BONNER v.COUNTY OF SAN DIEGO

Filed 5/26/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

                      APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey B. Barton, Judge.  Affirmed.

                      Law Offices of Michael A. Conger, Michael A. Conger and Richard H. Benes for Plaintiffs and Appellants.

                      Duckor Spradling Metzger & Wynne, Scott L. Metzger, Robert M. Shaughnessy and Kevin L. Wheeler for Defendant and Respondent San Diego County Employees' Retirement Association; John J. Sansone, County Counsel, and William A. Johnson, Jr., Senior Deputy County Counsel, for Defendant and Respondent County of San Diego.

INTRODUCTION

                      The County Employees Retirement Law of 1937 (the CERL) (Gov. Code,^[1] §  31450) establishes retirement allowances for persons classified as " general members" (see §  31670 et seq.) and more generous retirement allowances for persons classified as " safety members" (see §  31662 et seq.).  Although safety members receive more generous benefits, they must contribute to their county retirement systems at a higher rate than general members.  (Compare §  31620 et seq. with §  31639 et seq.)

                      Section 31469.4 defines safety members to include " persons employed as probation officers," but provides " [t]he provisions of this section shall not be applicable in any county until the board of supervisors by resolution make the provisions applicable."   When a county adopts the provisions of section 31469.4, the employees affected must elect, within one year, to be treated as safety officers.  (§  31558.6.)  When by amendment to the CERL the definition of safety members is expanded, affected employees may also elect to have their previous service treated as service of a safety member.  (§  31639.7.)  However, the employees must make this election at the time they elect to be treated as safety members and arrange to contribute the difference between their prior contributions and the higher contributions required of safety members plus interest.  (§  31639.7.)

                      Following a collective bargaining agreement with its probation officers, defendant and respondent County of San Diego (the County) made section 31469.4 applicable in San Diego as of January  1, 1999, and by virtue of the collecting bargaining agreement, then-current probation officers elected to become safety members of defendant and respondent San Diego County Employees' Retirement Association (the Association).

                      Plaintiffs and appellants Gary Bonner, Jeffrey Flynn and Merrie L. Birkenbach (collectively, appellants) are former probation officers, each of whom ceased being a County employee prior to January 1, 1999.  At the time they left County employment, each of the appellants was eligible to leave their " accumulated contributions in the [County's] retirement fund and be granted a deferred retirement allowance," which they could begin to collect at the time they could have retired if they had remained in county service.  (Gov. Code, § 31700.)  Each of the appellants elected deferred retirement when they left the County's employ prior to January 1, 1999.

                      Each of the appellants applied to the Association for a retirement allowance after January 1, 1999.  Although they had not elected to have their earlier service treated as safety member service or contributed the difference between their general member contributions and the amount required of safety members, they asserted that they were entitled to the benefit of the County's adoption of section 31469.4.  They relied on section 31705 which provides that persons on deferred retirement are entitled to have their " retirement allowance  .  .  .  calculated according to the provisions of [the CERL] as they exist at the time of the commencement of the retirement allowance."   (§  31705.)  The Association declined to provide the appellants with safety member allowances.

                      Appellants filed this action against the County and the Association (collectively, respondents).  In their complaint, appellants claimed the Association improperly failed to calculate their retirement benefits in accordance with section 31705.

                      Respondents filed a motion for summary judgment in which they claimed the Association did not violate section 31705 in calculating appellants' retirement allowances because appellants were not entitled to be reclassified from general to safety members, since they were not County employees at the time section 31469.4 became applicable in the County.  The trial court granted respondents' motion for summary judgment and subsequently entered judgment in favor of respondents.

We affirm.  Although the CERL allows certain employees who are leaving County service to elect deferred retirement, the CERL does not give them the right to make any further elections which may thereafter be afforded County employees.

