Filed 2/23/23 Manderson-Saleh v. Regents of the U. of Cal. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
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purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
AMIRA Z. MANDERSON-SALEH, D080203
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2018-
00017346-CU-BC-CTL)
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kenneth J. Medel, Judge. Affirmed as modified and remanded with
directions.
Paul, Plevin, Sullivan & Connaughton; Quarles & Brady and Joanne
Alnajjar Buser, for Defendant and Appellant.
David A. Kay for Plaintiff and Respondent.
Amira Z. Manderson-Saleh is the daughter of an oncology nurse,
Bethlyn Manderson, who was employed by the Regents of the University of
California. Before her death in 2016, Manderson worked in the oncology unit
of the hospital at the University of California San Diego (UCSD) for 12 years.
In 2014, she was diagnosed with cancer, but continued to work. Manderson
initiated her retirement less than a month before her death on September 20,
2016. Days before Manderson’s death, acting under a power of attorney in
accordance with her mother’s wishes, Manderson-Saleh submitted a claim to
designate herself as the contingent-annuitant of Manderson’s retirement
benefits from the Regents.
The claim, however, was rejected by the Regents. Manderson-Saleh
challenged that determination, eventually filing a complaint and petition for
writ of mandate under Code of Civil Procedure section 1085 in the San Diego
Superior Court. After the trial court denied the petition, Manderson-Saleh
appealed to this court. We reversed the court’s judgment and remanded the
matter “with directions for the superior court to grant the mandamus petition
and to issue a writ ordering the Regents to grant Manderson-Saleh’s
contingent-annuitant pension claim.” (Manderson-Saleh v. Regents of
University of California (2021) 60 Cal.App.5th 674, 680, review den. May 12,
2021, S268053 (Manderson-Saleh).)
After remand, the parties engaged in negotiations to stipulate to a
judgment to satisfy this court’s remittitur. When those negotiations failed,
the Regents took the position that the benefits that would have been afforded
to Manderson-Saleh at the time her claim was denied (designated as
Option A on the Regents’ form) were prohibited by regulations of the U.S.
Internal Revenue Service (IRS). The Regents asserted that under those
rules, as a contingent-annuitant more than ten years younger than the
deceased pensioner, Manderson-Saleh was entitled only to a percentage of
the benefits that were available at the time of her mother’s death (designated
Option C by the Regents).
2
The trial court rejected the Regents’ argument and entered a judgment
awarding Manderson-Saleh a lump-sum payment for the period of September
30, 2016 through the date of entry of judgment “representing retroactive
Option A benefit payments ... plus pre-judgment interest,” and “[f]rom the
date of this judgment going forward until her death … Option A contingent
annuitant payments of approximately $1700.00 per month plus cost of living
raises as specified in the plan.”
The Regents now appeal that order, arguing the trial court erred by
imposing unlawful conditions on this court’s remittitur and by requiring the
Regents to pay an unlawful benefit in the form of Option A. We reject these
arguments and affirm the trial court’s judgment, but with a modification to
allow the Regents to pay the Option A benefit or, in the alternative, to pay
Option C plus direct monthly payments that are equivalent to the Option A
benefit, including the same cost-of-living adjustments.
FACTUAL AND PROCEDURAL BACKGROUND
Manderson began working at UCSD in 2004. In 2014 she was
diagnosed with cancer but continued in her nursing position. “On August 25,
2016, after learning her cancer had advanced and she would die soon,”
Manderson contacted the Regents’ retirement administration service center
to initiate her retirement. (Manderson-Saleh, supra, 60 Cal.App.5th at
p. 681.) The same day, Manderson also gave her daughter “a signed written
notarized power of attorney, which was necessary because [she] was
becoming increasingly unable to function because of her advanced cancer.”
(Ibid.)
Manderson retired on September 11, 2016, and the next day the
Regents sent her a monthly retirement income Election Worksheet to choose
how she wanted to receive her benefits, including the designation of a
3
contingent annuitant beneficiary. The Regents “had established a secure e-
mail with Manderson-Saleh to expedite [Manderson]’s elections because it
was aware of [her] impending death and the need to promptly formalize
decisions.” (Manderson-Saleh, supra, 60 Cal.App.5th at p. 681.) Manderson-
Saleh completed the worksheet, which “designated Manderson-Saleh as
[Manderson’s] contingent annuitant beneficiary and identified Manderson-
Saleh’s birthdate,” and faxed it back to the Regents. (Ibid.)
