Filed 4/22/15

                           CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



FRANK FLETHEZ,                                   D066959

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. CIVDS1212542)

SAN BERNARDINO COUNTY
EMPLOYEES RETIREMENT
ASSOCIATION,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Bernardino County, David

Cohn, Judge. Affirmed in part; reversed in part and remanded for further proceedings.

        Arias & Lockwood and Christopher D. Lockwood for Defendant and Appellant.

        Faunce, Singer & Oatman, Mark Ellis Singer and Edward L. Faunce for Plaintiff

and Respondent.

        On February 1, 2000, following his last day of work as an employee of San

Bernardino County (County), Frank Flethez underwent surgery for a work-related spinal

injury he suffered in 1998. In 2008, he filed an application with the San Bernardino

County Employees Retirement Association (SBCERA) for work-related disability
retirements benefits. SBCERA granted his request for disability benefits, beginning as of

2008, but did not grant him retroactive benefits for the period before the date of his

application. Flethez filed a petition for writ of mandamus seeking retroactive disability

retirement benefits beginning July 15, 2000. The trial court issued a judgment granting

his petition and awarding him Civil Code section 3287, subdivision (a),1 (§ 3287(a))

prejudgment interest on the retroactive benefits to which the judgment provided he was

entitled. On appeal, SBCERA contends the trial court erred by awarding Flethez section

3287(a) prejudgment interest on his retroactive benefits beginning July 15, 2000, because

SBCERA could not have granted those benefits until he filed an application for disability

retirement and submitted evidence showing his entitlement to those benefits in 2008.

Based on our interpretation of section 3287(a) and consideration of relevant case law and

the facts in this case as discussed below, we conclude the trial court erred by awarding

Flethez prejudgment interest on his retroactive disability benefits before payments of

those benefits were due and before his right to recover those payments became vested

under section 3287(a).

                   FACTUAL AND PROCEDURAL BACKGROUND

       In 1990, Flethez became an employee of County. He worked as an equipment

operator from 1991 until 2000. In 1998, he was injured while performing his job duties.

After his last day of work on January 28, 2000, he underwent spinal surgery for that 1998




1      All statutory references are to the Civil Code unless otherwise specified.

                                             2
injury. He underwent additional surgeries in 2001 and 2002 and received physical

therapy through 2004.

       On June 12, 2008, Flethez filed an application with SBCERA for disability

retirements benefits, but it was rejected for omission of a signed medical records

authorization. On July 16, 2009, he filed a complete application, including a signed

medical records authorization and a supporting physician's report. On August 5, 2010,

based on its staff's recommendation, SBCERA granted Flethez's application for disability

retirement benefits, effective as of the date of his initial application in 2008. Flethez

requested a formal administrative hearing limited to the issue of the appropriate starting

date for his retirement benefits. On December 15, 2011, the administrative hearing was

held and the hearing officer subsequently issued proposed findings of fact, conclusions of

law, and a recommended decision. On October 4, 2012, SBCERA adopted the hearing

officer's proposed decision and maintained the effective date of June 12, 2008, for the

beginning of Flethez's disability retirement benefits.

       Flethez filed the instant petition for writ of mandamus pursuant to Code of Civil

Procedure section 1094.5, seeking a writ ordering SBCERA to set aside its decision and

grant him service-connected disability retirement benefits effective as of July 15, 2000,

with interest at the legal rate on all retroactive amounts. On November 21, 2013, the trial

court entered a judgment granting Flethez's petition, stating that a peremptory writ of

mandate had been issued by the court commanding SBCERA to grant him service-

connected disability retirement benefits retroactive to July 15, 2000, the day after the last

day he received regular compensation pursuant to Government Code section 31724. The

                                              3
judgment also ordered "payment of interest at the legal rate on all retroactive amounts.

Those interest payments total $132,865.37." SBCERA timely filed a notice of appeal

"limited to the issue of interest."

                                        DISCUSSION

                                               I

                                      Standard of Review

       The interpretation of a statute is a question of law that an appellate court

determines de novo independently of the trial court's interpretation. (Regents of

University of California v. Superior Court (1999) 20 Cal.4th 509, 531; Riehl v. Hauck

(2014) 224 Cal.App.4th 695, 699.) Furthermore, the application of a statute to

undisputed facts is also reviewed de novo. (Aryeh v. Canon Business Solutions, Inc.

(2013) 55 Cal.4th 1185, 1191; Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th

757, 765.)

