Akintimoye v. CalPERS

Filed 9/19/07 Akintimoye v. CalPERS CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Paul M. Bryant, Jr., Judge. Affirmed.

Samuel A. Akintimoye, in pro. per., for Plaintiff and Appellant.

Peter H. Mixon, General Counsel, and Rory J. Coffey, Senior Staff Counsel, for Defendant and Respondent.

Samuel A. Akintimoye (Akintimoye) appeals from the judgment denying a petition for a writ of administrative mandamus (Code Civ. Proc.,  1094.5) directed at the California Public Employees Retirement System Board of Administration (the Board). On appeal, he raises the following issues:

(1) Whether any action or failure to act by the Board regarding an alleged improper ex parte communication between California Public Employees Retirement Systems (CalPERS) counsel and the Administrative Law Judge Greer Knopf prior to the issuance of her decision in this case violated his due process rights; and

(2) Whether the decision of the trial court is supported by substantial evidence.

I. PROCEDURAL BACKGROUND AND FACTS

On January 6, 2000, Akintimoye suffered a fall during the course of his duties as an associate management auditor for the Department of Conservation[,] [Division of Recycling,] of the State of California. As a result, he sustained injuries to his head, neck, back, and extremities. He filed an application with [CalPERS] for disability retirement on June 21, 2001. Concluding that Akintimoye was not substantially incapacitated for the performance of [his] job duties as a Management Auditor, the Board denied the application, and Akintimoye appealed the decision.

Akintimoyes appeal was the subject of a hearing before an administrative law judge (ALJ) who heard testimony from Akintimoye, three physicians and other witnesses. Various documents were offered and received into evidence. After a thorough hearing lasting two days, the ALJ issued a Proposed Decision that denied Akintimoyes appeal and affirmed the determination of CalPERS that he was not substantially incapacitated from performing his usual and customary job duties. The Proposed Decision was adopted by the Board on August 20, 2003.

Akintimoye filed a petition for writ of administrative mandate on September 16, 2003. The trial court heard and determined the matter on June 30, 2004. Judgment was entered on July 20. Akintimoye appealed from the judgment and this court issued an opinion on September 15, 2005. In our opinion, we found that the trial court applied an incorrect standard of review in denying Akintimoyes writ and thus reversed and remanded for further proceedings.

On remand, the trial court heard the matter on June 12, 2006. After having reviewed the parties respective briefs and having heard oral argument, the trial court denied Akintimoyes petition. Judgment was filed on July 3, 2006. Akintimoye appeals.

II. ALLEGED EX PARTE COMMUNICATION

An attorney may not communicate with a judge or a judicial officer regarding the merits of a contested matter currently before the judge or judicial officer, except in certain circumstances. (Rule 5-300(B)(1), Rules of Prof. Conduct (rule 5-300).) Administrative law judges are considered judges or judicial officers for the purposes of rule 5-300. (Mathew Zaheri Corp. v. New Motor Vehicle Bd. (1997) 55 Cal.App.4th 1305, 1316-1317.)

Akintimoye contends that an ex parte communication occurred between the ALJ and CalPERSs counsel that constitutes misconduct and grounds for overturning the ALJs decision. We disagree.

According to Akintimoye, after the conclusion of the hearing, CalPERSs counsel met with the ALJ at a location about 100 miles away, without [his] presence, and without the ALJ and [CalPERS] counsel keeping any record of their meeting. He claims that during this meeting, CalPERSs counsel and the ALJ discussed her pending decision in the matter of [Akintimoyes] application for disability retirement. Finally, Akintimoye contends that CalPERSs counsel later admitted . . . that he discussed [Akintimoyes] pending case with the ALJ prior to the ALJ issuing her decision.

Turning to the record before this court, we note that Akintimoye first made this allegation in his Petition for Writ of Mandamus filed in March 2004. In such petition, he merely argued that the ALJ erred by engaging in Ex Party [sic] communication with . . . counsel for [CalPERS], prior to issuing her opinion. In response, CalPERS noted that the evidence in support of Akintimoyes claim was his own declaration. Nonetheless, CalPERS acknowledged that there was a communication, but denied that it was regarding the instant matter. According to CalPERS, the ALJ simply informed counsel for the Board that she had A) prepared her Proposed Decision[;] B) that the Proposed Decision was being typed by staff[;] and C) that the Proposed Decision should be in final form and mailed in the near future. In reply, Akintimoye stated that he learned of the ex party [sic] communication on or about April 3, 2003[,] [and] [t]he ALJ did not issue her decision until April 30, 2003. Moreover, the Proposed Decision of the ALJ was not adopted by the Board until August 20, 2003.

