Suess v. California Public Employees Retirement System CA4/3

California Court of Appeal Dec 12, 2023 No. G062730Unpublished

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Holding. An employee terminated for cause is ineligible for industrial disability retirement unless they had a matured, unequivocal right to such benefits prior to their termination. Because the appellant failed to contest his termination and did not establish a matured right to disability retirement before his discharge, the denial of his application was proper.

Issues

Whether a public employee terminated for cause is eligible for industrial disability retirement when the termination was not the result of a disabling condition.
Whether the appellant established a matured right to disability retirement that survived his termination for cause.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“where, as here, an employee is fired for cause and the discharge is neither the ultimate result of a disabling medical condition nor preemptive of an otherwise valid claim for disability retirement, the termination of the employment relationship renders the employee ineligible for disability retirement”

“Smith held the disability evidence must be “unequivocal” to constitute a matured right.”

“The ALJ correctly observed in her ruling, “an applicant for disability retirement has the burden of proving . . . that he is entitled to it.””

Filed 12/12/23 Suess v. California Public Employees Retirement System CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

JAMES SUESS,

Plaintiff and Appellant, G062730

v. (Super. Ct. No. CIVSB2106412)

CALIFORNIA PUBLIC EMPLOYEES OPINION RETIREMENT SYSTEM et al.,

Defendants and Respondents.

Appeal from an order of the Superior Court of San Bernardino County, David S. Cohn, Judge. Affirmed. Law Offices of Linda Louise Scott and Linda Louise Scott for Plaintiff and Appellant. Matthew G. Jacobs, Elizabeth Yelland and Austa Wakily for Defendant and Respondent California Public Employees Retirement System (CalPERS).

Lozano Smith, Steve Ngo and Jessica Serrato for Defendant and Respondent City of Pomona. * * * James Suess, a former police corporal with respondent City of Pomona (City), appeals from the trial court’s denial of his petition for a writ of mandate to direct the CalPERS Board of Administration to grant his application for industrial disability retirement. Suess filed the application nearly 20 months after he had been terminated for cause by the City; he failed to contest his termination. As we explain, the trial court properly denied Suess’s demand for mandate; we therefore affirm the court’s order.

FACTUAL AND PROCEDURAL BACKGROUND In May 2016, the Pomona Police Department Internal Affairs Unit received a citizen complaint against Suess. The complaint, filed by Vasken Asadourian, a relative of one of Suess’s neighbors, alleged that Suess assaulted him, resulting in injury to his right arm and the left side of his head. Although Suess had a long-standing dispute with his neighbors, he had never met Asadourian before the alleged incident. Sergeant William Knight investigated the allegations and produced a report. Suess claimed he acted in self-defense. Suess also provided Sergeant Knight with video footage from his residence, which captured the incident. On July 9, 2016, Suess’s neighbor, Neshan Boymoushakian, filed another complaint against Suess regarding his harassment of his family. Sergeant Knight also investigated these allegations and produced another report. Suess was notified of both complaints and was interviewed during both investigations. On August 9, 2016, Suess was placed on paid administrative leave pending completion of these investigations. On June 7, 2017, the City served Suess with a Notice of Intent to Terminate on the basis of misconduct including battery, unabated harassment of his neighbor, and

Suess v. California Public Employees Retirement System CA4/3

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JAMES SUESS,

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