       "The rules governing statutory construction are well settled. We begin with the

fundamental premise that the objective of statutory interpretation is to ascertain and

effectuate legislative intent. [Citations.] 'In determining intent, we look first to the

language of the statute, giving effect to its "plain meaning." ' [Citations.] Although we

may properly rely on extrinsic aids, we should first turn to the words of the statute to

determine the intent of the Legislature. [Citation.] Where the words of the statute are

clear, we may not add to or alter them to accomplish a purpose that does not appear on

the face of the statute or from its legislative history." (Burden v. Snowden (1992) 2

Cal.4th 556, 562.)

                                              4
                                             II

            Disability Retirement Benefits for County Employees under CERL

       The retirement benefits for county employees are generally set forth in the County

Employees Retirement Law of 1937 (Gov. Code, §§ 31450 et seq.) (CERL). County

employees may be entitled to disability retirement benefits regardless of their age if they

have become permanently incapacitated as a result of injury or disease substantially

arising out of and in the course of their employment. (Gov. Code, §§ 31720, 31720.1.)

       To obtain disability retirement benefits, a county employee (or his or her

employer, the retirement board, or another person on his or her behalf) must file an

application for disability retirement benefits. (Gov. Code, § 31721, subd. (a) ["A

member may be retired for disability upon the application of the member . . . ."].) An

application for disability retirement benefits "shall be made while the member [i.e.,

employee who is part of a county retirement system] is in service, within four months

after his or her discontinuance of service, within four months after the expiration of any

period during which a presumption is extended beyond his or her discontinuance of

service, or while, from the date of discontinuance of service to the time of the application,

he or she is continuously physically or mentally incapacitated to perform his or her

duties." (Gov. Code, § 31722.) The county retirement board [e.g., SBCERA] "may

require such proof, including a medical examination at the expense of the member, as it

deems necessary or the board upon its own motion may order a medical examination to

determine the existence of the disability." (Gov. Code, § 31723.)

       Importantly for this case, Government Code section 31724 provides:

                                             5
           "If the proof received, including any medical examination, shows to
           the satisfaction of the board that the member is permanently
           incapacitated physically or mentally for the performance of his [or
           her] duties in the service, it shall retire him [or her] effective on the
           expiration date of any leave of absence with compensation to which
           he [or she] shall become entitled . . . or effective on the occasion of
           the member's consent to retirement prior to the expiration of such
           leave of absence with compensation. His [or her] disability
           retirement allowance shall be effective as of the date such
           application is filed with the board, but not earlier than the day
           following the last day for which he [or she] received regular
           compensation. . . .

           "When it has been demonstrated to the satisfaction of the board that
           the filing of the member's application was delayed by administrative
           oversight or by inability to ascertain the permanency of the
           member's incapacity until after the date following the day for which
           the member last received regular compensation, such date will be
           deemed to be the date the application was filed." (Italics added.)

The retirement board shall determine whether the member is permanently incapacitated

for the performance of his or her job duties. (Gov. Code, § 31725.) The burden of proof

is on the member applying for disability retirement benefits to show he or she is

permanently incapacitated as a result of performing his or her job duties. (Masters v. San

Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 46; Glover v.

Board of Retirement (1989) 214 Cal.App.3d 1327, 1337; Harmon v. Board of Retirement

(1976) 62 Cal.App.3d 689, 691.)

       "Board members 'are entrusted by statute with the exclusive authority to determine

the factual issues whether a member is permanently incapacitated for duty [citation] and

whether the disability is service connected [citation].' [Citation.] The Board is therefore

required to administer the retirement system 'in a manner to best provide benefits to the

participants of the plan.' [Citations.] It cannot fulfill this mandate unless it investigates

                                               6
applications and pays benefits only to those members who are eligible for them.

[Citations.] . . . [¶] . . . The Board, not the employer, has the constitutional and statutory

duty to manage the retirement fund and to determine whether the fund is obligated to pay

benefits to any particular applicant." (McIntyre v. Santa Barbara County Employees'

Retirement System (2001) 91 Cal.App.4th 730, 734-735.)