“[O]n Friday September 16, the [Regents] (located in Oakland) mailed
[Manderson] (who lived in the San Diego area) a final ‘UBEN 161 Election’
form for her to formally approve her final pension election decisions made in
the Election Worksheet. The prepared form … contained the information
from the Election Worksheet, including the designation of Manderson-Saleh
as [Manderson’s] contingent beneficiary and Manderson-Saleh’s birthdate.”
(Manderson-Saleh, supra, 60 Cal.App.5th at p. 682.) The form also showed
that Manderson selected Option A as the manner to receive her benefits.
Manderson passed away on September 20, 2016. (Ibid.) The Regents
received the signed UBEN 161 Election form on September 26, 2016. “The
next month, on October 12, the Service Center wrote to Manderson-Saleh,
acknowledging [Manderson’s] September 20 death, and stating that ‘since [it]
received the UBEN 161 after September 20, 2016, we are unable to move
forward with your mother’s retirement.’ ” (Manderson-Saleh, supra, 60
Cal.App.5th at p. 682.) Manderson-Saleh’s attorney challenged the denial,
and the Regents again denied the request to provide the benefits. (Ibid.)
Manderson-Saleh then filed her initial complaint in San Diego Superior
Court in April 2018. The complaint asserted claims for breach of contract,
breach of fiduciary duty and the duty of good faith and fair dealing, equitable
estoppel, and negligent misrepresentation. The Regents demurred. Before a
4
ruling on the demurrer, Manderson-Saleh “filed a first amended complaint
alleging a single cause of action for breach of contract, and in the alternative,
petitioned for a [Code of Civil Procedure,] section 1085 writ of mandate to
overturn the Regents’ decision.” (Manderson-Saleh, supra, 60 Cal.App.5th at
p. 684.) “Manderson-Saleh argued that she (on [m]other’s behalf) met the
requirements for designating a contingent annuitant because she faxed the
Election Worksheet form to the Regents on or about September 13, 2016; the
Election Worksheet identified her as the contingent annuitant beneficiary;
and she had been assured by the Service Center representatives that nothing
further was required to make the election effective.” (Id. at pp. 685–686.)
The Regents again demurred to the contract claims, and the trial court
sustained the demurrer. (Manderson-Saleh, supra, 60 Cal.App.5th at p. 685.)
The parties agreed Manderson-Saleh’s remaining petition for writ of mandate
would be tried on the record and submitted briefing and evidence on the
issues presented in the petition. (Id. at pp. 685‒691.) After a hearing on the
petition, the trial court denied writ relief and entered judgment in favor of
the Regents. (Id. at pp. 691‒692.) Manderson-Saleh appealed to this court.
We affirmed the trial court’s ruling on the demurrer. However, we
overturned the trial court’s judgment, holding that Manderson-Saleh was
entitled to a writ of mandate under Code of Civil Procedure section 1085
based on the “substantial compliance rule.” (Id. at pp. 705‒706.)
This court concluded that because Manderson and her daughter had
substantially complied with the requirements for designating Manderson-
Saleh as contingent-annuitant beneficiary, the Regents could not deny the
claim without a valid reason to do so. Because no such reason appeared on
the record, the trial court’s judgment in favor of the Regents on Manderson-
Saleh’s petition for a writ of mandate was error. (Manderson-Saleh, supra,
5
60 Cal.App.5th at pp. 705‒706.) Accordingly, we reversed the judgment and
remanded the matter to the superior court. Our directions on remand
instructed the court “to (1) vacate its order denying Manderson-Saleh’s
mandate petition; and (2) issue a new order and judgment granting the
petition and issuing a writ directing the Regents to grant Manderson-Saleh’s
contingent-annuitant claim under the substantial compliance doctrine.” (Id.
at p. 709.)
After the Supreme Court denied the Regent’s petition for review and
our remittitur issued, the parties engaged in negotiations to enter a
stipulated judgment that complied with this court’s directions. The Regents
offered to pay Manderson-Saleh benefits under Option C dating back to 2016
and prejudgment interest at the rate of 6.75%, as well as the difference
between Option A and Option C benefits in the form of a lump sum or an
annuity. When Manderson-Saleh’s counsel asked the Regents what the lump
sum and monthly payment amounts would be for the Option C benefits and
the annuity, the Regents’ counsel responded that her client was unable to get
a detailed quote for the annuity from its broker without a signed judgment
from the court.
