1

Filed 6/3/14 Gill v. We st Contra Costa Unified School D ist. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

DORIS GILL, Plaintiff and Appellant,

v. WEST CONTR A COSTA UNIFIED SCHOOL DISTRICT et al., Defendant s and Respondent s

. A137888
(Contra Costa County Super. Ct. No. C12

- 01471)

Appellant Doris Gill retired from her employ ment with the West Contr a Costa
Unified School District in 2007

. She receives retirement benefits, including a pension, through the California Public Employee s’ Retirement System ( CalPERS ) for service
between 1987 and 2007. Gill contends that she is entitled to additional benefits for employment with the s chool d istric t between 1972 and 1987. In 2012, s he filed suit in
the superior court against the West Contra Costa Unified School District, the West Contra Costa Unified School District Board of Education and Superintendent Bruce Harter ( collectively the District) , all eging that the District failed to accurately report Gill’s employment history to Cal PERS . She sought a declaration of her rights and injunctive
relief. The trial court sustained the District’ s d emurrer without leave to amend on the
basis that the c omplaint failed to state a cause of action in that it was filed after expiration
of the applicable statute of limitations. Gill contends that the court erred as a matter of
law , and that her claim for retirement benefits is not time barred under an except ion2

provided in Government Code section 20164 . The principal question is whether the statutory exception applies to the District. The trial found that it did not. We affirm

. I. B ACKGROUND Gill retired from employment with the District on or about April 1, 2007 . She
filed her c omplaint fo r d eclaratory and i njunctive relief on June 20, 2012

. Gill states that, when she retired, the District advised Cal PERS that she had been employed by the
District only between 1987 and 2007

. She alleges that she had been a full

- time time employee of the District from September 1
, 1972 , and was entitled to have her retirement
benefit calculated based on a service period commencing September 1, 1972 through April 1, 2007. Despite Gill’s demand t o correct the error, the District refuse d to acknowledge the earlier period of service
, refused to produce record s of her service, and
denied her access to her employment record s. Gill sought a declaration that she ha d
commenced full

- time work September 1
, 1972 , and t hat “ she be credited fo r the service period from September, 1972 through September, 1987 in cal culating her retirement
benefit

. ” She r equested an order directing the District to “ transmit to Cal PERS the service period from September 1, 1972 through 1987 so that [Gil l’s] correct retirement benefit would be computed. ” The District demurred, asserting that either the two

- year limitations period applicable to oral contracts under Code of Civil Procedure section 339 or the four

- year limitations period applicable to writt en contracts under Code of Civil Procedure
section 337 barred the complaint. In opposition, Gill argued , inter alia, that the District
had a continuing duty to her with respect to her retirement benefits under Government
Code section 20164
, 1 and that s ubd ivision (b)(2) (hereafter section 20164(b)(2)) of that

1 All statutory references are to the Government Code unless otherwise indicated. Section 20164 , subdivision (a) provides: “ The obligations of this system to its members continue throughout their respective memberships, and the obligations of this system to and in respect to retired members continue throughout the lives of the respective retired members, and thereafter until all obligations to their respective beneficiaries under optional settlements have been discharged. The obligations of the state and contracting agencies to this system in respect to members employed by them, respectively, continue3

statute expressly provided that no limitations period applied to any case where the retirement system owes money to a member or beneficiary

. The trial court heard oral argument on the demurrer on October 24, 2012 . In response to Gi l l’s contention that s ection 20164 (b)(2) governed, the court stated
, “ I just
don ’ t see that the statute of limitations waiver that’ s in the Government Code section applies to the school district [ , it] applies to Cal PERS

. ” T he trial court sustained the demurrer without leave to amend, finding that the complaint was time barred under either
section 337 or 339 of the Code of Civil Procedure . Judgment was entered for the District on December 21, 2012. A timely notice of a ppeal was filed on February 13, 2013.
II. D ISCUSSION “On appeal from a dismissal following the sustaining of a demurrer, this court reviews the complaint de novo to determine whether it alleges facts stating a cause of action under any legal theory. [Cit ation.]” ( Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 122 .) “We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we
treat the demurrer as admit ting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citation s .] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause
of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse. [Citation.] ” ( City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 .) “ ‘ The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]’ [Citation.]” ( Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1080 .)

throughout the memberships of the respective members, and the obligations of the state and contracting agencies to this system in respect to retired members formerly employed by them, respectively, continue until all of the obligations of this system in respect to those retired members, respectively, have been discharged. The obligations of any member to this system continue throughout his or her membership, and thereafter until all of the obligations of this system to or in respect to him or her have been discharged. ”4