FACTUAL AND PROCEDURAL BACKGROUND

                      Appellants are former probation officers in the County who left County employment prior to January 1, 1999.  Upon leaving County service, each appellant elected deferred retirement from the County and became employed with another public agency within the CERL system.^[2]  In December 1998 the San Diego County Board of Supervisors passed a resolution that provides in pertinent part:  " IT IS RESOLVED that the Board of Supervisors of the County of San Diego hereby determines that effective January 1, 1999, the provisions of Government Code section 31469.4 [defining safety members to include 'persons employed as probation officers'] are applicable in the County of San Diego."   As the County notes, this resolution was adopted as a part of a collective bargaining process between the County and the San Diego County Probation Officers Association (the Union).  The County and the Union had agreed that probation officers would have safety member status prospectively and could purchase, on a revenue neutral basis, credit for past safety service.^[3]

                      In March 2002 Bonner and Flynn each retired and began receiving retirement benefits from the Association.^[4]  In March 2003 appellants brought an action against respondents,^[5] seeking declaratory and injunctive relief.  Appellants sought, among other forms of relief:  (1) a judicial determination that respondents had violated section 31705 by calculating appellants' retirement benefits under provisions of the CERL that were in effect at the time they went on deferred status, rather than according to the provisions of the CERL as they existed at the time payment of appellants' retirement allowances commenced; and (2) an injunction prohibiting respondents from making such incorrect calculations in the future.

                      In November 2003 respondents filed a joint motion for summary judgment on the ground that section 31469.4 did not apply to appellants because they were not employed as safety members on the date section 31469.4 became applicable in the County.  Appellants opposed the motion.  After oral argument, the trial court granted respondents' motion for summary judgment and entered judgment in their favor.  Appellants filed a timely notice of appeal.

DISCUSSION

                      Appellants claim that although they were not County employees as of the date section 31469.4^[6] became applicable in the County, they are entitled to receive safety member allowances from the Association when they retired.  In particular, appellants claim that section 31639.7^[7] requires that the Association allow them to purchase safety member credit for service performed prior to the effective date of section 31469.4 in the County.^[8]  Accordingly, appellants claim the trial court erred in granting respondents' motion for summary judgment.

I

Standard of Review

                      " Pursuant to Code of Civil Procedure section 437c, subdivision (c), summary judgment is proper where the papers submitted demonstrate that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law."   (Barbee v. Household Automotive Finance Corp. (2003) 113 Cal.App.4th 525, 530.)  " [I]t is well settled that on appeal following summary judgment the trial court's reasoning is irrelevant, and the matter is reviewed on appeal de novo."   (Jimenez v. County of Los Angeles  (2005)130 Cal.App.4th 133, 140.)

II

General Principles of Statutory Interpretation

                      " In construing any statute, '[w]ell-established rules of statutory construction require us to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.'  [Citation.]  'We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent.  [Citation.]  The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.'  [Citation.]  If the statutory language is unambiguous, 'we presume the Legislature meant what it said, and the plain meaning of the statute governs.'  [Citation.]"   (Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 484-485 (Whaley).)

                      We also recognize that " [a]ny ambiguity or uncertainty in the meaning of pension legislation must be resolved in favor of the pensioner, but such construction must be consistent with the clear language and purpose of the statute."   (Ventura County Deputy Sheriffs' Assn. v. Board of Retirement (1997) 16 Cal.4th 483, 490.)

                      Finally, as we explain more fully below, of some import here is the rule of statutory construction that " a later, more specific statute controls over an earlier, general statute."   (Woods v. Young (1991) 53 Cal.3d 315, 324.)

III

Section 31469.4 Is A Later More Specific Statute

                      By its terms the safety member classification provided to probation officers and other employees by section 31469.4 is " not  .  .  .  applicable in any county until the board of supervisors by resolution make the provisions applicable."   (Italics added.)  Read in isolation, section 31469.4 is strictly prospective and provides no enhancement with respect to prior service.  In contrast, section 31705 provides that the retirement allowance of deferred retirees be calculated according to " the provisions of this chapter as they exist at the time of the commencement of the retirement allowance."   Because section 31705 only impacts the prior service of deferred employees, in its application section 31705 is entirely retrospective.

