Judge: Kenneth J. Medel, Case: 37-2022-00031175-CU-MC-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Misc Complaints - Other Demurrer / Motion to Strike 37-2022-00031175-CU-MC-CTL HOOT VS SAN DIEGO CITY EMPLOYEES RETIREMENT SYSTEM [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 04/21/2023

Defendant San Diego City Employees' Retirement System's (SDCERS) Demurrer to Plaintiff Mary Kathleen Hoot's First Amended Complaint (FAC) is SUSTAINED WITHOUT LEAVE TO AMEND as the first and second causes of action and OVERRULED as to the third cause of action.

Preliminary Matters In its moving papers, Defendant requests judicial notice of: (1) San Diego Municipal Code Section 24.0601 (Exh. 1); and (2) San Diego City Employees' Retirement System Board Rules No. 10.40 (Exh.

2). (ROA 35.) The request is GRANTED under EC § 452(b) and (c).

Plaintiff requests judicial notice of: (1) SDCERS' letter to Ms. Hoot dated September 30, 2021 (Exh. 1); (2) Letter from Michael A. Conger to Johnny Tran, SDCERS' General Counsel, dated November 16, 2021, with e-mail attachments (Exh. 2); (3) Letter from Michael A. Conger to Cynthia Queen, SDCERS' Member Services Director, dated December 24, 2021, with attachments (Exh. 3); (4) SDCERS' Appeal of Staff Decisions Policy (Exh. 4); (5) SDCERS letter to Mr. Conger dated March 25, 2022 (Exh. 5); (6) SDCERS' Board Rules, Division 10, Rules 10.00 to 10.160 (Exh. 6); and (7) SDCERS' letter and Notice of Decision dated May 13, 2022 (Exh. 7). (ROA 47.) Plaintiff also requests judicial notice of the fact that in the United States, women have longer life expectancies than men. (Ibid.) Plaintiff's request is DENIED as to the last request based on relevance. The request is GRANTED as to the remaining items pursuant to EC § 452(b) and (c).

Defendant's reply request for judicial notice is DENIED. Defendant's reply request is duplicative of Plaintiff's request for judicial notice of Exhibits 2 and 3, which the Court has granted. Additionally, the copy of the December 24, 2021 letter submitted by Defendant is missing an enclosure. Given this ruling, the Court need not consider Plaintiff's objections to the declaration of Marcelle Voorhies Rossman.

Discussion Plaintiff's initial Complaint alleged causes of action for 1) failure to discharge mandatory duty under Government Code § 815.6, 2) negligence, and 3) petition for writ of mandate pursuant to CCP § 1094.5.

(ROA 1.) On March 3, 2023, the Court sustained Defendant's demurrer with leave to amend as to the first and second causes of action and overruled the demurrer as to the third cause of action. (ROA 37.) The Court Calendar No.: Event ID:  TENTATIVE RULINGS

2965655  41 CASE NUMBER: CASE TITLE:  HOOT VS SAN DIEGO CITY EMPLOYEES RETIREMENT  37-2022-00031175-CU-MC-CTL incorporates the March 3, 2023 Order into this ruling. (Ibid.) On March 20, 2023, Plaintiff filed the operative FAC alleging the same causes of action as the original Complaint. (ROA 26.) Defendant demurs to the entire FAC. (ROA 32.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer is treated 'as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] [Courts] also consider matters which may be judicially noticed.' (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC, supra, 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) A complaint should provide defendants sufficient notice of the cause of action stated against them so that they are able to prepare their defense. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.) A general demurrer will lie where the complaint 'has included allegations that clearly disclose some defense or bar to recovery.' [Citation.] Thus, a demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense. [Citation.]' (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182-183.) Leave to amend should be granted where there is reasonable possibility the defect(s) in the complaint may be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d 311, 318.) Plaintiff bears the burden to show the pleadings may be cured. (Ibid.) Here, the FAC largely includes the same allegations as the initial Complaint. The FAC alleges Plaintiff is the widow of Richard L. Hoot, a retired San Diego Police Officer, who passed away on August 8, 2021.

(FAC, ¶ 7.) In February 2013, Defendant provided a letter to the Hoots regarding Mr. Hoot's retirement benefits. (Id. at ¶¶ 8-9.) Defendant knew the February 13, 2013 letter was for the purpose of obtaining a mortgage on the Hoots' home. (Id. at ¶ 9.) Based on the letter, the Hoots increased the amount of the mortgage on their home. (Id. at ¶ 10.) The Hoots also ceased purchasing life insurance for Mr. Hoot to provide for Plaintiff in the event Mr. Hoot predeceased Plaintiff. (Id. at ¶ 13.) The Hoots incurred additional financial obligations based on the letter. (Id.) Defendant's February 13, 2013, letter to the Hoots was incorrect because Plaintiff did not qualify for a surviving spouse benefit pursuant to San Diego Municipal Code section 24.0601, and the Hoots were unaware of the error. (Id. at ¶¶ 11-12.) Defendant did not correct its mistake until September 30, 2021, after Mr. Hoot passed. (Id. at ¶ 14.) Plaintiff, then age 74, could no longer purchase life insurance on her husband after he died or protect herself from the loss of income caused by the loss of her husband's pension. (Id. at ¶ 15.) The FAC adds the following factual allegations: - ¶ 16: Allegations Plaintiff timely complied with the Government Claims Act; - ¶ 18: Allegations Defendant's mandatory duty to provide its members or beneficiaries of the pension trust fund with accurate information was required by Civil Code §§ 1709 and 1710; Probate Code § 16002; 18 U.S.C. §§ 20, 27, 215, 225, 1001, 1010, 1014, 1031, 1344, and 1349; the Federal Fraud Enforcement and Recovery Act of 2009; 31 U.S.C. § 3729; and Penal Code § 532f; and - ¶ 25: Allegations Defendant had a duty to provide accurate information per ¶ 18.

