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Steven H. Spiegelman, Esq. (SBN 171393)
The Law Office of Steven H. Spiegelman
703 2" Street, Suite 4011
Santa Rosa, CA 95404
Phone: (707) 545-0368 Fax: (707) 324-6796
E-mail: steve@stevespiegelmanlaw.com
Noreen M. Evans, Esq. (SBN 102385)
EVANS KINGSBURY LLP
50 Old Courthouse Square, Suite 601
Santa Rosa, CA 95404
Tel. and Fax: (707) 596-6090
E-mail: noreen@evanskingsbury.com
Attorneys for Real Party in Interest
DONNA M. STARR
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SONOMA
MELISSA THOMPSON, an individual,
Petitioner,
Case No.: SCV-270653
REAL PARTY IN INTEREST DONNA M.
STARR’S REPLY BRIEF IN OPPOSITION
TO PETITION FOR ADMINISTRATIVE
MANDAMUS
vs.
BOARD OF ADMINISTRATION FOR THE
CALIFORNIA PUBLIC EMPLOYEES’
RETIREMENT SYSTEM,
Respondent.
Action Filed: April 21, 2022
Hearing Date: April 26, 2023
Hearing Time: 3:00 p.m.
DONNA M. STARR, an individual; and Does 1
to 10, inclusive,
Dept.: 18
Real Parties in Interest. Judge: Hon. Christopher Honigsberg
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REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION
TO PETITION FOR ADMINISTRATIVE MANDAMUS
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TABLE OF CONTENTS
L. INTRODUCTION...........cccssccsesssssesesccssssessseeesesseseeesseeseseseneesesseneessaeeersnsersnges 5
I STATEMENT OF FACTS
TI. PROCEDURAL HISTORY........:.c::ccsscessecsseesseeseeesensesrseessacensesaeonssensenenseoessesens 9
TV. ARGUMENT..........::csssssesscssccssecesssseseesseseseaeeseesenaeeesssasaeeesaueesenaesenneneessanees 10
A. Superior Court review of administrative action is limited................+.. secctuneseee 10
B. CalPERS acted within its jurisdiction............:cccccccecssssssssssneeeeeeesesnseensnneseseess 1
C. CalPERS afforded Petitioner due process of law:
D. CalPERS did not abuse its discretion because the agency proceeded by law
and substantial evidence supports the agency’s decision...
2) Petitioner is not entitled to relief from mistake, inadvertence. rise, OF
excusable neglect...........ccccccccccccesecceceeeseneseesseeceeeaesaneaeensaaseaseassesenees 17
3) Equitable estoppel does not apply against a public agency.....
E. Petitioner is not entitled to the relief she SeeKS..............sssssescceseeeeceecesceeeseeeees 19
V. CONCLUSION AND RELIEF REQUESTED..........:sssssssseceeceseseesssteetsesessenaeeesees 19
————— — SSSSSSSSSSSSSSSSSSSSSFSSSsSSs
REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION
TO PETITION FOR ADMINISTRATIVE MANDAMUS
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TABLE OF AUTHORITIES
Cases
Blaser v. California State Teacher's Retirement System (2022)
86 Cal.App.5" 507.....ccscessscesseesseseessessesseescessnesaseeessacaesorsssssesesensenseseeneu sea seeees 18
Carloss v. County of Alameda (2015) 242 Cal.App.4" 116
Cameron v. Sacramento County Employees’ Retirement System
(2016) 4 Cal.App.5 1266......ssccsssssecssesessesesesssessesesesssscsesensessseeecerssseceeesnsssenensssssesel
Doe v. Occidental College (2019) 37 Cal.App.5" 1003........sssssssessessscsssceserreseeersesesees 12
Doe v. University of Southern California (2018)
28 Cal.App.5" 26.....cccsssesesseseeserscsescssssnsssesesseeeseseesesssassesacecseseneseeaeessnsanenee sess 13
Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297.....ssssersseere Reeseceecorecteses eestecee eal 17, 18
Epstein v. Vision Service Plan (2020) 56 ss —C—C——L 11
Gallaher v. State Teachers’ Retirement System (1965)
237 Cal.App.2d 510.......:scsssscsesssrsessssesssseseesnseessnaeecesenseeessnsanssensesesssueeseareseusenee 16
Ghilotti Construction Co. v. City of Richmond
(1996) 45 Cal. App.4 897.0... ccscssccsscccsecesceresesseesesnesceseeeessesessecesenerseeesessse 12, 13
Hudson v. Posey (1967) 255 Cal. App.2d 89.......cccsseeceeceeeeessansesessecsseeeseseneeseneeseeeseees 17
In re Marriage of Modnick (1983) 33 Cal.3d 897......sssccccesssreeesesserersssneescsneesssensseessseseesee lS
In re Marriage of Sonne (2010) 185 Cal.App.4" 1564
Krolikowski v. San oa a ae Ret. a one
24 Cal.App.5" 537.. eo Ore ere eee eeee LD
Leal v. Gourley (2002) 100 Cal.App.4"" 963.....cccssssssesscssesseesssesssesevssensonesssesseesenenees 12
Moore v. City of Los Angeles (2007) 156 Cal.App.4"373
Ocean Park Associates v. Santa Monica Rent Control Board (2004)
114 Cal. App.4" 1050.........::scesscccesseesessseessssesessseescessssessevessessseseeseeseeeseeesenseees 11
3
REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION
TO PETITION FOR ADMINISTRATIVE MANDAMUS
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Schutte & Koerting, Inc. v. Reg’l Water Quality Bd. (2007)
LOS Cal App Alsisee ee ee ee 12, 13
Ventura29 LLC v. ee of ‘Buenaventura anal —Cal.. a Sth, 2023 WL
409909... ee sssssaveescsseseeesersenveesssarensnsessssssessseeoe LO
Watenpaugh v. State Teachers’ Retirement System (1959)
51 Cal.2d 675......secsscesssessseressssesssssesssesscsesesesscsssessenescesseseesssressessesennnssseenssssseee] 6
Worton v. Worton (1991) 234 Cal. App.3d 1638........cccccssssesssenesssvecsceesseesseeesessencosseses 14
Statutes
Code of Civil Proc.§473.........ccccccssseeeseeeeesseecesseuseeceesnscceaeesseeuneeseesseessssseesneeeesees 17
CodeotCivilbroc:Sl094Strnt ee Salis 2
Code of Civil Proc.§1094.5(f).........ssssssccsssssssrssssssssscesssssesseeseeserssosesseessssessesessoosss 19
Fam. Code §297.5....
Fam. Code §760.
Fam. Code §2556. ee
Fam. Code §2610........::sscccssssssssrescssscsssreseoscsssssseseeceseessssovsssssosess Reece eee ere 14
Gov. Code §11370...... :
Gov. Code §20160...
Gov. Code §21454
Gov. Code §21462
Gov. Code §21630
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REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION
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I, INTRODUCTION
This is a petition for writ of administrative mandamus brought pursuant to Code of Civil
Procedure (“CCP”) §1094.5. (See the caption of Petition filed 4/21/22.) CalPERS denied relief to
Petitioner Melissa Thompson (“Petitioner”) after a full evidentiary hearing and administrative
appeal. Petitioner seeks to obtain the CalPERS retirement benefits of Decedent Jennifer Donovan
(“Decedent”), Decedent’s benefits were a community property asset which was never divided in
the dissolution of Decedent’s domestic partnership with Real Party in Interest Donna M. Starr
(“Starr”). :
The evidence produced in the administrative law hearing, and the findings made by the
administrative law judge, show that Petitioner was unable to prove she was entitled to
Decedent’s CalPERS retirement benefits for a number of statutory reasons:
1) The benefits Petitioner seeks to acquire were a community property asset of the
domestic partnership between Decedent and Starr. Decedent did not disclose her CalPERS
retirement account as a community property asset when she obtained a default dissolution of
their domestic partnership. The benefits therefore remain an undivided community asset in which
Starr retains an interest.
2) Decedent never complied with the requirements of Gov. Code §21454 to remove Starr
as her beneficiary.
3) Decedent never completed any paperwork to make Petitioner her beneficiary.
4) Petitioner and Decedent were not married for one year prior to Decedent’s retirement
date. :
As set forth below, the Superior Court’s authority to review a quasi-judicial decision by
an administrative agency is limited by statute. The Superior Court lacks the authority to conduct
a de novo review of the evidence, and to substitute its own judgment for that of the
administrative agency.
On a petition for writ of administrative mandamus, Petitioner has the burden to show why
CalPERS’ decision should be overturned. By statute, the Superior Court is authorized to overturn
an administrative decision only where the administrative agency exceeded its jurisdiction, failed
to provide due process, or abused its discretion. Petitioner's Opening Brief fails to address any of
these bases for reversal, and should therefore be denied.
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REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION
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I. STATEMENT OF FACTS
On May 10, 2010, Decedent and Starr entered into a registered domestic partnership.
(Administrative Record (“AR”) 129.)
On May 31, 2013, a co-signed Stipulation of Dissolution of Domestic Partnership was
filed with the California Secretary of State. (AR 86, 230) However, dissolution of the domestic
partnership between Decedent and Starr was never completed. (AR 156.) Decedent and Starr
continued to live together as a married couple. (AR 439.)
Decedent was employed as a State Parks Superintendent for the State of California, On
October 30, 2015, Decedent applied for service retirement and selected the Option 4 (2W & 1)
Lifetime allowance, naming her domestic partner Starr as her Option 2W beneficiary to receive a
lifetime monthly allowance from Respondent CalPERS, Decedent’s retirement was effective
October 1, 2015. (AR 121, 122, 124-127, 270.)
On August 12, 2017, Decedent sent an e-mail to Starr stating it was her belief that Starr
had at some earlier point in time challenged the jointly executed stipulation of dissolution of
domestic partnership, dated May 31, 2013. The parties were now required to file a formal
dissolution of marriage in the Sonoma County Superior Court. (AR 80-81, 90.)
Decedent prepared dissolution papers for herself and Starr and requested entry of
judgment on an uncontested dissolution. In her declaration in support of uncontested dissolution,
Decedent represented to the court and Starr there were no community assets or debts to be
divided. Decedent did not disclose her CalPERS retirement. (AR 97, 138, 271.) On December
22, 2017, Judgment of Dissolution was filed for Decedent and Starr, effective February 16, 2018.
(AR 141.)
Decedent married Petitioner March 6, 2018. (AR 271, 284.)
Thereafter, on November 28, 2018, Decedent contacted CalPERS regarding a
beneficiary designation change. CalPERS mailed her the publication "Changing .Your
Beneficiary or Monthly Benefit After Retirement" and a "Modification to Life Option
Beneficiary" application (“MOLOB”). (AR 271.)
On December 11, 2018, Decedent designated Petitioner as her beneficiary for the
Option | balance and Retired Death Benefit via her member services online account. (AR 271.)
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The next day, December 12, 2018, Decedent contacted CalPERS for assistance with her
MOLOB request. CalPERS advised Decedent to submit her dissolution documents for
processing. (AR 271-72.)
