SEE CONCURRING OPINION

Filed 3/2/17

IN THE SUPREME COURT OF CALIFORNIA

LETICIA FLETHEZ, )

)

Plaintiff and Respondent, )

) S226779

v. )

) Ct.App. 4/1 D066959

SAN BERNARDINO COUNTY )

EMPLOYEES RETIREMENT )

ASSOCIATION, )

) San Bernardino County

Defendant and Appellant. ) Super. Ct. No. CIVDS 1212542

____________________________________)

In this action for a writ of mandamus, the superior court determined that 

San Bernardino County Employees Retirement Association (SBCERA) 

wrongfully denied Frank Flethez the correct starting date for his disability 

retirement allowance.

1 The court then awarded Flethez prejudgment interest 

under Civil Code section 3287, subdivision (a) (section 3287(a)) as part of his 

damages, to be retroactively calculated from the same starting date.2 On appeal, 

SBCERA challenged only the calculation of the prejudgment interest award. 

 

1 Frank Flethez recently passed away and his wife, as his surviving spouse 

and designated beneficiary, has been substituted in as plaintiff. (Code Civ. Proc., 

§ 377.31.) Our references in the opinion to “Flethez” are to Frank Flethez.

2 The Civil Code defines “damages” as monetary compensation for one “who 

suffers detriment from the unlawful act or omission of another.” (Civ. Code, 

§ 3281.) Under specified conditions, an award of damages may include an award 

of prejudgment interest pursuant to section 3287(a).
2

The Court of Appeal agreed with SBCERA that the superior court had erred 

in its calculation of prejudgment interest and reversed the court‟s judgment to the 

extent it awarded section 3287(a) interest on all of Flethez‟s retroactive disability 

retirement benefits starting from the first date of those benefits — July 15, 2000. 

In doing so, the Court of Appeal expressly disagreed with the reasoning of Austin 

v. Bd. of Retirement (1989) 209 Cal.App.3d 1528 (Austin). We granted review to 

consider how prejudgment interest under section 3287(a) should be calculated 

when a retroactive award of service-connected disability retirement benefits under 

the County Employees Retirement Law of 1937 is ordered in an administrative 

mandamus proceeding. 

As we will explain, we agree with the Court of Appeal that the superior 

court erred in its award of prejudgment interest. 

I. BACKGROUND

A. County Employee Service Disability Retirements

Public employee retirement boards have plenary authority regarding, and 

fiduciary responsibility for, the administration of their retirement systems. 

(Cal. Const., art. XVI, § 17.) A county‟s retirement system is administered by a 

county retirement board, under the County Employees Retirement Law of 1937. 

(Gov. Code, § 31450 et seq. (hereafter the CERL).) 

County retirement systems formed under the CERL provide both service 

retirements based on age and years of service (Gov. Code, § 31670 et seq.) and 

disability retirements based on an employee becoming permanently incapacitated 

for the performance of his or her work duties. (Gov. Code, § 31720 et seq.) 

When the statutory requirements are met, an employee member of a county 

retirement system who is permanently incapacitated may separate from county 

service and receive either a service-related disability retirement and allowance, or 
3

a general disability retirement and allowance. (Gov. Code, § 31720.) An 

application for either type of disability retirement must be made “[1] while the 

member is in service, [2] within four months after his or her discontinuance of 

service, [3] within four months after the expiration of any period during which a 

presumption is extended beyond his or her discontinuance of service, or [4] while, 

from the date of discontinuance of service to the time of the application, he or she 

is continuously physically or mentally incapacitated to perform his or her duties.” 

(Gov. Code, § 31722.) 

Because a county retirement board is “required to administer the retirement 

system „in a manner to best provide benefits to the participants of the plan,” 

(McIntyre v. Santa Barbara County Employees’ Retirement System (2001) 91 

Cal.App.4th 730, 734 (McIntyre); see also Cal. Const., art. XVI, § 17), it must 

“investigate[] applications and pay[] benefits only to those members who are 

eligible for them.” (McIntyre, at p. 734.) The board may require such proof as it 

deems necessary to determine the existence of a disability. (Gov. Code, § 31723.) 

“Permanent incapacity for the performance of duty shall in all cases be determined 

by the board.” (Gov. Code, § 31725.) The applicant bears the burden of proving 

his or her disability and that it is service related. (Masters v. San Bernardino 

County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 46; Rau v. 

