Filed 6/26/15 Johnson v. Fresno County Employees’ Retirement Assn. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

GARY JOHNSON,

Plaintiff and Appellant,

v.

FRESNO COUNTY EMPLOYEES’ 

RETIREMENT ASSOCIATION,

Defendant and Respondent.

F069503

(Super. Ct. No. 12CECG00759)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Debra J. 

Kazanjian, Judge.

Moscone Emblidge Sater & Otis; Moscone Embridge & Otis, G. Scott Emblidge 

and Matthew K. Yan for Plaintiff and Appellant.

Reed Smith, Harvey L. Leiderman, Jeffrey R. Rieger and Dennis Peter Maio for 

Defendant and Respondent.

-ooOoo-
2.

During the last few years of his employment with the County of Fresno (County), 

appellant Gary Johnson, was on assignment in Sacramento County. The County paid 

appellant a flat monthly allowance on top of his regular salary to cover appellant’s out-oftown living expenses. 

When appellant retired, respondent, the Fresno County Employees’ Retirement 

Association (FCERA), calculated appellant’s pension without including this flat monthly 

allowance as part of appellant’s final compensation. Appellant filed a claim with the 

FCERA seeking to have the flat monthly allowance included in his pension calculation. 

The FCERA denied appellant’s claim and declared the flat monthly allowance was not 

pensionable.

Appellant then filed a petition for writ of mandate in the trial court. The trial court 

denied appellant’s petition on the ground that appellant’s claim was barred by a class 

action settlement agreement. The court did not rule on whether the flat monthly 

allowance is “compensation earnable” and therefore included in the final compensation 

calculation. (Gov. Code,

1 §§ 31461, 31462.) 

Appellant challenges the trial court’s ruling on two grounds. Appellant argues that 

the release in the class action settlement agreement does not cover his claim because the 

flat monthly allowance reimbursement method did not exist when the agreement was 

signed. Rather, at that time, the County reimbursed employees for expenses incurred 

while on assignment on a dollar-for-dollar basis. Appellant further contends that the flat 

monthly allowance is pensionable compensation under the California Supreme Court case 

of Ventura County Deputy Sheriffs’ Assn. v. Board of Retirement (1997) 16 Cal.4th 483 

(Ventura). 

Contrary to appellant’s position, his claim is barred by the class action settlement 

agreement. Accordingly, the judgment will be affirmed.

 

1 All further statutory references are to the Government Code.
3.

BACKGROUND

1. The CalWIN program and expense reimbursement policies.

The California Work Opportunity and Responsibility to Kids Information 

Network, referred to as “CalWIN,” is an online computer system and database used to 

administer public welfare and assistance programs throughout California. Employees 

from various California counties designed the CalWIN software and were required to live 

near the project site in Folsom. 

Beginning in February 2000, Fresno County employees on assignment to the 

CalWIN project were reimbursed for actual, authorized expenditures. This policy was 

“‘adopted to allow additional reimbursement to the employee as an incentive for 

volunteering to relocate.’” In May 2000, the County adopted the CalWIN policy under 

which “CalWIN workers could obtain cash advances and reimbursement on a monthly 

basis for meals and incidentals” and “did not need to provide proof of expenses unless it 

was requested.” 

In December 2001, the County modified its CalWIN reimbursement policy. The 

County “‘did away with the dollar-for-dollar reimbursement scheme and, instead, put into 

place a flat monthly allowance ... for staff members assigned to the project on a longterm basis.’” This allowance covered “‘expenses including lodging/utilities, meals, and 

transportation/mileage’, plus a ‘gross-up’ to account for taxes on these sums.’” 

The County defined the flat monthly allowance as standardized amounts paid each 

month as an estimate of the employees’ liability for the actual costs plus taxation of those 

costs in order to provide total reimbursement to the employee. The County’s reason for 

this policy switch was to minimize tracking and reporting requirements. Nevertheless, 

each employee was required to certify under penalty of perjury the distance between the 

employee’s county headquarters and the project site, the amount of monthly rent or 

mortgage at the project site, and that the employee will continue to maintain his or her 

primary residence at a net expense in excess of $200 per month. The employee was 
4.

further required to semi-annually submit CalWIN expense claims providing rental 

receipts, a lease agreement, or other suitable documentation attesting to payment for 

lodging in the Sacramento area. 

