The opinion
Filed 11/28/22 Conway v. San Diego City Employees’ Retirement System CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SEAN CONWAY et al., D079355
Plaintiffs and Appellants,
v. (Super. Ct. No.
37-2020-00007020-CU-FR-CTL)
SAN DIEGO CITY EMPLOYEES’
RETIREMENT SYSTEM et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Gregory W. Pollack, Judge. Affirmed.
Law Office of Michael A. Conger and Michael A. Conger for Plaintiffs
and Appellants, Sean Conway and Susanne Conway.
Noonan Lance Boyer & Banach, David J. Noonan and Genevieve M.
Ruch for Defendants and Respondents, San Diego City Employees’
Retirement System and Sandra Claussen.
Plaintiffs and appellants Sean Conway and Susanne Conway sued the
San Diego City Employees’ Retirement System (SDCERS) and its
employee/medical review officer Sandra Claussen for breach of fiduciary duty
and damages arising out of Claussen’s alleged assurances that Sean Conway 1
would not lose his disability pension by taking a new job, and SDCERS’s
ensuing administrative proceeding requiring him to establish entitlement to
his pension. The trial court sustained SDCERS and Claussen’s demurrer to
plaintiffs’ operative complaint without leave to amend, ruling the action was
barred by Government Code2 sections 821.6 and 815.2, as the gravamen of
the plaintiffs’ claim was one for malicious prosecution: that SDCERS
wrongfully commenced an action against Conway based on Claussen’s
concealment.
On appeal, plaintiffs contend the court should have granted them leave
to amend state claims against SDCERS for its violation of section 815.6 in
failing to discharge a mandatory duty, and against Claussen for actual
malice, corruption or fraud. They further contend the court erred by applying
section 821.6, as their lawsuit was not based on SDCERS’s steps to ensure
payment of proper disability benefits, but on Claussen’s actions in, among
other things, failing to properly advise them about the risks of Conway
accepting a new job, which had nothing to do with SDCERS’s administrative
process. Plaintiffs finally contend that contrary to SDCERS’s argument,
their government claim was timely filed on the basis of delayed discovery due
to Claussen’s intentional concealment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We state the facts from plaintiffs’ operative complaint. In so doing, we
accept the truth of material facts properly pleaded, not “contentions,
deductions, or conclusions of fact or law,” and consider matters properly
1 References to Conway are to Sean Conway.
2 Undesignated statutory references are to the Government Code.
2
subject to judicial notice. (Roy Allan Slurry Seal, Inc. v. American Asphalt
South, Inc. (2017) 2 Cal.5th 505, 512; State Dept. of State Hospitals v.
Superior Court (2015) 61 Cal.4th 339, 346; San Diego Unified School Dist. v.
Yee (2018) 30 Cal.App.5th 723, 726.)
In 2004, Conway, then an officer for the San Diego Police Department,
sustained a work-related back injury resulting in multiple surgeries and
spinal fusions. In 2008, Claussen, a medical review officer employed by
SDCERS, recommended that SDCERS’s board approve Conway’s disability
retirement. SDCERS granted Conway permanent disability retirement after
finding his injuries had resulted in permanent incapacity from the
substantial performance of his duties.
Conway and his family moved to Idaho in 2008. The following year, he
obtained a job as a jail technician, and later secured a job as a detention
specialist at a juvenile detention facility.
In 2013, Conway considered applying for a position as a detention
deputy in an Idaho county jail that paid $23 per hour, but became concerned
that accepting this position might jeopardize his disability pension. That
year, plaintiffs met with Claussen to inquire whether Conway’s acceptance of
the detention deputy position would jeopardize his disability pension.
Claussen told plaintiffs that the position was similar to a corrections deputy
in the San Diego County Jail system run by the San Diego County Sheriff,
and that since the San Diego Police Department did not staff jails, there was
no comparable position with the San Diego Police Department so that
Conway’s taking the Idaho position would not jeopardize his disability
pension. Plaintiffs asked Claussen multiple times to put her assurances in
writing, but she declined, telling them, “We don’t do that, but you have
nothing to worry about.”
