Filed 6/9/21 Richman v. Regents of the U. of Cal. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DOUGLAS D. RICHMAN,

Plaintiff and Respondent,

v.

REGENTS OF THE UNIVERSITY 

OF CALIFORNIA,

Defendant and Appellant.

 D076965

 (Super. Ct. No. 37-2018-00010040-

 CU-MC-CTL)

 ORDER MODIFYING OPINION

 AND DENYING REHEARING

 NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed on May 20, 2021 be modified as 

follows:

1. On page 2, at the end of the second full paragraph after the words 

“ ‘entitled to a total of 34.403 years of Service Credit,’ ” add the following 

sentence: 

The Regents appeal, asserting the court erred as a matter 

of law in interpreting the UCRP and, in any event, 

Richman’s claims are time-barred.
2

2. On page 2, the third full paragraph that begins “The upshot of the 

judgment” is deleted in its entirety.

3. On page 2, the fourth sentence of the last paragraph beginning with 

“Contrary to,” the word “university” is replaced with “University of California 

(UC)” so that the sentence reads:

Contrary to the trial court’s determination, on de novo 

review we conclude he was not an Eligible Employee 

because he lacked the requisite 50 percent or more 

University of California (UC) appointment during this 

period. 

The appellant’s petition for rehearing is denied.

There is no change in judgment.

O’ROURKE, Acting P. J.

Copies to: All parties
Filed 5/20/21 Richman v. Regents of the U. of Cal. CA4/1 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DOUGLAS D. RICHMAN,

Plaintiff and Respondent,

v.

REGENTS OF THE UNIVERSITY 

OF CALIFORNIA,

Defendant and Appellant.

 D076965

 (Super. Ct. No. 37-2018-00010040-

 CU-MC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Ronald F. Frazier, Judge. Reversed with directions. Request for judicial 

notice denied.

Reed Smith and Raymond A. Cardozo for Defendant and Appellant.

Law Office of Michael A. Conger and Michael A. Conger for Plaintiff 

and Respondent.
2

For over 42 years, Douglas D. Richman, M.D. worked under a joint 

appointment as a Veterans Administration San Diego Healthcare System

(VA) staff physician and also a member of the faculty at the University of 

California San Diego School of Medicine (UCSD). At retirement he received a 

VA pension based on 47 years of service credit, plus a University of California 

Retirement Plan (UCRP) pension based on 14.22 years of service credit.1

In this declaratory relief action against the Regents of the University of 

California (Regents), Richman asserted he was entitled to an additional 20

years of UCRP service credit. After a bench trial, the superior court agreed 

and entered a judgment that Richman is “entitled to a total of 34.403 years of 

Service Credit.” 

The upshot of the judgment is that between the VA and the University 

of California (UC), Richman has 76.5 years of service credit for 42.5 years of 

employment. The Regents appeal, asserting the court erred as a matter of 

law in interpreting the UCRP and, in any event, Richman’s claims are timebarred.

As we explain, the case is best analyzed in two parts. Part 1 involves 

the period from July 1976 (Richmond’s date of hire) to 1992, when a UCRP 

policy change with respect to faculty like Richman—holding a joint VA and 

UC appointment—became effective. The primary issue for this period is 

whether Richman qualified as an “Eligible Employee” under the UCRP. 

Contrary to the trial court’s determination, on de novo review we conclude he 

was not an Eligible Employee because he lacked the requisite 50 percent or 

more university appointment during this period. 

1 Unless otherwise specified, all references to the UCRP are to the April 

1976 version.
3

Part 2 involves the period from 1992 to 2019. Eligibility is not in issue. 

Rather, the question is whether Richman earned “Covered Compensation” 

and if so, the amount each year. The trial court interpreted the UCRP to 

provide that all of Richman’s university compensation was Covered 

Compensation. Again, on de novo review we conclude otherwise.

Accordingly, we will reverse the judgment with directions to enter 

judgment in favor of the Regents, making it unnecessary to consider whether 

Richman’s claims are time-barred.

FACTUAL AND PROCEDURAL BACKGROUND

A. Richman’s Joint VA and UC Appointments

The VA hospital is located on UCSD property. Beginning in the mid1970’s, the VA and UCSD embarked on something akin to a joint venture. 

The VA paid the salary of some UCSD medical school faculty. That faculty, 

in turn, provided patient care at the VA hospital, and used that clinical 

setting to train medical students. This became a nationwide “model” for 

cooperation between the VA and a medical school, what one witness 

characterized as a “win/win for both.” 

In June 1976, UCSD medical school had two open faculty positions. 

One was designated a “VA slot”; the other, a “university slot.” Richman was 

then working in Boston, completing his training in infectious diseases. He 

had previously worked as a U.S. public health officer, where he accrued civil 

service retirement service credit. UC successfully recruited him and placed 

him in the VA slot. 

Richman’s joint VA/UC appointment is memorialized in two documents. 

The first, dated June 7, 1976, is from the VA—a “full time appointment” as a 

VA “staff physician, Laboratory Services” with an annual $31,309 salary at 

“Chief Grade, Step 1.” The second, issued a week later, is from UCSD—an 
4

appointment as “Assistant Professor of Pathology and Medicine in Residence” 

and “member of the faculty of the School of Medicine.” (Italics added in first 

quote.) The UC appointment was “concurrent with [the] appointment at the 

Veterans Administration Hospital at Chief Grade 1.”

Richman did not know what “in Residence,” meant—but he asked. He 

was told that “in residence” means his “primary salary” would come from a 

source other than state funds. In Richman’s case, initially that source was 

the VA.2 But by the early 1980’s, “every penny of [his] university salary” 

came from the National Institutes of Health (NIH) grants that Richman

generated.

Throughout his 42 years as a faculty member, Richman’s salary was 

never paid using state funds. But that did not affect his opportunities for 

advancement. Apart from the funding source for salary, the criteria for 

appointment and advancement are the same for “in residence” faculty as for 

“ladder rank or tenured track.” 

B. The UCSD Clinical Department Compensation Plan

In 1972, the Regents adopted a Clinical Departments Compensation 

and Incentive plan (Compensation Plan) for UCSD medical school faculty.

Participation in the Compensation Plan was “mandatory for all eligible 

faculty.” Eligible faculty included those, like Richman, who had patient-care 

responsibility at an “affiliated hospital” (such as the VA) and who 

concurrently held a faculty appointment. Thus, Richman was in the 

Compensation Plan throughout his UC employment. 