2. The Ventura II litigation and settlement.

Under the County Employees Retirement Law of 1937 (CERL), Government 

Code section 31450 et seq., retirement benefits are calculated based on a retired 

employee’s “final compensation” as defined by sections 31460, 31461 and 31462 or 

31462.1. (Salus v. San Diego County Employees Retirement Assn. (2004) 117 

Cal.App.4th 734, 736.) This final compensation involves: compensation in the form of 

cash, rather than in the form of in-kind goods and services or time off; cash earned during 

a usual work period, as opposed to cash earned for overtime; and cash earned before 

retirement, rather than at or after retirement. (Ibid.) 

In Ventura, supra, 16 Cal.4th 483, the California Supreme Court defined certain 

aspects of final compensation under CERL. There, a group of law enforcement officers 

argued their final compensation should include salary enhancements they received in 

cash from their county employer under the terms of a memorandum of understanding. 

These enhancements included a uniform maintenance allowance, bilingual premium pay, 

educational incentive pay, additional compensation for scheduled meal periods for 

designated employees, pay in lieu of annual leave accrual, and a motorcycle bonus. (Id. 

at p. 488.) 

The Ventura court extensively analyzed certain sections of CERL in order to 

ascertain what must be included in an employee’s “final compensation” for purposes of 

calculating his or her pension. The court explained that, while only cash payments 

received by an employee qualify as compensation within the meaning of Government 

Code section 31640, when cash is paid in lieu of other in-kind benefits, those payments 

qualify as compensation. The court noted that the “Legislature has recognized that some 

employees receive remuneration other than wages or salary but has concluded that if 
5.

those ‘advantages’ are not paid in cash, their value need not be included in 

‘compensation’ for purposes of computing a pension. It has not done so for cash 

payments made in lieu of providing the same advantages in kind. When paid in cash, the 

payment is remuneration and, as it is not excluded, it is ‘compensation’ under section 

31460.” (Ventura, supra, 16 Cal.4th at p. 497.) Accordingly, the court held that, in 

addition to an employee’s base salary, other forms of cash remuneration, excluding 

overtime, had to be included in calculating the employee’s final compensation for 

purposes of a CERL retirement pension. Thus, the Ventura plaintiffs’ final compensation 

included the premiums at issue, i.e., the uniform maintenance allowance, educational pay, 

bilingual pay, payments in lieu of accrued vacation time, etc. (Ventura, supra, at pp. 

487-505.) The Ventura court disapproved a long-standing Court of Appeal decision upon 

which many counties had relied in making pension calculations. (Id. at pp. 505-507.)

Following Ventura, a number of class action lawsuits were filed in various 

counties alleging noncompliance with Ventura in the computation of retirement benefits. 

These cases were collectively referred to as the Ventura II litigation. (Chisom v. Board of 

Retirement of Fresno County Employees’ Retirement Assn. (2013) 218 Cal.App.4th 400, 

405 (Chisom).) The parties to the Fresno County Ventura II litigation, including 

appellant, reached a final settlement pursuant to a settlement agreement effective 

December 15, 2000. 

Under this settlement agreement, the class received an increased service retirement 

benefit comprised of both a statutory benefit and a supplemental benefit for members 

retiring on and after January 1, 2001. The agreement purported to be a compromise that 

was meant to fully resolve and settle all of the Fresno County Ventura II lawsuits and all 

issues between the parties therein. (Chisom, supra, 218 Cal.App.4th at pp. 406-407.) 

The settlement was intended “to be complete and final with respect to the issues that it 

has resolved and that the settlement will not be changed on behalf of settling parties or 

the class members in response to later court developments, whether favorable or 
6.

unfavorable.” The parties specifically agreed “that petitioners and class members will 

forbear bringing any future demand, claim or lawsuit seeking to enlarge, define, narrow,

or in any other way relate to the scope of the decision of the California Supreme Court in 

[Ventura], or the items of compensation to be included for benefit purposes under the 

1937 County Employees Retirement law. All parties agree that this forbearance 

agreement applies to all items of compensation which were included or which could have 

been included” (italics added) in the Ventura II actions. 

3. Appellant’s retirement increase request.

Appellant participated in the CalWIN program and received a flat monthly 

allowance of $3,930 from March 2003 through December 2007. Appellant retired from 

County employment in August 2008. In calculating appellant’s retirement benefits, the 

FCERA did not include the flat monthly allowance amount of approximately $47,000 per 

year.

In 2011, appellant filed a claim with the FCERA requesting that the flat monthly 

allowance be included as part of his final compensation in his retirement benefit 

calculation. The FCERA referred appellant’s claim to a referee.

Following a hearing, the referee found in favor of appellant and recommended that 

the FCERA adjust appellant’s pension to include the CalWIN flat monthly allowance. 

