MICHELE v. COUNTY OF RIVERSIDE

Filed 5/16/06; pub. order 6/14/06 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Stephen D. Cunnison, Judge. Affirmed.

Liebert Cassidy Whitmore, Steven M. Berliner; and Robert M. Pepper, Jr., County Counsel, for Defendants and Appellants.

Faunce, Singer & Oatman, Edward L. Faunce and Larry J. Roberts for Plaintiff and Respondent.

1. Introduction

After plaintiff Michele Lazan was injured while on duty as a deputy sheriff for the County of Riverside, she unsuccessfully filed an application for disability retirement. She later requested that the County file an application for disability retirement on her behalf under Government Code section 21153. When the County refused, Lazan filed a petition for writ of administrative mandate in the superior court. The court found that the County effectively separated Lazan when it found that her disability prevented her from being able to perform her job duties. The court issued a writ of mandate requiring that the County file the application.

On appeal, the County argues that it had no duty under Government Code section 21153 to file an application for disability retirement because it did not believe that Lazan was disabled. The County challenges the court's finding that it separated Lazan because it had offered her an alternative position with the same rank and pay. The County also challenges the court's ruling on attorney fees.

We conclude that the County had a duty to apply for disability retirement because, despite its claimed belief, the County treated Lazan as though she was incapable of performing her job duties because of her disability. We also reject the County's other arguments and affirm the judgment.

2. Factual and Procedural History

Lazan worked as a deputy sheriff with the County since 1989. On June 4, 2001, Lazan, while responding to a call, collided into another patrol car. After the accident, Lazan complained of pain throughout her body, including her back and knees. Her doctor prescribed some medication and placed her off work for a few days. Lazan had strained or injured her back on previous occasions, including two earlier off-duty car accidents. In regards to her recent back injuries, the initial x-rays of her lumbar spine indicated moderate to severe degeneration of her L4-5 and L5-S1 disks and tiny subligamentous protrusions at the L3-4 and L4-5 disks. According to the medical examiner, Lazan's condition was â€