Sacramento County Retirement Bd. (1966) 247 Cal.App.2d 234, 238.) “ „If the 

proof received, including any medical examination, shows to the satisfaction of 

the board that the member is permanently incapacitated,‟ the board shall retire that 

member. (Gov. Code, § 31724, italics added.)” (Masters, at p. 46.) If the board is 

not satisfied that the member is permanently incapacitated according to the proof 

received, the request for disability retirement must be denied. (Gov. Code, 

§ 31725.) 
4

Government Code section 31724 governs the timing of disability 

retirements and allowances. The statute provides that when a county retirement

board is satisfied that the member is permanently incapacitated and grants the 

member a disability retirement, the retirement is “effective on the expiration date 

of any leave of absence with compensation to which [the member] shall become 

entitled . . . or effective on the occasion of the member‟s consent to retirement 

prior to the expiration of such leave of absence with compensation.” (Gov. Code, 

§ 31724.) In the case of a member who has been granted or is entitled to sick 

leave, the statute provides that the retirement is not effective until the expiration of 

such leave with compensation, unless the member consents to an earlier date. 

(Ibid.)

3

Government Code section 31724 also states the general rule that the 

member‟s “disability retirement allowance shall be effective as of the date such 

 

3 Government Code section 31724 reads in full: “If the proof received, 

including any medical examination, shows to the satisfaction of the board that the 

member is permanently incapacitated physically or mentally for the performance 

of his duties in the service, it shall retire him effective on the expiration date of 

any leave of absence with compensation to which he shall become entitled under 

the provisions of Division 4 (commencing with Section 3201) of the Labor Code 

or effective on the occasion of the member‟s consent to retirement prior to the 

expiration of such leave of absence with compensation. His disability retirement 

allowance shall be effective as of the date such application is filed with the board, 

but not earlier than the day following the last day for which he received regular 

compensation. Notwithstanding any other provision of this article, the retirement 

of a member who has been granted or is entitled to sick leave shall not become 

effective until the expiration of such sick leave with compensation unless the 

member consents to his retirement at an earlier date. [¶] When it has been 

demonstrated to the satisfaction of the board that the filing of the member's 

application was delayed by administrative oversight or by inability to ascertain the 

permanency of the member's incapacity until after the date following the day for 

which the member last received regular compensation, such date will be deemed 

to be the date the application was filed.”
5

application is filed with the [county retirement] board, but not earlier than the date

following the last day for which [the member] received regular compensation.” 

(Italics added.) In other words, a retiree‟s disability retirement allowance will 

typically be effective on the latter of two dates: the actual application date or the 

date following the last day for which regular compensation was received after 

separation. However, “[w]hen it has been demonstrated to the satisfaction of the 

board that the filing of the member‟s application was delayed by administrative 

oversight or by inability to ascertain the permanency of the member‟s incapacity 

until after the date following the day for which the member last received regular 

compensation, such date will be deemed to be the date the application was filed.” 

(Ibid.) Here we are concerned with the latter provision — delay due to the 

inability to ascertain the permanency of the disability.4

B. The Flethez Matter5

In 1990, Flethez became an employee of San Bernardino County (County). 

He worked as an equipment operator from 1991 until 2000. In 1998, he was 

injured while performing his job duties. His last day of work was on January 28, 

2000. He underwent spinal surgery for his 1998 injury on February 1, 2000. His 

last day of regular compensation was July 14, 2000. Flethez underwent additional 

surgeries in 2001 and 2002 and received physical therapy through 2004.

 

4 Flethez sometimes refers to this provision as the “deemer clause,” referring 

to the date “deemed” to be the application date under Government Code section 

31724 because of the inability to earlier ascertain the permanency of the disability. 

We will instead adopt the “inability to ascertain permanency clause” as a 

shorthand term for this provision.

5 Because the historical facts and events established by the record are 

undisputed, we generally adopt the summary of the factual and procedural 

background from the decision of the Court of Appeal. 
6

More than eight years after he last worked for the County, on June 12, 

2008, Flethez filed an application with SBCERA for a service-related disability 

retirement and allowance. It was rejected for omission of a signed medical records 

authorization. A little more than one year later, Flethez filed a complete 

application, including a signed medical records authorization and a supporting 

physician‟s report. In August 2010, SBCERA granted Flethez‟s application for 

service-related disability retirement benefits, effective as of the date of his initial 

application in 2008. That is, Flethez‟s retirement allowance was made effective 

under the general rule of Government Code section 31724 granting retroactive 

benefits back to the date of his June 2008 application. 