2 The record is a bit unclear about the mechanics of this arrangement. 

There is some evidence that at least initially, the VA transferred funds to the 

university, which in turn used those funds to pay Richman. 
5

As summarized in the table below, the Compensation Plan is comprised 

of three distinct components: (1) base salary, which the university designates 

“X”; (2) additional compensation, “Y”; and (3) incentive compensation, “Z.”

Designation Type of Compensation

X Base salary for teaching and university service. The 

amount is set by academic rank (e.g., “assistant professor”) 

and step (e.g., “Step II”) and applies across the UC system. 

Y Additional salary. A negotiated salary component based 

upon money the faculty member generates through, for 

example, grants.

Z Incentive compensation. Income generated by 

physician-faculty members, usually from treating patients. 

Faculty who are not “clinically active” cannot earn Z.

In 1992, an additional compensation category was added, designated X 

Prime (X′), which is a multiplier of X and results in additional base salary. In 

1996, another multiplier was added, designated Y Prime (Y′).

To resolve this case it is unnecessary to explore the complexities arising 

from this type of compensation system—one that Richman characterizes as 

“Byzantine.” Rather, the appeal turns on answering these questions:

(1) which of these compensation elements did Richman receive; 

(2) when did he receive them; and

(3) which of these, if any, are “Covered Compensation” within the 

meaning of the UCRP. 

But before answering these questions, a further discussion of 

Richman’s joint VA/UC appointment is necessary to place these issues in 

fuller context.
6

C. Richman’s 1976 UC Appointment

Richman’s 1976 UCSD appointment letter states he would be “salaried 

100% time by the Veterans Administration” and may also earn Z 

compensation as described in the Compensation Plan. According to the 

letter, the Compensation Plan was enclosed, but Richman testified he did not 

recall receiving it. In any event, whether enclosed or not, he never looked at 

it and claimed he “didn’t know what base salary was.” 

The UC appointment letter says nothing about university-funded base 

salary (X compensation). The only type of university compensation 

mentioned is Z (i.e., clinical income). 

At the time, Richman did not know what Z compensation was, and he 

did not ask. He knew he would be getting “a VA base salary,” and it never 

“crossed [his] mind” that he would not be receiving a university base salary. 

Richman explained, “I hate to sound naïve, but I was just happy to be doing 

what I wanted to do and didn’t ask questions about retirement or 

compensation.”3 

Richman’s UC appointment letter also says nothing about the UCRP. 

Nor did anyone associated with the university discuss retirement with him. 

During interviews, Richman was told he would be eligible for a VA pension 

and receive “the same benefits and privileges of any faculty member at the 

university.” According to Richman, it was not until 2011 that “people started 

getting informed” about the UCRP. 

3 From 1976 to about 1980, Richman received Z compensation. He 

testified that by the early 1980’s, he no longer received Z income and “all” of 

his UC compensation came from NIH grants. 
7

As will be evident, the extent of Richman’s UC appointment, expressed 

as a percentage, determines UCRP eligibility. His UCSD appointment letter

does not refer to any percentage with respect to the university. The only 

percentage stated is for the VA—at 100 percent. 

For faculty holding joint VA/UC appointments, the university 

designates the extent of the VA appointment as a fraction. The denominator 

is always eight—presumably representing eight hours of an ordinary working 

day. For example, a 50 percent VA appointment is considered a four-eighths

VA appointment. Richman’s 100 percent VA appointment was designated 

eight-eighths. He held this eight-eighths VA appointment continuously 

throughout his 42-year career. 

D. The UCRP

The parties stipulated that the April 1976 version of the UCRP, also 

called the Standing Order, was in effect at the time of Richman’s hire. 

Because it is promulgated by the Regents, it has the force and effect of a 

statute. Under the UCRP, only plan “Members” who have “Credited Service” 

receive retirement benefits. Each of these terms is further described below. 

1. Eligible Employee

To be a plan “Member,” a UC employee must be an “Eligible Employee.” 

Paragraph 2.15(i) of the UCRP (hereafter, Paragraph 2.15(i)) defines “Eligible 

Employee” as an employee of the Regents or university who “[i]s appointed to 

work 50% time or more” for a specified time period. (Italics added in second 

quote.)

Once a person becomes an Eligible Employee, “he [or she] shall 

continue to be a Member notwithstanding any change in the nature of his [or 

her] appointment unless there is a Break in Service.” In other words, “once 

in the retirement system, you are always in it.” 
8

2. “Covered Compensation”

An Eligible Employee earns “Credited Service” only from “Covered 

Compensation.” “Covered Compensation” is “the total monthly remuneration 

which a Member receives from the University for his [or her] regular and 

normal appointment” but excludes “[r]emuneration which exceeds 100% of 

the salary . . . for the position to which a Member has been appointed.” 

E. Richman’s UCSD Appointment, 1976‒1992

Gregory Ricks is employed in the university’s Retirement 

Administration Service Center. He testified that prior to 1992, UCSD 

medical school faculty with joint VA/UC appointments could have a 

maximum total appointment between the two institutions of 100 percent. 

For example, a faculty member with a five-eighths VA appointment would by 

definition have a three-eighths university appointment. 

Because Richman had an eight-eighths, or 100 percent VA 

appointment—for the period 1976 to 1992—the university determined he 

necessarily had a zero percent university appointment. As a result, the 

Regents concluded Richman was not an “Eligible Employee” under Paragraph 

2.15(i), and earned no service credit for this period.

This determination is reflected in UC payroll forms. For example, a 

1977 “personnel action form,” an excerpt of which is copied below, states “VA 

appt: Chief Grade Step I, 8/8 time.” It also indicates Richman may receive Z 

compensation “subj[ect] to avail[able] funds,” but has no X compensation.
9

It is important to understand that for a UCSD medical school faculty 

member holding a joint VA appointment, the percentage of his or her UC 

appointment is an accounting issue—not a measure or reflection of the time 

the faculty member spends doing UC work. As noted, pre-1992 a faculty 

member holding a joint VA/UC appointment at three-eighths VA would 

always have a five-eighths (or 62.5 percent) UC appointment, regardless of 

his or her actual time spent doing university work. As explained by David 

Bailey, the former chair of Richman’s pathology department:

“[T]he appointment at the university could be zero percent 

time. . . . One is teaching, one is doing research at the 

university, and one can do that at zero percent time.” 

Richman’s career well illustrates this distinction between percentage 

appointment and actual work hours. According to the university, pre-1992 

Richman held a zero percent UC appointment. Yet in the spring quarter of 

1977, for example, he spent 137 hours teaching. In Winter 1979, that 

increased to 230 hours. Over two quarters in 1983, Richman spent 476 hours 

teaching as well as significant time in research. Richman testified that until 

5 or 10 years before retirement, he worked approximately 80 hours per week, 

60 of which was for the university. 