The Regents did explain that the Option A contingent annuitant
monthly benefit would be $1,749.07, the Option C contingent annuitant
monthly benefit would be $999.36, and that the lump-sum payment
representing the difference between the two options would be $181,929.
Manderson-Saleh selected the annuity option, and her counsel communicated
the same to the Regents. The Regents then responded that “after further
consideration and assessment of risk associated with trying to secure an
annuity,” they would “only offer a lump-sum for the difference between the
Option A and Option C benefits,” rather than an annuity.
6
Manderson-Saleh rejected the offer. Her counsel told the Regents that
they did not believe the value of the lump sum offered was equivalent to the
payments she would have received had the claim been approved prior to
Manderson’s death. Instead, Manderson-Saleh’s counsel obtained a quote for
an annuity that would pay the approximate $700 per month difference
between the Option C and Option A benefits for Manderson-Saleh’s life.
Manderson-Saleh’s counsel proposed the Regents fund this annuity in
addition to paying the Option C benefits, and a lump sum to account for the
period of time between the claim denial and the final judgment.
The Regents rejected the proposal and for the first time indicated they
were unwilling to pay Manderson-Saleh anything above the Option C benefits
going forward because doing so would violate IRS regulations governing
minimum distribution requirements for pension plans. Thereafter, the
parties engaged in additional negotiations in which the Regents expressed
willingness to provide Option A benefits by paying Manderson-Saleh a lump-
sum she could use to fund an annuity to make up the difference between the
Option A and Option C monthly amounts. The negotiations stalled a final
time when the Regents declined to mitigate the tax consequences to
Manderson-Saleh of receiving a lump sum, and rejected her proposal that the
Regents pay her $700 per month, outside of the pension plan, with cost-of-
living adjustments.
After a long-delayed status conference, at the trial court’s request, the
parties submitted letter briefs and competing judgments to satisfy this
court’s remittitur. Manderson-Saleh asserted that the trial court did not
have authority to award her Option C benefits because doing so would run
afoul of this court’s directions. Her proposed judgment stated she was
entitled to “ ‘Option A’ contingent annuity benefits” based on this court’s
7
ruling, and awarded her (1) a “lump sum representing retroactive Option A
benefit payments from the [University of California Retirement Plan (UCRP)]
plus pre-judgment interest at the rate of 6.75%” and (2) from the date of
judgment to Manderson-Saleh’s death “Option A contingent annuitant
payments of approximately $1700.00 per month plus cost of living raises as
specified in the plan.”
The Regents, in contrast, argued that our directions only required them
to pay Manderson-Saleh Option C benefits. Explaining their earlier
negotiating position, the Regents asserted that “[a]lthough the Regents did
not necessarily agree that any Option A benefit was owed,” they attempted to
negotiate “in good faith ... to achieve a stipulated judgment.” The Regents
argued that Manderson-Saleh’s interpretation of this court’s opinion—that
she was entitled to the Option A benefit—“would essentially amount to an
impermissible advisory opinion concerning an issue that was never before
either the trial court or the appellate court (i.e., what non-UCRP funds
[Manderson-Saleh] should receive or even the type of contingent annuitant
benefits available to her).”1
The Regents submitted two proposed judgments. The first awarded
Manderson-Saleh a lump sum payment of $66,623.24, plus pre-judgment
interest, representing Option C benefits from September 30, 2016 to the date
of entry of judgment, and Option C contingent annuitant benefits thereafter.
1 The Regents’ letter brief also explained why each proposal considered
during the negotiations to reach a stipulated judgment was not feasible.
With respect to the purchase of an annuity, they stated they were unwilling
to gamble with their funds since the cost of such a product could not be
obtained without a final judgment. With respect to the payment of a lump
sum so that Manderson-Saleh could purchase the annuity, they asserted she
had rejected this offer. Finally, they argued that a separate monthly
payment to Manderson-Saleh was not viable because it was administratively
challenging and did not offer sufficient finality.
8
The second proposal awarded the same, plus an additional “lump sum
payment of $255,265.00 representing a disputed amount of benefits.”
Before a hearing on the competing proposals, the court issued a
tentative order to enter Manderson-Saleh’s proposed judgment. At the
hearing, the court expressed skepticism about the Regents’ position. For
example, in response to the Regent’s assertion that requiring Option A would
be a modification of this court’s directions, the trial court noted that it was
“not changing anything,” rather it was “clarifying … [the] earlier ruling.”
Further, the trial court pointed out, and the Regents conceded, that the only
claim form before both the trial court in the initial proceedings and this court
selected Option A and that the Regents denied Option A benefits. At the
conclusion of the hearing, the trial court took the matter under submission.