Absent from the record is any evidence as to what action Akintimoye took, if any, to investigate the alleged improper ex parte communication. Further, there is no evidence as to what was said, how Akintimoye learned about it, or why he learned about it. Upon discovering the communication, Akintimoye did not write a letter to counsel for CalPERS expressing his concerns and asking for a written statement or declaration from counsel describing the contents of the communication. He did not seek to depose counsel. He did not write a letter to the ALJ or the Presiding ALJ to complain. Instead, he did nothing.

The fact that Akintimoye has alleged that counsel for CalPERS and the ALJ discussed her pending decision is insufficient. The appellant bears the burden of providing an adequate record for review. Because the trial courts judgment is presumed to be correct, the appellant must overcome this presumption by presenting a record that affirmatively demonstrates error. The appellants failure to provide an adequate record on any issue requires that the issue be resolved against him. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80.)

Notwithstanding the above, not all ex parte communications are prohibited. (Mathew Zaheri Corp. v. New Motor Vehicle Bd., supra, 55 Cal.App.4th at p. 1317.) Instead, judicial officers are allowed to initiate ex parte communications, where circumstances require, for scheduling, administrative purposes, or emergencies that do not deal with substantive matters . . . . (Id. at p. 1315, fn. 6; Cal. Code Jud. Ethics, canon 3(B)(7)(d).) Moreover, if an ex parte communication is found to violate the law of legal ethics, reversal is warranted only where such misconduct is shown to be prejudicial as a miscarriage of justice or as intentional and sufficiently heinous to warrant reversal as a punishment or because it shows bias on the part of the tribunal. [Citation.] (Mathew Zaheri Corp. v. New Motor Vehicle Bd., supra, 55 Cal.App.4th at p. 1315.) In rejecting Akintimoyes claim at the lower level, the trial court stated, [Akintimoye] has presented no evidence that the limited timing procedural discussion described by either himself or [counsel for CalPERS] affected the outcome of the [ALJs] decision. There is no showing of any harm or prejudice by [Akintimoye]. We agree.

III. SUFFICIENCY OF EVIDENCE

A. Standard of Review.

The role of the trial court here was to exercise its independent judgment on the evidence in the case. [Citations.] It is then our task . . . to review the record to determine whether the trial courts findings are supported by substantial evidence. [Citation.] The trial courts decision should be sustained if it is supported by credible and competent evidence. [Citation.] [Citation.] (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 544.)

B. Discussion.

Akintimoye contends the evidence is insufficient to support the finding that he does not qualify for disability retirement. He claims that the only evidence [that CalPERS] presented in opposition to [Akintimoyes] claim for disability retirement based on Hypertension, was the testimony of Dr. Chiayu Chen.^[1] According to Akintimoye, Dr. Chen was not competent to render an opinion regarding whether [Akintimoye] is disabled from performing his job duties because Dr[.] Chen admitted that he does not know [Akintimoyes] job duties. In support of this claim, Akintimoye refers to Dr. Chens testimony before the ALJ wherein he admitted a lack of understanding as to what Akintimoyes job function was. He further complains that Dr. Chens opinion was based on the wrong legal standard, i.e., that Akintimoye does not have a substantial disability preventing him from performing the essential functions of his job versus a substantial incapacity to perform usual and customary job duties.^[2]

In response, CalPERS points out that Akintimoyes job duties were presented to the ALJ and to the trial court. According to exhibit 20, the job requires constant sitting; occasional walking, standing, bending at the neck and waist, and repetitive use of hands; and no squatting, climbing, kneeling, crawling, twisting the neck or waist, power gripping with the hand, pushing, pulling or reaching above shoulder level. Occasionally, he is required to carry up to 10 pounds, and he must drive and work around equipment and machinery. A position duty statement, signed by Akintimoye, describes the required tasks of his job as spending the majority of his time (45 percent) conducting field audits of recycling centers. This required traveling, planning and performing complex and difficult audits, and reviewing and analyzing the records of certified recycling program participants. After conducting a field audit of a particular recycling center, Akintimoye was then required to spend another 30 percent of his time preparing reports. CalPERS points out that Annis S. White, also an Associate Management Auditor, described the essential duties to the ALJ. Moreover, CalPERS notes that neither Akintimoye nor any witness testified that he was physically incapable of performing the tasks required of his position. (Cf. Mansperger v. Public Employees Retirement System (1970) 6 Cal.App.3d 873, 877, fn. 2.)

