Filed 11/14/14 Certified for Publication (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                               DIVISION ONE


MONIQUE HUDSON,                                             B247593, B248983

         Plaintiff and Appellant,                           (Los Angeles County
                                                            Super. Ct. No. BC458667)
         v.

COUNTY OF LOS ANGELES, LOS
ANGELES COUNTY SHERIFF'S
DEPARTMENT, LEROY BACA, and
LOS ANGELES COUNTY EMPLOYEES
RETIREMENT ASSOCIATION,

         Defendants and Respondents.



         Appeal from judgments of the Los Angeles Superior Court, Amy D. Hogue and
Luis A. Lavin, Judges. Judgments reversed with directions.
         Green & Shinee, Elizabeth J. Gibbons, for Plaintiff and Appellant.
         Hausman & Sosa, Jeffrey M. Hausman, Larry D. Stratton for Defendants and
Respondents Los Angeles County Sheriff’s Department, and Leroy Baca, Sheriff.
         Robert S. Van Der Volgen, Jr., Johanna M. Fontenot, Michael D. Herrera for
Defendant and Respondent Los Angeles County Employees Retirement Association.
                                      _________________________
       A former deputy in the Sheriff’s Department of Los Angeles County, while on
temporary disability leave resulting from knee injuries, was discharged from her
employment on grounds later found by the county Civil Service Commission to be
unjustified. During the long Civil Service Commission proceedings leading to its order
restoring her employment, however, the county’s retirement authority granted her a
disability retirement, without benefits, and she thereafter withdrew her accumulated
retirement contributions. Her suit in the Los Angeles Superior Court sought restoration
of her employment as a deputy sheriff, and the retirement authority’s reevaluation of her
disability status in light of her rehabilitation following knee surgeries. She appeals from
trial court rulings and resulting judgments that have thwarted that result.

                                       Background
       On April 1, 2011, appellant Monique Hudson filed a complaint against the
Sheriff’s Department of Los Angeles County and Sheriff Leroy Baca,1 and the Los
Angeles County Employees Retirement Association (LACERA).2 The complaint’s first
cause of action sought specific performance of a contract identified as a written
settlement agreement. The second cause of action consisted of a verified petition for
peremptory writ of mandate seeking the same relief against the Department. Additional
causes of action sought declaratory relief and mandate against LACERA.




       1
         Except as otherwise indicated, all references to the Department include both the
Sheriff’s Department of Los Angeles County and Sheriff Leroy Baca individually.
       2
        LACERA is a public retirement system independent from the County of Los
Angeles, with powers and obligations under the County Employees Retirement Law of
1937, Government Code section 31450 et seq. (CERL), for administration of the
retirement system for specified employees of the County of Los Angeles. (Traub v.
Board of Retirement of the Los Angeles County Employees Retirement Association (1983)
34 Cal.3d 793, 798-799; Board of Retirement v. Superior Court (2002) 101 Cal.App.4th
1062, 1065 & fn. 1.)

                                              2
       Factual Allegations3
       As a factual basis for her suit, Hudson alleged that she became a Los Angeles
County Deputy Sheriff, and member of LACERA, on November 1, 1998. In December
2000 and March 2001, she sustained on-duty service-related injuries to her left and right
knees, respectively, for which she received benefits under Labor Code section 4850.4 In
August 2003, while she was on disability leave from the Department, Hudson’s right
knee was further injured during an off-duty incident in which four sheriff’s deputies
forceably ejected her from a home in which she was living with her boyfriend, another
sheriff’s deputy, after he falsely reported to on-duty deputy sheriffs that she had refused
his request to leave his home.
       In September, 2004, the Department filed an application to LACERA for a
disability retirement on Hudson’s behalf, based on her work-related left knee injury. In
October 2004, Hudson filed her own disability-retirement application, claiming on-duty
injuries to both knees.
       In January 2005, the Department fired Hudson for misconduct, allegedly due to
her physical resistance and use of profane language after being pepper-sprayed during the
August 2003 off-duty incident.5 On February 1, 2005, Hudson appealed her discharge to


       3
         Except as otherwise noted, we state the facts as alleged by Hudson, consistent
with the presumptions that govern our review of the trial court’s rulings at the pleading
stage of the proceedings.
       4
         Labor Code section 4850 provides for leaves of absence of up to a year without
loss of salary for Los Angeles County deputy sheriffs and certain other county employees
who suffer injuries in the course of their duties, in lieu of temporary disability or
maintenance allowance payments.
       5
         According to Hudson’s pleading, the incident occurred in August 2003, when her
live-in boyfriend, also a deputy sheriff, summoned the sheriff’s department to remove
Hudson from his bed and from his home, telling four on-duty deputy sheriffs (including a
sergeant under whom the plaintiff had worked) that she did not live there and that she had
refused his requests that she leave. Based on that false information, the deputies ordered
plaintiff, who was then in bed and dressed only in her underwear, to leave the residence,
and when she attempted to go into the bathroom to get dressed, the deputies forced entry,

                                             3
the Los Angeles Civil Service Commission (the Civil Service Commission), which
scheduled hearings in September 2005.
       On May 4, 2005, before the Civil Service Commission hearings on the matter,
LACERA issued its determination that Hudson’s right knee injury permanently disabled
her from performing her duties as a deputy sheriff, but that the injury was not service-
connected because it had been exacerbated during the off-duty incident. LACERA
informed her that for that reason she would not be entitled to service-connected disability
benefits, and that because she was credited with less than five years of service with the
Department she was would be entitled to no disability allowance.
       LACERA informed Hudson that because she would receive no retirement benefits,
she had the option to withdraw her accumulated retirement contributions. In December
2006, because she was in economic need Hudson withdrew all of the retirement funds she
had contributed to LACERA during her almost five years of employment as a deputy
sheriff.
       On February 6, 2008, the Civil Service Commission issued its final decision on
Hudson’s appeal from her discharge. The decision adopted its hearing officer’s findings
that the termination of her employment had been unjustified, and required the
Department to restore Hudson’s employment as a deputy sheriff, retroactive to five days
after her discharge.6 The Department did not appeal the Civil Service Commission’s
decision, which became final on May 16, 2008.
       The Department did not comply with the Civil Service Commission order. In
March 2008 it mailed to Hudson a “Notice of Medical Release” informing her that she


pepper-sprayed her in the face while her arms were held, hog-tied her, and injured her
right knee while carrying her from the residence.
       6
         The Civil Service Commission adopted its hearing officer’s findings that the
incident was caused by false accusations by Hudson’s boyfriend that she did not live
there and that she had been asked to leave, and by the responding deputies’ poor
judgment and failure to follow department protocol—although Hudson admittedly
accused a participating deputy of being a “pussy,” while being removed from the
bathroom in her underwear after being pepper-sprayed.

                                             4
was released from her position as a deputy sheriff, effective retroactively as of May 4,
2005, as a result of her right knee injury. On April 5, 2008, Hudson filed a new appeal to
the Civil Service Commission, alleging that the Department’s “medical release” was done
in retaliation for her successful challenge to her wrongful discharge by the Department.
       On August 5, 2008, while her appeal from her medical release was pending,
Hudson entered into an unwritten agreement with the Department, under which she
would be permitted to return to work in an unsworn position with the Department until
LACERA could reexamine her medical eligibility to return to her position as a deputy
sheriff. Under the agreement, if LACERA were to determine that she remained disabled
from performing as a deputy sheriff, the Department would reinstate her to employment
as a civilian custody assistant; if LACERA found her to be medically capable of
performing as a deputy sheriff, she would be immediately reinstated to that position. The
unwritten agreement was confirmed in an August 8, 2008 letter from the Department’s
attorney.
       An October 8, 2008 note from Hudson’s treating physician released her for full-
time work as a deputy sheriff, recommending that she work at the Department’s court
services division. In early November 2008, an Agreed Medical Examiner (appointed in
connection with her workers’ compensation claim) released her for full-time work as a
deputy sheriff.
       On December 22, 2008, Hudson entered into a written settlement agreement with
the Department, providing that she would return to work on a specified date in a 120-day
custody-assistant assignment; that she would undergo a medical reevaluation and obtain a
new disability determination from LACERA; that she would be restored as a deputy
sheriff if LACERA determined that she was no longer disabled, and she would be hired
as a permanent custody assistant if LACERA determined that she remained disabled to




                                             5
serve as a deputy sheriff.7 Beginning in January 2009, Hudson went to work as a custody
assistant pursuant to the written agreement.
       LACERA refused to reevaluate Hudson’s eligibility for employment as a deputy
sheriff, however, on the ground that her December 2006 withdrawal of her retirement
contributions had ended her LACERA membership.
       At the end of April 2009, Hudson provided LACERA with a medical release from
the surgeon who had performed surgery on her right knee, releasing her for duty as a
deputy sheriff as of May 4, 2009. Hudson repeated her request for a medical reevaluation
by LACERA. LACERA continued to refuse to reevaluate Hudson’s medical disability
status on the ground that she was no longer a LACERA member due to her 2006
withdrawal of retirement contributions.
       On June 9, 2009, counsel for the Department and for LACERA orally agreed with
Hudson’s counsel that LACERA and the Department would accept and comply with any
recommendation made by the doctor who had determined Hudson’s permanent disability
for LACERA in 2005. On June 30, 2009, Hudson’s 120-day assignment as a custody
assistant expired, leaving her without employment.
       After reexamining Hudson on July 15, 2009, the doctor to whom the parties had
agreed reported that Hudson appeared to be fit for unrestricted duty as a deputy sheriff.
On August 25, 2009, Hudson provided the Department with the report, and requested
immediate reinstatement as a deputy sheriff.
       On September 11, 2009, the Department informed Hudson that it would not
reinstate her to any position with the Department, and continued that refusal during the
following months.