Thereafter, the court issued its order rejecting the Regents’ arguments.
The court explained its understating that “[t]he directive from the Court of
Appeal was to GRANT Manderson-Saleh’s contingent-annuitant claim.
Based on the Complaint, the First Amended Complaint and Petition for Writ
of Mandamus as well as the Administrative Record in this case, the
petitioner’s claim requested ‘Option A.’ ” The court stated that to “rule
otherwise, would, in effect, be improperly adding to the appellate court
instructions.” Thereafter, the court entered Manderson-Saleh’s proposed
judgment, awarding her “Option A contingent annuitant payments of
approximately $1700.00 per month plus cost of living raises as specified in
the plan.”
The Regents timely appealed from the judgment.2
2 Before any briefing on the appeal, Manderson-Saleh filed a motion to
dismiss the appeal as frivolous, which we denied.
9
DISCUSSION
The Regents contend that by specifying that Manderson-Saleh was
entitled to Option A benefits, the trial court added an unlawful condition to
this court’s remittitur. The Regents also assert that the trial court erred by
entering a judgment that requires them to pay Manderson-Saleh “an
unlawful benefit” that is prohibited by federal law and that infringes on their
authority to administer retirement benefits for their employees.
I
The issues on appeal are governed by the law that applies after a
reversal by the court of appeal, which is accompanied by direction requiring
specific proceedings on remand. “ ‘A reviewing court has authority to “affirm,
reverse, or modify any judgment or order appealed from, and may direct the
proper judgment or order to be entered, or direct a new trial or further
proceedings to be had.” (Code Civ. Proc., § 43.) The order of the reviewing
court is contained in its remittitur, which defines the scope of the jurisdiction
of the court to which the matter is returned.’ [Citations.] ‘The trial court is
empowered to act only in accordance with the direction of the reviewing
court; action which does not conform to those directions is void.’ ” (Ayyad v.
Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859 (Ayyad); see Hampton
v. Superior Court (1952) 38 Cal.2d 652, 655 [“When there has been a decision
upon appeal, the trial court is reinvested with jurisdiction of the cause, but
only such jurisdiction as is defined by the terms of the remittitur. The trial
court is empowered to act only in accordance with the direction of the
reviewing court; action which does not conform to those directions is void.”]
(Hampton).)
“[T]he rule requiring a trial court to follow the terms of the remittitur is
jurisdictional in nature. [Citation.] The issues the trial court may address in
10
the remand proceedings are therefore limited to those specified in the
reviewing court’s directions, and if the reviewing court does not direct the
trial court to take a particular action or make a particular determination, the
trial court is not authorized to do so.” (Ayyad, supra, 210 Cal.App.4th at
pp. 859–860.) “On remand, the trial court must adhere to the reviewing
court’s directions even if the lower court is convinced the appellate court’s
decision is wrong or has ‘been impaired by subsequent decisions.’ [Citation.]
The directions must be followed even if the judgment on which the Court of
Appeal’s decision is based is unquestionably legally erroneous. [Citation.] In
short, when an appellate court remands a matter with directions governing
the proceedings on remand, ‘those directions are binding on the trial court
and must be followed. Any material variance from the directions is
unauthorized and void.’ ” (Id. at p. 860.)
Further, “[i]t is unnecessary and inappropriate for an appellate court to
attempt to envision and to set forth in detail the entire universe of matters
prohibited by its directions on remand.” (Ayyad, supra, 210 Cal.App.4th at
p. 863.) Thus, if there is ambiguity in the directions, the trial court must
interpret them “in accordance with the views, reasoning, and holdings
expressed in the opinion as a whole.” (In re Justin S. (2007) 150 Cal.App.4th
1426, 1435.) “Whether the trial court has correctly interpreted an appellate
opinion is an issue of law subject to de novo review. In interpreting the
language of a judicial opinion, the appellate court looks to the wording of the
dispositional language, construing these directions ‘in conjunction with the
opinion as a whole.’ ” (Ducoing Management, Inc. v. Superior Court (2015)
234 Cal.App.4th 306, 313.) Only if the trial court’s variance from this court’s
directions is “material,” is reversal appropriate. (In re Candace P. (1994) 24
Cal.App.4th 1128, 1131.)
