>KHAN v. LOS
ANGELES CITY EMPLOYEES' RETIREMENT SYSTEM

















Filed 8/3/10











>CERTIFIED FOR PUBLICATION







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
ONE




>

ABRAHAM KHAN, Plaintiff and Respondent, v. LOS ANGELES CITY EMPLOYEES' RETIREMENT SYSTEM, Defendant and Appellant.

B214685 (Los Angeles County Super. Ct. No. BS108965)

APPEAL from
a judgment of the Superior Court
of Los Angeles
County, Geoffrey T. Glass, Judge. (Judge of the Orange
Sup. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal.
Const.) Reversed with directions.

Carmen A.
Trutanich, City Attorney, Alan L. Manning, Assistant City Attorney, Mary Jo
Curwen, Deputy City Attorney, for Defendant and Appellant.

Richards,
Watson & Gershon and Saskia T. Asamura for Plaintiff and Respondent.



_______________________________



>

The Los Angeles City Employees
Retirement System (LACERS) appeals from a judgment in
favor of Abraham Khan (Khan) granting his petition for writ of mandate
compelling LACERS to approve his request for concurrent deferred retirement
benefits with LACERS and the Judicial Retirement System (JRS).^[1] The sole issue on appeal is whether LACERS
and JRS have reciprocity provisions such that Khan, a Judge of the Superior
Court of Los Angeles County who had worked for the City of Los Angeles (City)
as a City Attorney, may retire from LACERS at his higher judicial salary. We conclude they do not, and reverse and
remand with directions that the trial court enter judgment in favor of LACERS.

FACTUAL
BACKGROUND AND PROCEDURAL HISTORY

>1. Allegations
of Judge Khan's Petition for Writ of Mandate.

Respondent Khan
is a member of both LACERS and JRS. From
approximately 1978 through 1988, Judge Khan worked in various capacities for
the City, with his last position being that of Deputy City Attorney. Upon leaving employment with the City, Judge
Khan elected not to cash out his benefits with LACERS. In 1988, Judge Khan was appointed a Judge of
the Los Angeles Municipal Court and was elevated to the Superior Court in 2000. By reason of his judicial appointments, Judge
Khan was eligible to receive benefits under JRS.

In 2004, Khan
applied to LACERS to determine his eligibility for concurrent retirement from
LACERS and JRS at his higher judicial salary.
LACERS informed him that LACERS did not have reciprocity with JRS.

On May 21, 2007, Judge Khan
filed a petition for writ of mandate
(Code of Civ. Proc., § 1085) to compel LACERS to pay him retirement
benefits based upon his judicial salary earned while a member of JRS. Judge Khan's petition alleged that pursuant
to the reciprocity provisions of the statutes governing the state's Public
Employees Retirement System (PERS), and statutes governing county and city
retirement systems, LACERS had established reciprocity with PERS and all other
systems having reciprocity with PERS. Judge
Khan further alleged that Assembly Bill No. 1099 (AB 1099), passed on October
2, 2001, amended section 20639 (applicable to PERS)^[2] to provide that compensation earned while a
member of JRS would be considered compensation earnable by a member of PERS for
purposes of computing final compensation if the member retired concurrently
under both systems.^[3] Khan alleged that because PERS and LACERS had
reciprocity, AB 1099 specifically extended reciprocity from JRS to LACERS, and
that such amendments were retroactive as a matter of law.

Khan sought a
writ of mandate commanding LACERS and PERS^[4] to approve his eligibility for concurrent
deferred retirement with LACERS and JRS, at such time as he elected to retire
from the bench, with his benefits under both systems to be computed using his
highest salary as a judge.

>2. Hearing
on the Petition.^[5] >

Judge Khan argued
that under statutory reciprocity
provisions granting reciprocal benefits to city and county agencies that
had reciprocity agreements with PERS, in July 1997, LACERS and PERS entered
into a reciprocal agreement. Under the
applicable statutes, that agreement gave LACERS not only reciprocity with PERS,
but with all other agencies having reciprocity with PERS. To implement this agreement, the City adopted
Ordinance No. 171656 which amended Los Angeles Administrative Code section
4.1065 to provide for such reciprocity between LACERS and PERS.

In support of his
contention that the reciprocity between PERS and LACERS extended to JRS, Judge
Khan contended that AB 1099 added the Judges' Retirement System II (JRS II) to
the reciprocal provisions of PERS and as a result, members of JRS and JRS II
had reciprocity with city and county retirement systems which already had
reciprocity with PERS, such as LACERS.^[6] Judge Khan argued the fact that LACERS and
JRS did not have a contractual agreement
for reciprocity was irrelevant because this statutory scheme mandated
reciprocity.

In opposition,
the City contended that Los Angeles Administrative Code section 4.1065 did not
create reciprocity between LACERS and JRS because any reciprocity under LACERS
was extended only to those retirement systems which agreed, by contract entered
into pursuant to statutory provisions governing PERS and the county retirement
systems, to provide reciprocal benefits to LACERS members. Furthermore, AB 1099 unambiguously did not
create statutory reciprocity with LACERS via PERS's statutory reciprocity
provisions with other city and county agencies because JRS did not grant
reciprocal retirement to PERS members as required by those statutes. To support its position, the City also relied
on a 2007 PERS publication, â€