Filed 7/17/14
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT

JOSAFAT RODRIGUEZ, JR.,                             H038973
                                                   (Santa Cruz County
        Plaintiff and Appellant,                    Super. Ct. No. CV173783)

        v.

CITY OF SANTA CRUZ et al.,

        Defendants and Respondents.


        Petitioner Josafat Rodriguez, Jr., a former Santa Cruz police officer, applied to the
City of Santa Cruz (the City) for industrial disability retirement, alleging psychiatric
disability due to posttraumatic stress disorder (PTSD). The City denied Rodriguez’s
application. Rodriguez challenged that denial by means of a petition for a writ of
administrative mandate, which the superior court denied. On appeal from that denial
Rodriguez claims, among other things, that the trial court applied the incorrect standard
of review. We agree and therefore shall reverse the order denying the petition and
remand the case to the trial court.
I.      BACKGROUND
        A.        Factual Background
                  1.   Rodriguez’s Military Service
        Rodriguez joined the Marine Corps in 1989, immediately after graduating from
high school. He served in the first gulf war as the demolition specialist in a five-man
infantry fire team. He and his team patrolled the border between Saudi Arabia and
Kuwait for approximately six months. A mortar attack killed three of his team members
and injured the fourth. Following the attack, Rodriguez and another fire team had the
gruesome task of collecting the slain marines’ bodies. Rodriguez also was involved in
multiple fire fights and battles during the conflict. He was discharged from the Marines
in 1993.
                2.    Employment with the Santa Cruz Police Department
       Rodriguez joined the Santa Cruz Police Department in 1995 and became a
member of the Santa Cruz County Narcotics Enforcement Team in 1998. As a part of
that team, he performed dangerous undercover work. Rodriguez received positive
performance evaluations in 1997, 1998, and 1999.
       On January 6, 2000, Rodriguez fell during a nighttime raid, injuring his back and
leg. He was unable to work for approximately one year as a result of the injury. When
Rodriguez returned to work, he did so as a police station duty officer because his injury
prevented him from doing field work. Rodriguez held that position until going on leave
for back surgery in November 2005. During at least some portion of his time as a police
station duty officer, Rodriguez worked as a detective in the investigations unit, which
involved conducting interviews and reviewing crime scene photographs.
       In July 2006, after Rodriguez’s doctor cleared him to return to work following
back surgery, the Santa Cruz Police Department again offered Rodriguez the position of
police station duty officer. Rodriguez rejected the offer in August 2006, saying he was
physically unable to perform the job due to continuing pain and his pain medications. At
about the same time, Rodriguez filed an application for industrial disability retirement on
the basis of disability affecting his back, hands, and wrist.1
       Rodriguez returned to work for two weeks in late March and early April 2007 after
being ordered to do so or face termination. During that time, he repeatedly asked to go
home due to back pain. Rodriguez stopped showing up for work and was again warned
that he faced termination. On June 7, 2007, Rodriguez resigned for “health reasons.”

       1
           That application was denied in February 2008.

                                              2
              3.     Second Industrial Disability Retirement Application for PTSD
       Rodriguez filed a second application for industrial disability retirement three years
later, claiming a psychological disability caused by PTSD. At the October 2011
administrative hearing on that application, Rodriguez testified that he first experienced
PTSD symptoms--specifically nightmares about his combat experiences--early in his
career with the police department. He did not tell anyone about the dreams, instead
drinking to fall asleep. Rodriguez testified that he had flashbacks to the war, in addition
to nightmares, while working as a police station duty officer. Although he never
discussed these issues with his wife, they ruined his marriage and he got divorced.
       According to Rodriguez, it was not until he spoke with a counselor at a Veterans’
Affairs clinic in 2007 that he first learned about PTSD and began to understand his
symptoms. He now attributes his inability to return to work in 2006 and 2007, not to his
back pain, but to his PTSD. Rodriguez testified that he now avoids his PTSD triggers,
which include sirens and police uniforms, but has not yet sought treatment for the
disorder.
       Rodriguez also testified as to his activities outside of police work over the past
decade. These included getting his real estate license sometime between 2000 and 2002,
affiliating with a broker, and leading a team of real estate agents. Rodriguez earned
$95,000 from real estate work in 2005 and $24,000 in 2006. He testified that he had not
sold any real estate since 2007, but acknowledged that his license remains valid until
2015. Rodriguez also stated that he purchased between five and 10 investment properties
while he was selling real estate, which he rented out and managed.
       Rodriguez testified that he helped found a volunteer nonprofit organization called
the Central Coast Gang Investigator Association sometime prior to 2001. In February
2011, the group’s Web site identified Rodriguez as a member of its advisory council, but
he testified that he had not been involved with the group since 2006 or 2007.


