Filed 6/30/14 Koskinen v. Mendocino County Employees Retirement Assn. Bd. of Retirement CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


KIMBERLY KOSKINEN,
         Plaintiff and Appellant,
                                                                     A138926
v.
MENDOCINO COUNTY EMPLOYEES’                                          (Mendocino County
RETIREMENT ASSOCIATION BOARD                                         Super. Ct. No. SCUKCVPT1260584)
OF RETIREMENT,
         Defendant and Respondent.

                                                   INTRODUCTION
         Kimberly Koskinen sought service-related disability retirement after an on-the-job
automobile accident which she claimed resulted in a permanent psychiatric disability.
Mendocino County Employees’ Retirement Association, Board of Retirement (Board)
denied her a service-related disability retirement but approved a nonservice-related
disability retirement. Koskinen challenged that determination by petition for writ of
mandate in the superior court, which was denied. She appeals from that denial, asserting
only that the court failed to exercise its independent judgment. We disagree and affirm.
                              PROCEDURAL AND FACTUAL BACKGROUND
         We set forth only those facts relevant to the single issue raised on appeal. Because
no issue of substantial evidence has been raised, we set forth the summary of the factual
background taken from the superior court’s order.
         “[Koskinen] was employed by the County of Mendocino as an Eligibility Worker
from 1993 until 2007. By all accounts, she was a diligent and productive employee. On


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September 12, 2007 [Koskinen] was involved in a two car collision on Highway 20 while
traveling to work in Ukiah. [Koskinen] unsuccessfully tried to return to work part time
after the auto accident. Her last day of work with the County of Mendocino was
October 16, 2007.”
       “[Koskinen] has acknowledged throughout this litigation that she suffers from
psychological and medical conditions which are unrelated to the automobile accident of
September 12, 2007. Her request for a service connected disability retirement is based on
the aggravation of her preexisting psychiatric condition following the automobile
accident.”
       “[Koskinen] filed her application for a service connected disability retirement on
or about October 3, 2008. [The Board] referred the matter to Hearing Officer Robert
Murray. Mr. Murray conducted an evidentiary hearing on June 20, 21, August 12 and
December 13, 2011 which involved taking live testimony, review of deposition testimony
and voluminous document review. Mr. Murray’s April 4, 2012 report recommended that
[the Board] find that [Koskinen] was disabled from working as an Eligibility Worker for
psychiatric and emotional reasons but deny [her] application for a service connected
disability retirement. On April 19, 2012, [the Board] adopted the Hearing Officer’s
recommendation.”
       Koskinen filed a petition for writ of mandate in the superior court. The court
denied the petition after reviewing “the complete Administrative Record.”
                                       DISCUSSION
       Koskinen raises only one issue in this appeal—“whether the Superior Court
applied the correct standard of review.” She claims the court did not exercise its
independent judgment in reviewing the administrative record and, instead, incorrectly
applied the substantial evidence standard. Whether the trial court applied the correct
standard of review is a question of law we review de novo. (Alberda v. Board of
Retirement of Fresno County Employees’ Retirement Assn. (2013) 214 Cal.App.4th 426,
434 (Alberda).)



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       Code of Civil Procedure section 1094.5 sets out the procedure for obtaining
judicial review of a final administrative determination by writ of mandate. “The inquiry
in such a case shall extend to the questions whether the [agency] proceeded without, or in
excess of, jurisdiction; whether there was a fair trial; and whether there was any
prejudicial abuse of discretion. Abuse of discretion is established if the [agency] has not
proceeded in the manner required by law, the order or decision is not supported by the
findings, or the findings are not supported by the evidence. [¶] (c)Where it is claimed
that the findings are not supported by the evidence, in cases in which the court is
authorized by law to exercise its independent judgment on the evidence, abuse of
discretion is established if the court determines that the findings are not supported by the
weight of the evidence. In all other cases, abuse of discretion is established if the court
determines that the findings are not supported by substantial evidence in the light of the
whole record.” (Code Civ. Proc., § 1094.5, subds. (b)–(c).)
       “[I]f the order or decision of the agency substantially affects a fundamental vested
right, the court, in determining under section 1094.5 of the Code of Civil Procedure
whether there has been an abuse of discretion because the findings are not supported by
the evidence, 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
v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 44.) An agency’s
decision regarding work-related disability retirement substantially impacts a fundamental
vested right. (Alberda, supra, 214 Cal.App.4th at p. 433.) “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).)
“[T]here is no inconsistency in a rule requiring that a trial court begin its review with a
presumption of the correctness of administrative findings, and then, after affording the
respect due to these findings, exercise independent judgment in making its own findings.”
(Id. at p. 819.)


