Preview
19CV346252
Santa Clara — Civil
A. Nakamato
ARTHUR A. HARTINGER (SBN 121521) Electronically Filed
ahartinger@publiclawgroup.com by Superior Court of CA,
IAN T. LONG (SBN 290975) County of Santa Clara,
ilong@publiclawgroup.com on 8/12/2019 2:55 PM
RENNE PUBLIC LAW GROUP
Reviewed By: A. Nakamoto
350 Sansome Street, Suite 300
San Francisco, California 94104 Case #19CV346252
Telephone: (415) 848-7200 Envelope: 3250561
Facsimile: (415) 848-7230
STANLY T. YAMAMOTO (SBN 92381)
yamamoto@valleywater.org
SANTA CLARA VALLEY WATER DISTRICT
5750 Almaden Expressway
San Jose, CA 95118
Telephone: (408) 265-2600
Facsimile: (408) 979-5649
10 Attorneys for Defendant
SANTA CLARA VALLEY WATER DISTRICT
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SANTA CLARA COUNTY
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TERRI DIKES, an individual, Case No. 19CV346252
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Plaintiff, EXEMPT FROM FEES (GOV. CODE §6103)
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Vv, REPLY IN SUPPORT OF DEMURRER
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SANTA CLARA VALLEY WATER DISTRICT, Hearing Date: August 20, 2019
19 and DOES 1-25 inclusive, Time: 9:00 a.m.
Dept: 8
20 Defendants.
Action Filed: April 10, 2019
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REPLY IN SUPPORT OF DEMURRER Case No. 19CV346252
I INTRODUCTION
Plaintiff does not contest that her Complaint includes allegations of District misrepresentations to
her and CalPERS regarding Plaintiffs reportable income, and that Plaintiff relied on those
misrepresentations when deciding upon retirement. See, e.g., Compl. Jf 11, 14, 28. No argument in
Plaintiff's opposition brief can change the fact that those alleged misrepresentations—the gravamen of
the Complaint—involve “interference with financial interest” under Johnson v. State of California (1968)
69 Cal. 2d 782, 800, and the District is therefore immune under Government Code Section 818.8.
Plaintiff's reliance on Connelly v. State of California (1970) 3 Cal. App. 3d 744 and its “commercial
transaction” language is flawed, as Connelly has been criticized by other Courts of Appeal and is
10 distinguishable. Furthermore, Plaintiff’s attempts to recast her allegations as involving an “operational
ll task” have been rejected by courts analyzing similar circumstances, including Jopson v. Feather River
12 Air Quality Mgmt. Dist. (2003) 108 Cal. App. 4th 492. The Court should see through Plaintiff's
13 arguments and find that the District is entitled to immunity under Section 818.8.
14 Upon finding immunity, the Court need not address the substance of Plaintiff's single cause of
15 action for negligence-in-hiring. But even if the Court reaches the substance, Plaintiff's theory of liability
16 radically changes in her opposition brief. Rather than proceed upon a common law negligence in hiring
17 claim as alleged, Plaintiff now attempts to assert a “negligence per se” theory under Section 815.6. This
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18 theory is not found in the Complaint and should be rejected for this reason alone. But even if addressed,
19 Plaintiff's argument that certain PERS-related statutes create two distinct duties—“a duty of care (1) to
20 design, build and operate an accurate and lawful accounting system . . . and (2) hire qualified people
21 knowledgeable in the applicable rules defining what is ‘Compensation Earnable’” (Opp’n at 8:7-12)—
22 not only fails to have any support in the statutory language, but also involves alleged duties requiring
23 “normative or qualitative debate over whether it was adequately fulfilled” that courts refuse to recognize
24 under Section 815.6. See de Villers v. Cnty. of San Diego (2007) 156 Cal. App. 4th 238, 260. Finally,
25 the cited PERS statutes are not meant to protect against the kind of injury alleged here.
26 The Complaint should therefore be dismissed without leave to amend.
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IL. ARGUMENT
A. The District Is Immune From Liability For Misrepresentations Under
California Government Code Sections 818.8 and 822.2.
1 Plaintiff Wrongly Relies on Connelly and Its “Commercial Transaction”
Language
Plaintiff's argument that “the wrong done to Mrs. Dikes did not arise from any commercial
business transaction between plaintiff and the District” (Opp’n at 2:24-3:2) is deeply flawed. Johnson,
the seminal California Supreme Court case on the subject, did not require a misrepresentation in the
course of a “commercial transaction” between a defendant and a plaintiff. Johnson held exactly this: “ In
short, ‘misrepresentation,’ as a tort distinct from the general milieu of negligent and intentional wrongs,
10 applies to interferences with financial or commercial interest. The Legislature designed section 818.8
ll to exempt the governmental entity from this type of liability.” Johnson, 69 Cal. 2d at 800. As a Court of
12 Appeal has explained, “[i]n Johnson . . . [t]he Supreme Court did not suggest . . . that the plaintiff's loss
13 must have resulted from a commercial transaction with the state. Rather, the public entity's
14 representation need only ‘interfere’ with the plaintiffs financial or commercial interests.” Jopson, 108
15 Cal. App. 4th at 501.
16 Furthermore, Plaintiff concedes that the Court of Appeal in Michael J. unambiguously stated that
17 “contracting for a pension” falls within the financial or commercial interests covered by Section 818.8.
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18 See Opp’n at 3:10-12. Plaintiff attempts to brush the statement off as “obiter dictum,” but Plaintiff fails
19 to grapple with the fact that Michael J.’s logic is sound—interference with a pension, as is alleged here,
20 is clearly interference with a “financial or commercial interest” under Johnson. Plaintiff's related
21 argument that “Plaintiffs claim does not arise from any contract for pension between Plaintiff and the
22 District” (Opp’n at 3:5-6) is bogus. The source of Plaintiff's pension benefits is a contract—in particular,
23 a memorandum of understanding—between Plaintiffs bargaining unit and the District, which sets the
24 pension rates and vesting for Plaintiff. And in any event, Plaintiff's alleged pension benefits at least arise
25 from the employment relationship between Plaintiff and the District.