On December 17, 2018, Decedent contacted CalPERS to get an estimate for Option | as
well as other options available for her new spouse, and stated she had copies of her
uncontested dissolution showing they had no community property and no assets. (AR
272.)
On December 28, 2018, CalPERS representative Joy Fong spoke with Decedent
and advised she already had the Option 1 as part of her Option 4 (2W & 1) selection.
However, if Decedent wanted to remove Starr as her Option 2W beneficiary, Decedent
must submit her request in writing and include a copy of their Judgment of dissolution
awarding Decedent 100% interest in her CalPERS retirement account, Decedent was
informed that she could also go online to get estimates and elect a MOLOB to add
Petitioner as a lifetime beneficiary. (AR 272.) Currently Melissa Thompson was listed
as Decedent’s Option 1 beneficiary. (AR 271.)
On January 3, 2019, Decedent submitted a MOLOB request with a letter stating she
would like to remove Starr as her Option 2W beneficiary. She also submitted the court
documents from their dissolution of marriage which showed her representation that there was no
community property to be divided. (AR 272.)
On January 30, 2019, Decedent called CalPERS to inquire regarding her MOLOB
request. Decedent indicated she did not want a MOLOB; her request was only to remove Starr
as her Option 2W beneficiary. CalPERS representative Joy Fong explained to Decedent that
the court judgment in her dissolution did not award Decedent 100% of her CalPERS
retirement. Decedent was advised to have Starr sign a community property release or, in the
alternative, obtain an amended judgment from the Sonoma County Superior Court
awarding her 100% interest in her CalPERS account. Decedent told CalPERS she would try to
go back to court or see if she could contact her former spouse, Starr. The CalPERS’s Customer
Touch Point Report entry, dated January 30, 2019, does not indicate that the Decedent
communicated she wanted to designate Petitioner as her Option 2W benefit replacement.
(AR 272-73.)
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On January 30, 2019, CalPERS sent Decedent a formal rejection letter with a Release of
Community Property Interest in Life Option Benefit form. CalPERS’ letter again explained that
in lieu of an amended judgment, Starr could voluntarily consent to give up all rights to her
interest in Decedent's CalPERS benefits. (AR 273.) .
On February 13, 2019, CalPERS received its final communication with Decedent
wherein Decedent inquired about the possibility of returning to work. Thereafter, CalPERS had
no further communications with Decedent. (AR 273.) Decedent did not return to CalPERS a
signed Release of Community Property Interest in Life Option Benefit form or an amended court
judgment awarding her 100% interest in her CalPERS account. (AR 273.)
Decedent died more than a year later, on May 21, 2020. (AR 35.) At the time of
Decedent's death, Starr was the Option 2W beneficiary on file and Petitioner was the Option 1
beneficiary. (AR 274.)
Petitioner thereafter contacted CalPERS to inquire about the Decedent’s death benefits.
Petitioner stated Decedent had tried to modify her lifetime beneficiary, and wanted clarification
if CalPERS would accept a notarized document signed by Starr waiving her interest in
Decedent’s CalPERS benefits. (AR 274.) CalPERS then asked Petitioner to submit an
Application for Retired Member/Payee Survivor Benefits and supporting documents. Petitioner
signed the application June 8, 2020, and attached supporting documents, including Decedent’s
death certificate and a copy of Decedent's living trust designating Petitioner as Decedent’s
beneficiary, including her “PERS Retirement Account.” (AR 274.) .
CalPERS notified Starr on June 6, 2020 that she is the beneficiary of benefits payable due
to the death of the Decedent. (AR 152.)
CalPERS advised Petitioner on June 8, 2020 that in order to qualify for Decedent’s
Survivor Continuance monthly allowance, Petitioner and Decedent would have had to have been
married one year prior to Decedent’s retirement date. (AR 274-75.) Thereafter, on June 13, 2020,
CalPERS informed Petitioner of her option to submit a written dispute. (AR 275.) Petitioner
submitted her dispute on June 15, 2020, requesting an exception and reconsideration regarding
the lifetime option beneficiary and survivor continuance monthly allowance. (AR 275.)
On July 28, 2020, CalPERS advised Petitioner that a thorough review had been
conducted on Decedent’s file and it was determined pursuant to Gov. Code §21462 and 21454
that Petitioner is not eligible for a monthly allowance from CalPERS. Decedent had designated
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Petitioner as the beneficiary only for her lump sum death benefit. The letter further states
Decedent had been informed on January 3, 2019 that she needed to obtain a court order awarding
her 100% of her CalPERS retirement. The letter also communicated that there was no provision
in the law allowing Decedent's trust to be used as a designation for payment of an ongoing
CalPERS lifetime monthly allowance. Petitioner was advised of her appeal rights. (AR 275.)
Thereafter, CalPERS continued to communicate with Petitioner’s attorneys, each time
advising them CalPERS required a Superior Court order awarding Decedent 100% interest in her
CalPERS benefits, and that in lieu of a court order, Petitioner could ask Starr to voluntarily
waive her benefits. (AR 276-78.)
CalPERS received neither an amended dissolution judgment, nor a signed waiver.
Therefore, no change was made to Decedent’s Option election or Option beneficiary designation.
(AR 278 and AR 198-199.)
Il. PROCEDURAL HISTORY
Petitioner filed an appeal of CalPERS’ staff decision on February 4, 2021. (AR 279.) An
evidentiary hearing was held before Administrative Law Judge Regina Brown on November 15,
2021 and November 19, 2021. (AR 269.)
Following hearing, Judge Brown made specific findings of fact. She found that Decedent
executed on her deathbed a notarized document making Petitioner the sole beneficiary of
Decedent’s CalPERS Lifetime Benefit. (AR 273-74.) At the time of Decedent's death, Starr was
Decedent’s Option 2W beneficiary, and Petitioner was Decedent’s Option 1 beneficiary. (AR
274.) Petitioner is not eligible for survivor continuous monthly benefits pursuant to Gov. Code
§21630, defining a “surviving spouse” as having been married to the member (Decedent) one
year prior to the member’s retirement. Decedent retired on October 1, 2015, and Petitioner and
Decedent married on March 6, 2017, more than two years after Decedent’s retirement. (AR 284.)
Based on the evidence, Judge Brown did not find Decedent’s failure to designate
Petitioner as her beneficiary for more than a year before her death was the result of mistake,
inadvertence, surprise, or excusable neglect: CalPERS provided Decedent with the information
and explained the process and provided the forms Decedent needed to complete to designate
Petitioner as her Option 2W beneficiary. (AR 286.) Judge Brown found Decedent failed to
comply as instructed by CalPERS. (AR 287.)
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Further, Judge Brown found CalPERS has no court record showing that Decedent was
awarded 100% of her retirement benefit. Despite CalPERS’s communications with Decedent and
specific instruction regarding the required documentation, Decedent did not submit an amended
judgment showing she was awarded 100% of her retirement benefit or a signed release from
Starr. (AR 284.)
Moreover, Decedent did not submit a MOLOB to request estimates of the different
settlement option benefits Petitioner may have received had Decedent appropriately named her
as the Option 2W beneficiary. (AR 284.) None of the requirements were met to effectuate a
change in beneficiary for the Option 2W lifetime monthly benefit (AR 284.)
Accordingly, Judge Brown found CalPERS properly denied Petitioner the Option 2W
lifetime monthly benefit because Decedent never completed the process to either obtain a
judgment awarding her 100% of her CalPERS retirement in the dissolution of her domestic
partnership nor did Decedent obtain a release from Starr. (AR 282.) ;
Judge Brown further found CalPERS properly denied Petitioner the lifetime monthly
survivor continuance benefit because Decedent and Petitioner were not married one year prior to
Decedent's retirement date. Judge Brown found no legal or factual basis to support this lifetime
benefit to Petitioner. (AR 282.)
Accordingly, Judge Brown denied Petitioner's appeal by decision dated December 17,
2021. (AR 288.)
Judge Brown’s decision was reviewed by the Administrative Board of CalPERS (‘the
Board”). (AR 265.) The issues were briefed by both Petitioner (AR 296), and CalPERS staff.
(AR 290.) Starr submitted a short letter brief in support of CalPERS’ staff’s recommendation
that the Board adopt Judge Brown’s decision of December 17, 2021. (AR 308.)
Pursuant to Gov. Code §11370, et seq., the Board issued its decision on February 22,
2022, adopting Judge Brown’s decision. (AR 320-322.)
Petitioner filed her Petition for Writ of Administrative Mandamus on April 21, 2022,
pursuant to §1094.5. (See Superior Court file.)
Iv. ARGUMENT
A. Su x Court review of administrative ac limited
The Superior Court is not empowered to substitute its judgment for the judgment of the
administrative agency. Review of an agency decision on a petition for writ of administrative
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mandate is limited. The Superior Court does not conduct a de novo review of the evidence, and is
not authorized to exercise its own judgment as to the merits of Petitioner’s claim litigated before
CalPERS. The essence of administrative mandamus is judicial review of a discretionary,
adjudicatory decision by an administrative decision-maker. (Ocean Park Associates v. Santa
Monica Rent Control Board (2004) 114 Cal.App.4th 1050, 1061.)
Furthermore, the Superior Court’s review of Judge Brown’s decision is limited to the
administrative record, and is confined to issues raised during the administrative proceeding.
(CCP §1094.5(a); Moore v. City of Los Angeles (2007) 156 Cal.App.4th 373, 382: statute of
limitations defense was forfeited by failure to raise it during the administrative proceeding.) No
new evidence may be presented, and no new issues may be raised.
Pursuant to the express language of CCP §1094.5(b), the Superior Court’s authority is
limited to a determination of whether the administrative body has done one of the following:
- Proceeded without jurisdiction or in excess of its jurisdiction;
- Afforded the petitioner a fair hearing;
- Prejudicially abused its discretion.
It is Petitioner’s burden to prove that one of the above occurred during the administrative
proceeding before CalPERS. (Epstein v. Vision Service Plan (2020) 56 Cal.App.5" 223, 249:
“the party challenging an administrative decision always has the burden to show why the
decision should be overturned.”)
In her opening brief, Petitioner has made no attempt to establish that CalPERS acted
without jurisdiction or in excess of its jurisdiction. Petitioner has likewise made no attempt to
show that CalPERS denied her a fair hearing or prejudicially abused its discretion: Instead,
Petitioner simply reargues the facts and seeks to have this Court substitute its judgment for that
of the administrative agency. This exceeds the Superior Court’s jurisdiction.
Because Petitioner has failed to even address the statutory bases for reversal of CalPERS’
decision, her Petition for Writ of Mandate should be denied. Petitioner should not be allowed to
address these matters for the first time in her reply brief unless Respondent and Starr are given a
fair opportunity to respond.
Nevertheless, despite Petitioner’s failure to address the statutory bases on which the
Superior Court is authorized to reverse, Starr will address each one.
B. CalPERS acted within its jurisdiction
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An agency can exercise adjudicatory authority only to the extent it is authorized to do.
Petitioner presents no facts or argument that CalPERS exceeded its jurisdiction in adjudicating
her claim for Decedent’s CalPERS benefits. Petitioner makes no reference to the record to
support any finding that CalPERS exceeded its jurisdiction in any way.