11
II
The Regents argue the trial court’s judgment exceeded our remittitur
by adding Option A benefits to our direction that they pay Manderson-Saleh
contingent-annuitant benefits. They assert the addition “amounts to a
judicially created amendment requiring the Plan to pay a benefit that is
unlawful.” We disagree. Because the issue was not litigated and the only
benefit at issue in the underlying litigation was the Option A benefit, the
trial court’s judgment awarding that benefit fell squarely within “the views,
reasoning, and holdings expressed in [our] opinion as a whole.” (In re Justin
S., supra, 150 Cal.App.4th at p. 1435.)
The trial court correctly assessed this court’s opinion and imposed a
judgment that conformed to the disposition and remittitur. As the trial court
stated in its minute order “[t]he ‘UBEN 161 Election Form,’ which the
Regents contended was not timely received back from [Manderson], was
prepared by the Regents and sent to petitioner. It indicated the Payment
Option of ‘Alternative Payment Option A.’ That was the basis for petitioner’s
claim, which was granted by the Court of Appeal.”
Because no other benefit option was raised or considered during the
course of the lawsuit, the trial court was required to, and correctly did, enter
a judgment for Option A benefits. Contrary to the Regents’ assertion, had the
trial court adopted the Regents’ position and entered a judgment for Option C
benefits, it would have run afoul of the law by modifying the directions this
court issued. (See English v. Olympic Auditorium (1935) 10 Cal.App.2d 196,
201 [“A trial court may not exceed the specific directions of a court of review
in remanding a cause after a reversal of the judgment on appeal and add
thereto conditions which it assumes the reviewing court should have
included.”].)
12
The case cited by the trial court in its order, Skaggs v. City of Los
Angeles (1956) 138 Cal.App.2d 269 (Skaggs), considered a similar sequence of
events and supports our conclusion. In Skaggs, the trial court granted a
petition for writ of mandate brought by a police officer challenging the City of
Los Angeles’s denial of his pension benefits. (Id. at pp. 270‒271.) The trial
court’s judgment included interest on back payments awarded by the court.
(Ibid.) The judgment was appealed to the Supreme Court by both parties.
However, the city’s appeal did not challenge the award of interest (nor had
the city raised the issue in the lower court litigation), despite the Civil Code’s
prohibition of such interest awards against municipalities. (Id. at p. 271.)
The Supreme Court reversed a portion of the trial court’s judgment, but
affirmed the portion that awarded interest on back payments. (Skaggs,
supra, 138 Cal.App.2d at p. 271.) After additional proceedings in the trial
court on remand, the court entered a judgment based on the city’s argument
that eliminated the interest previously awarded to the plaintiff. (Id. at
pp. 271‒272.) The plaintiff appealed, and the Court of Appeal concluded that
the trial court’s second judgment eliminating the interest award had
exceeded the trial court’s authority on remand. (Id. at pp. 272‒273.)
The Skaggs court held, “[t]he fact that the Supreme Court did not
expressly pass upon the interest feature of the judgment does not affect this
matter. Its judgment did affirm the portion of the judgment which required
defendants to pay interest on past due pension installments. If, due to the
city’s neglect to direct its attention to this phase of the judgment of the lower
court, the Supreme Court failed to pass upon this question, the city’s remedy
was to petition for a rehearing, and it was not for the trial court, on the
13
second trial, to attempt to change the specific directions contained in the
remittitur.”3 (Skaggs, supra, 138 Cal.App.2d. at pp. 272–273.)
The same principles apply here. If the Regents thought they could not
provide Manderson-Saleh with the Option A benefits because of changes in
the federal tax rules, the Regents’ remedy was to petition this court for
rehearing to clarify or modify the relief afforded in our disposition. After
remand, the trial court did not have authority to modify the judgment in the
manner advanced by the Regents. Put simply, the trial court lacked
authority to award Option C benefits and its failure to do so was not error.
III
The Regents’ assertion that the trial court erred by entering an
“unlawful” judgment fails for the same reasons. The Regents asked the trial
court, and now ask this court, to evaluate whether the directions we gave the
trial court in our earlier opinion, i.e. to grant judgment in favor of
Manderson-Saleh and direct the Regents to grant Manderson-Saleh’s
contingent-annuitant claim, were in violation of the law. As discussed, the
trial court had no authority to make this determination. Rather, its role was
limited to implementing our directions, which it did correctly. With respect
to this court’s authority to address the Regents’ ability to provide Option A
3 In support of its argument, the Regents cite Pomona Police Officers’
Ass’n v. City of Pomona (1997) 58 Cal.App4th 578. Unlike this case, however,
Pomona involved a direct legal challenge by a collective bargaining
association seeking to compel a municipality to amend its contracts with the
Public Employees’ Retirement System in order to provide certain benefits.
