded by laches from pursuing his alleged claim to disability retirement.” (Id. at p. 938.)

Based on case law and the applicable statutes, we conclude that CalPERS is not barred as a matter of law from asserting the defense of laches to Almeida’s claim.

B.

Almeida’s Public Policy Claim

Almeida contends laches does not apply to her claim of CalPERS employment from 2001 through 2009 because to allow the defense would “nullify an important policy for the benefit of the public.” We disagree.

As our colleagues in the First District have recognized, “Our Supreme Court has been quite clear that the principle of laches is particularly pertinent in litigation concerning public employment.” (Womack v. San Francisco Community College Dist. (2007) 147 Cal.App.4th 854, 864, citing Johnson, supra, 24 Cal.4th at p. 68.) And, as we noted above, the Duff court held the reason that most forcefully compelled affirmance of the trial court’s denial of retirement benefits was the defense of laches to the petitioner’s untimely claim. (Duff, supra, 108 Cal.App.3d at p. 938.)

We reject, as inapposite, Almeida’s reliance on Westly v. California Public Employees’ Retirement System Bd. of Administration (2003) 105 Cal.App.4th 1095 (Westly). Westly involved an action for declaratory and injunctive relief brought by the State Controller to challenge CalPERS’ assertion that it could exempt its employees from civil service. (Id. at p. 1099.) In seeking to reverse a grant of judgment on the pleadings in favor of the controller, CalPERS asserted the defense of laches. (Id. at p. 1118.) This court rejected the defense on grounds that “[t]here could be no laches or waiver from the facts the Board asserts in support of its defenses.” (Ibid., italics added.) In addition, this court noted that “[t]he Controller has brought this action in the official capacity as controller of the State of California, representing the interests of the citizens of the state. The Controller seeks to enforce provisions of the civil service laws and the Public Employees Retirement Law.” (Ibid.) Here, Almeida has not brought this action on behalf of anyone other than herself. Her petition sought to vindicate no claim other than her own assertion to CalPERS employee benefits. The public policy exception does not apply to this case.

For similar reasons, we reject Almeida’s reliance on Golden Gate Water Ski Club v. Cnty. of Contra Costa (2008) 165 Cal.App.4th 249 (Golden Gate). Golden Gate involved the question of whether a county zoning plan designating “open space” for resource management of critical habitat allowed the use of a water ski club’s dwelling units, outhouses, and docks. (Id. at p. 253.) The Golden Gate court determined the County of Contra Costa was not estopped from seeking the removal of the structures due to prior inaction. (Id. at p. 258-259.) The ski club had not shown facts warranting the application of the doctrine of equitable estoppel. (Id. at p. 259.) Thus, the result in Golden Gate was based on the factual findings in that case.

The Golden Gate court also noted “another reason for rejecting the defense.” (Golden Gate, supra, 165 Cal.App.4th 249.) The community as a whole has an interest in the proper application of zoning laws. (Id. at pp. 259-260.) “To hold that [the public entity] can be estopped would not punish the [public entity] but it would assuredly injure the area residents, who in no way can be held responsible for the [public entity’s] mistake.” (Id. at p. 260, original brackets.)

Here, the interests asserted in this case are Almeida’s alone. Almeida’s claim is not brought to vindicate public policy but merely to claim CalPERS benefits for herself. Consequently, we reject the contention that public policy considerations preclude the application of laches to this case.

III

Sufficiency of the Evidence Supporting CalPERS’S Defense of Laches

Almeida next argues CalPERS introduced insufficient evidence to establish the defense of laches. Specifically, she asserts that she was not responsible for any unreasonable delay, did not acquiesce to her status as an independent contractor, and CalPERS did not prove prejudice. We disagree.

A.

Unreasonable Delay by Almeida

In support of her single-sentence argument that Almeida was “not responsible for delay,” she provides no citation to the record for her factual contention. “To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408, 420, italics added.) Accordingly, we deem this argument forfeited.

B.

Acquiescence by Almeida

The trial court found that Almeida acquiesced to being treated as an independent contractor by CalPERS. The evidence supports this finding.

The record establishes that during the period from 1998 to 2009, Almeida was aware she was not an employee of CalPERS. During the period from 1998 to 2001, Almeida understood she was a subcontractor to CalPERS because she personally entered into a contract with Synergy. As the administrative law judge found, Almeida “admitted she understood” she was providing services to CalPERS as a contractor rather than an employee. (Italics added.) In 2001, Almeida formed her business for the sole purpose of contracting directly with CalPERS so that Synergy would not be a “middleman.” Almeida, through her business, pursued eight contracts with CalPERS. For several years while working as an independent contractor, Almeida considered going to work for CalPERS as an employee. However, she chose not to pursue becoming an employee for several years because she did not want to “walk away” from the certainty of the contractual compensation for “an unknown.” Almeida even took the civil service examination in 2003, but delayed for five years before applying for a state civil service job.