Indeed, Petitioner submitted herself to CalPERS’ jurisdiction repeatedly throughout the
administrative process. She made no objection to CalPERS’ authority to adjudicate her claim
during the administrative proceeding. Having made no objection in the administrative
proceeding, Petitioner cannot now protest that CalPERS lacked jurisdiction.
alPERS afforde ioner due process of law
Generally, a fair procedure requires notice reasonably calculated to apprise interested
parties of the pendency of the action, and an opportunity to present their evidence and objections.
(Doe v. Occidental College (2019) 37 Cal.App.Sth 1003, 1014.)
Petitioner indisputably received notice of the hearing before Judge Brown. Petitioner
attended the hearing, was represented by an attorney, and presented evidence and argument.
Likewise, Petitioner received notice of the CalPERS Administrative Board, and presented
written argument before the Board made its decision. :
Petitioner has provided no evidence or argument to establish that the administrative
process did not afford her due process.
D. Cal did not abuse its discretion because the agency proceeded by law and
substantial evidence supports the agency’s decision
An abuse of discretion may occur where the agency did not proceed as required by law,
or the administrative decision is not supported by the findings, or the findings are not supported
by the evidence. (CCP §1094.5(b); Carloss v. County of Alameda (2015) 242 Cal.App.4th 116,
132.) But an abuse of discretion alone is not sufficient to overtum the administrative decision.
Petitioner must establish the abuse of discretion was prejudicial, i.e., that it resulted in a
miscarriage of justice, (Leal v. Gourley (2002) 100 Cal.App.4th 963, 969.)
1) Substantial evidence supports the agency’s decision
The Superior Court is not authorized to reweigh the evidence presented in the
administrative hearing. It must be presumed that the agency's findings are supported by
substantial evidence. Petitioner has the burden of demonstrating otherwise. (Schutte & Koerting,
Inc. v. Reg'l Water Quality Control Bd. (2007) 158 Cal.App.4th 1373, 1384, citing Ghilotti
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Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897, 903.) Factual findings not
contested by the Petitioner must be accepted as true. (Cameron v. Sacramento County
Employees’ Retirement System (2016) 4 Cal.App.5th 1266, 1278.)
Here, Petitioner has made no effort to demonstrate that CalPERS’ decision was not
supported by substantial evidence. The Court must presume it is supported by substantial
evidence. Petitioner has also not identified any specific factual findings made by Judge Brown
that she challenges, so the facts found by Judge Brown are accepted as true.
Petitioner’s Opening Brief does not address any of these allegations made in her Petition.
Instead, Petitioner asks the Superior Court to review the evidence anew and liberally construe the
applicable statutes to give effect to what Petitioner contends was Decedent’s intentions.
(Petitioner’s Opening Brief filed 1/11/23 (“POB”), pp. 7-8.) Petitioner contends “...the Court has
ample evidence of Jennifer Donovan’s manifested intent to remove her ex-wife, Donna, and to
name her then-wife Melissa Thompson.” (POB, pp. 8-9.) But, as set forth above, that is not the
Superior Court’s function on a writ of administrative mandamus.
The Superior Court does not re-examine and reweigh the evidence. The Superior Court’s
function is solely to determine whether substantial evidence supports the agency’s decision. (Doe
v. University of Southern California (2018) 28 Cal.App.5th 26, 34.) The Court must view the
evidence in the light most favorable to the agency's actions, indulging all reasonable inferences
in support of those actions. (Schutte & Koerting, Inc, v. Reg'l Water Quality Control Bd., supra,
158 Cal.App.4th at 1384, citing Ghilotti Construction Co. v. City of Richmond, supra, 45
Cal.App.4th at 903.)
Ample evidence supported Judge Brown’s decision. Judge Brown made specific factual
findings in her decision, all of which are supported by the evidence.
Gov. Code §21454 allows a CalPERS member to modify an election of optional
settlement 2 in which the member’s spouse is named as beneficiary “in the event of a
dissolution of marriage or a legal separation in which the division of the community property
awards the total interest in the retirement system to the retired member....” Under §21454,
Decedent had two pathways to modify her election prior to her death: 1) an amended court
judgment of dissolution giving Starr’s community property interest in Decedent’s retirement plan
to Decedent; or 2) execution of the documents necessary to change her Option 2W beneficiary
from Starr to Petitioner. Neither happened.
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Judge Brown found that in her dissolution proceeding with Starr, Decedent represented
that there were no community assets to be divided and that Decedent did not disclose her
CalPERS retirement. (AR 271, 276.) This finding was supported by Decedent’s sworn
declaration in support of uncontested dissolution in which Decedent represented to the Superior
Court that the parties had no assets to be divided. (AR 97, 138, 271.)
Registered domestic partners have the same rights and responsibilities, as married person
under California Law. (Fam. Code §297.5(a).) Retirement benefits attributable to employment
during a marriage or domestic partnership are community property. (In re Marriage of Sonne
(2010) 185 Cal.App.4th 1564, 1573-74; see also Fam. Code §760.) (AR 15.)
Division of retirement benefits is often the subject of considerable litigation in family
court, Where a community asset remains undivided following judgment of dissolution, the court
retains jurisdiction to divide the asset. (Fam. Code §2556.) The court is mandated to make
whatever orders are necessary to ensure that each party receives the party’s full community
property share in any retirement plan. (Fam. Code §2610(a).)
There is no evidence in the record to suggest Decedent and Starr divided this asset when
they attempted to terminate their domestic partnership. By law, Starr maintained an undivided
community property interest in Decedent’s CalPERS account. Decedent’s failure to disclose her
CalPERS retirement account as a community asset during the dissolution proceeding was a
breach of her statutory fiduciary duties to Starr. (Worton v. Worton (1991) 234 Cal.App.3d 1638,
1648.)
The portion of Decedent’s retirement account attributable to her domestic partnership
with Starr therefore remains an undivided community asset over which the Superior Court
retained jurisdiction. Decedent never took any action to have it divided, despite CalPERS’
instruction that she do so. (AR 273.) Judge Brown found that Decedent told CalPERS it was not
possible to get Starr to sign a release form because Decedent had no contact with Starr. (AR
280.) Therefore, the evidence established Decedent never complied with the first method of
changing her beneficiary under Gov. Code §21454.
With respect to execution of the documents necessary to change Decedent’s Option 2W
beneficiary, Judge Brown found Decedent did not return a release of Starr’s rights. (AR 273.)
Judge Brown also found that Petitioner acknowledged to CalPERS Decedent had passed away
before completing the process of changing her option benefit to name Petitioner as her new
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21
Option 2 beneficiary. (AR 275.) Judge Brown further found Decedent never expressed any
intention to CalPERS to make Petitioner her Option 2W beneficiary. (AR 272-73.) Therefore,
the evidence established Decedent failed to comply with the second method of changing her
beneficiary under Gov. Code §21454.
Petitioner seems to imply that Starr somehow waived her community property interest in
Decedent’s CalPERS account by failing to contest the dissolution proceedings. Petitioner
contends in para. 24 of her writ petition that the CalPERS Board’s “.. .Decision failed to consider
the dissolution proceedings that included Decedent’s declaration and hearing testimony
explaining that the parties agreed to retain their own interests, which was not controverted by
STARR at the hearing below.”
But Decedent never disclosed to Starr in the dissolution proceeding the existence of her
CalPERS retirement, which was a community asset. Failure to disclose a community property
asset is fraud which deprives the other party of her right to protect her interest in that asset. (In re
Marriage of Modnick (1983) 33 Cal.3d 897, 905.) Starr cannot waive rights she did not know she
had, Therefore, Starr did not waive her interest in Decedent’s CalPERS account which was never
disclosed by Decedent as a community asset when they dissolved their relationship.
Decedent’s failure to properly divide her CalPERS retirement benefit as a community
asset also had adverse consequences for CalPERS. Starr retained a community property interest
in Decedent’s CalPERS account, and CalPERS needed an amended dissolution court judgment
awarding Decedent 100% of her CalPERS retirement to satisfy the requirements of Gov. Code
§21454, CalPERS has no authority to simply ignore statutory mandates. And, a change of
beneficiary required CalPERS to recalculate Decedent’s retirement benefits depending upon the
age of her beneficiary, because benefits decrease the younger the beneficiary. (AR 280.)
This is more than substantial evidence to support Judge Brown’s conclusion that
Decedent failed to comply with the statutory mandates of Gov. Code §21454, that as a matter of
law, Starr remains Decedent’s Option 2W beneficiary, and that Decedent never appointed :
Petitioner her Option 2W beneficiary.
Petitioner points to Exhibit G (AR 240) as evidence that Decedent intended to make
Petitioner Decedent’s beneficiary. (Opening Brief p. 9.) Assuming for the sake of argument that
Exhibit G is evidence of intent, the existence of some slight evidence in the record to support
Petitioner’s arguments does not compel the Superior Court to overturn the agency’s decision. As
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set forth above, the Superior Court does not reweigh the evidence; the Superior Court must view
the evidence in the light most favorable to the agency's actions and indulge in all reasonable
inferences in support of those actions. Conflicts in the evidence must be resolved to support the
agency’s decision. As discussed above, ample evidence supports Judge Brown’s findings. In the
administrative proceeding, Petitioner did not meet her burden to prove that Decedent fulfilled the
statutory requirements to change her beneficiary. For these reasons, the petition for writ of
mandate must be denied.
The cases relied upon by Petitioner are distinguishable. In Watenpaugh v. State Teachers’
Retirement System (1959) 51 Cal.2d 675, Mr. ‘Watenpaugh had completed the form revoking his
previous beneficiary and designating his new wife as his beneficiary. The form was signed and
witnessed. Mr. Watenpaugh took the form home where it remained until his death about 10
months later. The Supreme Court held that completion of the form was sufficient indication of
Watenpaugh’s intent to revoke his prior beneficiary and designate his new wife as beneficiary.
Watenpaugh did not involve the facts here, where Decedent failed to divide her retirement plan
as community property asset when she dissolved her marriage to Starr.
The First District Court of Appeal distinguished Watenpaugh in Gallaher v. State
Teachers’ Retirement System (1965) 237 Cal.App.2d 510 (“Gallaher”).) Gallaher is cited by
Petitioner in her Opening Brief (POB, pp. 8-9) but it, too, does not support Petitioner's position.
In Gallaher, the facts were very similar to the case at bar. Harold Gallaher designated his
first wife, Wilma, as his beneficiary. He later obtained a Nevada divorce decree from Wilma by
default, and married Elsie. Thereafter, Wilma filed a divorce action in California, alleging the
parties’ community property assets included a $3,000,000 CalSTRS retirement plan. The
California court awarded Harold the CalSTRS plan, and ordered the parties to execute and
deliver all documents necessary to implement the judgment. The California court retained
jurisdiction for the purposes of enforcing that part of the judgment. (237 Cal.App.2d at 511-12.)