The referee concluded that the flat monthly allowance constituted compensation under 

section 31460 and, being analogous to a uniform allowance, was pensionable under 

Ventura. The referee also rejected the County’s claim that the 2000 settlement barred 

appellant’s claim because the reimbursement policy at issue was instituted after the 

settlement was reached. 

After hearing argument, the FCERA rejected appellant’s claim and the referee’s 

proposed decision. The FCERA disagreed with the referee’s interpretation of the CERL 

and the settlement agreement. 
7.

4. The trial court proceeding.

Appellant petitioned the trial court for a writ of mandate. The trial court denied 

the petition finding the settlement agreement barred appellant’s claim. The court 

determined the settlement agreement expressed the mutual intent of the parties to waive 

the right to present future unknown items for determination of whether they constitute 

compensation for purposes of calculation of retirement benefits.

DISCUSSION

Appellant argues that his pension claim is not barred by the release in the 2000 

class action settlement agreement because the CalWIN reimbursement policy was not 

adopted until 2001. Therefore, appellant contends, the calculation of his pension benefit 

was not a claim that could have been included in the class action. 

The interpretation of a settlement agreement is governed by the principles 

applicable to any other contract. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165.) 

Where, as here, the interpretation of the agreement is based solely on its own language, 

the construction is a question of law. (Id. at p. 1166.) 

The release and forbearance provisions in the settlement agreement are 

unambiguous. (Chisom, supra, 218 Cal.App.4th at p. 416.) The settlement agreement 

provides “that it disposes of all claims and issues among the parties, including those 

relating to or arising out of the Ventura case, and that the parties would forbear from 

bringing any future suit under the Ventura case.” (Ibid.) This forbearance provision is 

applicable “‘to all items of compensation which were included or which could have been 

included in [the Ventura II litigation].’” (Ibid.) 

Appellant contends his claim could not have been included in the Ventura II

litigation because the flat monthly allowance reimbursement method did not exist at that 

time. As support for his position, appellant notes that the pre-2001 policy was a nontaxed dollar-for-dollar reimbursement that required CalWIN participants to keep receipts 

of their actual incurred expenses while the 2001 flat monthly allowance was neither 
8.

tailored to actual expenses nor required receipts and was taxed. Appellant characterizes 

the 2001 flat monthly allowance as “a sea change” that was paid to CalWIN participants 

to compensate them for the added burden of working on a project several hours from 

home. 

 However, when the County first adopted the reimbursement policy for CalWIN 

participants in February 2000, one purpose was to allow additional reimbursement to the 

employees as an incentive for volunteering to relocate. Then in May 2000 the County 

modified the CalWIN policy to permit the CalWIN workers to obtain cash advances and 

reimbursement on a monthly basis for meals and incidentals. Moreover, the workers did 

not need to provide proof of expenses unless it was requested. Thus, before the Ventura 

II litigation settlement, the CalWIN participants received their reimbursement in advance 

of incurring the expenses and were not required to provide proof of their actual expenses. 

When the County modified the reimbursement policy in 2001 to put the flat 

monthly allowance in place, the scheme was not materially changed from the May 2000 

policy. As before, the participants were: paid in advance based on expense estimates; 

required to provide proof of payment for lodging; and required to certify the distance they 

traveled. Both before and after the Ventura II settlement, the County wanted to provide 

total reimbursement to the CalWIN workers and motivate them to relocate. The 2001 

policy differed from the May 2000 policy in that the County, rather than the employee, 

estimated the monthly expenses in advance and no receipts were ever required for meals 

and incidentals. The reason behind this policy change was to simplify the paperwork. 

Also, the County grossed up the amount to cover the taxes on the flat monthly allowance 

to provide total reimbursement of expenses. 

Thus, based on the policy in place in May 2000, a claim that the CalWIN 

reimbursement amounts were pensionable could have been asserted in connection with 

the Ventura II litigation. The administrative differences between the 2000 policy and the 

2001 policy are not so significant that the potential claim did not exist when the litigation 
9.

was settled. Thus, as a member of the class in the Ventura II cases, appellant waived and 

released his claim and is barred from pursuing it. (Cf. Chisom, supra, 218 Cal.App.4th at 

p. 416.) 

In light of this conclusion, we need not decide whether the FCERA erred when it 

refused to include the flat monthly allowance in calculating appellant’s pension benefit.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent.

_____________________

LEVY, J.

WE CONCUR:

_____________________

HILL, P.J.

_____________________

GOMES, J.