       7
         The written settlement agreement is designated exhibit A to the complaint, but
was not attached (apparently inadvertently) when the complaint was filed. Hudson
corrected the omission a few days later, filing a Notice of Errata attaching the
complaint’s exhibit A. The Department also filed a copy of the exhibit when it moved
for judgment on the pleadings. (The complaint and some other documents erroneously
identify the settlement agreement’s execution date as December 22, 2009, rather than
December 22, 2008.)

                                               6
         First Cause of Action
         The first cause of action of Hudson’s original complaint alleged the Department’s
breach of the December 2008 settlement agreement, seeking specific performance
requiring the Department to reinstate Hudson as a deputy sheriff with backpay and
benefits.
         Second Cause of Action
         The second cause of action petitioned for a peremptory writ of traditional mandate
under Code of Civil Procedure section 1085, requiring the Department to perform the
ministerial duty created by the Civil Service Commission’s February 2008 order (as well
as the December 2008 settlement agreement), requiring Hudson to reinstatement to
employment as a deputy sheriff with backpay and benefits.
         Third Cause of Action
         The complaint’s third cause of action sought a declaration of the parties rights and
responsibilities under the settlement agreement and the Civil Service Commission’s
order.
         Fourth Cause of Action
         The complaint’s fourth cause of action alleged that LACERA breached its
ministerial duty to fully inform Hudson of the consequences of withdrawing her
accumulated retirement contributions, and a ministerial duty to allow her to re-contribute
the withdrawn contributions, then to be reevaluated by LACERA to determine her
present medical eligibility to serve as a deputy sheriff.
         Fifth Cause of Action
         The fifth cause of action sought a declaration that Hudson is permitted to repay the
retirement contributions she had withdrawn from LACERA, and then to be treated the
same as any LACERA member with respect to reevaluation of her disability status.
         Answers to Complaint
         The Department filed its answer to the original complaint and return to the petition
on or about May 2, 2011, admitting and denying various allegations and asserting 77



                                               7
affirmative defenses. LACERA filed its answer to the complaint on May 23, 2011.
Hudson filed a replication on June 8, 2011.
        Department’s Motion for Judgment on the Pleadings
        The Department moved for judgment on the pleadings with respect to Hudson’s
first three causes of action, for failure to state a claim. The motion argued that Hudson
failed to meet the conditions precedent to enforcement of the settlement agreement’s
terms, that she is entitled to no possible remedy under any theory, and that she failed to
file a claim under the Government Claims Act (Gov. Code, §§ 910, 911.2).8
        Specifically, the Department’s motion contended section 31725 requires that
Hudson’s capacity to perform as a deputy sheriff must be determined by LACERA, not
by the Civil Service Commission; that LACERA still deems Hudson to be disabled
notwithstanding the Civil Service Commission order setting aside her discharge; that the
settlement agreement’s condition to her reinstatement has not occurred because Hudson
has not obtained LACERA’s redetermination of her disability status; and that in any
event Hudson’s alleged oral agreement with LACERA’s counsel concerning her right to
reinstatement does not bind LACERA’s Board to adopt the designated doctor’s
recommendation. The Department argued also that the complaint improperly sought
specific performance of a personal-services contract, in violation of Civil Code section
3390.
        Hudson’s opposition argued that no government claim was required because her
action was not a wage claim by a former employee; that her settlement agreement was
not a personal-services contract; that the agreement of LACERA’s counsel regarding the
procedure for reevaluating Hudson’s disability status was valid and enforceable; and that
her complaint stated a claim for traditional mandate to enforce the Department’s
ministerial duty to comply with the unappealed order of the Civil Service Commission.




        8
            Unless otherwise specified, all further statutory references are to the Government
Code.

                                                8
       Ruling on Motion for Judgment on the Pleadings
       On March 13, 2012, the trial court (Amy Hogue, Judge) granted the Department’s
motion for judgment on the pleadings on the first cause of action (for specific
performance), with 10 days leave to amend; granted the Department’s motion for
judgment on the pleadings on the third cause of action (for declaratory relief) without
leave to amend; and declined to rule as to the second cause of action (petition for writ of
mandate), ruling that the motion with respect to it should be brought in the court’s writs
and receivers department.
       The First Amended Complaint
       On March 27, 2012, Hudson filed an amended pleading alleging essentially the
same underlying facts with some additional factual elements. But it did not re-allege the
original first cause of action for specific performance of the written settlement agreement,
or the original third cause of action for declaratory relief, as to which the court had
granted judgment on the pleadings.
       The new first and second causes of action of the amended pleading allege the
Department’s violations of Hudson’s civil rights under the due process clause of the
Fourteenth Amendment to the United States Constitution, primarily by failing to comply
with the Civil Service Commission order requiring restoration of her employment and
with its oral and written agreements to do so. They seek her reinstatement as a deputy
sheriff, backpay, interest, actual and exemplary damages, mandate, declaratory relief, and
attorney fees.9 The third cause of action of the amended pleading re-alleges the original
complaint’s petition for a writ of mandate against the Department under Code of Civil
Procedure section 1085. It alleges (in addition to Hudson’s beneficial interests and lack
of adequate remedy at law) that the Department has ministerial duties to comply with the
Civil Service Commission order and the written settlement agreement requiring Hudson’s
restoration to her employment as a deputy sheriff with backpay and benefits.

       9
         The December 22, 2008 settlement agreement is not made an exhibit to the
amended pleading, although it is frequently mentioned. The trial court took judicial
notice of the original complaint and the written settlement agreement.

                                              9
       The fourth cause of action of the amended complaint petitions for a writ of
mandate against LACERA, under Code of Civil Procedure section 1085. It alleges
LACERA’s fiduciary duty to advise Hudson of the consequences of her withdrawal of
her accumulated retirement contributions, its failure to advise her of those consequences,
and its resulting duty to allow redeposit of the withdrawn contributions in order to restore
her membership in LACERA and to enable LACERA to reevaluate her disability status
for her return to service as a deputy sheriff.
       The amended complaint’s fifth cause of action seeks a declaration of LACERA’s
obligation to permit Hudson to redeposit her withdrawn retirement contributions and
LACERA’s obligation to then reevaluate her medical fitness for service as a deputy
sheriff.
       The Department’s Motion to Strike the First and Second Causes of Action of
       the First Amended Complaint
       The Department demurred and moved to strike the amended pleading’s first and
second causes of action (or in the alternative, to strike exemplary damage allegations of
the first and second causes of action). Its motion argued that the first and second causes
of action should be stricken on three grounds: (1) that they improperly seek punitive
damages; (2) that they transform the case from a specific performance case into a federal
constitutional case; and (3) that the new causes of action violate the trial court’s grant of
leave to amend the original pleading.
       The Order Striking the First and Second Causes of Action of the First
       Amended Complaint
       On May 29, 2012, the trial court (Amy Hogue, Judge) granted the Department’s
motion to strike the amended pleading’s first and second causes of action. The hearing’s
wide-ranging May 11, 2012 oral argument touched on numerous potential issues, many
of which were not addressed by the Department’s moving papers (including statutes of
limitations, tort claims act filing requirements, civil rights act pleading requirements, and
many questions regarding disputed documents and issues of fact). But the court
apparently ruled that its leave to amend the original complaint’s first cause of action was


                                                 10
limited to an amendment to cure the first cause of action’s failure to plead a tort claims
act filing (a ground not raised by the Department’s motion), but not to seek new remedies
under federal law. The court articulated its reasoning: “Yes, what I allowed was leave to
amend to plead, if she could, compliance with a tort claims act, which I suspect[ed] that
she couldn’t do.” “I didn’t give you leave to file a 1983 cause of action, that’s the
problem. I only gave you leave to cure the contract claim.”10
       The court reassigned the amended complaint’s remaining claims—the third cause
of action for mandate against the Department, the fourth cause of action for mandate
against LACERA, and the fifth cause of action for declaratory relief against LACERA—
to the court’s writs and receivers department. A declaration of Hudson’s counsel avers
that on June 8, 2012, the case was reassigned to department 82 (Luis Lavin, Judge).
       The Department’s Motion for Judgment on the Pleadings on the Petition for
       Writ of Mandate to Enforce the Civil Service Commission Order and
       Settlement Agreement
       On or about October 11, 2012, the Department moved in department 82 for
judgment on the pleadings on the amended pleading’s third cause of action for writ of
mandate, on the ground that the pleading failed to state facts sufficient to establish the
Department’s ministerial duty to reemploy Hudson.
       The Order Granting the Department’s Motion for Judgment on the Pleadings
       On December 18, 2012, the court in department 82 (Luis Lavin, Judge) granted the
Department’s judgment on the pleadings against Hudson’s petition for writ of mandate,
without leave to amend.11 Its written order explained that Hudson failed to sufficiently

