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Filed 6/30/14 Koskinen v. Mendocino County Employees Retirement Assn. Bd. of Retirement CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTR ICT

DIVISION ONE

KIMBERL Y KOSKINEN, Plaintiff and Appellant,

v. MENDOCINO COUNTY EMPLOYEES ’ RETIREMENT ASSOCIATION BOARD OF RETIREMENT, Defendant and Respondent. A138926
(Mendocino County Super. Ct. No. SCUKCVPT1260584)

I NTRODU CTION Kimberl y Koskinen sought service

- relate d disability retirement after a n on

- the

- job automobile accident which she claimed resulted in a permanent psychiatric disability. Mendocino County Employees’ Retirement Association , Board of Retirement ( Board )
denied her a service

- related disability retirement but approved a nonservice

- related disability retirement. Koskinen challenged that determination by petition for writ of
mandate in the superior court , which was denied. She appeals from that denial, ass erting only that the court failed to exercise its ind ependent judgment. We disagree and affirm.

P ROCEDURAL AND F ACTUAL B ACKGROUND We set forth only those facts relevant to th e single issue raised on appeal. Because
no issue of substa ntial evidence has been raised, we set forth the summary of the factual background taken from the superior court’s order. “[Koskinen] was employed by the County of Mendocino as an Eligibility Worker from 1993 until 2007. By all accounts, she was a diligent and productive e mployee. On2

September 12, 2007 [Koskinen] was involved in a two car collision on Highway 20 while traveling to work in Ukiah. [Koskinen] unsuccessfully tried to return to work part time after the auto accident. Her last day of work with the County of Me ndocino was
October 16, 2007. ” “[Koskinen] has acknowledged throughout this litigation that she suffers from psychological and medical conditions which are unrelated to the automobile accident of September 12, 2007. Her request for a service connected d isability retirement is based on the aggravation of her preexisting psychiatric condition following th e automobile
accident.” “[Koskinen] filed her application for a service connected disability retirement on or about October 3, 2008. [The Board] referr ed the matter to Hearing Officer Robert Murray. Mr. Murray conducted an evidentiary hearing on June 20, 21, August 12 and December 13, 2011 which involved taking live testimony, review of deposition testimony and voluminous document review. Mr. Murray’s April 4, 2012 report recommended that [the Board] find that [Koskinen] was disabled from working as an Eligibility Worker for psychiatric and emotional reasons but deny [her] application for a service connected disability retirement. On April 19, 2012, [t he Board] adopted the Hearing Off icer’s
recommendation.” Koskinen filed a petition for writ of mandate in the superior court. The court denied the petition after reviewing “the complete Admin istrative Record.”
D ISCUSSION Koskinen raises only one issue in this appeal

— “whether the Superior Court applied the corr ect standard of review.” She claims the court did not exercise its independent judgment in reviewing the administrative record and , instead , incorrectly applied the substant ial evidence standard. Whether the trial court applied the correct standard of review is a question of law we review de novo. ( Alberda v. Board of
Retirement of Fresno County Employees’ Retirement Assn. (2013) 214 Cal.App.4th 426, 434 ( Alberda ).)3

Code of Civil Procedure s ect ion 1094.5 sets out the procedure for obtaining judicial review of a final administrative determination by writ of mandate. “The inquiry in such a case shall extend to the questions whether the [agency] proceeded without, or in
excess of
, jurisdiction; wh ether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the fin dings are not supported by the evidence. [¶] (c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of
discretion is establis hed if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the

w hole record.” (Code Civ. Pro c

. , § 1094.5, subds. (b)

– (c).) “[I]f 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 a nd find an abuse
of discretion i f the findings are not supported by the weight of the evidence.” ( Strumsky v. San Diego Co unty Employees Retirement Ass n

. (1974) 11 Cal.3d 28, 44.) An agency’s decision regarding work

- related disability retirement substantially impacts a fundamental vested right. (

A l berda
, supra , 214 Cal.App.4th at p. 433.) “In exercising its independent jud gment, 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 ( Fukuda ).) “[T]here is no inconsistency in a rule requiring that a trial court begin its review with a presumption of the correctness of administrative findings, and then, aft er affording the respect due to these findings, exercise independent judgment in making its own findings.” ( Id . at p. 819.)4

Koskinen acknowledges the trial court stated it was applying the correct independent judgment standard . However, she contends oth er language in the court’s
order and deficiencies in the court’s discussion of the evidence indicate it actually applied
the substan tial evidence standard. The court’s order denying Koskinen’s petition fo r writ of mandate stated at the

outset : “The s upe rior court exercises its in dependent judgment when reviewing the
administrative decision of a retirement b oard to grant or deny a service connected disability retirement

. ( Strumsky v. San Diego County Employees Retirement Ass ’ n [
, supra ,] 11 Cal.3d 28, 34. ) ‘[A] trial court [must] begin its review with a presumption of correctness of administrative findings, and then, after affording the respect due to these findings, exercise independent judgment in making its own findings.’ ( Fukuda [ , supra ,]
20 Cal.4th 805, [819] .)”
At the conclusion of its order, however, the court state d : “After conducting an independent review of the entire Administrative Record, the court finds that substantial credible and reliable evidence supports the Board’s decision. [¶] The court finds that [ Koskinen] has not met her burde n of proving by a preponderance of the evidence that
her work

