Filed 2/2/ 16 Astorga v. Retirement B d. of the San ta Barbara Employees Retirement S ystem CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

RETIRE MENT BOARD OF THE SANTA BARBARA COUN TY 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 pendi ng 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.
T he Retirement Board of the Santa Barbara County Employees Retirement System (Board) a pproved Astorga's disability retirement application

. Government Code
section 31724 1 states that a disability retirement may not commence until the day following the last day the applicant received "regular compensation." The Board
determined the effectiv e 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 b een exhausted had she taken them in full rather than in small er increments.

Astorga petitioned for a writ of mandate. (Code Civ. Proc., § 1094.5.) The trial court denied the peti tion, concluding that the Board correctly calculated Astorga's
effective dat e 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 e xecuted a Separation Agreement confirming A storga'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 reg ular 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 N ovember 18, 2011
, and December 8, 2013

. She
also received donated sick and vacation leave credits from other employees on three3

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 di s ability 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 thin gs, 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."

T he Board subsequently confirmed that pursuant to its Guidelines, sectio n 31724 and interp retative 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 pa yment 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:4

(1) whether do nated 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 earli er 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 accor ded weight, but is not dispositive. ( Santa Cla r a 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 Deput y Sheriff s ' Assn. v. Board of
Retirement (1997) 16 Cal.4th 4 8 3 , 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 s tatute 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 f inding that the
donated sick leave or vacation pay credits from other employees constitute d "regular compensation" under section 31724 . Astorga asserts there is n o authority discussing
whether donated leave qualifies as the " regular compensation " of the d isabled 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 co urt
pr oceedings ( Newton v. Clemons (2003) 110 Cal.App.4th 1, 11), but she also stipulated as5

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
Gui delines. " 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"]; C ushman v. Cushman ( 1960) 178 Cal.App.2d 492, 49 8 [" one cannot on appeal complain of rulings assented to or acquiesc ed in by him in the court
below" ].) Effective Date of Disab i lity Retirement

Astorga contends that, regardless of the source of her sick leave, vacation or holiday pay, the effective dat e 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 3 1724 to treat all of her leave as being taken in consecutive pay peri ods commencing in December 2011 rather than over a

two

- year period.

Astorga cites no current authority for this construction of section 31724.
Instea d, she urges us to re vive 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 le ave time received after that date was effectively offset by pos tponement 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 co nform 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.6 In Katosh , the appellant applied f or disability retiremen t 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
, g iving 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 th e 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 inclu de sick leave or vacation pay. ( Katosh, supra, 163 Cal.App.4th at p. 61.) The court disagreed, hold ing 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 t he 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

t han the full amount of compensation usually received for a single pay period. ( I bid. )
Like th e appellant in Katosh
, Astorga knew or should have known the consequences of choosing to retain her health benefits in lieu of receiving retr oactive disability retirement

. ( See Katosh, supra, 163 Cal.App.4th at p. 78.) It is undisputed that
the Board pro vided 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 t he trial court aptly
obs erved, Astorga's decision to remain employed through D ecember 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
holi day 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 followin g the day paid leave was last received. By7

Astorga's own admission, the last day she received regular compensation in the form of paid leave was December 8, 2013. Thus, under section 31 724 , as interpreted by Katosh, her disability retirement was effectiv e 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.