The opinion
LUCAS, J., Concurring and Dissenting.
I concur with the majority opinion in three respects: (1) Plaintiff need not exhaust his administrative remedies; (2) the 60-day statute of limitations in section R runs afoul of Code of Civil Procedure section 1094.6; and (3) our standard of review is the substantial evidence test.
I disagree with the majority’s conclusion that plaintiff’s withdrawal of his pension contribution did not constitute a knowing and intelligent waiver of his right to receive disability benefits. Under the substantial evidence test, the trial judge’s decision must be affirmed if any substantial evidence, no matter how slight, supports the judgment. “[T]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury.” (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 [ 45 P.2d 183 ].) Here, the conclusion that plaintiff’s withdrawal was an informed one was amply supported by the handwritten notation on defendant’s second letter.
The majority does not suggest that defendant’s evidence was inadmissible or irrelevant to whether plaintiff’s waiver was knowing. Rather, its characterization of that evidence, coupled with plaintiff’s declaration and an inference from plaintiff’s actions, cause the majority to conclude that no substantial evidence supports the trial court’s decision. (See ante, pp. 388, 391.) Plaintiff’s declaration states that he was unaware of his right to disability benefits and that, had he known of those rights, he would not have withdrawn from the retirement association. The majority infers from plaintiff’s withdrawal that it was not an informed decision, because it was not in his economic best interest. (Ante, p. 391.) Neither the declaration nor inference is, in my view, sufficient to reverse the trial judge.
Plaintiff’s declaration must be disregarded on appeal because a reviewing court “ Hooks only at the evidence supporting the successful party, and
*396 disregards the contrary showing. ’ [Citation.]” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 [ 101 Cal.Rptr. 568 , 496 P.2d 480 ], italics in original.) “Of course, all of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact.” (Estate of Teel (1944) 25 Cal.2d 520, 527 [ 154 P.2d 384 ].) Likewise, the majority’s inference cannot be drawn, because we must give defendant “the benefit of every reasonable inference. ” (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 245, p. 4236, italics in original.)
Both the declaration and inference could have been rejected as not being sufficiently credible, as well. “All issues of credibility are . . . within the province of the trier of fact. [Citation.]” ( Nestle, supra, 6 Cal.3d 920, 925 .) The trial judge could have disbelieved plaintiff’s declaration in light of intrinsic facts. The declaration was prepared, for purposes of this litigation, several years after plaintiff’s withdrawal. The declaration bears on a matter peculiarly within the knowledge of plaintiff—his state of mind when he withdrew— and not otherwise subject to verification. While none of these characteristics renders the declaration inherently untrustworthy, they do go to its weight and suggest why a factfinder might discount its credibility.
The trial judge might also have disbelieved the declaration in light of extrinsic facts. Plaintiff had access to professional advice, being represented by counsel at the time he filed his withdrawal. He also had ample opportunity to consider his options before filing his withdrawal. Both forms sent to plaintiff in connection with his withdrawal clearly stated, in printed language, that plaintiff had five years in which to make his election; he was not pressured by defendant to make his choice.
Finally, of course, the trial judge could have disbelieved plaintiff’s declaration in the face of the handwritten notation from defendant which stated “Dear Mr. Hittle—if you have filed or intend to file for disability retirement you should not withdraw the above contribution.” Despite the majority opinion’s characterization of this notation as “inherently ambiguous and uninformative” (ante, p. 392), and “obscure” (ante, p. 393) the trial judge could have found the notation a clear, accurate instruction, specifically addressed to plaintiff, advising him not to withdraw his contribution if he contemplated disability retirement. In sum, the evidence easily supports the conclusion that plaintiff had notice that he might have been entitled to disability retirement benefits and hence that he withdrew voluntarily.
The majority opinion argues that plaintiff’s withdrawal was not a knowing one, because it was against his economic best interest. Empirically, the premise that no one knowingly acts against his economic best interest is *397 false. People do so frequently and for a variety of reasons. The error of the majority’s argument can be readily seen by assuming that plaintiff had had absolutely every datum of information bearing on his options and their consequences. If he withdrew his contribution, the majority’s analysis would still lead to the conclusion that that withdrawal was not knowing and hence involuntary.
As an alternative ground for finding in plaintiff’s favor, the majority concludes that defendant breached its fiduciary duty to inform its members, including plaintiff, of their retirement options. In my view, we should not consider this untimely argument. The fiduciary duty argument was first raised in plaintiff’s petition for rehearing in the Court of Appeal, evidently as a result of his changing counsel after that court’s decision. The Court of Appeal apparently invoked the rule that a plaintiff may not raise an issue for the first time on rehearing, a rule we have followed since at least 1915. (See Prince v. Hill (1915) 170 Cal. 192, 195 [ 149 P. 578 ]; County of Imperial v. McDougal (1977) 19 Cal.3d 505, 513 [ 138 Cal.Rptr. 472 , 564 P.2d 14 ].) This rule is closely related to the rule that a party may not, except in rare instances, change his theory from that upon which the case was tried. Underlying these rules is the idea that it is fundamentally unfair to the court and opposing litigants to present a new argument after having the opportunity to present any and all theories and evidence.
These rules are relaxed where the new argument relates to the court’s jurisdiction or where the record contains all relevant evidence that could bear on the new theory. In such instances, considering the new theory does no prejudice to opposing party or the court. Here, though, no such considerations support ignoring these rules. Absolutely no evidence was submitted, pro or contra, on the nature and extent of defendant’s fiduciary obligation to plaintiff and whether any such obligation was met. For example, the record does not disclose whether defendant may have given plaintiff a handbook of rules or bylaws when he became a member of the retirement association. All we have is evidence bearing on whether plaintiff’s choice was an informed one. By relying on this theory, we have greatly prejudiced defendant.
Accordingly, for the foregoing reasons, I would affirm the trial court judgment.