Filed 11/25/13 Davis v. San Diego County Employees Retirement Assn. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



EARNEST A. DAVIS,                                                   D063316

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2011-00097407-
                                                                     CU-WM-CTL)
SAN DIEGO COUNTY EMPLOYEES
RETIREMENT ASSOCIATION,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of San Diego County, Ronald S.

Prager, Judge. Affirmed.


         Earnest A. Davis, in pro. per., for Plaintiff and Appellant.

         Crowell & Moring, Steven P. Rice and Queena Mewers, for Defendant and

Respondent.

         Earnest A. Davis filed a petition for writ of mandate challenging the decision of

the Board of Retirement of the San Diego County Employees Retirement Association

(Retirement Board) denying his application for service-connected disability retirement
benefits. The trial court denied the petition. On appeal, Davis contends the evidence

does not support the trial court's ruling. He also asserts the judgment should be reversed

because he was denied a continuance to secure the attendance of a witness at the

administrative hearing. He also raises claims of racial discrimination and hearing officer

bias. We find no error and affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

                                I. Davis's Industrial Injury

       In December 1990 Davis began working for the San Diego County Air Pollution

Control District (the District) as an associate air pollution control engineer. After

working for the District for about 12 years, in 2002 he began experiencing pain and

soreness in his hands. He was seen and treated by several physicians who diagnosed his

condition as tendonitis and strain injury to his hand, wrist, and forearm due to repetitive

activities and overuse, and concluded that it was 100 percent industrially related. After

therapeutic and workplace interventions, Davis's condition improved to some degree. In

2005, a workers' compensation claim filed by Davis was settled with a stipulation that he

had sustained a 3 percent work-related permanent disability to his wrists and thumbs.

       In 2006 Davis reported worsening discomfort, which he attributed to an increase

of workload activities such as writing and data entry. In 2007 he was transferred from

the District's mechanical engineering section to its vapor recovery engineering section.

In June 2008, he reported that his wrist and finger discomfort was worsening and he filed

another workers' compensation claim.



                                              2
       In July 2008 the District placed Davis on a Performance Improvement Plan (PIP)

based on an assessment that his work performance was deficient and needed to improve.

The PIP detailed his deficiencies (including incomplete, incorrect, and untimely work

submissions); specified the necessary steps to meet the District's expectations; and

advised that failure to improve could lead to suspension, demotion, or termination.

                           II. Recommended Accommodations

                                A. Reports from Dr. Braun

       Beginning in August 2008, Davis came under the care of Dr. Richard Braun, who

examined him on a monthly basis for several months. In August 2008, Dr. Braun

recommended that Davis engage in no keyboarding for one month. Davis was absent

from work from August 12 to August 28, 2008. On September 2, 2008, the District

extended his July 2008 PIP for an additional month; provided extensions of the deadlines

for projects that were due during his absence; and advised him that projects that were past

due before his absence should be completed "as soon as possible." On September 9,

2008, the District granted him a temporary medical leave. In December 2008, Dr. Braun

recommended that Davis be placed on total temporary disability unless a job was

available that involved no keyboarding.

       In February 2009, Dr. Braun diagnosed Davis with "[m]usculoskeletal pain

associated with repetitive use of the hands in a workplace activity environment," and

"[b]ilateral hand swelling associated with repetitive use of the hands for gripping,

twisting, and pinching activities performed repetitively." Dr. Braun concluded that Davis

had "a disability precluding fine manipulation with specific reference to mousing and

                                             3
computer keyboard activities, contemplating that he has lost about 25% of his pre-injury

capacity for performing . . . activities requiring finger dexterity." Dr. Braun

recommended that Davis engage in keyboarding for no more than 30 minutes each hour;

i.e., he should perform a maximum of four hours of keyboarding work each day, divided

into 30-minute segments.