                                              III

       Prejudgment Interest on Flethez's Retroactive Disability Retirement Benefit

       SBCERA contends the trial court erred by awarding Flethez section 3287(a)

prejudgment interest from July 15, 2000, on his retroactive disability retirement benefits

because SBCERA could not have granted those benefits until he filed an application for

disability retirement and submitted evidence showing his entitlement to those benefits. It

asserts prejudgment interest could not apply to retroactive benefits before payments of

those benefits were due and before Flethez's right to recover those payments became

vested under section 3287(a), which SBCERA contends did not occur until December 15,

2011, the date of the administrative hearing at which disability benefits to Flethez were

denied.

                                               A

       Section 3287(a) provides:

           "A person who is entitled to recover damages certain, or capable of
           being made certain by calculation, and the right to recover which is
           vested in the person upon a particular day, is entitled also to recover
           interest thereon from that day, except when the debtor is prevented
           by law, or by the act of the creditor from paying the debt. . . ."
           (Italics added.)


                                               7
"There is scant pertinent legislative history, but [section 3287(a)'s] meaning is clear.

Section 3287(a) allows parties to recover prejudgment interest in damage actions based

on a general underlying monetary obligation, including the obligation of a governmental

entity determined by way of mandamus." (American Federation of Labor v.

Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1030 (AFL).)

       In the context of employees' salary and benefits, "[a]mounts recoverable as

wrongfully withheld payments of salary or pensions are damages within the meaning of

[section 3287(a)]. [Citations.] Interest is recoverable on each salary or pension payment

from the date it fell due." (Olson v. Cory (1983) 35 Cal.3d 390, 402, italics added.)

"[P]ursuant to [section 3287(a)], courts have awarded prejudgment interest on a trial

court judgment following a successful administrative mandamus action to recover

wrongfully withheld benefits. [Citations.] Interest may be awarded in the mandamus

action because the requirements for the additional award of interest are met once the

court determines the Board wrongfully denied benefits." (AFL, supra, 13 Cal.4th at

p. 1022.)

       "[T]o recover section 3287(a) interest in the mandamus action, the claimant must

show: (1) an underlying monetary obligation, (2) damages which are certain or capable of

being made certain by calculation, and (3) a right to recovery that vests on a particular

day. [Citation.] The rationale for the mandamus interest award is that a claimant who is

wrongfully denied unemployment insurance [or other] benefits by the Board must receive

compensation for the egregious delay in receiving benefits caused by the necessity of

filing a mandamus action challenging the Board's denial." (AFL, supra, 13 Cal.4th at

                                              8
p. 1022.) In the context of unemployment benefits, the California Supreme Court in AFL

reasoned that the Employment Development Department (EDD) "has no underlying

monetary obligation to the claimant until it determines the claimant is eligible for the

benefits. [Citation.] Once eligibility has been determined, the right to receive benefits

vests on the first day of the claimant's entitlement, and the EDD must promptly pay

benefits due, regardless of any appeal taken. [Citations.] Hence, a 'wrongful

withholding' of benefits, and the corresponding delay in receiving benefits, cannot have

legal significance entitling the claimant to prejudgment interest until the Board makes its

final decision that the claimant is not entitled to the benefits." (Id. at p. 1023, italics

added.) AFL alternatively explained: "Benefits . . . are due promptly only after a

claimant has established benefit eligibility. [Citation.] . . . The delays inherent in this

system [for determining eligibility for unemployment benefits] are not, however,

tantamount to a 'wrongful withholding' of benefits giving rise to a right to section 3287(a)

prejudgment interest . . . ." (Id. at p. 1026, italics added.) However, if the EDD denies

eligibility, the employee may file a petition for writ of administrative mandate in the trial

court. (Ibid.) If the court then exercises its independent judgment and finds the EDD

"has wrongfully withheld benefits, 'a claimant has met all requirements of the act, and all

contingencies have taken place under its terms, [the claimant] then has a statutory right to

a fixed or definitely ascertainable sum of money. [Citations.]' [Citation.] At this point,

the claimant has met the requirements of section 3287(a), and may seek prejudgment

interest on the mandamus judgment for the delay caused by the [EDD] Board's wrongful



                                               9
denial of benefits."2 (AFL, supra, 13 Cal.4th at p. 1027; cf. Currie v. Workers' Comp.

Appeals Bd. (2001) 24 Cal.4th 1109, 1118-1119 [§ 3287(a) prejudgment interest must be

awarded by WCAB on retroactive wages from the date employee should have been

reinstated and paid those wages for employer's violation of Lab. Code, § 132a].) In San

Diego County Deputy Sheriffs Assn. v. San Diego County Civil Service Com. (1998) 68

Cal.App.4th 1084, 1094, we observed: "The central theme of AFL . . . is that

[prejudgment] interest is not available absent an agency decision or action which has

resulted in wrongful withholding of, and corresponding delay in receiving, benefits to

which the claimant is entitled." (Italics added.)

