Opinion
F065967
04-02-2014
DONNA WOESSNER-BECAS, Appellant, v. KERN COUNTY EMPLOYEES' RETIREMENT ASSOCIATION, Respondent.
Lewis, Marenstein, Wicke, Sherwin & Lee, Thomas J. Wicke and Allison E. Barrett for Appellant. Theresa A. Goldner, County Counsel, and Judith M. Denny, Deputy County Counsel for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. CV-274334)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Linda S. Etienne, Commissioner.
Lewis, Marenstein, Wicke, Sherwin & Lee, Thomas J. Wicke and Allison E. Barrett for Appellant.
Theresa A. Goldner, County Counsel, and Judith M. Denny, Deputy County Counsel for Respondent.
Petitioner, Donna Woessner-Becas, appeals from the denial of her petition for writ of administrative mandate, which sought review of the decision of respondent, Kern County Employees Retirement Association (KCERA), denying her application for a service-connected disability retirement. She contends the trial court failed to apply the correct standard of review and substantial evidence does not support its judgment. We conclude the trial court correctly applied the independent judgment standard of review, and the evidence does not compel a finding that petitioner met her burden of proof. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner began working as a records clerk for the Kern County Department of Human Services in January 2001. The records clerk position required her to climb ladders to remove heavy (25 to 50 pounds) boxes of records from shelves, where they were stacked up to four high; if a box that was not at the top of the stack was needed, she was required to climb the ladder to remove the boxes stacked on top of it, then return them to the shelf after removing the needed box. In April 2002, she reported to her employer a work-related injury. She stated she was experiencing tingling, numbness, and short jabs of pain from her fingers up through her arm, shoulders, neck, and back, and the discomfort was growing worse each day. She opined that the injury occurred the first week of April, during an audit of boxes of old case files. She saw a number of physicians for diagnosis and treatment beginning in May 2002. A magnetic resonance imaging (MRI) scan of petitioner's cervical spine captured in May 2002 revealed a disc protrusion at C5-6 and a bulging disc at C3-4.
At petitioner's request, she was transferred in October 2002 to the Department of Mental Health Services, in the position of account clerk II. Her position was later reclassified and renamed fiscal support technician. The position involved clerical tasks, with no heavy lifting. The job description of the fiscal support technician position indicated the position involved frequent bending and constant twisting of the neck.
Although the record documenting the reclassification states the effective date was July 13, 2002, this apparently was a typographical error. The document indicates it was prepared on May 30, 2003, and entered into the computer system on June 24, 2003. Petitioner did not hold the position of account clerk II on July 13, 2002, and her performance reviews indicate the change in job title took place in July 2003. Thus, we conclude the reclassification took place in July 2003.
In 2003 and 2004, petitioner's doctors sometimes took her off work because of her complaints of pain and other symptoms. In December 2003, petitioner's doctor allowed her to continue to work, but indicated she should not do any heavy lifting. In September 2004, petitioner was opening the door of a file cabinet when her hand reportedly went numb and the door slipped and struck her right forearm. She advised her employer of the injury and sought medical care. Her treating doctor, Dr. Charles Herring, an orthopedic surgeon, took her off work as temporarily totally disabled. She did not return to work after September 13, 2004.
In July 2005, the agreed medical evaluator (AME), Dr. James Strait, diagnosed discogenic neck and upper back and upper extremity pain; he noted petitioner had multilevel degenerative disc disease with disc protrusions and concluded petitioner had a permanent disability resulting from a continuous trauma injury caused by her work. On November 22, 2005, after reviewing job descriptions of the account clerk position and the fiscal support technician position, Dr. Strait opined that petitioner could "work in either of these jobs if she is not required to perform constant or frequent cervical motion." On December 13, 2005, in his attending physician report, Dr. Herring found petitioner to be permanently incapacitated from the performance of the duties of her position and concluded the injury was caused by her job duties; he did not specify from which position she was incapacitated. He placed the following restrictions on her activities: no heavy lifting, pushing or pulling; no repetitive gripping or grasping. Dr. Herring also found petitioner could not perform fine hand manipulation.