       After the receipt of Dr. Braun's February 2009 report, the county workers'

compensation adjuster (Armida Balvaneda) sent a memo dated March 5, 2009, to the

District, noting the recommended 30 minutes per hour/four hours per day keyboarding

restriction. Balvaneda instructed the District to determine whether Davis could return to

his job or be reassigned to another District job with reasonable accommodations.

Balvaneda stated that if no such accommodations could be made within the District, a

search for other county positions would be commenced. She also suggested the District

consider whether an application for disability retirement should be filed.

       In March and April 2009, District personnel told Davis that they questioned

whether he could perform his engineering duties with the 30 minutes per hour

keyboarding restriction, but ultimately stated they could provide the accommodation at

least on a temporary basis. They informed him they were seeking further clarification

from Dr. Braun on the needed work restrictions, and were also waiting for a report from

Agreed Medical Examiner (AME) Dr. Paul Murphy on this same question.

       On April 6, 2009, Dr. Braun submitted a clarification to the District stating that

Davis should not engage in "continuous or highly repetitive manipulation activities

performed with his hands." Responding to a request from the District to differentiate

                                              4
between fine manipulation and computer keyboard work, Dr. Braun stated: "The most

significant aspect of this differential involves the repetitive nature of the work, rather than

the fine manipulation preclusion previously discussed." (Italics added.) Dr. Braun

reiterated his earlier recommendation that Davis could engage in 30 minutes per hour of

keyboarding (or other fine manipulation work with his hands), but qualified the

recommendation by stating that continuous fine manipulation activity during the 30-

minute period should not be required. In this regard, Dr. Braun stated that "continuous

typing during a 30-minute period would aggravate [his] symptoms and should not be

required," and he "should not be expected to pursue constant manipulation of files or

folders, continuous writing activities for 30 minutes, or the use of a computer keyboard-

mouse for a continuous and repetitive period of 30 minutes." (Italics added.) Rather,

Davis should "perform intermittent activities of a varied type that can be reasonably

associated with a clerical job"; for example, he "could perform a short period of

manipulation involving a computer keyboard and then pursue an activity such as

reviewing and evaluating an application which could then be associated with

manipulating a file or folder while pursuing a general multitasking clerical experience in

the workplace." (Italics added.)

                                B. Report from Dr. Murphy

       The AME (Dr. Murphy) examined Davis on April 7, 2009, reviewed Davis's

lengthy medical history, and set forth his conclusions in a June 5, 2009 report. Dr.

Murphy summarized in detail Dr. Braun's testing results, opinions concerning Davis's

injury, and recommendations concerning work restrictions, including the 30 minutes per

                                              5
hour/four hours per day restriction on keyboarding. Dr. Murphy concluded that Davis

had sustained a 100 percent industrially-related injury, consistent with

"[m]usculoligamentous sprain/strain, bilateral upper extremities." He opined that Davis's

condition had reached "maximum medical improvement"; his pain was "intermittent and

slight in nature"; and occasionally his symptoms worsened to "slight to moderate." He

stated Davis had a "total of 2% whole person impairment . . . referable to the bilateral

upper extremities."1 He recommended Davis should be "precluded from fine

manipulation contemplating 25% loss of pre-injured capacity for activities requiring

finger dexterity and fine manipulation." (Italics added.)

       Following the receipt of Dr. Murphy's report, on June 9, 2009, county workers'

compensation adjuster Balvaneda sent a second memo to the District noting that Davis

"should be precluded from fine manipulation, contemplating 25% loss of pre-injured

capacity for activities requiring finger dexterity and fine manipulation." (Italics added.)

As in her previous memo, Balvaneda stated the District should determine whether there

could be accommodations or a reassignment within the District; if not, a search would be

made for a position in other county departments; and the District should consider the

issue of filing for disability retirement.



