Metropolitan News-Enterprise


Thursday, April 27, 2023


Page 3


Court of Appeal:

Jurist Says His Opinion Conferred ‘Significant Benefit’

Presiding Justice Humes Declares That Appellant Who Prevailed in 2019 Appeal Is Entitled

To Attorney Fees, Remarks That Judge, On Remand, Too Narrowly Interpreted CCP §1021.5


By a MetNews Staff Writer


A woman who pursued an appeal from the denial of disability retirement benefits, with the 2019 opinion establishing new law, is entitled to an award of attorney fees under California’s private attorney general statute, Code of Civil Procedure §1021.5, Div. One of the First District Court of Appeal has held.

The opinion was issued April 3 and was certified for publication on Tuesday. It reverses an order by Lake Superior Court Judge David W. Herrick.

Presiding Justice James M. Humes authored the opinion. He also wrote the Oct. 25, 2019 opinion in McCormick v. Public Employees’ Retirement System which gave rise to the attorney-fee motion denied by Herrick.

Cari McCormick, an appraiser for Lake County, had sought a disability retirement; the California Public Employees’ Retirement System (“CalPERS”) denied it; Herrick denied McCormick’s petition for a writ of administrative mandamus; Div. One reversed in McCormick I.

McCormick I

Humes said in that 2019 opinion:

“We hold that employees are eligible for CalPERS disability retirement under Government Code section 21156 when, due to a disability, they can no longer perform their usual duties at the only location where their employer will allow them to work, even if they might be able to perform those duties at a theoretical different location.”

That code section—which sets for procedures for determining if an employee is disabled—is part of the Public Employees’ Retirement Law (“PERL”).

Humes also wrote:

“[T]he Legislature was fully capable of giving CalPERS authority to require members to seek an accommodation as a prerequisite for disability-retirement eligibility. But it did not do so.”

On remand, Herrick determined that the requisites of §1021.5 were not met because the 2019 opinion did not confer “a significant benefit...on the general public or a large class of persons.”

McCormick II

Humes countered in McCormick II:

“Applying a de novo standard of review, we agree with McCormick that our prior opinion conferred a significant benefit on the public and that she is otherwise entitled to attorney fees under section 1021.5.”

He elaborated:

“We agree with the trial court that satisfaction of the significant-benefit requirement is not “automatic” just because this case involves important rights and resulted in a published opinion. But in assessing whether McCormick I conveyed a significant benefit, the court took too narrow a view of the opinion’s impact and thus the group on which it conferred a benefit. Applying our independent judgment, we conclude that the significant-benefit requirement is satisfied here.”

Breadth of Opinion

The presiding justice explained:

“The two main conclusions we reached in McCormick I confer a benefit on a group larger than those CalPERS members who might seek disability retirement in factual circumstances similar to McCorinick’s. Our opinion not only concluded that McCormick herself was eligible for disability retirement but also emphasized that disability must be judged in light of a member’s actual job location and duties and that members need not seek an accommodation to become eligible. Although the latter conclusion was technically dicta because McCormick did seek an accommodation…, that does not mean it will be ignored going forward. Rather, the principles we discussed may well affect cases that do not involve environmentally based disabilities like McCormick’s.”

He added that by enforcing the PERL, his opinion conferred a significant benefit on the public.

“[O]ur prior opinion addressed a statutory scheme bearing on employment benefits for millions of people, clarifying existing law and requiring it to be followed,” Humes declared.

Although McCormick is entitled to an award of fees on remand, Humes noted, that doesn’t mean an award must be made in the full amount she seeks which exceeds $812,000. The opinion makes no mention of an award of costs on appeal—and quotes a 2010 California Supreme Court opinion  as saying that a court “may legitimately restrict the award” under § 1021.5 “to only that portion of the attorneys’ efforts that furthered the litigation of issues of public importance”—apparently indicating that no fees are to be awarded in connection with the appeal in McCormick II.

The case is McCormick v. California Employees’ Retirement System, 2023 S.O.S. 1669.


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