26 Rather than confront Johnson’s broad language, Plaintiff relies heavily on Connelly v. State of
27 California, which at one point appears to require a “commercial transaction” between the plaintiff and
28 defendant. See Connelly, 3 Cal. App. 3d at 752. Connelly’s analysis, however, has been criticized by
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Courts of Appeal for its “‘aberrational logic.” See Jopson, 108 Cal. App. 4th at 501. Put most succinctly
by the Court of Appeal in Jopson: “Connelly unduly restricts governmental immunity by narrowly
construing what constitutes both a misrepresentation and a commercial interest. In both aspects, the
Connelly majority stands alone.” Id. at 502; Tokeshi v. State of Cal. (1990) 217 Cal. App. 3d 999, 1008
(“In our view, by focusing on the negligent manner by which the public agency derived its forecast—
instead of examining the statement itself—the Connelly majority created an artificial distinction which
we decline to follow.”); Burden v. Cnty. of Santa Clara (2000) 81 Cal. App. 4th 244, 250 (“The analysis
of Connelly regarding the scope of section 818.8 immunity has been questioned by another Court of
Appeal,” and finding that, in any event, Connelly was distinguishable) (citing Tokeshi). This Court, too,
10 should reject Connelly and its two-justice majority’s flawed logic.
ll Furthermore, Connelly is distinguishable. Connelly involved a city providing allegedly false
12 general river forecasts, which led to damage to plaintiffs apartment building and marina docks. Here, in
13 contrast, Plaintiff essentially alleges that the District lied to her (and to CalPERS) about what money was
14 owed to her on retirement. That is a much closer nexus between the alleged misrepresentation and a
15 financial or commercial interest than the situation in Connelly.
16 Finally, Plaintiff’s attempts to distinguish the myriad on-point cases in Defendant’s opening brief
17 should be rejected. !
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18 2. The Gravamen of the Complaint Involves a Misrepresentation.
19 Plaintiffs attempts to recast the gravamen of the complaint are mere sophistry. As the Court of
20 Appeals in Tokeshi court made clear, the gravamen of a complaint under Section 818.8 involves the link
21 between the alleged damage and an alleged misrepresentation. See Tokeshi, 217 Cal. App. 3d at 1008.
22 Plaintiff's allegations could not make the connection any clearer: “Plaintiff would not have retired but
23 for the negligence of the District in hiring and retaining unqualified personnel in the Benefits
24 administration who erroneously included the higher temporary salary of the Program Administrator
25 position as ‘reportable compensation’ used to calculate[] Plaintiff’s CalPERS benefits” (Compl. { 14);
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' For example, Plaintiff argues that Harshbarger v. City of Colton ruled that the public entity was
immune under Section 818.6, immunity for inspection. Opp’n at 5:19-23. But in fact, the Court ruled
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that the public entity was immune under both Sections 818.6 and 818.8 (at issue here). Harshbarger v.
City of Colton, 197 Cal. App. 3d 1335, 1339-44.
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“Rodriguez told Plaintiff, ‘per the MOU,’ the ‘highest 12 months’ from which her benefits would be
calculated included the 10% increased salary . . . [from Plaintiff's] Program Administrator position” (id.
4 11); “[i]t was foreseeable to the District that if Rodriguez and her staff erroneously reported to
CalPERS the highest 12 months of compensation and employees relied on that reporting they could
suffer damage” (Compl. § 28). This case fits squarely within Tokeshi’s analogous holding that
“[rjegardless of the way plaintiffs couch their allegations, the gravamen of the action, pure and simply, is
that they suffered injuries purportedly caused by their reliance on [the District’s] misinformation.”
Tokeshi, 217 Cal. App. 3d at 1008.7
Rather than admit the centrality of misstatements to Plaintiff's claim, Plaintiff argues that the
10 District was performing an “operational task,” and the alleged misstatements were simply incidental to
ll that task. Opp’n at 4:3-5. In an analogous factual situation involving alleged miscalculation of
12 environmental credits, Jopson rejected the very “operational task” argument that Plaintiff now asserts,
13 and instead held that the gravamen of the negligence cause of action involved a misrepresentation. See
14 Jopson, 108 Cal. App. 4th at 497-502. As the Jopson Court of Appeals explained:
15 Jopson maintains that the District's calculation of ERC's involved an “operational task”
giving rise to a cause of action in negligence and not the communication of information . .
16 . . Jopson, in reply, makes a gallant effort to distinguish [various] cases, arguing that they
address simple misrepresentations of existing facts as opposed to negligent performance of
17 the technical operational tasks of identifying, calculating, and banking ERC’s. Not so. The
public entities in Brown, Hirsch, Grenell, Harshbarger, and Tokeshi did not simply act as
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18 conduits of information. In each case, the public entity took preliminary steps to ascertain
information but, in doing so, either wrongfully or negligently obtained false information.
19 They either misapplied their own ordinances and rules to the relevant factual scenarios or
failed to process applications properly. The same is true here. The District, by using an
20 erroneous loading factor, also obtained false information. Like an inflated appraisal, an
erroneous building inspection, a mistaken certificate of ownership, a false zoning report,
21 or ill-advised instructions, the miscalculation of the ERC's constituted misinformation
communicated by a governmental entity. The miscalculation may have preceded the
22 communication, but based on analogous facts in the cases cited above, we conclude the
District is shielded from liability for having misrepresented the true (and indeed existing)
23 fact that Jopson had earned but a small percentage of the ERC’s it was issued.
24 Id. at 499. This Court should similarly reject Plaintiffs “operational task” arguments.
25 The primary case cited in Plaintiff's opposition brief is Ingham v. Eastern Air Lines, Inc. (2d Cir.
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? The only case that appears to have addressed the
28 ‘thecific allegations here—misreporting compensable
income to CalPERS—is unpublished, but held that e action was barred by Section 818.8, even when
the plaintiff couched its allegations in terms of negligence. See Brand v. City of Palo Alto (2005)
2005 WL 1808417, at *3-6 (unpublished).
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1967) 373 F.2d 227. This case involved an alleged failure to warn an incoming plane that crashed,
injuring and killing those aboard. The Second Circuit held that the misrepresentation immunity of the
Federal Tort Claims Act—which has a similar financial or commercial interests requirement established
by the U.S. Supreme Court in United States v. Neustad (1961) 366 U.S. 696—did not apply because “[t]he
Neustadt case involved business dealings of a financial or commercial character with the government, a
totally different setting from the instant [Ingham] action.” Ingham, 373 F.2d at 239. Indeed, the Ninth
Circuit has explained that airplane crash cases and medical services cases are generally held to be outside
the misrepresentation exception, which also distinguishes Plaintiff's citation to Guild v. United States
(Opp’n at 4:23-2). See Green v. United States, 629 F.2d 581, 584-85.° Here, in contrast,
10 misrepresentations involving financial interests are at the heart of the matter. Ingham is therefore
ll distinguishable. Plaintiff's various other federal cases are also distinguishable because, as explained in
12 Jopson, they all involve the federal government becoming voluntarily involved in the design, planning,
13 supervision, inspection, or direction of projects and activities. See Jopson, 108 Cal. App. 4th at 499-501
14 (explaining that Block v. Neal, Guild v. United States, and other federal cases involved “various public
15 entities bec[oming] actively involved in either designing, planning, supervising, inspecting or directing
16 projects or activities,” and that “[e]ach involved an alleged breach of duty arising from governmental
17 conduct completely divorced from any attendant communication.”) Jopson’s conclusion similarly applies
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18 here: “We simply cannot say that the mathematical calculation of ERC’s is equivalent to designing a dam
19 or supervising the construction of a house.” Jopson, 108 Cal. App. 4th at 500.