       10
         The Department later explained in its motion for judgment on the pleadings in
department 82, that “[o]n May 29, 2012, the trial court granted the Defendant County’s
Motion to Strike the First Amended Complaint on the basis that the amendment was not
authorized by the Court.”
       11
          The court granted the Department’s request for judicial notice of Hudson’s
original complaint, with Hudson’s errata notice and the attached settlement agreement;
Judge Hogue’s May 29, 2012 ruling on the Department’s motions; and Hudson’s January
5, 2012 declaration in support of a motion for summary judgment against the Department

                                             11
allege a ministerial duty on the Department’s part to comply with either the Civil Service
Commission’s order or the parties’ settlement agreement. The Civil Service
Commission’s order could not be enforced because it had been extinguished and
superseded by the settlement agreement; and the settlement agreement could not be
enforced because it required LACERA to reevaluate Hudson’s physical eligibility, which
LACARA could not do because Hudson was no longer a Department employee and
LACERA member.
       Denial of Hudson’s Motion for Reconsideration of Order Granting
       Department’s Motion for Judgment on the Pleadings
       Hudson sought reconsideration of the ruling that the settlement agreement had
extinguished or superseded the December 22, 2008 Civil Service Commission order. She
argued that she had been unable to address that issue because the Department’s motion
had not raised it. On the merits she argued that the settlement agreement settled only
Civil Service Commission case No. 08-146, challenging the Department’s medical
release of Hudson after she was ordered reinstatement as a deputy sheriff; that the
settlement agreement does not affect the Civil Service Commission’s order in case No.
05-038; and that the agreement therefore could not have extinguished or superseded the
Civil Service Commission’s order in that case, which was unappealed and final when the
settlement agreement was entered into. She sought, at a minimum, leave to amend to
more clearly plead the Department’s mandatory duty to restore her employment as a
deputy sheriff.12


(earlier taken off calendar by the court). The court also granted judicial notice of
documents filed before the matter was transferred to the writs and receivers department.
It denied LACERA’s request for judicial notice of Hudson’s application for withdrawal
of her accumulated retirement contributions. The parties do not challenge these rulings.
       12
          The record contains no ruling on Hudson’s request for judicial notice
accompanying her reconsideration motion, including for: Hudson’s request for Civil
Service Commission appeal from her discharge in case No. 05-038; the hearing officer’s
report in case No. 05-038 recommending her reinstatement; the Department’s objections
to the hearing officer’s report in case No. 05-038; the Commission’s February 6, 2008

                                            12
       The court denied the motion for reconsideration on February 22, 2013 (after
having entered judgment in the Department’s favor). Its written order explained that
even if reconsideration were otherwise appropriate, the Department had no ministerial
duty to restore Hudson’s employment because the Civil Service Commission order is
superseded by the settlement agreement, and because Hudson failed to comply with the
settlement agreement by failing to obtain LACERA’s reevaluation of her disability status.
The court added that the mandate claim would also be barred by the applicable statute of
limitations.
       LACERA’s Motion for Judgment on the Pleadings on the Petition for Writ of
       Mandate to Permit Redeposit of Hudson’s Withdrawn Retirement
       Contributions
       On November 6, 2012, LACERA filed points and authorities in support of a
motion for judgment on the pleadings on the fourth and fifth causes of action of the
amended complaint. It argued that Hudson could not establish LACERA’s violation of a
ministerial duty, because her pleadings and judicially noticed documents show that
LACERA fulfilled its duty by advising Hudson that withdrawing her retirement
contributions would forfeit her rights to future retirement benefits; that her declaratory
relief claim duplicated the claim for writ of mandate; and that under section 31652
Hudson must be employed by the county to be eligible to redeposit her withdrawn
contributions.
       Rulings on LACERA’s Motion For Judgment on the Pleadings
       The court in department 82 (Luis Lavin, Judge) heard argument on December 6,
2012.13 On December 18, 2012, it denied judgment on the pleadings on petition for writ


final decision in case No. 05-038, ordering Hudson’s restoration to employment;
Hudson’s request for Civil Service Commission appeal from her medical release by the
Department in case No. 08-146; and various documents and filings leading up to the
March 16, 2009 withdrawal of her appeal in case No. 08-146.
       13
        LACERA’s counsel acknowledged that no notice of motion had been filed,
which the trial court tentatively identified as a “fatal” defect in the motion.

                                             13
of mandate, ruling that the pleading’s allegations of LACERA’s ministerial duty and its
failure to advise Hudson was sufficient to support the claimed remedies, allowing her to
redeposit her withdrawn retirement contributions and to obtain LACERA’s reevaluation
of her disability status. The court granted judgment on the pleadings as to the declaratory
relief cause of action without leave to amend.14
       Denial of Hudson’s Petition for Writ of Mandate Against LACERA
       On February 28, 2013, the court (Luis Lavin, Judge) denied Hudson’s petition for
writ of mandate against LACERA, ruling on the merits that Hudson had no agreement
requiring LACERA to permit her to redeposit her withdrawn retirement contributions or
to revaluate her disability status, and that she had misrepresented a number of facts in her
pleadings and briefs.
       Entry of Judgment and Notices of Appeal
       On January 14, 2013, the court (Luis Lavin, Judge) entered judgment in favor of
the Department and against Hudson. On March 15, 2013 (58 days later), Hudson filed
her timely notice of appeal from that judgment.
       On March 26, 2013, the court entered judgment in favor of LACERA and against
Hudson. On May 24, 2013 (59 days later), Hudson filed her timely notice of appeal from
that judgment.
       On appeal Hudson challenges the trial court’s rulings: (1) construing the
settlement agreement as an unenforceable contract for personal services; (2) failing to
allow Hudson’s amendment to add a civil rights cause of action; (3) granting judgment on

       14
          The court granted the Department’s request for judicial notice of Hudson’s
original complaint, with Hudson’s errata notice and the attached settlement agreement;
Judge Hogue’s May 29, 2012 ruling on the Department’s demurrer, motion to strike, and
motion for judgment on the pleadings; and Hudson’s January 5, 2012 Declaration filed in
support of her motion for summary judgment against the Department (which the court
had earlier taken off calendar). The court also granted judicial notice of documents filed
in the court’s trial department before the matter was transferred to the writs and receivers
department. It denied LACERA’s request for judicial notice of LACERA’s letter
advising Hudson she is entitled to no future retirement benefits and Hudson’s application
for withdrawal of her accumulated retirement contributions. The parties do not challenge
these rulings.

                                             14
the pleadings and dismissal of the claim for mandate against the Department; (4) denying
reconsideration of that ruling, and adding new grounds for its underlying ruling; and (5)
denying mandate against LACERA.15

                                         Discussion
I.     Summary of Decision
       Hudson is caught in a tangled web not wholly of her own weaving. The
Department was ordered to restore her to the employment from which she was
wrongfully discharged; but it has refused to comply with that unconditional order because
she has since been retired on grounds of disability. Her employment cannot be restored
unless LACERA determines she is no longer disabled, which it will not do unless she is a
LACERA member; but her LACERA membership ended when she withdrew her
retirement contributions after being told she is ineligible for retirement benefits.
       Hudson contends on appeal that the trial court erred in five major respects: (1) by
ruling that her settlement agreement with the Department is unenforceable as a matter of
law; (2) by striking her civil rights causes of action from her amended complaint; (3) by
dismissing her mandate cause of action against the Department; (4) by refusing to
reconsider its dismissal of her claim against LACERA (while adding to the grounds for
its ruling on that motion); and (5) by denying mandate against LACERA.
       We conclude that on the pleaded facts, the Civil Service Commission order
requires the Department to restore Hudson to employment, whether she is or is not
disabled to serve as a deputy sheriff. Upon restoration of her employment she will be
restored to LACERA membership, and will be eligible for LACERA’s evaluation and
determination of her disability status (whether she is or is not a LACERA member before
that time). And unless LACERA advised her that forfeiture of any right to restoration of
her employment and redetermination of her disability would be a consequence of

       15
         On April 15, 2014, this court granted Hudson’s motion to augment the record on
appeal to include two declarations and attached exhibits that had been before the trial
court, but denied her request for judicial notice of excerpts of her deposition, which had
not been before the trial court.

