Krolikowski v. San Diego City Employees' Retirement System

Filed 5/23/18; Certified for Publication 6/14/18 (order attached)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

VINCENT KROLIKOWSKI, D071119

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2015-00006255-
CU-OE-CTL)
SAN DIEGO CITY EMPLOYEES'
RETIREMENT SYSTEM,

Defendant and Respondent.

CONNIE VAN PUTTEN,

Plaintiff and Appellant,
(Super. Ct. No. 37-2015-00021007-
v. CU-OE-CTL)

SAN DIEGO CITY EMPLOYEES'
RETIREMENT SYSTEM,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Joel M.

Pressman, Judge. Affirmed.
 Law Office of Michael A. Conger and Michael Conger for Plaintiffs and

Appellants.

Noonan Lance Boyer & Banach, David J. Noonan and Genevieve M. Ruch; The

Law Office of Steven W. Sanchez and Steven W. Sanchez for Defendant and

Respondent.

Appellants Vincent Krolikowski and Connie Van Putten (collectively appellants)

are former employees of the City of San Diego (the City) and members of the San Diego

City Employees' Retirement System (SDCERS) who receive monthly pension payments

from SDCERS, the administrator of the City's pension plan. Krolikowski and Van Putten

separately filed lawsuits against SDCERS after SDCERS discovered an error in

calculating their monthly pension benefits and took action to recoup the past

overpayments. In their now-consolidated lawsuits, Krolikowski and Van Putten assert

causes of action for conversion, breach of fiduciary duty, writ of mandate (Code Civ.

Proc., § 1085) and declaratory relief, all of which challenge SDCERS's ability to

implement a recoupment procedure to collect the overpayments from Krolikowski and

Van Putten. After a bench trial, the trial court entered judgment in favor of SDCERS.

Krolikowski and Van Putten contend that the trial court erred in (1) sustaining

SDCERS's demurrer to the conversion and breach of fiduciary duty causes of action; and

(2) finding in favor of SDCERS after conducting a bench trial on the remaining causes of

action for writ of mandate and declaratory relief. As we will explain, we conclude that

appellants' arguments are without merit, and we accordingly affirm the judgment.

2
 I.

FACTUAL AND PROCEDURAL BACKGROUND

Van Putten worked for the City's police department from 1965 to 1988, having

reached the rank of police lieutenant. Van Putten then worked for the Union City police

department, and deferred her retirement from the City until she retired from the Union

City police department in December 2000, at which time she began receiving monthly

pension payments from SDCERS.1

1 Our Supreme Court has summarized the role of SDCERS in administering the
City's pension system: "San Diego is a charter city. It maintains a pension plan for its
employees, the San Diego City Employees' Retirement System (SDCERS). (San Diego
City Charter, art. IX, § 141; San Diego Mun. Code, § 24.0101.) SDCERS is a defined
benefit plan in which benefits are based upon salary, length of service, and age. (San
Diego Mun. Code, §§ 24.0402-24.0405.) The plan is funded by contributions from both
the City and its employees. (San Diego City Charter, art. IX, § 143; San Diego Mun.
Code, § 24.0402.) . . . [¶] The pension fund is overseen by a 13-member board of
administration (SDCERS Board or Board). (San Diego City Charter, art. IX, § 144.)
Although established by the City, the Board is a separate entity. (Ibid.; Bianchi v. City of
San Diego (1989) 214 Cal.App.3d 563, 571.) The SDCERS Board is a fiduciary charged
with administering the City's pension fund in a fashion that preserves its long-term
solvency; it must ensure that through actuarially sound contribution rates and prudent
investment, principal is conserved, income is generated, and the fund is able to meet its
ongoing disbursement obligations. (Cal. Const., art. XVI, § 17; San Diego City Charter,
art. IX, § 144.) Consistent with that central mission, the SDCERS Board has a range of
ancillary obligations, including but not limited to providing for actuarial services,
determining member eligibility for and ensuring receipt of benefits, and minimizing
employer contributions. (Cal. Const., art. XVI, § 17, subds. (b), (e); San Diego City
Charter, art. IX, §§ 142, 144; San Diego Mun. Code, § 24.0901.) To carry out these
duties, the Board is granted the power to make such rules and regulations as it deems
necessary. (San Diego City Charter, art. IX, § 144; San Diego Mun. Code, §§ 24.0401,
24.0901; see generally Bianchi, at p. 571; Grimm v. City of San Diego (1979) 94
Cal.App.3d 33, 39-40.)" (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1063-1064
(Lexin).)
3
 Krolikowski worked for the City's police department from 1972 to 1990, having

reached the rank of detective. Krolikowski then worked for the County of San Diego as

an investigator for the District Attorney's office, and deferred his retirement from the City

until he retired from the County of San Diego in 2006, at which time he began receiving

monthly pension payments from SDCERS.

As Krolikowski and Van Putten testified, before they retired they both consulted

with SDCERS about the amount of the pension benefit they would receive from their

employment with the City, and they used that information in deciding when to retire.

In 2013, SDCERS performed an audit of the pension benefits that it was paying to

Krolikowski and Van Putten, and it discovered that it made an error in calculating the

monthly payments that Krolikowski and Van Putten had been receiving since they

retired. With respect to both Van Putten and Krolikowski, SDCERS had used the wrong

retirement factor, in that it did not use the retirement factor that corresponded with the

date that Van Putten and Krolikowski left their employment with the City. As to Van

Putten, SDCERS also discovered that it had used the wrong annuity factor.

SDCERS determined that, without accrued interest, the overpayments were

$18,739.88 for Krolikowski and $17,049.48 for Van Putten.2 If SDCERS had correctly

calculated the pension benefits when Krolikowski and Van Putten retired, Van Putten

2 We note that when SDCERS first contacted Krolikowski and Van Putten about the
errors, SDCERS presented them with higher figures for the amount of the overpayments.
Those figures, however, were mistakenly based on erroneous assumptions about
Krolikowski and Van Putten's participation in the social security program. SDCERS
subsequently corrected those errors, which resulted in the overpayment figures we have
set forth herein.
4
would have received approximately $295 per month less at the time she started to collect

her pension in 2001, and Krolikowski would have received $191.74 less per month at the

time he started to collect his pension in 2006.

In 2013, after discovering the errors, SDCERS contacted Van Putten and

Krolikowski to explain that they would be required to pay back the overpayments.3

SDCERS also explained that, going forward, Van Putten's and Krolikowski's monthly

pension benefit would be reduced to reflect the correct calculation of benefits. SDCERS

gave Van Putten and Krolikowski the option of making the repayment of the past

overpayments by either (1) having a specific amount deducted from their monthly

pension payments over time, while incurring interest on the unpaid balance; or

(2) making a lump sum payment to SDCERS, which would stop the accrual of interest on

the amount owed. SDCERS also explained to Van Putten and Krolikowski that they had

the right to file an administrative appeal to dispute the fact that an overpayment occurred

or the amount of the overpayment.

Krolikowski and Van Putten both pursued unsuccessful administrative appeals of

SDCERS's decision to recoup the overpayments from them. An administrative appeal of

SDCERS's decision to recoup overpayments consists of several steps: (1) the filing of a

written appeal with SDCERS's member services director; (2) a review by SDCERS's

Chief Executive Officer (CEO); (3) an appearance before SDCERS's Business and

3 When interest on the overpayments was included, SDCERS sought recoupment of
$19,109.06 from Van Putten, as of July 25, 2014. As to Krolikowski, when interest was
included SDCERS sought recoupment of $24,785.20 as of January 2014.
5
Governance Committee at a regularly scheduled meeting; and (4) a final decision by

SDCERS's Board based on a recommendation of the Business and Governance

Committee.4 As the final step of the appeal process, SDCERS's Board of Administration

denied Krolikowski's appeal on November 14, 2014, and denied Van Putten's appeal on

May 8, 2015.

After the appeal process was over, to stop the accrual of further interest Van

Putten made a lump sum payment to SDCERS in May 2015, under protest, in the amount

of $21,512.54. In March 2015, SDCERS began making monthly deductions from

Krolikowski's monthly pension payment in the amount of $269.25 to recoup the

overpayment.

On February 24, 2015, Krolikowski filed a complaint against SDCERS

challenging its recoupment of the overpayments of his pension benefits, and on June 22,

2015, he filed a first amended complaint. The first amended complaint contained causes

of action for (1) declaratory relief; (2) writ of mandate (Code Civ. Proc., § 1085);

(3) breach of fiduciary duty, based on both common law and "constitutional" grounds

(Cal. Const. art. XVI, § 17); and (4) conversion. The writ of mandate and declaratory

relief causes of action both presented the issue of whether "SDCERS is subject to, at

4 SDCERS's appeal policy states that the Business and Governance Committee
"may recommend referral to a hearing before an Adjudicator if the Committee deems that
appropriate." No such referral to an adjudicator for an evidentiary hearing occurred here,
and neither of the parties requested that the Business and Governance Committee make
such a referral. Indeed, as the issues presented are primarily legal, revolving around
SDCERS's authority to recoup past overpayments, it is unclear what factual disputes
could have been resolved by an adjudicator.
6
most, a three-year statute of limitations and therefore may not collect any arrears

overpayments;" and whether "SDCERS is subject to California law exempting pensions

from levy or attachment (e.g., Code Civ. Proc., §§ 695.040, 704.11, sub[d.] (b)) and

therefore may not simply take money from Krolikowski's pension." The breach of

fiduciary duty cause of action was based on SDCERS's alleged wrongful "refusal to

follow California law regarding the statute of limitations and exempting pensions from

levy or attachment." The conversion cause of action was based on the allegation that

SDCERS "intentionally and substantially interfered with Krolikowski's property by

taking possession of funds that should have been paid to Krolikowski, by preventing

Krolikowski from having access to these funds, and by refusing to return these funds to

Krolikowski after he demanded the return of these funds."

