Filed 5/30/17; pub. order 6/27/17 (see end of opn.)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                 DIVISION TWO


ALLISON JACOBS et al.,                                B268758

        Plaintiffs and Appellants,                    (Los Angeles County
                                                      Super. Ct. No. BS147764)
        v.

THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA,

        Defendant and Respondent.



     APPEAL from a judgment of Superior Court of Los Angeles
County. Robert H. O’Brien, Judge. Affirmed.

      Castillo Harper and Michael A. Morguess for Plaintiffs and
Appellants.

      Jones & Mayer, Martin J. Mayer, James R. Touchstone and
Krista MacNevin Jee for Defendant and Respondent.

                          _________________________
      The question presented is whether disabled members under
the University of California Retirement Plan (UCRP) who receive
“Duty Disability Income” (DDI) are considered retired for
purposes of entitlement to a retired identification card and
concealed weapons endorsement pursuant to the Penal Code. We
conclude the answer is no. We therefore affirm the trial court’s
denial of the petition for writ of mandate by which appellants
sought to compel The Regents of the University of California
(Regents) to provide them with such identification cards and
endorsements.
       FACTUAL AND PROCEDURAL BACKGROUND
The Parties
      Plaintiffs and appellants are Allison Jacobs (Jacobs),
Dennis Mueller (Mueller), and the Federated University Police
Officers Association (FUPOA) (collectively appellants). Jacobs
and Mueller were each previously employed by the University of
California Police Departments as peace officers.1 Jacobs was
employed with the University of California, Berkeley Police
Department from 2001 through 2013. She was injured on duty in
2010, when she was in her 30’s. She applied for and was
approved to be a “Duty Disabled Member” under the UCRP.
Jacobs’s DDI became effective on April l3, 2013, prior to the date
of her medical separation from employment on July 18, 2013.
Her requests for a retired identification card and endorsement to
carry a concealed weapon were denied, as was her request for a


1     A member of the University of California Police
Department is a peace officer “whose authority extends to any
place in the state.” (Pen. Code, § 830.2, subd. (a).)
      All further statutory references are to the Penal Code
unless otherwise indicated.




                                2
good cause hearing. Jacobs is too young to retire under the
UCRP (the retirement age is 50). (UCRP, § 8.05)
       Mueller was employed as a police sergeant with the
University of California, Santa Barbara Police Department from
1980 through 1998. He was injured on duty in 1997. Mueller’s
DDI became effective July 2, 1998. Mueller was separated from
employment on the day prior to his commencement of DDI, but
his DDI actually would have been effective on June 17, 1998,
prior to his separation date, if he had not been on active pay
status to exhaust his accrued leave benefits. In 1998, Mueller
received a retired identification card and endorsement to carry a
concealed weapon. He received periodic renewals of each for the
next 15 years until he was informed in 2013, that he would not be
receiving any more renewals or a good cause hearing. He has
elected not to retire.
       FUPOA is the exclusive bargaining representative for
nonsupervisory peace officers of the University of California, and
represents more than 250 members.
       Defendant and respondent the Regents governs all 10
University of California schools. The Regents has constitutional
power to establish rules and regulations for the operation of the
University of California, including the University of California
Police Departments. (Cal. Const., art. IX, § 9.)
The UCRP
       The UCRP is the Regents’ plan for certain employment
benefits to University employees, including disability and
retirement benefits. Since the UCRP was adopted pursuant to
the Regents’ constitutional power, it has the force of statute.
(Regents of University of California v. City of Santa Monica
(1978) 77 Cal.App.3d 130, 135 [“policies established by the