       In Tripp v. Swoap (1976) 17 Cal.3d 671 (Tripp), the California Supreme Court

held that if the Director of the former Department of Social Welfare wrongfully denies a

claimant's application for welfare disability benefits, the claimant may file a petition for

writ of administrative mandamus for an order directing the Director to pay the claimant

benefits retroactively from the date of his or her application. (Id. at pp. 675-676.) In the

circumstances of that case, Tripp concluded "the effective date of [the claimant's]

entitlement to benefits" was the "first day of the month following the date of application

[for benefits]." (Id. at p. 678.) Citing section 3287(a)'s language, Tripp stated: "[F]or

purposes of ordering retroactive payments, the right to receive benefits vests in the


2      AFL concluded that because "only a court may award prejudgment interest on its
judgment following a mandamus action to recover benefits wrongfully withheld by
Board," administrative law judges do not have statutory authority to award interest on
awards of retroactive unemployment insurance benefit payments. (AFL, supra, 13
Cal.4th at p. 1043.)

                                             10
recipient on the first date of his [or her] entitlement." (Tripp, at p. 683.) Tripp concluded

the claimant was entitled to prejudgment interest on benefits wrongfully withheld from

the claimant based on section 3287(a)'s language and the delay caused by the claimant's

need to vindicate his or her entitlement to benefits. (Id. at pp. 683, 685.) The court held:

"[W]here a recipient of welfare benefits is adjudged entitled to retroactive payment of

benefits pursuant to the statutory obligation of the state, such recipient is entitled to an

award of prejudgment interest at the legal rate from the time each payment becomes due."

(Id. at p. 685, italics added.) Interpreting Tripp, AFL subsequently stated that Tripp held

"interest awarded in mandamus actions vests on the date the claimant was entitled to

receive payment of unemployment insurance [benefits]." (AFL, supra, 13 Cal.4th at

p. 1034, italics added.)

       In Weber v. Board of Retirement (1998) 62 Cal.App.4th 1440 (Weber), the court

addressed the question of whether administrative agencies (e.g., retirement boards) have

the authority "to award interest on benefits which have not been denied, but . . . represent

the period before the Board made the eligibility determination, and . . . are designed to

bring the disbursements current." (Id. at p. 1445.) Weber stated: "The event which

triggers retirement and the right to allowance payments is the disability determination by

the Board. Until that time, the member is not retired, and [the retirement system] has no

monetary obligation to that member." (Id. at p. 1448, italics added.) "[O]nce disability is

demonstrated to the Board's satisfaction, the member's right to receive benefits vests

retroactively to the date the application was filed." (Id. at p. 1449.) Alternatively stated,

"[Government Code section 31724] provides that once the eligibility determination is

                                              11
made, the right to benefits vests immediately, effective retroactively." (Id. at p. 1451.)

Weber explained:

          "[T]he member seeking [disability retirement] benefits must apply
          [citation], and carries the burden [citation] of demonstrating, to the
          Board's satisfaction [citation], his or her eligibility for the benefits.
          [Citation.] Until the member makes the necessary showing of
          eligibility, his or her right is merely inchoate." (Weber, supra, 62
          Cal.App.4th at p. 1451, italics added.)

Weber concluded neither the CERL nor section 3287(a) authorized an administrative

award of prejudgment interest. (Weber, supra, at p. 1452.)

       In Austin v. Board of Retirement (1989) 209 Cal.App.3d 1528 (Austin), the court

addressed the question of whether the trial court erred by finding an employee was

entitled to interest from the last day of service on the retroactive portion of his award of

disability retirement benefits. (Id. at pp. 1530-1531.) In that case, the employee applied

for disability retirement benefits in 1985, which application was initially denied, and,

following an administrative hearing, the retirement board denied his application in 1987

on finding he was not disabled. (Id. at p. 1531.) In 1988, the trial court granted the

employee's petition for writ of mandate and issued a writ directing the retirement board to

grant him disability retirement benefits retroactive to his last day of service with interest

at the legal rate on the amount of the pension that was retroactive (i.e., presumably for

payments for the period from 1985 through 1988). (Ibid.) Austin initially concluded the

statutory scheme governing disability pension benefits did not preclude recovery of

section 3287(a) interest on "damages awarded as prejudgment benefits from the date such

benefits became due." (Austin, at p. 1533, italics added.) The court stated: " '[Section


