Judge: Mary H. Strobel, Case: 30, Date: 2022-10-25 Tentative Ruling

Case Number: 30-2019-01043847    Hearing Date: October 25, 2022    Dept: 82

             Respondent Board of Retirement, Orange County Employees Retirement System (“Respondent” or “Board”) moves for an order discharging the writ issued in this action.  Petitioner James B. Morell, in pro per (“Petitioner”) opposes. 

Relevant Procedural History

            On January 15, 2019, Petitioner filed a petition for writ of mandate pursuant to CCP section 1094.5 and 1094.6.  On August 23, 2019, Respondent filed its answer.

            On June 18, 2020, Petitioner filed his opening brief in support of the petition (“OB”).  The court received Respondent’s opposition (“Oppo.”), Petitioner’s reply, the administrative record (“AR”), and the joint appendix. 

On August 20, 2020, the writ petition came for hearing. After oral argument on the court’s tentative ruling, the court took the matter under submission.

On August 21, 2020, the court issued its ruling on submitted matter and denied the writ petition.

Petitioner timely moved for reconsideration of the court’s ruling on the writ petition, including based on new case authority.  On February 11, 2021, after briefing and a hearing, the court granted reconsideration based on Alameda County Deputy Sheriff's Association v. Alameda County Employees' Retirement Association (2020) 9 Cal.5th 1032, and on the court’s own inherent authority. 

On March 11, 2021, Petitioner filed his supplemental opening brief .  The court received Respondent’s supplemental opposition and Petitioner’s supplemental reply.

On May 20, 2021, after a hearing, the court granted the writ petition in part.  The court’s February 11, 2021, and May 20, 2021, rulings include a detailed legal discussion, which is not repeated here but is incorporated by reference. 

On July 16, 2021, the court entered judgment granting the writ petition in part and denying the writ petition in part.  The judgment states that the court will retain jurisdiction for purposes of enforcing compliance with the writ.  The court struck from the proposed judgment a statement that the court would retain jurisdiction for the purpose of “addressing any remaining post compliance issues.” 

On July 16, 2021, the court issued a writ directing Respondent to reconsider its decision on Petitioner’s retirement allowance in light of the court’s judgment and take certain other action, as discussed infra. 

On January 24, 2022, Respondent filed a return on the writ.  On May 17, 2022, Respondent filed an amended return.

On July 28, 2022, Respondent filed its motion to discharge the writ.  The court has received Petitioner’s opposition and Respondent’s reply.

On October 5, 2022, the court granted Petitioner’s notice of related case, finding that the instant action is related to Case No. 22STCP02345.  In the related action, Petitioner challenges the merits of Respondent’s decision after remand and seeks a writ directing Respondent “to include all cash OBP payments in ‘compensation earnable’ and ‘final compensation,’ and to recalculate Petitioner’s retirement allowance accordingly.”  The trial setting conference in Case No. 22STCP02345 is also set for hearing on October 25, 2022.

Analysis

            “When a respondent believes it has completely fulfilled the terms of a writ, its return should state that it has satisfied the writ in full compliance with the final judgment and writ, and set out the actions taken to meet the writ's terms.”  (L.A. Internat. Charter High Sch. v. L.A. Unified Sch. Dist. (2012) 209 Cal.App.4th 1348, 1355.)  “The trial court that issues a writ of mandate retains continuing jurisdiction to make any orders necessary for complete enforcement of the writ.”  (Ibid.)  “If the petitioner or the court is dissatisfied with the return, the court may order the respondent to reconsider.”  (Ibid.)  If the trial court determines that the respondent complied with the writ, the court may issue an “order discharging [the] writ.”  (Ibid.) 

            Here, the writ directed Respondent to take the following action: (1) to set aside its decision of October 18, 2018, denying Petitioner’s application for a recalculated retirement allowance and to reconsider the matter in light of the court’s decision; (2) to not limit the issues for consideration to whether Board and Petitioner were bound by the 2002 Settlement Agreement and judgment entered thereon, and whether Petitioner’s retirement allowance had been calculated in accordance with the Settlement Agreement and judgment; (3) to “decide Petitioner’s contentions that OCERS improperly excluded OBP benefits from the calculation of his final compensation separate and apart from the Settlement Agreement”; and (4) to file and serve a return within 180 days of service of the writ.  (Matsuo Decl. filed 1/24/22 (“Matsuo Decl.”) Exh. 2.)