Flethez then filed a request for review and reconsideration limited to the 

question of the starting date for his benefits. Flethez does not dispute that this was 

the first time he contended that his retirement allowance should be retroactive,

under the inability to ascertain permanency clause of Government Code 

section 31724, to July 15, 2000, the date following his last day of regular 

compensation. When SBCERA, in April 2011, maintained its original decision

setting June 12, 2008 as the commencement date for his benefits, Flethez

requested a formal administrative hearing on the issue. An administrative hearing 

was held and the hearing officer subsequently issued proposed findings of fact, 

conclusions of law, and a recommended decision denying Flethez‟s request for 

benefits retroactive to July 15, 2000. On October 4, 2012, SBCERA adopted the 

hearing officer‟s proposed decision and maintained the original June 2008 date as

the effective date of Flethez‟s disability retirement benefits. 

Flethez filed a petition for writ of mandate in the superior court pursuant to 

Code of Civil Procedure section 1094.5, seeking a writ ordering SBCERA to set 

aside its decision and grant him service-related disability retirement benefits 
7

effective as of July 15, 2000. (Gov. Code, § 31724.) He also sought interest at the 

legal rate on all retroactive amounts. 

The superior court found that the evidence submitted in the mandamus 

proceeding showed Flethez had not been able to ascertain the permanency of his 

incapacity by the date he stopped working and when he received his last 

compensation. It determined that the question of when Flethez thereafter became 

able to ascertain the permanency of his incapacity was irrelevant under 

Government Code section 31724 because under the unambiguous words of the 

statute, it was the “inability to ascertain the permanency” until after the date 

following the day of last regular compensation that triggers retroactive payments

under the inability to ascertain permanency clause. The court further determined 

that the CERL sets no deadline for filing an application based on the date 

permanency is eventually ascertained. (Gov. Code, § 31722 [an application is 

timely if from “the date of discontinuance of service to the time of the 

application,” the member is “continuously” incapacitated].) The superior court 

issued a peremptory writ commanding SBCERA to grant Flethez a serviceconnected disability retirement allowance retroactive to July 15, 2000, the date

after the last day he received regular compensation, i.e., the date that was deemed 

to be his application date under the inability to ascertain permanency clause of 

Government Code section 31724. SBCERA complied with the writ. 

The superior court also ruled Flethez was entitled to prejudgment interest 

under section 3287(a) at the legal rate from the date that each payment of 

retroactive disability retirements benefits would have been due, starting from

July 15, 2000. The interest payments on all retroactive amounts totaled

$132,865.37. SBCERA timely filed a notice of appeal “limited to the issue of 

interest.”
8

The Court of Appeal reversed the judgment insofar as it awarded 

prejudgment interest retroactive to July 15, 2000. It concluded that “in the context 

of disability retirement benefits, a retiring member is entitled to recover section 

3287(a) prejudgment interest on a court award of disability retirement benefits 

from the day on which his or her right to recover those benefit payments became 

vested,” which was “not until the retiring member establishes his or her 

entitlement” to those benefits. The Court of Appeal remanded the matter to the 

superior court for further proceedings to determine the date that Flethez had 

established his right to receive retroactive disability retirement benefit payments. 

As noted earlier, we granted review to consider how prejudgment interest 

under section 3287(a) should be calculated when a retroactive award of serviceconnected disability retirement benefits under the CERL is ordered in an 

administrative mandamus proceeding.

II. DISCUSSION

The interpretation of the prejudgment interest provisions of section 3287(a)

as it relates to the provisions of the CERL is, as the parties acknowledge, a 

question of law subject to our independent review. (B.H. v. County of San 

Bernardino (2015) 62 Cal.4th 168, 189; Weber v. Bd. of Retirement (1998) 62 

Cal.App.4th 1440, 1444 (Weber).)