Harold never filed or attempted to file a revocation of his designation of Wilma as his CalSTRS
beneficiary. (Ibid at 512-13.) The Court of Appeal held the California divorce decree did not
constitute a renunciation by Harold of his previous designation of Wilma as his beneficiary, and
Harold never executed the documents necessary to revoke his designation. The Court of Appeal
therefore reversed the trial court’s judgment in favor of Elsie. (Ibid at 520.)
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Gallaher was followed by Hudson v. Posey (1967) 255 Cal.App.2d 89, which was also
decided on similar facts. The Hudson court stated by noting that retirement benefits for state
employees are statutory and membership is compulsory. (Ibid at 91.) The Court held that an oral
statement, and a letter written by the decedent prior to his death were not sufficient to change his
beneficiary. (Ibid at 95-96.)
Applying the proper standard of review, under the authorities set forth above, viewing the
evidence in the light most favorable to CalPERS’ actions, and indulging all reasonable inferences
in support of those actions, substantial evidence supports Judge Brown’s determination.
Petitioner’s writ petition should be denied. ,
2) Petitioner is not entitled to relief from mistake, inadvertence, surprise, or
excusable neglect
In para. 25 of her writ petition Petitioner alleges: “The Decision further failed to correctly
apply C.C.P. §473 to the facts and circumstances presented.”
Section 473(a) allows the court, in furtherance of justice, to let a party amend the
pleadings. Section 473(b) allows the court to, upon such terms as may be just, relieve a party
from a judgment, dismissal, order, or other proceeding taken against him or her through mistake,
inadvertence, surprise, or excusable neglect. Gov. Code §20160(a)(2) allows the CalPERS Board
in its discretion to correct a member’s error or omission made as a result of mistake,
inadvertence, surprise, or excusable neglect, as each of those terms is used in CCP §473.
Petitioner has produced nothing to show how the CalPERS Board abused its discretion.
As set forth above, all the evidence in the record shows Decedent was repeatedly advised by
CalPERS of the statutory requirements to change her Option 2W beneficiary, and Decedent
failed to comply for over a year before her death. Judge Brown found no evidence to show
Decedent made a mistake.
More importantly, the only evidence in the record shows Decedent never completed the
requirements to remove Starr as her beneficiary in the year between Decedent’s last
communication with CalPERS and Decedent’s death. No evidence established Decedent
attempted to name Petitioner as her Option 2W beneficiary.
3) Equitable estoppel does not apply against a public agency _
In para. 26 of her writ petition Petitioner alleges:
The Board Decision misapplies the law of estoppel under Driscoll v. City of Los Angeles
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(1967) 67 Cal.2d 297, and its progeny. It invokes “statutory limitations” in concluding
there can be no estoppel, but it is not a statutory limitation that forms the basis. Rather, it
was CalPERS’ serial and ever-changing requirements imparted to the Decedent and
Petitioner that led them to believe that a change of beneficiary could be accomplished.
Petitioner cannot estop CalPERS from complying with its statutory mandates. The
doctrine of equitable estoppel generally does not apply to a public agency. (Ventura29 LLC v,
City of Buenaventura (2023) ---Cal.App.5th---, 2023 WL 409909 *6 (“Ventura29 LLC”).) And
the doctrine of equitable estoppel does not apply to statutory requirements. The court is not
empowered to rewrite the law. (Blaser v. California State Teacher's Retirement System (2022)
86 Cal.App.5" 507, 302 Cal.Rptr.3d 428, 450.)
Here, Decedent had to comply with mandatory statutory requirements to change her
beneficiary. Petitioner cannot assert the doctrine of equitable estoppel to avoid these statutory
requirements. Nothing in the record suggests that CalPERS knowingly misled Decedent about
those statutory requirements or did anything to prevent Decedent from satisfying them.
To the contrary, the record shows CalPERS advised Decedent it needed an amended
court judgment of dissolution or a written waiver by Starr, which Decedent failed to provide.
Furthermore, no evidence in the record supports Petitioner’s contention that Decedent intended
to make Petitioner her beneficiary. Judge Brown found Decedent told CalPERS only that she
wanted to remove Starr as her Option 2W beneficiary, not that she wanted to add Petitioner as
her Option 2W benefit replacement, (AR 272-73.)
Moreover, equitable estoppel requires Petitioner to be ignorant of the true facts. (Ventura
29 LLC, supra, at *6.) No evidence shows Petitioner or Decedent was ignorant of the true facts.
All of the evidence is to the contrary: CalPERS repeatedly told Decedent she needed to submit
an amended court judgment awarding her 100% of her CalPERS account, or a written waiver of
Starr’s interest. The record shows Petitioner acknowledged to CalPERS that she knew Decedent
had never changed her beneficiary.
Driscoll v. City of Los Angeles, supra, does not support Petitioner’s position in this case.
In Driscoll, the city of Los Angeles erroneously advised widows that they were not entitled to
pension benefits, causing them to delay in filing a claim. Driscoll relied on a particular rule
governing the circumstances in which a public entity may rely on the statute of limitations to
deny a claim when public entity's erroneous advice caused the delay. The discussion in
as
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Driscoll is in the specific context of a statute of limitations defense asserted by a public entity
after the public entity caused the delay in bringing the claim. (Krolikowski v. San Diego City
Employees' Ret. Sys. (2018) 24 Cal.App.5th 537, 567.)
Here, Petitioner is not alleging CalPERS erroneously advised Decedent concerning a
statute of limitations. Instead, Petitioner seeks to estop CalPERS from complying with its
statutory mandates. The decision in Driscoll therefore does not apply.
In fact, Petitioner points to nothing CalPERS did or said that would have caused
Decedent not to properly obtain an amended court judgment of dissolution or a waiver from Starr
after Decedent failed to disclose to Starr the existence of their CalPERS community asset during
their dissolution proceeding.
Nothing in the record supports Petitioner’s contention that it was CalPERS’ “ever-
changing requirements” that prevented Decedent from changing her beneficiary. Petitioner’s
Opening Brief does not present any argument to support this contention in her writ petition and
she should not be allowed to present new arguments in her reply brief absent a fair opportunity
for Starr to respond.
Judge Brown properly found CalPERS repeatedly told Decedent to obtain either an
amended court judgment of dissolution or Starr’s waiver, but Decedent failed to do so. For these
reasons, CalPERS cannot be equitably estopped from denying Petitioner the benefits belonging
to Starr and the petition should be denied.
E. Petitioner is not entitled to the relief she seeks
Petitioner’s writ petition seeks an order compelling CalPERS to award Petitioner
Decedent’s Option 2W retirement benefits. Petitioner is not entitled to this relief. The court may
not interfere with the agency’s exercise of discretion. The court’s authority is limited to setting
aside the agency’s order or denying the writ. If the court decides to set aside the agency’s order,
the court may only order CalPERS to reconsider its order in light of the court’s decision. (CCP
§1094.5(f); The Rutter Group, Calif. Practice Guide, Administrative Law §20:330.)
Vv. CONCLUSION AND RELIEF REQUESTED
The court is not empowered to review the evidence anew and substitute its own judgment
for the judgment of the administrative law judge and CalPERS. Petitioner failed to meet her
burden of proof in the administrative proceeding and, likewise, failed to meet her burden to
See
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prove that CalPERS acted in excess of its jurisdiction, denied Petitioner due process, or abused
its discretion.
Ample evidence supports the administrative law judge’s determination that Decedent
failed to complete the statutory requirements necessary to remove Starr as her Option 2W
beneficiary. Ample evidence supports the administrative law judge's determination that
Decedent failed to appoint Petitioner as her Option 2W beneficiary.
Moreover, CalPERS cannot be estopped from complying with its statutory mandates.
For these reasons, Starr respectfully requests this Court to deny Petitioner’s Petition for
Writ of Administrative Mandamus. Starr further requests an award of her costs.
Date: 02/23 / 2028
Date:
, 02/23/2023
Respectfully submitted.
EVANS KINGSBURY LLP
Noreen M, Evans
Noreen M. Evans, Esq.
Certified Appellate Specialist
THE LAW OFFICE OF STEVEN H. SPIEGELMAN
Steven H. Spiegelman, Esq.
Attomeys for Real Party in Interest
DONNA M. STARR
— i
REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION
TO PETITION FOR ADMINISTRATIVE MANDAMUS
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PROOF OF SERVICE
Code of Civil Procedure Section 1013a(3), 2015.5
I declare that:
I am over the age of eighteen years, and am not a party to this action. My business address 50
Old Courthouse Square, Suite 601, Santa Rosa, CA 95404, which is located in the county where this
mailing described below took place.
On February 24, 2023, at my place of business at 50 Old Courthouse Square, Suite 601, Santa
Rosa, CA 95404, I served the attached:
DOCUMENTS:
REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO
PETITION FOR ADMINISTRATIVE MANDAMUS
ADDRESSED TO:
Edwin Bradley, Esq. (SBN 141932)
Daniel S. Raff, Esq. (SBN 279259)
Raff Law, APC The Grace Building
Helen L. Louie, Esq. (SBN 312821)
CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM (CalPERS)
17 Keller Street CalPERS Legal Office
Petaluma, CA 94952-2938 400 "Q" Street, Room 3340, Lincoln Plaza
Electronic Service E-mail: North
office@rafflawoffice.com Sacramento, CA 95811
Attorneys for Petitioner, Melissa Thompson Electronic Service E-mails:
hele.louie@calpers.ca.gov;
Kady.Pasley@calpers.ca.gov
Attorney for Respondent, California Public
Employees' Retirement System ("CalPERS")
( (BY MAIL) I placed each such sealed envelope, with postage thereon fully prepaid, on the date of
execution of this declaration, with our office outgoing mail following ordinary business practices. I
am readily familiar with the business practice at my place of business for collection and processing of
correspondence for mailing with the United States Postal Service. Correspondence so collected and
processed is deposited with the United States Postal Service that same day in the ordinary course of
business.
() (BY FACSIMILE) Per stipulation of the parties, I caused the said document to be transmitted by
Facsimile machine to the fax number(s) indicated above.
(X) (BY ELECTRONIC MAIL) I caused each such document above to be delivered by electronic
mail to the addressee(s) noted above.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
Executed on February 24, 2023 in Santa Rosa, California.