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2965655  41 CASE NUMBER: CASE TITLE:  HOOT VS SAN DIEGO CITY EMPLOYEES RETIREMENT  37-2022-00031175-CU-MC-CTL First Cause of Action – Failure to Discharge Mandatory Duty (Gov. Code § 815.6) 'Except as otherwise provided by statute ... [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. (Gov. § 815, subd. (a).) 'The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.' (Id., subd. (b).) 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. (Gov. Code, § 815.6.) 'Government Code section 815.6 has three elements that must be satisfied to impose public entity liability: (1) a mandatory duty was imposed on the public entity by an enactment; (2) the enactment was designed to protect against the particular kind of injury allegedly suffered; and (3) the breach of the mandatory statutory duty proximately caused the injury.' (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 179.) 'Enactment' means a constitutional provision, statute, charter provision, ordinance or regulation. (Gov.

Code, § 810.6.) The enactment cannot 'simply set forth a prohibition or a right, as opposed to an affirmative duty on the part of a government agency to perform some act.' (Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1239.) Instead, a court may find a mandatory duty 'only if the enactment 'affirmatively imposes the duty and provides implementing guidelines.' ' (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898.) The enactment at issue 'must require, rather than merely authorize or permit, that a particular action be taken or not taken.' (Ibid., emphasis original.) Whether a statute is intended to impose a mandatory duty is a question of statutory interpretation for the courts, and the use of the term 'shall' does not necessarily create a mandatory duty. (Guzman, supra, 46 Cal.4th at p. 898.) Moreover, 'to impose a mandatory duty on a public entity, 'the mandatory nature of the duty must be phrased in explicit and forceful language,' and the statute 'must impose a duty on the specific public entity sought to be held liable.' ' (Id. at 894; see also De Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 260 [statute is not mandatory 'when the statutorily prescribed act involves debatable issues over whether the steps taken by the entity adequately fulfilled its obligation'].) Here, Defendant argues the sixteen enactments cited in the FAC do not set out obligatory, clearly defined acts that Defendant must take; do not provide implementing guidelines; and/or instead provide for discretionary acts. Plaintiff does not provide contrary authority supporting the cited enactments support her § 815.6. Instead, Plaintiff broadly contends Defendant has a duty not to commit criminal acts or subject its beneficiaries to criminal liability. However, Plaintiff has not provided any basis to show any of the sixteen enactments cited in the FAC impose a mandatory duty actionable under § 815.6. Instead, it appears none of these enactments provide for an affirmative or mandatory duty to give accurate information with the requisite forceful and explicit language. (See Guzman, supra, 46 Cal.4th at p. 894; De Villers, supra, 156 Cal.App.4th at p. 257.) Nor has Plaintiff shown these enactments affirmatively impose such a duty or provide implementing guidelines on that duty.

Plaintiff argues the FAC can be amended to include other provisions of SDCERS' rules that require Defendant to provide accurate information to its members. However, Plaintiff does not specifically identify these additional rules or address them. Nor does Plaintiff explain how Defendant's Mission Statement and the duties of the Member Services Director constitute enactments for the purposes of § 815.6. As a result, Plaintiff has not met her burden to show how the FAC can be amended to plead a valid cause of action.

Additionally, the Court's March 3, 2023 Minute Order stated that this cause of action 'is not legally barred under CCP [ sic] § 818.8.' (ROA 37, at p. 4.) The Court has revisited this issue and determined the immunity under Government Code § 818.8 applies.

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2965655  41 CASE NUMBER: CASE TITLE:  HOOT VS SAN DIEGO CITY EMPLOYEES RETIREMENT  37-2022-00031175-CU-MC-CTL In light of this ruling, the Court does not need to consider Defendant's arguments regarding the claims presentation requirements of the Government Claims Act.

Therefore, the demurrer to the first cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Second Cause of Action – Negligence To state a cause of action for negligence against a government agency on a theory of direct liability requires 'that the injured party identify a 'specific statute declaring [the entity] to be liable, or at least creating some specific duty of care' by the agency in favor of the injured party. [Citations.]' (De Villers, supra, 156 Cal.App.4th at p. 247.) For the reasons sustaining the demurrer to the first cause of action, the demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Third Cause of Action – Petition for Writ of Mandate (CCP § 1094.5) 'Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury.' (CCP § 1094.5(a).) The Court previously overruled Defendant's demurrer to this cause of action. (ROA 37, at pp. 5-6.) Where a demurrer has been sustained as to some causes of action and overruled as to others, unless there are new facts alleged which warrant reconsideration under CCP § 1008, a defendant may not demur again on the same grounds to those portions of the amended pleading to which the prior demurrer was overruled. (Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96-97.) As none of the new facts concern or warrant reconsideration of this cause of action under CCP § 1008, the Court declines to reconsider the arguments previously raised by Defendant in its prior demurrer.

Additionally, a demurrer does not lie to a part of a cause of action. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) Defendant argues this claim fails because a writ of mandamus cannot compel require Defendant to perform a discretionary act, the decision to send Plaintiff's appeal to a hearing before an administrative law judge, in a particular manner. However, this claim as pled seeks a writ of mandate to apply equitable estoppel and/or to order the Defendant to send the appeal to an ALJ. (See FAC at ¶¶ 29-35 and Prayer at 7.) Thus, even assuming arguendo Defendant cannot be compelled to send the appeal to an administrative law judge, the demurrer would not completely dispose of this cause of action.

Therefore, the demurrer to the third cause of action is OVERRULED.

Conclusion The minute order will be the final ruling of the Court. Defendant is ordered to serve written notice of ruling on all parties.

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