We begin by recognizing that “ „our fundamental task is to determine the 

Legislature‟s intent so as to effectuate the law‟s purpose.‟ ” (People v. Cole

(2006) 38 Cal.4th 964, 974.) Because statutory language is generally the most 

reliable indicator of legislative intent, we start with the language of section 

3287(a). (Fluor Corp. v. Superior Court (2015) 61 Cal.4th 1175, 1198; Martinez 

v. Combs (2010) 49 Cal.4th 35, 51.) 

Section 3287(a) provides that “[a] person who is entitled to recover 

damages certain, or capable of being made certain by calculation, and the right to 
9

recover which is vested in the person upon a particular day, is entitled also to 

recover interest thereon from that day, except when the debtor is prevented by law, 

or by the act of the creditor from paying the debt. This section is applicable to 

recovery of damages and interest from any debtor, including the state or any 

county, city, city and county, municipal corporation, public district, public agency, 

or any political subdivision of the state.” 

We have explained that in order to recover prejudgment interest under this 

language, “the claimant must show: (1) an underlying monetary obligation, 

(2) damages which are certain or capable of being made certain by calculation, and 

(3) a right to recovery that vests on a particular day.” (American Federation of 

Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1022 (American 

Federation of Labor); Tripp v. Swoap (1976) 17 Cal.3d 671, 682 (Tripp), overruled 

on other grounds in Frink v. Prod (1982) 31 Cal. 3d 166, 180.) Prejudgment 

interest may be recovered “from any debtor,” including a public entity. 

(§ 3287(a).)6 This is “an exception to the general rule that interest cannot be 

 

6 Section 3287 was first enacted in 1872 when the Civil Code was adopted. 

In 1955, it was amended to add the second sentence, making the provisions 

applicable to “any debtor, including any political subdivision of the State.” (Stats. 

1955, ch. 1477, § 1, pp. 2689-2690.) In 1959, the second sentence was amended 

to further broaden the scope of the statute‟s application to recovery of damages 

from “the State or any county, city, city and county, municipal corporation, public 

district, public agency, or any political subdivision of the State.” (Stats. 1959, 

ch. 1735, § 1, p. 4186.) In 1967, the existing provisions were designated as 

subdivision (a) of the section and provisions not pertinent here were added as 

subdivision (b). (Stats. 1967, ch. 1230, § 1, p. 2997.) In 2013, subdivision (c) was 

added. (Stats. 2013, ch. 424, § 1.) We uniformly use “section 3287(a)” to 

reference the applicable prejudgment interest provisions at issue here, even when 

the provisions at the time were contained simply in section 3287. We have

previously observed, “[t]here is scant pertinent legislative history” regarding 

section 3287(a). (American Federation of Labor, supra, 13 Cal.4th at p. 1030.)
10

recovered against a state or municipality.” (Sanders v. City of Los Angeles (1970) 

3 Cal.3d 252, 262 (Sanders).)

We have recognized that an employee who brings a successful mandamus

action to recover wrongfully withheld salary payments may satisfy the 

requirements of section 3287(a). In Mass v. Bd. of Education (1964) 61 Cal.2d 

612 (Mass), we concluded that a wrongfully suspended teacher was entitled to

prejudgment interest as an element of his damages when the local board of 

education was ordered to reinstate him with full back pay. We stated that section 

3287(a) “authorizes prejudgment interest on salary payments from the date of 

accrual to the entry of judgment.” (Mass, supra, at p. 624.) We rejected the 

argument of the board that interest accrued only “from the date when the board 

bore the legal duty to reinstate plaintiff because until that time the „right to 

recover‟ did not „vest‟ in him” as required by section 3287(a). (Mass, supra, at 

p. 625.) We explained as follows: “The Civil Code requires vesting . . . only in 

order to fix with sufficient certainty the time when the obligation accrues so that 

interest should not be awarded on an amount before it is due. Each salary payment 

in the instant case accrued on a date certain. Unless the suspension itself can be 

sustained and the board thus relieved of any obligation whatsoever, the salary 

payments became vested as of the dates they accrued. If plaintiff had not been 

wrongfully suspended, he would have obtained the benefit of the moneys paid as 

of those dates; he has thus lost the natural growth and productivity of the withheld 

salary in the form of interest.” (Ibid.) 

