Judge: David A. Rosen, Case: 22GDCV00083, Date: 2022-08-26 Tentative Ruling
Case Number: 22GDCV00083 Hearing Date: August 26, 2022 Dept: E
Hearing Date: 08/26/2022 – 10am
Case No. 22GDCV00083
Trial Date: UNSET
Case Name: GLENN GARDNER v. GLENDALE COMMUNITY COLLEGE
TENTATIVE
RULING ON DEMURRER
Moving Party:
Defendant, Glendale Community College District (“Defendant” or “District”)
Responding
Party: Plaintiff, Glenn Gardner
[Oppo
and Reply submitted.]
RELIEF REQUESTED
Defendant
demurs to Plaintiff’s on the
following grounds:
1. Plaintiffs cause of action for negligence fails as a matter
of law because common-law causes of action cannot be brought against a public
entity.
2. Plaintiffs cause of action for negligence fails as a matter
of law because Plaintiff fails to plead facts sufficient to constitute a cause
of action against Defendant.
3. Plaintiffs asserted cause of action for failure to perform
mandatory duty fails as a matter of law because it is a disguised common-law
cause of action which cannot be brought against a public entity.
4. Plaintiffs asserted cause of action for failure to perform a
mandatory duty fails as a matter of law because it fails to plead facts
sufficient to constitute a cause of action against Defendant.
5. Plaintiffs cause of action for lost opportunity damages
fails because Plaintiff fails to plead facts sufficient to constitute a cause
of action against Defendant.
MEET AND CONFER
A
party filing a demurrer “shall meet and confer in person or by telephone with
the party who filed the pleading that is subject to demurrer for the purpose of
determining whether an agreement can be reached that would resolve the
objections to be raised in the demurrer.”
(Code Civ. Proc., §430.41, subd. (a).)
“The parties shall meet and confer at least five days before the date
the responsive pleading is due. If the parties are not able to meet and confer
at least five days prior to the date the responsive pleading is due, the
demurring party shall be granted an automatic 30-day extension of time within
which to file a responsive pleading, by filing and serving, on or before the
date on which a demurrer would be due, a declaration stating under penalty of
perjury that a good faith attempt to meet and confer was made and explaining
the reasons why the parties could not meet and confer.” (Code Civ. Proc., §430.41, subd. (a)(2).)
Failure to sufficiently meet and confer is not grounds to overrule or sustain a
demurrer. (Id., §430.41(a)(4).)
The
parties met and conferred but were unable to reach an agreement. (Decl. Youril
¶4.)
BACKGROUND
Defendant is a local government agency
employing categories of employees who are enrolled members in the California
State Teachers’ Retirement System (“CalSTRS”). Plaintiff alleges that Defendant
owed a duty to Plaintiff to accurately report compensation data to CalSTRS and
to correct errors and discrepancies in employee compensation reporting within a
reasonable time when requested by CalSTRS. Plaintiff alleges that Defendant
failed to perform its duty and Plaintiff was deprived of access to the information
he needed to determine what the effect on his retirement benefits would be if
he accepted the Supplemental Retirement Plan (“SRP”) that was offered to him by
PARS. Plaintiff alleges that the lost opportunity to participate in the SRP
caused Gardner financial harm estimated as $81,000.00.
DEMURRER LEGAL STANDARD
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th
740, 747.) When considering demurrers,
courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of
Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or conclusions
of fact or law ….” (Berkley v. Dowds
(2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face
of the pleading or via proper judicial notice.
(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters; therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing
is whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn, supra, 147 Cal.App.4th at
747.)
The general rule is that the plaintiff need only
allege ultimate facts, not evidentiary facts.
(Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a
matter of pleading … is that his complaint set forth the essential facts of the
case with reasonable precision and with sufficient particularity to acquaint
the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
On
demurrer, a trial court has an independent duty to “determine whether or not
the … complaint alleges facts sufficient to state a cause of action under any
legal theory.” (Das v. Bank of
America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of
causes of action, where some valid claim is alleged but “must dispose of an entire
cause of action to be sustained.” (Poizner
v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally, it is an
abuse of discretion to sustain a demurrer without leave to amend if there is
any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d
335, 349.)