                                             15
withdrawing her accumulated retirement contributions from LACERA, LACERA
breached its fiduciary duties to Hudson and may be obligated to permit her to redeposit
her withdrawn contributions (on the same basis it permits other retired employees to do
so), and to reevaluate her current disability status on the same basis it does for other
Department employees.
       The orders striking and granting judgment without trial on various of Hudson’s
claims against the Department must be reversed, permitting superior court reexamination
of those claims’ procedural and substantive viability; and the judgment denying a writ of
mandate against LACERA on the merits is unsupported by evidence and must be
reversed.
II.    The Trial Court Erred in Granting Judgment on the Pleadings and
       Dismissing the Petition for Mandate to Restore Hudson’s Employment
       The Department’s motion raised three overlapping grounds for judgment on the
pleadings on Hudson’s petition for a writ seeking mandate to enforce the Civil Service
Commission’s reinstatement order and the agreements for implementation of that order:
(1) Hudson failed to allege an enforceable duty to reinstate her to Department
employment; (2) the Department cannot reinstate Hudson without LACERA’s revision of
its permanent disability determination; and (3) the Department has no ministerial duty
because only LACERA can revise Hudson’s disability determination.
       The trial court granted judgment on the pleadings, without leave to amend. It
identified two grounds for its ruling: (1) the parties’ written settlement agreement does
not support a ministerial duty for the Department to reinstate Hudson’s employment,
because it contemplates that LACERA will reevaluate Hudson’s disability status, which
LACERA has declined to do; and (2) the Civil Service Commission order does not
support a ministerial duty to reinstate Hudson’s employment, because the order was
superseded by the parties’ (unenforceable) settlement agreement.
       The trial court’s order denying Hudson’s motion for reconsideration of the ruling
that the Civil Service Commission order was superseded added another ground: that



                                             16
even if reconsideration were otherwise appropriate, the petition for mandate against the
Department would necessarily be barred by the statute of limitations.
       We conclude that the court erred in granting the Department judgment on the
pleadings without leave to amend, and that (whether reconsideration would or would not
have been appropriate) the petition for mandate is not as a matter of law time-barred.
       A. Standards of Review
       A defense motion for judgment on the pleadings “is akin to a demurrer and is
properly granted only if the complaint does not state facts sufficient to state a cause of
action against that defendant.” (Shea Homes Limited Partnership v. County of Alameda
(2003) 110 Cal.App.4th 1246, 1254; Kabehie v. Zoland (2002) 102 Cal.App.4th 513,
519; see Code Civ. Proc., § 438, subd. (c)(1) [motion for judgment on pleadings for
failure to state cause of action].) We treat the pleadings as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law. We
independently construe statutes as a matter of law according to their purpose and intent.
(Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1465.) The motion for
judgment must be denied if the pleading states a cause of action on any theory.
(Quelimane Co. v. Stewart Title Guaranty Company (1998) 19 Cal.4th 26, 38.) If the
motion for judgment on the pleadings is granted, leave to amend must be granted unless
the defect cannot be cured by amendment. (Baughman v. State of California (1995) 38
Cal.App.4th 182, 187.) If as a matter of law there is no possible liability, denial of leave
to amend is proper. (Schonfeldt v. State of California, supra, 61 Cal.App.4th at p. 1465.)
       Where the trial court has ruled upon disputed facts, we defer to the trial court’s
factual determinations if supported by substantial evidence. (Kavanaugh v. West Sonoma
County Union High School Dist. (2003) 29 Cal.4th 911, 916.) However, legal
interpretations that do not turn on disputed facts are subject to de novo review. (Ibid.;
Morgan v. City of Los Angeles Bd. of Pension Comrs. (2000) 85 Cal.App.4th 836, 843.)
An abuse of discretion standard applies to a court’s denial of a motion for
reconsideration. (Farmers Insurance Exchange v. Superior Court (2013) 218
Cal.App.4th 96, 106-107.)


                                             17
       B. Right to Mandate
       A writ of mandate may be issued by any court “to compel the performance of an
act which the law specially enjoins, as a duty resulting from an office, trust, or
station . . . .” (Code Civ. Proc., § 1085, subd. (a).) The showing required to be entitled to
mandate is that the public agency has a clear, present and ministerial duty to afford the
relief sought, and that the petitioner has a clear, present and beneficial right to
performance of that duty. (Kavanaugh v. West Sonoma County Union High School Dist.,
supra, 29 Cal.4th at p. 916; Bullis Charter School v. Los Altos School Dist. (2011) 200
Cal.App.4th 1022, 1035.) An act is “ministerial” when a public officer is required to
perform it in a prescribed manner when a given state of facts exists, in obedience to the
mandate of legal authority and without regard to his, her, or its own opinion concerning
the act’s propriety. (Kavanaugh v. West Sonoma County Union High School Dist., supra,
29 Cal.4th at p. 916.) The writ rests in the discretion of the issuing court, but becomes a
matter of right when the plaintiff shows that “there is not a plain, speedy, and adequate
remedy, in the ordinary course of law.” (Code Civ. Proc., § 1086; May v. Board of
Directors (1949) 34 Cal.2d 125, 133-134; City of King City v. Community Bank of
Central California (2005) 131 Cal.App.4th 913, 925.)
       C.     The Pleading Alleges the Department’s Mandatory Duty to Reinstate
       Hudson to Employment
       Under Rule 1 of the Los Angeles County Civil Service Rules, adopted by the Los
Angeles County Board of Supervisors, the Civil Service Commission rules have the force
and effect of law. (Ord. No. 88-0020, § 1 (part), 1988, Title 5 Los Angeles County Code
of Ordinances, Personnel, App. 1 Civ. Serv. Rules.) Rule 18.04(B) of the Civil Service
Commission rules provides that when the Civil Service Commission notifies an
employing authority that its discharge of a county employee is not justified, the
notification “shall be a bar to any discharge or reduction for the specific reasons which
have been presented, and the discharged or reduced employee shall be reinstated
retroactively to his/her position as of a date set by the commission. . . .” (Ord. No. 88-



                                              18
0020, § 1 (part), 1988, Title 5 Los Angeles County Code of Ordinances, Personnel, App.
1 Civ. Serv. Rules.)
       Hudson’s pleadings allege that on or about February 2008, the Civil Service
Commission notified the Department—the employing authority—that its discharge of
Hudson was not justified by the reasons presented, and ordered her employment restored.
The Commission’s order adopted the hearing officer’s findings and conclusions, ordering
that Hudson’s discharge be set aside except for a (long-since lapsed) five-day suspension,
and that Hudson be made whole as provided under County Code section 6.20.100, which
provides that a wrongly discharged employee is entitled to backpay, vacation and sick
leave “as if such unsustained . . . discharge had not been invoked.”16 These allegations
sufficiently allege a mandatory legal duty on the Department’s part to restore Hudson to
employment as of the date set by the Civil Service Commission.
              1.       The pleaded settlement agreements do not necessarily supersede
              and extinguish the Department’s duties under the Civil Service
              Commission order.
       The trial court held that the Civil Service Commission order requiring restoration
of Hudson’s employment is necessarily unenforceable against the Department, because
the order “was superseded by the subsequent settlement agreement” alleged in the
amended pleading.17 However, whether such an interpretation of the pleaded agreements
is or is not reasonable, it is not the agreements’ only possible reasonable interpretation,
either on the facts alleged in the pleading or on the facts that could be alleged.
Accordingly, the court erred in granting judgment on the pleadings without leave to
amend.


       16
         The Civil Service Commission order expressly rejected the Department’s claim
that Hudson’s disability retirement precluded her reinstatement to Department
employment.
       17
         Hudson argued that even if the agreement were unenforceable, its
unenforceability would not preclude enforcement of the Civil Service Commission order,
which is not affected by the alleged settlement agreement.

                                             19
       We review the record de novo to determine whether the pleading states a cause of
action and, if it does not, whether the defect might reasonably be cured by amendment. If
it can be cured, the trial court’s ruling must be reversed. (Shea Homes Limited
Partnership v. County of Alameda, supra, 110 Cal.App.4th at p. 1254; Baughman v. State
of California, supra, 38 Cal.App.4th at p. 187.)
       The pleaded settlement agreements do not necessarily extinguish or supersede the
Civil Service Commission order, and do not necessarily render it unenforceable. Nothing
in the written settlement agreement or the pleaded oral agreements indicates an express
intention to negate or supersede the order in Civil Service Commission case No. 05-038
(restoring Hudson’s employment), nor an intention to waive Hudson’s right to the
benefits of that order. The written settlement agreement is captioned as a document in
Civil Service Commission case No. 08-146 (not in case No. 05-038). It provides that
Hudson would accept a temporary assignment with the Department; that she would as
soon as possible “take all necessary steps to obtain a reevaluation and new determination
of disability from LACERA;” and that if LACERA determines that Hudson is no longer
disabled, the Department would restore her “to her previously held position of Deputy
Sheriff pursuant to Civil Service,” but if LACERA determines that she remains disabled
from performing the duties of a deputy sheriff, she would be employed by the
Department as a custody assistant (a position for which the Department admitted she was
qualified). The agreement provides for dismissal of case No. 08-146 (the appeal
challenging the Department’s medical release of Hudson after her reinstatement was
ordered), and for broad releases of liability for claims arising from the employment
relationship “concerning the subject matter referred herein” (arguably, case No. 08-146)
and “claims regarding discrimination, harassment or retaliation in any form.”
       The alleged agreements thus might be interpreted as an attempt by the parties to
resolve the uncertainties and disputes about the nature of the employment to which the
Hudson was entitled to be restored by the unchallenged Civil Service Commission order,
in light of her disability status at that time. It might be interpreted as an agreed-upon
procedure under which LACERA’s reevaluation of her current disability status would be