Richman is “one of the most eminent scholars in the world.” His UC

work generated millions of dollars in grants for the university, and he made 

major contributions in the study and treatment of HIV/AIDS. He authored 

more than 700 articles and is an editor or coeditor of major textbooks. The 

university has recognized Richman for “extraordinary achievement” and 

“sustained excellence in teaching and service.” In 2009, the university 

awarded him its highest academic rank, Distinguished Professor.

If entitlement to UCRP benefits was based on hours worked, professional 

accolades, and outstanding achievement, this would be an easy case to affirm. 
10

But under the UCRP, it is one’s university appointment, not hours spent 

doing UC work and professional stature that determines eligibility. And only 

earnings that are “Covered Compensation” yield service credit.

The California Constitution grants the Regents broad powers to 

organize and govern the university, including the “ ‘paramount constitutional 

authority . . . to craft its employee benefits, regarding which [t]he Regents is 

entitled to independent value and deference from this Court.’ ” (Jacobs v. 

Regents of the University of California (2017) 13 Cal.App.5th 17, 24‒25

(Jacobs).) Accordingly, as the parties stipulated, the UCRP has the force and 

effect of statute. (Id. at p. 21.) Our analysis is, therefore, governed by 

established principles of statutory interpretation, and not what we may 

believe Richman fairly deserves for his extraordinary work, or our views on 

the wisdom of the UCRP as applied to him. (PGA West Residential Assn., Inc. 

v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 188, fn. 26 [whether the 

policy behind a statute “ ‘is desirable or wise is not our duty to decide; our 

role is to construe the statute as enacted”].)

Contrary to the Regents position that he held a zero percent UC 

appointment from 1976 to 1992, Richman asserts that starting in 1976 he

held a 100 percent university appointment. He bases this contention mostly

on documents in his UC personnel file indicating “100% time.” He asserted 

these documents “could fairly be interpreted to say that [his] UC academic 

appointment . . . is for 100 percent of the time.” One of these documents is 

copied below, and more are contained later in this opinion:
11

F. The 1992 Policy Change

In 1992, the university changed its policy to enable UCSD medical 

school faculty holding joint VA appointments—even those like Richman with 

100 percent VA appointments—to become “Eligible Employees” under the 

UCRP. This is documented in a memorandum entitled, “Health Sciences 

Faculty With Split Appointments.”

First, the memorandum summarizes the then-existing policy, under 

which a faculty member with a five-eighths or greater VA appointment is 

ineligible under the UCRP:

“Membership in the [UCRP] requires an appointment of at 

least 50% time for a year or longer. Many . . . faculty hold 

joint appointments between the University . . . and 

affiliated hospitals, such as the Veterans’ Administration 

(VA). Historically, their University appointment percentage 

and their VA appointment would equal 100%. In most

cases, the VA appointment was 5/8 time or greater, by 
12

definition making the University appointment 3/8 time [or 

less]. Therefore, many UC/VA joint appointees were not 

eligible for UCRP membership.” (Italics added.) 

Second, the memorandum recognizes that “this treatment created 

inequities”:

“For instance, it was possible for two [medical school] 

faculty members . . . earning similar pay, to be coded 

differently with respect to UCRP membership. The faculty 

member without the VA appointment could be a UCRP 

member if she/he held an appointment of 50% time or 

greater. However, the other faculty member who had a joint 

UC/VA appointment would not be a UCRP member 

regardless of the amount of time actually worked at UC or 

the size of the salary, unless his/her VA appointment was 

4/8 time or less.” (Italics added.) 

Third, the memorandum explains a change to remedy the inequity:

“Given the unique arrangement of these split 

appointments, and to provide consistent treatment of 

employees, the following methodology has been approved: 

Regardless of the VA appointment, the UC appointment 

percentage will be determined by the ratio of UC-paid 

compensation to the full-time base professorial salary for 

the applicable rank and step. If the ratio is 50% or greater 

and the appointment is for a year or longer, then the 

faculty member will become a member of UCRP and earn 

service credit in proportion to the appointment percentage.” 

Ricks testified that under this 1992 policy, the university would “take 

the actual [university] pay of the individual, divided by the pay for the actual 

position, and come up with a . . . percentage, and then based on that 

percentage, if it’s 50 percent or more, then that person would be eligible” 

under the UCRP. An example of how this works is contained in a 1992 letter 

authored by Ronald W. Brady, the university’s senior vice president of 

administration, who wrote: 
13

“[T]he following sets forth a simple example of policy.

“Published Professorial Grade 3 base salary = $50,000.

“If Professor X, Grade 3, is paid $25,000 by UC (which must 

be . . . coded as base compensation and remitted through 

UC payroll), Professor X is then considered ‘50% time’ and 

is a UCRP member . . . . UCRP service is credited 

proportionally at 50% . . . . Income from other employers or 

‘Y’ or ‘Z’ earnings do not comprise base compensation for 

benefit eligibility purposes and such income does not 

influence eligibility for UCRP.” (Italics added.) 

“If Professor X UC-paid base salary subsequently drops to 

$12,500, UCRP service credit would then be prospectively 

calculated at 25%.” 

In 1998, this policy was “further refined” in guidelines that established 

a maximum 150 percent combined joint UC/VA appointment. Bailey 

explained at trial, “So one could be 8/8ths or 100 percent VA and up to 50 

percent of the university, or vice versa, 100 percent at the university and 50 

percent at the VA.” 

As a result of this change, post-1992 Richman began participating in 

the UCRP, notwithstanding his 100 percent VA appointment. In 2004, for 

example, Richman’s X compensation was 50 percent of the full-time base 

salary ($315,000) for his position. He was, therefore, an “Eligible Employee” 

under Paragraph 2.15(i). This is reflected in this June 2004 university 

“salary proposal” he received showing a 50 percent university appointment 

together with an “8/8ths” or 100 percent VA appointment:4

4 As reflected in this document, Richman’s “Gross UC Pay” of $165,396 is 

the sum of X (base salary) and X Prime. Under the 1992 change in policy, 

only the X component (here, 50 percent of $315,570, or $157,785) is used in 

determining UCRP eligibility. 
14

After an audit in 2003, the university discovered that it failed to 

correctly implement this 1992 policy. The university retroactively credited 

Richman with an additional 5.807 service credits, representing a 50 percent 

UC appointment for the period 1992 to 2003. Based on the policy change 

allowing for up to 150 percent joint VA/UC appointments, ultimately the 

university credited Richman with 14.2177 service credits.5

G. Litigation

In 2015, a UCSD medical school faculty member contacted Richman 

stating, “we are looking for several poster children to ‘test’ the system and 

determine whether split-funded faculty (mainly based at the VA) are getting 

a fair shake.” Richman stated, “I would be glad to serve as a poster boy.” In 

2018 Richman filed a superior court complaint containing a single cause of 

action for declaratory relief alleging “all years of his employment at the 

University should be included in his pension calculation.” Richman had not 

5 In his brief, Richman argues that the 1992 memorandum has “no 

impact on the rules” governing Richman’s UC retirement benefits. If that 

were true, Richman would have zero service credits, not the 14.22 the 

Regents determine he had earned. 
15

yet retired, but sought a judicial determination “regarding his entitlement to 

the UCRP pension . . . so that he can make retirement plans.” While this 

litigation was pending, Richman retired and elected to receive a monthly 

$5,871.94 UCRP payment (net of taxes). 