                                              12
3287(a)] requires vesting, however, only in order to fix with sufficient certainty the time

when the obligation accrues so that interest should not be awarded on an amount before

it is due.' " (Id. at p. 1533, quoting Mass v. Board of Education (1964) 61 Cal.2d 612,

625, italics added.) Accordingly, Austin rejected the retirement board's argument that

section 3287(a) interest could not accrue on the amount of retroactive benefits for the

period prior to its completion of the administrative process in deciding the employee's

application. (Austin, at pp. 1532-1534.) The court reasoned: "If [the employee] had not

been wrongfully denied disability retirement benefits, he would have obtained the

benefits of the moneys paid as of the date of accrual of each payment." (Id. at p. 1534.)

Therefore, Austin affirmed the judgment awarding the employee section 3287(a)

prejudgment interest. (Austin, at p. 1536.)

                                              B

       Based on our interpretation of the language of section 3287(a) and that statute's

apparent underlying legislative intent, we conclude an award of section 3287(a)

prejudgment interest cannot, and should not, be made for retroactive disability retirement

benefit payments for the period prior to the date those payments became due. Section

3287(a) provides: "A person who is entitled to recover damages certain, or capable of

being made certain by calculation, and the right to recover which is vested in the person

upon a particular day, is entitled also to recover interest thereon from that day . . . ."

(Italics added.) Paraphrasing that statute, we conclude, in the context of disability

retirement benefits, a retiring member is entitled to recover section 3287(a) prejudgment

interest on a court award of disability retirement benefits from the day on which his or

                                              13
her right to recover those benefit payments became vested. However, it is important to

distinguish between the retroactive date from which benefits are awarded and the date on

which the retiring member becomes entitled to recover those retroactive benefit

payments. It is not until the retiring member establishes his or her entitlement to

retroactive benefit payments that the right to such payments becomes vested. Prior to

such proof, the retiring member's right to such retroactive benefit payments is merely

inchoate. (Weber, supra, 62 Cal.App.4th at p. 1451.) Furthermore, until the retiring

member proves his or her right to recover retroactive disability retirement payments,

there is no underlying monetary obligation (i.e., damages) on which to award section

3287(a) prejudgment interest. (Cf. AFL, supra, 13 Cal.4th at p. 1023.) It is only on the

date that a retiring member proves entitlement to retroactive benefit payments that those

payments become due and the right to recover those payments becomes vested within the

meaning of section 3287(a). (Olson v. Cory, supra, 35 Cal.3d at p. 402 [regarding salary

and pension payments]; Weber, at p. 1451 [regarding disability retirement benefits]; cf.

AFL, at pp. 1023, 1026 [regarding unemployment benefits]; Tripp, supra, 17 Cal.3d at

pp. 683, 685 [regarding welfare disability benefits]; Mass v. Board of Education, supra,

61 Cal.2d at p. 625 [§ 3287(a) interest should not be awarded on an amount before it is

due].)

         In the context of disability retirement benefits under the CERL, a retiring member

generally is not entitled to payment of disability retirement benefits until such time he or

she files an application for such benefits. (Gov. Code, § 31721, subd. (a) ["A member

may be retired for disability upon the application of the member . . . ."].) Furthermore,

                                             14
the burden of proof is on the retiring member to show he or she is permanently

incapacitated and that such incapacity substantially was the result of performing his or

her job duties. (Gov. Code, §§ 31723, 31725; Masters v. San Bernardino County

Employees Retirement Assn., supra, 32 Cal.App.4th at p. 46; Glover v. Board of

Retirement, supra, 214 Cal.App.3d at p. 1337; Harmon v. Board of Retirement, supra, 62

Cal.App.3d at p. 691.) The retirement board has the constitutional and statutory duty to

manage the retirement fund and, in so doing, to determine whether the fund is obligated

to pay benefits to any particular applicant. (McIntyre v. Santa Barbara County

Employees' Retirement System, supra, 91 Cal.App.4th at pp. 734-735.) Until such time

as the retiring member submits an application for disability retirement benefits and

submits proof that he or she is permanently incapacitated substantially as a result of

performing his or her job duties, the retirement board has no obligation to pay such

benefits to that member. Therefore, a retiring member has no "vested" right to recover

disability retirement benefit payments, whether retroactive or prospective, and thus no

"damages," or underlying monetary obligation, within the meaning of section 3287(a)

until such time as he or she files an application for such benefit payments and proves

entitlement thereto. It is only on that particular day section 3287(a) interest begins to

accrue on benefit payments that are then due.