1      Dr. Murphy delineated his objective findings as "[t]enderness, bilateral wrists";
"[p]ositive Tinel's and Phalen's sign, bilateral wrists"; and "[s]light loss of motion, right
and left shoulders in adduction." Regarding Davis's disability, Dr. Murphy stated: "No
specific permanent impairment is noted referable to the wrists. [¶] However, a 2% upper
extremity impairment is noted within each shoulder as a result of a loss of range of
motion in extension and adduction. A 4% upper extremity impairment is noted. A total
of 2% whole person impairment is noted referable to the bilateral upper extremities."
                                              6
              III. Davis's Return to Work, Termination, and Application for

                               Disability Retirement Benefits

       Davis returned to work on June 16, 2009. In his PIP dated that same date, the

District stated his current work assignment consisted of handling projects with pending

"Permits to Operate"; he was required to submit at least four permits per day unless he

had a field inspection that day; if he could not meet this deadline he needed to tell his

supervisor the reasons in advance; and he should not have more than two field

inspections per week. The June 2009 PIP also set forth his various work deficiencies that

occurred before and after his earlier July 2008 PIP, including untimely, inaccurate, and

insufficient work on his projects.

       As we shall detail below, both before and after Davis's return to work in June

2009, Davis and District personnel became embroiled in a dispute over the required

accommodations for his industrial injury and the adequacy of his work performance.

Ultimately, the District suspended Davis for five days in July 2009; placed him on

administrative leave for 10 days in August 2009; and in September 2009 terminated him

for inefficiency, insubordination, and acts incompatible with or inimical to public service.

Relevant to his discharge, the District claimed that upon his return to work, his

performance problems heightened to the point that he was essentially performing no work

on his projects.

       On June 4, 2010, Davis filed an application for service-connected disability

retirement benefits with the San Diego County Employees Retirement Association. After

an administrative hearing, the Retirement Board denied his application. Subsequently,

                                              7
the trial court denied his writ of mandate petition challenging the Retirement Board's

decision.2

       The merits of Davis's discharge are not at issue in this appeal. Rather, the matter

before us is the denial of Davis's request for disability retirement benefits.

                              IV. The Administrative Hearing

       At the administrative hearing before the Retirement Board hearing officer, the

parties presented numerous documents generated before and during the course of the

dispute over Davis's workplace accommodations, and extensive testimony from Davis

and District personnel. We summarize this evidence to illuminate the parties' respective

positions.

       One of the issues in dispute between the parties at the time Davis was returning to

work was whether Dr. Murphy's recommended restriction was different from Dr. Braun's

recommended restriction. Davis maintained that Dr. Murphy agreed with Dr. Braun's 30

minutes per hour/four hours per day fine manipulation restriction. In contrast, the

District focused on Dr. Murphy's statement in his report that Davis "be precluded from

fine manipulation, contemplating 25% loss of pre-injured capacity for activities requiring

finger dexterity and fine manipulation." The District viewed Dr. Murphy's report as

controlling, and interpreted it to mean that Davis needed to have a 25 percent reduction in

fine manipulation; i.e., he could properly engage in fine manipulation for 75 percent (six



2      Davis was represented by counsel at the administrative hearing before the hearing
officer. He subsequently represented himself, including at the trial court mandamus
proceedings and now on appeal.
                                              8
hours) of his workday.3 District personnel acknowledged that they did not attempt to

implement Dr. Braun's 30 minutes per hour/four hours per day restriction because they

considered it superseded by AME Murphy's report.

       Regardless of how the District interpreted the doctors' work restrictions, the

District also claimed that the work assignment actually given to Davis upon his return to

work (processing of gas station permits) required a minimal amount of fine manipulation,

and thus was a proper accommodation that satisfied the parameters of his work

restrictions. Davis disputed the District's claim that only a minimal amount of fine

manipulation was required for the gas station permit processing work. Davis claimed that

according to the District's own estimations, it took a minimum of one and one-half hours

(90 minutes) to enter a single permit into the database; the entire 90 minutes involved

keyboarding and fine manipulation; and thus he would have to keyboard for a minimum

of six hours per day to process the required number of four permits per day.