After a bench trial, the court issued a statement of decision. It

determined that Richman’s “initial appointment” as a UCSD assistant 

professor was “a one-hundred percent (100%) appointment” and that he 

“spent the vast majority of his career working for the University, not the 

Veteran’s Administration.” The court ruled that Richman became an Eligible 

Employee “upon the commencement of his employment on July 1, 1976”

because the eligibility provisions “have nothing to do with whether an 

employee works elsewhere, such as at the VA.” 

The Regents introduced into evidence Richman’s payroll records 

showing a distinction between his gross UC pay and amounts the Regents 

considered to be “Covered Compensation.” For some years, the difference was 

substantial. For example, in 2018, Richman’s gross UC pay was $246,189.12. 

But his Covered Compensation was $151,545.78. 

Nevertheless, the trial court further determined that Richman’s gross 

UC pay, as reflected in “his W-2 records of earnings from the University”

constituted “Covered Compensation.” In so holding, the trial court refused to 

apply the Compensation Plan (which states that only base salary is covered 

compensation), determining it created an irreconcilable conflict with the 

UCRP. It ultimately concluded, “Under the unambiguous provisions of the 

UCRP, Dr. Richman had a right to earn a pension from his first day of UCSD 

employment.” Moreover, to the extent there was any “doubt,” the court 

resolved it in Richman’s favor on the grounds that pension laws are to be 
16

liberally construed in favor of the pensioner and under Civil Code section 

1654, ambiguities in a contract are resolved against the drafter. 

After rejecting the Regents’ statute-of-limitations and laches defenses,

the court entered judgment determining that Richman is entitled to the 

UCRP pension based on all of his years of UCSD employment from July 1, 

1976 to April 1, 2019—a total of 34.403 years of service credit.6

DISCUSSION

Part 1: 1976 through 1992

A. As a Matter of Law, Richman was Not an “Eligible Employee” Until 1992.

“The Regents established the UCRP through its constitutional 

authority to do so. As our Supreme Court has recognized: ‘Article IX, section 

9 [of the California Constitution], grants the [R]egents broad powers to 

organize and govern the university . . . . “ ‘[The] power of the Regents to 

operate, control, and administer the University is virtually exclusive.’ ” ’ ” 

(Jacobs, supra, 13 Cal.App.5th at p. 24.) “The UCRP is the Regents’ plan for 

certain employment benefits to University employees, including . . .

retirement benefits. Since the UCRP was adopted pursuant to the Regents’ 

constitutional power, it has the force of statute.” (Id. at p. 21.)

Under Paragraph 2.15(i), an Eligible Employee is one who is 

“appointed to work 50% time or more” for a specified duration (e.g., for one 

year or longer). . Because there is no dispute that Richman’s 1976 UC 

appointment was for more than one year, the eligibility question here turns 

on whether he met the 50 percent appointment criteria. 

6 The court also determined that employee contributions should be 

deducted from the pension along with interest. 
17

Focusing on the period 1976 to 1992, the Regents contend that as a 

matter of law Richman had a zero percent UC appointment. The argument is 

logical and straightforward: 

1. In 1976, a faculty member holding a joint VA/UC 

appointment would have a total 100 percent appointment 

between the two entities. 

2. Richman’s had an eight-eighths, or 100 percent VA 

appointment, as documented in his appointment letter. 

3. Therefore, Richman had a zero percent UC appointment. 

Thus, the Regents argue, until the 1992 policy change allowing for up 

to a 150 percent VA/UC appointment, Richman was not an Eligible Employee 

under Paragraph 2.15(i). Moreover, that Richman actually worked a 

substantial amount of time for the university is, in the Regents’ view,

irrelevant under Paragraph 2.15(i) because eligibility is defined by his 

percentage of appointment, not time actually worked. 

Because the UCRP has the force and effect of a statute, we 

independently review the trial court’s interpretation of the relevant 

provisions. (See Christensen v. Lightbourne (2019) 7 Cal.5th 761, 771 

[statutory interpretation is de novo review].) Paragraph 2.15 states:

“Eligible Employee means an officer or employee of The 

Regents who:” [¶] . . . [¶] 

“(i) Is appointed to work 50% time or more on a fixed 

percent of time basis for an indefinite period, for a definite 

period of one year or longer, or for a shorter definite period 

with the reasonable prospect of renewal or extension by the 

Governing Board . . . .” (Italics added.)

“ ‘The fundamental purpose of statutory interpretation is to ascertain 

the intent’ of the legislative body that adopted the enactment.” (Boshernitsan 

v. Bach (2021) 61 Cal.App.5th 883, 892.) Here, the “legislative body” is the 

Regents. The plain meaning of the words themselves generally provides the 
18

most reliable indicator of intent. (See Subaru of America, Inc. v. Putnam 

Automotive, Inc. (2021) 60 Cal.App.5th 829, 836.) “[E]ach word and phrase 

should be given significance” (Kaplan v. Fairway Oaks Homeowners Ass’n

(2002) 98 Cal.App.4th 715, 719), and is presumed to “ ‘perform a useful 

function.’ ” (Anderson Union High School Dist. v. Shasta Secondary Home 

School (2016) 4 Cal.App.5th 262, 278.)

Under Paragraph 2.15(i), eligibility is based on the employee’s 50 

percent or greater appointment to work (“appointed to work 50% time or 

more”). Eligibility is not determined by the number of hours actually worked.