On June 23, 2015, Van Putten filed a complaint against SDCERS that contained

the same causes of action as Krolikowski's first amended complaint and asserted the same

legal theories, using largely identical language.5 Both cases were assigned to the same

trial court department.

SDCERS filed a demurrer to each of the causes of action in Krolikowski's first

amended complaint. The trial court overruled the demurrer to the declaratory relief and

writ of mandate causes of action. However, it sustained the demurrer to the breach of

5 Krolikowski's and Van Putten's complaints also alleged, as a basis for their causes
of action, that the amount of SDCERS's original pension benefit calculations at the time
of their retirement was correct. Appellants did not pursue that theory at trial, and we do
not address it here. We note also that appellants expressly do not challenge the right of
SDCERS to pay them the corrected amount of pension payments going forward. Their
appeal challenges only the recoupment of the past overpayments.
7
fiduciary duty and conversion causes of action. In explaining its ruling sustaining the

demurrer to those causes of action, the trial court stated that "SDCERS had an obligation

to comply with the law and correct errors in benefit payments. . . . The exercise of

attempting to correct an error in benefit payments cannot subject defendant to tort

liability." SDCERS also had demurred to the breach of fiduciary duty and conversion

causes of action on the ground that SDCERS was protected by immunity for tort liability

for its employees' discretionary acts. However, the trial court did not rule on that ground

for the demurrer.

Because of the similarity of the Krolikowski and Van Putten complaints, the

parties stipulated that the trial court's ruling on the demurrer to Krolikowski's complaint

"shall be applicable to" Van Putten's case, and the parties reserved all rights to appeal in

Van Putten's case as if the trial court had made the demurrer ruling in that case as well.

The trial court later granted a motion to consolidate the Krolikowski and Van

Putten cases, and it then considered cross-motions for summary judgment that were filed

in the consolidated actions.

At issue in the summary judgment motions were the remaining causes of action

for writ of mandate and declaratory relief, both of which raised the issue of (1) whether

SDCERS was subject, at most, to a three-year statute of limitations to collect any

overpayments; and (2) whether SDCERS's actions to recoup the overpayments were

prohibited because they constituted an illegal levy or attachment. Krolikowski and Van

Putten further argued in their summary judgment motions that SDCERS was barred by

the doctrines of equitable estoppel and laches from recovering the overpayments.

8
SDCERS pointed out in opposition that the doctrines of equitable estoppel and laches

were not pled in the operative complaints. However, in ruling on the summary judgment

motions, the trial court concluded that Krolikowski and Van Putten would be permitted to

pursue those issues as part of its declaratory relief and writ of mandate causes of action,

and that "the pleadings can be amended to allege these doctrines."6

The trial court denied the cross-motions for summary judgment. In its summary

judgment ruling, the trial court concluded that (1) the collection of an overpayment of

pension benefits was not a levy or attachment; and (2) SDCERS's "administrative

correction process . . . is not subject to the statute of limitations for civil court actions."

However, the court concluded that there were triable issue of material fact as to whether

the doctrines of equitable estoppel or laches applied to bar SDCERS from collecting the

overpayments.

The trial court held a bench trial on the remaining issues of whether the doctrines

of equitable estoppel and laches applied in this case to support Krolikowski and Van

Putten's contention that SDCERS may not demand recoupment of the pension benefit

overpayments made to them. At the conclusion of trial, the trial court requested that the

parties submit proposed statements of decision. The trial court adopted the proposed

statement of decision submitted by SDCERS and issued it as the trial court's decision in

6 Krolikowski and Van Putten subsequently filed amended complaints alleging in
the declaratory relief and writ of mandate causes of action that the doctrines of equitable
estoppel and laches applied to prevent SDCERS from demanding repayment from them.
9
favor of SDCERS on the remaining causes of action for writ of mandate and declaratory

relief.

In the statement of decision, the trial court set forth its findings that appellants had

not met their burden to establish that the doctrine of laches applied because they did not

establish unreasonable delay and did not establish prejudice from any delay. Similarly,

the trial court explained that the doctrine of equitable estoppel did not apply because

Krolikowski and Van Putten did not establish that SDCERS was apprised of its mistake

before 2013, and did not establish that they sustained an injury in reliance on SDCERS's

conduct. The statement of decision also reasserted the rulings made in the context of the

summary judgment motion that (1) SDCERS was not subject to the statute of limitations

for civil court actions in implementing its administrative recoupment process; and (2)

SDCERS's act of seeking recoupment for the overpayments was not subject to the

exemption against levy or attachment on a pension. The trial court thereafter entered

judgment in favor of SDCERS, and Krolikowski and Van Putten filed a notice of appeal.

II.

DISCUSSION

A. The Trial Court Did Not Err in Sustaining the Demurrer to the Breach of
Fiduciary Duty and Conversion Causes of Action

We first consider Krolikowski and Van Putten's contention that the trial court

erred in sustaining the demurrer to the two tort-based causes of action they alleged,

namely breach of fiduciary duty and conversion.

1. Standard of Review

10
 " 'On appeal from an order of dismissal after an order sustaining a demurrer, our

standard of review is de novo, i.e., we exercise our independent judgment about whether

the complaint states a cause of action as a matter of law.' " (Los Altos El Granada

Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) In reviewing the

complaint, "we must assume the truth of all facts properly pleaded by the plaintiffs, as

well as those that are judicially noticeable." (Howard Jarvis Taxpayers Assn. v. City of

La Habra (2001) 25 Cal.4th 809, 814.) We may affirm on any basis stated in

the demurrer, regardless of the ground on which the trial court based its ruling. (Carman

v. Alvord (1982) 31 Cal.3d 318, 324.)

2. The Tort-Based Causes of Action Are Barred by Government Claims Act
Immunity

As one ground for its demurrer to the causes of action for breach of fiduciary duty

and conversion, SDCERS argued that the Government Claims Act (Gov. Code, § 815 et

seq.) provided it with immunity for the acts underlying those causes of action. The trial

court sustained the demurrer on different grounds and did not reach the immunity issue.

However, SDCERS contends on appeal that we should affirm the trial court's order

sustaining the demurrer to those causes of action by concluding that it is immune from

tort liability under the Government Claims Act. As we will explain, we conclude that

SDCERS's immunity argument has merit and serves as a sound basis for affirming the

demurrer to the causes of action for breach of fiduciary duty and conversion.

a. Legal Basis for Immunity Argument

11
 Within the Government Claims Act, the statutory immunity applicable to

SDCERS in this context is set forth in Government Code section 815.2, subdivision (b),

which creates immunity for a public entity when its employees are immune from liability

for the act or omission at issue. As set forth in that provision, "[e]xcept as otherwise

provided by statute, a public entity is not liable for an injury resulting from an act or

omission of an employee of the public entity where the employee is immune from

liability." (Ibid.; see also Caldwell v. Montoya (1995) 10 Cal.4th 972, 980 (Caldwell)

[explaining that under Gov. Code, § 815.2, subd. (b) "public entities are immune where

their employees are immune, except as otherwise provided by statute"]; Masters v. San

Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 49 [to the

extent that the public pension system board had discretionary immunity, the public entity

itself was also immune].) As SDCERS points out, the breach of fiduciary duty and

conversion causes of action are based on acts by the SDCERS Board members, who are

employed by SDCERS, and thus to the extent the Board members are protected by

immunity, SDCERS is as well.

Here, the immunity provision that applies to the individual SDCERS Board

members is set forth in Government Code section 820.2. Under that provision, "[e]xcept

as otherwise provided by statute, a public employee is not liable for an injury resulting

from his act or omission where the act or omission was the result of the exercise of the

discretion vested in him, whether or not such discretion be abused." (Ibid.)

Our Supreme Court's case law has provided guidance on the type of decisions that

fall under the discretionary act immunity set forth in Government Code section 820.2.

12
Immunity under this provision "is reserved for those 'basic policy decisions [which have]

. . . been [expressly] committed to coordinate branches of government,' and as to which

judicial interference would thus be 'unseemly.' . . . Such 'areas of quasi-legislative

policy-making . . . are sufficiently sensitive' . . . to call for judicial abstention from

interference that 'might even in the first instance affect the coordinate body's decision-

making process.' " (Caldwell, supra, 10 Cal.4th at p. 981, citations omitted.) In contrast,

"there is no basis for immunizing lower-level, or 'ministerial,' decisions that merely

implement a basic policy already formulated." (Ibid.)