       In support of his position, Davis submitted a District memo dated October 1, 2007,

which specified that the minimum amount of time to enter a vapor-recovery permit into




3      After Davis filed his application for disability retirement benefits, Dr. Murphy
prepared a supplemental report in February 2010 to clarify his views on the
accommodations recommended by Dr. Braun. In this regard, Dr. Murphy stated: "Dr.
Braun's reporting is complex and, in general I concur with his thoughts and opinions.
However, I believe after careful review of my file that his opinions do not contradict my
opinions regarding [Davis's] ability to perform the Associate Air Pollution Engineer
Position." (Italics added.)

                                             9
the district's database system was one and one-half hours.4 The 90-minute time estimate

for permit data entry set forth in the 2007 memo was also included in subsequent

documents issued by the District, including Davis's July 2008 PIP and his June 2009 PIP

evaluation report.5 Davis testified that he could not safely perform six hours of fine

manipulation per day because the pain would be intolerable.6

       In contrast, Davis's supervisor (Mahiany Ponte Luther) testified that when Davis

returned to work after his medical leave, the District "narrowed his responsibility down"

to processing gas station permits, which required only a small amount of typing or

4    This minimum time calculation was made for purposes of determining the
minimum amount to charge a permit applicant for this particular task.

5       The 2007 memo contained a chart specifying the estimated times for a variety of
tasks. Regarding the data entry time for permits to operate ("PO"), the chart stated:
"Time. . . . 1.5 . . . . Enter PO into VAX/Cover Sheet." The 2008 and 2009 PIP
documents contained a similar chart, reiterating the same 1.5-hour time estimation for
this data entry.

6       In addition to claiming the District had assigned him to a position that required
excessive fine manipulation, Davis maintained that he should have been given duties that
focused more on engineering analysis rather than data entry. He explained he engaged in
far less keyboarding when he worked in the mechanical section because he worked on a
variety of projects that required him to determine the appropriate air pollution equipment;
a single project could last for months and required a lot of research and phone calls; and
there was little fine manipulation until the end of the process when it was time to issue a
permit. In contrast, gas station permits issued in the vapor recovery section involve
equipment that has been preapproved by the state Air Resources Board, and accordingly
there is little analysis, little time on the phone, higher volume, and a higher amount of
keyboarding.
        Davis made various suggestions to the District to accommodate his industrial
injury, including that he verify the technical merits of projects before submittal to
supervisors; that he be assigned a student worker to perform data entry tasks for him; and
that he be transferred to a different engineering department. The District did not
implement these suggestions.

                                            10
handwriting, and field inspections, which required no typing. Luther explained the

District had formulated basic equipment codes containing pre-established conditions for

the gas station permits.7 The job of processing gas station permit applications required

Davis to review inspection reports and test reports; make a decision as to which basic

equipment code to use; enter a small amount of information into the database including

the basic equipment codes; type or write out a one-page engineer recommendation

document; and submit the permit for approval. Luther estimated that the entire process

took about one hour for each permit.




7      A basic equipment code is a unique number that corresponds with a set of
conditions that goes on a permit.

                                            11
       Regarding the amount of required fine manipulation, Luther testified that the

review of the inspection and test reports did not require substantial manual file handling

because the necessary documents were on the top of the file. She estimated that the data

entry, including the basic equipment codes, required "less than a hundred keystrokes" and

took about five or 10 minutes to complete.8 Davis was given permission to handwrite the

one-page engineer evaluation document, which required about 10 minutes to complete.9

       Regarding the October 1, 2007 District memo setting forth the 90-minute

minimum time for permit data entry, Luther testified that by 2009 this time estimate was

no longer applicable. Luther explained that after 2007, the District formulated the basic

equipment codes containing the pre-established conditions for the permits, which

shortened the time needed for the data entry. At Davis's request, he was provided

refresher training on how to process the permits; the basic equipment codes were in a




8      The data that had to be typed included a description of the equipment (about four
lines of typing); the basic equipment code (about five digits); and some rule references.