Subsequent cases have relied on Mass to similarly award section 3287(a) 

prejudgment interest on damage awards of wages wrongfully withheld. (Sanders, 

supra, 3 Cal.3d at pp. 262- 263 [prejudgment interest awarded in mandamus 

action on wrongfully withheld salary and wage increases]; Olson v. Cory (1983) 

35 Cal.3d 390, 401-402 (Olson) [prejudgment interest awarded in mandamus 
11

action on claims for back salary]; Currie v. Workers’ Comp. Appeals Bd. (2001) 

24 Cal.4th 1109, 1118 (Currie) [Workers‟ Compensation Appeals Board has 

statutory authority to include prejudgment interest in backpay award when 

employee wrongfully denied reinstatement]; Goldfarb v. Civil Serv. Com. (1990) 

225 Cal.App.3d 633, 635-637 (Goldfarb) [county and civil service commissions 

must include prejudgment interest on backpay award for wrongful demotion]; San 

Diego County Sheriffs Assn. v. San Diego County Civil Serv. Com (1998) 68 

Cal.App.4th 1084, 1086-1087 (San Diego County Sheriffs) [local civil service 

commission must include prejudgment interest in award of backpay for wrongful 

termination].) 

Relevant here are the cases that also recognize the applicability of section 

3287(a) “on a trial court judgment following a successful administrative 

mandamus action to recover wrongfully withheld benefits.” (American Federation 

of Labor, supra, 13 Cal.4th at p. 1022, original italics omitted, italics added.) In

Tripp, supra, 17 Cal. 3d at pages 681-682, we concluded an award of prejudgment 

interest was properly included in a mandamus action for wrongfully denied 

welfare benefits under the former aid to the needy disabled program (Welf. & Inst. 

Code, former §§ 13500-13801). In Aguilar v. Unemployment Ins. Appeals Bd. 

(1990) 223 Cal.App.3d 239, 246, it was held that a trial court properly ordered the 

California Employment Development Department (EDD) to pay interest on 

unemployment benefits wrongfully withheld. In Olson, we concluded that the 

plaintiffs were entitled to prejudgment interest on wrongfully withheld judicial 

salary and pension increases. (Olson, supra, 35 Cal.3d at p. 406; accord, Benson 

v. City of Los Angeles (1963) 60 Cal.2d 355, 365-366 [interest on widow‟s pension 

benefits].)

The parties do not dispute that, under settled precedent, prejudgment 

interest was properly awarded in this mandamus action challenging SBCERA‟s 
12

denial of Flethez‟s request for disability retirement benefits retroactive under the 

inability to ascertain permanency clause of Government Code section 31724. The 

parties advance, however, very different views as to when the right to such 

retroactive benefits was “certain” and “vested” for purposes of calculating the 

amount of interest due under section 3287(a). 

Flethez argues that county employees have a vested property right in a 

disability retirement pension from the inception of their employment. He contends

that a later court award of retroactive disability retirements benefits after the

employee becomes disabled and retires carries with it a vested right to 

prejudgment interest from the date each retirement benefit payment fell due under 

the statutory effective date of the retirement allowance. In support, Flethez

principally relies on the statements in Mass, supra, 61 Cal.2d 612, that section 

3287(a) “authorizes prejudgment interest on salary payments from the date of 

accrual to the entry of judgment,” that the statute “requires vesting . . . only in 

order to fix with sufficient certainty the time when the obligation accrues so that 

interest should not be awarded on an amount before it is due,” that “[e]ach salary 

payment accrued on a date certain,” and therefore, “the salary payments became 

vested as of the dates they accrued.” (Id., at pp. 624, 625; accord Olson, supra, 

35 Cal.3d at p. 402 [prejudgment interest is recoverable “on each . . . pension 

payment from the date it fell due”].) Flethez also relies on Austin, supra, 209 

Cal.App.3d 1528. In Austin, the reviewing court applied the reasoning of Mass to 

affirm an award of section 3287(a) prejudgment interest on a retroactive award of 

county disability retirement benefits — the same type of award of benefits ordered 

in this case. (Austin, at pp. 1533-1534.) Flethez asserts that absent such an award 

of interest here, he will be denied the benefit of the natural growth and 

productivity of the retroactive benefits withheld by the SBCERA and 
13

correspondingly, the remainder of the members of the SBCERA retirement system 

will be unjustly enriched by the use of his retirement allowance in the interim. 