The trial court erred in interpreting Paragraph 2.15(i) to mean that Richman 

is an Eligible Employee in part because he “spent the vast majority of his 

career working for the university.” That interpretation is possible only by 

deleting “appointed to work” and rewriting Paragraph 2.15(i) to provide that 

an eligible employee is one who “works 50% time or more.” The court’s role 

“is to ascertain the meaning of the words used, ‘ “not to insert what has been 

omitted” ’ or otherwise rewrite the law to conform to an intention that has not 

been expressed.” (Salawy v. Ocean Towers Housing Corp. (2004) 121 

Cal.App.4th 664, 674.) 

The evidence also leaves no room for an interpretation other than 

Richman received a 100 percent VA appointment, not a 100 percent UC 

appointment. His UC appointment letter states he will be “salaried 100% 

time by the Veterans Administration.” This is an eight-eighths VA 

appointment. At trial, even Richman acknowledged this was a 100 percent 

VA appointment:

“Q: And your appointment at the VA was 8/8ths[,] correct?

“A: Yes, 40 hours.

“Q: And that was a 100 percent appointment[,] right?
19

“A: Yes.

“Q: And that lasted the entire time that you were 

employed by the university, correct?

“A: Yes.

“Q: And based on this letter, you were informed that you 

would be, quote, salaried 100 percent time by the Veterans 

Administration[,] right?” [¶] . . . [¶]

“A: That’s what it says, yes.

“Q: And by salaried 100 percent time, you understood that 

you would be getting a full-time salary from the VA[,]

correct?

“A: Yes.

“Q: And that you would be getting a supplemental amount 

of compensation from the university[,] right?

“A: Yes.” 

It is true, as Richman points out, that his UC appointment letter also 

acknowledges an “appointment as Assistant Professor” in the medical school. 

But whereas the letter noted a 100 percent VA appointment, it states nothing 

about the percentage of UC appointment, or that Richman would be eligible 

under the UCRP. Richman’s testimony concedes these points:

“Q: Now, the letter doesn’t reference any specific 

percentage appointment at the university, does it?

“A: No.

“Q: And the only percentage appointment that’s listed in 

there is for the VA[,] correct?

“A: Yes. That’s a hundred percent time.” [¶] . . . [¶]

“Q: And the offer letter that we’re looking at, there was no 

mention of any pension or retirement plan as part of your 

employment in the letter[,] correct?

“A: No, that was never discussed . . . .

“Q: But it was not in the letter[,] correct?
20

“A: Correct.

“Q: And you never received a document at the time that 

you were hired that you were deemed eligible for the 

[UCRP][,] correct?

“A: This is all of the letters that I ever received.

“Q: So the answer is no?

“A: No.” 

Moreover, before the policy change in 1992, UCSD medical faculty with 

a joint VA appointment could not have more than a total 100 percent 

appointment at both institutions. There is no contrary evidence. Ricks

testified:

“Q: As part of your job duties, have you come to learn how 

the university applied the [UCRP] to faculty with joint 

appointments at the VA?

“A: Yes.” [¶] . . . [¶] “Well, prior to 1992, the faculty could 

only have ratio percentage appointments [totaling] 100 

percent between both the VA and the UC positions. . . .

“Q: All right. And with respect to those appointments, if a 

faculty member had an 8/8ths appointment at the VA prior 

to 1992, then would they be eligible for the [UCRP]?

“A: They would not.

“Q: And that was because the total percentage 

appointment could be 100 percent between the university 

and the VA prior to 1992.

“A: Right.” 

The inescapable conclusion from the plain words in Paragraph 2.15(i) 

and Richman’s testimony is that starting in 1976 he had a 100 percent VA 

appointment. Pre-1992, that necessarily means he had a zero percent UC 

appointment. Therefore, as a matter of law he was not an Eligible Employee 
21

under the UCRP, which requires at least a 50 percent university 

appointment.

In urging a different conclusion, Richman starts by framing the issue 

as one invoking the deferential substantial evidence standard of review. He

contends “all of the issues raised by the Regents on appeal are challenges to 

factual determinations.” He argues the Regents have either forfeited these 

issues (by not presenting all the relevant evidence in the opening brief), or if 

not forfeited, the findings must be affirmed. Specifically with respect to 

Paragraph 2.15(i), Richman contends the judgment is based on two “factual 

determinations”—(1) the terms of the 1976 UCRP; and (2) whether 

Richman’s employment was “at least 50 percent of the time at UCSD.” 

We disagree; neither of these two issues present factual questions. The

“terms” of Paragraph 2.15(i) are not disputed. The issue is not what the 

words are, but what they mean. As noted earlier, this is in effect an issue of 

statutory interpretation, subject to independent appellate review.

As to the second question—whether his employment was “at least 50 

percent of the time at UCSD”—Richman’s argument belies a fundamental 

misunderstanding of Paragraph 2.15(i). The dispositive inquiry under 

Paragraph 2.15(i) is not whether employment was “at least 50 percent of the 

time at UCSD.” The key, which like the trial court Richman also ignores, is 

his UC “appointment.” The percentage UC appointment is calculated not on 

actual hours worked, but rather in reference to the extent of the VA 

appointment:

UC appointment = 100 - (percentage of VA Appointment)

In a related argument, Richman asserts that “abundant evidence,” 

including his 1976 university appointment letter and his teaching hours,

supports a factual determination that he was an Eligible Employee “effective 
22

July 1, 1976.” But as Richman conceded at trial, the 1976 appointment letter 

does not contain any UC percentage appointment. And no one disputes he 

worked thousands of hours teaching. The problem is that actual hours 

worked is a distinctly different issue from appointment, and under Paragraph 

2.15(i), it is only the appointment that counts.

Richman further points out that he served on the UC Academic Senate 

and received numerous academic promotions and accolades. But there is no 

dispute he worked long hours and was a highly valued UC employee. Those 

facts are just not relevant in determining eligibility as defined in Paragraph 

2.15(i).

Richman also contends that even pre-1992, faculty members with joint 

UC/VA appointments could hold a combined 150 percent appointment. In 

closing argument, for example, his attorney argued there was a “glitch” that 

the university needed to and did “fix,” and there is “no evidence that any plan 

was changed.” However, the 1992 memorandum announcing the new policy 

starts by summarizing the then-existing policy: “Historically, their 

University appointment percentage and their VA appointment percentage 

would equal 100%. In most cases, the VA appointment was 5/8 time or 

greater, by definition making the University appointment 3/8 time. 

Therefore, many UC/VA joint appointees were not eligible for UCRP 

membership.” Going from a maximum combined 100 percent (pre-1992) to a 

combined maximum 150 percent (post-1992) is a change in policy.