- related automobile accident . . . aggravated her pre

- existing psychological condition or otherwise substantially contributed to her present disa bility. MCERA’s decision to deny [Koskinen] a service related disability retirement is supported by substantial evidence. For these reasons, the petition for writ of mandate is denied.”
Koskinen maintains these latter statements demonstrate the trial co urt actually applied the wrong standard, the substantial evidence standard, relying on Alberda

. Alberda also involved a petition for writ of mandate to set aside a Board of Retirement’s denial of an employee’s application for service

- connected disability
retirement. (

Alberda
, supra , 214 Cal.App.4th at p. 428.) The trial court’s statement of
decision in that case “began with stating the standard of review was independent judgment.” ( Id . at p. 432.) T he court , however, also stated : “ ‘ “ [w]e recognize at the
outset these two well

- settled principles
, ” ’ ” including “ ‘ “ (1) factual determinations of the board must be upheld if there is substantial evidence in their support and the relevant5

and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence

. . . . ” ’ ” ( I d

. at pp. 432

– 433. ) Then, i n addressing the substantive merits
, the court went on to use the phrase “s ubstantial evidence” five times (“t he issue was w hether there was ‘ “ substa ntial evidence of some connection between the disability and the job ” ’ ” ; “ ‘ substantial evidence supports the hearing officer’s decision ’ ” ; “ ‘ substantial evidence supported the

. . . injury . . . did not
contribute substant ially to [Alberda’s] incapaci ty ’ ” ; “ ‘ substantial evidence supports that the 2003 assignment . . . did not contribute substantially to [Alberda’s] incapacity ’ ” ;

“ ‘ Substantial evidence supports the hearing officer’s finding. ’ ” ) ( Ibid .) The Court of Appeal concluded that, although the trial court initially recited the prope r standard of review, its analysis raised a “serious question” as to whether it had actually erroneously applied the substantial evidence standard of review. ( Id . at p. 435.) In contrast here, the trial court clearly set forth the appropriate standard of review
, and never indicated other “well

- settled principles” applied

— i.e., that “ ‘ “ factual determinations of the board must be upheld if there is substantial evidence in their support ” ’ ” and “ ‘ “ the relevan t and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence ’ ’ ”

— as the
trial court erroneously did in Alberda

. ( Alberda, supra
, 214 Cal.App.4th at pp. 432

– 433.)
While t he court here use d the phrase “substantial evidence” twice in the conclusion of its order, it did not employ the phrase throughout its decision, as the trial court did in
Alberda . On the contrary, throughout its discussion of the evidence, the trial court here repeatedly made specific findings as to the credibility of the witnesses and assessed the weight and persuasiveness of their testimony

— actions taken by a court engaged in utilizing its independent judgment as to the import of the evidence. Furthermore, in its
conclu sion, the trial court also stated: “The court finds that Petitioner has not met her burden of proving by a preponderance of the evidence that her work

- related automobile accident on September 12, 2007 aggravated her pre

- existing psychological condition or otherwise substantially contributed to her present disability ”

— the precise conclusion a court would make employing independent judgment and as the finder of fact. In sum,6

read in its entirety, the trial court’s decision here is markedly different than th e that of the
trial court in Alberda and reflects the court actually applied the independent judgment standard, as it stated it did. In any case, the fact the trial court twice use d the phrase “substantial evidence” in
the conclusion of its decision at most render s the decision ambiguous . For the reasons we have explained, the entirety of the opinion resolves any such ambi guity. Furthermore,
under well

- established appellate principles, any ambiguity is resolved in support of the
decision. “[A] judgme nt is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance.” ( Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 765

– 766, citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Winograd v. American Broadcasting Co . (1998) 68 Cal.App.4th 624, 631.) “I t is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of
its officia l duties.” ( People v. Mack (1986) 178 Cal.App.3d 1026, 1032 .) Accordingly,

we must presume the trial court both recited and applied the independent judgment
standard

. 1 At oral argument, counsel asserted the trial court failed to address evidence support ive of Koskinen’s claim to work

- related disability and this also showed that, contrary to what the court said, it did not review “all” the evidence and thus did not actually apply the independent judgment standard. The only witness counsel identified as

n ot mentioned by the trial court was Dr. Ronald J. Lowell. Dr. Lowell was the “agreed medical examiner” in connection with her disability claim and issued three reports. When he first examined Koskinen, he requested a neuropsychological assessment and
the refore “defer[red] a final opinion on causation.” After this assessment was performed by Dr. Mark Kimmel (whose testimony the trial court discussed and credited ), and in his final report, Dr. Lowell concluded he was “unable to conclude that actual events of her

1 Koskinen, moreover, did not bring the ambiguity to the attention of the trial court in order to avoid this interpretation of the decision. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1136.)7

employment have been predominant as to all causes combined o f the psychiatric injury.” We therefore do not view the trial court’s choice not to discuss Dr. Lowell’s testimony as indicative of any employment of the substantial evidence standard, rat her than utilization of its independent judgment.
D ISPOSITION The judgment is affirmed. Each party to bear its own costs on appeal.

_________________________ Banke, J.

We concur:

_________________________ Dondero, Acting P. J.

_____ ____________________ Becton, J. 

 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.