SBCERA argues that county employees have only an inchoate right to a 

disability retirement pension, which vests only when the last contingency to the 

pension is removed. Specifically, SBCERA asserts that under the CERL, the right 

to a disability retirement and accompanying allowance is not vested until the 

retirement board to which an application is submitted has reviewed the submitted 

evidence and finally acts on the application, or at least has the opportunity to do 

so. Until such time, SBCERA contends, the applicant‟s benefits claim is also “not 

certain or capable of being made certain” as required by section 3287(a). 

According to SBCERA, it is only when the board wrongfully denies such an 

application and withholds disability retirement payments that prejudgment interest 

begins to run as damages under section 3287(a). SBCERA argues that this 

distinguishes the instant case from those cases awarding section 3287(a) interest 

on wrongfully withheld salary, wages, or service pensions — payments that do not 

require conditions precedent or the inherent delay of an administrative process to 

determine the plaintiffs‟ entitlement to them in the first instance. (Mass, supra, 61 

Cal.2d 612; Sanders, supra, 3 Cal.3d 252; Olson, supra, 35 Cal.3d 390; Currie, 

supra, 24 Cal.4th 1109; San Diego County Sheriffs, supra, 68 Cal.App.4th 1084; 

Goldfarb, supra, 225 Cal.App.3d 633.) SBCERA relies principally on our 

decision in American Federation of Labor, supra, 13 Cal.4th 1017 and that of the 

Court of Appeal in Weber, supra, 62 Cal.App.4th 1440. SBCERA emphasizes 

that its “fiduciary duty to safeguard its trust fund for all of its members” requires it 

not pay benefits prior to the time the applicant meets his or her eligibility burden 

of proof. 

SBCERA has the better argument. As SBCERA contends, vesting in the 

context of section 3287(a) must be understood in the framework of allowing 
14

prejudgment interest as a component of damages. (§ 3287(a) [“A person who is 

entitled to recover damages . . . , is entitled also to recover interest thereon”].) 

As such, it has long been settled that the primary purpose of section 3287(a) “is to 

provide just compensation to the injured party for loss of use of the [underlying] 

award during the prejudgment period — in other words, to make the plaintiff 

whole as of the date of the injury.” (Lakin v. Watkins Associated Industries (1993) 

6 Cal.4th 644, 663; Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 919.) It 

follows that where salary, wage or pension payments have been withheld because 

of wrongful acts (e.g., Mass — wrongful suspension; Olson — wrongful denial of 

salary and pension increases; Currie — wrongful refusal to reinstate; Goldfarb —

wrongful demotion; San Diego County Sheriffs — wrongful termination), the 

plaintiff has been damaged by the failure to receive the payments to which he or 

she was entitled and would have otherwise received. As we explained in Mass, 

unless the underlying decision “can be sustained” and the defendant thus “relieved 

of any obligation,” the payments became “vested as of the dates they accrued.”

(Mass, supra, 61 Cal.2d at p. 625.) In the absence of the wrongful act, the plaintiff 

would have “obtained the benefit of the moneys paid as of those dates.” (Ibid.) 

The factual situation here is different. Flethez first applied for a servicerelated disability retirement in June 2008. He did not at that time request a starting 

date for his benefits earlier than his actual application date. In accordance with its 

duties under the CERL, SBCERA evaluated and granted his application for 

benefits retroactive to June 2008. (McIntyre, supra, 91 Cal.App.4th at p. 734.) 

Only then, did Flethez request an earlier starting date for his benefits pursuant to

the inability to ascertain permanency clause of Government Code section 31724. 

If SBCERA had thereafter granted him the requested start date, as the trial court

later determined it should have done, Flethez would have received an additional 

lump-sum payment for benefits calculated retroactively from the new deemed 
15

application date in July 2000. But Flethez would not have been entitled to receive 

the benefit payments in 2000 or in any of the years preceding the decision of 

SBCERA. SBCERA could not by law pay Flethez any benefits before he applied 

for them (Gov. Code, § 31722) and carried his burden (Rau v. Sacramento County 

Retirement Bd., supra, 247 Cal.App.2d at p. 238) of demonstrating his eligibility 

to SBCERA‟s satisfaction. (Gov. Code, § 31724.)

