Case Name: Campbell v. San Jose Evergreen Community College District
Case No.: 1-14-CV-263497

Defendant San Jose Evergreen Community College District (“SJECCD”) demurs to the complaint (“”Complaint”) filed by plaintiff James Campbell (“Plaintiff”).

Plaintiff was employed by Defendant from February 14, 2007 through January 3, 2012 as a Business Services Supervisor. (Complaint at ¶ 1.) In the spring of 2011, Plaintiff began to inquire of CalPERS what type of benefits he could expect to receive as well as the appropriate date for retirement if he did so after five years of service with SJECCD at age 63.5. (Id. at ¶ 7.) Plaintiff was originally advised by CalPERS, which obtained its information for the purposes of retirement benefit calculation from the payroll department of SJECCD, that he would be fully vested on December 16, 2011. (Id.) However, Plaintiff was subsequently advised by SJECCD’s assistant comptroller, Anthony Oum (“Oum”), that he would be a few days short of vesting if he retired on that date and therefore should wait until after the holidays to retire in early January 2012. (Id.)

Based on the foregoing inconsistency, Plaintiff again contacted CalPERS and was advised in correspondence that based on his start date and years of service, his retirement date at five years would be December 30, 2011. (Complaint at ¶ 8.) On August 17, 2011, Plaintiff advised SJECCD that he would be retiring effective January 4, 2014, with his last day of work on January 3, 2012. (Id. at ¶ 9.) Plaintiff selected this date based on SJECCD’s representations. (Id.) On August 26, 2011, SJECCD accepted January 3, 2012 as Plaintiff’s last day of employment. (Id. at ¶ 10.)

On November 18, 2011, Plaintiff was notified by CalPERS that his application for retirement benefits was being returned because he did not have the service credits necessary to retire despite the prior representations of both CalPERS and SJECCD. (Complaint at ¶ 11.) After Plaintiff brought this to his attention, Oum re-evaluated the matter and informed Plaintiff that there had been a miscalculation and he would need to work until January 13, 2012 in order to have the necessary service credits to retire with benefits. (Id.)

In a letter dated November 29, 2011, Plaintiff notified his supervisor that he would not be retiring on January 4, 2012, but would rather do so on January 18, 2012 so as to attain the service credits necessary to retire with benefits. (Complaint at ¶ 12.) Plaintiff also spoke to the Chancellor of SJECCD who informed him that while the Board at SJECCD had accepted his original retirement date, exceptions would be granted. (Id.) Plaintiff advised her that his selection of January 4 as his retirement date was due to his reliance on SJECCD’s miscalculation and error. (Id.)

In a letter dated December 9, 2011, SJECCD notified Plaintiff that he was being placed on administrative leave of absence where he was to remain until January 3, 2012, the date on which he was originally going to retire. (Complaint at ¶ 14.) When he inquired as to why he was being placed on administrative leave, Plaintiff was not provided with an explanation. (Complaint at ¶ 14.)

On April 9, 2014, Plaintiff filed the Complaint asserting the following causes of action: (1) Fraud in the Inducement: Intentional Misrepresentation; (2) Fraud in the Inducement: Negligent Misrepresentation; (3) Breach of the Implied Covenant of Good Faith and Fair Dealing; and (4) Violation of Gov. Code § 12940. Plaintiff alleges that SJECCD knowingly misrepresented to him the date upon which he would obtain fully vested benefits in order to deny him those benefits. (Complaint at ¶ 15.)

On May 22, 2014, SJECCD filed the instant demurrer to the first three causes of action asserted in the Complaint on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

SJECCD first asserts that Plaintiff’s first, second and third causes of action are subject to demurrer for failure to plead compliance with the claims presentation requirement.

Generally, before suing a public entity, a plaintiff must present a timely written claim for damages to the entity pursuant to the filing provisions of the California Tort Claims Act (Gov. Code, § 900 et seq.; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.) Claims against community college districts, which qualify as public entities, are also subject to the requirements of this act (see Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1079), unless the claims at issue fall within specific exceptions enumerated by the act itself. (See Gov. Code, § 905.) A complaint that fails to allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action. (See Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209.)

