Filed 2/2/16 Astorga v. Retirement Bd. of the Santa Barbara Employees Retirement System CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION SIX

SARA ASTORGA,

 Plaintiff and Appellant,

v.

RETIREMENT BOARD OF THE SANTA 

BARBARA COUNTY EMPLOYEES 

RETIREMENT SYSTEM,

 Defendant and Respondent.

2d Civil No. B263325

(Super. Ct. No. 1468905)

(Santa Barbara County)

Sara Astorga applied for retirement disability. To maintain health 

insurance pending the decision on her application, she elected to remain on the payroll 

and receive her accrued sick leave, vacation and holiday pay in small but regular 

increments. 

The Retirement Board of the Santa Barbara County Employees Retirement 

System (Board) approved Astorga's disability retirement application. Government Code 

section 317241states that a disability retirement may not commence until the day 

following the last day the applicant received "regular compensation." The Board 

determined the effective date of her retirement was the day after she received her last sick

leave, vacation or holiday payment. It rejected her argument that the effective date 

 

1 All statutory references are to the Government Code unless otherwise stated. 
2

should be calculated based on the day her sick leave, vacation and holiday pay balances 

would have been exhausted had she taken them in full rather than in smaller increments.

Astorga petitioned for a writ of mandate. (Code Civ. Proc., § 1094.5.) The 

trial court denied the petition, concluding that the Board correctly calculated Astorga's 

effective date of disability retirement. We affirm. 

FACTS AND PROCEDURAL BACKGROUND

Astorga began working for the County of Santa Barbara (County) on 

September 11, 1995. She ceased working on November 18, 2011 and applied for 

disability retirement on December 19, 2011. At that time, she was provided with a copy 

of the Board's Guidelines for Disability Effective Dates (Guidelines), which define 

"regular compensation" to mean "compensation of any kind or amount that the employer 

pays (a) at the member's regular rate of pay, (b) for employment in the member's regular 

position, and (c) for actually working, or for an absence from work." 

Prior to her last day of work, Astorga had taken periods of leave for which 

she received State Disability Insurance (SDI) payments. During the periods she received 

SDI, Astorga "executed a document electing to receive a portion of her accrued sick 

leave, overtime, holiday and vacation loan balances to be 'integrated' with her SDI 

payments such that the combined benefit would equal 80% of her regular pay." The 

document advised that "[i]ntegrating leave balances with SDI benefits may impact the 

effective date of a disability retirement benefit." 

On January 20, 2012, Astorga and the County executed a Separation 

Agreement confirming Astorga's election to remain on the County payroll until the 

effective date of her disability retirement. The Separation Agreement, which Astorga 

signed with the advice of counsel, provided that she would continue to receive leave 

balances in small but regular amounts corresponding to the amount of her health 

insurance payments. 

Astorga received compensation in some amount of vacation, holiday or sick 

leave pay in each pay period between November 18, 2011, and December 8, 2013. She 

also received donated sick and vacation leave credits from other employees on three 
3

occasions, with the last donation occurring during the pay period ending December 8, 

2013. 

On November 20, 2013, the Board granted Astorga's application for 

disability retirement. The Board's staff determined, pursuant to Katosh v. Sonoma 

County Employees' Retirement Assn. (2008) 163 Cal.App.4th 56 (Katosh), that the 

effective date of her disability retirement was December 9, 2013, the day following the 

last day she received compensation in the form of sick leave, vacation or holiday pay. 

Astorga disputed this date, arguing that "the effective date of her disability retirement 

should be February 28, 2012, the date that the compensation she received during the last 

two years of her employment would have been paid out had it been paid in consecutive 

80 hour pay periods." 

In lieu of an administrative hearing, the parties stipulated to the facts 

underlying Astorga's claim of an earlier effective date of disability retirement. Among 

other things, Astorga conceded that in accordance with the Separation Agreement, her 

"last day of employment with the County was December 8, 2013 and [that] she received 

from the County pay for all remaining accrued leave balances through that date." She 

also did "not dispute that amounts she received from December 2011 through December 

8, 2013 were 'regular' compensation pursuant to . . . section 31724 and the Guidelines." 

The Board subsequently confirmed that pursuant to its Guidelines, section 

31724 and interpretative case law, Astorga's disability retirement date was in fact 

December 9, 2013. The trial court denied Astorga's petition for writ of mandate, finding 

Katosh, supra, 163 Cal.App.4th 56, "dispositive" on the issue. It noted that the Board 

"modified its practices to conform [to] the requirements set forth in Katosh in 2009 and 

has been using those practices consistently since 2009." Astorga appeals. 

DISCUSSION

Section 31724 states that the payment of disability retirement "shall be 

effective as of the date [the] application [for retirement] is filed with the board, but not 

earlier than the day following the last day for which he [or she] received regular 

compensation." (Italics added.) Astorga posits two questions for our review: 
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(1) whether donated sick leave or vacation time from co-workers is considered "regular 

compensation" of the disabled employee under section 31724, and (2) whether the 

incremental payments of sick leave, vacation and holiday pay should be "compressed" to 

achieve an earlier date of retirement. We conclude that the first question is not properly 

before us, and that the second question is answered by Katosh, supra, 163 Cal.App.4th 

56.

Standard of Review

We review de novo Astorga's challenge to the trial court's application of 

section 31724 to the stipulated facts. (In re Retirement Cases (2003) 110 Cal.App.4th 

426, 443; Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437.) In applying this 

standard, the interpretation of the agency charged with applying the statute is accorded 

weight, but is not dispositive. (Santa Clara Valley Transp. Authority v. Rea (2006) 140 

Cal.App.4th 1303, 1314.) 