The trial court denied the petition, and the Court of Appeal affirmed, holding
it could not require the municipality to “enter into a particular, judicially
created collective bargaining agreement.” (Id. at p. 590.) Pomona has no
impact on the issues at play here; the case does not address a trial court’s
modification of a direction after remand by a higher court.
14
benefits, we agree with Manderson-Saleh that the principles of waiver and
estoppel apply.
In support of their argument that the trial court’s judgment is
unlawful, the Regents explain that in 2017, after Manderson’s death, it
“began eligibility-testing benefit claims made by contingent-annuitant
beneficiaries based on the Minimum Distribution Incidental Benefit rule (the
‘MDIB rule’).”4 This rule, according to the Regents, was adopted by the IRS
4 The Regents filed three requests, all unopposed, for judicial notice in
the present appeal. The first, which accompanied its opposition to
Manderson-Saleh’s unsuccessful motion to dismiss, sought judicial notice of
“UC Retirement 1976 Tier Summary Plan Description Summary Plan
Description and 26 C.F.R. § 1.401.” We denied the request as to the plan
summary and granted the request as to the treasury regulation. In the
request filed with its opening brief, the Regents seek judicial notice of
(1) excerpts of the University of California Retirement Plan documents dated
July 2016, July 2019, and July 2020; (2) an IRS bulletin, No. 2004-26, dated
June 26, 2004, which the Regents assert contains the “final ruling of the IRS
related to the MDIB rule as it was implemented in 2004;” (3) proposed
regulations of the treasury, dated July 27, 1987, “relat[ed] to required
distributions from qualified plans, individual retirement plans, and
section 403(b) annuity contracts, custodial accounts, and retirement income
accounts;” (4) a U.S. House of Representatives congressional report, which
the Regents asserts contains “background to the MDIB rule” dated June 23,
1984; and (5) excerpts of UC Retirement Plan 1976 Tier Summary Plan
Descriptions dated 2018 and 2014 (though they appear the same, it is unclear
if the 2018 document is the same summary submitted in the Regents’ earlier
request for judicial notice). In their final request for judicial notice, filed in
connection with their reply brief, the Regents request judicial notice of a
treasury rulemaking finalized in August 2009 that amends the grandfather
provision for government plans contained in the 2004 regulations that are
part of the Regents’ other request for judicial notice.
15
in 2004, and limited a retirement plan’s “ability to pay funds to non-spouses
more than ten years younger than the retiree ….” The Regents assert that,
based on this rule, “the only non-spouse beneficiary able to take ‘Option A’ or
‘full continuance’ (100%) benefits is a person who is ten years or less apart
from the retiree.”
The Regents state that “[p]rior to July 2017, the University did not
strictly test contingent-annuity benefit claims for conformity with the MDIB
rule.” Thus, in 2016, at the time the Regents rejected Manderson’s request to
make Manderson-Saleh her contingent-annuitant beneficiary, the Regents
would have paid Manderson-Saleh the Option A benefit if the claim had been
granted. However, “beginning in July 2017, [t]he Regents adjusted the
retirement benefit payment practice to be consistent with the MDIB rule,”
resulting in the Regents “no longer permitting ‘Option A’ contingent-
annuitant benefits to non-spouses who were more than ten years younger
than the retiree.”
Based on this change to its plan, the Regents argue they cannot provide
Option A benefits to Manderson-Saleh without running afoul of federal tax
regulations, which they assert would jeopardize the plan’s “tax-qualified
status with the IRS,” as well as risk “IRS penalties, audits and/or fiduciary
We grant the Regents’ request for judicial notice with respect to the
treasury regulations and related documents, numbered (2), (3), and (4) in the
prior paragraph and contained in the Regents’ supplemental request filed
with the reply brief. (Evid. Code § 452, subd. (c) [“Judicial notice may be
taken of … Official acts of the legislative, executive, and judicial departments
of the United States ….”].) The request is also granted as to the excerpts
from the retirement plan documents, numbered (1) in the prior paragraph.
(See California State Employees’ Assn. v. Flournoy (1973) 32 Cal.App.3d 219,
233, fn. 10 [taking judicial notice of personnel rules of the Regents based on
character of the Regents “as a ‘statewide administrative agency’ ”].) As
before, the request is denied as to the summaries of the plan, numbered (5)
above.