The application of discretionary act immunity "requires a showing that 'the

specific conduct giving rise to the suit' involved an actual exercise of discretion, i.e., a

'[conscious] balancing [of] risks and advantages . . . .' " (Caldwell, supra, 10 Cal.4th at

p. 983, citation omitted.) However, there is no requirement that the public employee's

exercise of discretion be based on "a strictly careful, thorough, formal, or correct

evaluation" because "[s]uch a standard would swallow an immunity designed to protect

against claims of carelessness, malice, bad judgment, or abuse of discretion in the

formulation of policy." (Id. at pp. 983-984.)

b. The Breach of Fiduciary Duty and Conversion Causes of Action Are
Based on Discretionary Acts by the SDCERS Board

Based on the legal standards set forth above, SDCERS has immunity under the

Government Claims Act if the breach of fiduciary duty and conversion causes of action

are based on an exercise of discretion by the SDCERS Board members.

13
 Here, as pled in the operative complaints, the breach of fiduciary duty cause of

action is based on the SDCERS Board's alleged "refusal to follow California law

regarding the statute of limitations and exempting pensions from levy or attachment."

The conversion cause of action is based on SDCERS's "refusing to return" the recouped

overpayments after appellants "demanded the return of these funds." Both of those acts

are based on the SDCERS Board's careful evaluation of the issues at the Board meetings

at which it considered Krolikowski's and Van Putten's appeals, during which it explicitly

decided that it would reject the statute of limitations and exemption arguments, and that it

would instead take steps to recoup the overpayments from Krolikowski and Van Putten.

Indeed, as shown by the transcript of the SDCERS Board meetings regarding

Krolikowski's and Van Putten's administrative appeals, the Board was grappling with a

policy-level decision in concluding that it would go forward and recoup the

overpayments. It considered, among other things, whether the law required such an

action, whether it would be fair to proceed in that manner, whether other options were

available, and whether it should proceed with the recoupment in order to set up a

litigation scenario in which the courts could give the final word on whether SDCERS was

permitted to seek recoupment for overpayments. The decision was clearly discretionary

and was not merely the carrying out of a ministerial duty. Therefore, SDCERS is

immune to tort liability for the acts underlying the causes of action for breach of fiduciary

duty and conversion under the legal standards governing the immunity created by the

Government Claims Act.

14
 c. The Tort-based Causes of Action Are Subject to Immunity Even
Though They Are Based on Provisions in the State Constitution

Krolikowski and Van Putten do not attempt to contest that, as we have discussed

above, the acts of the SDCERS Board giving rise to the breach of fiduciary duty and

conversion causes of action are the type of discretionary decisions that normally would

give rise to immunity from tort-based causes of action under the Government Claims Act.

Instead, the sole argument that appellants make to us on the immunity issue focuses on

the fact that they have pled a cause of action for breach of fiduciary duty that is based on

the constitutional fiduciary duties of the SDCERS Board, rather than on common law

fiduciary duties. Specifically, appellants argue that the immunity in Government Code

section 815.2, subdivision (b) does not bar the breach of fiduciary duty cause of action

because it arises under provisions of the California Constitution that establish the

fiduciary duties of public pension boards. They contend that Government Claims Act

immunity applies only when a tort claim is based on statutory or common law authority,

but not when it is based on a constitutional provision.7

As the basis for their claim that their breach of fiduciary duty causes of action

arise under our state's Constitution, appellants rely on article XVI, section 17 of the

California Constitution, which describes the fiduciary responsibilities of the members of

a public pension board. In part, that section provides:

7 As a matter of logic, although not expressly acknowledged by appellants, their
argument against SDCERS's immunity claim would appear to apply only to the breach of
fiduciary cause of action, not the conversion cause of action, as that cause of action is not
based on a constitutional duty.
15
 "Notwithstanding any other provisions of law or this Constitution to the
contrary, the retirement board of a public pension or retirement system shall
have plenary authority and fiduciary responsibility for investment of
moneys and administration of the system, subject to all of the following:

"(a) The retirement board of a public pension or retirement system shall
have the sole and exclusive fiduciary responsibility over the assets of the
public pension or retirement system. The retirement board shall also have
sole and exclusive responsibility to administer the system in a manner that
will assure prompt delivery of benefits and related services to the
participants and their beneficiaries. The assets of a public pension or
retirement system are trust funds and shall be held for the exclusive
purposes of providing benefits to participants in the pension or retirement
system and their beneficiaries and defraying reasonable expenses of
administering the system.

"(b) The members of the retirement board of a public pension or retirement
system shall discharge their duties with respect to the system solely in the
interest of, and for the exclusive purposes of providing benefits to,
participants and their beneficiaries, minimizing employer contributions
thereto, and defraying reasonable expenses of administering the system. A
retirement board's duty to its participants and their beneficiaries shall take
precedence over any other duty.

"(c) The members of the retirement board of a public pension or retirement
system shall discharge their duties with respect to the system with the care,
skill, prudence, and diligence under the circumstances then prevailing that a
prudent person acting in a like capacity and familiar with these matters
would use in the conduct of an enterprise of a like character and with like
aims." (Cal. Const., art. XVI, § 17.)8

In short, this provision establishes that members of a public pension board, such as

the SDCERS Board members, are fiduciaries; that they must exercise their fiduciary

8 The current version of article XVI, section 17 of the California Constitution was
put in place as a result of Proposition 162 (The California Pension Protection Act of
1992) "to 'insulate the administration of retirement systems from oversight and control by
legislative and executive authorities' . . . , and to protect retirement boards from
' " 'political meddling and intimidation.' " ' " (City of Oakland v. Oakland Police and Fire
Retirement System (2014) 224 Cal.App.4th 210, 226, fn. 8 (City of Oakland), citation
omitted.)
16
duties with the purpose, among others, of providing benefits to participants and their

beneficiaries; and that the board members' duty to pension plan participants and

beneficiaries takes precedence over any other duty. However, as relevant to the

following discussion, the plain language of the provision says nothing about creating

liability for money damages against public pension plan members in instances when such

liability would otherwise be barred by statutory governmental immunity.

Appellants rely on the doctrine of constitutional supremacy to argue that their

breach of fiduciary cause of action is not subject to Government Claims Act immunity

because it arises under the Constitution. Under that doctrine, "it is well established that

'[a] statute cannot trump the Constitution.' " (City of San Diego v. Shapiro (2014) 228

Cal.App.4th 756, 788; see also In re Marriage of Steiner and Hosseini (2004) 117

Cal.App.4th 519, 527 ["The California Constitution trumps any conflicting provision of

the Family Code."].) As stated in the case law upon which appellants rely, "It has long

been acknowledged that our state Constitution is the highest expression of the will of the

people acting in their sovereign capacity as to matters of state law. When the

Constitution speaks plainly on a particular matter, it must be given effect as the

paramount law of the state." (Playboy Enterprises, Inc. v. Superior Court (1984) 154

Cal.App.3d 14, 28.)

The doctrine of constitutional supremacy does not apply here because appellants

have not identified any conflict between the constitutional provisions and the

Government Claims Act immunity provisions. As we have explained, the constitutional

provisions we have cited above merely establish that public pension board members have

17
certain fiduciary duties to participants and beneficiaries, but those provisions do not

address whether beneficiaries and participants have the right to recover monetary

damages from pension board members who breach those duties. Therefore, no

constitutional provision is trumped when Government Claims Act immunity is applied to

bar liability for monetary damages based on the SDCERS Board members' alleged breach

of fiduciary duty.

There are instances—such as in suits for inverse condemnation—where the

Constitution specifically provides for a monetary remedy against a public entity that

trumps any Government Claims Act immunity that might otherwise apply. Indeed, the

legislative committee comments to Government Code section 815, which sets forth the

general rule of immunity for public entities, acknowledges that in some instances, such as

inverse condemnation, constitutional provisions will trump Government Claims Act

immunity.9 "This section abolishes all common law or judicially declared forms of

liability for public entities, except for such liability as may be required by the state or

federal constitution, e.g., inverse condemnation. In the absence of a constitutional

requirement, public entities may be held liable only if a statute (not including a charter

provision, ordinance or regulation) is found declaring them to be liable." (Legis. Com.

com.—Sen., 32 pt. 1 West's Ann. Gov. Code (2012 ed.) foll. § 815, p. 215, italics added.)

Here, because the constitutional provisions at issue do not expressly create a monetary

9 Regarding inverse condemnation, the California Constitution provides in part:
"Private property may be taken or damaged for a public use and only when just
compensation, ascertained by a jury unless waived, has first been paid to, or into court
for, the owner." (Cal. Const., art. I, § 19, subd. (a).)
18
remedy for breach of fiduciary duty against public pension board members, this is not a

case where the Constitution requires liability and therefore trumps the Government

Claims Act immunity provisions.

Appellants cite two cases that relied on the legislative committee comment to

Government Code section 815 in analyzing whether a constitutionally-based cause of

action was barred. Based on the legislative committee comment, Young v. County of

Marin (1987) 195 Cal.App.3d 863 (Young) stated that "it is clear that although

Government Code section 815 provides that public entities are not liable for injuries

'[e]xcept as otherwise provided by statute,' they are not immune from constitutionally

created claims." (Id. at p. 869.) Young concluded that the plaintiff could therefore state a

cause of action against a public entity for wrongful termination based on the reasonable

exercise of her First Amendment rights, regardless of the immunity for public entities

stated in Government Code section 815. (Young, at p. 871.) Similarly, Fenton v.

Groveland Community Services Dist. (1982) 135 Cal.App.3d 797 (Fenton) cited the

legislative committee comment in stating that "the Legislature has recognized that the

state Constitution may provide a cause of action independent from any statute providing

for liability." (Id. at p. 804.) Fenton concluded that Government Code section 815 did

not bar a cause of action based on the state constitution's right-to-vote provision.