Any ambiguity or uncertainty in the meaning of pension legislation should 

be resolved in favor of the pensioner. (Ventura County Deputy Sheriffs' Assn. v. Board of 

Retirement (1997) 16 Cal.4th 483, 490.) Such construction, however, must be consistent 

with the clear language and purpose of the statute. (In re Retirement Cases, supra, 110 

Cal.App.4th at p. 439.) Where the meaning of a statute is without ambiguity, doubt or 

uncertainty, the statutory language controls. (Security Pacific National Bank v.Wozab

(1990) 51 Cal.3d 991, 998.) 

Donated Vacation and Sick Leave Credits

Astorga claims that the Board and the trial court erred by finding that the

donated sick leave or vacation pay credits from other employees constituted "regular 

compensation" under section 31724. Astorga asserts there is no authority discussing 

whether donated leave qualifies as the "regular compensation" of the disabled employee 

as opposed to the "regular compensation" of the donor employee. 

The Board maintains this issue was not preserved for review. We agree. 

Astorga not only forfeited the issue by failing to raise it in the administrative or trial court 

proceedings (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11), but she also stipulated as 
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a matter of fact that all the "amounts she received from December 2011 through 

December 8, 2013 were 'regular' compensation pursuant to . . . [s]ection 31724 and the 

Guidelines." By stipulating that the donated leave was regular compensation, Astorga 

mooted any potential dispute regarding the factual or legal significance of the leave 

credits. She also waived the right to assert the purported error under the doctrine of

invited error. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 ["'Where a party by 

his conduct induces the commission of error, he is estopped from asserting it as a ground 

for reversal' on appeal"]; Cushman v. Cushman (1960) 178 Cal.App.2d 492, 498 ["one 

cannot on appeal complain of rulings assented to or acquiesced in by him in the court 

below"].) 

Effective Date of Disability Retirement

Astorga contends that, regardless of the source of her sick leave, vacation 

or holiday pay, the effective date of her disability retirement should be calculated based 

on the last day she would have received such compensation had she not elected to take it 

incrementally to preserve her health insurance coverage. She maintains the Board and 

the trial court should have liberally construed section 31724 to treat all of her leave as 

being taken in consecutive pay periods commencing in December 2011 rather than over a 

two-year period. 

Astorga cites no current authority for this construction of section 31724. 

Instead, she urges us to revive a policy the Board applied prior to adopting the Guidelines 

in 2009. At that time, the Board calculated the effective date for disability retirement 

based on the last day the employee was compensated for actually working. Any leave 

time received after that date was effectively offset by postponement of disability 

retirement until after the date the employee would have received the leave time had it 

been paid in consecutive pay periods. The Board changed this policy in 2009 to conform 

to the holding in Katosh, supra, 163 Cal.App.4th 56, that a disability retirement is 

effective under section 31724 the day after the disabled employee's accrued leave is 

actually exhausted. 
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In Katosh, the appellant applied for disability retirement after she ceased 

working. (Katosh, supra, 163 Cal.App.4th at pp. 59-60.) Two years later, she briefly 

returned to "in pay status" with her employer, but did not provide any services. She 

received a payment of 40 hours of sick leave and vacation pay, giving her the hours 

necessary to reinstate her health insurance pending a final decision on her disability 

retirement application. (Id. at p. 60.) When her application was approved, the appellant's 

retirement date was set as the day after she received the 40 hours of sick leave and 

vacation pay. (Id. at p. 61.) 

The appellant contended that "regular compensation," as used in section 

31724, did not include sick leave or vacation pay. (Katosh, supra, 163 Cal.App.4th at p. 

61.) The court disagreed, holding that receipt of sick leave or vacation pay by an 

employee during a leave of absence constitutes "regular compensation." (Id. at pp. 77-

78.) It further concluded that receipt of such pay postpones the effective date of a 

disability retirement "until the last day the employee utilizes sick leave or vacation." (Id.

at p. 78.) The court found it irrelevant that the amount received was intermittent and less 

than the full amount of compensation usually received for a single pay period. (Ibid.) 

Like the appellant in Katosh, Astorga knew or should have known the 

consequences of choosing to retain her health benefits in lieu of receiving retroactive 

disability retirement. (See Katosh, supra, 163 Cal.App.4th at p. 78.) It is undisputed that 

the Board provided Astorga with a copy of the Guidelines, which also are posted on its 

website, and that she was represented by counsel when she elected to remain on the 

County payroll until the effective date of her disability retirement. As the trial court aptly 

observed, Astorga's decision to remain employed through December 8, 2013, "was 

probably the wise decision on her part because it allowed her additional donations of 

leave time from coworkers, it allowed her the ability to obtain additional leave time and 

holiday pay accruals that she would not have had over a shorter period of time, and it 

allowed her to maintain her medical insurance." 

In sum, Katosh confirmed the bright line rule that disability retirement 

benefits are not available until the day following the day paid leave was last received. By 
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Astorga's own admission, the last day she received regular compensation in the form of 

paid leave was December 8, 2013. Thus, under section 31724, as interpreted by Katosh, 

her disability retirement was effective on the following day, i.e., December 9, 2013. The 

trial court properly denied her petition for writ of mandate challenging that date. 

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal. 

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
Donna D. Geck, Judge

Superior Court County of Santa Barbara

______________________________

Ghitterman, Ghitterman & Feld, Russell R. Ghitterman, for Plaintiff and 

Appellant.

Reicker, Pfau, Pyle & McRoy LLP, Alan A. Blakeboro, for Defendant and 

Respondent.