Rachael Florey
PROOF OF SERVICE
Preview
wo ont nH Uv BW ND = NN YN YN NN YD KF FS — ee _— RBNRRBRBBRBRSGaeRIABDBRBHAHS Steven H. Spiegelman, Esq. (SBN 171393) The Law Office of Steven H. Spiegelman 703 2" Street, Suite 4011 Santa Rosa, CA 95404 Phone: (707) 545-0368 Fax: (707) 324-6796 E-mail: steve@stevespiegelmanlaw.com Noreen M. Evans, Esq. (SBN 102385) EVANS KINGSBURY LLP 50 Old Courthouse Square, Suite 601 Santa Rosa, CA 95404 Tel. and Fax: (707) 596-6090 E-mail: noreen@evanskingsbury.com Attorneys for Real Party in Interest DONNA M. STARR SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SONOMA MELISSA THOMPSON, an individual, Petitioner, Case No.: SCV-270653 REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS vs. BOARD OF ADMINISTRATION FOR THE CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Respondent. Action Filed: April 21, 2022 Hearing Date: April 26, 2023 Hearing Time: 3:00 p.m. DONNA M. STARR, an individual; and Does 1 to 10, inclusive, Dept.: 18 Real Parties in Interest. Judge: Hon. Christopher Honigsberg dt REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS and. dread an.£s-honsocsnncornatuLazanacdanwo mWarA KD UN PWN v RYN ee See RBNRRBRPRBRBRESGERSRADREBEH STS TABLE OF CONTENTS L. INTRODUCTION...........cccssccsesssssesesccssssessseeesesseseeesseeseseseneesesseneessaeeersnsersnges 5 I STATEMENT OF FACTS TI. PROCEDURAL HISTORY........:.c::ccsscessecsseesseeseeesensesrseessacensesaeonssensenenseoessesens 9 TV. ARGUMENT..........::csssssesscssccssecesssseseesseseseaeeseesenaeeesssasaeeesaueesenaesenneneessanees 10 A. Superior Court review of administrative action is limited................+.. secctuneseee 10 B. CalPERS acted within its jurisdiction............:cccccccecssssssssssneeeeeeesesnseensnneseseess 1 C. CalPERS afforded Petitioner due process of law: D. CalPERS did not abuse its discretion because the agency proceeded by law and substantial evidence supports the agency’s decision... 2) Petitioner is not entitled to relief from mistake, inadvertence. rise, OF excusable neglect...........ccccccccccccesecceceeeseneseesseeceeeaesaneaeensaaseaseassesenees 17 3) Equitable estoppel does not apply against a public agency..... E. Petitioner is not entitled to the relief she SeeKS..............sssssescceseeeeceecesceeeseeeees 19 V. CONCLUSION AND RELIEF REQUESTED..........:sssssssseceeceseseesssteetsesessenaeeesees 19 ————— — SSSSSSSSSSSSSSSSSSSSSFSSSsSSs REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS Ban In. dn aneaneetine anon se-carouiiagnnnsahwo aon An F&F WN ea eee ee ee ree eee ont nun fF WN SK CO TABLE OF AUTHORITIES Cases Blaser v. California State Teacher's Retirement System (2022) 86 Cal.App.5" 507.....ccscessscesseesseseessessesseescessnesaseeessacaesorsssssesesensenseseeneu sea seeees 18 Carloss v. County of Alameda (2015) 242 Cal.App.4" 116 Cameron v. Sacramento County Employees’ Retirement System (2016) 4 Cal.App.5 1266......ssccsssssecssesessesesesssessesesesssscsesensessseeecerssseceeesnsssenensssssesel Doe v. Occidental College (2019) 37 Cal.App.5" 1003........sssssssessessscsssceserreseeersesesees 12 Doe v. University of Southern California (2018) 28 Cal.App.5" 26.....cccsssesesseseeserscsescssssnsssesesseeeseseesesssassesacecseseneseeaeessnsanenee sess 13 Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297.....ssssersseere Reeseceecorecteses eestecee eal 17, 18 Epstein v. Vision Service Plan (2020) 56 ss —C—C——L 11 Gallaher v. State Teachers’ Retirement System (1965) 237 Cal.App.2d 510.......:scsssscsesssrsessssesssseseesnseessnaeecesenseeessnsanssensesesssueeseareseusenee 16 Ghilotti Construction Co. v. City of Richmond (1996) 45 Cal. App.4 897.0... ccscssccsscccsecesceresesseesesnesceseeeessesessecesenerseeesessse 12, 13 Hudson v. Posey (1967) 255 Cal. App.2d 89.......cccsseeceeceeeeessansesessecsseeeseseneeseneeseeeseees 17 In re Marriage of Modnick (1983) 33 Cal.3d 897......sssccccesssreeesesserersssneescsneesssensseessseseesee lS In re Marriage of Sonne (2010) 185 Cal.App.4" 1564 Krolikowski v. San oa a ae Ret. a one 24 Cal.App.5" 537.. eo Ore ere eee eeee LD Leal v. Gourley (2002) 100 Cal.App.4"" 963.....cccssssssesscssesseesssesssesevssensonesssesseesenenees 12 Moore v. City of Los Angeles (2007) 156 Cal.App.4"373 Ocean Park Associates v. Santa Monica Rent Control Board (2004) 114 Cal. App.4" 1050.........::scesscccesseesessseessssesessseescessssessevessessseseeseeseeeseeesenseees 11 3 REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS Bann ID. tn 094 Onl dehOd ALOOKACACORDALRLAO7N: JanCoC oan Hn FF WN NN NN Ne ee eee Schutte & Koerting, Inc. v. Reg’l Water Quality Bd. (2007) LOS Cal App Alsisee ee ee ee 12, 13 Ventura29 LLC v. ee of ‘Buenaventura anal —Cal.. a Sth, 2023 WL 409909... ee sssssaveescsseseeesersenveesssarensnsessssssessseeoe LO Watenpaugh v. State Teachers’ Retirement System (1959) 51 Cal.2d 675......secsscesssessseressssesssssesssesscsesesesscsssessenescesseseesssressessesennnssseenssssseee] 6 Worton v. Worton (1991) 234 Cal. App.3d 1638........cccccssssesssenesssvecsceesseesseeesessencosseses 14 Statutes Code of Civil Proc.§473.........ccccccssseeeseeeeesseecesseuseeceesnscceaeesseeuneeseesseessssseesneeeesees 17 CodeotCivilbroc:Sl094Strnt ee Salis 2 Code of Civil Proc.§1094.5(f).........ssssssccsssssssrssssssssscesssssesseeseeserssosesseessssessesessoosss 19 Fam. Code §297.5.... Fam. Code §760. Fam. Code §2556. ee Fam. Code §2610........::sscccssssssssrescssscsssreseoscsssssseseeceseessssovsssssosess Reece eee ere 14 Gov. Code §11370...... : Gov. Code §20160... Gov. Code §21454 Gov. Code §21462 Gov. Code §21630 -4m REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS HAA ALOE AA ale LOMA ONTO EO be bbe 7M AnCo on DH nN Ff WN Nv Nw es BNRREBBRBRESSGRSVIABDEBRE S I, INTRODUCTION This is a petition for writ of administrative mandamus brought pursuant to Code of Civil Procedure (“CCP”) §1094.5. (See the caption of Petition filed 4/21/22.) CalPERS denied relief to Petitioner Melissa Thompson (“Petitioner”) after a full evidentiary hearing and administrative appeal. Petitioner seeks to obtain the CalPERS retirement benefits of Decedent Jennifer Donovan (“Decedent”), Decedent’s benefits were a community property asset which was never divided in the dissolution of Decedent’s domestic partnership with Real Party in Interest Donna M. Starr (“Starr”). : The evidence produced in the administrative law hearing, and the findings made by the administrative law judge, show that Petitioner was unable to prove she was entitled to Decedent’s CalPERS retirement benefits for a number of statutory reasons: 1) The benefits Petitioner seeks to acquire were a community property asset of the domestic partnership between Decedent and Starr. Decedent did not disclose her CalPERS retirement account as a community property asset when she obtained a default dissolution of their domestic partnership. The benefits therefore remain an undivided community asset in which Starr retains an interest. 2) Decedent never complied with the requirements of Gov. Code §21454 to remove Starr as her beneficiary. 3) Decedent never completed any paperwork to make Petitioner her beneficiary. 4) Petitioner and Decedent were not married for one year prior to Decedent’s retirement date. : As set forth below, the Superior Court’s authority to review a quasi-judicial decision by an administrative agency is limited by statute. The Superior Court lacks the authority to conduct a de novo review of the evidence, and to substitute its own judgment for that of the administrative agency. On a petition for writ of administrative mandamus, Petitioner has the burden to show why CalPERS’ decision should be overturned. By statute, the Superior Court is authorized to overturn an administrative decision only where the administrative agency exceeded its jurisdiction, failed to provide due process, or abused its discretion. Petitioner's Opening Brief fails to address any of these bases for reversal, and should therefore be denied. eee REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS Mee Ith: nent RAPA PE RERENARAAD AUR AANA,omen DH UU F&F WN N NY wy Seetccceeeets ss ceeecccaaseees case tccceeets cesses scceee I. STATEMENT OF FACTS On May 10, 2010, Decedent and Starr entered into a registered domestic partnership. (Administrative Record (“AR”) 129.) On May 31, 2013, a co-signed Stipulation of Dissolution of Domestic Partnership was filed with the California Secretary of State. (AR 86, 230) However, dissolution of the domestic partnership between Decedent and Starr was never completed. (AR 156.) Decedent and Starr continued to live together as a married couple. (AR 439.) Decedent was employed as a State Parks Superintendent for the State of California, On October 30, 2015, Decedent applied for service retirement and selected the Option 4 (2W & 1) Lifetime allowance, naming her domestic partner Starr as her Option 2W beneficiary to receive a lifetime monthly allowance from Respondent CalPERS, Decedent’s retirement was effective October 1, 2015. (AR 121, 122, 124-127, 270.) On August 12, 2017, Decedent sent an e-mail to Starr stating it was her belief that Starr had at some earlier point in time challenged the jointly executed stipulation of dissolution of domestic partnership, dated May 31, 2013. The parties were now required to file a formal dissolution of marriage in the Sonoma County Superior Court. (AR 80-81, 90.) Decedent prepared dissolution papers for herself and Starr and requested entry of judgment on an uncontested dissolution. In her declaration in support of uncontested dissolution, Decedent represented to the court and Starr there were no community assets or debts to be divided. Decedent did not disclose her CalPERS retirement. (AR 97, 138, 271.) On December 22, 2017, Judgment of Dissolution was filed for Decedent and Starr, effective February 16, 2018. (AR 141.) Decedent married Petitioner March 6, 2018. (AR 271, 284.) Thereafter, on November 28, 2018, Decedent contacted CalPERS regarding a beneficiary designation change. CalPERS mailed her the publication "Changing .Your Beneficiary or Monthly Benefit After Retirement" and a "Modification to Life Option Beneficiary" application (“MOLOB”). (AR 271.) On December 11, 2018, Decedent designated Petitioner as her beneficiary for the Option | balance and Retired Death Benefit via her member services online account. (AR 271.) eee REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION . TO PETITION FOR ADMINISTRATIVE MANDAMUS an in. s.cnenwo mara Wn F&F WN nN See ee ee OE Se Oy oe oO oe! ot a ion te The next day, December 12, 2018, Decedent contacted CalPERS for assistance with her MOLOB request. CalPERS advised Decedent to submit her dissolution documents for processing. (AR 271-72.) On December 17, 2018, Decedent contacted CalPERS to get an estimate for Option | as well as other options available for her new spouse, and stated she had copies of her uncontested dissolution showing they had no community property and no assets. (AR 272.) On December 28, 2018, CalPERS representative Joy Fong spoke with Decedent and advised she already had the Option 1 as part of her Option 4 (2W & 1) selection. However, if Decedent wanted to remove Starr as her Option 2W beneficiary, Decedent must submit her request in writing and include a copy of their Judgment of dissolution awarding Decedent 100% interest in her CalPERS retirement account, Decedent was informed that she could also go online to get estimates and elect a MOLOB to add Petitioner as a lifetime beneficiary. (AR 272.) Currently Melissa Thompson was listed as Decedent’s Option 1 beneficiary. (AR 271.) On January 3, 2019, Decedent submitted a MOLOB request with a letter stating she would like to remove Starr as her Option 2W beneficiary. She also submitted the court documents from their dissolution of marriage which showed her representation that there was no community property to be divided. (AR 272.) On January 30, 2019, Decedent called CalPERS to inquire regarding her MOLOB request. Decedent indicated she did not want a