3
Conway took the Idaho position. Claussen intentionally concealed her
assurances to plaintiffs from SDCERS, which later commenced an
administrative action to have Conway’s disability retirement taken away.
Plaintiffs did not discover Claussen’s concealment until they deposed her in
June 2019. That month, Conway and SDCERS participated in a hearing
before a retired judge. The judge ruled in Conway’s favor and recommended
his disability retirement continue. In November 2019, the SDCERS board
voted to continue his disability retirement.
Plaintiffs sued SDCERS for intentional and negligent representation
and concealment. In part, they alleged that had Claussen told Conway that
taking the Idaho detention deputy position would have jeopardized his
disability retirement, Conway would not have taken the position but he took
it as a result of her statements. They alleged Claussen either knew her
representations were false when she made them or she made them recklessly
and without regard for their truth, Claussen intended plaintiffs rely on her
representations, and plaintiffs’ reliance on them was a substantial factor in
causing them harm.
After SDCERS demurred, plaintiffs filed a first amended complaint
alleging a single cause of action for breach of fiduciary duty against both
SDCERS and Claussen. The operative complaint was based on the same
underlying facts, but added allegations concerning Claussen’s intentional
concealment and plaintiffs’ failure to discover it. Plaintiffs alleged that “in
her position as medical review officer, Claussen acts as an administrator of
SDCERS.” (Some capitalization omitted.) Plaintiffs alleged they “incurred
substantial expenses and suffered substantial emotional distress during
SDCERS’ efforts to eliminate [Conway’s] disability pension.”
4
SDCERS and Claussen again demurred, arguing a fair reading of the
first amended complaint showed it was premised on allegations that
plaintiffs were wrongfully subjected to the administrative process, but
SDCERS and Claussen were absolutely immune from liability under the
Government Code for prosecuting an administrative proceeding. Specifically,
they argued Claussen’s actions in instituting any judicial or administrative
proceeding within the scope of her employment, even if malicious or without
probable cause, were immune under section 821.6 and because she was
immune, SDCERS was likewise immune under section 815.2, subdivision (b).
They further argued that Claussen as a medical advisor did not stand in a
fiduciary relationship to Conway in any event, but even if she did, she did not
breach any fiduciary duty, which was only to fully and fairly describe the
retirement plan or various options and procedures. Finally, SDCERS and
Claussen argued plaintiffs’ claims were barred because they failed to timely
comply with the Government Claims Act filing requirements under section
911.2, subdivision (a). They argued plaintiffs could not amend their
complaint to state a valid cause of action, asking the court to sustain the
demurrer without leave to amend. SDCERS and Claussen sought judicial
notice of certain SDCERS board rules, several Municipal Code sections, the
filing and contents of plaintiffs’ government claim, and the retired judge’s
proposed statement of decision on SDCERS’s proceeding to review Conway’s
retirement disability.
In opposition, plaintiffs argued they were not suing because SDCERS
brought an administrative proceeding, but because Claussen intentionally
concealed relevant evidence from the SDCERS’s board. They argued case
law—Masters v. San Bernardino County Employees Retirement Assn. (1995)
32 Cal.App.4th 30 (Masters) and Hittle v. Santa Barbara County Employees
5
Retirement Assoc. (1985) 39 Cal.3d 374 (Hittle)—refuted the argument that
they could not state a claim for breach of fiduciary duty as their claim was
that Claussen intentionally concealed her statements from SDCERS, which
was assertedly conduct that survived a demurrer in Masters. Plaintiffs
argued the Government Claims Act did not apply to their claim, which was
timely because they adequately pleaded delayed discovery of Claussen’s
intentional concealment. They argued the court should grant leave to amend
any defect found in their pleading.