Dr. Strait was apparently the AME in a related workers' compensation proceeding.
On December 18, 2005, petitioner applied to KCERA for a service-connected disability retirement. She identified the disabling injury as cervical disc displacement, headaches, blurred vision, memory loss, and numbness. KCERA denied the application and petitioner appealed. A hearing was held before a hearing officer. The hearing officer rendered a proposed decision, in which he concluded petitioner was permanently incapacitated from performance of the duties of the fiscal support technician position, and her employment contributed substantially to her incapacitating injuries. Accordingly, he recommended her application for service-connected disability retirement be granted. KCERA filed objections to the proposed findings and decision. The hearing officer filed his final findings and decision, which did not alter, but added to, the original proposed decision. The KCERA Board of Retirement did not adopt the hearing officer's decision, but prepared and adopted an alternate decision. Its decision denied petitioner's request for service-connected disability retirement benefits, finding petitioner had not carried her burden of proving she was permanently incapacitated from performing the functions of the fiscal support technician position.
Petitioner filed a petition for writ of mandate with the superior court, to review the decision of KCERA. She contended the weight of the evidence in the administrative record did not support a conclusion the fiscal support technician job could be modified to meet the medical restrictions placed on her by her doctors. Specifically, she contended the position, as described by the employer and as experienced by her, entailed frequent or constant twisting and bending of the neck, and there was no evidence that the twisting and bending could be reduced to bring it within her medical restrictions. The trial court reviewed the administrative record and heard the matter, then concluded KCERA's findings and conclusions were correct and petitioner had failed to satisfy her burden of proving KCERA's findings were contrary to the weight of the evidence. The trial court denied the petition for a writ. Petitioner appeals.
DISCUSSION
I. Standard of Review
When the trial court reviews an administrative decision pursuant to a petition for writ of mandate, it reviews the decision for abuse of discretion. (Code Civ. Proc., § 1094.5.) "Abuse of discretion is established if ... the order or decision is not supported by the findings, or the findings are not supported by the evidence." (§ 1094.5, subd. (b).) When the trial court is authorized to exercise its independent judgment in reviewing the administrative decision, "abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence." (§ 1094.5, subd. (c).) The trial court exercises its independent judgment upon the evidence when it reviews an administrative decision that substantially impacts a fundamental vested right. (Alberda v. Board of Retirement of Fresno County Employees' Retirement Assn. (2013) 214 Cal.App.4th 426, 433 (Alberda).) An administrative decision concerning a county employee's disability retirement impacts a fundamental vested right and requires independent review. (Ibid; Levingston v. Retirement Board (1995) 38 Cal.App.4th 996, 1000.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
"In carrying out this independent review, however, the trial court must afford the agency's decision a strong presumption of correctness and must impose upon the petitioner the burden of showing that the agency's findings are contrary to the weight of the evidence, i.e., the decision was not supported by the preponderance of the evidence. [Citations.] An abuse of discretion is established if the trial court determines that the findings are not supported by the weight of the evidence. [Citation.]" (Alberda, supra, 214 Cal.App.4th at p. 433.)
On appeal from the trial court's judgment, "the appellate court determines only whether the findings and judgment are supported by substantial, credible and competent evidence and whether a different result is compelled as a matter of law. [Citation.]" (Bilyeu v. Unemployment Ins. Appeals Board (1982) 130 Cal.App.3d 657, 667.) In doing so, we must "resolve all conflicts and indulge all reasonable inferences in favor of the prevailing party." (Alberda, supra, 214 Cal.App.4th at p. 436.) Where the issue is one of law, however, we review the issue de novo. (Id. at pp. 433-434.) Whether the trial court applied the correct standard of review is a question of law that we review de novo. (Id. at p. 434.)
II. Application of Correct Standard of Review
Petitioner contends the trial court failed to apply the independent judgment standard of review because its decision does not reflect that it weighed the evidence and reached its own findings and conclusions.
In Fukuda v. City of Angels (1999) 20 Cal.4th 805 (Fukuda), the court held that, in cases in which the trial court reviews the decision of an administrative agency under the independent judgment standard of review, it is required to afford a strong presumption of correctness to the findings of the administrative agency, and to place on the party challenging the administrative decision the burden of proving that the administrative findings are contrary to the weight of the evidence. (Id. at p. 817.)