                                3
Regents as matters of internal regulation may enjoy a status
equivalent to that of state statutes”].)
        The UCRP provides for “Retirement Income,” “Disability
Income,” and “Duty Disability Income.” A “Retired Member” is “a
former Active, Inactive, or Disabled Member who . . . is receiving
Retirement Income.” A “Disabled Member” is defined as “a
former Active Member who is eligible for and receives Disability
Income . . . ” And a “Duty Disabled Member” means “Active
Members of the Plan who hold eligible safety classifications as set
forth in Plan Regulations”2 and who are “prevented from
performing the duties of such Member’s present position, because
of a medically determinable physical or mental impairment of
permanent and extended and uncertain duration . . . arising out
of and in the course of duty.” For Duty Disabled Members, the
UCRP has created the specific benefit of DDI. This benefit is:
(1) provided to those employees who become disabled “out of and
in the course of duty”; (2) “equal to 50% of the Member’s Highest
Average Plan Compensation in years for which Service Credit
under this Article was earned” for those “Members with Safety
Benefits”; and (3) “continue[s] until such time as the Member is
no longer disabled as defined or elects to retire.” (UCRP, § 8.18
(a), (c).)
        The DDI provides certain benefits not typically available to
retired employees. For example, a Duty Disabled Member can
continue to receive and accrue service credit while receiving DDI
and while no longer an employee. (UCRP, § 8.18 (e).) According
to the Regents, this increases not only the ultimate retirement
benefit, should the member later elect to retire, but also lessens

2    As peace officers, it is undisputed that Jacobs and Mueller
are members with “Safety Benefits” under Article 8 of the UCRP.




                                 4
the monetary contribution the Duty Disabled Member is required
to make towards continuing benefits, such as medical, dental and
legal. The Regents points out that while Jacobs had only
approximately 10 years of service credit at the time of her
disability, she is anticipated to accrue an additional 11 years of
service credit.
      Additionally, Duty Disabled Members can receive DDI
without ever electing to retire. (UCRP, § 8.18 (a).) This can
make DDI exempt from income tax for the entire time it is
received.
      Also, DDI does not have to cease upon a member reaching
retirement eligibility age, but can be collected for life.
      Finally, and perhaps most importantly, Duty Disabled
Members are not required to be separated from employment
before receiving DDI. By contrast, the effective date of
Retirement Income cannot precede separation from University
service. (UCRP, § 5.05 [providing that the effective date of
Retirement Income for eligible Members cannot be earlier than
the day following separation from University service or the first
day of the month in which the application is received by the plan
administrator, whichever is later].)
Relevant Penal Code Sections
      Section 25455 provides that peace officers who are
“honorably retired” shall be issued “an identification certificate
by the law enforcement agency from which the officer retired,”
which “shall have an endorsement on the identification certificate
stating that the issuing agency approves the officer’s carrying of a
concealed firearm.” This retired officer identification card and
endorsement allows such officer to carry a concealed firearm,
absent good cause to deny it. (§§ 25400, 25450.) Section 16690




                                 5
specifically defines an “honorably retired” peace officer as
including “any peace officer who has qualified for, and has
accepted, a service or disability retirement.” (Italics added.) It is
this latter term that is at issue here, as discussed, ante.
Alberts v. Regents of the University of California (Alberts)3
       On September 24, 2012, the Alameda Superior Court in
Alberts, a nonpublished case No. RG12-620674, issued an order
on a petition for writ of mandate, denying the writ brought by a
duty disabled peace officer seeking the same relief as appellants
here, i.e., a retired identification card and endorsement to carry a
concealed weapon. The petitioner reasoned that her status as
duty disabled was the functional equivalent of being retired,
analogizing to other public retirement plans covering peace
officers. The court disagreed, finding that the provisions of the
UCRP “implie[d] that Duty Disabled and Retired are mutually
exclusive states.” The trial court concluded that because the
petitioner sought relief by writ of mandate, she had to show that
the duty the Regents owed her was “clear, present, and usually
ministerial,” and could not flow from reasoning by analogy and
policy considerations.
       According to the Regents, following Alberts, “The Regents
confirmed that its prior policy of issuing retired identification
cards and endorsements for concealed weapons to Disabled
Members receiving DDI was erroneous, and was properly
discontinued.”




3     Because the Regents was a party in Alberts, and because
both parties here cite to Alberts, we discuss this unpublished
case.