Granting SDCERS and Claussen’s request for judicial notice, the trial
court sustained the demurrer without leave to amend. It ruled: “The
substance or gravamen of plaintiffs’ claim is that the SDCERS Board’s action
was wrongfully commenced against Conway based upon Claussen’s
concealment, i.e., it was Claussen’s concealment that caused the action to be
brought against Conway. ‘The test [for malicious prosecution] is whether the
defendant was actively instrumental in causing the prosecution.’ [Citation.]
That plaintiffs labeled their cause of action ‘breach of fiduciary duty’ does not
take away Claussen’s . . . [section] 821.6 immunity given the fact that
Conway has alleged that it was Claussen’s breach of fiduciary duty that
caused the prosecution of the action against him by SDCERS.” (Italics
omitted.) The court further ruled that the absolute immunity of section 821.6
was not limited to malicious prosecution causes of action, but “extends to
claims for defamation and intentional infliction of emotional distress, as well
as acts undertaken in the course of the investigation, statements made to a
plaintiff in the course of investigating, action taken in preparation for filing
or prosecuting a judicial or administrative complaint, and pre-filing
investigation even if authorities later decide not to file charges.” It ruled
Claussen’s act of concealment fell within the statute’s coverage. It ruled
6
Masters, supra, 32 Cal.App.4th 30 did not consider or cite section 821.6, and
thus did not assist plaintiffs. The court ruled that because Claussen was
immune, SDCERS was immune under section 815.2. It denied leave to
amend, finding there was no reasonable possibility plaintiffs could amend to
state a viable cause of action.
Plaintiffs filed this appeal from the order, and we construed it as an
appeal from the ensuing judgment of dismissal.
DISCUSSION
I. Standard of Review
We apply well settled standards. “ ‘In reviewing an order sustaining a
demurrer, we examine the operative complaint de novo to determine whether
it alleges facts sufficient to state a cause of action under any legal theory.’
[Citation.] ‘ “ ‘ “We treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or
law. . . . We also consider matters which may be judicially noticed.” . . .
Further, we give the complaint a reasonable interpretation, reading it as a
whole and its parts in their context.’ ” ’ ” (Mathews v. Becerra (2019) 8
Cal.5th 756, 768.) “We ‘accept as true not only those facts alleged in the
complaint, but also facts that may be implied or inferred from those expressly
alleged.’ ” (Munoz v. Patel (2022) 81 Cal.App.5th 761, 771.) “ ‘ “ ‘[A]
demurrer based on an affirmative defense will be sustained only where the
face of the complaint discloses that the action is necessarily barred by the
defense.’ ” ’ ” (Silva v. Langford (2022) 79 Cal.App.5th 710, 716.)
We affirm the judgment if it is correct on any ground stated in the
demurrer whether or not the trial court relied on it, liberally construing the
pleading with a view to substantial justice between the parties. (Code Civ.
Proc., § 452; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967;
7
Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726; San Mateo
Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418,
425; Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th
837, 848.)
When a demurrer is sustained without leave to amend, we decide
whether there is a reasonable possibility that the defect can be cured by
amendment. (Centinela Freeman Emergency Medical Associates v. Health
Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) “ ‘ “The burden of proving
such reasonable possibility is squarely on the plaintiff.” ’ ” (Ibid.; Srouy v.
San Diego Unified School Dist. (2022) 75 Cal.App.5th 548, 559 (Srouy).)
II. Violation of Section 815.6 For Failure to Discharge a Mandatory Duty
The Conways contend the trial court should have granted them leave to
amend because their operative complaint states a cause of action against
SDCERS for breach of a mandatory duty to provide its beneficiaries accurate
advice. They base their claim on three predicates that they say required
SDCERS to perform this duty: (1) Probate Code section 16002; (2) article
XVI, section 17 of the California Constitution; and (3) Civil Code sections
1709 and 1710.3 Assessing each of these enactments separately below, we
reject the contention.