(Fenton, at p. 805.)

Fenton and Young are not dispositive of the issue presented here. Those cases

concerned different constitutional provisions, and thus their conclusion as to

whether those provisions, with the specific language at issue, required liability against a

19
public entity, does not resolve the issue of whether article XVI, section 17 of the

California Constitution requires liability for any breach of fiduciary duty that it describes.

As we have explained, article XVI, section 17 contains no suggestion that a cause of

action for money damages is required to be available against public pension board

members.

Turning to the language of article XVI, section 17 of the California Constitution,

appellants contend that provision expressly excepts breach of fiduciary duty claims from

Government Claims Act immunity, because it includes the phrase "notwithstanding any

other provisions of law or the Constitution to the contrary." We reject this argument

because it takes the phrase out of context. The full phrase provides that

"[n]otwithstanding any other provisions of law or this Constitution to the contrary, the

retirement board of a public pension or retirement system shall have plenary authority

and fiduciary responsibility for investment of moneys and administration of the system,

subject to all of the following . . . ." (Cal. Const., art. XVI, § 17.) Nothing in this phrase

communicates an intent to create a constitutional monetary damages claim against public

pension board members or to abrogate Government Claims Act immunity. Instead, the

phrase is directed at the scope of a public pension board's authority to invest and manage

pension system funds.

As further support for their argument that Government Claims Act immunity does

not apply here, appellants briefly refer to a statement by our Supreme Court in Lexin,

supra, 47 Cal.4th 1050. Lexin was an appeal in a criminal proceeding against several

former members of the SDCERS Board, in which they were charged with violating state

20
conflict of interest statutes (Gov. Code, § 1090 et seq.). (Lexin, at p. 1062.) Lexin

concluded that the criminal informations should be set aside as to most of the board

members, but made a comment at the end of the opinion, in dicta, explaining that even

though the board members could not be criminally prosecuted, other avenues existed to

address the type of misconduct alleged. "In closing, we note that, the applicability of

[Government Code] section 1090 aside, a wealth of other legal remedies exists to ensure

municipalities and retirement boards do not abuse the public trust. Both groups are

subject to actions for declaratory relief or mandamus challenging their decisions . . . , as

the City and SDCERS Board were sued here. Retirement board trustees are fiduciaries

(Cal. Const., art. XVI, § 17) and as such are subject to suit for breach of fiduciary duty

when their decisions fall short of the standard the law demands. We express no opinion

as to whether the Lexin defendants breached their fiduciary duties here, nor whether they

might otherwise have been subject to civil liability for their actions." (Lexin, at p. 1102,

citations omitted.) Lexin does not mention the issue of immunity, and there is no

indication that our Supreme Court even considered the issue when stating that the

SDCERS Board members were subject to suit. Indeed, in stating that it was expressing

no opinion on "whether the Lexin defendants . . . might otherwise have been subject to

civil liability for their actions" (ibid.), our Supreme Court strongly implied that it

had not considered whether immunity might apply to the specific conduct at issue. Thus,

Lexin does not advance appellants' argument that a constitutionally-based breach of

fiduciary duty claim is not subject to Government Claims Act immunity.

21
 Finally, we note that our decision is consistent with the only other published

authority to consider the issue of whether Government Claims Act immunity applies to

constitutionally-based breach of fiduciary claims against public pension plan members.

In Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, beneficiaries of a

county employees' pension trust brought suit against the public pension association,

alleging that the association breached its fiduciary duty to them by failing to file a lawsuit

against actuaries whose negligence allegedly caused the pension trust to be underfunded.

Nasrawi concluded that the breach of fiduciary duty claims were barred by Government

Claims Act immunity (Gov. Code, §§ 815, 815.2, 820.2) because the association's board

members exercised their discretion in deciding whether to file suit against the actuaries.

(Nasrawi, at pp. 342-343.) As do Krolikowski and Van Putten here, the plaintiffs in

Nasrawi argued that "because they allege a constitutionally based duty, [the court] should

not consider the question of immunity," and contended that "the immunity question" was

"answered by the mere fact that the Constitution is the source of the duties at issue." (Id.

at p. 341.) Nasrawi rejected the argument, explaining that "[u]ndoubtedly, the board

owes fiduciary duties under [California Constitution, article XVI,] section 17, but

whether it is immune from alleged violations of those duties is a separate question."

(Nasrawi, at p. 341.) Consistent with our conclusion here, Nasrawi explained that

plaintiffs had not identified any authority that supported their contention that "public

entity employees are liable for injuries caused by their discretionary acts or omissions

that violate constitutionally imposed duties." (Id. at p. 342, italics added.)

22
 In sum, we conclude that based on the Government Claims Act, SDCERS is

immune from the tort-based causes of action for breach of fiduciary duty and conversion

asserted by Krolikowski and Van Putten, despite the fact that the breach of fiduciary

cause of action was based on duties set forth in the California Constitution. Accordingly,

the trial court did not err in sustaining SDCERS's demurrer to those causes of action.

B. No Legal Doctrine Identified by Krolikowski and Van Putten Prevents SDCERS
From Requiring Recoupment of the Overpayments

We next turn to the several legal issues that the trial court resolved in the course of

rejecting Krolikowski's and Van Putten's causes of action for writ of mandate and

declaratory relief, both of which sought an order establishing that SDCERS was not

legally authorized to take unilateral action to recoup the overpayments of pension

benefits that it made to Krolikowski and Van Putten.

1. The Statute of Limitations for Causes of Action Based on Mistake Does
Not Bar SDCERS From Requiring Recoupment of the Pension
Overpayments

Appellants' first argument is that the three-year statute of limitations applicable to

causes of action based on mistake in Code of Civil Procedure section 338, subdivision (d)

applies to SDCERS's recoupment of the overpayments from them and thus bars

23
recoupment.10 According to appellants, even though SDCERS sought recoupment

through its own administrative process rather than by filing a lawsuit, it should be barred

from seeking recoupment by the statute of limitations as if the recoupment were sought

through a lawsuit. The trial court rejected that contention, concluding that SDCERS's

administrative process for seeking a recoupment was not controlled by the statute of

limitations applicable to a lawsuit filed in court. As we will explain, we agree with the

trial court's analysis.

As a first step in their argument, appellants contend that SDCERS has no legal

authority to recoup overpayments, in that the City has not expressly enacted a law stating

that SDCERS may take action to seek recoupment. Appellants argue that in the absence

of any express authority, SDCERS is required to file a lawsuit, and that accordingly, we

should apply the statute of limitations here as if a lawsuit had been filed by SDCERS.

In arguing that SDCERS was not authorized to seek recoupment through an

administrative process rather than through a lawsuit, SDCERS relies on the statement in

City of San Diego v. San Diego City Employees' Retirement System (2010) 186

10 Code of Civil Procedure section 338, subdivision (d) sets forth a three-year statute
of limitations for "[a]n action for relief on the ground of fraud or mistake." That
provision further states that "[t]he cause of action in that case is not deemed to have
accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or
mistake." (Code Civ. Proc., § 338, subd. (d).) It is not clear from appellants' pleadings or
briefing what they are contending the impact of the statute of limitation would be in this
case, if we were to determine that it applies. Specifically, it is not clear whether
appellants are claiming that (1) the three-year statute of limitations period had already
expired by the time SDCERS began the recoupment process, so that all recoupment is
barred; or (2) that SDCERS may only reach back to recoup three years of overpayments
from the time it discovered the error. As we will conclude, neither contention would
have merit, as the statute of limitations does not apply.
24
Cal.App.4th 69, 78 (City of San Diego) that "while SDCERS had exclusive authority to

administer plan assets, it did not have plenary authority to evade the law." Appellants

contend that SDCERS is evading the law by seeking recoupment through an

administrative process rather than by filing a lawsuit because no express enactment by

the City gives SDCERS recoupment authority. Appellants point out that with respect to

certain other pension systems, the Legislature has given the plan sponsors the express

authority to obtain recoupment within a certain time frame,11 but the City did not do so

in the portion of the San Diego Municipal Code governing the operations of SDCERS.

We reject the argument. Nothing in the City's laws establishing the scope of

SDCERS's authority to administer the City's pension system prevents SDCERS from

seeking recoupment of overpayments through an administrative process. Moreover,

SDCERS generally has discretion to administer benefits to its members in a manner that

it determines is in the best interest of the pension system and its members. "[P]ublic

employee retirement system boards operate under a constitutional grant of plenary

authority which grants to them 'sole and exclusive fiduciary responsibility over the assets

of the public pension or retirement system.' (Cal. Const., art. XVI, § 17, subd. (a) (article

XVI, section 17(a)).) . . . Similarly, the City's charter gives the board 'exclusive control

of the administration and investment of such fund or funds as may be established.' (City

11 As appellants point out, the statutes governing CalPERS, California State
Teachers' Retirement System, and certain county pension systems, give those entities the
right to collect overpayments, limited to a three-year timeframe from the date of
payment. (Gov. Code, §§ 20160, 20164, subd. (b)(1)); Ed. Code, §§ 22008, subd. (b),
24617; Gov. Code, §§ 31539, subd. (c), 31540, subd (b)(1).)
25
Charter, art. IX, § 144.)" (City of San Diego, supra, 186 Cal.App.4th at pp. 78-79.) The

City's municipal code states that SDCERS "may modify benefits for service . . . and is the

sole judge of the conditions under which persons may receive benefits from the system."