                                  6
Gore v. Reisig (2013) 213 Cal.App.4th 1487 (Gore)
       Subsequent to the Alberts decision, the court in Gore found
that “a person must enter retirement from active service as a
peace officer to be considered a peace officer who is honorably
retired.” (Gore, supra, 213 Cal.App.4th at p. 1492.) In Gore, an
investigator with the Yolo County District Attorney’s Office was
terminated from his employment, but resigned during the
administrative appeal of his discipline. He did not withdraw his
funds from California Public Employees Retirement System
(CalPERS), and when he reached age 50, he began collecting his
retirement money. The Gore court concluded that he was not
entitled to a retired peace officer identification card or concealed
weapons endorsement at the time of his retirement because he
had previously resigned and did not retire or collect retirement
income from active service. Instead, the court noted, “[w]hen he
was a peace officer, he did not accept a service retirement, but
instead resigned.” (Id. at p. 1493.)
The Petition for Writ of Mandate
       In the petition for writ of mandate filed here, Jacobs and
Mueller each sought, in separate causes of action, a writ
pursuant to California Code of Civil Procedure section 1085,
asserting that the Regents has a clear and present ministerial
duty to provide them either an identification card and
endorsement to carry a concealed weapon or to show good cause
at a hearing why they are not so entitled. In a third cause of
action, FUPOA sought declaratory relief as to the alleged duty of
the Regents to issue retired identification cards and concealed
weapons endorsements to DDI recipients or to hold good cause
hearings. The Regents filed an answer, and the parties filed
additional pleadings and declarations, including the declaration




                                 7
of Andrew Parker, “the lead Benefits Analyst for the University
of California’s Disability Income program throughout the entire
University of California.”
       After a hearing on the petition, the trial court took the
matter under submission and issued a written decision denying
the petition. The trial court concluded that appellants had not
shown that the Regents is under a clear, present, and ministerial
duty to issue the relief sought. Judgment was entered and this
appeal followed.
                            DISCUSSION
       We agree with the Regents and the trial court that
appellants have shown no clear duty to act on the part of the
Regents.
I. Standard of Review
       As the court set forth in Bergeron v. Department of Health
Services (1999) 71 Cal.App.4th 17, 21–22: “Section 1085 of the
Code of Civil Procedure authorizes a trial court to issue a writ of
mandate to compel an act which the law specifically requires. A
petitioner seeking a writ of mandate under this section is
required to show the existence of two elements: a clear, present
and usually ministerial duty upon the part of the respondent, and
a clear, present and beneficial right belonging to the petitioner in
the performance of that duty. [Citations.] Because the duty here
asserted is one allegedly arising out of statute and/or
constitutional guaranty, this court must engage in de novo review
of the trial court’s refusal to issue the writ. [Citation.]”
II. The UCRP Does Not Provide for a Disability
Retirement
       As noted above, various provisions of the Penal Code
provide that an “honorably retired” peace officer is entitled to a




                                 8
retired identification card with an endorsement that permits the
holder to carry a concealed firearm. These “honorably retired”
peace officers include a “peace officer who has qualified for, and
has accepted, a service or disability retirement.” (§ 16690.)
      Jacobs and Mueller claim that they are “honorably retired”
within the meaning of the Penal Code because they receive DDI,
which they assert is the “functional equivalent” of the “disability
retirement” referenced in section 16690. But appellants ignore
the fundamental principles of the Regents’ creation of its benefits
system, which require a different result.
      The Regents established the UCRP through its
constitutional authority to do so. As our Supreme Court has
recognized: “Article IX, section 9 [of the California Constitution],
grants the [R]egents broad powers to organize and govern the
university and limits the Legislature’s power to regulate either
the university or the [R]egents. This contrasts with the
comprehensive power of regulation the Legislature possesses over
other state agencies. [¶] The courts have also recognized the
broad powers conferred upon the [R]egents as well as the
university’s general immunity from legislative regulation. . . .
‘“[The] power of the Regents to operate, control, and administer
the University is virtually exclusive. . . .”’ [¶] We recently
pointed out ‘the University is intended to operate as
independently of the state as possible. [Citation.]’”
(San Francisco Labor Council v. Regents of University of
California (1980) 26 Cal.3d 785, 788–789.)
      Thus, as the Regents puts it, “[w]hatever may be the
meaning of the provisions of Penal Code Section 16690, this
statutory authority cannot override the paramount constitutional
authority of The Regents to craft its employee benefits, regarding