Here, the trial court's ruling on the petition for writ of mandate is brief. It cited Fukuda and recognized that the trial court was required to apply its independent judgment to the evidence. After determining the strong presumption of correctness was to be afforded to the findings of KCERA, rather than the findings of the hearing officer, the trial court's ruling states: "After review of the administrative record, it is concluded that the respondent's findings and conclusions are correct, and that petitioner failed in her burden of proving that the findings are contrary to the weight of the evidence."
Petitioner contends the trial court failed to independently weigh the evidence. She asserts the KCERA decision was based upon its finding that petitioner's disability could be accommodated; that is, KCERA found petitioner's fiscal support technician position could be modified to accommodate her medical restrictions by reducing the amount of cervical movement from frequent or constant to occasional, and, as so modified, petitioner would not be incapacitated from performance of the duties of her position. Petitioner asserts the trial court ruling does not reflect any analysis or consideration of the accommodation issue, or any weighing of evidence of accommodation or of petitioner's inability to perform the regular duties of the fiscal support technician position. Petitioner, however, could have, but did not, request a statement of decision. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 67; § 632.) Accordingly, the trial court was not required to provide a detailed statement of the issues or an explanation of the factual and legal basis for its decision.
Both the trial court's ruling and its comments at the hearing of the matter indicate it was aware of its obligation to apply its independent judgment to the evidence. Although the trial court did not set out its analysis of the evidence in its ruling, it expressed its agreement with KCERA's findings and conclusions and its own finding that the weight of the evidence did not favor petitioner. The lack of detailed analysis does not establish a failure to apply the correct standard. "[A] judgment is presumed to be correct and must be upheld in the absence of an affirmative showing of error." (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1550.) Petitioner has failed to establish that the trial court applied the wrong standard in reaching its decision on the writ petition.
III. Substantial Evidence Supporting the Trial Court's Decision
Petitioner contends that, even if the trial court applied the correct standard of review, its decision is not supported by substantial evidence. In the trial court, the burden of proving permanent incapacity was on petitioner. (Alberda, supra, 214 Cal.App.4th at p. 436.) "[W]here the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Rather, "the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (Ibid., italics added.)
The trial court determined that "petitioner failed in her burden of proving that the [KCERA] findings are contrary to the weight of the evidence." It did not make specific factual findings or conclusions, but effectively adopted or approved the findings and conclusions set out in KCERA's decision. That decision was expressly based on petitioner's failure to meet her burden of proving she was incapacitated from the performance of the duties of her fiscal support technician position. Thus, this is a case in which the party with the burden of proof failed to meet her burden and is now appealing. Consequently, we must "resolve all conflicts and indulge all reasonable inferences in favor of the prevailing party" (Alberda, supra, 214 Cal.App.4th at p. 436) and determine whether the evidence compels a finding as a matter of law that petitioner was permanently incapacitated (Harmon v. Board of Retirement (1976) 62 Cal.App.3d 689, 691). We are bound by the trial court's determination of the facts on conflicting evidence. (Fukuda, supra, 20 Cal.4th at p. 812.)
Under the county's retirement system, "[a]ny member permanently incapacitated for the performance of duty shall be retired for disability regardless of age if, and only if: [¶] (a) The member's incapacity is a result of injury or disease arising out of and in the course of the member's employment, and such employment contributes substantially to such incapacity." (Gov. Code, § 31720, subd. (a).) "[P]ermanently incapacitated for the performance of duty," as used in related sections (Gov. Code, §§ 31724, 31729, 31730) has been defined to mean "'the substantial inability of the applicant to perform his usual duties.'" (Schrier v. San Mateo County Employees' Retirement Assn. (1983) 142 Cal.App.3d 957, 961-963 (Schrier).) Because those sections were enacted at the same time as section 31720 and deal with the same subject matter, section 31720 should be similarly construed. (Schrier, at p. 962.) An employee may be found not permanently incapacitated from the performance of his or her duties despite an inability to perform the full range of duties ordinarily required in his or her employment position. In other words, the employee is not necessarily permanently incapacitated when he or she is unable to perform one, or some, of the duties of the position. If there is a permanent position within the department, the duties of which the employee can perform because they do not include tasks the disability prevents the employee from performing, then the employee is not "permanently incapacitated for the performance of his duty" as that term is used in Government Code section 31720. (Schrier, supra, 142 Cal.App.3d at pp. 961-962; see also, Craver v. City of Los Angeles (1974) 42 Cal.App.3d 76, 79-80; Barber v. Retirement Board (1971) 18 Cal.App.3d 273, 278.) Thus, the employer may tailor a position to fit the employee's abilities and restrictions.