In 1981, the Regents amended Paragraph 2.15 to specifically exclude 

from eligibility “[a]n employee who receives remuneration under a special 

compensation plan but who receives no Covered Compensation.” Invoking 
23

the so-called “California Rule,”7 Richman also contends the Regents “may 

not, under the guise of ‘interpreting’ the [UCRP], conjure language that is not 

included and was not inserted until years later.” But even before the 1981 

amendment, Richman was not an Eligible Employee under Paragraph 2.15 

because he lacked at least a 50 percent university appointment. After 1981, 

he may have been ineligible for an additional reason—that he received 

remuneration under the Compensation Plan but received no Covered 

Compensation. That there is an alternative basis for determining 

ineligibility after 1981, however, does not mean the Regents’ correct

determination based on the pre-1981 version of Paragraph 2.15 is any less 

valid. Accordingly, we reject Richman’s claim that the Regents “used a 1981-

created exclusion to deny Dr. Richman 1976 eligibility in the UCRP.” 

Perhaps Richman’s best argument is that documents in his personnel 

file show “100% time” next to or near his university titles. In its statement of 

decision, the trial court cited these documents to support its conclusion that 

Richman’s university appointment “was a one-hundred percent (100%) 

appointment.” The following are examples:

7 “Under the ‘California Rule,’ as it has come to be known [(Cal Fire

Local 2881 v. California Public Employees’ Retirement System (2019) 

6 Cal.5th 965, 971)], the contract clause of the state Constitution requires 

any modification of public employee pension plans to satisfy a standard 

established in a long line of California Supreme Court decisions, including 

most prominently Allen v. City of Long Beach (1955) 45 Cal.2d 128.” 

(Alameda County Deputy Sheriff’s Association v. Alameda County Employees’

Retirement Association (2020) 9 Cal.5th 1032, 1053.)
24

 

For several reasons, these documents cannot reasonably be interpreted 

to mean Richman had a 100 percent UC appointment. The form above states,

“VA appointment: Chief Grade 9, 8/8 time.” (Italics added.) That means a 

100 percent VA appointment. Bailey explained:
25

“Q: Now, according to that document, do you see that next 

to the salary designations it lists ‘VA’ in parentheses?

“A: Yes.

“Q: What does that mean?

“A: That means to me that the time that is put there, the 

100 percent time, is time at the VA.

“Q: And then under the section called ‘UC Academic 

Employment’ in the middle of the page. [¶] Do you see 

that?

“A: Yes.

“Q: It refers to the various titles that Dr. Richman held 

during his employment[,] right?

“A: Yes.

“Q: And if you go over to the right-hand column, . . . .

“A: Yes.

“Q: [I]t lists in the department column ‘VA’ in 

parentheses[,] right?

“A: Correct.

“Q: Why do you think that’s listed there?

“A: Because it means that the time spent was 100 percent 

at the VA.” 

Moreover, these documents are not used for payroll. They are 

“employment history,” kept in the Richman’s personnel file. Bailey cautioned 

to not confuse the zero percent UC “appointment” with the distinct issue of 

hours he actually worked:

“Remember, this is not a payroll document. That is an 

academic summary page. So it’s saying that his 

appointment is a hundred percent at the VA. It’s not 

saying that he—that he never worked at the university.” 
26

In a related argument, Richman points to other parts of Bailey’s 

testimony where he stated that the Compensation Plan applies only to 

faculty having “50 percent or more” UC appointment. Because it is 

undisputed that Richman was in the Compensation Plan, he contends that 

means he had at least a 50 percent UC appointment. However, Bailey’s 

testimony on this point is self-contradictory and confusing. In a portion of 

the reporter’s transcript that Richman ignores, Bailey also testified, “I might 

add that people can be in the plan at zero percent time because the plan is 

governed by title of the faculty. So all faculty titles in Health Sciences are in 

the plan including Professor in Residence.” (Italics added.) 

In any event, it is unnecessary to grapple with Bailey’s testimony on 

this point—the Compensation Plan itself is in evidence. Like the UCRP, 

having been promulgated by the Regents in governing its internal affairs, it 

has the force and effect of statute. (See Lachtman v. Regents of University of 

California (2007) 158 Cal.App.4th 187, 198 (Lachtman) [“the University 

academic personnel policies controlled the terms of . . . employment and ‘have 

the force and effect of statute.’ ”].) Parts B and C of the Compensation Plan, 

entitled Membership and Eligibility respectively, provide that UCSD medical 

school faculty—like Richman—who had patient care responsibilities at the 

VA and concurrently held faculty appointments were governed by the 

Compensation Plan. In the 1972 Compensation Plan applicable here, there is 

no 50 percent UC appointment criteria.8 

8 In closing argument, the Regents’ lawyer intimated that the 

Compensation Plan was later amended to require a 50 percent UC 

appointment. There is no evidence of that in the record; but if true, that 

might explain Bailey’s inconsistent testimony on the point. In closing 

argument, the Regents’ lawyer noted, “Bailey didn’t give in his testimony 

what period of time that 50 percent triggered in the plan . . . .” 
27

Last, Richman asserts that the trial court found he “qualified” as an 

Eligible Employee under “three separate clauses” of Paragraph 2.15(i). While 

this is true, it does not advance Richman’s argument because each of those 

clauses requires at least a 50 percent university appointment. The first 

clause requires the 50 percent UC appointment to run “for an indefinite 

period,” the second, “for a definite period of one year or longer,” and the third, 

“for a shorter definite period with the reasonable prospect of renewal or 

extension.” 

Part 2: 1992 through 2019

A. Additional Factual Background

Under the UCRP, the amount of service credit accrued each fiscal year 

is a fraction less than or equal to one. The numerator is the eligible 

employee’s “Covered Compensation.” The denominator is his or her 

“Permissible Compensation:”

“The amount of Credited Service earned by a Member for 

any fiscal year shall be equal to the ratio of his Covered 

Compensation for the fiscal year to his Permissible 

Compensation for the fiscal year. The maximum amount of 

Credited Service for any fiscal year shall not exceed one 

year . . . .” 

“Permissible Compensation” is defined as the full-time Covered 

Compensation for the employee’s position:

“Permissible Compensation means the monthly amount of 

Covered Compensation which a Member would earn if 

employed on a full-time basis and if he worked full time.” 

Assuming the employee is “Eligible” under paragraph 2.15, to 

determine each year’s service credit, one must first determine the employee’s 

Covered Compensation. The larger the Covered Compensation, the larger 

the fraction and amount of service credit. When Covered Compensation 
28

equals or exceeds Permissible Compensation, the employee earns the 

maximum of one service credit for that fiscal year. 