                                 9
which The Regents is entitled to independent value and deference
from this Court.” Indeed, the trial court here recognized as
much: “While the Legislature may have intended to give disabled
University police officers a [carry concealed weapon]
endorsement, it was up to the Regents to provide for a disability
retirement that would trigger the statute. The Regents [is] not
required to offer disability retirement to their officers [citation],
and [it] ha[s] not provided for one here. Instead, [it] established a
DDI program that provides a disabled officer with financial
benefits but is not a ‘disability retirement.’”
       Under the UCRP, there is no such thing as “disability
retirement.” Members are either retired or disabled. (See UCRP,
§§ 8.18 (a) [DDI “continue[s] until such time as the Member is no
longer disabled as defined or elects to retire . . . . [¶] In the case
of a Disabled Member who qualifies for retirement . . . and elects
to retire . . . Duty Disability Income shall cease”]; 8.18 (e) [“When
a former Duty Disabled Member becomes a Retired
Member. . . .”].) (Italics added.) Thus, under the UCRP, Disabled
Members receiving DDI: (1) are not retired; (2) do not receive
Retirement Income; and (3) can elect to retire when eligible, but
are never required to do so. As the lead disability benefits
analyst for the University of California system explained in his
declaration, “[A] person may convert to Retirement only by
making an affirmative election to do so.” Unlike the Penal Code’s
distinction between two kinds of potential “retirements”—
“service” or “disability”—there is only one kind of “retirement”
under the UCRP, which does not include DDI. Simply put,
Jacobs and Mueller are not retired under the UCRP.




                                 10
III. Appellants’ Additional Arguments are Without Merit
       Appellants nevertheless make six specific arguments to
support their claim that they are retired peace officers, none of
which has merit.
       First, appellants argue that, under the rules of statutory
construction, because section 16690 does not define “service or
disability retirement,” these “generic and inclusive” terms should
be interpreted broadly to mean that peace officers are “honorably
retired” when they accept the “functional equivalent” of a
“disability retirement.” But this is not how the statute reads;
there is no reference to “functional equivalency.” A court’s role
“is not to redraft the statute” nor “to insert what has been
omitted or omit what has been included.” (California School
Employees Assn. v. Governing Bd. of South Orange County
Community College Dist. (2004) 124 Cal.App.4th 574, 584.)
Moreover, since Jacobs and Mueller are not retired under the
UCRP, and there is no disability retirement in the UCRP, there
is no need for statutory interpretation in the first place. It is the
UCRP, and not the statute, that governs whether a member is
retired.
       In any event, as the Regents established in the trial court,
DDI is a unique benefit that is not equivalent to traditional forms
of disability retirement. For example, a Duty Disabled Member
can begin receiving DDI prior to separation from service and can
even continue in employment while receiving DDI.4 A Duty


4     This is in direct contrast to “industrial disability
retirement” for peace officers under CalPERS, which appellants
erroneously claim is similar to DDI. Under CalPERS, industrial
disability retirement requires immediate retirement. (See
CalPERS, State Reference Guide [“If a member has been




                                 11
Disabled Member receiving DDI also continues to accrue service
credits, which reduces the amount the member is required to
provide for other continuing benefits (medical, dental and legal),
as well as increases the calculation of future Retirement Income,
should the member elect to retire. As the trial court properly
recognized, these are “key differences” that are “more than
merely nominal” between DDI and other traditional public
disability retirement benefits.
        Second, appellants argue that because section 830.2,
subdivision (b) defines peace officers to include “University of
California Police Department,” the Legislature must have
intended to include University officers within the group of
“retired” peace officers. It is undisputed that appellants and
other members of FUPOA are, or have been, peace officers while
employed by the University Police Departments. But, as the
Regents notes, this does not aid appellants in determining
whether any of them are retired for purposes of section 16690.
        Third, appellants argue that because section 26300 was
amended in 2013 to allow retired reserve officers to carry
concealed weapons, this would create an “awkward” situation,
i.e., reserve officers accepting a service retirement would be
entitled to carry a concealed weapon while peace officers
qualifying for DDI would not. But “awkwardness” is not a valid
basis for providing a clear and ministerial duty pursuant to a

approved for disability retirement, the law states the member
must be retired immediately,” citing Gov. Code, § 21163]); see
also Gov. Code, § 21151, subd. (a) [“Any patrol, state safety, state
industrial, state peace officer/firefighter, or local safety member
incapacitated for the performance of duty as the result of an
industrial disability shall be retired for disability, pursuant to
this chapter, regardless of age or amount of service. . . .”].)