(San Diego Mun. Code, § 24.0901.) As important here, although the City gives SDCERS

wide authority to administer the pension system, SDCERS may not afford benefits that

exceed the amounts authorized by the City in the City's ordinances governing pension

benefits. "The granting of retirement benefits is a legislative action within the exclusive

jurisdiction of the City. (City Charter, art. IX, § 141.) . . . [¶] It is not within SDCERS's

authority to expand pension benefits beyond those afforded by the authorizing legislation.

This is because the granting of retirement benefits is a power resting exclusively with the

City. The scope of the board's power as to benefits is limited to administering the

benefits set by the City." (City of San Diego, supra, 186 Cal.App.4th at pp. 79-80.)

Because SDCERS is not authorized to have made the overpayments by paying out an

amount of benefits in excess of the amounts authorized by the City, its action in

recouping those overpayments is consistent with the scope of its authority as granted by

the City, rather than inconsistent as appellants contend. Accordingly, SDCERS did not

exceed the scope of the authority conferred upon it by the City by seeking recoupment of

the overpayment through an administrative process rather than by filing a lawsuit.

Our decision is consistent with City of Oakland, supra, 224 Cal.App.4th 210,

which considered the extent of a retirement system board's discretion in deciding whether

26
to recover overpayments it had made to its members.12 Focusing on the general grants

of authority in the California constitution and the city's charter, City of Oakland

concluded that "[s]ince the Charter does not contain any express provisions regarding the

collection of improper payments from retirees, any such overpayments must be analyzed

under these general grants of Board authority."13 (Id. at p. 244.) The court concluded

that "[g]iven this statutory backdrop—where the Board's decisionmaking must prioritize

the rights of retirees while making complex decisions impacting multiple variables—we

believe that the Board has discretion to decide whether, how and to what extent any

overpayments made to . . . retirees should be repayable." (Ibid; see also Foster v.

Pension Board of City of Alameda (1937) 23 Cal.App.2d 550, 555 [rejecting a writ of

mandate brought by pension member of a city pension system who was overpaid pension

benefits, and holding that the pension board could dock the member's future payments

recoup the overpayments].)

Case law establishes that when, as here, recoupment is obtained through an

administrative process, rather than through a lawsuit filed in court, the statute of

limitations does not apply. (Little Co. of Mary Hosp. v. Belshe (1997) 53 Cal.App.4th

325, 329; Robert F. Kennedy Medical Center v. Department of Health Services (1998) 61

12 City of Oakland's discussion of the board's authority was set forth in the course of
considering the argument that equitable estoppel did not bar recoupment of overpayments
made to members in that recoupment would enlarge the statutory power of the board.
(City of Oakland, supra, 224 Cal.App.4th at p. 243.)

13 Oakland's city charter contained similar general grants of authority to the
retirement system as we have cited above with respect to the City and SDCERS.
27
Cal.App.4th 1357.) Both cases involved writs of mandate filed by hospitals challenging

the California Department of Health Services's decision to recoup the overpayment of

funds by the Medi-Cal program. Under Welfare and Institutions Code section 14177, the

department may recoup such overpayments by offsetting future payments to the hospital

rather than by filing a court action to recover the overpayments. (Robert F. Kennedy

Medical Center, at p. 1361 [explaining offset procedure].) Both courts concluded that

various three-year and four-year statutes of limitations set forth in the Code of Civil

Procedure did not apply to bar the recoupment because " '[s]tatutes of limitations found in

the Code of Civil Procedure . . . do not apply to administrative actions.' " (Ibid., quoting

Little Co. of Mary Hosp..)14 Witkin summarizes the principle relied on in those cases,

stating that "the general and special statutes of limitation referring to actions and special

proceedings are applicable only to judicial proceedings; they do not apply to

administrative proceedings." (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 430,

p. 547.) Here, because SDCERS did not file a lawsuit to recoup the overpayments, but

14 Appellants rely on the recent decisions in Yuba City Unified School District v.
State Teachers' Retirement System (2017) 18 Cal.App.5th 648 and Baxter v. State
Teachers' Retirement System (2017) 18 Cal.App.5th 340 (Baxter) to argue that "the
statute of limitations applies to public pension systems, like SDCERS." We disagree, as
Yuba City and Baxter are inapposite. Yuba City and Baxter both concerned challenges to
the State Teacher's Retirement System's decision to recoup overpayments of pension
benefits under Government Code section 22008, which permits such recoupment only for
three years from "the discovery of the incorrect payment." (Ed. Code, § 22008,
subd. (c).) Here, in contrast, no statutory authority applicable to SDCERS creates any
time limitations on SDCERS's ability to recoup overpayments. As such, Baxter and Yuba
City do not establish that a public pension system such as SDCERS is subject to any
limitations period for recoupment in the absence of any specific statutory time limitation
for recoupment.
28
instead pursued recoupment through its own internal administrative process, it is not

subject to a statute of limitations period set forth in the Code of Civil Procedure.15

Appellants argue that case law discussing administrative processes of recoupment

do not apply here because SDCERS did not provide an adequate administrative process

to appellants, in that it "did not provide the appellants with a bona fide administrative

hearing." According to appellants, the rules allowed their attorney to speak for only three

minutes at the Business and Governance Committee and at the SDCERS Board hearings,

and no hearing before an adjudicator was made available to them. In short, they contend

that because they were not afforded "the type of administrative hearing contemplated

15 Appellants rely on County of Marin Assn. of Firefighters v. Marin County
Employees Retirement Assn. (1994) 30 Cal.App.4th 1638 to argue that the statute of
limitations applies to an administrative process to recoup overpayments of pension
benefits. However, that case arose in a different posture than this action, and not in the
context of an administrative process to recoup overpayments, and thus is not persuasive.
In County of Marin an employee association successfully filed a lawsuit to obtain a
higher benefit payment retroactively by requiring the retirement association to include
holiday pay in the pension benefit calculation. As part of the litigation, the retirement
association contended that because it was required to retroactively pay higher pension
benefits, it was entitled to recover contributions from the member in arrears to fund the
higher benefits. County of Marin concluded that in the context of the lawsuit, the
retirement association was barred by the statute of limitations from collecting
contributions in arrears. The arrears issue was first raised by the retirement association in
the context of litigation, and thus County of Marin did not address the issue presented
here, namely whether an administrative process to recover overpayments is controlled by
the statute of limitations. (See City of Oakland v. Public Employees' Retirement
System (2002) 95 Cal.App.4th 29, 49 [explaining that County of Marin should not be
misapplied to support the application of the statute of limitations to an administrative
reclassification proceeding because "County of Marin was discussing a claim made in a
civil action"].) Because County of Marin did not consider or discuss whether it was
proper to apply the statute of limitations to an administrative recoupment process as
opposed to a civil litigation proceeding, we find it to be inapposite to the issue presented
here.
29
under [Code of Civil Procedure section] 1094.5," SDCERS "did not have an

administrative process such that the 'administrative process exception' to the statute of

limitations would apply." We reject the argument. Appellants have identified no case

law stating that a certain type of administrative process must be provided to avoid the

application of the statute of limitations set forth in the Code of Civil Procedure. The

proper focus in not on the nature of the administrative process, but rather on the fact that

SDCERS's recoupment decision was made through an internal agency procedure that did

not involve SDCERS filing a recoupment lawsuit in court.16 In the absence of any

lawsuit, the statute of limitations set forth in Code of Civil Procedure section 338,

subdivision (d) does not apply.

Further, even if the statute of limitations set forth in Code of Civil Procedure

section 338, subdivision (d) applied here, the undisputed facts presented at trial and in

connection with the summary judgment motions show that SDCERS took action against

Krolikowski and Van Putten to recover the overpayments within the time period allowed

by the statute of limitations.

Code of Civil Procedure section 338, subdivision (d) states that a cause of action

"for relief on the ground of fraud or mistake" is "not deemed to have accrued until the

discovery, by the aggrieved party . . . of the facts constituting the fraud or mistake."

16 We note that, as we have explained, SDCERS has an express written procedure for
evaluating appeals of benefit determinations, and SDCERS followed its established
process in both Krolikowski's and Van Putten's cases. SDCERS's procedures give it the
discretion to refer the dispute to an adjudicator, but it did not elect to do so here, and
neither Krolikowski nor Van Putten requested that SDCERS exercise its discretion to
make a referral to an adjudicator.
30
(Code Civ. Proc., § 338, subd. (d).) "Although the statute does not expressly provide that

the claim will accrue based upon either actual or inquiry notice of the claimant,

California courts have long construed it in such a fashion." (Baxter, supra, 18

Cal.App.5th at p. 359.) As our Supreme Court has long held, under Code of Civil

Procedure section 338, subdivision (d), a "plaintiff must affirmatively excuse his [or her]

failure to discover the fraud within three years after it took place, by establishing facts

showing that he [or she] was not negligent in failing to make the discovery sooner and

that he [or she] had no actual or presumptive knowledge of facts sufficient to put him [or

her] on inquiry." (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437 (Hobart).)