In other words, Flethez was not wrongfully denied the use of the benefit 

moneys in any of the years prior to SBCERA‟s decision on his request. (Weber, 

supra, 62 Cal.App.4th at p. 1450 [“That the payment is retroactive does not mean 

that the Board wrongfully denied benefits for that period”].) Flethez was injured 

only when SBCERA erroneously denied his request for a starting date under the 

inability to ascertain permanency clause of Government Code section 31724. For 

purposes of prejudgment interest as a component of damages under section 

3287(a), until the SBCERA made its eligibility determination on his request, there 

were no damages stemming from an underlying monetary obligation “capable of 

being made certain” and his right to an award of retroactive disability benefits 

under the inability to ascertain permanency clause did not vest. (§ 3287(a).) As 

amicus curiae7 contend, county employees do not have a vested right to disability 

retirement benefits before such time. (Weber, supra, 62 Cal.App.4th at p. 1451 

[until a member makes the necessary showing under the CERL, “his or her right is 

 

7 In addition to the briefs of the parties, we have received an amicus curiae 

brief from the Alameda County Employees‟ Retirement Association, Kern County 

Employees‟ Retirement Association, Los Angeles County Employees‟ Retirement 

Association, Marin County Employees‟ Retirement Association, Sacramento 

County Employees‟ Retirement Association, San Joaquin County Employees‟ 

Retirement Association, Tulare County Employees‟ Retirement Association, and 

Ventura County Employees‟ Retirement Association.
16

merely inchoate”].) Rather, the “vested right” members possess is to have their 

CERL retirement board make an “eligibility-to-benefits determination.” (County 

of Alameda v. Bd. of Retirement (1988) 46 Cal.3d 902, 908.) 

We find the CERL disability retirement framework to be similar in this 

regard to the unemployment insurance administrative process this court discussed 

in American Federation of Labor, supra, 13 Cal.4th 1017. In American 

Federation of Labor, we considered the “narrow question” of “whether an 

administrative law judge may award interest on a payment of retroactive 

unemployment insurance benefits.” (Id., at p. 1021.) We answered that question 

in the negative, finding no express or implied authority for such an award. (Id., at 

pp. 1022-1023, 1042-1043.) Of assistance here is our explanation that “[u]nder 

the administrative scheme of the Unemployment Insurance Code, the EDD has no 

underlying monetary obligation to the claimant until it determines the claimant is 

eligible for the benefits.” (Id., at p. 1023.) “[T]he Unemployment Insurance Code 

allows the EDD, and unemployment insurance claimants, a reasonable time to 

process each legitimate claim. Benefits are not due immediately after a claim is 

filed following employment termination. Rather, they are due promptly only after 

a claimant has established benefit eligibility. [Citation.] The statutory scheme 

thus accounts for the fact that delays are inherent in the entitlement claim review 

process and are necessary to ensure [that] only those claimants who have 

established eligibility will receive benefits. . . . The delays inherent in this system 

are not, however, tantamount to a ‘wrongful withholding’ of benefits giving rise to 

a right to section 3287(a) prejudgment interest once the Board rules in favor of 

the claimant.” (Id., at p. 1026, italics added.) Only if the Board wrongfully denies 

benefits, we explained, would the claimant be entitled to section 3287(a) interest 

as part of a court award of “compensation for the egregious delay in receiving 

benefits caused by the necessity of filing a mandamus action challenging the 
17

Board‟s denial.” (American Federation of Labor, supra, 13 Cal.4th at p. 1022.) 

“[C]laimants may not argue that their benefits have been wrongfully withheld until 

the Board erroneously determines they are ineligible . . . .” (Id., at p. 1037.) 

“Thus, „[t]he central theme of [American Federation of Labor] ... is that interest is 

not available absent an agency decision or action which has resulted in wrongful 

withholding of, and corresponding delay in receiving, benefits to which the 

claimant is entitled.‟ ” (Currie, supra, 24 Cal.4th at p. 1118.) 

Like the unemployment insurance benefits at issue in American Federation 

of Labor, Flethez‟s disability retirement benefits under the CERL were not due 

before SBCERA received his application and made a determination of his

eligibility. Flethez experienced a wrongful withholding of his benefits when the 

Board erroneously denied his application for a retroactive disability retirement 

allowance under the inability to ascertain permanency clause, thus necessitating

this mandamus action. His entitlement to prejudgment interest under section 

3287(a) commenced on the date of wrongful denial.