                                             20
permissible, and on the employment to which she would be restored depending on that
reevaluation. Under interpretations such as these, LACERA’s duties to perform
contemplated acts arise not from the agreement, but from the law and LACERA’s own
rules.
         The pleaded settlement agreements therefore are susceptible to interpretations that
do not render the Civil Service Commission order in case No. 05-038 superseded, or
extinguished. It is improper for a trial court to interpret a document of which it has taken
judicial notice as a matter of law, when there has been no opportunity to present evidence
with respect to its intended meaning. (Fremont Indemnity Co. v. Fremont General Corp.
(2007) 148 Cal.App.4th 97, 114-115.)18 The trial court was not justified in concluding
that the alleged agreement or agreements necessarily rendered the order unenforceable
against the Department.
         In reaching this conclusion we do not hold that the alleged settlement agreements
are necessarily enforceable, nor that the meanings suggested here are the only appropriate
interpretations. The allegations and the claims they support have not been considered on
their merits; we express no opinion on their appropriate meanings, or the parties’ rights
and duties under them. We hold only that the allegations are susceptible to
interpretations that would not necessarily preclude enforcement of the Civil Service
Commission order restoring Hudson to Department employment. For that reason, the
trial court erred in granting judgment on the pleadings on the amended pleading’s third
cause of action for mandate against the Department.




         18
         The pleaded facts and representations of counsel also suggest the possibility of
amendments to allege that the Department knew—and was aware that Hudson did not
know—when it entered into the written settlement agreement that LACERA could not or
would not reevaluate Hudson’s disability status, which allegations might justify
additional remedies.

                                              21
              2.     LACERA’s grant of a disability retirement to Hudson did not
              divest the Civil Service Commission of authority to review Hudson’s
              unjustified discharge and to order her employment restored.
       The Department contends on appeal that the Civil Service Commission’s authority
to review the propriety of Hudson’s discharge ended when LACERA granted Hudson a
disability retirement on May 4, 2005. If the Department is correct, that event rendered
the Commission’s later reinstatement order void, precluding relief for Hudson without
regard to the merits of the Commission’s (or the trial court’s) rulings.19
       The Department’s contention rests on two cases: Zuniga, supra, 137 Cal.App.4th
1255, decided by Division Four of this Court, and County of Los Angeles Dept. of Health
Services v. Civil Service Com. of County of Los Angeles (Latham) (2009) 180
Cal.App.4th 391 (Latham), decided by Division Eight of this Court. In Zuniga, a deputy
sheriff was suspended after he was charged with criminal offenses, under a civil service
rule allowing an employee’s temporary suspension until the charges are finally resolved.
(Id. at p. 1257.) But before the employee’s challenge to his suspension was ruled on by
the Civil Service Commission, he voluntarily resigned from the Department. The Court
of Appeal held that Zuniga’s voluntary retirement unequivocally demonstrated his
intention and determination not to seek restoration of his employment as a deputy sheriff.
Because the Civil Service Commission’s authority is limited to reviewing a right to
restoration of employment and it could adjudicate his right to backpay only in connection
with restoration to employment, the court concluded that the Commission lacked
authority to determine whether Zuniga’s suspension was justified. (Id. at p. 1260.)
       In Latham, supra, 180 Cal.App.4th 391, a nurse sought Civil Service Commission
review of the Los Angeles Department of Health Services’ decisions suspending her
employment for 30 days, then discharging her. Before the Commission ruled, however,


       19
          Whether the Department did or did not raise its jurisdictional challenge in the
trial court, “an appellate court may consider lack of jurisdiction even if not raised in the
trial court, as it constitutes a pure question of law.” (Zuniga v. Los Angeles County Civil
Service Com. (2006) 137 Cal.App.4th 1255, 1260 (Zuniga).)

                                             22
she voluntarily retired. The trial court overturned the Commission’s refusal to dismiss
her appeal for lack of jurisdiction20 (id. at p. 395), and the Court of Appeal—quoting the
Zuniga decision’s analysis almost in its entirety—held that an employee’s retirement
during a civil service proceeding divests the commission of jurisdiction: “Zuniga stands
for the bright-line proposition that, where an employee retires during the pendency of a
civil service appeal, her future status as an employee by definition is no longer at issue.”
(Id. at p. 401.) “In short, the Commission has authority to address only matters involving
a member of the civil service, and a person who has retired is no longer a member of the
civil service.” (Ibid.)
         The decisions in Zuniga and Latham, supra, rest on the principal that the
Commission “‘“has only the special and limited jurisdiction expressly authorized by the
[county] charter”’”; that it has authority to hear appeals of discharged permanent
employees (Los Angeles Co. Charter, § 35(6)); but it can hear appeals of former
employees in only specified limited circumstances. (Civ. Serv. Rule 4.01; Zuniga, supra,
at p. 401.) Holding that there is no distinction between a retirement and a resignation,
Zuniga concluded that “the activating event is separation from service, whether by
retirement, resignation, death, or discharge. . . . Once a person has separated from
service, the Commission has no further jurisdiction [except as specified by governing
constitutional charter or statutory provisions].” (Zuniga, supra, 137 Cal.App.4th at p.
1260.)
         We are unable to apply the “bright-line” rule enunciated in Zuniga and Latham,
supra, to hold that the Civil Service Commission lacked authority to review Hudson’s
discharge under the circumstances of this case. As the Zuniga and Latham decisions
held, a former employee who has expressed an unequivocal intention to end his or her
employment is no longer entitled to Civil Service Commission review of the propriety of
an earlier suspension or discharge. But the logic of those decisions does not render the
discharge of an employee immune from Civil Service Commission review, merely

         20
         The Civil Service Commission had found that Latham’s suspension was
appropriate, but her discharge was not. (Latham, supra, at p. 395.)

                                             23
because at the time she was discharged she was disabled (even “permanently”) and her
retirement rights had not yet fully vested.
       It is true that Hudson did not “maintain [her] employment throughout the
administrative process” (Zuniga, supra, 137 Cal.App.4th at p. 1261; Latham, supra, 180
Cal.App.4th at p. 400); but her failure to do so was not necessarily an unequivocal
expression of an intention to forever abandon her Department employment, as the
employees’ resignations were in Zuniga and Latham. Here, the Civil Service
Commission expressly found that it was the Department, not Hudson, who had initiated
her disability retirement, and her retirement for disability was statutorily mandated
without regard to her intentions. (§ 31725.)
       Moreover, changes in disability status are not uncommon following medical
treatment and with the passage of time. For that reason the law specifically authorizes—
and actually requires—that LACERA reevaluate the disability status of retirement
beneficiaries, and that it reinstate them to employment when disabilities that were
formerly incapacitating no longer justify a disability retirement. (§§ 31729, 31730,
31733; Schrier v. San Mateo County Employees’ Ret. Ass’n (1983) 142 Cal.App.3d 957,
959, 961 [§§ 31729 & 31730 apply to disability retiree whose physical condition has
improved to the point he is fit for duty].)
       Under these circumstances Hudson’s disability retirement cannot be deemed to
have established her intention to forever sever her employment status with the
Department (the ground on which the broad rule stated in the Zuniga and Latham, supra,
decisions rest) or to forfeit her pending Civil Service Commission appeal. This
conclusion is supported by the decision in Lucas v. State of California (1997) 58
Cal.App.4th 744, 750-751, a case involving facts closely analogous to those alleged in
this case. There, the plaintiff had been wrongfully charged with misconduct and
discharged from his state employment. As in the case at hand, he had obtained a
voluntary retirement while his appeal from his discharge was pending. Then, after he had
received his retirement but before the hearing on his discharge, the state withdrew its
adverse employment action against him. The state then argued that because he was no


                                              24
longer a state employee by virtue of his retirement, he was not entitled either to
reinstatement of his employment, or to a hearing to clear his name. (Id. at pp. 748-749.)
But the court held that these circumstances require a distinction between separation from
a civil service position by resignation and by retirement, concluding that the plaintiff was
not prevented by his voluntary retirement from pleading a viable claim for writ of
mandate compelling the state to reinstate him to his former employment. (Id. at pp. 750-
751.) Such a distinction would seem to be all the more compelled when the service
retirement is for a disability that, while identified as “permanent,” is of a sort that may
turn out to be correctable.
       These factors indicate that Hudson’s disability retirement cannot be deemed to
have waived and forfeited her challenge to her wrongful discharge, or to have necessarily
severed her employment status in the event she were to prevail before the Civil Service
Commission. Although the Zuniga and Latham, supra, decisions hold that a former
employee who has expressed an unequivocal intention to end his or her employment is no
longer entitled to Civil Service Commission review of the circumstances or propriety of
an earlier suspension or discharge, that principle should not be construed to render an
employee’s wrongful discharge immune from challenge merely because when she was
discharged she was disabled and her right to retirement benefits had not yet vested.
       For these reasons we conclude that Hudson’s disability retirement did not divest
the Civil Service Commission of authority to rule on her appeal from the Department’s
discharge of her employment, and to order her employment by the Department restored.
              3.     Hudson’s withdrawal of her accumulated retirement
              contributions from LACERA did not end LACERA’s authority to
              reevaluate her disability status.
       The Department argues that the settlement agreement was necessarily intended to
end Hudson’s right to enforce the Civil Service Commission order, because she had
already been granted her disability retirement when the order was entered. The
agreement thus “recognized that LACERA had the exclusive authority to modify Hudson
nonservice-connected disability status,” by providing that the parties would adhere to the