The evidence of Almeida’s acquiescence to her status as a subcontractor and then independent contractor supports the defense of laches. Almeida acquiesced to independent contractor status in order to avoid the “unknown” probability to securing employment with CalPERS. (In re Estate of Kampen (2011) 201 Cal.App.4th 971, 1000.) Accordingly, we reject her argument regarding insufficiency of acquiescence.

C.

Prejudice

An unreasonable delay supports a defense of laches when the defendant can establish prejudice. “Thus ‘[d]elay is not a bar unless it works to the disadvantage or prejudice of other parties.’ ” (Brown v. State Personnel Bd. (1985) 166 Cal.App.3d 1151, 1159, quoting 7 Witkin, Summary of Cal. Law (8th ed. 1974) Equity, § 14, pp. 5239-5240.) One way for a defendant to establish prejudice is to show detrimental reliance on the status quo. (Brown, supra, at p. 1162.)

Here, CalPERS established prejudice by introducing evidence Almeida earned substantially more as an independent contractor than she would have if she had been an employee. As the trial court summarized, Almeida’s business “was well compensated for her work, earning nearly $200,000 a year, far above what she would have earned as a staff IT employee.” (Fn. omitted.) This was based on the finding that “the top step for a Staff Programmer/Analyst (Specialist) paid less than $80,000 a year. Even with benefits; [Almeida’s] total compensation as a state employee would not have approached her compensation as an independent contractor.” When Almeida began working as a CalPERS employee in 2009, her salary was $5,065 per month. Thus, the evidence showed that, in relying on Almeida’s status as an independent contractor, CalPERS paid her business a very substantial premium over what she would have otherwise earned as an employee.

CalPERS also showed it was prejudiced through Almeida’s unreasonable delay due to the faded memories of key witnesses. Almeida called Judy Allen as a witness. Allen was asked about meeting with information technology staff. She responded that she had difficulty recalling the details: “There were meetings that took place, I think, weekly. I could be wrong. It’s been a long time.” Allen also could not remember exactly when she worked with Almeida. Allen estimated “it was probably somewhere between 1991 and 2007. But I can’t even tell you when she got there.”

Almeida also called Karin Hadynski as a witness. At the time of the hearing, Hadynski was retired from CalPERS. When asked about how she became acquainted with Almeida, Hadynski stated: “You know, we’re going back quite a ways. I would say in the mid to late ‘90s we worked together on tax programs specifically quite a bit.” In response to a question about whether Almeida worked on a particular project, Hadynski answered that “there were so many people that we worked with at that time, I can’t – -you’re probably going back to ’98 or something.”

Patricia Touhey worked as a manager at CalPERS from 2000 to 2003. Touhey recalled working with Almeida. Touhey had difficulty remembering whether Almeida provided status reports, attended meetings, the meaning of terms of contracts, and the process for approving contracts. In explaining her difficulty in recall, Touhey noted: “This is 12 years ago. I’ve been retired for a long time.”

In reviewing the record, a common theme emerges. Witnesses had difficulty recalling important details about the working relationship between Almeida and CalPERS. For example, Lisa Ostrander signed contracts with the business on behalf of CalPERS but could not recall specific details about the contracts. And Carolyn Kubish testified that she worked as a CalPERS staff attorney from 2006 to 2011. Kubish remembered Almeida, but could not recall whether they ever talked about her status as an employee or a consultant. Asked about e-mails regarding a potential lawsuit, Kubish answered: “I don’t remember exactly. I feel like – well, I don’t want to guess, but I feel like it had something to do with a group of retirees, like I needed a list of names or I needed something having to do with getting the information to the printer or involved on one end of that.” Perhaps most telling, Almeida herself had difficulty recalling important information:

“Q. So do you recall or not telling these contractors that you felt you were being treated as an employee?

“A. [by Almeida] I can’t remember specific dates or times that I did, but I think – feel I said something about it.

“Q. You feel you said something about it?

“A. I recall saying something, but it’s been ten or 15 years.”

The unreasonably long delay resulted in prejudice to CalPERS in defending against Almeida’s claim because of faded memories regarding the salient points of her claim. “Laches is ‘ “designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” ’ ” (Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, 1521, quoting Wood v. Elling Corp. (1977) 20 Cal.3d 353, 362.) The testimony in the record, including Almeida’s, establishes CalPERS was prejudiced by the long delay between the time Almeida now claims to have been an employee and the time of her claim.

DISPOSITION

The judgment is affirmed. Public Employees’ Retirement System shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/ , J.

HOCH

We concur:

/s/

MURRAY, Acting P. J.

/s/

DUARTE, J.