The amount of Richman’s “Permissible Compensation” is established by 

salary scales the court received in evidence. The litigation issue, therefore, is 

the amount of his “Covered Compensation.”

Under the 1976 UCRP, Covered Compensation is defined as:

“[T]he total monthly remuneration which a Member 

receives from the University for his regular and normal 

appointment . . . .” 

However, Covered Compensation excludes:

“Remuneration which exceeds 100% of the salary . . . for the 

position to which a Member has been appointed . . . .” 

Also addressing “Covered Compensation,” under the heading, “Retirement 

Benefits,” the Compensation Plan provides:

“The additional compensation paid in addition to the base 

salary on the fiscal-year clinical salary scale is not included 

in “covered compensation” for purposes of establishing 

regular retirement benefits . . . .” [¶] . . . [¶]

“The incentive compensation is not included in ‘covered 

compensation’ for purposes of establishing regular 

retirement benefits . . . .” 

Based upon these provisions, the university considers Richman’s 

Covered Compensation to consist of X (base salary) as well as its multipliers 

(X′ and Y′). However, Y (incentive compensation) and Z (additional 

compensation) are not Covered Compensation. 

Richman’s payroll documents reflect these distinctions. For example, 

his 1978‒1979 payroll document is copied below:
29

The notation “Y B/A” indicates he was paid additional compensation (Y) in a 

negotiated amount. The document also shows “NON SALARIED”; no X 

compensation is indicated. In sum, the Regents contend Richman was not 

paid any Covered Compensation that year. 

The university determined that Richman received Covered 

Compensation each year from 1994 to his retirement in 2019. Based on those 

amounts (as distinguished from gross UC pay, which includes Y and Z 

income), the university credited him with 14.2177 years of service credit. 

In contrast, Richman contends that his gross UC earnings, which 

include Y and Z income, constitute Covered Compensation. His argument is 

in two parts. First, he points to the plain language in UCRP’s definition of 

Covered Compensation—“total monthly remuneration which a Member 

receives from the University.” Second, he argues that the UCRP alone—not 

the Compensation Plan—governs because the UCRP does not incorporate the 

Compensation Plan by reference, nor state that in the event of a conflict or 

ambiguity, “ ‘which policy prevails.’ ” Elaborating on this second point, 

Richman acknowledges that the Compensation Plan narrows the definition of 

Covered Compensation by excluding Y and Z income. But he 

(1) characterizes the Compensation Plan as “extrinsic evidence” of the 
30

Regents’ intent in enacting the UCRP, (2) asserts this “extrinsic evidence” 

creates ambiguity in what constitutes Covered Compensation under the 

UCRP, and (3) invokes the rule that extrinsic evidence cannot be used to 

“create an ambiguity . . . and then us[e] the original extrinsic evidence to 

construe an ambiguity created in itself.” (Italics added in first quote.)

The trial court agreed with Richman’s analysis. The court was 

particularly troubled by the fact that although the UCRP was amended in 

1976, it contains “absolutely no reference” to the 1972 Compensation Plan. 

Because the UCRP itself does not define Covered Compensation in terms of 

X, Y, and Z components, the court determined that a “conflict” exists between 

the UCRP and the Compensation Plan. Finding an “inherent ambiguity” 

resulting from that conflict that “cannot be reconciled,” the court essentially 

threw out the Compensation Plan on the grounds that ambiguities in a 

pension statute must be resolved in favor of the person seeking the pension. 

For the same principle, the court also invoked Civil Code section 1654, which 

states that when interpreting a contract, in cases of uncertainty the language 

should be interpreted against the party who caused the uncertainty to exist. 

B. The Regents Have Not Forfeited This Issue

Richman contends the Regents have “waived” any challenge to the 

amount of service credit the court awarded by failing to specifically object to 

the proposed statement of decision on this ground. This argument doubly 

fails. First, no objection to the statement of decision was necessary to 

preserve the point on appeal. Objections to a proposed statement of decision 

are appropriate only where it “does not resolve a controverted issue” or is 

“ambiguous.” (Code Civ. Proc., § 634.) Neither is involved here. Second, 

even if an objection were necessary, the Regents did so. In a filing entitled, 
31

“Objections to the Court’s Proposed Statement of Decision,” the Regents 

stated:

“Dr. Richman admitted he included all of his actual 

earnings for every year in the ‘Covered Compensation’ 

column . . . which is not consistent with the University’s 

consistent interpretation that service credit computation 

concerns base salary compensation.” 

C. The Compensation Plan is Not “Extrinsic Evidence”; Properly Construed

 with the UCRP, Covered Compensation Excludes Y and Z Earnings.

The fundamental mistake in Richman’s argument and the trial court’s 

ruling is they both treat the Compensation Plan as “extrinsic evidence” of the 

Regents intent in enacting the UCRP, or alternatively as a contract. But the 

Compensation Plan is not a contract. “Employment by the State of 

California, including employment by the University of California, is held by 

statute rather than by contract.” (Lachtman, supra, 158 Cal.App.4th at 

p. 198.) Nor is the Compensation Plan “extrinsic evidence” of the Regents’ 

intent with respect to the UCRP. Rather, for the same reasons the UCRP

itself is treated as a statute, the Compensation Plan too has the force and 

effect of statute. This is because the Regents “have rulemaking and 

policymaking power in regard to the University; their policies and procedures 

have the force and effect of statute.” (Kim v. Regents of University of 

California (2000) 80 Cal.App.4th 160, 165.)

Accordingly, in considering how the UCRP interacts with the 

Compensation Plan, familiar rules of statutory interpretation apply. 

Statutes governing a single subject “ ‘must be read together and so construed 

as to give effect, when possible, to all the provisions thereof.’ ” (Turner v. 

Association of American Medical Colleges (2011) 193 Cal.App.4th 1047, 1056.) 

Statutes “ ‘should be interpreted in such a way as to make them consistent 

with each other, rather than obviate one another.’ ” (City of Martinez v. 
32

Workers’ Comp. Appeals Bd. (2000) 85 Cal.App.4th 601, 616.) And 

“[p]otentially conflicting statutes must be harmonized whenever possible.” 

(Department of Fair Employment and Housing v. Superior Court (2020) 

54 Cal.App.5th 356, 384.)

Thus, instead of declaring an “irreconcilable conflict” between the 

UCRP and the Compensation Plan and resolving it by throwing out the 

Compensation Plan, the trial court was required to harmonize them if at all 

possible. In doing so, it is important to note that the UCRP is a generally 

applicable retirement program. It applies statewide, to all UC employees—

not just to UCSD medical school faculty. Thus, it is hardly surprising that

the UCRP does not define “Covered Compensation” with terms like X, Y, and 

Z, which are terms specific to physician faculty.