                      Here, where a deferred retiree argues he is entitled to the benefits of section 31469.4, the challenge we face is largely a matter of harmonizing the prospective terms of section 31469.4 and the retrospective application of section 31705.  In meeting this analytical challenge we are assisted by the statutory rule which gives precedence to a later more specific enactment over an earlier general provision.    (See Woods v. Young, supra, 53 Cal.3d at p. 324.)  In this regard we note that section 31705 is part of Article 9 of the CERL, which sets forth a County employee's right to defer retirement.  Article 9 provides the right to defer retirement to " [a]ny member, whether over or under the minimum age of voluntary service retirement, who leaves county service after completing five years of service or who leaves service and within 90 days . . . becomes a member of the Public Employees' Retirement System."   (§  31700, italics added.)    Article 9, including the retrospective provisions of section 31705, was enacted in 1947.  (Stats. 1947, ch. 424, §  1, p. 1279.)  Section 31469.4 applies only to " probation officers, juvenile hall or juvenile home group counselors, and group supervisors who are primarily engaged in the control and custody of delinquent youths" and only in counties where it has been adopted by the board of supervisors.  Section 31469.4 was enacted in 1969.  (Stats. 1969, ch. 1463, §  1, p. 2983.)  Plainly, Article 9 and section 31705 are provisions of broader and more general application than the far narrower focus of the later provisions of section 31469.4.  Thus, our initial and primary focus must be on section 31469.4 and whether its provisions can be interpreted in a manner which extends its benefits to deferred employees.

IV

                                            Section 31469.4 Only Applies to Employees Who Have Elected

                                            To Become Safety Members and Only Applies to Past Service

                                            for Which Employees Have Made a Timely Election

                      As we have noted, under the express terms of section 31469.4 the safety member classification provided by the statute is " not applicable until" it has been adopted by a county.  The most commonsense interpretation of this language is that it excludes prior service from classification as safety service.  Our consideration of closely related provisions of the CERL confirms this strict interpretation of section 31469.4.

                      Section 31469.4, even when adopted by a board of supervisors, is not self-executing.  Once section 31469.4 has been adopted by a county, affected employees must, within one year, elect to become safety members.  (§  31558.6.)^[9]  Moreover, although by its express terms section 31469.4 prevents retrospective reclassification of a member's service, arguably section 31639.7 provides an express exception to this rule.  Although under section 31639.7 affected employees may elect to have their prior service treated as safety service, this election must be made at the same time the employees elect to become safety members and must be in the form of an election to pay into a county's retirement fund the difference between their prior contributions as general members and the contributions that would have been required of them as safety members plus interest.  (§  31639.7)

                      As the County points out, section 31469.5, subdivision (c)(3), also provides an express exception to the prospective provisions of section 31469.4.^[10]  Like section 31639.7, it requires an employee to make a timely election to pay into a covered county's retirement fund the difference between prior general contributions and safety member contributions.

                      Neither of these exceptions is available to appellants.  Appellants did not make a timely election within the meaning of section 31558.6 and hence could not make a timely election under the terms section 31639.7.^[11]  Section 31469.5 is not available because it does not apply to San Diego County.  (See §  31469.5, subd. (a), and §§  28020, 28031.)

                      Although they are not available to appellants, the Legislature's provision for these express exceptions is helpful.  The provision of an exception to a general rule strongly suggests that other exceptions to the rule are not intended.  " The statutory construction

doctrine of expressio unius est exclusio alterius means ' " the expression of certain things in a statute necessarily involves exclusion of other things not expressed[.]" ' "   (United Farm Workers of America v. Agricultural Labor Relations Bd. (1995) 41 Cal.App.4th 303, 316.)  " '[W]here exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.' "   (Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 410.)  Here, although there are exceptions to prospective application of section 31469.4 for employees who file a timely election, there is no express provision of the CERL which permits deferred retirees to obtain such a retrospective reclassification at the time they commence collecting a retirement allowance.  In particular, as we explain more fully below, there is no such exception in section 31705.