A. Application of Section 20164 ( b )( 2 )
The threshold q uestion is whether s ection 20164(b)(2) has an y a pplication to Gill’s claims. The interpretation of a statute is question of law, which this court examines independently. We are not bound by the trial co urt’s construction. ( People

ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 ; Griffiths v. Superior
Court (2002) 96 Cal.App.4th 757, 768 .) Section 20164(b)(2) is part of the Public Employees ’ Retirement Law (PERL ) (§ 20000 et seq.) , which establishes a retirement system for certain state and local government employees. S ection 20164 , subdivision (b) reads in full: “ For the purposes of payments into or out of the retirement fund for adjustment of errors or omissions, whether pursuant to S ection 20160, 20163, or 20532, or otherwise, the period of limitation of actions shall be three years, a nd shall be applied as follows: [¶] (1) In cases where this system makes an erroneous payment to a mem ber or beneficiary, this system’ s right to collect shall expire three years from the date of payment. [¶] (2) In cases where this system owes money to a member or beneficiary, the period of limitations shall not apply. ” Gill contends that the “system” owes her money for unpaid benefits and there is

conse quently no limitations period on her claim

. She argues that the District is a “contracting agency” under section 20164 , subdivision (a) , and that for purposes of the
statute, a “ contracting agency ” must be considered part of the overall “ system

. ” 2 Since
the District has continuing obligations under section 20164 , subdivision (a) , she insists
that section 20164(b)(2) should be read to apply to the District as well as to Cal PERS

. Thus, she insists, section 20164(b)(2) necessarily applies to a former employee ’ s de ma nd

2 The District does not dispute that it is a contracting agency as defined in the PERL. “ ‘ Contracting agency ’ means any public agency that ha s elected to have all or any part of its employees become members of this system and that has contracted with the board for that purpose. ‘ Contracting agency ’ also means any county office of education, school district, or community college district that h as elected to have all or part of its employees participate in a risk pool and that has contracted with the board for that purpose. ” ( § 2 0022. )5

that the District cooperate in the an attempt to ensure that Cal PERS has received accurate
and co m plete re cords from the District relating to the former employee’ s retirement
benefits. But Gill also acknowledges, as she must, that the “s ystem” as identified in

s ection 20164(b)(2) refers to CalPERS, and not the District. ( S ee § 20058, subd. (a) [ “ ‘ Retirement system ’ or ‘ this system ’ means the Public Employees ’ Retirement System ”].) “ ‘ If the Legislature has provided an express definitio n of a term, that definition ordinarily is binding on the courts. ’ [Citation.] ” ( People v. Canty (2004)
32 Cal.4th 1266, 1277 .) The District contends that Gill also ignores the plain wording of
section 20164 , subdivision (a), which expressly provides that the statutory continuing obligations of a contracting agency are to CalPERS (“to this system”), rath er than to the
retired member.
Gill cites the rule that “ ‘ p ension laws are to be liberally construed to protect pension ers and their dependents from economic insecurity. [Citation.] ’ ” ( County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 41 .)
She is correct that laws pertaining to CalPERS are “ to be interpreted in favor of the

emp loyee or beneficiary when a semantic ambiguity is presented by the statute at issue. [Citation s .] ” ( City of Oakland v. Public Employees’ Retirement System (2002)
95 Cal.App.4th 29, 39 .) Our primary objective in interpreting a statute is to determine and give effect to the underlying legislative intent. (Code Civ. Proc., § 1859.) Intent is determined foremost by the plain meaning of the statute’s language. If the language is clear and

u nambiguous, there is no need for judicial construction. “ ‘ “ ‘ When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.’ [Citations.] Moreover, the various parts of a s tatutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.] ” ’ [Citation.]” ( Phelps v.
Stostad (1997) 16 Cal.4th 23, 32 .) “If the meaning of the statute remain s unclear after examination of both the statute’s plain language and its legislative history , then we proceed cautiously to

. . . apply ‘reason, practicality, and common sense to the language6

at hand.’ [Citation.]” (

Ailanto Properties, Inc. v. City of Ha lf Moon Bay (2006)
142 Cal.App.4th 572, 583 .) We agree that the plain wording, and the plain meaning, of the statute does not support Gill’s suggested re ading , and we find no “semantic ambiguity” requiring
construction or interpretation