       Our interpretation of section 3287(a) in this context is supported by its apparent

underlying legislative intent, implicitly recognized by the California Supreme Court. In

both Tripp and AFL, the court explained section 3287(a) prejudgment interest was

intended to compensate the claimant for the delay in receiving payment of benefits

                                             15
caused by the wrongful denial or withholding of those benefits. (Tripp, supra, 17 Cal.3d

at pp. 683, 685; AFL, supra, 13 Cal.4th at pp. 1022-1023, 1027.) The California

Supreme Court stated: "The rationale for the [section 3287(a)] mandamus interest award

is that a claimant who is wrongfully denied unemployment insurance [or other] benefits

by the Board must receive compensation for the egregious delay in receiving benefits

caused by the necessity of filing a mandamus action challenging the Board's denial."

(AFL, at p. 1022.) Absent any wrongful denial or wrongful withholding of benefits and

the delay in receiving benefit payments caused thereby (e.g., by requiring the retiring

member to file a petition for writ of mandate to obtain such benefit payments), there is no

justification for an award of section 3287(a) prejudgment interest. Until such time a

retiring member has filed an application for disability retirement benefits and proves

entitlement thereto, the retirement board has neither wrongfully withheld payment of

those benefits nor caused any delay in the member's receipt of those payments and

therefore no section 3287(a) prejudgment interest should accrue on any retroactive

benefits ultimately awarded to the member attributable to the time period before that

application and proof.

                                              C

       Applying our interpretation of section 3287(a) to the undisputed facts in this case,

we conclude, as SBCERA asserts, the trial court erred by awarding Flethez section

3287(a) prejudgment interest on those retroactive disability benefit payments attributable

to the period before he filed his application for, and proved his entitlement to, the

disability benefits. To the extent Austin, supra, 209 Cal.App.3d 1528, held to the

                                             16
contrary as Flethez asserts, we disagree with, and decline to follow, its holding.3

Although the trial court in this case properly found, and SBCERA does not contest on

appeal, Flethez was entitled to retroactive disability retirement benefits from the day

following the last day he received regular compensation (i.e., July 15, 2000), it erred by

awarding him section 3287(a) interest on those retroactive benefit payments attributable

to the period from July 15, 2000, through the time he applied for, and proved his right to

receive, such payments.4 However, based on the record on appeal, we cannot conclude

with certainty on what date Flethez, in fact, established his right to receive retroactive

disability retirement benefit payments pursuant to Government Code section 31724.

SBCERA asserts that date was December 15, 2011, the date of the administrative

hearing. However, the parties' briefing and evidence in the record cited on that issue is

insufficient for us to make that factual finding on appeal. On remand the court is directed

to conduct further proceedings to determine that question of fact and then award Flethez

the appropriate amount of section 3287(a) prejudgment interest from that date.

3       It is not clear from the opinion in Austin when the retiring member filed his
application for, and proved his entitlement to, disability retirement benefits. If, in fact,
his last day of service was on or after June 11, 1985, and he met his burden to prove his
right to benefits on the date he filed his application (i.e., June 11, 1985), then the result in
Austin is entirely consistent with our interpretation. (Austin, supra, 209 Cal.App.3d at
pp. 1530-1531, 1536.)

4      In resolving this appeal on this ground, we need not, and do not, address
SBCERA's alternative contention that section 3287(a) prejudgment interest does not
accrue during such time as Flethez's acts, or inactions (i.e., his prolonged delay in filing
his application and proving his entitlement to benefits), "prevented" it from paying his
retroactive disability retirement payments, or its "debt," within the meaning of section
3287(a).

                                              17
                                       DISPOSITION

       The judgment is reversed to the extent it awarded Flethez section 3287(a)

prejudgment interest on all retroactive disability retirement benefits. In all other respects,

the judgment is affirmed. The matter is remanded for further proceedings consistent with

this opinion. The parties shall bear their own costs on appeal.



                                                                            McDONALD, J.

WE CONCUR:


NARES, Acting P. J.


McINTYRE, J.




                                             18
