Judge: Olivia Rosales, Case: 21NWCV00412, Date: 2022-08-18 Tentative Ruling

Case Number: 21NWCV00412    Hearing Date: August 18, 2022    Dept: SEC

MELVIN v. CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM

CASE NO.:  21NWCV00412  

HEARING:  08/18/22

JUDGE:  OLIVIA ROSALES

#3

TENTATIVE ORDER

Defendant CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM’S Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED without leave to amend.

Moving Party to give notice.

This action was filed on June 23, 2021. On February 4, 2022, the operative First Amended Complaint (“FAC”) was filed. The FAC alleges the following facts: “Plaintiff on or around 2019, made an inquiry into his benefits package our of CalPERS home office at Orange County in anticipation of his potential retirement. [¶] Plaintiff was shocked to learn that a warrant was issued on November 11, 2001, for $20,176.09 out of his account with the defendant without verbal or written authorization from Plaintiff as required by the Defendant’s requirement. [¶] Plaintiff found out that another withdrawal was made in 2002 with purported pay out to the Plaintiff for $589.71.00, which was bogus and not in compliance with the Defendant’s rules of withdrawal.” (FAC ¶¶6-7.) “Under the Government Tort Claims Act that requires the filing of a claim to initiate a lawsuit against a public agency for money or damages… a letter and notice of claim were sent as required and confirmed on April 9, 2021.” (FAC ¶11.)

Plaintiff’s FAC asserts the following causes of action: (1) General Negligence; (2) Intentional Infliction of Emotional Distress; (3) Conversion; and (4) Declaratory Relief.

Government Tort Claims Act:

The Government Claims Act requires the filing of a claim as a condition precedent to initiating a lawsuit against a public agency for money or damages. (Gov. Code §905.2(b)(3).) “[A]ll claims for money or damages against the state” must be presented to the Department of General Services. (Gov. Code §905.2(b). CalPERS is a unit of the Government Operations Agency, and as such, is a state agency. (Gov. Code §20002.)

Here, ¶11 alleges that Plaintiff presented a tort claim against CalPERS. However, as indicated by the Court in its prior ruling to the Demurrer to the initial Complaint, a claim must be timely made. Plaintiff alleges that he learned of the subject withdrawals in 2019. (FAC ¶¶6-7.) Therefore, any claim against CalPERS based on those alleged withdrawals needed to have been filed within six months of discovery—by at least June 30, 2020. (See Gov. Code §20160.) Plaintiff alleges that a tort claim was untimely filed on April 9, 2021.  (FAC ¶11.)

Exhaustion of Administrative Remedies:

Exhaustion of an administrative remedy where available is a condition precedent to obtaining judicial relief and a jurisdictional prerequisite to resort to the courts, not a matter of judicial discretion. (Pan Pacific Properties, Inc. v. County of Santa Cruz (1978) 81 Cal.App.3d 244, 251.) Appeals of CalPERS’ decisions and determinations are subject to CalPERS’ administrative process. (2 CCR §§555, 555.1.)

Plaintiff alleges that CalPERS refunded contributions from his account without his authorization. However, Plaintiff does not allege that he exhausted his administrative remedies.

Immunity from Common Law Torts

It is undisputed that CalPERS is a public entity. Public liability is statutory only. (Gov. Code §815(a).) A public entity is not liable for any injury except as provided by statute. (Hilts v. Solano County (1968) 265 Cal.App.2d 161, 171.) Common law or public policy considerations may not be used to create a nonstatutory basis of liability against a public entity in contravention of Gov. Code §815. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 942.) Plaintiff’s causes of action are not grounded in proper statutory authority and fail as a matter of law because these causes of action cannot be asserted against a public entity.

For the foregoing reasons, the demurrer to the entire FAC is SUSTAINED without leave to amend.