Plaintiff insists that the first three causes of action fall within the exception to the claims-filing requirement of the Tort Claims Act set forth in Government Code section 905, subdivision (f). The subdivision provides that “[a]pplications or claims for money or benefits under any public retirement or pension system” are exempt from the claims-filing requirement. Plaintiff argues that this is precisely what he seeking with his claims.

At first blush, Plaintiff’s first three causes of action appear to fall squarely with the subdivision (f) exception with Plaintiff seeking to recover the retirement benefits that he has been deprived of. However, this exemption is limited to benefits already earned during the course of employment but not paid. (See.g., Loehr, supra, 147 Cal.App.3d at 1080 [“; see also Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 32.) The thrust of Plaintiff’s complaint is that he was deprived, due to SJECCD’s misrepresentations, of working to the point at which he accumulated a sufficient amount of service credits to fully vest his retirement benefits. In other words, he was deprived of the opportunity to earn those benefits. Having not actually earned them, his claim is not for retirement benefits to which he is currently entitled but rather monetary damages. Consequently, the first three causes of action do not fall within the Government Code section 905, subdivision (f) exception and Plaintiff is required to comply with the claims presentation requirements of the Tort Claims Act. SJECCD insists that there is no amendment which can salvage these claims because they accrued in early January 2012, at the latest, and with a six-month limitations period for claims sounding in tort and a one-year limitations period for claims sounding in contract, compliance with the filing requirement is not possible. In contrast, Plaintiff asserts that amendment is possible, arguing that he can allege substantial compliance with the claims filing requirement.

“The primary function of the Tort Claims Act is to apprise the governmental body of imminent legal action so that it may investigate and evaluate the claim and where appropriate avoid litigation by settling meritorious claims.” (Dilts, supra, 189 Cal.App.3d at 32, internal citations omitted.) The fact that a public entity has full knowledge of a claim and related circumstances is not sufficient to excuse noncompliance with the claims statute. (Id.) However, the Tort Claims Act should not be applied to “snare the unwary where its purposes have been satisfied.” (Id. at 33.) “Consequently, courts employ the test of substantial compliance rather than strict compliance in deciding whether a plaintiff has met the requirements of the Tort Claims Act.” (Id.)

Plaintiff asserts that he can allege substantial compliance based on a prelitigation letter sent by his former counsel to the Chancellor of SJECCD and copied to the Vice-Chancellor and Board of Trustees in January 2012. (Plt.’s Opp. at 6:19-24.) As this letter is not currently before the Court such that a determination regarding substantial compliance can be made, Plaintiff is entitled to leave to amend in order to allege facts demonstrating such compliance. However, leave is granted only with respect to the third cause of action and not the first and second, which fail for the additional reason proffered by SJECCD- it is immune from these claims pursuant to Government Code section 818.8.

Government Code section 818.8 provides that “[a] public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” The immunity of a public entity for misrepresentation by its employee is absolute. (See Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 43.) Plaintiff’s insistence that this immunity does not apply where misrepresentations are made to a third party which harms a plaintiff is unavailing. The allegations of the Complaint make it clear that Plaintiff suffered his claimed damages as a result of relying on misrepresentations made to him by SJECCD regarding when his retirement benefits would fully vest and not based on representations made to a third party. Consequently, the authority cited by Plaintiff, City of Costa Mesa v. D’Alessio Investments, LLC (2013) 214 Cal.App.4th 358, is distinguishable. Plaintiff’s first and second causes of action fall squarely within the immunity provided by Government Code section 818.8 and thus cannot be maintained against SJECCD.

In accordance with the foregoing analysis, SJECCD’s demurrer on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND as to the first (Intentional Misrepresentation) and second (Negligent Misrepresentation) causes of action and SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND as to the third cause of action (Breach of the Implied Covenant of Good Faith and Fair Dealing).