A. Employer's accommodations
Petitioner argues that substantial evidence does not support the judgment because the administrative record does not contain substantial evidence supporting a finding that petitioner's work restrictions could be accommodated in the fiscal support technician position. She asserts that there was substantial evidence that she was permanently incapacitated from performance of the regular duties of the fiscal support technician position, so the burden shifted to KCERA to prove that her work restrictions could be accommodated in that position. Because there was no evidence to support a finding that her work restrictions could be accommodated, she contends she is entitled to reversal of the judgment. Petitioner's argument is flawed.
Even if petitioner is correct that KCERA would bear the burden of proving accommodation (an issue on which we express no opinion), the burden would not shift unless the trial court found petitioner was incapacitated from the performance of the regular duties of her position. The trial court did not make such a finding.
In a section entitled employer's accommodations, the KCERA decision observes that an employer may accommodate an employee's medical restrictions by modifying the duties of the employee's existing position. It states: "Because the Applicant refused to continue work after her restrictions were fully accommodated and reviewed and approved by her doctor, she cannot be found incapacitated." This statement is not supported by substantial evidence. There was no evidence petitioner's work restrictions "were" fully accommodated; there was only hearsay evidence that accommodation might be made. There was no evidence any doctor "reviewed and approved" any such accommodation. Dr. Strait merely noted that a supervisor's comment on the job description form indicated papers could be put on a stand when petitioner worked on the computer, and "bending and twisting of the neck should be marked occasional" instead of frequent or constant. Dr. Strait opined that petitioner could work as a fiscal support technician if she was not required to perform constant or frequent cervical motion. He expressed no opinion regarding whether an accommodation could be made to petitioner's position to accomplish that goal. Further, there was no evidence a modified position was ever offered to petitioner, much less that she refused it.
The employer's accommodations section of the KCERA decision did not include a finding that petitioner was incapacitated from the performance of her unmodified duties as a fiscal support technician. Thus, there was no need to consider the issue of accommodation. This section appears to be included in the decision as an alternative to the other conclusion expressed: that petitioner failed to demonstrate a permanent incapacity from the performance of her usual job. Consequently, even if the findings in the employer's accommodations section are not supported by the evidence, the judgment need not be reversed if the findings and conclusions regarding whether petitioner demonstrated a permanent incapacity from the performance of her duties are supported by the evidence.
B. No permanent incapacity
In the section of the KCERA decision entitled no permanent incapacity, after defining "permanently incapacitated for the performance of duty," KCERA concluded petitioner "failed to establish, to the necessary degree, that she is incapacitated from her job as a Fiscal Support Technician." It noted that the bulk of the medical evidence concluded petitioner could not perform the job of records clerk, but did not show she was incapacitated from the fiscal support technician position. After discussing the various medical opinions, and the shortcomings in some of the reports, the KCERA concluded:
"While the medical evidence shows some objective injury ... discogenic neck and upper extremity pain, the essentially normal findings on physical exam, multiple normal diagnostic studies and findings of the medical specialists, including Drs. Rahimifar, Pineda, Wang and Kent, do not support the nature and extent of Applicant's subjective complaints of pain and claim of incapacity. Multiple doctors who treated or evaluated Applicant continued her in her full unrestricted work over her complaints of severe pain. The medical evidence does not support Applicant's application. She does not meet her burden to prove that she is incapacitated from her usual and customary job as Fiscal Support Technician."