                                              25
outcome of LACERA’s determination. But at the same time, the Department argues,
LACERA lacked authority to make the determination called for by the agreement; it
could not reevaluate Hudson’s disability status, because the withdrawal of her
accumulated retirement contributions had ended her LACERA membership.
       The settlement agreement need not necessarily be interpreted to foreclose either
the Department’s restoration of Hudson’s employment or LACERA’s reevaluation of her
disability status. It is true that only LACERA can determine whether Hudson is entitled
to a disability retirement. (§ 31725; Masters v. San Bernardino County Employees
Retirement Assn. (1995) 32 Cal.App.4th 30, 46-47.) And according to Hudson’s
pleadings, LACERA refused to reevaluate her disability status because she was no longer
a LACERA member due to her withdrawal of her retirement contributions. But the Civil
Service Commission’s order restoring Hudson to her employment does not require that
she must be assigned to any duties that she is not currently qualified to perform.21 If
Hudson’s employment is restored as the Civil Service Commission has ordered, she will
then be a LACERA member. Her previous disability retirement and withdrawal of
retirement contributions might affect her ability to redeposit her withdrawn retirement
contributions and be restored to her pre-disability-retirement status in LACERA, but it
does not affect whether she will be a LACERA member upon restoration as a Department
employee. (§ 31552 [county employees become LACERA members].) Upon restoration
of her employment, Hudson will be subject to LACERA’s evaluation of her capacity to
serve, no less than any other employee; Hudson’s evaluation will be among LACERA’s
statutory duties—with or without benefit of the settlement agreement, or redeposit of her
withdrawn retirement contributions.22 (§§ 31729, 31730; see discussion, § III, below.)


       21
         Section 31725 reserves to the retirement board the determination whether the
employee remains permanently disabled; but the determination whether Hudson suffers
from a temporary incapacity to perform the duties of her job remains with the
Department. (Phillips v. County of Fresno (1990) 225 Cal.App.3d 1240, 1257.)
       22
         LACERA acknowledged and represented in its motion for judgment on the
pleadings, filed November 6, 2012, that upon Hudson’s restoration as a Department

                                             26
       The written and oral settlement agreements alleged by Hudson may or may not be
enforceable, and if they are enforced they may or may not assist Hudson’s cause. But
they do not foreclose a determination that under the Civil Service Commission order
(with or without the settlement agreements) the Department owes a clear, present and
mandatory duty to restore Hudson to its employment, and that Hudson has a clear and
present beneficial right to the Department’s performance of that duty—entitling its
enforcement by mandate. (California Teachers Assn. v. Governing Board (1987) 195
Cal.App.3d 285, 295 [mandate may be issued where there is clear, present and usually
ministerial duty on the part of the defendant, and a clear, present and beneficial right in
plaintiff to performance of that duty].)
              4. Hudson’s mandate action was not necessarily untimely.
       The Department did not raise the statute of limitations as a ground for judgment on
the pleadings. Its answer to the original complaint had alleged an affirmative defense
listing nine code sections allegedly barring “this action,” (without identifying which
provision might apply to any particular claim); but the Department filed no answer to the
first amended complaint, and its challenges to that pleading did not mention any statute
of limitations.
       Nor did the trial court’s order for judgment on the pleadings on the action for
mandate address the statute of limitations. However, in ruling on Hudson’s
reconsideration request the trial court added a previously unstated ground for its
judgment on the pleadings order. It found that the longest possible statute of limitations
governing the mandate petition would be the three-year statute applicable to “[a]n action
upon a liability created by statute,” in subdivision (a) of Code of Civil Procedure section
338; and that the time for Hudson to seek mandate against the Department began to run
no later than March 24, 2008, when she admittedly had been advised that she had been

employee “she may re-deposit her previously withdrawn retirement funds pursuant to
California Government Code § 31652(a), which allows members to redeposit previously
withdrawn retirement contributions along with the interest that would have accrued on
those funds. Upon completion of the redeposit, membership would be as if it had been
unbroken by the termination of County service.”

                                             27
medically released by the Department and would not be reinstated. And on that basis the
court ruled that Hudson’s petition, filed April 1, 2011, was one week late and could not
be amended to show otherwise.
       The record does not support this ruling. We conclude that the claim for mandate
against the Department is not as matter of law time-barred. Even if a three-year statute of
limitations began running on March 24, 2008, the record includes facts that, if
established, could be found to have tolled the statute of limitations and prevented its
running against Hudson’s cause of action.
       Hudson’s amended pleading alleged that on or about August 5, 2008, the
Department entered into an oral agreement that it would assign her to a civilian position
in the Department until her disability status could be redetermined by LACERA, and that
it would reinstate her as a deputy sheriff if LACERA found her to be medically qualified
for that position. And her pleading alleged that in December 2008, the Department
entered into written agreement that it would hire Hudson in a temporary position until
LACERA could redetermine her disability status, and that it would reinstate her to
employment as a deputy sheriff if LACERA found her to be medically qualified. These
facts, if established, would support a determination that the Department had effectively
withdrawn or agreed to reconsider its notice that it would not reinstate Hudson, or that it
had entered into new agreements that it would comply with the order requiring Hudson’s
restoration to Department employment on specified terms.
       Either of these possible interpretations might support application of the discovery
rule, preventing the statute of limitations from running until Hudson either discovered, or
reasonably should have discovered, that the Department would not restore her
employment (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 [discovery
rule delays accrual of cause of action and running of statute of limitations until the
plaintiff has, or should have, inquiry notice of cause of action]); or the obligation’s
revival (Code Civ. Proc., § 360 [revival of cause of action by acknowledgement of
obligation]); or a determination that the statute of limitations was tolled pending the
agreements’ performance (Ashou v. Liberty Mut. Fire Ins. Co. (2006) 138 Cal.App.4th


                                             28
748, 763, 766-767 [equitable tolling of statute of limitations by defendant’s
reconsideration of earlier unequivocal denial of claim]; Aliberti v. Allstate Ins. Co. (1999)
74 Cal.App.4th 138, 146-149 & fn. 15 [tolling of statute of limitations by equivocal
representations concerning promise to pay]). Moreover, the court’s ruling on a decisive
issue of law not previously raised by any party or the court deprived Hudson of her right
to be heard—a substantial right to which she was entitled as a matter of due process.
(Moore v. California Minerals Products Corp. (1953) 115 Cal.App.2d 834, 837.) For
these reasons the statute of limitations cannot justify the trial court’s grant of judgment on
the pleadings on Hudson’s cause of action against the Department for mandate requiring
restoration of her employment.
III.   The Denial of Mandate Against LACERA Rests on Errors of Fact and Law
       Hudson’s pleading alleged that LACERA breached its fiduciary duties by failing
to advise her that withdrawing her accumulated retirement contributions would preclude
LACERA from reevaluating her disability status and would prevent her restoration to
employment with the Department. She contends LACERA’s breach gives rise to a
mandatory duty on LACERA’s part to permit her to redeposit the withdrawn
contributions. She seeks mandate requiring LACERA to permit her to redeposit her
withdrawn retirement contributions, to reinstate her as a member, and to reevaluate her
disability status.
       Denying Hudson’s mandate petition, the trial court held that by withdrawing her
retirement contributions Hudson knowingly waived future retirement benefits, and was
entitled to no further advice from LACERA. It based that conclusion on evidence that
after the Department had fired Hudson in early 2005, LACERA had provided a brochure
advising her that “Taking a withdrawal of [retirement contributions] terminates your
membership and you give up all rights to future retirement benefits from LACERA,
including disability benefits.” She withdrew her accumulated retirement contributions in
December 2006, after being advised for the second time that she was in any event entitled
to no disability benefits or retirement benefits (because her disability was not sufficiently
service-connected and her retirement benefits were not yet vested). Her withdrawal


                                             29
application warned her that “If I choose a withdrawal, I lose all rights to future retirement
benefits from LACERA, including disability benefits.”23
       The trial court held that LACERA had no duty to advise Hudson that by
withdrawing her retirement contributions she would be precluded from obtaining
LACERA’s future determination that she is no longer disabled, and that it had no duty to
advise her that she would be precluded from being restored to her employment as a
deputy sheriff—the remedy she was then seeking from the Civil Service Commission.
The court reasoned that because the LACERA brochure had warned that withdrawing
retirement contributions would preclude future retirement benefits, and LACERA did not
know Hudson was seeking restoration of her employment from the Civil Service
Commission, LACERA had no duty to inform Hudson that withdrawing her retirement
benefits would prevent reevaluation of her disability status.24
       LACERA unquestionably owed fiduciary duties requiring it to advise Hudson of
the consequences of withdrawing her accumulated retirement contributions, as the trial
court acknowledged. That is the central holding in Hittle v. Santa Barbara County
Employees Retirement Association (1985) 39 Cal.3d 374 (Hittle). There, the Supreme
Court held that retirement associations such as LACERA have fiduciary duties to fully
inform their members of their retirement options. Pension plans “create a trust
relationship between pensioner beneficiaries and the trustees of pension funds who
administer retirement benefits . . . and the trustees must exercise their fiduciary trust in
good faith and must deal fairly with the pensioners-beneficiaries.” (Id. at p. 392; see
Masters v. San Bernardino County Employees Retirement Assn., supra, 32 Cal.App.4th at
pp. 43-44.)