ANALYSIS
“It is settled that public entities
such as County are not liable in tort except as provided by statute. [Citation
omitted.] One such statute is Government Code section 815.6, which provides:
“Where a public entity is under a mandatory duty imposed by an enactment that
is designed to protect against the risk of a particular kind of injury, the
public entity is liable for an injury of that kind proximately caused by its
failure to discharge the duty unless the public entity establishes that it
exercised reasonable diligence to discharge the duty.” (Guzman v. County of
Monterey (2009) 178 Cal.App.4th 983, 990-991.)
“There are
three elements to a cause of action under Government Code section 815.6. First,
the enactment at issue must be obligatory, not merely discretionary or
permissive in its directions to the public entity. [Citation omitted.] Typically,
an enactment imposing a mandatory duty also includes specific rules and
guidelines for implementation. Second, the duty imposed must be designed to
protect against the particular kind of injury the plaintiff suffered. ‘We
examine the ‘language, function and apparent purpose’ of each cited enactment
‘to determine if any or each creates a mandatory duty designed to protect
against’ the injury allegedly suffered by [the] plaintiff.’ The requirement is
not satisfied if the enactment merely confers some incidental benefit upon the
class to which the plaintiff belongs. The third and final requirement is that
the breach of the duty must have been a proximate cause of the plaintiff's
injury.” (Guzman v. County of Monterey (2009) 178 Cal.App.4th 983,
990-991.)
DISCUSSION
Defendant argues that Plaintiff is
barred from bringing this negligence claim because there is no statute
providing for Plaintiff to sue under. However, as indicated in the Guzman case
cited above, Plaintiff could potentially bring a negligence claim under 815.6
if Plaintiff sufficiently alleged all three elements of a cause of action under
Government Code 815.6.
Although the
SAC does not explicitly indicate that Plaintiff is bringing its negligence
claim under 815.6 for Defendant allegedly breaching a duty under California
Education Code §26302(a) and California Education Code §2245(a), Plaintiff’s
Opposition makes it clear that Plaintiff plans to hold Defendant liable under
California Government Code §815.6. Under this theory, the Court would have
likely granted leave to amend to properly plead negligence under the theory of
815.6. However, as explained below, Plaintiff cannot cure the defect in the SAC
with respect to the statute of limitations.
STATUTE
OF LIMIATIONS
To sustain a demurrer based on a
statute of limitations defense, the running of the statute must appear “clearly
and affirmatively” from the face of the complaint; it is not enough that the
complaint may be time-barred. (Committee for Green Foothills v. Santa
Clara County Board of Supervisors (2010) 48 Cal.4ths 32, 42, citing and
quoting Geneva Towers Ltd. Partnership v. City of San Francisco (2003)
29 Cal.4th 769, 781:
“We conclude
the demurrer in the present case should have been overruled. “A demurrer based
on a statute of limitations will not lie where the action may be, but is not
necessarily, barred. [Citation.] In order for the bar of the statute of
limitations to be raised by demurrer, the defect must clearly and affirmatively
appear on the face of the complaint; it is not enough that the complaint shows
that the action may be barred. [Citation.]” (Marshall v. Gibson, Dunn &
Crutcher (1995) 37 Cal.App.4th 1397, 1403, 44 Cal.Rptr.2d 339.).
Here, this
claim is clearly and affirmatively barred based on the face of the complaint.
“A claim
relating to a cause of action for death or for injury to person or to personal
property or growing crops shall be presented as provided in Article 2
(commencing with Section 915) not later than six months after the accrual
of the cause of action. A claim relating to any other cause of action shall be
presented as provided in Article 2 (commencing with Section 915) not later
than one year after the accrual of the cause of action.” (Gov. Code 911.2)
“For the
purpose of computing the time limits prescribed by Sections 911.2, 911.4,
945.6, and 946.6, the date of the accrual of a cause of action to which a claim
relates is the date upon which the cause of action would be deemed to have
accrued within the meaning of the statute of limitations which would be
applicable thereto if there were no requirement that a claim be presented to
and be acted upon by the public entity before an action could be commenced
thereon...” (Gov. Code §901.)