16
duty claims from Plan members based on The Regents’ non-compliance.”5
The Regents also argue that because the judgment requiring them to pay
Option A benefits conflicts with the MDIB rule, which is contained in a
federal tax regulation, the supremacy clause of the U.S .Constitution requires
us to conform the judgment to comply with that rule.
In response to the Regents’ argument, Manderson-Saleh asserts that
any challenge to the relief she sought based on IRS rules was waived.
Manderson-Saleh points out that prior to this court’s opinion, the Regents
never argued that she was not entitled to the benefit selection contained in
her claim form. It was not until the judgment was reversed and the parties
began negotiating a stipulated judgment to satisfy the remittitur that the
Regents first asserted they could not satisfy the judgment because of their
obligations under the IRS rules.
Whether the supremacy clause requires modification of the judgment
was not an issue properly before the trial court. Rather, the trial court had
no authority to pass on the question concerning the illegality of ordering
Option A benefits. (See Hampton, supra, 38 Cal.2d at p. 656 [“ ‘The order of
the appellate court as stated in the remittitur, ‘is decisive of the character of
the judgment to which the appellant is entitled. The lower court cannot
reopen the case on the facts, allow the filing of amended or supplemental
pleadings, nor retry the case, and if it should do so, the judgment rendered
5 At the hearing on the parties’ competing proposed judgments, the
Regents repeatedly declined to answer the trial court’s questions about what
benefits were provided to contingent annuitants that were similarly situated
to Manderson-Saleh, i.e. beneficiaries who were provided Option A benefits
before the retirement plan began conforming to the tax law in 2017, after
that change. Manderson-Saleh’s counsel pointed out that the factual
question was not properly before the court because the Regents had failed to
raise this issue during the initial trial court proceedings.
17
thereon would be void.’ ”].) As discussed, the court was required to follow the
directions from this court and enter a writ of mandate directing the Regents
to grant the claim for benefits made by Manderson-Saleh, acting under the
power of attorney given by her mother, before her mother’s death. As the
trial court correctly concluded, that claim was for Option A, not Option C,
benefits.6
We also agree with Manderson-Saleh that the concepts of waiver and
estoppel apply to preclude this court from addressing the Regents’ argument.
6 The Regents’ reliance on San Diego City Firefighters, Local 145 v. Bd.
of Admin. of San Diego City Employees Ret. Sys. (2012) 206 Cal.App.4th 594
is misplaced. There, the parties were litigating the impact of changes to
federal tax law that limited the benefits received by certain employees under
an existing memorandum of understanding with the union representing the
employees. There was no assertion in the case that the issue was not
properly before the courts considering it. Here, the issue was not litigated by
the Regents in the underlying lawsuit despite the fact that the change had
been implemented before Manderson-Saleh filed her petition for writ of
mandate. This difference in the procedural posture of the cases is critical,
and fatal, to the Regents’ reliance on San Diego Firefighters.
Likewise, the Regents’ citations to In re Marriage of Shelstead (1998)
66 Cal.App.4th 893, Doe v. Wilson (1997) 57 Cal.App.4th 296, and Gates v.
Municipal Court (1992) 9 Cal.App.4th 45 are inapposite. In Shelstead, this
court considered the issue of whether certain retirement benefits awarded to
the employee’s spouse in a divorce proceeding were preempted by federal law.
(Shelstead, at pp. 895‒896.) Unlike here, the preemption issue was brought
squarely before the court by the parties throughout the trial and appellate
proceedings. (Id. at pp. 896‒898.)
In Doe v. Wilson, the First District considered issues of federal
preemption related to the legality of a trial court order enjoining emergency
state regulations promulgated to conform state law with governing federal
law. (Doe v. Wilson, supra, 57 Cal.App.4th at pp. 301‒303.) Gates v.
Municipal Court addressed a contempt order issued against the Orange
County sheriff as a result of his compliance with a federal court order in a
class action lawsuit arising from overcrowding in the Orange County jail.
(Gates v. Municipal Court, supra, 9 Cal.App.4th at pp. 48‒49.) Doe v. Wilson
and Gates v. Municipal Court have no bearing on the issues here.
18
The Regents assert the issue was not waived because they did not arise until
after the remittitur issued. This assertion, however, is belied by the Regents’
own briefing. They acknowledge the MDIB rule went into effect in 2004 and
that they only began conforming their benefits to the rule in July 2017, before
this lawsuit was filed in 2018. Had the issue been raised during the initial
litigation or in a petition for rehearing after our decision, it could have been
considered and adjudicated.