20 Because the gravamen of the Complaint clearly involves reliance on alleged misrepresentations,
21 the Court should hold that Section 818.8 immunity applies to shield the District.
22 3. Plaintiff Should Not be Granted Leave to Amend.
23 Plaintiff should not be granted leave to amend. The Complaint admits that Plaintiff's damages in
24 this action are based on alleged misstatements by District to both Plaintiff and CalPERS. Here, Plaintiff
25 cannot offer a reasonable explanation of why her allegations of reliance on alleged misstatements was a
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3 Plaintiff's citation to Green is puzzling, as the Ninth Circuit upheld ap lication of the misrepresentation
immunity when the government issued a letter regarding grazing of catt! le that allegedly omitted
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information regarding its DDT program, and the plaintiff's cattle were harmed as a result. This case
supports Defendant’s arguments. Green, 629 F.2d at 584-85.
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mistake or should be otherwise ignored in future pleadings, and thus the Court would read those
allegations into the amended complaint. See Tindell v. Murphy (2018) 22 Cal. App. 5th 1239, 1248
(“[T]he sham pleading doctrine prevents a plaintiff from attempting to breathe life into a complaint by
omitting relevant facts from an amended complaint that made plaintiff's previous complaint defective.”);
Hendy v. Losse (1991) 54 Cal. 3d 723, 742-43. Any amendment would therefore be futile.
B Plaintiff Fails to Allege the Elements Necessary for Negligence in Hiring, Retention,
or Supervision.
Immunity under Section 818.8 prevails over liability under any theory of negligence, including a
“mandatory duty” theory under Section 815.6. See Haggis v. City of Los Angeles (2000) 22 Cal. 4th 490,
10 503-05 (holding that immunity for inspection under Section 818.6 prevails over a claim under Section
ll 815.6); Cal. Gov’t Code § 815(b) (immunity provisions of Tort Claims Act prevail over liability
12 provisions). Thus, if the Court finds immunity under Section 818.8, it need not address any further
13 arguments.
14 However, should the Court address the substance of Plaintiffs cause of action, the cause of action
15 must fail.
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1. Plaintiff Concedes that Her Common Law Action For Negligence in Hiring
17 and/or Supervision Fails.
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18 Plaintiff does not contest that, as set forth in de Villers, a stand-alone common law cause of action
19 for negligent hiring must fail under either a vicarious liability or direct liability theory. See de Villers,
20 156 Cal. App. 4th at 248-56. For example, nowhere does Plaintiff address whether a “special
21 relationship” exists between Plaintiff (no such relationship exists). And nowhere does Plaintiff dispute
22 de Villers’ statement that the Court of Appeal “flound] no relevant case law approving a claim for direct
23 liability based on a public entity’s allegedly negligent hiring and supervisions practices.” Jd. at 252.
24 Plaintiff therefore concedes that her common law negligence-in-hiring claim must fail.
25 2. Plaintiff’s Theory of Liability Under Section 815.6 Is Not Pled in the Complaint.
26 Rather than pursue a common law claim of negligence in hiring or promotion, Plaintiff now
27 appears to rely on negligence-per-se under a “mandatory duty” theory pursuant to Section 815.6. See
28 Opp’n at 7:19-10:12; see Alejo v. City of Alhambra (1999) 75 Cal. App. 4th 1180, 1185 n.3
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(“Government Code section 815.6 applies the negligence per se doctrine to public entities.”) disapproved
on other grounds by B.H. v. Cnty. of San Bernardino (2015) 62 Cal. 4th 168, 187-88. Yet Plaintiffs
theory of a “mandatory duty” under Section 815.6 does not appear in the Complaint. See de Villers, 156
Cal. App. 4th at 248-63 (analyzing a common law negligent hiring/supervision claim and a “mandatory
duty” claim under Section 815.6 under two separate theories); see generally Compl. (failing to assert a
“mandatory duty” or cite Section 815.6). On this ground alone, Plaintiff's arguments should be rejected.
3. Plaintiff's Theory of Liability Under Section 815.6 Fails as a Matter of Law.
Yet even if Plaintiff had pled a “mandatory duty” claim, that claim must fail. Plaintiff asserts that
certain PERS statutes impose “a duty of care (1) to design, build and operate an accurate and lawful
10 accounting system . . . and (2) hire qualified people knowledgeable in the applicable rules defining what
ll is ‘Compensation Earnable. os Opp’n at 8:7-12. Plaintiff points to several statutes in support of this
12 argument, none of which actually support a claim under Section 815.6.
13 First, nothing in the statutes address the structure of a reporting system or the qualifications for
14 employees who report contributions to CalPERS. The closest provisions only provide that an employer
15 must explain to an employee the elements of compensation that will be reported to CalPERS (Gov’t
16 Code § 21063), and that the public employer report contribution information to CalPERS (2 C.C.R.
17 § 565.1). That’s it. There is no duty even remotely resembling the two duties Plaintiff asserts here. This
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18 Court should not—and cannot—take an expansive view of these statutes to impose further actionable
19 duties on public entities such as the District, as the California Supreme Court has warned that the intent
20 of the Tort Claims Act “is not to expand the rights of plaintiffs in suits against government entities, but to
21 confine potential governmental liability to rigidly delineated circumstances.” Zelig v. Cnty. of L.A.
22 (2002) 27 Cal. 4th 1112, 1127-28 (quotations and citation omitted).
23 Second, even if the duties alleged by Plaintiff can be cobbled together from the cited statutes
24 (they cannot), as explained in de Villers, the alleged duties are not “mandatory” under 815.6. “It is not
25 enough . . . that the public entity or officer have been under an obligation to perform a function if the
26 function itself involves the exercise of discretion.” de Villers, 156 Cal. App. 4th at 256. Mandatory
27 duties are found “only where the statutorily commanded act did not lend itself to a normative o1
28 qualitative debate over whether it was adequately fulfilled.” Jd. at 260. “A statute is deemed to impose
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a mandatory duty on a public official only if the statute affirmatively imposes the duty and provide.
implementing guidelines.” O'Toole v. Sup. Ct. (2006) 140 Cal. App. 4th 488, 510 (emphasis added).