            Respondent complied with the writ in full.  On December 13, 2021, Respondent set aside its October 18, 2018, decision and proceeded to reconsider the matter on remand.  Petitioner and OCERS’ staff counsel presented argument and evidence to Respondent on the issue of whether Petitioner’s contested OBP benefits were pensionable under the CERL and related laws at the time Petitioner retired in 2014 without regard to the 2002 Settlement Agreement.  (Matsuo Decl. ¶¶ 5-19, Exh. 5-11.)

In compliance with the writ, Respondent reconsidered and decided the matter separate and apart from the 2002 Settlement Agreement.  Respondent also decided Petitioner’s contention that OCERS improperly excluded OBP benefits from the calculation of his final compensation.  Specifically, Respondent found, inter alia, that County “Resolution 90-1551 made CERL section 31460.1 operative as a carve-out effective in Orange County as of January 1, 1991, thereby excluding from the definition of ‘compensation’ (under Government Code § 31460) payments made by an employer to an employee or on behalf of an employee, for that employee’s participation in a flexible benefit plan, such as the OBP, regardless of whether paid in cash.”  (Matsuo Decl. Exh. 11.)  Respondent found that “OCERS’ staff’s exclusion of OBP benefits (both for health and dental reimbursements and taxable cash payments within the three year measuring period) from the Applicant’s compensation and compensation earnable complied with the CERL at the time the Applicant retired in 2014, according to Section 31460.1, the County’s Resolution 90- 1551, SB 193’s savings clause, and the Board’s Resolution 98-001 (which is based in part on County’s Resolution 90-1551), notwithstanding the 2002 Settlement Agreement.”  (Ibid.)

Finally, Respondent filed a return on the writ within 180 days.  (See Return filed 1/24/22.)

In opposition, Petitioner contends that Respondent failed to obey the command to reconsider his “contentions (plural)” regarding the pensionability of the excluded OBP benefits.  (Oppo. 2.)  Petitioner states that he argued on remand that CERL, as written in 2014 and construed by the California Supreme Court, required the OBP benefits to be included in the calculation of his retirement allowance and also “that Respondent’s reliance on a repealed statutory ‘carve out’ in former Government Code section 31460.1 was misplaced.”  (Oppo. 2.)  Petitioner contends that “Respondent on remand addressed only the latter of these contentions” and “did not state any finding or conclusion with regard to the ultimate issue of whether cash OBP payments are pensionable under the CERL apart from the repealed statute.”  (Ibid.)

Petitioner’s construction of the writ is not entirely accurate.  Petitioner is correct that the court directed Respondent to “decide Petitioner’s contentions that OCERS improperly excluded OBP benefits from the calculation of his final compensation separate and apart from the Settlement Agreement.”  The court did not direct Respondent how to resolve the pensionability issue, other than to decide the issue separate and apart from the settlement agreement.      

Respondent complied with this direction.  Respondent determined that Resolution 90-1551 and SB 193’s savings clause made former Government Code section 31460.1’s exclusion of flexible benefits from the definition of “compensation” part of the CERL as applicable to Orange County.  (Matsuo Decl. Exh. 11.)  Because Respondent resolved the pensionability issue based on this interpretation of Resolution 90-1551 and SB 193, Respondent was not required by the writ to decide other contentions made by Petitioner.

Petitioner fails to show that an order discharging the writ would “complicate resolution of the matter in the new writ proceeding.”  (Oppo. 2.)  The return shows full compliance with the writ.  The court states no opinion about the substantive merits of Respondent’s determination on remand that Petitioner’s OBP benefits must be excluded from the calculation of Petitioner’s retirement allowance.  That issue is the subject of the related action.

Conclusion

            The motion is GRANTED.  The writ is discharged.