Thus, in this section of the decision, KCERA concluded that, even without consideration of the issue of accommodation, petitioner failed to establish she was permanently incapacitated from the performance of the duties of the fiscal support technician position. Petitioner does not argue that the evidence compels a finding to the contrary, which is what she must demonstrate in order to prevail in this appeal. Rather, she simply asserts that substantial evidence would support a contrary finding. This is insufficient.
The evidence in the record includes a 2002 MRI scan of the cervical spine, which indicated there was a disc protrusion at C5-6 and a bulging disc at C3-4, both resulting in mild canal stenosis, but no cord compression or foraminal stenosis. A 2003 MRI scan found a disc protrusion at C5-6, a disc bulge at C3-4, and a slight C4-5 annular disc bulge. A 2007 MRI scan disclosed results similar to the 2003 scan. The results of electromyography (EMG) and nerve conduction studies were essentially normal, generally finding no radiculopathy, denervation, or neuropathy.
Petitioner's first primary treating physician, Dr. Mui, initially allowed her to continue working without restrictions. Dr. Levins, consulted for a second opinion, did the same. Dr. Mui took petitioner off work for one month and returned her to work on September 3, 2003, without restrictions. Petitioner then switched to Dr. Herring as her primary treating physician, beginning November 21, 2003. X-rays of the cervical spine taken that day revealed no abnormalities and no significant degenerative disc disease; X-rays of the right shoulder and hand were normal. Dr. Herring's first report of occupational injury or illness indicated petitioner could return to full duty, without restriction. His formal written report, however, indicated he did "not want her to do any heavy lifting." On July 22, 2004, Dr. Herring took petitioner off work until August 12, 2004, as temporarily totally disabled, and then extended her disability leave until September 6, 2004, when he released her to return to work without restrictions. On September 13, 2004, petitioner returned to Dr. Herring, reporting that, while at work, she lost her grip on the door of a cabinet and it slammed on her right forearm, injuring her. Dr. Herring attributed the lost grip to numbness, and concluded she should not be working. Petitioner testified that, when she reported this injury to her supervisor, the supervisor told her not to come back to work until she was better, so she went to Dr. Herring and he took her off work. Petitioner did not return to work after that day.
During the time petitioner was working, her doctors did not place any restrictions on her work, other than a restriction against heavy lifting. It was not until Dr. Herring prepared his attending physician report for KCERA on December 13, 2005, that he placed restrictions on pushing, pulling, and repetitive gripping and grasping, and concluded petitioner could not use her hands for fine manipulation. In that report, he also concluded petitioner was permanently disabled, could not be rehabilitated to her present position, and was permanently incapacitated from the performance of her duties. Those conclusions, however, were ambiguous. When Dr. Herring indicated petitioner could not be rehabilitated to her "present position," he neglected to fill in the blank left to identify that position. The question whether she was permanently incapacitated from the performance of "her duties" was immediately followed by a question whether the injury was caused by "her job duties." The job duties that allegedly caused her injuries were those of the records clerk position; the duties from which she would have to be incapacitated in order to qualify for a disability retirement were those of the fiscal support technician position. Thus, it is not clear from the report whether Dr. Herring concluded petitioner was incapacitated from, and could not be rehabilitated to, the records clerk position or the fiscal support technician position.
In July 2003, Dr. Pineda, a neurologist, examined petitioner; she complained of severe cervical pain radiating to the right arm, neck and head. She also complained of weakness and numbness in the right arm. Dr. Pineda diagnosed cervical spine radiculopathy. In September, however, he noted that an EMG had shown no evidence of radiculopathy, denervation, or neuropathy.
The record includes no medical evidence corroborating petitioner's complaints of blurred vision, tinnitus, or memory loss, or supporting a claim that those items rendered her permanently incapacitated from the performance of the duties of her fiscal support technician position. In 2006, Dr. Kent, a neurologist, opined that there was "no indication for work restriction with regard to headache pain."