Viewing the UCRP and Compensation Plans as complimentary rather 

than antagonistic—with the UCRP providing general rules, and the 

Compensation Plan having specific application to UCSD medical school 

faculty—the proper interpretation is relatively simple. “[S]pecific provisions 

take precedence over more general ones.” (Stoetzl v. Department of Human 

Resources (2019) 7 Cal.5th 718, 748.) And if conflicting statutes cannot be 

reconciled, “ ‘more specific provisions take precedence over more general 

ones.’ ” (Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 634.)

The UCRP excludes from covered compensation “Remuneration which 

exceeds 100% of the salary . . . for the position to which a Member has been 

appointed . . . .” The UC salary scales—that is, “Permissible 

Compensation”—are base salary. They do not include incentive or additional 

compensation. The Compensation Plan provides that “additional 

compensation in addition to the base salary . . . is not included in ‘covered 

compensation’ for purposes of establishing regular retirement benefits.” 
33

Read together with the goal of harmonizing the provisions, and with the 

specific governing the general, the only reasonable conclusion is that 

Richman’s Y and Z compensation “exceeds 100% of the [base] salary” for his 

appointed UC position and, therefore, “is not included in ‘Covered 

Compensation.’ ” 

It is, therefore, unnecessary to consider doctrines that would resolve 

ambiguous retirement provisions in favor of the pensioner. There is no 

ambiguity. But even if there were some doubt, the trial court’s reliance on 

Civil Code section 1654 was misplaced. Neither the UCRP nor the 

Compensation Plan is a contract. Nor was it appropriate to rely on the rule 

that pension statutes are generally construed in favor of the person seeking 

the pension. (See, e.g., San Francisco Fire Fighters v. Retirement Board 

(1983) 143 Cal.App.3d 604, 609.) The purpose of that rule is to effectuate the 

presumed legislative intent to favor the pensioner. (Overend v. Board of 

Administration (1991) 232 Cal.App.3d 166, 171.) Here, however, it is 

unnecessary to presume the intent of the legislative body. The Regents has 

clearly expressed its intent that Y and Z income is not Covered 

Compensation. Where “the reason of a rule ceases, so should the rule itself.” 

(Civ. Code, § 3510.)9

9 In an unopposed request for judicial notice, Richman asks we judicially 

notice 46 pages of the prior 1971 version of the UCRP. Without analysis, he 

contends this document “helps to explain and interpret” the 1976 UCRP. He 

also requests judicial notice of eight other documents that he contends show 

that the Regents “did not collect employee or employer contributions” from 

November 1990 through April 2010. The request for judicial notice is denied 

because the documents are not relevant to disposition of this appeal. 

(Unzueta v. Akopyan (2019) 42 Cal.App.5th 199, 221, fn. 13.)
34

D. Reversal with Directions is the Appropriate Disposition

Richman’s theory at trial was that the Covered Compensation can only 

be interpreted to mean his total or gross UC pay, as evidenced by his W-2’s 

and in some cases his UC payroll record of gross pay. He testified that his 

service credits should have been calculated based on “the income received 

from the university” and for the period 2007 to 2017, which was based on his 

W-2 amounts of gross pay. Richman claimed it was impossible for him to 

segregate his Y and Z income from X, X′ and Y′ earnings based on documents 

he “could get from the university.” 

We are frankly at a loss to understand how Richman can fairly claim 

that university payroll records do not distinguish his Covered Compensation 

for retirement purposes from gross pay. One is right above the other:

Even a person not versed in payroll parlance could reasonably infer 

that RETR has something to do with retirement. Consistent with this 

commonsense interpretation, Kathryn Brumfield, a UCSD payroll 

department supervisor, testified that “for retirement purposes in the UCRP, 

the $151,545 figure would be used as opposed to the $246,189 figure for 

covered compensation.”

On cross-examination, the Regents’ lawyer showed Richman this 

payroll document:

Richman testified he used “the total gross YTD figure” of $172,435.26 in 

calculating the service credits he claims and asserted, somewhat incredibly, 
35

that he had “no idea” what “RETR GROSS YTD” represents. (Italics added in 

second quote.) 

The trial court completely adopted Richman’s argument that his service 

credits should have been calculated based on his gross UC pay constituting 

his Covered Compensation. The court incorporated Richman’s calculations 

into the statement of decision and judgment. In so doing, the court erred 

because, as a matter of law, Richman’s Covered Compensation under the 

UCRP and the Compensation Plan is not the same as his gross UC pay. In 

short, Richman was required to establish service credits based on this 

formula: 

(Covered Compensation) ÷ (Permissible Compensation)

But instead he proved something else: 

(Gross Compensation) ÷ (Permissible Compensation)

In the opening brief, the Regents ask us to reverse the judgment with 

directions to enter judgment in their favor, or “at a minimum” remand with 

directions to recalculate the service credit owed. Richman’s brief does not 

address the disposition, except to urge that the judgment be “affirmed in 

full.” 

When the plaintiff has had full and fair opportunity to present the case, 

and the evidence is insufficient as a matter of law to support the judgment, a 

judgment for defendant is required and no new trial is ordinarily allowed, 

unless there is newly discovered evidence of the type that would have 

justified the grant of a motion for new trial. (Cardinal Health 301, Inc. v. 

Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 153‒154; see also Acqua 

Vista Homeowners Association v. MWI, Inc. (2017) 7 Cal.App.5th 1129.) 

Here, Richman had a full and fair opportunity to litigate his claimed service 

credits. Payroll records in evidence contain this information. And that could 
36

not have come as any surprise. Five months before trial, his attorney 

deposed the payroll department supervisor who so testified. 

Moreover, although the record indicates that some payroll information 

over the course of 42 years was missing, Richman testified that he ultimately 

obtained record of earnings for all years except part of 1984. And Ricks 

testified that the university sent Richman retirement account statements 

spanning the period 1980 through 2018. 

For obvious tactical reasons, Richman tried the case on the theory that 

his gross UC pay constituted Covered Compensation. Since we have 

concluded that theory fails as a matter of law and Richman had a full and 

fair opportunity to try the case on the correct legal basis, retrial on a different 

theory is unwarranted. This disposition makes it unnecessary to consider the 

Regents’ claims that the action is time-barred, and we express no opinion on 

those issues. 

DISPOSITION

The judgment is reversed with directions to enter a new judgment in 

favor of the Regents. The Regents are entitled to costs on appeal.

DATO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

IRION, J.