MOLOB; her request was only to remove Starr as her Option 2W beneficiary. CalPERS representative Joy Fong explained to Decedent that the court judgment in her dissolution did not award Decedent 100% of her CalPERS retirement. Decedent was advised to have Starr sign a community property release or, in the alternative, obtain an amended judgment from the Sonoma County Superior Court awarding her 100% interest in her CalPERS account. Decedent told CalPERS she would try to go back to court or see if she could contact her former spouse, Starr. The CalPERS’s Customer Touch Point Report entry, dated January 30, 2019, does not indicate that the Decedent communicated she wanted to designate Petitioner as her Option 2W benefit replacement. (AR 272-73.) I — REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS Ratt ard rhe AAA AOA NZACLOTERANAIAANEM HSwo eran kt WN re ee ee ont Nn NH & WN | CO On January 30, 2019, CalPERS sent Decedent a formal rejection letter with a Release of Community Property Interest in Life Option Benefit form. CalPERS’ letter again explained that in lieu of an amended judgment, Starr could voluntarily consent to give up all rights to her interest in Decedent's CalPERS benefits. (AR 273.) . On February 13, 2019, CalPERS received its final communication with Decedent wherein Decedent inquired about the possibility of returning to work. Thereafter, CalPERS had no further communications with Decedent. (AR 273.) Decedent did not return to CalPERS a signed Release of Community Property Interest in Life Option Benefit form or an amended court judgment awarding her 100% interest in her CalPERS account. (AR 273.) Decedent died more than a year later, on May 21, 2020. (AR 35.) At the time of Decedent's death, Starr was the Option 2W beneficiary on file and Petitioner was the Option 1 beneficiary. (AR 274.) Petitioner thereafter contacted CalPERS to inquire about the Decedent’s death benefits. Petitioner stated Decedent had tried to modify her lifetime beneficiary, and wanted clarification if CalPERS would accept a notarized document signed by Starr waiving her interest in Decedent’s CalPERS benefits. (AR 274.) CalPERS then asked Petitioner to submit an Application for Retired Member/Payee Survivor Benefits and supporting documents. Petitioner signed the application June 8, 2020, and attached supporting documents, including Decedent’s death certificate and a copy of Decedent's living trust designating Petitioner as Decedent’s beneficiary, including her “PERS Retirement Account.” (AR 274.) . CalPERS notified Starr on June 6, 2020 that she is the beneficiary of benefits payable due to the death of the Decedent. (AR 152.) CalPERS advised Petitioner on June 8, 2020 that in order to qualify for Decedent’s Survivor Continuance monthly allowance, Petitioner and Decedent would have had to have been married one year prior to Decedent’s retirement date. (AR 274-75.) Thereafter, on June 13, 2020, CalPERS informed Petitioner of her option to submit a written dispute. (AR 275.) Petitioner submitted her dispute on June 15, 2020, requesting an exception and reconsideration regarding the lifetime option beneficiary and survivor continuance monthly allowance. (AR 275.) On July 28, 2020, CalPERS advised Petitioner that a thorough review had been conducted on Decedent’s file and it was determined pursuant to Gov. Code §21462 and 21454 that Petitioner is not eligible for a monthly allowance from CalPERS. Decedent had designated c= REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS mom.wo monn nn fk WN | vu Be aa BNRRRBRRRSVPGRSRIARDEBRTS Petitioner as the beneficiary only for her lump sum death benefit. The letter further states Decedent had been informed on January 3, 2019 that she needed to obtain a court order awarding her 100% of her CalPERS retirement. The letter also communicated that there was no provision in the law allowing Decedent's trust to be used as a designation for payment of an ongoing CalPERS lifetime monthly allowance. Petitioner was advised of her appeal rights. (AR 275.) Thereafter, CalPERS continued to communicate with Petitioner’s attorneys, each time advising them CalPERS required a Superior Court order awarding Decedent 100% interest in her CalPERS benefits, and that in lieu of a court order, Petitioner could ask Starr to voluntarily waive her benefits. (AR 276-78.) CalPERS received neither an amended dissolution judgment, nor a signed waiver. Therefore, no change was made to Decedent’s Option election or Option beneficiary designation. (AR 278 and AR 198-199.) Il. PROCEDURAL HISTORY Petitioner filed an appeal of CalPERS’ staff decision on February 4, 2021. (AR 279.) An evidentiary hearing was held before Administrative Law Judge Regina Brown on November 15, 2021 and November 19, 2021. (AR 269.) Following hearing, Judge Brown made specific findings of fact. She found that Decedent executed on her deathbed a notarized document making Petitioner the sole beneficiary of Decedent’s CalPERS Lifetime Benefit. (AR 273-74.) At the time of Decedent's death, Starr was Decedent’s Option 2W beneficiary, and Petitioner was Decedent’s Option 1 beneficiary. (AR 274.) Petitioner is not eligible for survivor continuous monthly benefits pursuant to Gov. Code §21630, defining a “surviving spouse” as having been married to the member (Decedent) one year prior to the member’s retirement. Decedent retired on October 1, 2015, and Petitioner and Decedent married on March 6, 2017, more than two years after Decedent’s retirement. (AR 284.) Based on the evidence, Judge Brown did not find Decedent’s failure to designate Petitioner as her beneficiary for more than a year before her death was the result of mistake, inadvertence, surprise, or excusable neglect: CalPERS provided Decedent with the information and explained the process and provided the forms Decedent needed to complete to designate Petitioner as her Option 2W beneficiary. (AR 286.) Judge Brown found Decedent failed to comply as instructed by CalPERS. (AR 287.) i ee REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS HD Le WAR ane We Od ORDER DADA ATANOM AoOo morn nn fF WN | nN NY N | Be Be eB Re eet Further, Judge Brown found CalPERS has no court record showing that Decedent was awarded 100% of her retirement benefit. Despite CalPERS’s communications with Decedent and specific instruction regarding the required documentation, Decedent did not submit an amended judgment showing she was awarded 100% of her retirement benefit or a signed release from Starr. (AR 284.) Moreover, Decedent did not submit a MOLOB to request estimates of the different settlement option benefits Petitioner may have received had Decedent appropriately named her as the Option 2W beneficiary. (AR 284.) None of the requirements were met to effectuate a change in beneficiary for the Option 2W lifetime monthly benefit (AR 284.) Accordingly, Judge Brown found CalPERS properly denied Petitioner the Option 2W lifetime monthly benefit because Decedent never completed the process to either obtain a judgment awarding her 100% of her CalPERS retirement in the dissolution of her domestic partnership nor did Decedent obtain a release from Starr. (AR 282.) ; Judge Brown further found CalPERS properly denied Petitioner the lifetime monthly survivor continuance benefit because Decedent and Petitioner were not married one year prior to Decedent's retirement date. Judge Brown found no legal or factual basis to support this lifetime benefit to Petitioner. (AR 282.) Accordingly, Judge Brown denied Petitioner's appeal by decision dated December 17, 2021. (AR 288.) Judge Brown’s decision was reviewed by the Administrative Board of CalPERS (‘the Board”). (AR 265.) The issues were briefed by both Petitioner (AR 296), and CalPERS staff. (AR 290.) Starr submitted a short letter brief in support of CalPERS’ staff’s recommendation that the Board adopt Judge Brown’s decision of December 17, 2021. (AR 308.) Pursuant to Gov. Code §11370, et seq., the Board issued its decision on February 22, 2022, adopting Judge Brown’s decision. (AR 320-322.) Petitioner filed her Petition for Writ of Administrative Mandamus on April 21, 2022, pursuant to §1094.5. (See Superior Court file.) Iv. ARGUMENT A. Su x Court review of administrative ac limited The Superior Court is not empowered to substitute its judgment for the judgment of the administrative agency. Review of an agency decision on a petition for writ of administrative 1 REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF Te OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMU: PAA, de ANN ole LO NOL soe Or oE azanarh anwo awanrnunkt WN Ww NYN NY NY BS BS Be Be BF Be eB Se eS eS mandate is limited. The Superior Court does not conduct a de novo review of the evidence, and is not authorized to exercise its own judgment as to the merits of Petitioner’s claim litigated before CalPERS. The essence of administrative mandamus is judicial review of a discretionary, adjudicatory decision by an administrative decision-maker. (Ocean Park Associates v. Santa Monica Rent Control Board (2004) 114 Cal.App.4th 1050, 1061.) Furthermore, the Superior Court’s review of Judge Brown’s decision is limited to the administrative record, and is confined to issues raised during the administrative proceeding. (CCP §1094.5(a); Moore v. City of Los Angeles (2007) 156 Cal.App.4th 373, 382: statute of limitations defense was forfeited by failure to raise it during the administrative proceeding.) No new evidence may be presented, and no new issues may be raised. Pursuant to the express language of CCP §1094.5(b), the Superior Court’s authority is limited to a determination of whether the administrative body has done one of the following: - Proceeded without jurisdiction or in excess of its jurisdiction; - Afforded the petitioner a fair hearing; - Prejudicially abused its discretion. It is Petitioner’s burden to prove that one of the above occurred during the administrative proceeding before CalPERS. (Epstein v. Vision Service Plan (2020) 56 Cal.App.5" 223, 249: “the party challenging an administrative decision always has the burden to show why the decision should be overturned.”) In her opening brief, Petitioner has made no attempt to establish that CalPERS acted without jurisdiction or in excess of its jurisdiction. Petitioner has likewise made no attempt to show that CalPERS denied her a fair hearing or prejudicially abused its discretion: Instead, Petitioner simply reargues the facts and seeks to have this Court substitute its judgment for that of the administrative agency. This exceeds the Superior Court’s jurisdiction. Because Petitioner has failed to even address the statutory bases for reversal of CalPERS’ decision, her Petition for Writ of Mandate should be denied. Petitioner should not be allowed to address these matters for the first time in her reply brief unless Respondent and Starr are given a fair opportunity to respond. Nevertheless, despite Petitioner’s failure to address the statutory bases on which the Superior Court is authorized to reverse, Starr will address each one. B. CalPERS acted within its jurisdiction all= REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS Raa In, 4.02000L.040L.c0nnaolonmeroneamunsnnacieee cent eee meee eee ceee ss eacee NY NN NY FY KF Re Be Be Pe eS em An agency can exercise adjudicatory authority only to the extent it is authorized to do. Petitioner presents no facts or argument that CalPERS exceeded its jurisdiction in adjudicating her claim for Decedent’s CalPERS benefits. Petitioner makes no reference to the record to support any finding that CalPERS exceeded its jurisdiction in any way. Indeed, Petitioner submitted herself to CalPERS’ jurisdiction repeatedly throughout the administrative process. She made no objection to CalPERS’ authority to adjudicate her claim during the administrative proceeding. Having made no objection in the administrative proceeding, Petitioner cannot now protest that CalPERS lacked jurisdiction. alPERS afforde ioner due process of law Generally, a fair procedure requires notice reasonably calculated to apprise interested parties of the pendency of the action, and an opportunity to present their evidence and objections. (Doe v. Occidental College (2019) 37 Cal.App.Sth 1003, 1014.) Petitioner indisputably received notice of the hearing before Judge Brown. Petitioner attended the hearing, was represented by an attorney, and presented evidence and argument. Likewise, Petitioner received notice of the CalPERS Administrative Board, and presented written argument before the Board made its decision. : Petitioner has provided no evidence or argument to establish that the administrative process did not afford her due process. D. Cal did not abuse its discretion because the agency proceeded by law and substantial evidence supports the agency’s decision An abuse of discretion may occur where the agency did not proceed as required by law, or the administrative decision is not supported by the findings, or the findings are not supported by the evidence. (CCP §1094.5(b); Carloss v. County of Alameda (2015) 242 Cal.App.4th 116, 132.) But an abuse of discretion alone is not sufficient to overtum the administrative decision. Petitioner must establish the abuse of discretion was prejudicial, i.e., that it resulted in a miscarriage of justice, (Leal v. Gourley (2002) 100 Cal.App.4th 963, 969.) 