                                              3
        Between 2004 and 2007, Rodriguez formed two corporations and a family trust.
He testified that he had no memory of doing so.
        In 2009 or 2010, Rodriguez started his own private investigation business after
passing a state license exam.
        Rodriguez also testified that he had remarried and had a baby with his second
wife.
              4.     Medical Evidence Presented at the 2011 Disability Hearing
        Reports from six medical professionals were admitted at the administrative
hearing.
                      Marsha Malis, Ph.D.
        Marsha Malis, Ph.D., a marriage family therapist who treated Rodriguez for an
unspecified duration, stated in a January 2008 report that Rodriguez “exhibits signs of
anxiety, depression, fear and pain over the issues related to continued police work.” Dr.
Malis attributed that anxiety to Rodriguez’s physical pain and his resulting inability to
perform his job duties. She made no mention of PTSD.
                     Peter Berman, Ph.D.
        Peter Berman, Ph.D., of the Department of Veterans’ Affairs, diagnosed
Rodriguez with PTSD on February 21, 2008, following a PTSD evaluation the day prior.
According to the report, Rodriguez was working as an event planner at the time. Dr.
Berman conducted a review examination on August 28, 2008, after which he concluded
that Rodriguez’s PTSD symptoms had worsened.
                      Carla Galloway, M.D.
        Carla Galloway, M.D., also affiliated with the Department of Veterans’ Affairs,
conducted another PTSD review examination of Rodriguez on December 7, 2009. Dr.
Galloway determined Rodriguez was not “capable of substantially gainful employment at
the present time without further treatment.”