9      Luther testified that to accommodate Davis's typing and handwriting restrictions,
the District did not assign him work such as issuance of "Authorities to Construct" which
do not have standard conditions and require more typing or writing.
       The District also offered Davis voice-activated software, but Davis declined
because he has a speech impediment that would prevent effective operation of the
software. Additionally, the District placed "RSIGuard software" on his computer to
assist with his keyboarding restriction; however, Davis requested that the software be
removed.

                                            12
searchable database; and Davis was provided a "cheat sheet" that specified which codes

to use for a particular type of equipment.10

       Luther acknowledged she did not send Davis a memo telling him that the 90-

minute data-entry time estimate set forth in the 2007 memo was no longer operative, and

that only about 10 minutes of data entry was now needed. However, she claimed that she

had several discussions with him about how much time he was expected to spend on the

issuance of the permits. Also, she testified that it "was really obvious" in 2009 that the

2007 estimation was no longer applicable because in 2007 the District did not have the

standard conditions for the gas stations, and it would now be "almost impossible" to

spend 90 minutes on data entry to issue a permit given the pre-established conditions.

  V. Retirement Board's Administrative Decision and Trial Court's Mandate Decision

       After hearing the parties' evidentiary presentations, the Retirement Board hearing

officer concluded Davis did not show that he was permanently incapacitated from the

performance of his duties as a District engineer, and accordingly recommended that his

application for disability retirement be denied. The hearing officer stated that "[t]here

was clearly a conflict in the evidence as to the amount of keyboarding" required of Davis,

and that he had "carefully weighed" the credibility of the witnesses and evidence. The



10     According to Davis, before his departure on medical leave, he worked mostly on
applications for authorities to construct rather than permits to operate. He acknowledged
he was given a "cheat sheet" with the basic equipment codes, but claimed he was not told
how to select a basic equipment code that would be approved by his supervisor.
According to the District, Davis had issued permits while working in the mechanical
section; the process in vapor recovery was the same; and Davis had issued two permits in
vapor recovery in 2008.
                                               13
hearing officer found that during the discussions with the District to accommodate his

disability, Davis was "more confrontational than cooperative"; he was "less than candid"

and "was not forthcoming" in this process; and he "did not participate sufficiently to

balance the job expectations with his work restrictions." The Retirement Board

subsequently adopted the hearing officer's recommendation and denied Davis's

application.

       Thereafter, the trial court denied Davis's mandamus challenge to the Retirement

Board's decision, concluding that Davis did not show he was permanently incapacitated

from performing his duties. The court stated the weight of the evidence demonstrated

"the work modifications and accommodations made by the [District] satisfied the

parameters of the work restrictions recommended by Doctors Braun and Murphy." The

court reasoned that upon his return to work, the District amended his duties to consist

only of conducting field inspections and issuing gas station permits, and these tasks did

not require him to type or handwrite for more than 30 minutes at a time or for more than

four hours per day. Rather, the data entry work required less than 100 keystrokes and

could be completed in five or 10 minutes, and the District memo stating the data entry

takes 1.5 hours was no longer applicable.11




11   The trial court also noted that Dr. Braun's 30 minutes per hour/four hours per day
maximum was not set forth in Dr. Murphy's recommendation.
                                              14
                                        DISCUSSION

    I. Sufficiency of the Evidence To Support Denial of Disability Retirement Benefits

       Davis argues the evidence does not support the trial court's rejection of his

challenge to the administrative decision denying his application for disability retirement

benefits. He contends the District never properly accommodated his industrial injury,

and hence he was permanently incapacitated from performing his duties.

       At mandamus proceedings that challenge an administrative decision affecting

fundamental vested rights (including the right to disability retirement benefits), the trial

court independently reviews the agency's findings to determine if they are supported by

the weight of the evidence, while affording a strong presumption of correctness to the

administrative findings. (Welch v. State Teachers' Retirement System (2012) 203

Cal.App.4th 1, 16; Anserv Ins. Services, Inc. v. Kelso (2000) 83 Cal.App.4th 197, 204.)