1) Substantial evidence supports the agency’s decision The Superior Court is not authorized to reweigh the evidence presented in the administrative hearing. It must be presumed that the agency's findings are supported by substantial evidence. Petitioner has the burden of demonstrating otherwise. (Schutte & Koerting, Inc. v. Reg'l Water Quality Control Bd. (2007) 158 Cal.App.4th 1373, 1384, citing Ghilotti ie REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS Teen Ps. itech ynoraha.wow ant DA Un FF WN N yo Rwy ee eB eB Be ee Be ee BNRBRRBBRRSVEaerRriAAREBENHAR S Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897, 903.) Factual findings not contested by the Petitioner must be accepted as true. (Cameron v. Sacramento County Employees’ Retirement System (2016) 4 Cal.App.5th 1266, 1278.) Here, Petitioner has made no effort to demonstrate that CalPERS’ decision was not supported by substantial evidence. The Court must presume it is supported by substantial evidence. Petitioner has also not identified any specific factual findings made by Judge Brown that she challenges, so the facts found by Judge Brown are accepted as true. Petitioner’s Opening Brief does not address any of these allegations made in her Petition. Instead, Petitioner asks the Superior Court to review the evidence anew and liberally construe the applicable statutes to give effect to what Petitioner contends was Decedent’s intentions. (Petitioner’s Opening Brief filed 1/11/23 (“POB”), pp. 7-8.) Petitioner contends “...the Court has ample evidence of Jennifer Donovan’s manifested intent to remove her ex-wife, Donna, and to name her then-wife Melissa Thompson.” (POB, pp. 8-9.) But, as set forth above, that is not the Superior Court’s function on a writ of administrative mandamus. The Superior Court does not re-examine and reweigh the evidence. The Superior Court’s function is solely to determine whether substantial evidence supports the agency’s decision. (Doe v. University of Southern California (2018) 28 Cal.App.5th 26, 34.) The Court must view the evidence in the light most favorable to the agency's actions, indulging all reasonable inferences in support of those actions. (Schutte & Koerting, Inc, v. Reg'l Water Quality Control Bd., supra, 158 Cal.App.4th at 1384, citing Ghilotti Construction Co. v. City of Richmond, supra, 45 Cal.App.4th at 903.) Ample evidence supported Judge Brown’s decision. Judge Brown made specific factual findings in her decision, all of which are supported by the evidence. Gov. Code §21454 allows a CalPERS member to modify an election of optional settlement 2 in which the member’s spouse is named as beneficiary “in the event of a dissolution of marriage or a legal separation in which the division of the community property awards the total interest in the retirement system to the retired member....” Under §21454, Decedent had two pathways to modify her election prior to her death: 1) an amended court judgment of dissolution giving Starr’s community property interest in Decedent’s retirement plan to Decedent; or 2) execution of the documents necessary to change her Option 2W beneficiary from Starr to Petitioner. Neither happened. a REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS Ran In, dncaeeatesnoumnncinmmmonrenunieraaa:wont DHwn fF WN N Nn _ RF ee KB ee Ee KS Judge Brown found that in her dissolution proceeding with Starr, Decedent represented that there were no community assets to be divided and that Decedent did not disclose her CalPERS retirement. (AR 271, 276.) This finding was supported by Decedent’s sworn declaration in support of uncontested dissolution in which Decedent represented to the Superior Court that the parties had no assets to be divided. (AR 97, 138, 271.) Registered domestic partners have the same rights and responsibilities, as married person under California Law. (Fam. Code §297.5(a).) Retirement benefits attributable to employment during a marriage or domestic partnership are community property. (In re Marriage of Sonne (2010) 185 Cal.App.4th 1564, 1573-74; see also Fam. Code §760.) (AR 15.) Division of retirement benefits is often the subject of considerable litigation in family court, Where a community asset remains undivided following judgment of dissolution, the court retains jurisdiction to divide the asset. (Fam. Code §2556.) The court is mandated to make whatever orders are necessary to ensure that each party receives the party’s full community property share in any retirement plan. (Fam. Code §2610(a).) There is no evidence in the record to suggest Decedent and Starr divided this asset when they attempted to terminate their domestic partnership. By law, Starr maintained an undivided community property interest in Decedent’s CalPERS account. Decedent’s failure to disclose her CalPERS retirement account as a community asset during the dissolution proceeding was a breach of her statutory fiduciary duties to Starr. (Worton v. Worton (1991) 234 Cal.App.3d 1638, 1648.) The portion of Decedent’s retirement account attributable to her domestic partnership with Starr therefore remains an undivided community asset over which the Superior Court retained jurisdiction. Decedent never took any action to have it divided, despite CalPERS’ instruction that she do so. (AR 273.) Judge Brown found that Decedent told CalPERS it was not possible to get Starr to sign a release form because Decedent had no contact with Starr. (AR 280.) Therefore, the evidence established Decedent never complied with the first method of changing her beneficiary under Gov. Code §21454. With respect to execution of the documents necessary to change Decedent’s Option 2W beneficiary, Judge Brown found Decedent did not return a release of Starr’s rights. (AR 273.) Judge Brown also found that Petitioner acknowledged to CalPERS Decedent had passed away before completing the process of changing her option benefit to name Petitioner as her new REAL PARTY IN INTEREST DONNA M. STARR’ S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS, Ree tH ane fen eA Ne a PERERA ADA OR AeA HAwow worn nun fF WN Nee ee eB ee eB ee oD MAI DAUH BF WN YK DO 21 Option 2 beneficiary. (AR 275.) Judge Brown further found Decedent never expressed any intention to CalPERS to make Petitioner her Option 2W beneficiary. (AR 272-73.) Therefore, the evidence established Decedent failed to comply with the second method of changing her beneficiary under Gov. Code §21454. Petitioner seems to imply that Starr somehow waived her community property interest in Decedent’s CalPERS account by failing to contest the dissolution proceedings. Petitioner contends in para. 24 of her writ petition that the CalPERS Board’s “.. .Decision failed to consider the dissolution proceedings that included Decedent’s declaration and hearing testimony explaining that the parties agreed to retain their own interests, which was not controverted by STARR at the hearing below.” But Decedent never disclosed to Starr in the dissolution proceeding the existence of her CalPERS retirement, which was a community asset. Failure to disclose a community property asset is fraud which deprives the other party of her right to protect her interest in that asset. (In re Marriage of Modnick (1983) 33 Cal.3d 897, 905.) Starr cannot waive rights she did not know she had, Therefore, Starr did not waive her interest in Decedent’s CalPERS account which was never disclosed by Decedent as a community asset when they dissolved their relationship. Decedent’s failure to properly divide her CalPERS retirement benefit as a community asset also had adverse consequences for CalPERS. Starr retained a community property interest in Decedent’s CalPERS account, and CalPERS needed an amended dissolution court judgment awarding Decedent 100% of her CalPERS retirement to satisfy the requirements of Gov. Code §21454, CalPERS has no authority to simply ignore statutory mandates. And, a change of beneficiary required CalPERS to recalculate Decedent’s retirement benefits depending upon the age of her beneficiary, because benefits decrease the younger the beneficiary. (AR 280.) This is more than substantial evidence to support Judge Brown’s conclusion that Decedent failed to comply with the statutory mandates of Gov. Code §21454, that as a matter of law, Starr remains Decedent’s Option 2W beneficiary, and that Decedent never appointed : Petitioner her Option 2W beneficiary. Petitioner points to Exhibit G (AR 240) as evidence that Decedent intended to make Petitioner Decedent’s beneficiary. (Opening Brief p. 9.) Assuming for the sake of argument that Exhibit G is evidence of intent, the existence of some slight evidence in the record to support Petitioner’s arguments does not compel the Superior Court to overturn the agency’s decision. As REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS mim. har, awow wor nu ff WN eee ont NH WN HK CO 19 set forth above, the Superior Court does not reweigh the evidence; the Superior Court must view the evidence in the light most favorable to the agency's actions and indulge in all reasonable inferences in support of those actions. Conflicts in the evidence must be resolved to support the agency’s decision. As discussed above, ample evidence supports Judge Brown’s findings. In the administrative proceeding, Petitioner did not meet her burden to prove that Decedent fulfilled the statutory requirements to change her beneficiary. For these reasons, the petition for writ of mandate must be denied. The cases relied upon by Petitioner are distinguishable. In Watenpaugh v. State Teachers’ Retirement System (1959) 51 Cal.2d 675, Mr. ‘Watenpaugh had completed the form revoking his previous beneficiary and designating his new wife as his beneficiary. The form was signed and witnessed. Mr. Watenpaugh took the form home where it remained until his death about 10 months later. The Supreme Court held that completion of the form was sufficient indication of Watenpaugh’s intent to revoke his prior beneficiary and designate his new wife as beneficiary. Watenpaugh did not involve the facts here, where Decedent failed to divide her retirement plan as community property asset when she dissolved her marriage to Starr. The First District Court of Appeal distinguished Watenpaugh in Gallaher v. State Teachers’ Retirement System (1965) 237 Cal.App.2d 510 (“Gallaher”).) Gallaher is cited by Petitioner in her Opening Brief (POB, pp. 8-9) but it, too, does not support Petitioner's position. In Gallaher, the facts were very similar to the case at bar. Harold Gallaher designated his first wife, Wilma, as his beneficiary. He later obtained a Nevada divorce decree from Wilma by default, and married Elsie. Thereafter, Wilma filed a divorce action in California, alleging