CalPERS points out that the trial court was directed to the evidence presented to the ALJ which showed that Akintimoyes orthopedic condition was not disabling. Specifically, the examining physician, Steven Nagelberg, M. D., did not find any objective evidence to confirm Akintimoyes complaints of neck and low back pain. The MRI of Akintimoyes lumbar spine was considered to be unremarkable. Dr. Nagelberg opined that Akintimoye is not substantially incapacitated to perform his . . . job duties.

Dr. Chen also examined Akintimoye, noting his history of hypertension that was diagnosed in 1997, and which was being treated. Hypertension, commonly referred to as high blood pressure[,] is a medical condition in which the blood pressure is chronically elevated.^[3] Having been diagnosed with hypertension in 1997, Akintimoye continued to work as an Associate Management Auditor until his accident. Dr. Chen opined that the hypertension should be able to be managed with medical management with ongoing medications, as well as life-style changes, which should include weight reduction. According to Dr. Chen, Akintimoye does not have a substantial disability that would prevent him from performing the essential functions of an associate management auditor.

Notwithstanding the above, Akintimoye relies on Dr. Stanley Majchers examination (on October 19, 2000) and report in support of his claim of a disability.^[4] However, Dr. Majcher examined Akintimoye for purposes of his workers compensation benefits, not for CalPERS disability retirement benefits. Dr. Majcher acknowledged that Akintimoyes hypertension had been diagnosed for some years and that Akintimoye had been able to control this disease. Dr. Majcher opined that Akintimoye has a prophylactic work restriction precluding exposure to undue emotional stress. However, CalPERS contends that case law has stated [that this restriction] is not sufficient to entitle someone to a disability retirement. Restrictions that are recommended only because of a potential for future aggravation of a present condition do not equate with being disabled. (Mansperger v. Public Employees Retirement System, supra, 6 Cal.App.3d at pp. 876-877; Hosford v. Board of Administration (1978) 77 Cal.App.3d 854, 862-863.)

Based on the record before this court, we find sufficient evidence to support the trial courts decision.

IV. DISPOSITION

The judgment is affirmed. Respondent to recover costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

RICHLI

J.

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^[1] In his opening brief, Akintimoye references Dr. Chens testimony; however, he fails to provide this court with sufficient citation to the record. An appellate court is not required to search the record to determine whether or not [it] supports appellant[s] claim of error. It is the duty of counsel to refer the reviewing court to the portions of the record which support appellant[s] position. [Citations.] (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1161.)

^[2] We note that Akintimoye has not provided this court with the transcript of the hearing before the ALJ. Thus, our review is limited to the documents identified in the Notice of Lodgement of Administrative Records and the Appellants Appendix.

The burden is on Akintimoye to demonstrate error by an adequate record. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) Failure to provide an adequate record requires that the issues on appeal be resolved against the appellant. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296.) When the appellate record is devoid of necessary documents, the appellant cannot affirmatively demonstrate error by the trial court. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [Appellant challenged the trial courts order granting a motion to strike but failed to include copies of the motion and opposing papers and only had the notice of ruling in the record.].)

A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.] (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564, italics omitted.) [I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed. [Citations.] (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)

^[3] See: http://en.wikipedia.org/wiki/Hypertension.

^[4] Again, we note that Akintimoye references the background and testimony of a witness (namely, Dr. Majcher); however, he fails to provide this court with sufficient citation to the record. As we stated previously, [a]n appellate court is not required to search the record to determine whether or not [it] supports appellant[s] claim of error. It is the duty of counsel to refer the reviewing court to the portions of the record which support appellant[s] position. [Citations.] (Tavaglione v. Billings, supra, 4 Cal.4th at p. 1161.)