V

                                            Section 31705 Applies to the Calculation of Retirement

                                            Allowances and not to the Reclassification of Deferred Members

                                            from General Members to Safety Members

                      A.  The text of section 31705 provides that the calculation of a deferred member's retirement allowance ─ but not his eligibility for safety member status ─ is provided by the version of the CERL in effect at the time of the commencement of the member's retirement allowance.

                      Section 31705 prescribes the version of the CERL to be applied in calculating the retirement allowance of a person on deferred retirement:  " The retirement allowance shall be calculated according to the provisions of this chapteras they exist at the time of the commencement of the retirement allowance."

                      Section 31664 provides a mathematical formula for calculating a safety member's retirement allowance.  That section provides in relevant part:    " Notwithstanding any other provisions of this chapter, the current service pension or the current service pension combined with the prior service pension is an additional pension for safety members purchased by the contributions of the county or district sufficient when added to the service retirement annuity to equal the fraction of one-fiftieth of the member's final compensation set forth opposite his or her age at retirement taken to the preceding completed quarter year in the following table, multiplied by the number of years of current service or years of current and prior service with which the member is entitled to be credited at retirement, but in no event shall the total retirement allowance exceed the limitation of the safety member's final compensation as set forth in Section 31676.1 as it now reads or may hereafter be amended to read:

" Age  at  retirement                                        Fraction

"           41                                                            .6258

"           41-1/4                                                            .6350

[¶]  .  .  .  [¶]

"           55  and  over                                                  1.3099" ^[12]

Story Continue in Part II ……

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^[1]                   All further statutory references are to the Government Code unless otherwise specified.

^[2]                       Section 31831 authorizes members who leave County service for employment with another entity with a retirement system established under the CERL to take deferred retirement from the County.

^[3]                   We have taken judicial notice of the collective bargaining agreement and correlative provisions of the Association's by-laws solely for the purpose of recognizing the context in which the County adopted section 31694.4.  (Evid. Code, §  452, subd. (c).)  We have made no determination with respect to what rights or obligations arose under the agreement.

^[4]                       Birkenbach elected deferred retirement from the County prior to January 1, 1999, but had not retired as of the time the motion for summary judgment was filed in the trial court.

^[5]                   In June 2003 appellants voluntarily dismissed the County from this case, without prejudice.  Shortly thereafter, the court granted the parties' stipulation to allow the County to intervene in this action as a defendant.

^[6]                       Section 31469.4 provides:  " 'Safety member' means persons employed as probation officers, juvenile hall or juvenile home group counselors, and group supervisors who are primarily engaged in the control and custody of delinquent youths who must be detained under physical security in order not to be harmful to themselves or others.  [¶] The provisions of this section shall not be applicable in any county until the board of supervisors by resolution make the provisions applicable."

^[7]                       Section 31639.7 provides:  " If a member not previously within the field of membership as a safety member is brought within such field of safety membership by amendment to this chapter, he may receive credit as a safety member for all or any part of the time during which his duties would have made him eligible to become a safety member if such amendment had then been in effect by filing with the board at the time he elects to become a safety member his election to pay into the retirement fund an amount equal to the difference between the contributions actually made during the time for which he claims credit and the contributions he would have made during such time, including all additional contributions, if any, required by Article 7.5 of this chapter, had he been a safety member, together with regular interest on the amount required to be deposited."