                                               4
                     James Bryant, Ph.D.
       James Bryant, Ph.D., a clinical psychologist, performed psychological tests on
Rodriguez at the request of Mark A. Snyder, M.D., who was retained by the City in
connection with Rodriguez’s second disability retirement claim. Dr. Bryant reported the
results of the various tests he administered and diagnosed Rodriguez with PTSD and
generalized anxiety disorder.
                     Trent E. Cornell, Ph.D.
       Trent E. Cornell, Ph.D., a clinical psychologist retained by Rodriguez, diagnosed
Rodriguez with PTSD in a report dated September 13, 2011. Dr. Cornell based that
diagnosis on two hour-long sessions with Rodriguez, a conversation with Dr. Malis, Dr.
Berman’s reports, Dr. Galloway’s report, documents from the Santa Cruz Police
Department, and the results of Dr. Bryant’s psychological testing. Dr. Cornell opined
that Rodriguez’s PTSD was exacerbated by his police work, particularly his work in
narcotics enforcement, which involved dangers reminiscent of those he faced in combat.
       In a second report dated October 5, 2011, Dr. Cornell opined that Rodriguez was
substantially incapacitated from performing the duties of police station duty officer at the
time he resigned and remained so, as “any form of ‘police work’ would intensify his
[PTSD] symptomatology.”
                      Mark A. Snyder, M.D.
       Mark A. Snyder, M.D., interviewed Rodriguez for two-and-a-half hours in June
2011. He also reviewed Dr. Bryant’s psychological test results, records from the Santa
Cruz Police Department and the Department of Veterans’ Affairs, and various medical
records. In his first report, dated September 6, 2011, Dr. Snyder diagnosed Rodriguez
with PTSD. Dr. Snyder explained that he had requested psychological testing because he
had concerns about Rodriguez’s credibility, given Rodriguez’s failure to disclose his
PTSD symptoms to the police department, his family, or Dr. Malis. Dr. Snyder also
noted that “significantly delayed onset of . . . Post Traumatic Stress Disorder,” as
                                               5
described by Rodriguez, is “infrequent.” Nevertheless, Dr. Snyder concluded that
Rodriguez’s failure to report his symptoms was consistent with the psychological test
results, which indicated Rodriguez was in denial about his psychological problems. Dr.
Snyder further stated that the psychological testing indicated Rodriguez was not
fabricating or magnifying his symptoms. According to Dr. Snyder, the PTSD “was a
consequence of [Rodriguez’s] experiences in the Police Department and his experiences
in the Marine Corps,” and the disorder was “awakened” from a “repressed” state by life
threatening police work. Dr. Snyder also diagnosed Rodriguez with panic disorder
without agoraphobia, generalized anxiety disorder, and a personality disorder. Dr.
Snyder concluded that Rodriguez “is substantially incapacitated and unable to perform . .
. the duties of a Police Station Duty Officer because even such an environment provides a
sufficient number of cues that provoke memories of disturbing events and stimulate
[Rodriguez] to develop anxiety.”
       The City asked Dr. Snyder to reconsider his findings based on additional
documents. In particular, the City provided Dr. Snyder with the administrative law
judge’s (ALJ) proposed decision denying Rodriguez’s first petition for disability
retirement and a printout from the Central Coast Gang Investigator Association Web site
listing Rodriguez as a member of its advisory council. In his second report, dated
September 28, 2011, Dr. Snyder concluded Rodriguez was not credible. In support of
that conclusion, Dr. Snyder noted that Rodriguez had not disclosed his real estate work,
the corporation he had formed (which Dr. Snyder characterized as “a second job”), or his
role with the Central Coast Gang Investigator Association. Dr. Snyder also pointed to
Rodriguez’s failure to inform the police department about his psychological problems,
inconsistencies between what Rodriguez told physicians and his deposition testimony,
and Rodriguez’s uncooperative behavior toward the police department immediately
preceding his resignation. “[O]n the basis of [Rodriguez’s] lack of credibility coupled
with the fact that, while claiming disability, he [was] able to work as a real estate agent,
                                              6
start a corporation, [and] be on the board of a community organization,” Dr. Snyder
concluded Rodriguez was not substantially incapacitated from performing the duties of
police station duty officer.
       B.       Procedural Background
                1.    December 13, 2011 ALJ Decision
       In a 13-page decision, the ALJ concluded that Rodriguez failed to establish that he
is permanently incapacitated from performing the duties of a police station duty officer.
According to the ALJ, the position of police station duty officer includes the following
duties: “answering the telephone, scheduling meetings and hearings, . . . acting as a
hearing officer, and signing fix-it tickets.” The ALJ did not doubt the accuracy of
Rodriguez’s PTSD diagnosis. However, she concluded that Rodriguez nevertheless
could perform the requisite duties based on evidence that “he was able to return home, be
successfully employed as a police officer for many years, obtain a real estate salesperson
license, engage in the real estate business, start another business, manage properties,
perform many volunteer activities, and . . . establish his own, albeit new, business as a
private investigator, after taking and passing a licensure examination.” The ALJ stated
that Rodriguez’s “lack of memory (not shown to be a symptom of or attributable to
PTSD) of his activities outside his police work and his failure to provide all the relevant
facts and information to the medical professionals examining him negatively affected his
credibility.”
       The City adopted the ALJ’s decision on January 12, 2012.
                2.    Petition for Writ of Administrative Mandate
       Rodriguez filed a petition for a writ of mandate to set aside the City’s
determination. The trial court heard the petition on August 8, 2012, and took the matter
under submission. On August 27, 2012, the court issued its statement of decision
denying the petition. The trial court identified the standard of review as independent
judgment review “to determine whether the finding of the Administrative Law Judge is
                                             7
supported by the weight of the evidence.” The court stated that the ALJ’s decision was
entitled to the “ ‘deference and respect due a judicial decision,’ ” citing Strumsky v. San
Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28 (Strumsky). After
describing the medical reports it had reviewed, the trial court concluded that, “[w]hile
there appears to be no reasonable doubt that the Petitioner suffers from psychiatric
disorders, there is sufficient evidence for the Administrative Law Judge to find that the
Petitioner lacked credibility, based upon the fact that the Petitioner worked while
allegedly disabled, and to conclude that he was not incapacitated from working as a
Police Station Duty Officer.” The court went on to state that “[t]he weight of the
evidence . . . does not establish that the petitioner was substantially incapacitated from
performing his duties of employment.” Accordingly, the superior court denied
Rodriguez’s petition for a writ of mandate.
       Rodriguez filed a notice of appeal on October 25, 2012. The trial court entered
judgment in favor of the City on December 26, 2012. While Rodriguez’s notice of
appeal was premature, pursuant to rule 8.104(d)(2) of the California Rules of Court, we
treat the notice of appeal “as filed immediately after entry of judgment,” and consider it
to be timely.
II.    DISCUSSION
       A.       Governing Law
       The Public Employees’ Retirement Law (Gov. Code, § 20000 et seq.) makes
certain public employees, including police officers, eligible for special disability
retirement benefits if they are “incapacitated for the performance of duty as the result of
an industrial disability.” (Gov. Code, § 21151, subd. (a); see also Pearl v. Workers’
Comp. Appeals Bd. (2001) 26 Cal.4th 189, 193.) Courts have construed “ ‘incapacitated
for the performance of duty’ ” to mean “the substantial inability of the applicant to
perform his usual duties.” (Mansperger v. Public Employees’ Retirement System (1970)