       23
         The record does not support the trial court’s finding that Hudson consulted with
her attorney before withdrawing her LACERA contributions. The cited portion of the
record shows only that Hudson answered “no” when she was asked whether she had
talked “to anyone besides your attorney” before the withdrawal. Neither that answer nor
anything else in the record constitutes evidence that she talked with her attorney about it.
       24
            As the trial court put it, “LACERA is not in the business of divination.”

                                               30
       In Hittle, a county employee was injured at work; after he stopped working, the
retirement association (analogous to LACERA) advised him that he could either
withdraw his accumulated retirement contributions or he could choose deferred
retirement. Although the retirement association had notice that he might qualify for a
disability retirement allowance, it did not fully advise him of that option. The employee
withdrew his retirement contributions, thereby rendering himself ineligible for a
retirement allowance. The court held that failure to advise the employee of that
consequence violated the association’s fiduciary duties to the employee. (Hittle, supra,
39 Cal.3d at p. 393 & fn. 12.)
       The court held in Hittle that the employee’s withdrawal of accumulated retirement
contributions could not constitute a waiver of his right to future retirement benefits
without a clear affirmative showing that the employee had been advised of that
consequence, which the record lacked. “[W]e conclude that the termination of
[retirement association] membership by the withdrawal of retirement contributions can be
enforced only upon a showing that the decision was an informed one.” (Id. at p. 380.)
“Accordingly, we conclude that Hittle’s withdrawal of his retirement contributions
cannot be deemed to constitute a valid waiver of his right to apply for disability
retirement.” (Id. at p. 389.)
       Here, as in Hittle, the substantial evidence test governs review of the trial court’s
factual determinations. (Hittle, supra, 39 Cal.3d at p. 388, fn. 9.) The record supports
the trial court’s findings that LACERA advised Hudson that withdrawing her retirement
contributions would end her right to retirement benefits (of which she was told she had
none). But the record contains no evidence at all that LACERA fulfilled its affirmative
fiduciary duty to advise Hudson that a consequence of withdrawing her accumulated
retirement contributions would also be to preclude any future evaluation and revision of
her disability status, or to preclude restoration of her employment by the Civil Service
Commission.
       In fact, the same LACERA brochure that advised Hudson that her withdrawal of
retirement contributions would waive any future disability benefits also advised her that


                                             31
even after withdrawing her accumulated contributions she might be eligible for future
employment and to redeposit her withdrawn contributions. Under the heading,
“Restoration to a Prior Plan,” the brochure advised, “If you used to be a safety member in
Plan A or Plan B and withdrew your retirement contributions and interest when you
terminated your employment with the County, you can restore all the benefits of your
former plan if you return to Plan A or Plan B and redeposit the withdrawn contributions
plus interest. . . .”25 It went on to advise that former members who had received a service
retirement may be rehired by the county and “may return to active membership in
LACERA,” by (1) applying for reinstatement, (2) being determined by LACERA not to
be incapacitated, and (3) being an eligible permanent employee.
       In short, LACERA’s advice to Hudson not only failed to advise her that by
withdrawing her retirement contributions she would end her right to have her wrongful
discharge set aside and have her employment restored, as it now asserts, it seemingly
provided affirmative advice that she might be able to “return to active membership in
LACERA,” to “restore all the benefits of your former plan,” and “redeposit the
withdrawn contributions plus interest. . . .” These statements—contradictory at best—
could support a determination that LACERA failed to fulfill its affirmative fiduciary
duties to advise Hudson of the consequences of withdrawing her accumulated retirement
contributions.
       LACERA’s duty to advise Hudson of the consequences of withdrawing her
accumulated retirement contributions does not depend on whether LACERA knew that
she was seeking restoration of her employment and might again become physically able
to perform the duties of a deputy sheriff. As the Supreme Court ruled in Hittle, the
retirement association must meet its fiduciary obligations to fully inform its members,
“notwithstanding the extent of the Association’s knowledge of each member’s particular
situation or entitlement.” (Hittle, supra, 39 Cal.3d at pp. 393-394.) In this case, although
LACERA may have been unaware that Hudson was then contesting her firing by the

       25
         According to the LACERA brochure, as a deputy sheriff hired after September
1, 1977, Hudson apparently had been a safety member in Plan B.

                                            32
Department and was undergoing surgeries to overcome her disabling circumstances, it
surely was generally aware that employees who have been retired for disabling physical
conditions may later become fit to return to employment, a possibility that the law
expressly contemplates. (§§ 31729, 31730, 31733.)26 It knew also that only LACERA
could make that determination (§§ 31725, 31730, 31733)—and that it could not do so if a
member had withdrawn his or her accumulated contributions. Nevertheless, LACERA’s
advice to its members of the consequences of withdrawing accumulated retirement
contributions does not mention any consequences at all except loss of future retirement
benefits, and its brochure might be understood to represent that as a safety officer,
Hudson might obtain the remedies that LACERA now denies.
       The trial court’s finding that LACERA fulfilled its duty to inform Hudson of the
consequence of withdrawing her accumulated retirement contributions therefore is not
supported by the record. For that reason its denial of mandate against LACERA must be
reversed.27 The claim will be remanded to the trial court for further proceedings to
determine this issue on its merits.


       26
         LACERA’s Disability Retirement Specialist Supervisor testified in deposition
that employees who have been given a disability retirement can later seek LACERA’s
reevaluation of their disability status as long as they have not terminated their LACERA
membership by withdrawing their accumulated retirement contributions.
       27
          The court’s finding that Hudson was guilty of unclean hands does not support
the ruling denying mandate against LACERA. Having held that Hudson had been
adequately advised of the consequences of withdrawing her accumulated retirement
contributions, the court concluded also that Hudson “does not come into court with clean
hands,” because her sworn and unsworn statements about her past and present disabilities
and intentions reflect misrepresentations of material fact at best, and “[a]t worst, she has
come close to committing perjury.” Hudson is entitled to have her statements,
understandings, and intentions interpreted in conjunction with a redetermination of her
rights to relief against LACERA, rather than in the context of the unsupported factual
findings and erroneous legal conclusions discussed above. (See F.T. v. L.J. (2011) 194
Cal.App.4th 1, 15-16 [If court’s decision is influenced by erroneous understanding of
applicable law, it has not properly exercised its discretion under the law].) For this
reason the trial court’s findings of unclean hands cannot alone justify the denial of
mandate against LACERA, and must also be reversed.

                                             33
IV.     The Trial Court Erred by Striking the First and Second Causes of Action of
        the First Amended Complaint Without Leave to Amend
        A.     The Amended Pleading did Not Violate the Order Granting Leave to
        Amend the Original Complaint
        The original complaint’s first cause of action pleaded a claim for specific
performance of the alleged December 22, 2008 written settlement agreement that Hudson
would be reinstated as a temporary employee of the Department until her disability status
could be reevaluated by LACERA, and then, depending on the outcome of that
reevaluation, she would be reinstated either as a deputy sheriff or as a custody assistant.
The trial court granted judgment on the pleadings in the Department’s favor as to that
claim, with leave to amend. Hudson did not amend her specific performance claim, but
instead pleaded claims that the Department’s conduct violated her rights to substantive
and procedural due process under civil rights laws, title 42 United States Code section
1983.
        The Department then argued (among other things) that the amended claims
exceeded the scope of the court’s leave to amend. The trial court agreed: “Yes, what I
allowed was leave to amend to plead, if [Hudson] could, compliance with a tort claims
act, which I suspect[ed] that she couldn’t do.” But “I didn’t give you leave to file a 1983
cause of action, that’s the problem. I only gave you leave to cure the contract claim.” On
that basis the court struck the first and second causes of action of the amended pleading,
without leave to amend.
        The record does not support the trial court’s recollection that it had granted leave
to amend only to allege compliance with the Tort Claims Act, or that it had precluded any
amendment except for breach of contract seeking specific performance. Tort Claims Act
compliance had not been among the issues mentioned at the hearing on the motion to
strike, or by the trial court’s order granting the motion. The court had explained that “the
basis for my [tentative] ruling is basically that I agree with the county that specific
performance is just not available here because it’s a personal services contract, which
would necessarily be “essentially an order from the court that the defendants employ her.