^[8]                   We reject the Association's argument that appellants are barred from relying on section 31639.7 because appellants did not cite that section in their pleadings.  Appellants' complaint claimed the Association violated section 31705 by failing to calculate their retirement allowances in accordance with the CERL as it existed at the time of the commencement of such allowances and cited and quoted section 31705 in their complaint.  Appellants were not required to cite in the complaint all statutes within the CERL that are relevant to this claim.  To the extent the Association was uncertain as to the basis of the claimed violation, it could have demurred on this ground.  It did not do so.  In addition, appellants claimed in their opposition to the Association's motion for summary judgment that they were entitled to make contributions pursuant to section 31639.7.  Thus, appellants clearly have not forfeited reliance on section 31639.7.

                      In light of our conclusion, we deny appellants' motion that we disregard a portion of the Association's brief arguing that appellants are barred from relying on section 31639.7.

^[9]                   We have taken judicial notice of the legislative history of section 31558.6 prepared by the Legislative Intent Service and submitted by appellants.

                      Although section 31558.6 does not mention probation officers, as we interpret the statute it includes all employees covered by section 31469.4.  As the County points out, section 31469.4 was enacted in 1969 (Stats. 1969, ch. 1463, §  1) and section 31558.6 was enacted shortly thereafter.  (Stats. 1970, ch. 396, §  3.)  Initially, both sections originally applied only to " juvenile hall group counselors and group supervisors."   However, section 31469.4 was amended in 1971 to allow counties to include two additional groups within the definition of safety members, to wit:  probation officers and juvenile group counselors/supervisors.  (Stats. 1971, ch. 107, §  2.)  Through obvious oversight, section 31558.6 was not similarly amended to provide the same election procedure for probation officers and juvenile group counselors/supervisors.  There is simply no rationale under which probation officers and juvenile group counselors/supervisors would be excused from the timely election requirements of section 31558.6 imposed on juvenile hall group counselors and group supervisors.  Indeed, other provisions of the CERL plainly assume section 31558.6's election requirement applies to those employees.  Section 31469.5 provides safety membership for probation officers in certain counties and directs that " notwithstanding section 31558.6," probation officers in these counties must elect safety membership within 120 days from the implementation of section 31469.4.

                      Although a court's power to effectively rewrite statutes because of drafting errors must be used with great restraint, where as here the error is clear and correction will best carry out the intent of the Legislature, we have the power to do so.  (See People v. Skinner (1985) 39 Cal.3d 765, 775 [court found it ''clear" that the word " and" was " erroneously used" in place of " or" ]; In re Thierry S. (1977) 19 Cal.3d 727, 741 [" obvious mistake" in statute's cross-reference to " Section 625" was corrected to read " Section 2," so as to reflect the Legislature's " clear intent" ]; People v. Troutman (1921) 187 Cal. 313, 316-317 [" evident" drafting error-statute's reference to " Part Two" -corrected to read " Part One" in order to reflect Legislature's intent]; Washburn v. Lyons (1893) 97 Cal. 314, 315 [" very clear" drafting error-use of " and" instead of " or" -was reformed to reflect Legislature's intent].)

^[10]                       Section 31469.5 provides in pertinent part:  " (c) Except as otherwise provided in this section, the retirement benefits of existing probation officers who elect to transfer from general membership in the county retirement system to safety membership shall be implemented pursuant to Section 31484.5, except that:  [¶]  .  .  .  [¶] (3)An employee who elects safety retirement under Section 31469.4 may elect to receive credit as a safety member for all or part of the time during which his or her duties would have made him or her eligible to become a safety member if this section had then been in effect as provided in Section 31639.7, except that an election to receive part credit may be exercised only in multiples of five years of service.  A member who elects to receive credit for only a part of that county service shall elect that county service latest in time and may not receive credit for any portion of county service prior in time to any county service for which he or she does not elect to receive credit."

^[11]                       Because appellants rely upon section 31639.7, we have assumed, without deciding, that adoption of section 31469.4 by the County was as amendment to the CERL for purposes of applying section 31639.7.  We note, however, that in enacting section 31469.5, subdivision (c)(3), the Legislature appears to have made this assumption.

^[12]                       Sections 31664.1 and 31664.2 provide counties with additional optional tables for calculating safety members' retirement allowances.