A. Legal Principles
Under the Government Claims Act, a public entity is not liable for
injury “ ‘[e]xcept as otherwise provided by statute.’ ” (State Dept. of State
3 SDCERS and Claussen complain that plaintiffs raise section 815.6
liability as an entirely new theory not mentioned in the trial court. But it is
settled that a plaintiff may propose an amendment at any time, even for the
first time on appeal. (640 Tenth, LP v. Newsom (2022) 78 Cal.App.5th 840,
865; Salazar v. Target Corporation (2022) 83 Cal.App.5th 571, 577; Mercury
Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1072.)
8
Hospitals v. Superior Court, supra, 61 Cal.4th at p. 348; Srouy, supra, 75
Cal.App.5th at p. 559.) Section 815.6 is one of these statutes. (State Dept., at
p. 348.) “[T]he intent of the act is not to expand the rights of plaintiffs in
suits against governmental entities, but to confine potential governmental
liability to rigidly delineated circumstances: immunity is waived only if the
various requirements of the act are satisfied.” (Williams v. Horvath (1976) 16
Cal.3d 834, 838.)
Section 815.6 provides: “Where a public entity is under a mandatory
duty imposed by an enactment that is designed to protect against the risk of
a particular kind of injury, the public entity is liable for an injury of that kind
proximately caused by its failure to discharge the duty unless the public
entity establishes that it exercised reasonable diligence to discharge the
duty.” “Thus, the government may be liable when (1) a mandatory duty is
imposed by enactment, (2) the duty was designed to protect against the kind
of injury allegedly suffered, and (3) breach of the duty proximately caused
injury.” (State Dept. of State Hospitals v. Superior Court, supra, 61 Cal.4th at
p. 348.)
“Courts have delineated what is necessary to establish a mandatory
duty. ‘First and foremost, . . . the enactment at issue [must] be obligatory,
rather than merely discretionary or permissive, in its directions to the public
entity; it must require, rather than merely authorize or permit, that a
particular action be taken or not taken.’ [Citation.] ‘It is not enough,
moreover, that the public entity or officer have been under an obligation to
perform a function if the function itself involves the exercise of discretion.’
[Citation.] Moreover, ‘[c]ourts have . . . [found] a mandatory duty only if the
enactment “affirmatively imposes the duty and provides implementing
guidelines.” ’ [Citation.] ‘ “ ‘[T]he mandatory nature of the duty must be
9
phrased in explicit and forceful language.’ [Citation.] ‘It is not enough that
some statute contains mandatory language. In order to recover plaintiffs
have to show that there is some specific statutory mandate that was violated
by the [public entity].’ ” ’ ” (State Dept. of State Hospitals v. Superior Court,
supra, 61 Cal.4th at pp. 348-349; see Srouy, supra, 75 Cal.App.5th at pp. 559-
560.)
“ ‘[E]qually important, . . . section 815.6 requires that the mandatory
duty be “designed” to protect against the particular kind of injury the
plaintiff suffered. The plaintiff must show the injury is “ ‘one of the
consequences which the [enacting body] sought to prevent through imposing
the alleged mandatory duty.’ ” ’ ” (Srouy, supra, 75 Cal.App.5th at p. 560,
quoting Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499 (Haggis).)
“Finally, the breach of the duty must have been a proximate cause of the
plaintiff’s injury.” (Srouy, at p. 560.)
“Whether an enactment imposes ‘a mandatory duty, rather than a mere
obligation to perform a discretionary function, is a question of statutory
interpretation for the courts.’ [Citation.] The enactment’s ‘language “is, of
course, a most important guide in determining legislative intent, [but] there
are unquestionably instances in which other factors will indicate that
apparent obligatory language was not intended to foreclose a governmental
entity’s or officer’s exercise of discretion.” ’ [Citation.] For example, the word
‘shall’ is ‘mandatory’ for purposes of the Welfare and Institutions Code.