                                              8
6 Cal.App.3d 873, 876.) The statute applies to both physical and mental disability.
(Gov. Code, § 21156.)
       When a trial court reviews an administrative determination by writ of
administrative mandate, the appropriate standard of review depends on both the type of
the agency rendering the decision and the nature of the right involved. Decisions issued
by “agencies of constitutional origin which have been granted limited judicial power by
the Constitution itself” (Strumsky, supra, 11 Cal.3d at p. 35) are “entitled to all the
deference and respect due a judicial decision.” (Id. at p. 36.) Their “findings of fact are
reviewable in an administrative mandamus proceeding under the substantial evidence
test.” (Gonzalez v. State Personnel Bd. (1995) 33 Cal.App.4th 422, 428.) The deferential
substantial evidence standard of review applies regardless of the nature of the right at
issue. (Strumsky, supra, at p. 36.) By contrast, if the administrative decision maker is a
local agency, the substantial evidence standard of review applies only if “the
administrative decision neither involves nor substantially affects a fundamental vested
right.” (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313 (Wences).) If a
fundamental vested right is involved, the trial court “must exercise its independent
judgment on the evidence and find an abuse of discretion if the findings are not supported
by the weight of the evidence.” (Strumsky, supra, at p. 44.)
       “In exercising its independent judgment, a trial court must afford a strong
presumption of correctness concerning the administrative findings, and the party
challenging the administrative decision bears the burden of convincing the court that the
administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of
Angels (1999) 20 Cal.4th 805, 817 (Fukuda).) However, the court also has the
“responsibility to weigh the evidence at the administrative hearing and to make its own
determination of the credibility of witnesses.” (Guymon v. Board of Accountancy (1976)
55 Cal.App.3d 1010, 1016.)


