In Krolikowski v. San Diego City Employees' Retirement System, published June 14, 2018, the Fourth District Court of Appeal, Division 1 affirmed judgment after a bench trial in favor of the defendant retirement system. Decades after the plaintiffs, retired city employees, began drawing pensions, SDCERS determined that it had calculated the pensions incorrectly, and was overpaying the plaintiffs. SDCERS informed the plaintiffs they would have to pay back the excess amounts, and that their payments henceforth would be reduced to the correct amounts. Both plaintiffs pursue administrative appeals. The plaintiffs sued SDCERS for conversion, breach of fiduciary duty, declaratory relief, and writs of ordinary mandamus (Code of Civil Procedure section 1085). The trial court sustained demurrers on the tort causes of action, and then ruled for SDCERS on the remaining causes of action.
The appellate court affirmed the judgment on the tort causes of action on the ground of statutory immunity. The decisions to recover the overages were policy-level exercises of discretion that were protected by the discretionary immunity, Government Code section 820.2. SDCERS was therefore entitled to the immunity under Government Code section 815.2, subdivision (b) (vicarious liability of public entity subject to any immunity that protects the employees for whose acts or omissions the entity is liable). The court rejected the argument that the torts were not subject to immunity because they were based on provisions of the state constitution. Since the state constitution did not create the conversion or fiduciary duty causes of action the plaintiffs asserted, the claims were based on common law, and thus subject to the Government Code immunities. The court further held that the evidence in the case supported the trial court's ruling that no writ relief was appropriate, and that SDCERS was not equitably estopped from seeking the repayments.
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