Even presuming that the District should “design, build and operate an accurate and lawful
accounting system,” that is exactly the kind of discretionary, malleable process which would require
normative and qualitative debate over whether the system was adequate, and therefore lies outside
Section 815.6. See Lockhart v. County of Los Angeles (2007) 155 Cal. App. 4th 289, 308-09 (regulation
requiring provision of “sufficient nursing staff’ did not impose mandatory duty to provide certain
number of nursing staff); see also de Villers, 156 Cal. App. 4th at 259 (federal regulation lay outside
scope of Section 815.6 where it “require[d] a registrant to provide ‘effective’ controls to ‘guard against’
10 theft of controlled substances, but d[id] not impose a mandatory obligation to guarantee no materials will
ll ever be stolen,” d “[t]he regulation d[id] not mandate that any particular method or procedure be
12 adopted to guard against theft”); Creason v. Dep’t of Health Servs. (1998) 18 Cal. 4th 623, 631-32
13 (where legislature required formulating testing standards but also gave the agency “substantial discretion
14 in formulating and reporting appropriate testing standards,” Section 815.6 did not apply); Donoho v.
15 County of Sonoma, 2015 WL 3866228, at *3 (N.D. Cal. June 22, 2015) (provision requiring employers to
16 furnish employment and place of employment that is “safe and healthful for the employees therein”
17 imposed no mandatory duty). Surely how to create such an accounting system would vary depending on
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18 the public entity, its manpower, its number of CalPERS-enrolled employees, and other factors.*
19 Similarly, Plaintiff argues that the cited statutes impose a duty to “hire qualified people
20 knowledgeable in the applicable rules defining what is “Compensation Earnable,”” but this, too, involves
21 a significant amount of discretion and is subject to qualitative and normative debate. See Herrera v. L.A.
22 Unified Sch. Dist., 2019 WL 1581413, at *6-7 (C.D. Cal. Feb. 13, 2019) (dispute over whether lifeguards
23 were adequately trained as required by a health and safety code was outside Section 815.6).
24 Plaintiff has not cited a single case in which a Court found a statute to impose a duty even close
25 to those proffered in her opposition brief. To impose Plaintiff's proposed duties would be a policy
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27 4 Plaintiffs citation to Dabis v. San Francisco Redev. Agency (1975) 50 Cal. App. 3d 704 as standing
for the proposition that duties can be implied is misplaced. Opp’n at 7:22-24. First, the Court did not
address Section 815.6. Second, the regulatory language was much clearer about the standard of care
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imposed and the public agency’s role in ensuring that standard of care. Finally, the great weight of
authority has shifted away from Dabis’ holding.
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disaster. The CalPERS statutory scheme already includes provisions as to how CalPERS handles errors
or omissions of reportable income. See, e.g., Cal. Gov’t Code § 20160. If Plaintiff's proposed duties
were adopted, any public employer that over-reported income could suddenly face—in addition to
CalPERS scrutiny—a lawsuit from an allegedly aggrieved employee based on the alleged qualifications
of the public entity’s personnel. There could be a floodgate of litigation over simple math errors, and the
lawsuits could pit CalPERS’ determinations regarding reporting accuracy against employees’ beliefs
about reporting accuracy and the competence of staff.
Finally, the PERS statutory scheme was not designed to protect against the particular injury
alleged here—retiring based on misrepresentations about benefit levels. See Nunn v. State of Cal. (1984)
10 35 Cal. 3d 616, 625 (explaining that even ifa mandatory duty promulgated by the regulations existed,
11 “section 815.6 requires that the statute imposing such a mandatory duty be designed to protect against the
12 risk of the particular kind of injury which occurred) (quotations, citation and alterations omitted). The
13 PERS statutory scheme is intended to “ensure the continued ability of the board to invest the retirement
14 fund and administer the system in conformity with its duties and responsibilities and to ensure that
15 members are provided with the retirement and related benefits to which they are entitled pursuant to
16 law.” Gov’t Code § 2004(a). Plaintiff concedes that the lower-than-expected retirement benefits she
17 receives are the correct amount of benefits. The PERS statutes cited by Plaintiff all facilitate reporting so
18 that CalPERS can “fund and administer the system,” or involve communications to employees about the
19 funds “to which they are entitled.” The PERS statutes are not intended to protect against alleged
20 misrepresentations that inflate the expectations of employees.
21 IIL. CONCLUSION
22 For the reasons stated above, the Court should grant the District’s demurrer and dismiss the sole
23 cause of action in the Complaint with prejudice and without leave to amend.
24 DATED: August 12, 2019 RENNE PUBLIC LAW GROUP
25 ————
cares 1
26 By ae
Ian T. Long
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Attorneys for Defendant, SANTA CLARA
28 VALLEY WATER DISTRICT
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PROOF OF SERVICE
I, the undersigned, am employed by RENNE PUBLIC LAW GROUP. My business address is
350 Sansome Street, Suite 300, San Francisco, California 94104. I am readily familiar with the business
practices of this office. | am over the age of 18 and not a party to this action.
On August 12, 2019, I served the following document(s):
REPLY IN SUPPORT OF DEMURRER
by the following method(s):
x United States Mail. I enclosed the document(s) in a sealed envelope or package addressed to
the persons at the addresses on the attached Service List and deposited the sealed envelope with
the United States Postal Service, with the postage fully prepaid.
Overnight delivery. I enclosed the document(s) in an envelope or package provided by an
overnight delivery carrier and addressed to the persons at the addresses on the attached Service
10 List. I placed the envelope or package for collection and overnight delivery at an office or a
regularly utilized drop box of the overnight delivery carrier.
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Electronic Mail. Based on an agreement of the parties to accept service by e-mail, copies of the
12 above document(s) in PDF format were transmitted to the e-mail addresses of the parties on the
attached Service List on August 12, 2019.
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14 SERVICE LIST
15 Phillip J. Griego, Esq. Attorneys for Plaintiff
LAW OFFICE OF PHILLIP J. GRIEGO TERRI DIKES
16 95 South Market Street, Suite 500
San Jose, CA 95113
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Telephone: (408) 293-6341
18 Facsimile: (408) 865-7936
19 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed on August 12, 2019 at San Francisco, California.