                                              9
       In reviewing the trial court’s denial of the petition for a writ of administrative
mandate, we apply the substantial evidence test to the trial court’s factual findings.
(Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 851.) In doing so, we “
‘resolve all conflicts and indulge all reasonable inferences in favor of the party who
prevailed in the trial court.’ ” (Worthington v. Davi (2012) 208 Cal.App.4th 263, 277.)
We review questions of law, including whether the trial court applied the correct standard
of review, de novo. (Alberda v. Board of Retirement of Fresno County Employees’
Retirement Assn. (2013) 214 Cal.App.4th 426, 434 (Alberda).)
       B.     The Trial Court Applied the Incorrect Standard of Review
       Here, the trial court was required to use its independent judgment in reviewing the
decision of a local agency (the City) involving Rodriguez’s “fundamental vested right to
a disability retirement pension if he in fact was disabled.” (Quintana v. Board of
Administration (1976) 54 Cal.App.3d 1018, 1023.) While the parties agree that the
independent judgment standard applied below, they dispute whether the court in fact
employed that standard.
       Rodriguez argues the trial court failed to independently assess his credibility, and
instead deferred to the ALJ’s finding that Rodriguez’s “lack of memory . . . and his
failure to provide all the relevant facts and information to the medical professionals
examining him negatively affected his credibility.” Rodriguez bases his argument in part
on the trial court’s two references to its understanding that, under Strumsky, the ALJ’s
decision was entitled to the “ ‘deference and respect due a judicial decision.’ ” As
discussed above, Strumsky holds that only the factual determinations of constitutional
agencies are entitled to such deference, which is accorded by way of the substantial
evidence standard of review. (Strumsky, supra, 11 Cal.3d at p. 36; see also Alberda,
supra, 214 Cal.App.4th at p. 435 [“In substantial evidence review, the reviewing court
defers to the factual findings made below.”].) “In independent review, . . . although the
trial court begins its review with a presumption that the administrative findings are
                                             10
correct, it does not defer to the fact finder below and accept its findings whenever
substantial evidence supports them.” (Alberda, supra, at p. 435.) Rodriguez also relies
on the trial court’s statement that “there is sufficient evidence for the Administrative Law
Judge to find that the Petitioner lacked credibility, based upon the fact that the Petitioner
worked while allegedly disabled, and to conclude that he was not incapacitated from
working as a Police Station Duty Officer.” According to Rodriguez, the court’s use of
the phrase “sufficient evidence” shows that it applied the incorrect substantial evidence
test to affirm the ALJ’s finding that Rodriguez was not credible. We agree that the
court’s choice of words suggests a substantial evidence review. (See Wilson v. County of
Orange (2009) 169 Cal.App.4th 1185, 1188 [“When a party contends insufficient
evidence supports a jury verdict, we apply the substantial evidence standard of
review.”].)
       In response, the City notes that the trial court’s statement of decision identified the
correct independent judgment standard of review and that the trial court was required to
work from the presumption that the ALJ’s decision was correct.
       The Fifth District recently considered a similarly ambiguous statement of decision
in which “the trial court began . . . by stating the correct standard of review, i.e.,
independent judgment, [but] went on to say that ‘substantial evidence supports the
hearing officer’s’ ” findings and decision. (Alberda, supra, 214 Cal.App.4th at p. 434.)
There, the trial court also cited to a case setting forth the incorrect substantial evidence
standard. Based on that citation, “coupled with the trial court’s statements throughout the
statement of decision that ‘substantial evidence supports’ the hearing officer’s decision or
findings,” the Fifth District concluded it was “likely the trial court applied the substantial
evidence standard of review rather than the independent judgment standard.” (Id. at p.
435.) In reaching that decision, the court noted that the independent judgment and
substantial evidence standards of review “are quite different.” (Ibid.) In particular,
substantial evidence review requires deference to the factual findings made below and
                                               11
permits no weighing of the evidence, whereas independent judgment review requires
weighing of the evidence and involves no deference to the factfinder below. (Ibid.)
       This is a closer case than was Alberda. There, the court stated that “substantial
evidence” supported the administrative decision on at least three different occasions, and
cited a case applying that erroneous standard. (Alberda, supra, 214 Cal.App.4th at p.
434.) Here, there is only one reference to “sufficient evidence,” which is unaccompanied
by any case citation to indicate what standard the trial court intended to apply.
Nevertheless, the statement of decision leaves us with the distinct impression that the trial
court likely did not apply the independent judgment standard in making its decision, and
particularly in assessing Rodriguez’s credibility. We reach that conclusion based on the
fact that each time the court referenced the correct independent judgment standard, it also
incorrectly stated that the ALJ’s decision was entitled to “deference.” As the Alberda
court explained, the notion of deference has no place in the independent judgment
standard.2 Moreover, the trial court articulated no independent finding regarding
Rodriguez’s credibility, stating only that there is sufficient evidence to support the ALJ’s
finding that he lacked credibility. The court then went on to state “[t]he weight of the