A vocational evaluation report from July 2005 concluded petitioner was 95 percent productive during testing, losing only 5 percent productivity due to breaks, including pain breaks, and early departure. It indicated petitioner was provided with a slant board to help decrease neck flexion and pillows to elevate her arms, but used them only for a short period one day. Although encouraged to use her transcutaneous electrical nerve stimulation (TENS) unit to decrease her discomfort, petitioner declined. She was evasive in answering questions and was observed, while speaking on the telephone for 15 minutes, holding the phone with her right hand to her right ear and cocking her head against her shoulder to help hold it there. The report concluded: "Thus, although Ms. Woessner demonstrated the physical tolerances for competitive employment and only lost 5% productivity to unscheduled breaks and an early departure, the concern is her increased intake of medication, increase of reported discomfort, reported difficulties performing different tasks, 'irritability' and reported 'little patience by the time I get home.'"
Dr. Strait, the AME, examined petitioner on July 6, 2005. She complained of aching and burning pain in her neck, radiating into her face, upper back, and right arm. She also complained of headaches, and numbness, tingling, and weakness in her arm. His examination of her neck revealed normal spinal alignment, no muscle spasm or atrophy, some tenderness, but full range of motion. The examination of the right arm was essentially normal, although petitioner complained of a mild decrease in sensation in the upper arm. Dr. Strait doubted that the measured grip strength represented her true grip strength, "since she has no muscular atrophy and normal neurological evaluation." Dr. Strait's diagnostic impression was discogenic neck and upper back and upper extremity pain. Objectively, she had multilevel degenerative disc disease with disc protrusions. Dr. Strait opined petitioner's headaches, neck pain, upper back and right upper arm pain were related to her cervical spine condition. He noted there was no evidence of radiculopathy on neurodiagnostic studies. He concluded petitioner had a permanent disability caused by her work, and she should not return to the records clerk position. For workers' compensation purposes, he gave her an 8 percent impairment rating, based on the degenerative disc disease with disc protrusions and the severity of her pain.
After Dr. Strait obtained job descriptions of the account clerk I/II and fiscal support technician positions, he rendered a supplemental report, dated November 22, 2005, in which he concluded: "It would be my opinion that the applicant could work in either of these jobs if she is not required to perform constant or frequent cervical motion." The report of department head regarding application for disability retirement, dated February 17, 2006, indicates petitioner was qualified to perform the duties of the fiscal support technician position "per AME."
Dr. Strait reevaluated petitioner on July 2, 2007. He again diagnosed discogenic neck and upper extremity pain, but declined to express an opinion regarding temporary disability or work restrictions without a new MRI and a job description. The MRI dated August 17, 2007, concluded "[o]verall appearance of the cervical spine appears similar to the previous exam dated 7/21/2003."
Dr. Greenspan, an orthopedic surgeon, examined petitioner in 2007, but stated it was too soon to render an opinion regarding whether petitioner would be able to return to her previous occupation. A functional capacity evaluation conducted in February 2008 concluded petitioner "demonstrated the ability to tolerate work activities at the sedentary work level," which "is characterized by exerting up to 10 pounds rarely/occasionally, a negligible amount of force frequently, and no constant lifting." The report stated petitioner's safe functional abilities did not match the records clerk job, but expressed no opinion regarding the fiscal support technician position. It recommended a number of accommodations and restrictions, including using a slant board for writing and a book stand for reading, and limiting writing to three to five minute periods and repetitive fine motor activities to two or three minutes.
Thus, there was conflicting evidence regarding petitioner's condition and her ability to perform the duties of the fiscal support technician position. In its decision, KCERA expressed doubt about the veracity of petitioner's subjective claims of pain and incapacity. It concluded the objective evidence—the physical examinations, the results of diagnostic tests, and the findings of medical specialists—did not support the level of pain and incapacity petitioner reported. Petitioner's evidence was not "'uncontradicted and unimpeached,'" or "'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (In re I.W., supra, 180 Cal.App.4th at p. 1528.) We must "resolve all conflicts and indulge all reasonable inferences in favor of the prevailing party." Doing so, we cannot say the evidence presented compels a finding in favor of petitioner as a matter of law. (Alberda, supra, 214 Cal.App.4th at p. 436.) Petitioner has not met her burden of establishing error in this appeal.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
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HILL, P. J.
WE CONCUR: __________
LEVY, J.
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CORNELL, J.