“The rule is well settled that the theory upon which a case is tried must
be adhered to on appeal. A party is not permitted to change his position and
adopt a new and different theory on appeal. To permit him to do so would not
only be unfair to the trial court, but manifestly unjust to the opposing
litigant.” (Ernst v. Searle (1933) 218 Cal. 233, 240–241; Kantlehner v.
Bisceglia (1951) 102 Cal.App.2d 1, 6 [“This rule has frequently been applied
where one theory of damages was acquiesced in at the trial and appellants
sought to shift to another theory of damages on appeal.”].) The unfairness
motivating this rule is even more pronounced in this case, where the issue
was not raised until well after the first appeal.
If the Regents’ position was that the benefits contained in the claim
being pursued by Manderson-Saleh were unavailable because of their tax
implications, it was incumbent on the Regents to present that defense in the
initial trial court proceedings or, at the very least, in a petition for rehearing
after our earlier decision. The Regents’ failure to raise the argument during
the earlier proceedings dooms it. (See Truck Ins. Exchange v. AMCO Ins. Co.
(2020) 56 Cal.App.5th 619, 635 [“ ‘ “[I]t is fundamental that a reviewing court
will ordinarily not consider claims made for the first time on appeal which
could have been but were not presented to the trial court.” ’ ”].)
19
Finally, although we agree with Manderson-Saleh that she is entitled
to Option A benefits, we see no reason to prevent the Regents from satisfying
the judgment with payment outside of the plan that is equivalent to the
Option A benefit Manderson-Saleh would have received had her claim been
granted at the time it was made. Manderson-Saleh herself makes no
objection to this alternative, and the Regents provided the trial court with an
alternative proposed judgment containing similar terms.7
Accordingly, on remand from this decision the trial court is directed to
enter a judgment that provides the Regents with the option to pay
Manderson-Saleh either Option A plan benefits or to pay her the equivalent
of Option A benefits by paying Option C benefits plus direct monthly
payments of the difference between Option A and Option C, including cost-of-
living adjustments.
IV
After briefing was complete, Manderson-Saleh filed a motion for
sanctions asserting that the Regents’ appeal is frivolous. (Code Civ. Proc.,
§ 907 [“When it appears to the reviewing court that the appeal was frivolous
or taken solely for delay, it may add to the costs on appeal such damages as
may be just.”].) Our test is the following: “[A]n appeal should be held to be
frivolous only when it is prosecuted for an improper motive—to harass the
respondent or delay the effect of an adverse judgment—or when it
indisputably has no merit—when any reasonable attorney would agree that
7 The second proposed judgment provided for a lump sum payment to
Manderson-Saleh that appears to be based on a price quote she received from
her financial advisor for an annuity that would pay her roughly the same
amount she would be paid monthly under Option A, minus cost-of-living
adjustments.
20
the appeal is totally and completely without merit.” (In re Marriage of
Flaherty (1982) 31 Cal.3d 637, 650.)
Although Manderson-Saleh asserts that the Regents filed their appeal
to delay entry of a final judgment in this years-long lawsuit, the documents
she included in the appellate record show ongoing, and good-faith
negotiations by both parties to reach an agreement on a stipulated judgment
throughout the year after the remittitur issued. Further, the arguments
advanced by the Regents on appeal are not frivolous. While we agree with
Manderson-Saleh that the trial court correctly rejected the Regents’ proposed
judgments, we cannot say that “any reasonable attorney would agree that the
appeal is totally and completely without merit.” (In re Marriage of Flaherty,
supra, 31 Cal.3d at p. 650.) We therefore decline to grant sanctions in this
instance.
DISPOSITION
The judgment is affirmed with modification. On remand, the trial court
is directed to enter a modified judgment directing the Regents within 30 days
of the entry of judgment (1): to pay Manderson-Saleh a lump sum
representing retroactive Option A benefit payments from the UCRP, plus pre-
judgment interest at the rate of 6.75%, for the period of September 30, 2016
through the date of entry of the judgment; and (2) to, from the date of entry of
judgment going forward until her death, begin payment of either Option A
plan benefits or the equivalent of Option A benefits by paying Option C plan
benefits plus direct monthly payments equivalent to the difference between
Option A and Option C, including cost-of-living adjustments mirroring those
provided by Option A plan benefits. The costs of appeal are awarded to
Manderson-Saleh.
21
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
BUCHANAN, J.
22