When inquiry notice applies, "if [a party] became aware of facts which would make a

reasonably prudent person suspicious, [the party] had a duty to investigate further, and

[is] charged with knowledge of matters which would have been revealed by such an

investigation." (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 875.)

Here, no evidence in the record supports a finding that SDCERS became aware of

facts that should have reasonably made it suspicious that appellants' pension benefits had

been incorrectly calculated prior to the date that it conducted an audit and discovered the

error. The undisputed evidence further shows that SDCERS took action within months of

discovering the errors by notifying appellants that it would require recoupment.

Therefore, SDCERS instituted the administrative process to recoup the overpayments to

31
appellants long before the expiration of the three-year statute of limitations in Code of

Civil Procedure section 338, subdivision (d).17

Appellants contend that the statute of limitations should start running from the

date that SDCERS made the mistaken calculations of the pension benefits because

SDCERS always had available the information with which it could correctly determine

the pension benefits, and SDCERS was therefore negligent in not discovering the errors

more promptly. We reject this argument because it is based on a flawed understanding of

the law governing delayed discovery of a cause of action for mistake or fraud under Code

of Civil Procedure section 338, subdivision (d). As our Supreme Court has explained, "In

many cases it has been said that means of knowledge are equivalent to knowledge.

[Citations.] This is true, however, only where there is a duty to inquire, as where plaintiff

is aware of facts which would make a reasonably prudent person suspicious. . . . [¶] It

follows that plaintiff is not barred because the means of discovery were available at an

earlier date provided he has shown that he was not put on inquiry by any circumstances

known to him or his agents at any time prior to the commencement of the three-year

period." (Hobart, supra, 26 Cal.2d at pp. 438-439.) " 'Where no duty is imposed by law

upon a person to make inquiry, and where under the circumstances "a prudent man"

17 Appellants contend that the trial court's statement of decision improperly placed
the burden on them to prove that SDCERS should have discovered its error sooner rather
than placing the burden on SDCERS to show that it was not on inquiry notice more than
three years prior to discovering the mistake. We reject appellants' argument because the
portion of the statement of decision to which they refer concerns the trial court's analysis
of the laches issue. "The party asserting laches bears the burden of production and proof
on each element of the defense." (Highland Springs Conference and Training Center v.
City of Banning (2016) 244 Cal.App.4th 267, 282.)
32
would not be put upon inquiry, the mere fact that means of knowledge are open to a

plaintiff, and he has not availed himself of them, does not debar him from relief when

thereafter he shall make actual discovery. The circumstances must be such that the

inquiry becomes a duty, and the failure to make it a negligent omission.' " (Id. at p. 438.)

Thus, without some evidence that SDCERS was aware of facts that should have made it

suspicious that appellants' pension benefits were erroneously calculated, the mere fact

that SDCERS had all of the information available to conduct a correct calculation does

not cause the limitations period to begin to accrue.

2. The Exemption from Levy and Attachment for Benefits Under Public
Retirement System Does Not Bar SDCERS from Recouping the
Overpayments

Under Code of Civil Procedure section 704.110, subdivision (b), with certain

exceptions that are not relevant here, "[a]ll amounts held, controlled, or in process of

distribution by a public entity derived from contributions by the public entity or by an

officer or employee of the public entity for public retirement benefit purposes, and all

rights and benefits accrued or accruing to any person under a public retirement system,

are exempt" from all procedures for enforcement of a money judgment. Further, Code of

Civil Procedure section 695.040 provides that "[p]roperty that is not subject to

enforcement of a money judgment may not be levied upon or in any other manner applied

to the satisfaction of a money judgment." Similarly, property exempt from enforcement

of a money judgment is also exempt from prejudgment attachment. (Code Civ. Proc.,

§ 487.020.) Based on these provisions, a pension benefit from a public entity such as

33
SDCERS may not be levied upon or made subject to attachment to satisfy a money

judgment.

According to appellants, the provisions creating an exemption from levy and

attachment for their pension benefits also prevents SDCERS from recouping its

overpayment of pension benefits because the recoupment process is equivalent to a levy

or attachment. The trial court rejected this theory in ruling on the summary judgment

motions, explaining that "recouping the overpayment is not a levy or attachment as

SDCERS is not executing on or enforcing a money judgment."

We agree with the trial court's reasoning. Appellants cite no authority that would

support their position that the exemption against levy and attachment applies here.

SDCERS does not have a money judgment against Krolikowski or Van Putten regarding

the overpayment of pension benefits. Accordingly, in taking action to recoup those

overpayments, SDCERS is not levying upon or attaching any funds to satisfy a money

judgment, and SDCERS is therefore not barred from recoupment by the provisions in the

Code of Civil Procedure preventing levy and attachment of benefits accrued under a

public retirement system. (Cf. Atchley v. City of Fresno (1984) 151 Cal.App.3d 635,

646-647 [in deducting amounts from the plaintiffs' pension benefits based on their

outside income, the city was not undertaking an "execution" on their pension benefits, as

a writ of execution is the process of "authorizing the seizure and appropriation of the

property of a defendant for the satisfaction of a money judgment against him"].)

In the absence of any authority supporting their position, appellants make a policy

argument. They contend that we would be ignoring "the policies embodied in the[]

34
Legislative enactments" prohibiting levy and attachment of public pension benefits if we

were to allow SDCERS to recoup the overpayments. According to appellants, "SDCERS

should have no greater rights than any other creditor." We are not persuaded. While the

Legislature undoubtedly had sound policy reasons for exempting public pension benefits

from levy and attachment by a judgment creditor, so as to "allow[ ] the debtor to retain

all or part of it to protect himself and his family" despite a money judgment (Kilker v.

Stillman (2015) 233 Cal.App.4th 320, 329), that is not the situation presented here. In

this case it is the public retirement system itself, rather than a judgment creditor, that is

seeking to recoup the overpayment of funds relating to appellants' pension benefits.

Those overpayments are amounts that appellants should have not been paid as pension

benefits in the first place. In short, the policies behind the exemption do not apply here

because SDCERS is not a judgment creditor; it is the entity with the authority to ensure

that appellants have been paid the correct amount of pension benefits and to take action

to make corrections.

3. The Trial Court Properly Concluded That the Doctrine of Equitable
Estoppel Does Not Apply Here

In its statement of decision, the trial court found that appellants did not meet their

burden to establish that SDCERS was equitably estopped to recoup the overpayments.

Appellants challenge the trial court's decision.

"The doctrine of equitable estoppel is founded on notions of equity and fair

dealing and provides that a person may not deny the existence of a state of facts if that

person has intentionally led others to believe a particular circumstance to be true and to

35
rely upon such belief to their detriment. . . . ' "Generally speaking, four elements must be

present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped

must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or

must so act that the party asserting the estoppel had a right to believe it was so intended;

(3) the other party must be ignorant of the true state of facts; and (4) he must rely upon

the conduct to his injury." ' . . . Where, as here, a party seeks to invoke the doctrine of

equitable estoppel against a governmental entity, an additional element applies. That is,

the government may not be bound by an equitable estoppel in the same manner as a

private party unless, 'in the considered view of a court of equity, the injustice which

would result from a failure to uphold an estoppel is of sufficient dimension to justify any

effect upon public interest or policy which would result from the raising of an estoppel.' "

(City of Oakland, supra, 224 Cal.App.4th at pp. 239-240, citations omitted.) Further, the

doctrine of equitable estoppel has been applied in cases involving a retirement system's

right to recoup the overpayment of pension benefits. (See, e.g., id. at pp. 239-248.)18

Here, appellants contend that the doctrine of equitable estoppel prevents SDCERS

from denying that appellants were entitled to the full amount of the pension benefits that

were paid to them. The trial court found against appellants based on their failure to

establish two of the four required elements of equitable estoppel. Specifically, the trial

18 Based on the specific facts before it, City of Oakland concluded that the retirement
system was estopped from recouping one type of overpayment (based on shift differential
pay treatment) but not estopped from recouping another type of overpayment (based on a
temporary reduction in the number of designated holidays). (City of Oakland, supra, 224
Cal.App.4th at pp. 239-248.)
36
court explained that based on the evidence presented at trial, appellants did not meet their

burden to establish (1) that SDCERS was "apprised of the facts" prior to 2013 when it

conducted the audits of appellants pension benefits; and (2) that appellants sustained an

injury in reliance on SDCERS's failure to earlier inform them of the error in the

calculation of their pension payments.

"The existence of an estoppel is generally a factual question. [Citation]

Therefore, we review the trial court's ruling in the light most favorable to the judgment

and determine whether it is supported by substantial evidence." (Feduniak v. California

Coastal Com. (2007) 148 Cal.App.4th 1346, 1360.)19

We first consider whether substantial evidence supports the trial court's finding

that appellants did not establish the first element of equitable estoppel, namely that

SDCERS was "apprised of the fact[]" that it had been paying appellants more pension

benefits than they were entitled to receive. (City of Oakland, supra, 224 Cal.App.4th at

p. 239.)

For the purposes of the first element of equitable estoppel, the party to be estopped

need not have actual knowledge of the true facts. Instead, it may be shown that the party

19 "[W]here estoppel is sought against the government, 'the weighing of policy
concerns' is, in part, a question of law. . . 'Whether the injustice [that] would result from a
failure to uphold an estoppel is of sufficient dimension to justify the effect of the estoppel
on the public interest must be decided by considering the matter from the point of view of
a court of equity' " (Feduniak v. California Coastal Com., supra, 148 Cal.App.4th at
p. 1360, citations omitted.) However, because the trial court did not find against
appellants on this ground, we do not reach the issue, and accordingly we have no
occasion to apply a de novo standard of review on that question of law.