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21 fdestape Tebrrer—
22 9) Bobette M. Tolmer
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Preview
19CV346252 Santa Clara — Civil A. Nakamato ARTHUR A. HARTINGER (SBN 121521) Electronically Filed ahartinger@publiclawgroup.com by Superior Court of CA, IAN T. LONG (SBN 290975) County of Santa Clara, ilong@publiclawgroup.com on 8/12/2019 2:55 PM RENNE PUBLIC LAW GROUP Reviewed By: A. Nakamoto 350 Sansome Street, Suite 300 San Francisco, California 94104 Case #19CV346252 Telephone: (415) 848-7200 Envelope: 3250561 Facsimile: (415) 848-7230 STANLY T. YAMAMOTO (SBN 92381) yamamoto@valleywater.org SANTA CLARA VALLEY WATER DISTRICT 5750 Almaden Expressway San Jose, CA 95118 Telephone: (408) 265-2600 Facsimile: (408) 979-5649 10 Attorneys for Defendant SANTA CLARA VALLEY WATER DISTRICT 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SANTA CLARA COUNTY 14 15 TERRI DIKES, an individual, Case No. 19CV346252 16 Plaintiff, EXEMPT FROM FEES (GOV. CODE §6103) 17 Vv, REPLY IN SUPPORT OF DEMURRER 18 SANTA CLARA VALLEY WATER DISTRICT, Hearing Date: August 20, 2019 19 and DOES 1-25 inclusive, Time: 9:00 a.m. Dept: 8 20 Defendants. Action Filed: April 10, 2019 21 22 23 24 25 26 27 28 -l- REPLY IN SUPPORT OF DEMURRER Case No. 19CV346252 I INTRODUCTION Plaintiff does not contest that her Complaint includes allegations of District misrepresentations to her and CalPERS regarding Plaintiffs reportable income, and that Plaintiff relied on those misrepresentations when deciding upon retirement. See, e.g., Compl. Jf 11, 14, 28. No argument in Plaintiff's opposition brief can change the fact that those alleged misrepresentations—the gravamen of the Complaint—involve “interference with financial interest” under Johnson v. State of California (1968) 69 Cal. 2d 782, 800, and the District is therefore immune under Government Code Section 818.8. Plaintiff's reliance on Connelly v. State of California (1970) 3 Cal. App. 3d 744 and its “commercial transaction” language is flawed, as Connelly has been criticized by other Courts of Appeal and is 10 distinguishable. Furthermore, Plaintiff’s attempts to recast her allegations as involving an “operational ll task” have been rejected by courts analyzing similar circumstances, including Jopson v. Feather River 12 Air Quality Mgmt. Dist. (2003) 108 Cal. App. 4th 492. The Court should see through Plaintiff's 13 arguments and find that the District is entitled to immunity under Section 818.8. 14 Upon finding immunity, the Court need not address the substance of Plaintiff's single cause of 15 action for negligence-in-hiring. But even if the Court reaches the substance, Plaintiff's theory of liability 16 radically changes in her opposition brief. Rather than proceed upon a common law negligence in hiring 17 claim as alleged, Plaintiff now attempts to assert a “negligence per se” theory under Section 815.6. This Bs 18 theory is not found in the Complaint and should be rejected for this reason alone. But even if addressed, 19 Plaintiff's argument that certain PERS-related statutes create two distinct duties—“a duty of care (1) to 20 design, build and operate an accurate and lawful accounting system . . . and (2) hire qualified people 21 knowledgeable in the applicable rules defining what is ‘Compensation Earnable’” (Opp’n at 8:7-12)— 22 not only fails to have any support in the statutory language, but also involves alleged duties requiring 23 “normative or qualitative debate over whether it was adequately fulfilled” that courts refuse to recognize 24 under Section 815.6. See de Villers v. Cnty. of San Diego (2007) 156 Cal. App. 4th 238, 260. Finally, 25 the cited PERS statutes are not meant to protect against the kind of injury alleged here. 26 The Complaint should therefore be dismissed without leave to amend. 27 28 2- REPLY IN SUPPORT OF DEMURRER, Case No. 19CV346252 IL. ARGUMENT A. The District Is Immune From Liability For Misrepresentations Under California Government Code Sections 818.8 and 822.2. 1 Plaintiff Wrongly Relies on Connelly and Its “Commercial Transaction” Language Plaintiff's argument that “the wrong done to Mrs. Dikes did not arise from any commercial business transaction between plaintiff and the District” (Opp’n at 2:24-3:2) is deeply flawed. Johnson, the seminal California Supreme Court case on the subject, did not require a misrepresentation in the course of a “commercial transaction” between a defendant and a plaintiff. Johnson held exactly this: “ In short, ‘misrepresentation,’ as a tort distinct from the general milieu of negligent and intentional wrongs, 10 applies to interferences with financial or commercial interest. The Legislature designed section 818.8 ll to exempt the governmental entity from this type of liability.” Johnson, 69 Cal. 2d at 800. As a Court of 12 Appeal has explained, “[i]n Johnson . . . [t]he Supreme Court did not suggest . . . that the plaintiff's loss 13 must have resulted from a commercial transaction with the state. Rather, the public entity's 14 representation need only ‘interfere’ with the plaintiffs financial or commercial interests.” Jopson, 108 15 Cal. App. 4th at 501. 16 Furthermore, Plaintiff concedes that the Court of Appeal in Michael J. unambiguously stated that 17 “contracting for a pension” falls within the financial or commercial interests covered by Section 818.8. Bs 18 See Opp’n at 3:10-12. Plaintiff attempts to brush the statement off as “obiter dictum,” but Plaintiff fails 19 to grapple with the fact that Michael J.’s logic is sound—interference with a pension, as is alleged here, 20 is clearly interference with a “financial or commercial interest” under Johnson. Plaintiff's related 21 argument that “Plaintiffs claim does not arise from any contract for pension between Plaintiff and the 22 District” (Opp’n at 3:5-6) is bogus. The source of Plaintiff's pension benefits is a contract—in particular, 23 a memorandum of understanding—between Plaintiffs bargaining unit and the District, which sets the 24 pension rates and vesting for Plaintiff. And in any event, Plaintiff's alleged pension benefits at least arise 25 from the employment relationship between Plaintiff and the District. 