. “ Where the meani ng of a statute of limitation is clear, ‘ it is the function of this court to apply the statute as written. [Citation.] ’ [Citation.]” ( O’ Neill v. Tichy (1993) 19 Cal.App.4th 114, 120 .) By its terms, section 20164 , subdivision (b) governs limitations peri ods for “ adjustment of errors or omissions ” in “ payments into or
out of the retirement fund .” It is applicable to claims by or against CalPERS (the “system”) for overpayment or underpayment of benefits. It requires CalPERS to seek to recovery of any over payments within three years, and permits a retiree an unlimited time

to make claims for money alleged to be owed by CalPERS. But Gill does not seek adjustment by CalPERS of the “errors and adjustments” she alleges here
, 3 and s he is not seeking to recover from the District the money allegedly owed to her. Her retirement benefits are paid by CalPERS, not by the District. Her complaint did not seek to recover money owed from CalPERS, but instead sought a declaration of her entit lement to full

time service credit from September 1
, 1972 through September 1987 in cal cu lating her
retirement benefit. 4 Gill’s complaint does not plead a cause of action under the PERL,

3 Were she doing so, she would first be required to utilize and exhaust the administrative procedures for seeki ng correction of errors or omissions set forth in section 20160. W here an administrative remedy is provided, relief must be sought first from the administrative body before recourse to the courts is permitted. ( Unfair Fire Tax Com. v. City of Oakland (20 06) 136 Cal.App.4th 1424, 1428 ; see also City of Pleasanton v. Board of Administration (2012) 211 Cal.App.4th 522, 541

– 542 [“a party must present its factual and legal claims to [CalPERS] before it can obtain review of them in the courts ”].) So far as the record shows, Gill has not pursued those remedies.

4 We question whether the court would have any authority to determine her entitlement to service credit in a lawsuit against the District. The CalPERS Board is the sole judge in the first instance of the conditions under which persons may be admitted to and continue to receive benefits . ( § 20125 .) Since the parties have not raised this issue, and since we decide that Gill’s complaint is otherwise time barred, we need not reach this question.7

but essentially alleges that that the District breached its contrac tual and/or fi duciary duties to her by failing to accurately report her term of employment. It necessarily did so prior to the date of her retirement in April 2007. “Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.” ( Code of Civ

. Proc

. , § 312 ) In the trial court, as here, the District argues that Gill’s compla int is barred either by the

two

- year limitations period applicable to oral contracts ( id

. , § 339 ) or the four

- year limitations period applicable to written contracts ( id

. , § 337 ). In a similar context, at least
one court has found that the three

- year statute of limitat ions for “[a]n action for relief on the ground of fraud or mistake ” ( id

. , § 338, subd

. (d) ) applied to the claim of a c ounty

r etir ement a ssociation for employee contribution arrearages. ( County of Marin Assn. of Firefighters v. Marin County Employees Reti rement Assn. (1994) 30 Cal.App.4th 1638,
1651 .) There is also a three

- year statute of limitations for “[a]n action upon a liability created by statute, other than a penalty or forfeiture ” (Code of Civ. Proc.
, § 338,
subd. (a)) , and Code of Civil Procedure section 343 specifie s generally a four

- year limitation upon “ [ a ] n action for relief not hereinbefore provided for .” The limitations period applicable to ordinary actions at law and suits in equity apply equally to declaratory relief. (

Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 463.) We need not decide which statue would apply, because the latest period within which Gill was required to bring her action was four years. “[ W ] here the Legislature intends that another
or no limitatio ns period appli es, it must say ‘ so in clear and unmistakable language. [Citation.]’ [Citations.] ” ( County of Marin Assn. of Firefighters v. Marin County Employees Retirement Assn.
, at p

. 1651 .)
B. Leave to Amend Gill insists that, even if a limitations period applied to her action against the District, it was an abuse of discretion for the court to deny her leave to amend. She says that she should have been given an opportunity to plead equitable estoppel and/or equitable tolling as a bar to the District’ s invocation of the statute of li m itations

.8

Alternatively, she contends that she would be able to plead continuous accrual of her cause of action, thus defeating application of the statute. It is an appellant’s burden to show that the complaint might be amended to state a viable claim. ( Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655 ; Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 .) “Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend. [Citations.]” ( Rakestraw v. Cal ifornia Physicians’ Service
, at p. 44.) Gill fails to meet that burden. As to her equitable estoppel theory, Gill does not begin to suggest how she might plead such a claim against the District , only that it i s “possible” that she could do s o . She

says only that she had “ on

- going discussions ” with the District between her retirement in 2007 and the filing of her complaint, and that the District failed or refused to make a full search of its employment records for the disputed period. “ ‘ The doctrine of equitable estoppel is founded on concept s of equity and fair dealing ’ ” and “ ‘ provides that a person may not deny the existence of a state of facts if [ that person ] intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his
detriment. ’ ” ( Killian v. City and County of San Francisco (1978) 77 Cal.App.3d 1, 13.)
The elements of a claim of e quitable estoppel are: “ (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 h is injury. [Citations.]” ( Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305