8 However, because the 

record before us is not entirely clear as to that date, we shall remand the matter for 

such factual determination.9

 

8 The reviewing court in Austin, supra, 209 Cal.App.3d 1528, concluded that 

plaintiff Austin was entitled to section 3287(a) prejudgment interest on the trial 

court‟s award of retroactive disability retirement benefits under the CERL from 

the last day of his service — the date he became entitled to such benefits — up to 

the date upon which he was granted the benefits. (Austin, at pp. 1530-1534.) We 

disapprove Austin v. Bd. of Retirement, supra, 209 Cal.App.3d 1528 to the extent 

it is inconsistent with this opinion. 

9 We note that Flethez has argued only that SBCERA‟s erroneous denial of 

benefits entitles him to prejudgment interest calculated from July 15, 2000. He 

has not submitted any argument supporting an alternate date. Nor has he claimed 

that SBCERA‟s decision was unreasonably delayed, and therefore we express no 

opinion on whether a demonstrated unreasonable delay in deciding an applicant‟s 

(footnote continued on next page)
18

III. DISPOSITION

The judgment of the Court of Appeal is affirmed. The matter is remanded 

to the Court of Appeal with directions that it remand the matter to the superior 

court for a determination of the date SBCERA wrongfully denied Flethez‟s 

application for a retroactive disability retirement allowance under the inability to

ascertain permanency clause of Government Code section 31724 and a 

recalculation of the amount of prejudgment interest owed based on such date. 

CANTIL-SAKAUYE, C. J.

WE CONCUR:

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

 

(footnote continued from previous page)

eligibility for benefits could result in a superior court finding that benefits were 

wrongfully withheld earlier than the retirement board‟s eligibility decision. 
1

CONCURRING OPINION BY CUÉLLAR, J.

I concur in the majority opinion and its conclusion that prejudgment 

interest under Civil Code section 3287, subdivision (a) begins to run only when a 

county retirement board wrongfully denies a member‟s application for retroactive 

disability retirement benefits. I concur, too, in the court‟s decision directing the 

Court of Appeal to remand the matter to the superior court for a determination of 

the date on which the San Bernardino County Employees Retirement Association 

(SBCERA) wrongfully denied plaintiff‟s application for retroactive disability 

benefits. It would be helpful to the trial court on remand, though, for us to more 

fully explain when a wrongful denial occurs. The standard I endorse is the one 

articulated by SBCERA: A wrongful denial occurs on the date the retirement 

system‟s governing board should have determined that the member was entitled to 

retroactive benefits. 

CUÉLLAR, J. 

WE CONCUR:

WERDEGAR, J.

LIU, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Flethez v. San Bernardino County Employees Retirement Association

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 236 Cal.App.4th 65

Rehearing Granted

__________________________________________________________________________________

Opinion No. S226779

Date Filed: March 2, 2017

__________________________________________________________________________________

Court: Superior

County: San Bernardino

Judge: David Cohn

__________________________________________________________________________________

Counsel:

Michael P. Calabrese; Arias & Lockwood and Christopher D. Lockwood for Defendant and Appellant.

Nossman, Ashley K. Dunning, Michael V. Toumanoff and Catherine F. Ngo for Alameda County 

Employees‟ Retirement Association, Kern County Employees‟ Retirement Association, Los Angeles 

County Employees‟ Retirement Association, Marin County Employees‟ Retirement Association, 

Sacramento County Employees‟ Retirement Association, San Joaquin County Employees‟ Retirement 

Association, Tulare County Employees‟ Retirement Association and Ventura County Employees‟ 

Retirement Association as Amici Curiae on behalf of Defendant and Appellant.

Reed Smith, Harvey L Leiderman and Jeffrey R. Rieger for California Public Employees‟ Retirement 

System as Amicus Curiae on behalf of Defendant and Appellant.

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

Respondent.

Law Offices of John Michael Jensen and John Michael Jensen as Amici Curiae on behalf of Plaintiff and 

Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael P. Calabrese

San Bernardino County Employees‟ Retirement Association

348 West Hospitality Lane

San Bernardino, CA 92414

(909) 915-2039

Ashley K. Dunning

Nossman

50 California Street, 34th Floor

San Francisco, CA 94111

(415) 398-3600

Edward L. Faunce

Faunce, Singer & Oatman

315 North Vine Street

Fallbrook, CA 92028

(760) 451-7377