On appeal, we review the trial court's factual findings for substantial evidence. (Welch,

supra, at p. 16.) We must draw all reasonable inferences in favor of the judgment, may

not substitute our deductions for those of the trial court, and must defer to the trial court's

factual findings unless the evidence is insufficient as a matter of law to sustain those

findings. (Id. at. pp. 16, 21.)

       Even when an employee is terminated for cause, the employee may be entitled to

an award of disability retirement benefits if the employee's right to these benefits matured

prior to the termination. (Smith v. City of Napa (2004) 120 Cal.App.4th 194, 198, 206-

207.) To receive disability retirement benefits, a county employee must show that the

employee's service-connected injury has caused the employee to be "permanently

                                              15
incapacitated for the performance of duty . . . ." (Gov. Code, § 31720; Rau v.

Sacramento County Retirement Board (1966) 247 Cal.App.2d 234, 238.) Permanent

incapacity exists if the employee's injury results in a substantial inability to perform his

or her usual duties. (Curtis v. Board of Retirement (1986) 177 Cal.App.3d 293, 297-298.)

When deciding whether the employee can perform the job duties, the fact finder may

consider accommodations implemented by the employer to allow the employee to

continue performing the job. (See Schrier v. San Mateo County Employees' Retirement

Assn. (1983) 142 Cal.App.3d 957, 961-962.)

       The evidence supports the trial court's finding that the District accommodated

Davis's disability in a manner that allowed him to continue to work as an engineer at the

District, and hence he was not permanently incapacitated from performing his duties.

Upon his return to work, Davis was assigned the job of processing gas station permits at a

rate of at least four per day. Davis's supervisor testified that this work required fine

manipulation that could be completed in less than 30 minutes per permit (i.e., a review of

the documents on the top of the file; about five to 10 minutes of data entry for input of

the standard codes; and about 10 minutes of handwriting to complete the one-page

engineer evaluation document). Thus, the completion of four permits per day would

require no more than about two hours of fine manipulation daily. Further, the trial court

could reasonably infer that the fine manipulation need not be completed in the

continuous, repetitive fashion that was contraindicated by Dr. Braun. There was nothing

to suggest the engineer could not break up the various tasks (i.e., reviewing the file,



                                              16
inputting the standard codes, and writing the one-page engineer recommendation) in a

manner that prevented undue repetitive fine manipulation.

       Further, supervisor Luther refuted the documentary evidence submitted by Davis

that reflected a larger amount of fine manipulation for processing permits; i.e., the 2007

memo which stated that 90 minutes of data entry was required for each permit, plus the

2008 and 2009 PIP documents which repeated this same time estimation. Luther testified

that the adoption of the standard codes substantially reduced the data entry time specified

in the 2007 memo, and this change would have been apparent to the engineers assigned to

the gas station permit work in 2009. Apart from the time estimate derived from the 2007

memo, Davis did not present any direct evidence, from his own work experience or that

of other engineers, showing that Luther had incorrectly assessed the amount of fine

manipulation required to process a gas station permit in 2009. The trier of fact was

entitled to credit Luther's testimony that, notwithstanding the information in the District's

memo and PIP documents, by 2009 only a small amount of fine manipulation was

necessary to process gas station permits. We cannot second guess this credibility

resolution on appeal.

       With regard to the dispute over the doctors' recommended work restrictions, the

testimony of the District's personnel supports that although the District believed it could

properly require six hours of fine manipulation per day, the District did not actually

impose this level of fine manipulation on Davis when it assigned him to the gas station

permit processing work. The record supports that regardless of how the District

interpreted the medically-recommended work restrictions, the District assigned Davis

                                             17
work that stayed within the parameters of Dr. Braun's recommendation that his fine

manipulation activity be noncontinuous and not exceed 30 minutes per hour and four

hours per day.