A
negligence-based cause of action generally does not accrue until the plaintiff
(1) sustains damage and (2) discovers, or should discover, [knew or in the
exercise of reasonable diligence should have known of] the negligence.” (See,
e.g., Fox v. Ethicon Endo- Surgery Inc. (2005) 35 Cal. 4th 797,803; Hydro-Mill
Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115
Cal.App.4th 1145, 1161.)
Once the
issue of the statute of limitations is raised by the pleadings, our Supreme
Court requires a plaintiff to plead facts concerning delayed discovery: “In
order to rely on the discovery rule for delayed accrual of a cause of action, a
plaintiff whose complaint shows on its face that his claim would be barred
without the benefit of the discovery rule must specifically plead facts to show
(1) the time and manner of discovery, and (2) the inability to have made
earlier discovery despite reasonable diligence. In assessing the sufficiency of
the allegations of delayed discovery, the court places the burden on the
plaintiff to show diligence; conclusory allegations will not withstand
demurrer.” (Fox, supra, 35 Cal. 4th at 808.)
In the
5-20-2022 Minute Order, this Court stated, “Since it is not clear from the FAC
when and how Plaintiff first discovered that Defendant had allegedly breached
its alleged statutory duties to accurately report Plaintiff’s compensation and
to timely respond to CalSTRS’ inquiries about such discrepancies, the Court
will construe this argument on the statute of limitations as a general
demurrer.” (5-20-2022 Min. Order p.8.)
However,
based on the SAC, it is clear and affirmative that Plaintiff sustained some damage
and discovered Defendant’s alleged breach of its mandatory duties well in
advance of six months from the time Plaintiff submitted the governmental tort
claim filing on December 8, 2021. This can be seen in paragraphs 18 and 24-29
of the SAC.
On May 21, 2022, CalSTRS sent Gardner a No Resolution
Letter, acknowledging that Gardner was first notified on December 18, 2018,
that “a request was sent to Glendale Community College District to correct
reporting discrepancies that were discovered on your CalSTRS account. The
letter notes that Defendant was notified by CalSTRS of the need to make
corrections on February 13, 2019, and thereafter was notified again on June 17,
2019, and went on to receive multiple additional notifications from CalSTRS.
(SAC ¶18.)
As
indicated in Plaintiff’s own pleading, Plaintiff appears to have known about the
breach for lack of reporting, and possible damage caused to him as a result, at
earliest, on December 18, 2018.
Further,
as seen in paragraphs 24-29 of the SAC:
On or about July 22, 2020, Gardner received an invitation
from Public Agency Retirement Services (“PARS”) to participate in the
Supplementary Retirement Plan (“SRP”), a retirement incentive program that
provides eligible California Public Employees with enhanced retirement benefits
in return for an early resignation. (SAC ¶24.)
Gardner desired to participate in the SRP offered by PARS,
but desired to know the effect the SRP would have on the total value of his
retirement benefits before enrolling in the SRP. (Id.
at ¶25.)
Gardner requested information from CalSTRS regarding the effect
that the SRP would have on the total value of his retirement benefits. (Id.
at ¶26.)
CalSTRS responded to Gardner by indicating that, two years
after CalSTRS had begun requesting Defendant to correct discrepancies in
Defendant’s reporting of Gardner’s compensation, the discrepancies still had
not been corrected by Defendant. (Id. at ¶27.)
Gardner then renewed his requests to Defendant to complete
the process of correcting the discrepancies in Defendant’s reporting of his
compensation. However, it took Defendant an additional year, until July 2021,
to correct the discrepancies. (Id. at ¶28.)