       2
         Of course, the trial court was required to afford a strong presumption of
correctness to the ALJ’s findings. (Fukuda, supra, 20 Cal.4th at p. 819.) But from that
starting point it was required to “exercise independent judgment in making its own
findings,” rather than defer to the ALJ’s findings. (Ibid.) Nor is the ALJ’s credibility
determination entitled deference under Government Code section 11425.50, subdivision
(b), which requires trial courts to accord “great weight” to an agency’s credibility
determination “to the extent the determination identifies the observed demeanor, manner,
or attitude of the witness that supports it.” Here, the ALJ did not identify any evidence of
demeanor, manner, or attitude supporting its conclusion that Rodriguez was not credible.
(See Patterson Flying Service v. Department of Pesticide Regulation (2008) 161
Cal.App.4th 411, 430 [credibility determination not entitled to “the ‘great weight’
prescribed by [Government Code] section 11425.50, subdivision (b)” where hearing
officer cited no “evidence of demeanor, manner, or attitude supporting [its] conclusion”];
California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 596
[same].)

                                             12
evidence . . . does not establish that the petitioner was substantially incapacitated from
performing his duties of employment,” indicating it properly reweighed the evidence.
But the court’s discussion of Rodriguez’s credibility suggests that, in reweighing the
evidence, it may have disregarded Rodriguez’s testimony based solely on the ALJ’s
credibility finding.
       The City argues that even if the trial court applied the wrong standard of review,
reversal and remand are not required. For that argument, the City relies on Malibu
Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359. There,
the Court of Appeal concluded that the trial court’s erroneous use of the substantial
evidence standard in place of the independent judgment standard did not require reversal
because the statement of decision demonstrated the trial judge had examined and weighed
all the losing party’s evidence and arguments, so that “there is no probability of a
different result on remand.” (Id. at p. 373.) That is not the case here. As discussed
above, it is not clear from the trial court’s statement of decision whether it accorded any
weight to Rodriguez’s testimony. And we cannot say that there is no probability of a
different result on remand: if the trial court in fact deferred to the ALJ’s credibility
finding, on remand its own independent judgment may lead it to credit that testimony,
which could alter its weight of the evidence calculus.
       Because “the trial court has failed to perform its duty, we are unable to perform
ours and the matter must be remanded for a new hearing.” (Alberda, supra, 214
Cal.App.4th at p. 436; see also Wences, supra, 177 Cal.App.4th at p. 318.) In light of this
disposition, we do not reach the other issues Rodriguez raises.
III.   DISPOSITION
       The order denying the petition for writ of mandate is reversed and the matter is
remanded to the trial court with directions to reconsider Rodriguez’s petition for writ of
mandate under the independent judgment standard of review. Rodriguez shall recover his
costs on appeal.
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                                         Premo, J.




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




Rodriguez v. City of Santa Cruz et al.
H038973
Trial Court:                             Santa Cruz County Superior Court
                                         Superior Court No. CV173783


Trial Judge:                             Hon. Timothy R. Volkmann


Counsel for Plaintiff/Appellant:         Scott Shaffman
Josafat Rodriguez, Jr.
                                         Mazur & Mazur
                                         Janice R. Mazur



Counsel for Defendant/Respondent:        Witzig, Hannah, Sanders & Reagan
City of Santa Cruz,                      William L. Reagan
City Santa Cruz City Manager




Rodriguez v. City of Santa Cruz et al.
H038973