                                              34
And under Civil Code 3390, Subsection 2, that’s impermissible.” The court granted
leave to amend to cure the identified defect despite its “serious concerns that there is any
basis for amendment here because the statute so clearly precludes a specific performance
on a personal services [contract]. But in an effort to be fair, I’ll grant leave to amend, but
I don’t honestly see that specific performance is something that can be amended.” The
ruling did not mention claims act compliance.
       The Department’s reliance on Harris v. Wachovia Mortgage, FSB (2010) 185
Cal.App.4th 1018, in support of the ruling is misplaced. That case held that an
amendment to add a cause of action was not “within the scope of the order granting leave
to amend,” but it did not identify either the order granting leave at the previous hearing,
or the trial court’s limitation on the scope of a permissible amendment. Thus, it does not
hold that the pleading of “an entirely new cause of action” necessarily violates the scope
of an order granting leave to amend. It cites with approval the case of Patrick v. Alacer
Corp. (2008) 167 Cal.App.4th 995, 1015, holding that an amendment is permissible if it
“‘directly responds’ to the trial court’s reason” for sustaining the underlying demurrer.
And its only supporting citation on the issue is to a case holding that leave to amend does
not constitute leave to add a new defendant—an issue not involved either in Harris v.
Wachovia Mortgage, FSB, or in the case at hand. (Id. at p. 1023.)
       Even if the trial court had discretion to deny leave to amend at the hearing on the
original complaint, it did not. The leave to amend it granted neither expressly nor
impliedly precluded Hudson from pleading claims that would entitle her to relief without
specific performance of the settlement agreement that the court had held to be
unenforceable.
       The ruling striking the amended pleading’s first and second causes of action
without leave to amend, on the ground that they were in violation of the grant of leave to
amend and without consideration whether they state viable claims, therefore must be
reversed. (Quelimane Co. v. Stewart Title Guaranty Co., supra, 19 Cal.4th at p. 38 [if a
complaint does not state a cause of action, but there is a reasonable possibility that the
defect can be cured by amendment, leave to amend must be granted]; Blank v. Kirwan


                                             35
(1985) 39 Cal.3d 311, 318 [same].) The superior court can address in future proceedings
whether the amended pleading’s claims are sufficient to support the relief they seek and,
if they are not, whether further amendment should be permitted. (Lucas v. State of
California, supra, 58 Cal.App.4th at p. 748, fn. 3 [when trial court did not reach issue
whether claims adequately plead necessary elements, it is appropriate to leave the issue
for future determination by proceedings in the superior court].)
            B. The Trial Court Erred in Ruling that the Written Settlement
            Agreement can be Interpreted Only as a Contract that Would Necessarily
            Violate Civil Code Section 3390
       Hudson argues on appeal that the trial court erred by striking the original
complaint’s first cause of action on the erroneous ground that the alleged settlement
agreement is unenforceable as a matter of law under Civil Code section 3390.28 The
original complaint sought the Department’s performance of its obligations under the
alleged agreement, leading to restoration of Hudson’s employment with the Department.
       Contrary to the Department’s response, Hudson’s failure to amend her claim for
specific performance of the written settlement agreement does not bar her appeal from
the trial court’s grant of judgment on the pleadings. And contrary to the trial court’s
grant of judgment on the pleadings, the written settlement is susceptible to meanings that
would not necessarily require its interpretation as an unenforceable personal-services
employment contract, necessarily in violation of Civil Code section 3390 and Barndt v.
County of Los Angeles (1989) 211 Cal.App.3d 397.




       28
         Civil Code section 3390 provides in subdivision 2 that “The following
obligations cannot be specifically enforced: [¶] . . . [¶] 2. An obligation to employ another
in personal service.”

                                             36
              1.     Hudson’s failure to amend her claim for specific performance of
              the settlement agreement does not bar her appeal from the trial court’s
              grant of judgment on the pleadings.
       The Department argues that Hudson’s failure to amend her claim for specific
performance of the settlement agreement bars her appeal from the order granting
judgment on the pleadings. It correctly cites Goldtree v. Spreckels (1902) 135 Cal. 666,
672, and Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 785, for the
proposition that when a general demurrer is sustained with leave to amend, and the
plaintiff then declines to amend the claim, the plaintiff “practically confesses” that the
pleading contains the facts that are contended to be essential to the claim. But that omits
the critical point: If the plaintiff stands on her pleading after the demurrer is sustained
but is not satisfied with the ruling, she “has [her] remedy on appeal.” (Wells v. Marina
City Properties, Inc., supra, 29 Cal.3d at p. 785.)
       Here, as the Department argues, Hudson did not amend her claim for specific
performance of the settlement agreement, but instead pleaded claims under the civil
rights laws. By doing so she thereby stood on her pleading, preserving her right to appeal
from the order granting judgment on the pleadings on the specific performance claim.
              2.     Because the alleged settlement agreement might be interpreted
              in ways that would not violate Civil Code section 3390’s proscription
              against contracts for personal-service employment, the trial court
              erred in striking the first cause of action of the First Amended
              Complaint.
       Unless a document contained in a pleading or brought to the court by judicial
notice is subject to only one permissible interpretation, a court may not determine its
proper interpretation without the parties’ opportunity to present extrinsic evidence of the
document’s meaning. (StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn.
9 [judicial notice of document does not establish document’s proper interpretation];
Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114-115
[“The hearing on demurrer may not be turned into a contested evidentiary hearing


                                              37
through the guise of having the court take judicial notice of documents whose
truthfulness or proper interpretation are disputable”].)
       The settlement agreement alleged in the first cause of action of the original
complaint was made an exhibit to the pleading. It provides that the Department would
hire Hudson as a custody assistant (for which the Department conceded she was qualified
without reevaluation of her disability), that Hudson would “as soon as possible, take all
steps necessary” to obtain LACERA’s reevaluation of her disability status, and that “in
the event LACERA determines she is no longer disabled, the Department shall restore
Ms. Hudson to her previously held position of Deputy Sheriff pursuant to Civil Service.”
       Although the trial court held as a matter of law that that the agreement must
necessarily be interpreted as an agreement for personal-services employment in violation
of Civil Code section 3390, we conclude that it might be interpreted in ways that would
not necessarily violate that provision.29 It recites that it is intended “to settle all disputes
and issues” in “the above-referenced matter”— Civil Service Commission case No. 08-
146, Hudson’s then-pending appeal from the Department’s allegedly retaliatory medical
release. The agreement could be interpreted to tacitly recognize the Department’s legal
obligation under the Civil Service Commission order to restore Hudson to employment in
some capacity, depending on her current disability status. It therefore could be
interpreted merely to resolve the parties’ disputes about procedures by which the
Department can and will meet its legal obligations, consistent both with the Civil Service
Commission order and the rules that govern the Department and LACERA. Under such
an interpretation it is the order, not the agreement, that requires Hudson’s employment.
Again, the agreement’s actual interpretation and enforceability must await further trial
court proceedings.

       29
          We do not examine in this appeal the precise scope of Civil Code section 3390’s
limits on orders for specific performance. However the trial court’s broad interpretation
would seem to categorically preclude (for example) any administrative or judicial order
or settlement that could lead to the reinstatement of a civil servant or other employee who
was alleged to have been wrongfully discharged—a result with far-reaching and arguably
unintended consequences.

                                               38
                                       Conclusion
       The rulings striking Hudson’s claims and for judgment on the pleadings on the
claims against the Department, and the order denying the petition for writ of mandate
against LACERA, are unsupported. For these reasons the judgments in favor of the
Department and LACERA must be reversed, and the pleadings restored for further
proceedings in the superior court.

                                       Disposition
       The judgment against Hudson and in favor of the Department and LACERA is
reversed. The superior court is directed to: (1) vacate its order granting judgment on the
pleadings on the first cause of action of the original pleading by Hudson against the
Department; (2) vacate its order granting judgment on the pleadings on the first and
second causes of action of the first amended complaint; and (3) vacate its order granting
judgment on the pleadings on the third cause of action of the first amended complaint.
Whether Hudson will be able to establish the required facts and to overcome any future
factual and legal defenses interposed by the defendants remains to be determined.
Hudson is entitled to her costs on appeal.


                                                  CHANEY, Acting P. J.
We concur:


              JOHNSON, J.




              MILLER, J.*




       *
         Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

                                             39
Filed 12/15/14
                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                      DIVISION ONE


MONIQUE HUDSON,                                    B247593, B248983

        Plaintiff and Appellant,                   (Los Angeles County
                                                   Super. Ct. No. BC458667)
        v.
                                                  ORDER CERTIFYING OPINION
COUNTY OF LOS ANGELES, LOS                        FOR PUBLICATION AND DENYING
ANGELES COUNTY SHERIFF'S                          REHEARING
DEPARTMENT, LEROY BACA, and
LOS ANGELES COUNTY EMPLOYEES                      [NO CHANGE IN JUDGMENT]
RETIREMENT ASSOCIATION,

        Defendants and Respondents.



        THE COURT:
        The opinion filed in the above-entitled matter on November 14, 2014, was not
certified for publication in the Official Reports. Pursuant to California Rules of Court,
rule 8.1105(c), this opinion is ordered published in the Official Reports with the
exception of parts III and IV.
        Respondents petition for rehearing is denied.



________________________________________________________________________
CHANEY, Acting P. J.        JOHNSON, J.                MILLER, J.*


        *
         Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