                                 12
writ of mandate. And, again, the comparison is irrelevant.
Section 16690 only permits retired officers, whether reserve or
not, to obtain the retired peace officer identification card and
concealed weapons endorsement. Duty Disabled Members
receiving DDI are not retired under the UCRP.
       Fourth, seizing on dicta in Alberts, appellants argue that
Jacobs and Mueller are “in a genuine bureaucratic bind” because
they could not or did not elect to retire at the time they became
disabled. They point out that under Gore, they are now
prohibited from obtaining the retired identification cards and
concealed weapons endorsements because if they do elect to
retire, they will not be retiring from active service. But
appellants and other members receiving DDI are not truly in a
bureaucratic bind requiring a writ of mandate for two reasons.
One, they are seeking a benefit to which they were never entitled
as a matter of law. There is simply no “disability retirement”
under the UCRP, and it is undisputed that the UCRP has not
been changed during any of the periods Jacobs and Mueller have
been receiving DDI. Two, they are not without any recourse.
Members receiving DDI may obtain a concealed weapons permit
through other means. (See §§ 26150 [license to carry concealed
weapon; issued by sheriff], 26155 [license to carry concealed
weapon; issued by the chief of police].)
       Fifth, appellants argue that Gore supports their position
that members receiving DDI should be considered retired. They
focus on the following language in Gore: “At the point in time
that an employee leaves employment, he or she falls into one of
three categories—a resigned employee, a terminated employee, or
a retired employee. These categories describe the manner in
which the employment ended. The only persons entitled under




                               13
the statute to carry a concealed and loaded weapon are retired
employees’ . . .” (Gore, supra, 213 Cal.App.4th at p. 1493.)
      Putting aside that Gore was not analyzing retirement
under the UCRP and even assuming the Gore categories would be
the only ones applicable here, appellants did not provide “any
evidence to establish that they did not resign or were not
terminated,” as found by the trial court. The trial court
ultimately found “[t]his argument by elimination is
unpersuasive.” As the trial court further noted, “Jacobs admits
that she was ‘medically separated’ from the University, which
could be interpreted as a termination.” Indeed, the records
relating to Jacobs’s separation from employment describe the
action taken as to her employment as “Terminat[io]n,” and the
“Reason” specified is “Medical Separation.” (Mueller’s
employment records no longer exist.)
      Sixth, appellants argue that “[a]s in contract
interpretation, how the party resisting one interpretation has
operated for many years is entitled to great weight.” They point
out that for more than 15 years, the Regents issued retired
identification cards and concealed weapons endorsements and
renewals to members receiving DDI. Appellants assert that this
“course of performance” is relevant to the UCRP’s meaning,
because the UCRP is “ambiguous.”
      There are multiple problems with this argument. One,
appellants never made a contract claim in their operative
pleading. Two, even assuming the UCRP is a contract,5 no
contract action would lie because there is no provision in the

5     Appellants cite no authority stating that the UCRP is a
contract between the Regents and University of California
employees.




                               14
UCRP for issuing retired identification cards or concealed
weapons endorsements. Three, the UCRP is not ambiguous; it is
undisputed that there is no category of disability retirement.
Appellants’ position has always been based on analogy. Four, the
fact that the Regents has provided—erroneously—retired
identification cards and concealed weapons endorsements in the
past to members receiving DDI is not a sufficient ground for a
writ of mandate. This is so because, as we state again, members
receiving DDI have never been entitled to the benefit of such
cards and endorsements as a matter of law. As the trial court
noted, appellants’ failure to establish a clear right to the
requested relief is “fatal here where they are seeking a writ of
traditional mandate . . . .”
                           DISPOSITION
       The judgment is affirmed. The Regents is entitled to its
costs on appeal.




                             _____________________, Acting P. J.
                               ASHMANN-GERST

We concur:



_________________________, J.        ________________________, J.*
      CHAVEZ                               GOODMAN

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




                                15
Filed 6/27/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION TWO


ALLISON JACOBS et al.,                     B268758

       Plaintiffs and Appellants,          (Los Angeles County
                                           Super. Ct. No. BS147764)
       v.
                                            ORDER CERTIFYING
THE REGENTS OF THE                          OPINION FOR PUBLICATION
UNIVERSITY OF CALIFORNIA,

       Defendant and Respondent.

THE COURT:*

      The opinion in the above-entitled matter filed on May 30,
2017, was not certified for publication in the Official Reports.

      For good cause it now appears that the opinion should be
published in the Official Reports and it is so ordered.



*ASHMANN-GERST,        Acting P. J., CHAVEZ, J., GOODMAN, J.†

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