the parties’ community property assets included a $3,000,000 CalSTRS retirement plan. The California court awarded Harold the CalSTRS plan, and ordered the parties to execute and deliver all documents necessary to implement the judgment. The California court retained jurisdiction for the purposes of enforcing that part of the judgment. (237 Cal.App.2d at 511-12.) Harold never filed or attempted to file a revocation of his designation of Wilma as his CalSTRS beneficiary. (Ibid at 512-13.) The Court of Appeal held the California divorce decree did not constitute a renunciation by Harold of his previous designation of Wilma as his beneficiary, and Harold never executed the documents necessary to revoke his designation. The Court of Appeal therefore reversed the trial court’s judgment in favor of Elsie. (Ibid at 520.) REAL PARTY IN INTEREST DONNA M. STARR’ 'S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS Peter omnia,ow aoant nun fF WN NF BP eB Be eB Be Be Be eB cou wm IN KHUN FF WN Ye SC 21 Gallaher was followed by Hudson v. Posey (1967) 255 Cal.App.2d 89, which was also decided on similar facts. The Hudson court stated by noting that retirement benefits for state employees are statutory and membership is compulsory. (Ibid at 91.) The Court held that an oral statement, and a letter written by the decedent prior to his death were not sufficient to change his beneficiary. (Ibid at 95-96.) Applying the proper standard of review, under the authorities set forth above, viewing the evidence in the light most favorable to CalPERS’ actions, and indulging all reasonable inferences in support of those actions, substantial evidence supports Judge Brown’s determination. Petitioner’s writ petition should be denied. , 2) Petitioner is not entitled to relief from mistake, inadvertence, surprise, or excusable neglect In para. 25 of her writ petition Petitioner alleges: “The Decision further failed to correctly apply C.C.P. §473 to the facts and circumstances presented.” Section 473(a) allows the court, in furtherance of justice, to let a party amend the pleadings. Section 473(b) allows the court to, upon such terms as may be just, relieve a party from a judgment, dismissal, order, or other proceeding taken against him or her through mistake, inadvertence, surprise, or excusable neglect. Gov. Code §20160(a)(2) allows the CalPERS Board in its discretion to correct a member’s error or omission made as a result of mistake, inadvertence, surprise, or excusable neglect, as each of those terms is used in CCP §473. Petitioner has produced nothing to show how the CalPERS Board abused its discretion. As set forth above, all the evidence in the record shows Decedent was repeatedly advised by CalPERS of the statutory requirements to change her Option 2W beneficiary, and Decedent failed to comply for over a year before her death. Judge Brown found no evidence to show Decedent made a mistake. More importantly, the only evidence in the record shows Decedent never completed the requirements to remove Starr as her beneficiary in the year between Decedent’s last communication with CalPERS and Decedent’s death. No evidence established Decedent attempted to name Petitioner as her Option 2W beneficiary. 3) Equitable estoppel does not apply against a public agency _ In para. 26 of her writ petition Petitioner alleges: The Board Decision misapplies the law of estoppel under Driscoll v. City of Los Angeles SSSSSSSSSSSSSSSsssesHI I REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS Man IN, 4.029 AL0 4A ORARROLORAHonTEOURANaayoor nuns WN Ee — ee BNRRREBBRESSRIADEBHE S (1967) 67 Cal.2d 297, and its progeny. It invokes “statutory limitations” in concluding there can be no estoppel, but it is not a statutory limitation that forms the basis. Rather, it was CalPERS’ serial and ever-changing requirements imparted to the Decedent and Petitioner that led them to believe that a change of beneficiary could be accomplished. Petitioner cannot estop CalPERS from complying with its statutory mandates. The doctrine of equitable estoppel generally does not apply to a public agency. (Ventura29 LLC v, City of Buenaventura (2023) ---Cal.App.5th---, 2023 WL 409909 *6 (“Ventura29 LLC”).) And the doctrine of equitable estoppel does not apply to statutory requirements. The court is not empowered to rewrite the law. (Blaser v. California State Teacher's Retirement System (2022) 86 Cal.App.5" 507, 302 Cal.Rptr.3d 428, 450.) Here, Decedent had to comply with mandatory statutory requirements to change her beneficiary. Petitioner cannot assert the doctrine of equitable estoppel to avoid these statutory requirements. Nothing in the record suggests that CalPERS knowingly misled Decedent about those statutory requirements or did anything to prevent Decedent from satisfying them. To the contrary, the record shows CalPERS advised Decedent it needed an amended court judgment of dissolution or a written waiver by Starr, which Decedent failed to provide. Furthermore, no evidence in the record supports Petitioner’s contention that Decedent intended to make Petitioner her beneficiary. Judge Brown found Decedent told CalPERS only that she wanted to remove Starr as her Option 2W beneficiary, not that she wanted to add Petitioner as her Option 2W benefit replacement, (AR 272-73.) Moreover, equitable estoppel requires Petitioner to be ignorant of the true facts. (Ventura 29 LLC, supra, at *6.) No evidence shows Petitioner or Decedent was ignorant of the true facts. All of the evidence is to the contrary: CalPERS repeatedly told Decedent she needed to submit an amended court judgment awarding her 100% of her CalPERS account, or a written waiver of Starr’s interest. The record shows Petitioner acknowledged to CalPERS that she knew Decedent had never changed her beneficiary. Driscoll v. City of Los Angeles, supra, does not support Petitioner’s position in this case. In Driscoll, the city of Los Angeles erroneously advised widows that they were not entitled to pension benefits, causing them to delay in filing a claim. Driscoll relied on a particular rule governing the circumstances in which a public entity may rely on the statute of limitations to deny a claim when public entity's erroneous advice caused the delay. The discussion in as REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS Pan IP: An SAQ Anh Ale ROM OS NTRIEORT QM ONAIAwo ort n unt WN Nn N ae ieee RBNRRRBBUSSSrAGDRESRSS Driscoll is in the specific context of a statute of limitations defense asserted by a public entity after the public entity caused the delay in bringing the claim. (Krolikowski v. San Diego City Employees' Ret. Sys. (2018) 24 Cal.App.5th 537, 567.) Here, Petitioner is not alleging CalPERS erroneously advised Decedent concerning a statute of limitations. Instead, Petitioner seeks to estop CalPERS from complying with its statutory mandates. The decision in Driscoll therefore does not apply. In fact, Petitioner points to nothing CalPERS did or said that would have caused Decedent not to properly obtain an amended court judgment of dissolution or a waiver from Starr after Decedent failed to disclose to Starr the existence of their CalPERS community asset during their dissolution proceeding. Nothing in the record supports Petitioner’s contention that it was CalPERS’ “ever- changing requirements” that prevented Decedent from changing her beneficiary. Petitioner’s Opening Brief does not present any argument to support this contention in her writ petition and she should not be allowed to present new arguments in her reply brief absent a fair opportunity for Starr to respond. Judge Brown properly found CalPERS repeatedly told Decedent to obtain either an amended court judgment of dissolution or Starr’s waiver, but Decedent failed to do so. For these reasons, CalPERS cannot be equitably estopped from denying Petitioner the benefits belonging to Starr and the petition should be denied. E. Petitioner is not entitled to the relief she seeks Petitioner’s writ petition seeks an order compelling CalPERS to award Petitioner Decedent’s Option 2W retirement benefits. Petitioner is not entitled to this relief. The court may not interfere with the agency’s exercise of discretion. The court’s authority is limited to setting aside the agency’s order or denying the writ. If the court decides to set aside the agency’s order, the court may only order CalPERS to reconsider its order in light of the court’s decision. (CCP §1094.5(f); The Rutter Group, Calif. Practice Guide, Administrative Law §20:330.) Vv. CONCLUSION AND RELIEF REQUESTED The court is not empowered to review the evidence anew and substitute its own judgment for the judgment of the administrative law judge and CalPERS. Petitioner failed to meet her burden of proof in the administrative proceeding and, likewise, failed to meet her burden to See REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS Pine IMs in8d9 200 4A DeaRROLOAE COT EAKAAN2AAwo ON DWN FF WN NN oN N Ww N NY — Se _ RBRRBRBRBRBKRRBSESerWIAARBEHRAS prove that CalPERS acted in excess of its jurisdiction, denied Petitioner due process, or abused its discretion. Ample evidence supports the administrative law judge’s determination that Decedent failed to complete the statutory requirements necessary to remove Starr as her Option 2W beneficiary. Ample evidence supports the administrative law judge's determination that Decedent failed to appoint Petitioner as her Option 2W beneficiary. Moreover, CalPERS cannot be estopped from complying with its statutory mandates. For these reasons, Starr respectfully requests this Court to deny Petitioner’s Petition for Writ of Administrative Mandamus. Starr further requests an award of her costs. Date: 02/23 / 2028 Date: , 02/23/2023 Respectfully submitted. EVANS KINGSBURY LLP Noreen M, Evans Noreen M. Evans, Esq. Certified Appellate Specialist THE LAW OFFICE OF STEVEN H. SPIEGELMAN Steven H. Spiegelman, Esq. Attomeys for Real Party in Interest DONNA M. STARR — i REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS re sea,Evans Kingsbury LLP (707)596-6090 on nt Oo a F&F Ww DY = Dy MN NH DY KY NY NH ND @ Bae ase saa aa a ont oa k OW NHN |= 0 OG DB N OW a FW NY = OO PROOF OF SERVICE Code of Civil Procedure Section 1013a(3), 2015.5 I declare that: I am over the age of eighteen years, and am not a party to this action. My business address 50 Old Courthouse Square, Suite 601, Santa Rosa, CA 95404, which is located in the county where this mailing described below took place. On February 24, 2023, at my place of business at 50 Old Courthouse Square, Suite 601, Santa Rosa, CA 95404, I served the attached: DOCUMENTS: REAL PARTY IN INTEREST DONNA M. STARR’S REPLY BRIEF IN OPPOSITION TO PETITION FOR ADMINISTRATIVE MANDAMUS ADDRESSED TO: Edwin Bradley, Esq. (SBN 141932) Daniel S. Raff, Esq. (SBN 279259) Raff Law, APC The Grace Building Helen L. Louie, Esq. (SBN 312821) CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM (CalPERS) 17 Keller Street CalPERS Legal Office Petaluma, CA 94952-2938 400 "Q" Street, Room 3340, Lincoln Plaza Electronic Service E-mail: North office@rafflawoffice.com Sacramento, CA 95811 Attorneys for Petitioner, Melissa Thompson Electronic Service E-mails: hele.louie@calpers.ca.gov; Kady.Pasley@calpers.ca.gov Attorney for Respondent, California Public Employees' Retirement System ("CalPERS") ( (BY MAIL) I placed each such sealed envelope, with postage thereon fully prepaid, on the date of execution of this declaration, with our office outgoing mail following ordinary business practices. I am readily familiar with the business practice at my place of business for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. () (BY FACSIMILE) Per stipulation of the parties, I caused the said document to be transmitted by Facsimile machine to the fax number(s) indicated above. (X) (BY ELECTRONIC MAIL) I caused each such document above to be delivered by electronic mail to the addressee(s) noted above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 24, 2023 in Santa Rosa, California. Rachael Florey PROOF OF SERVICE