37
" 'although ignorant or mistaken as to the real facts, was in such a position that he ought

to have known them, so that knowledge will be imputed to him. In such a case,

ignorance or mistake will not prevent an estoppel.' " (City of Long Beach v.

Mansell (1970) 3 Cal.3d 462, 491, fn. 28.)20 Thus, the factual question for the trial court

was whether, even though SDCERS did not know that it was making overpayments to

appellants, it was in such a position that it ought to have known.

Here, the evidence presented at trial supported a finding that prior to the audits

conducted in 2013, SDCERS was not in a position that it ought to have known that it was

making overpayments to appellants. There was no evidence presented at trial that

anything occurred prior to the audits to raise SDCERS's suspicions that there had been an

error in the original calculations or that the error was so obvious on its face that SDCERS

should have discovered it earlier. At trial, SDCERS's chief benefits officer testified that

SDCERS first discovered the errors during the 2013 audits, and no contrary evidence was

presented. Accordingly, substantial evidence supports the trial court's finding that

20 Citing Green v. MacAdam (1959) 175 Cal.App.2d 481, 487, appellants contend
that " 'negligence satisfies the element of knowledge.' " They argue that because the
miscalculation of the pension benefits was necessarily based on negligence by SDCERS,
and because SDCERS had all the necessary information to discover the error sooner had
it attempted to do so, we should conclude that SDCERS was apprised of the fact that the
benefits were incorrectly calculated. We are not persuaded. Green's statement that
" 'negligence satisfies the elements of knowledge' " is too simplistic. As we have stated,
the proper inquiry, as stated by our Supreme Court is whether a party is "in such a
position that he ought to have known" that a mistake was made, not simply whether the
party was originally negligent in making the mistake. (City of Long Beach v. Mansell,
supra, 3 Cal.3d at p. 491, fn. 28.)
38
SDCERS was not apprised of the fact that it had been making overpayments to

appellants.

Appellants cite Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567

(Crumpler) and Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297 (Driscoll) to

support their claim that the trial court erred in denying their estoppel claim. However, as

we will explain, neither case requires a different result here.

In Crumpler the city misclassified animal control officers as safety officers, which

impacted their pension benefits when the error was discovered. (Crumpler, supra, 32

Cal.App.3d at pp. 570-573.) Crumpler concluded that the city would be estopped from

seeking retroactive reclassification of the employees because "[t]he city was apprised of

the facts" in that it "knew that petitioners were being employed by the police department

as animal control officers at the time it erroneously advised them they would be entitled

to retirement benefits as local safety members." (Id. at p. 582.) Here, in contrast,

SDCERS did not have any basis for knowing that it had miscalculated appellants' pension

benefits until years later when it conducted the audits because the miscalculation was not

based on an obvious and known fact such as that the employees in Crumpler were being

employed as animal control officers.

In Driscoll, the city erroneously advised widows that they were not entitled to

pension benefits, causing them to delay in filing a claim. (Driscoll, supra, 67 Cal.2d at

pp. 300-305.) Driscoll concluded that the city was estopped from relying on the three-

year statute of limitation to deny the widows' claims to future benefit payments. (Id. at

p. 310.) In doing so, it relied on a particular rule governing the circumstances in which a

39
public entity may rely on the statute of limitations to deny a claim when public entity's

erroneous advice caused the delay. As Driscoll explained, "a city or other public agency

is not estopped from asserting the statute of limitations if under all the circumstances 'the

nature of the conduct or advice of the city is reasonable when given.' " (Id. at p. 306.)

When "the inaccurate advice or information is negligently ascertained or given, the city's

conduct may then be deemed to be unreasonable" and estoppel will arise. (Id. at p. 307.)

Although Driscoll discusses the concept of negligence while considering the issue of

equitable estoppel, that discussion is clearly in the specific context of a statute of

limitations claim made by a public entity. Here, the issue is not whether SDCERS is

estopped to rely on the statute of limitations to bar a party from seeking relief, and

Driscoll is accordingly inapposite.

In sum, we conclude that substantial evidence supports the trial court's finding that

SDCERS was not apprised of the facts as required for the first element of equitable

40
estoppel, and appellants cite no persuasive authority to convince us to the contrary. 21 As

we conclude that the trial court properly denied the equitable estoppel claim based on its

finding on the first element, we need not and do not consider the trial court's second basis

for rejecting equitable estoppel, namely that the fourth element of equitable estoppel was

not established because appellants did not sustain an injury based on SDCERS's incorrect

representation as to the amount of monthly pension benefits that they would receive.22

21 We afforded the parties the opportunity to provide supplemental briefing to
address an argument concerning the equitable estoppel cause of action that SDCERS
extensively discussed it in its trial brief but that it did not identify in its respondent's brief
as a ground for affirming the judgment. Specifically, SDCERS argued in the trial court
that, as a matter of law, an order equitably estopping SDCERS from recouping the
overpayments is not available because such an order would require it to take an action
contrary to what is required of it under law. (See, e.g., Medina v. Board of Retirement,
Los Angeles County Employees Retirement Assn. (2003) 112 Cal.App.4th 864, 870
[estoppel could not be applied to retirement board to require members to be classified as
safety members when they did not meet the applicable statutory definition]; City of
Pleasanton v. Board of Administration (2012) 211 Cal.App.4th 522, 542 [estoppel could
not be applied to require the treatment of standby pay as pensionable compensation when
the applicable statute precluded such treatment].) SDCERS indicated in response to our
request for supplemental briefing that to the extent the issue is whether SDCERS is
equitably estopped to recoup the overpayments, it does not continue to assert that
equitable estoppel is unavailable to appellants as a matter of law.

22 Because we do not discuss the trial court's finding that appellants did not sustain
an injury, we need not consider and resolve the parties' dispute as to whether appellants
have been injured in that they may not be able to recover from the Internal Revenue
Service (IRS) or the State of California the income taxes that they paid on the pension
benefits that they now have to repay to SDCERS.
41
 4. The Trial Court Properly Concluded That the Doctrine of Laches Does Not
Apply Here

We next consider appellants' challenge to the trial court's conclusion in its

statement of decision that SDCERS is not barred by the doctrine of laches from

recouping the overpayments made to Krolikowski and Van Putten.

"Laches is based on the principle that those who neglect their rights may be

barred, in equity, from obtaining relief. . . . The elements required to support a defense of

laches include unreasonable delay and either acquiescence in the matter at issue or

prejudice to the defendant resulting from the delay. . . . Generally, laches is a question of

fact, but where the relevant facts are undisputed, it may be decided as a matter of law."

(City of Oakland, supra, 224 Cal.App.4th at p. 248, citations omitted; see also Johnson v.

City of Loma Linda (2000) 24 Cal.4th 61, 67 ["Generally, a trial court's laches ruling will

be sustained on appeal if there is substantial evidence to support the ruling."].) "Under

appropriate circumstances, the defense of laches may operate as a bar to a claim by a

public administrative agency. . . if the requirements of unreasonable delay and resulting

prejudice are met." (Robert F. Kennedy Medical Center v. Belshe (1996) 13 Cal.4th 748,

760, fn. 9.) " '[L]aches is not available where it would nullify an important policy

adopted for the benefit of the public.' " (City of Oakland, at p. 248.)

" 'In cases in which no statute of limitations directly applies but there is a statute of

limitations governing an analogous action at law, the period may be borrowed as a

measure of the outer limit or reasonable delay in determining laches. . . .' The effect of

the violation of the analogous statute of limitations is to shift the burden of proof to the

42
plaintiff to establish that the delay was excusable and the defendant was not prejudiced

thereby." (Lam v. Bureau of Security & Investigative Services (1995) 34 Cal.App.4th 29,

37.)

Here, appellants argue that the analogous statute of limitations is the three-year

limitations period for causes of action based on mistake set forth in Code of Civil

Procedure section 338, subdivision (d). According to appellants, SDCERS failed to seek

recoupment within the three-year limitations period, so that the burden of proof was

shifted to SDCERS to establish that its delay in seeking recoupment was excusable and

that appellants were not prejudiced. Appellants contend that the trial court therefore

erroneously placed the burden on them to prove unreasonable delay and prejudice.

In section II.B.1, ante, we discussed and rejected appellants' contention that

SDCERS failed to seek recoupment within the three-year statute of limitations period

contained in Code of Civil Procedure section 338, subdivision (d). We incorporate that

discussion here, and on that basis, we conclude that appellants did not succeed in shifting

the burden to SDCERS on the laches claim. Therefore, it remained appellants' burden to

establish unreasonably delay and prejudice resulting from the delay.

The trial court found that appellants did not establish SDCERS engaged in

unreasonable delay in taking action to recoup the overpayment of pension benefits. That

43
finding is supported by substantial evidence.23 Specifically, as we have previously

explained, SDCERS did not know of the error in calculating appellants' pension benefits

until it conducted the audits in 2013. Promptly upon learning of the mistakes, SDCERS

notified appellants and began the administrative process to recoup the overpayments.

