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Khan v. Los Angeles City Employees' Retirement System

August 3, 2010


APPEAL from a judgment of the Superior Court of Los Angeles County, Geoffrey T. Glass, Judge. (Judge of the Orange Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions. (Los Angeles County Super. Ct. No. BS108965).

The opinion of the court was delivered by: Johnson, J.


The Los Angeles City Employees Retirement System (LACERS) appeals from a judgment in favor of Abraham Khan (Khan) granting his petition for writ of mandate compelling LACERS to approve his request for concurrent deferred retirement benefits with LACERS and the Judicial Retirement System (JRS).*fn1 The sole issue on appeal is whether LACERS and JRS have reciprocity provisions such that Khan, a Judge of the Superior Court of Los Angeles County who had worked for the City of Los Angeles (City) as a City Attorney, may retire from LACERS at his higher judicial salary. We conclude they do not, and reverse and remand with directions that the trial court enter judgment in favor of LACERS.


1. Allegations of Judge Khan's Petition for Writ of Mandate

Respondent Khan is a member of both LACERS and JRS. From approximately 1978 through 1988, Judge Khan worked in various capacities for the City, with his last position being that of Deputy City Attorney. Upon leaving employment with the City, Judge Khan elected not to cash out his benefits with LACERS. In 1988, Judge Khan was appointed a Judge of the Los Angeles Municipal Court and was elevated to the Superior Court in 2000. By reason of his judicial appointments, Judge Khan was eligible to receive benefits under JRS.

In 2004, Khan applied to LACERS to determine his eligibility for concurrent retirement from LACERS and JRS at his higher judicial salary. LACERS informed him that LACERS did not have reciprocity with JRS.

On May 21, 2007, Judge Khan filed a petition for writ of mandate (Code of Civ. Proc., § 1085) to compel LACERS to pay him retirement benefits based upon his judicial salary earned while a member of JRS. Judge Khan's petition alleged that pursuant to the reciprocity provisions of the statutes governing the state's Public Employees Retirement System (PERS), and statutes governing county and city retirement systems, LACERS had established reciprocity with PERS and all other systems having reciprocity with PERS. Judge Khan further alleged that Assembly Bill No. 1099 (AB 1099), passed on October 2, 2001, amended section 20639 (applicable to PERS)*fn2 to provide that compensation earned while a member of JRS would be considered compensation earnable by a member of PERS for purposes of computing final compensation if the member retired concurrently under both systems.*fn3 Khan alleged that because PERS and LACERS had reciprocity, AB 1099 specifically extended reciprocity from JRS to LACERS, and that such amendments were retroactive as a matter of law.

Khan sought a writ of mandate commanding LACERS and PERS*fn4 to approve his eligibility for concurrent deferred retirement with LACERS and JRS, at such time as he elected to retire from the bench, with his benefits under both systems to be computed using his highest salary as a judge.

2. Hearing on the Petition*fn5

Judge Khan argued that under statutory reciprocity provisions granting reciprocal benefits to city and county agencies that had reciprocity agreements with PERS, in July 1997, LACERS and PERS entered into a reciprocal agreement. Under the applicable statutes, that agreement gave LACERS not only reciprocity with PERS, but with all other agencies having reciprocity with PERS. To implement this agreement, the City adopted Ordinance No. 171656 which amended Los Angeles Administrative Code section 4.1065 to provide for such reciprocity between LACERS and PERS.

In support of his contention that the reciprocity between PERS and LACERS extended to JRS, Judge Khan contended that AB 1099 added the Judges' Retirement System II (JRS II) to the reciprocal provisions of PERS and as a result, members of JRS and JRS II had reciprocity with city and county retirement systems which already had reciprocity with PERS, such as LACERS.*fn6 Judge Khan argued the fact that LACERS and JRS did not have a contractual agreement for reciprocity was irrelevant because this statutory scheme mandated reciprocity.

In opposition, the City contended that Los Angeles Administrative Code section 4.1065 did not create reciprocity between LACERS and JRS because any reciprocity under LACERS was extended only to those retirement systems which agreed, by contract entered into pursuant to statutory provisions governing PERS and the county retirement systems, to provide reciprocal benefits to LACERS members. Furthermore, AB 1099 unambiguously did not create statutory reciprocity with LACERS via PERS's statutory reciprocity provisions with other city and county agencies because JRS did not grant reciprocal retirement to PERS members as required by those statutes. To support its position, the City also relied on a 2007 PERS publication, "When You Change Retirement Systems," that stated JRS and JRS II did not have a formal reciprocity agreement with PERS.

3. Trial Court Ruling

The trial court granted Judge Khan's petition. The court found the statutory language unambiguous, and did not consider the extrinsic evidence presented by the parties in reaching its conclusion, although it noted the legislative history of AB 1099 supported its conclusion that AB 1099 intended to "legislate reciprocity between JRS and [PERS], notwithstanding PERS' contrary interpretation in its published materials." Specifically, the court noted that Ordinance No. 171656, adding section 4.1065 to the Los Angeles Administrative Code*fn7 adopted uniform reciprocal provisions, and provided members of LACERS with reciprocal benefits from any other public agency system adopting similar reciprocal provisions and who by contract agreed to extend the benefits of that system to the members of LACERS. The court found PERS and LACERS had reciprocal benefits, and under AB 1099 because LACERS had reciprocity with PERS, it therefore had reciprocity with JRS and JRS II.



A writ of traditional mandamus (Code Civ. Proc., § 1085) may be used to compel the performance of a duty that is purely ministerial in nature or to correct an abuse of discretion. (American Board of Cosmetic Surgery v. Medical Board of California (2008) 162 Cal.App.4th 534, 547.) The trial court and appellate court perform the same function in a traditional mandamus action, and we therefore do not undertake a review of the trial court's findings or conclusions. (Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1393.) We consider the record to determine whether LACERS abused its discretion, namely, whether its decision was arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair. (Bright Development v. City of Tracy (1993) 20 Cal.App.4th 783, 795; see also Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361.) Indeed, such nonadjudicatory acts "are accorded the most deferential level of judicial scrutiny." (Pulaski v. Occupational Safety & Health Stds. Bd. (1999) 75 Cal.App.4th 1315, 1331.) Unless otherwise provided by law, "the petitioner always bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085." (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.) Thus, it is petitioner's burden to establish that LACERS's decision was arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair. (See Fair v. Fountain Valley School Dist. (1979) 90 Cal.App.3d 180, 187.)


We review issues of statutory interpretation de novo on appeal where there are no disputed factual issues. (Alesi v. Board of Retirement (2000) 84 Cal.App.4th 597, 601.) Any interpretation of compensation that would affect retirement benefits may be applied ...

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