26 Rather than confront Johnson’s broad language, Plaintiff relies heavily on Connelly v. State of 27 California, which at one point appears to require a “commercial transaction” between the plaintiff and 28 defendant. See Connelly, 3 Cal. App. 3d at 752. Connelly’s analysis, however, has been criticized by 3- REPLY IN SUPPORT OF DEMURRER Case No. 19CV346252 Courts of Appeal for its “‘aberrational logic.” See Jopson, 108 Cal. App. 4th at 501. Put most succinctly by the Court of Appeal in Jopson: “Connelly unduly restricts governmental immunity by narrowly construing what constitutes both a misrepresentation and a commercial interest. In both aspects, the Connelly majority stands alone.” Id. at 502; Tokeshi v. State of Cal. (1990) 217 Cal. App. 3d 999, 1008 (“In our view, by focusing on the negligent manner by which the public agency derived its forecast— instead of examining the statement itself—the Connelly majority created an artificial distinction which we decline to follow.”); Burden v. Cnty. of Santa Clara (2000) 81 Cal. App. 4th 244, 250 (“The analysis of Connelly regarding the scope of section 818.8 immunity has been questioned by another Court of Appeal,” and finding that, in any event, Connelly was distinguishable) (citing Tokeshi). This Court, too, 10 should reject Connelly and its two-justice majority’s flawed logic. ll Furthermore, Connelly is distinguishable. Connelly involved a city providing allegedly false 12 general river forecasts, which led to damage to plaintiffs apartment building and marina docks. Here, in 13 contrast, Plaintiff essentially alleges that the District lied to her (and to CalPERS) about what money was 14 owed to her on retirement. That is a much closer nexus between the alleged misrepresentation and a 15 financial or commercial interest than the situation in Connelly. 16 Finally, Plaintiff’s attempts to distinguish the myriad on-point cases in Defendant’s opening brief 17 should be rejected. ! Bs 18 2. The Gravamen of the Complaint Involves a Misrepresentation. 19 Plaintiffs attempts to recast the gravamen of the complaint are mere sophistry. As the Court of 20 Appeals in Tokeshi court made clear, the gravamen of a complaint under Section 818.8 involves the link 21 between the alleged damage and an alleged misrepresentation. See Tokeshi, 217 Cal. App. 3d at 1008. 22 Plaintiff's allegations could not make the connection any clearer: “Plaintiff would not have retired but 23 for the negligence of the District in hiring and retaining unqualified personnel in the Benefits 24 administration who erroneously included the higher temporary salary of the Program Administrator 25 position as ‘reportable compensation’ used to calculate[] Plaintiff’s CalPERS benefits” (Compl. { 14); 26 27 ' For example, Plaintiff argues that Harshbarger v. City of Colton ruled that the public entity was immune under Section 818.6, immunity for inspection. Opp’n at 5:19-23. But in fact, the Court ruled 28 that the public entity was immune under both Sections 818.6 and 818.8 (at issue here). Harshbarger v. City of Colton, 197 Cal. App. 3d 1335, 1339-44. -4- REPLY IN SUPPORT OF DEMURRER Case No. 19CV346252 “Rodriguez told Plaintiff, ‘per the MOU,’ the ‘highest 12 months’ from which her benefits would be calculated included the 10% increased salary . . . [from Plaintiff's] Program Administrator position” (id. 4 11); “[i]t was foreseeable to the District that if Rodriguez and her staff erroneously reported to CalPERS the highest 12 months of compensation and employees relied on that reporting they could suffer damage” (Compl. § 28). This case fits squarely within Tokeshi’s analogous holding that “[rjegardless of the way plaintiffs couch their allegations, the gravamen of the action, pure and simply, is that they suffered injuries purportedly caused by their reliance on [the District’s] misinformation.” Tokeshi, 217 Cal. App. 3d at 1008.7 Rather than admit the centrality of misstatements to Plaintiff's claim, Plaintiff argues that the 10 District was performing an “operational task,” and the alleged misstatements were simply incidental to ll that task. Opp’n at 4:3-5. In an analogous factual situation involving alleged miscalculation of 12 environmental credits, Jopson rejected the very “operational task” argument that Plaintiff now asserts, 13 and instead held that the gravamen of the negligence cause of action involved a misrepresentation. See 14 Jopson, 108 Cal. App. 4th at 497-502. As the Jopson Court of Appeals explained: 15 Jopson maintains that the District's calculation of ERC's involved an “operational task” giving rise to a cause of action in negligence and not the communication of information . . 16 . . Jopson, in reply, makes a gallant effort to distinguish [various] cases, arguing that they address simple misrepresentations of existing facts as opposed to negligent performance of 17 the technical operational tasks of identifying, calculating, and banking ERC’s. Not so. The public entities in Brown, Hirsch, Grenell, Harshbarger, and Tokeshi did not simply act as Bs 18 conduits of information. In each case, the public entity took preliminary steps to ascertain information but, in doing so, either wrongfully or negligently obtained false information. 19 They either misapplied their own ordinances and rules to the relevant factual scenarios or failed to process applications properly. The same is true here. The District, by using an 20 erroneous loading factor, also obtained false information. Like an inflated appraisal, an erroneous building inspection, a mistaken certificate of ownership, a false zoning report, 21 or ill-advised instructions, the miscalculation of the ERC's constituted misinformation communicated by a governmental entity. The miscalculation may have preceded the 22 communication, but based on analogous facts in the cases cited above, we conclude the District is shielded from liability for having misrepresented the true (and indeed existing) 23 fact that Jopson had earned but a small percentage of the ERC’s it was issued. 24 Id. at 499. This Court should similarly reject Plaintiffs “operational task” arguments. 25 The primary case cited in Plaintiff's opposition brief is Ingham v. Eastern Air Lines, Inc. (2d Cir. 26 27 ? The only case that appears to have addressed the 28 ‘thecific allegations here—misreporting compensable income to CalPERS—is unpublished, but held that e action was barred by Section 818.8, even when the plaintiff couched its allegations in terms of negligence. See Brand v. City of Palo Alto (2005) 2005 WL 1808417, at *3-6 (unpublished). -5- REPLY IN SUPPORT OF DEMURRER Case No. 19CV346252 1967) 373 F.2d 227. This case involved an alleged failure to warn an incoming plane that crashed, injuring and killing those aboard. The Second Circuit held that the misrepresentation immunity of the Federal Tort Claims Act—which has a similar financial or commercial interests requirement established by the U.S. Supreme Court in United States v. Neustad (1961) 366 U.S. 696—did not apply because “[t]he Neustadt case involved business dealings of a financial or commercial character with the government, a totally different setting from the instant [Ingham] action.” Ingham, 373 F.2d at 239. Indeed, the Ninth Circuit has explained that airplane crash cases and medical services cases are generally held to be outside the misrepresentation exception, which also distinguishes Plaintiff's citation to Guild v. United States (Opp’n at 4:23-2). See Green v. United States, 629 F.2d 581, 584-85.