Further, no evidence was presented at trial to suggest that SDCERS had any suspicion

that there may have been a problem with the calculation of appellants' pension benefits,

and thus it had no reason to conduct an audit prior to 2013.24 Under those

circumstances, the evidence amply supported the trial court's finding that SDCERS did

not engage in any unreasonable delay.25

23 The trial court also found that appellants did not establish prejudice resulting from
the delay. Because we conclude that the trial court's finding regarding the first element
of laches is supported by substantial evidence, we need not and do not consider the trial
court's finding regarding lack of prejudice.

24 In their reply brief, appellants contend that a 1992 legal memorandum written by
the city attorney to a SDCERS administrator shows that SDCERS engaged in
unreasonable delay in discovering the overpayments to appellants and acting to recoup
them. We disagree. Based on the controlling law at the time, the 1992 memorandum
offers an opinion on the steps that SDCERS could take to recoup an overpayment of
pension benefits. It does not discuss any specific problems with calculating benefits that
might have led to any overpayments to SDCERS members, and it certainly does not
discuss whether the pension benefit calculations were correct as to Van Putten and
Krolikowski, as they did not retire until 2000 and 2006 respectively, which is long after
the 1992 memorandum was written. Accordingly, the 1992 memorandum does not
provide evidence of unreasonable delay.

25 Although we have concluded that substantial evidence supports the trial court's
decision that the doctrines of laches and equitable estoppel do not apply because
SDCERS promptly took action once it learned of its errors, we are nevertheless
sympathetic to appellants' situation as they did not find out until many years after the fact
that SDCERS made mistakes in calculating their pension benefits, by which time the
overpayments and associated interest amounted to a substantial sum.
44
C. The Trial Court Did Not Abuse Its Discretion in Making the Evidentiary Rulings
Challenged by Appellants

Appellants challenge two evidentiary rulings made by the trial court during trial.

We review the trial court's evidentiary rulings by applying an abuse of discretion

standard. (People v. Alvarez (1996) 14 Cal.4th 155, 203 ["appellate court reviews any

ruling by a trial court as to the admissibility of evidence for abuse of discretion"];

(Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773

[a ruling excluding or admitting expert testimony is reviewed for abuse of discretion].)

"A ruling that constitutes an abuse of discretion has been described as one that is 'so

irrational or arbitrary that no reasonable person could agree with it' " but the trial court

must exercise its discretion "within the confines of the applicable legal principles." (Id at

p. 773.)

1. The Trial Court Did Not Abuse Its Discretion in Excluding Conny
Jamison's Opinion That SDCERS Acted Unreasonably

At the beginning of the bench trial, the trial court considered appellants' request

that they be able to introduce the testimony of Conny Jamison, who was a SDCERS

Board member and the City's treasurer until 2001. Appellants explained that Jamison

would testify regarding her opinion that it was unreasonable for SDCERS "to wait so

long before double-checking to see that the pension calculations are correct." The

proposed testimony was expected to track Jamison's declaration submitted in connection

with the summary judgment motions, in which she stated, "Based on my experience and

training as a public pension trustee, it would be unreasonable and imprudent not to ensure

45
that staff accurately calculated a beneficiary's pension, and then failed to audit or double

check those calculations promptly."

The trial court ruled that it would exclude Jamison's testimony. As an initial

matter, the trial court noted that because Jamison was not a percipient witness to the

calculation of appellants' pension benefits, she would be testifying as an expert witness.

The trial court stated that it would not admit Jamison's expert testimony for two

independent reasons. First, Jamison had not been designated as an expert witness.

Second, the trial court stated that as the trier of fact, "I don't think I need the assistance of

an expert to tell me what is reasonable and what's not reasonable in this area."

Appellants contend that the trial court erred in making the ruling for two reasons.

First, addressing the trial court's first basis for the ruling, appellants contend that by

submitting Jamison's declaration in connection with the summary judgment motions, they

"substantially complied" with the requirement that Jamison be designated as an expert

witness at trial as required by Code of Civil Procedure section 2034.260. Next,

addressing the second basis for the trial court's ruling, appellants point out that Evidence

Code section 805 states that "[t]estimony in the form of an opinion that is otherwise

admissible is not objectionable because it embraces the ultimate issue to be decided by

the trier of fact."

We conclude that the first ground set forth by the trial court was a sufficient

ground for excluding Jamison's testimony, and we accordingly need not, and do not,

reach the second ground.

46
 It is undisputed that Jamison was not designated as an expert witness. Appellants

both filed expert witness designations, which stated they do "not designate any expert

witnesses at this time," and neither of them attempted to file a supplemental designation.

Code of Civil Procedure section 2034.300 states that "the trial court shall exclude from

evidence the expert opinion of any witness that is offered by any party who has

unreasonably failed to do any of the following," including "(a) List that witness as an

expert under Section 2034.260" and "(b) Submit an expert witness declaration." Here,

even though appellants could plausibly argue that they substantially complied with the

requirement that they "[s]ubmit an expert witness declaration" (Code Civ. Proc.,

§ 2034.300, subd. (b)) by submitting Jamison's declaration in connection with the

summary judgment motions, they clearly did not comply with the additional requirement

that they "[l]ist that witness as an expert under Section 2034.260." (Code Civ. Proc.,

§ 2034.300, subd. (a).) Accordingly, the trial court was well within its discretion to

exclude Jamison's expert testimony because she was not properly designated as an expert

witness.

2. The Trial Court Did Not Abuse Its Discretion by Admitting Testimony
from SDCERS's CEO About the IRS Rules That SDCERS Follows

During trial, the trial court overruled appellants' objections to certain testimony by

SDCERS's CEO Mark Hovey about the IRS regulations that apply to SDCERS as a tax

qualified plan. Appellants contend that the trial court should have sustained their

objections to that testimony as it constituted expert testimony on subjects that Hovey was

47
not qualified to opine upon because he is not an attorney.26 In their appellate brief,

appellants summarize Hovey's relevant testimony as follows:

"• an opinion regarding whether the Internal Revenue Service has
regulations that recite what a tax qualified plan such as [SDCERS] can do
or should do in the event of a plan failure or error . . . ;

"• an opinion that tax law gives SDCERS no flexibility as to whether or not
to collect overpayments . . . ;

"• an opinion regarding whether the San Diego Municipal Code requires
SDCERS to follow IRS regulations . . . ; [¶] and

"• an opinion regarding the ramifications from the IRS if SDCERS did not
collect in full from Krolikowski and Van Putten."

In admitting the testimony, the trial court overruled appellants' continuing

objection that the questions "call[ed] for a tax opinion . . . from a lay witness who has no

legal training." The trial court explained it was overruling the objection because Hovey

was SDCERS's CEO and "is the one that implements" the IRS regulations at SDCERS.

Appellants contend the trial court abused its discretion in admitting the evidence.

As an initial matter, we note that appellants' argument depends on the premise that

Hovey's testimony constituted opinion rather than percipient witness testimony. We note

that it appears from the trial court's comments that it overruled appellants' objection, at

least in part, because it concluded that Hovey was not offering opinion testimony.

Instead, the trial court appears to have concluded that Hovey was testifying about his own

personal experience as CEO of SDCERS, including about SDCERS's policies and its

implementation of the applicable IRS regulations.

26 We note that although Hovey is not a lawyer, he is a certified public accountant.
48
 However, even if Hovey's testimony could be characterized as lay opinion

testimony, "[a] trial court has broad discretion to admit lay opinion testimony, especially

where adequate cross-examination has been allowed." (In re Automobile Antitrust Cases

I and II (2016) 1 Cal.App.5th 127, 145.) Under Evidence Code section 800, "[i]f a

witness is not testifying as an expert, his testimony in the form of an opinion is limited to

such an opinion as is permitted by law, including but not limited to an opinion that is:

(a) Rationally based on the perception of the witness; and (b) Helpful to a clear

understanding of his testimony." Here, the trial court reasonably could conclude that

because Hovey was SDCERS's CEO and was the person who implemented the IRS

regulations at SDCERS, his testimony about the IRS regulations that applied to SDCERS

was a matter within his own perception and was useful to an understanding of his

testimony about SDCERS's practices and procedures, despite the fact that Hovey was not

a lawyer. Accordingly, it was within the trial court's discretion to admit Hovey's

testimony as lay opinion testimony.

Based on the above, we conclude that the trial court did not abuse its discretion in

overruling appellants' objections to Hovey's testimony.

49
 DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

50
Filed 6/14/18
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

VINCENT KROLIKOWSKI, D071119

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2015-00006255-
CU-OE-CTL)
SAN DIEGO CITY EMPLOYEES'
RETIREMENT SYSTEM,

Defendant and Respondent.

CONNIE VAN PUTTEN,

Plaintiff and Appellant,
(Super. Ct. No. 37-2015-00021007-
v. CU-OE-CTL)

SAN DIEGO CITY EMPLOYEES' ORDER CERTIFYING OPINION
RETIREMENT SYSTEM, FOR PUBLICATION

Defendant and Respondent.

THE COURT:

The opinion in this case filed May 23, 2018, was not certified for publication. It
appearing the opinion meets the standards specified in California Rules of Court,
rule 8.1105(c), the requests made pursuant to California Rules of Court, rule 8.1120(a)
for publication are GRANTED.
 IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to be Published in the Official Reports" appearing
on page one of said opinion be deleted and the opinion herein to be published in the
Official Reports.

BENKE, Acting P. J.

Copies to: All parties

2