– 3 06 ; City of Oakland v. Oakland Police & Fire Retirement System (2014)
224 Cal.App.4th 210, 239 ; City of Pleasanton v. Board of Administration , supra, 211 Cal.App.4th at pp. 543

– 5 44 .) “ ‘ A public entity may be estopped from asserting the limitations of the tort claims statutes where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act

. ’ ” ( Castaneda v. Department of Corr ections & R ehabilitation (2013) 212 Cal.App.4th 1051, 1064 .)9

Gill acknowledges that she knew of the service credit discrepancy when she retired in 2007. She allege s in her complaint that she made repeated demand s on the
District to provide correct information regarding her service credits and that i n spite of
her repeated request s to rectify th e error, the District not only refused to produce the
records she demanded but continued to maintain that her period of services was only from 1987 through 20 07

. She does not here point to any facts suggesting that the District misled her in any fashion, or that she delayed in filing her action in reliance upon anything that the District said or did

— only that it failed or refused to give her the
information sh e requested and denied that she was entitled to credit for additional service

. Gill alleges no facts showing that the District prevented or deterred her from filing a
claim. The cases cited by Gill prov ide no support for her position: Elkins v. Derby (1 974) 12 Cal.3d 4 10 , 417

– 419, allowed tolling of a tort claim against an employer pending completion of a workers’ compensation claim; Boxx v. Board of Administration (1980) 114 Cal.App.3d 79 , 90 , involved correction of an erroneous employment
classificatio n in a contract between CalPERS and a public employer, and held only that the employer was e stopped, under the circumstances, fro m not correcting the contract

—

n o limitations period was at issue. While Gill says that “[i] t might well be possible ” for
her to effectively plead equitable tolling s ufficient to come within a four

- year statute of
limitations period, s he “offers no allegations” and provides “ no legal authority” to support that possibility or to show the viability of such a claim. ( Rakestraw v. California Physicians’ Service , supra, 81 Cal.App.4th at p. 44.)
Gill fares no better with her theory of continuous accrual. She is correct that the statutory limitation upon the right to sue for a pension insta l lment commences to run
from the time wh en th at instal l ment falls due. ( California Teacher s ’ Assn. v. Governing
Board (1985) 169 Cal.App.3d 35, 43 .) But Gill is not suing the Di strict for pension installments, whether within the statutory period or not. Nor could she, since the payments are m ade by CalPERS, and not the District. She insists that California
Teacher s ’ Assn. v. Governing Board is “substantially on point.” That case did involve a
suit by part

- time teachers for both unpaid salary and for additional service credits

. ( Id. at10

p p

. 39

– 40.) While the teachers ’ cla ims for unpaid salary were time

- barred, the court found that the claim for service credits was not. But Gill igno res the basis for that ruling

— that the entitlement to service credits accrued “ only upon retirement .” ( Id . at
p. 44.) That is precisely Gill’s problem here. Her cause of action against the District
accrued at the time of her retirement in April 2007. “T he limitations period, the period in which a plaintiff must bring suit or be barred, runs from the moment a c laim accrues. [Citations.] ” (

Ar yeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191; id. at pp. 1191

– 1192. ) The court did not abuse its discretion in denying Gill leave to amend.
C. Due Process Gill complains that enforcement of a limitations period on her claims deprives her
, without due process of law, of a vested and constitutionally guaranteed property right in
her retirement benefits. ( S ee County of Orange v. Association of Orange County Deputy Sheriffs , supr

a, 192 Cal. App.4th at p. 41 .) Not so. “ [ S ] tatutes of limitations are not mere technical defenses, allowing wrongdoers to avoid accountability. [ Citation.] Rather, they mark the point where, in the judgment of the L egislature, the equities tip in favor of the defendant (who may be innocent of wrongdoing) and against the plaintiff (who failed to take prompt action)

. . . . ” ( Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788,
797 .) Moreover, t he PERL provides a specific mechanism for redress of the type of errors and omissions that Gill alleges here (§ 20160) , and the District has a continuing obligation to provide CalPERS with the type o f information that Gill seeks. “[T] he PERS Board’ s duty to correct the mistake (upon proof of the right to correction by the applicant) does not terminate until ‘ the expiration of obligations of this system to the party seeking correction of the error or omission, ’ which generally means throughout
PERS m embership and through the lifetime of retired PERS members (§§ 20160,
subd. (c), 20164, subd. (a) )

. ” ( City of Oakland v. Public Employees’ Retirement System
, supra, 95 Cal.App.4th at p. 50 .)
III. D ISPOSITION The judgment is affirmed.11 _________ ________________ Bruiniers, J.

We concur:

_________________________ Simons, Acting P. J.

_________________________ Needham, J.