° Here, in contrast, 10 misrepresentations involving financial interests are at the heart of the matter. Ingham is therefore ll distinguishable. Plaintiff's various other federal cases are also distinguishable because, as explained in 12 Jopson, they all involve the federal government becoming voluntarily involved in the design, planning, 13 supervision, inspection, or direction of projects and activities. See Jopson, 108 Cal. App. 4th at 499-501 14 (explaining that Block v. Neal, Guild v. United States, and other federal cases involved “various public 15 entities bec[oming] actively involved in either designing, planning, supervising, inspecting or directing 16 projects or activities,” and that “[e]ach involved an alleged breach of duty arising from governmental 17 conduct completely divorced from any attendant communication.”) Jopson’s conclusion similarly applies Bs 18 here: “We simply cannot say that the mathematical calculation of ERC’s is equivalent to designing a dam 19 or supervising the construction of a house.” Jopson, 108 Cal. App. 4th at 500. 20 Because the gravamen of the Complaint clearly involves reliance on alleged misrepresentations, 21 the Court should hold that Section 818.8 immunity applies to shield the District. 22 3. Plaintiff Should Not be Granted Leave to Amend. 23 Plaintiff should not be granted leave to amend. The Complaint admits that Plaintiff's damages in 24 this action are based on alleged misstatements by District to both Plaintiff and CalPERS. Here, Plaintiff 25 cannot offer a reasonable explanation of why her allegations of reliance on alleged misstatements was a 26 27 fe 3 Plaintiff's citation to Green is puzzling, as the Ninth Circuit upheld ap lication of the misrepresentation immunity when the government issued a letter regarding grazing of catt! le that allegedly omitted 28 information regarding its DDT program, and the plaintiff's cattle were harmed as a result. This case supports Defendant’s arguments. Green, 629 F.2d at 584-85. -6- REPLY IN SUPPORT OF DEMURRER Case No. 19CV346252 mistake or should be otherwise ignored in future pleadings, and thus the Court would read those allegations into the amended complaint. See Tindell v. Murphy (2018) 22 Cal. App. 5th 1239, 1248 (“[T]he sham pleading doctrine prevents a plaintiff from attempting to breathe life into a complaint by omitting relevant facts from an amended complaint that made plaintiff's previous complaint defective.”); Hendy v. Losse (1991) 54 Cal. 3d 723, 742-43. Any amendment would therefore be futile. B Plaintiff Fails to Allege the Elements Necessary for Negligence in Hiring, Retention, or Supervision. Immunity under Section 818.8 prevails over liability under any theory of negligence, including a “mandatory duty” theory under Section 815.6. See Haggis v. City of Los Angeles (2000) 22 Cal. 4th 490, 10 503-05 (holding that immunity for inspection under Section 818.6 prevails over a claim under Section ll 815.6); Cal. Gov’t Code § 815(b) (immunity provisions of Tort Claims Act prevail over liability 12 provisions). Thus, if the Court finds immunity under Section 818.8, it need not address any further 13 arguments. 14 However, should the Court address the substance of Plaintiffs cause of action, the cause of action 15 must fail. 16 1. Plaintiff Concedes that Her Common Law Action For Negligence in Hiring 17 and/or Supervision Fails. Bs 18 Plaintiff does not contest that, as set forth in de Villers, a stand-alone common law cause of action 19 for negligent hiring must fail under either a vicarious liability or direct liability theory. See de Villers, 20 156 Cal. App. 4th at 248-56. For example, nowhere does Plaintiff address whether a “special 21 relationship” exists between Plaintiff (no such relationship exists). And nowhere does Plaintiff dispute 22 de Villers’ statement that the Court of Appeal “flound] no relevant case law approving a claim for direct 23 liability based on a public entity’s allegedly negligent hiring and supervisions practices.” Jd. at 252. 24 Plaintiff therefore concedes that her common law negligence-in-hiring claim must fail. 25 2. Plaintiff’s Theory of Liability Under Section 815.6 Is Not Pled in the Complaint. 26 Rather than pursue a common law claim of negligence in hiring or promotion, Plaintiff now 27 appears to rely on negligence-per-se under a “mandatory duty” theory pursuant to Section 815.6. See 28 Opp’n at 7:19-10:12; see Alejo v. City of Alhambra (1999) 75 Cal. App. 4th 1180, 1185 n.3 -7- REPLY IN SUPPORT OF DEMURRER Case No. 19CV346252 (“Government Code section 815.6 applies the negligence per se doctrine to public entities.”) disapproved on other grounds by B.H. v. Cnty. of San Bernardino (2015) 62 Cal. 4th 168, 187-88. Yet Plaintiffs theory of a “mandatory duty” under Section 815.6 does not appear in the Complaint. See de Villers, 156 Cal. App. 4th at 248-63 (analyzing a common law negligent hiring/supervision claim and a “mandatory duty” claim under Section 815.6 under two separate theories); see generally Compl. (failing to assert a “mandatory duty” or cite Section 815.6). On this ground alone, Plaintiff's arguments should be rejected. 3. Plaintiff's Theory of Liability Under Section 815.6 Fails as a Matter of Law. Yet even if Plaintiff had pled a “mandatory duty” claim, that claim must fail. Plaintiff asserts that certain PERS statutes impose “a duty of care (1) to design, build and operate an accurate and lawful 10 accounting system . . . and (2) hire qualified people knowledgeable in the applicable rules defining what ll is ‘Compensation Earnable. os Opp’n at 8:7-12. Plaintiff points to several statutes in support of this 12 argument, none of which actually support a claim under Section 815.6. 13 First, nothing in the statutes address the structure of a reporting system or the qualifications for 14 employees who report contributions to CalPERS. The closest provisions only provide that an employer 15 must explain to an employee the elements of compensation that will be reported to CalPERS (Gov’t 16 Code § 21063), and that the public employer report contribution information to CalPERS (2 C.C.R. 17 § 565.1). That’s it. There is no duty even remotely resembling the two duties Plaintiff asserts here. This Bs 18 Court should not—and cannot—take an expansive view of these statutes to impose further actionable 19 duties on public entities such as the District, as the California Supreme Court has warned that the intent 20 of the Tort Claims Act “is not to expand the rights of plaintiffs in suits against government entities, but to 21 confine potential governmental liability to rigidly delineated circumstances.” Zelig v. Cnty. of L.A. 22 (2002) 27 Cal. 4th 1112, 1127-28 (quotations and citation omitted). 