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       Koskinen acknowledges the trial court stated it was applying the correct
independent judgment standard. However, she contends other language in the court’s
order and deficiencies in the court’s discussion of the evidence indicate it actually applied
the substantial evidence standard.
       The court’s order denying Koskinen’s petition for writ of mandate stated at the
outset: “The superior court exercises its independent judgment when reviewing the
administrative decision of a retirement board to grant or deny a service connected
disability retirement. (Strumsky v. San Diego County Employees Retirement Ass’n[,
supra,] 11 Cal.3d 28, 34.) ‘[A] trial court [must] begin its review with a presumption of
correctness of administrative findings, and then, after affording the respect due to these
findings, exercise independent judgment in making its own findings.’ (Fukuda[, supra,]
20 Cal.4th 805, [819].)”
       At the conclusion of its order, however, the court stated: “After conducting an
independent review of the entire Administrative Record, the court finds that substantial
credible and reliable evidence supports the Board’s decision. [¶] The court finds that
[Koskinen] has not met her burden of proving by a preponderance of the evidence that
her work-related automobile accident . . . aggravated her pre-existing psychological
condition or otherwise substantially contributed to her present disability. MCERA’s
decision to deny [Koskinen] a service related disability retirement is supported by
substantial evidence. For these reasons, the petition for writ of mandate is denied.”
Koskinen maintains these latter statements demonstrate the trial court actually applied the
wrong standard, the substantial evidence standard, relying on Alberda.
       Alberda also involved a petition for writ of mandate to set aside a Board of
Retirement’s denial of an employee’s application for service-connected disability
retirement. (Alberda, supra, 214 Cal.App.4th at p. 428.) The trial court’s statement of
decision in that case “began with stating the standard of review was independent
judgment.” (Id. at p. 432.) The court, however, also stated: “ ‘ “[w]e recognize at the
outset these two well-settled principles,” ’ ” including “ ‘ “(1) factual determinations of
the board must be upheld if there is substantial evidence in their support and the relevant


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and considered opinion of one physician, though inconsistent with other medical
opinions, may constitute substantial evidence . . . .” ’ ” (Id. at pp. 432–433.) Then, in
addressing the substantive merits, the court went on to use the phrase “substantial
evidence” five times (“the issue was whether there was ‘ “ substantial evidence of some
connection between the disability and the job” ’ ”; “ ‘substantial evidence supports the
hearing officer’s decision’ ”; “ ‘substantial evidence supported the . . . injury . . . did not
contribute substantially to [Alberda’s] incapacity’ ”; “ ‘substantial evidence supports that
the 2003 assignment . . . did not contribute substantially to [Alberda’s] incapacity’ ”;
“ ‘Substantial evidence supports the hearing officer’s finding.’ ”) (Ibid.) The Court of
Appeal concluded that, although the trial court initially recited the proper standard of
review, its analysis raised a “serious question” as to whether it had actually erroneously
applied the substantial evidence standard of review. (Id. at p. 435.)
       In contrast here, the trial court clearly set forth the appropriate standard of review,
and never indicated other “well-settled principles” applied—i.e., that “ ‘ “factual
determinations of the board must be upheld if there is substantial evidence in their
support” ’ ” and “ ‘ “the relevant and considered opinion of one physician, though
inconsistent with other medical opinions, may constitute substantial evidence’ ’ ”—as the
trial court erroneously did in Alberda. (Alberda, supra, 214 Cal.App.4th at pp. 432–433.)
While the court here used the phrase “substantial evidence” twice in the conclusion of its
order, it did not employ the phrase throughout its decision, as the trial court did in
Alberda. On the contrary, throughout its discussion of the evidence, the trial court here
repeatedly made specific findings as to the credibility of the witnesses and assessed the
weight and persuasiveness of their testimony—actions taken by a court engaged in
utilizing its independent judgment as to the import of the evidence. Furthermore, in its
conclusion, the trial court also stated: “The court finds that Petitioner has not met her
burden of proving by a preponderance of the evidence that her work-related automobile
accident on September 12, 2007 aggravated her pre-existing psychological condition or
otherwise substantially contributed to her present disability”—the precise conclusion a
court would make employing independent judgment and as the finder of fact. In sum,


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read in its entirety, the trial court’s decision here is markedly different than the that of the
trial court in Alberda and reflects the court actually applied the independent judgment
standard, as it stated it did.
       In any case, the fact the trial court twice used the phrase “substantial evidence” in
the conclusion of its decision at most renders the decision ambiguous. For the reasons we
have explained, the entirety of the opinion resolves any such ambiguity. Furthermore,
under well-established appellate principles, any ambiguity is resolved in support of the
decision. “[A] judgment is presumed correct, all intendments and presumptions are
indulged in its favor, and ambiguities are resolved in favor of affirmance.” (Hirshfield v.
Schwartz (2001) 91 Cal.App.4th 749, 765–766, citing Denham v. Superior Court (1970)
2 Cal.3d 557, 564; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624,
631.) “It is a basic presumption indulged in by reviewing courts that the trial court is
presumed to have known and applied the correct statutory and case law in the exercise of
its official duties.” (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) Accordingly,
we must presume the trial court both recited and applied the independent judgment
standard.1
       At oral argument, counsel asserted the trial court failed to address evidence
supportive of Koskinen’s claim to work-related disability and this also showed that,
contrary to what the court said, it did not review “all” the evidence and thus did not
actually apply the independent judgment standard. The only witness counsel identified as
not mentioned by the trial court was Dr. Ronald J. Lowell. Dr. Lowell was the “agreed
medical examiner” in connection with her disability claim and issued three reports.
When he first examined Koskinen, he requested a neuropsychological assessment and
therefore “defer[red] a final opinion on causation.” After this assessment was performed
by Dr. Mark Kimmel (whose testimony the trial court discussed and credited), and in his
final report, Dr. Lowell concluded he was “unable to conclude that actual events of her

       1
          Koskinen, moreover, did not bring the ambiguity to the attention of the trial
court in order to avoid this interpretation of the decision. (See In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1136.)

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employment have been predominant as to all causes combined of the psychiatric injury.”
We therefore do not view the trial court’s choice not to discuss Dr. Lowell’s testimony as
indicative of any employment of the substantial evidence standard, rather than utilization
of its independent judgment.
                                      DISPOSITION
       The judgment is affirmed. Each party to bear its own costs on appeal.



                                                 _________________________
                                                 Banke, J.


We concur:


_________________________
Dondero, Acting P. J.


_________________________
Becton, J.




       
         Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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