       The record supports that Davis was not permanently incapacitated in light of the

work accommodations provided to him, and Davis presented no evidence that refuted the

District's evidence on this point as a matter of law. Accordingly, Davis cannot prevail on

his claim that the evidence does not support the trial court's denial of his mandate

petition.

                              II. Other Contentions of Error

       Davis argues his rights were violated because the hearing officer denied his

counsel's request for a continuance to secure the testimony of the county's workers'

compensation adjuster, Balvaneda. As set forth above, county adjustor Balvaneda issued

two memos to the District: the first memo (dated March 5, 2009) referred to Dr. Braun's

30 minutes per hour/four hours per day maximum keyboarding recommendation, and the

second memo (dated June 9, 2009) referred to Dr. Murphy's reference to the 25 percent

loss of capacity. During the second day of the two-day administrative hearing, Davis's

counsel requested a continuance so he could secure the attendance of Balvaneda, arguing

that her testimony was relevant on the issue of how the District determined that Dr.

Braun's work restrictions were no longer applicable.12




12     Davis's counsel explained that he had mistakenly failed to subpoena Balvaneda
before the administrative hearing.
                                             18
       When Davis's counsel first requested the continuance, he had the March 2009

memo from Balvaneda (referring to Dr. Braun's recommendation), but he did not have

the June 2009 memo from Balvaneda (referencing Dr. Murphy's report). District

personnel apparently relied on the second memo to establish the 25 percent

accommodation in lieu of Dr. Braun's recommended accommodation. Davis's counsel

argued that given that only the first memo had been produced, either the second memo

should be produced by the District, or Balvaneda should testify to explain the change in

the accommodation adopted by the District personnel. In response, the District's attorney

told the court that the District had provided the second memo to Davis at a time when he

was not represented by counsel, and the District's attorney then proffered the second

memo for Davis's counsel's to now review. The trial court told Davis's counsel he could

introduce the second memo into evidence, and denied his request for a continuance. In

its mandate ruling, the trial court found no error on this point.

       We review the denial of a continuance for abuse of discretion. (Ring v. Smith

(1970) 5 Cal.App.3d 197, 201.) The trial court reasonably rejected Davis's challenge to

the hearing officer's denial of the continuance. Davis has not presented any persuasive

argument as to how testimony from Balvaneda might have been important to his case.

       First, Balvaneda's second memo (which was entered into evidence) described Dr.

Murphy's reference to Davis's 25 percent loss of capacity as constituting Davis's

"permanent work restrictions"; the District personnel testified that this is the work

restriction they believed was applicable and they interpreted it to mean a 25 percent

reduction in fine manipulation; and there is no suggestion as to what further relevant

                                              19
information might have been forthcoming had Balvaneda been called as a witness.

       Second, the critical evidentiary factor that emerged during the administrative

hearing was the District's evidence that regardless of how the District viewed the doctors'

recommendations, it ultimately gave Davis a work assignment that complied with the

parameters of Dr. Braun's recommendations. In short, it was not unreasonable to deny

the continuance request given the receipt of Balvaneda's memo into evidence, and the

narrowing of issues in a manner that diminished the relevancy of testimony concerning

the dispute over the two doctors' recommendations.

       To the extent Davis suggests on appeal that Balvaneda's testimony was important

because the memos reflect that the District first decided to follow Dr. Braun's

recommendations, and then decided not to do so based on racial prejudice, there is

nothing in the record to support this theory. The record shows that Balvaneda's two

memos simply reflect the District's serial receipt of two doctors' reports, first from Dr.

Braun and then from Dr. Murphy. There was no abuse of discretion in the denial of the

continuance to subpoena Balvaneda.

       Finally, we reject Davis's suggestions that the actions were motivated by racial

prejudice, and that the hearing officer was biased against him. We have reviewed the

record and find no support for these contentions.




                                             20
                                   DISPOSITION

      The judgment is affirmed. Appellant to pay respondent's costs on appeal.




                                                                          HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



MCDONALD, J.




                                          21