23 Second, even if the duties alleged by Plaintiff can be cobbled together from the cited statutes 24 (they cannot), as explained in de Villers, the alleged duties are not “mandatory” under 815.6. “It is not 25 enough . . . that the public entity or officer have been under an obligation to perform a function if the 26 function itself involves the exercise of discretion.” de Villers, 156 Cal. App. 4th at 256. Mandatory 27 duties are found “only where the statutorily commanded act did not lend itself to a normative o1 28 qualitative debate over whether it was adequately fulfilled.” Jd. at 260. “A statute is deemed to impose -8- REPLY IN SUPPORT OF DEMURRER Case No. 19CV346252 a mandatory duty on a public official only if the statute affirmatively imposes the duty and provide. implementing guidelines.” O'Toole v. Sup. Ct. (2006) 140 Cal. App. 4th 488, 510 (emphasis added). Even presuming that the District should “design, build and operate an accurate and lawful accounting system,” that is exactly the kind of discretionary, malleable process which would require normative and qualitative debate over whether the system was adequate, and therefore lies outside Section 815.6. See Lockhart v. County of Los Angeles (2007) 155 Cal. App. 4th 289, 308-09 (regulation requiring provision of “sufficient nursing staff’ did not impose mandatory duty to provide certain number of nursing staff); see also de Villers, 156 Cal. App. 4th at 259 (federal regulation lay outside scope of Section 815.6 where it “require[d] a registrant to provide ‘effective’ controls to ‘guard against’ 10 theft of controlled substances, but d[id] not impose a mandatory obligation to guarantee no materials will ll ever be stolen,” d “[t]he regulation d[id] not mandate that any particular method or procedure be 12 adopted to guard against theft”); Creason v. Dep’t of Health Servs. (1998) 18 Cal. 4th 623, 631-32 13 (where legislature required formulating testing standards but also gave the agency “substantial discretion 14 in formulating and reporting appropriate testing standards,” Section 815.6 did not apply); Donoho v. 15 County of Sonoma, 2015 WL 3866228, at *3 (N.D. Cal. June 22, 2015) (provision requiring employers to 16 furnish employment and place of employment that is “safe and healthful for the employees therein” 17 imposed no mandatory duty). Surely how to create such an accounting system would vary depending on Bs 18 the public entity, its manpower, its number of CalPERS-enrolled employees, and other factors.* 19 Similarly, Plaintiff argues that the cited statutes impose a duty to “hire qualified people 20 knowledgeable in the applicable rules defining what is “Compensation Earnable,”” but this, too, involves 21 a significant amount of discretion and is subject to qualitative and normative debate. See Herrera v. L.A. 22 Unified Sch. Dist., 2019 WL 1581413, at *6-7 (C.D. Cal. Feb. 13, 2019) (dispute over whether lifeguards 23 were adequately trained as required by a health and safety code was outside Section 815.6). 24 Plaintiff has not cited a single case in which a Court found a statute to impose a duty even close 25 to those proffered in her opposition brief. To impose Plaintiff's proposed duties would be a policy 26 27 4 Plaintiffs citation to Dabis v. San Francisco Redev. Agency (1975) 50 Cal. App. 3d 704 as standing for the proposition that duties can be implied is misplaced. Opp’n at 7:22-24. First, the Court did not address Section 815.6. Second, the regulatory language was much clearer about the standard of care 28 imposed and the public agency’s role in ensuring that standard of care. Finally, the great weight of authority has shifted away from Dabis’ holding. -9- REPLY IN SUPPORT OF DEMURRER Case No. 19CV346252 disaster. The CalPERS statutory scheme already includes provisions as to how CalPERS handles errors or omissions of reportable income. See, e.g., Cal. Gov’t Code § 20160. If Plaintiff's proposed duties were adopted, any public employer that over-reported income could suddenly face—in addition to CalPERS scrutiny—a lawsuit from an allegedly aggrieved employee based on the alleged qualifications of the public entity’s personnel. There could be a floodgate of litigation over simple math errors, and the lawsuits could pit CalPERS’ determinations regarding reporting accuracy against employees’ beliefs about reporting accuracy and the competence of staff. Finally, the PERS statutory scheme was not designed to protect against the particular injury alleged here—retiring based on misrepresentations about benefit levels. See Nunn v. State of Cal. (1984) 10 35 Cal. 3d 616, 625 (explaining that even ifa mandatory duty promulgated by the regulations existed, 11 “section 815.6 requires that the statute imposing such a mandatory duty be designed to protect against the 12 risk of the particular kind of injury which occurred) (quotations, citation and alterations omitted). The 13 PERS statutory scheme is intended to “ensure the continued ability of the board to invest the retirement 14 fund and administer the system in conformity with its duties and responsibilities and to ensure that 15 members are provided with the retirement and related benefits to which they are entitled pursuant to 16 law.” Gov’t Code § 2004(a). Plaintiff concedes that the lower-than-expected retirement benefits she 17 receives are the correct amount of benefits. The PERS statutes cited by Plaintiff all facilitate reporting so 18 that CalPERS can “fund and administer the system,” or involve communications to employees about the 19 funds “to which they are entitled.” The PERS statutes are not intended to protect against alleged 20 misrepresentations that inflate the expectations of employees. 21 IIL. CONCLUSION 22 For the reasons stated above, the Court should grant the District’s demurrer and dismiss the sole 23 cause of action in the Complaint with prejudice and without leave to amend. 24 DATED: August 12, 2019 RENNE PUBLIC LAW GROUP 25 ———— cares 1 26 By ae Ian T. Long 27 Attorneys for Defendant, SANTA CLARA 28 VALLEY WATER DISTRICT -10- REPLY IN SUPPORT OF DEMURRER Case No. 19CV346252 PROOF OF SERVICE I, the undersigned, am employed by RENNE PUBLIC LAW GROUP. My business address is 350 Sansome Street, Suite 300, San Francisco, California 94104. I am readily familiar with the business practices of this office. | am over the age of 18 and not a party to this action. On August 12, 2019, I served the following document(s): REPLY IN SUPPORT OF DEMURRER by the following method(s): x United States Mail. I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses on the attached Service List and deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. Overnight delivery. I enclosed the document(s) in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses on the attached Service 10 List. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. 11 Electronic Mail. Based on an agreement of the parties to accept service by e-mail, copies of the 12 above document(s) in PDF format were transmitted to the e-mail addresses of the parties on the attached Service List on August 12, 2019. 13 14 SERVICE LIST 15 Phillip J. Griego, Esq. Attorneys for Plaintiff LAW OFFICE OF PHILLIP J. GRIEGO TERRI DIKES 16 95 South Market Street, Suite 500 San Jose, CA 95113 17 Telephone: (408) 293-6341 18 Facsimile: (408) 865-7936 19 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 12, 2019 at San Francisco, California. 20 21 fdestape Tebrrer— 22 9) Bobette M. Tolmer 23 24 25 26 27 28 -ll- REPLY IN SUPPORT OF DEMURRER Case No. 19CV346252