Due to Defendant’s multi-year failure to meet its statutory
obligation to correct discrepancies in its reporting to CalSTRS of Gardner’s
compensation, Gardner was unable to determine the effect that accepting the SRP
would have on the total value of his retirement benefits. As a result, Gardner
was not in a position to enroll in the offered SRP prior to the enrollment
deadline of September 2, 2020. (Id. at ¶29.)
At latest,
based on Plaintiff’s own pleading, Plaintiff knew in July of 2020 when CalSTRS
responded to Gardner by indicating that two years after CalSTRS had begun
requesting Defendant to correct discrepancies in Defendant’s reporting of
Gardner’s compensation, the discrepancies still had not been corrected by
Defendant. (SAC ¶24-27.) Thus, Plaintiff
pleads in the SAC that he knew of Defendant’s alleged breach of mandatory
duties, and that he had been damaged in some manner thereby, in July 2020.
Here, Plaintiff
alleged the Government Tort Claim was filed on December 8, 2021, which is well beyond
six months from July 2020 and December 18, 2018.
Plaintiff
argues that he did not sustain damage until he could have been able to fully calculate
his damages, but this is unpersuasive. As
noted above, the case law does not require that Plaintiff had sustained, or was
aware of, all damages sustained by virtue of Defendant’s alleged breach
for the cause of action to accrue.
Instead, the statute of limitations, here, Government Code 911.2, begins
to run once Plaintiff is reasonably aware of Defendant’s breach and that
Plaintiff has been damaged thereby. These issues are determined here by
Plaintiff’s own pleading.
TENTATIVE
RULING: Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.
REQUEST FOR JUDICIAL NOTICE
Defendant
requests judicial notice of the following three documents:
1. Public
Agencies Retirement System's 2019-2020 Supplementary Retirement Plan Document
for Glendale Community College District for Faculty, Educational
Administrators, Classified Employees, Classified Administrators, Confidential
Employees, Version 4, dated July 8, 2020 ("SRP"), a true and correct
copy of which is attached as "Exhibit A."
2. Plaintiffs
Government Tort Claim Act filing dated December 8, 2021. A true and correct
copy of the Government Tort Claim Act filing described in this paragraph, with
redactions to remove personal information, is attached as "Exhibit
B." (Evid. Code, § 452(c), (g)- (h); Gong v. City of Rosemead (2014) 226
Cal.App.4th 363, 369 ["The court may take judicial notice of the filing
and contents of a government claim"].)
3. Reporter's
Certified Transcription of the Oral Argument on May 20,222, in Gardner v.
Glendale Community College District, Case No. 22GDCV00083. A copy of the
transcription is attached hereto as "Exhibit C."
The court may take judicial notice of “official acts
of the legislative, executive, and judicial departments of the United States
and of any state of the United States,” “[r]ecords of (1) any court of this
state or (2) any court of record of the United States or of any state of the
United States,” and “[f]acts and propositions that are not reasonably subject
to dispute and are capable of immediate and accurate determination by resort to
sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c),
(d), and (h).)
Evidence Code Section 452 provides that judicial
notice may be taken for facts and propositions that are “not reasonably subject
to dispute and are capable of immediate and accurate determination by resort to
sources of reasonably indisputable accuracy.” (Cal. Evid. Code § 452(h).)
Further, “a court may take judicial notice of [recorded documents and] the fact
of a document's recordation, the date the document was recorded and executed,
the parties to the transaction reflected in a recorded document, and the
document's legally operative language, assuming there is no genuine dispute
regarding the document's authenticity. From this, the court may deduce and rely
upon the legal effect of the recorded document, when that effect is clear from
its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743,
745-755.)
Taking judicial notice of a document is not the same
as accepting the truth of its contents or accepting a particular interpretation
of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148
Cal.App.4th 97, 113-14 (citations and internal quotations omitted).)
TENTATIVE RULING ON JUDICAL NOTICE – The Court grants
Defendant’s Request for Judicial Notice of exhibits B and C. The Court exercises its discretion to deny
Defendant’s Request for Judicial Notice of Exhibit A.