[Citations.] ‘However, as we have emphasized, this term’s inclusion in an
enactment does not necessarily create a mandatory duty’ within the meaning
of Government Code section 815.6.” (State Dept. of State Hospitals v.
Superior Court, supra, 61 Cal.4th at p. 349.) If a plaintiff has not alleged an
10
actionable breach of a mandatory duty, the question of immunity does not
arise. (State Dept., at p. 348.)
Thus, in State Dept. of State Hospitals v. Superior Court, the California
Supreme Court found a mandatory duty existed in the Sexually Violent
Predators Act (SVPA) in the context of a State Department of Mental Health
(DMH) evaluation made after a Department of Corrections determination
that a person was likely to be a sexually violent predator. (State Dept., supra,
61 Cal.4th at p. 350.) There, an inmate raped and murdered a victim days
after he was paroled from state prison. (Id. at p. 343.) Before his release, his
matter was referred by the Department of Corrections to DMH for an
assessment of whether he should be civilly committed under the SVPA, and a
single evaluator determined he was suitable for release. (Id at p. 346.)
Accordingly, the Director of Mental Health did not request a petition for
commitment. (Id. at p. 344.)
The California Supreme Court assessed whether the plaintiff had
sufficiently alleged a breach of DMH’s mandatory duty to conduct an
evaluation with two evaluators, and concluded she had: “The SVPA specifies
that an inmate referred by [the Department of Corrections] ‘shall be
evaluated by two practicing psychiatrists or psychologists, or one practicing
psychiatrist and one practicing psychologist, designated by the Director of
Mental Health.’ [Citation.] This language is clear, conferring no discretion
as to the number of evaluators. [Citations.] Moreover, the use of two
evaluators is critical to the SVPA process. A petition for commitment cannot
be requested unless both evaluators agree that a person meets the criteria for
[sexually violent predator] status. [Citation.] If they disagree, the Director of
Mental Health must arrange for two independent evaluators to conduct a
further examination. Both must concur that the inmate meets the criteria
11
before a commitment petition can be requested. [Citation.] In sum, the
enactment’s language, taken together with the design of the SVPA process,
makes it clear that the Legislature ‘ “intended to foreclose . . . [the] exercise of
discretion” ’ with regard to how many evaluators must be designated to
assess persons referred by [the Department of Corrections].” (State Dept. of
State Hospitals v. Superior Court, supra, 61 Cal.4th at p. 350.)
The court further held there was no dispute that the harm to the public
caused by a sexually violent predator’s release was the kind of risk the SVPA
was designed to forestall. (State Dept. of State Hospitals v. Superior Court,
supra, 61 Cal.4th at p. 351.) “The particular mandatory duty at issue here
requires the designation of two evaluators. This element of redundancy built
into the review process serves the interest of the inmate as well as the
governmental interest in protecting public safety. However, the potential
dual benefit does not defeat plaintiff’s showing. We have recognized that
public safety is a particularly powerful purpose of the SVPA evaluation
process. [Citations.] It is clear that the requirement of two evaluators was
designed, in part, to guard against the risk that [a sexually violent predator]
might be released.” (Id. at pp. 351-352.)
The court, however, rejected the proposition that the complaint also
stated a mandatory duty by alleging DMH was obliged to conduct in-person
examinations of all referred inmates. (State Dept. of State Hospitals v.
Superior Court, supra, 61 Cal.4th at p. 351.) It explained: “The SVPA states
that after an inmate is referred for a full evaluation, DMH ‘shall evaluate the
person in accordance with a standardized assessment protocol’ including
specific risk factors. [Citation.] However, nowhere does the statute impose a
specific requirement for in-person examination of referred inmates. . . . [A]
mandatory duty must be based on an enactment phrased in explicit and
12
forceful language. [Citation.] Noncodified details of the [sexually violent
predator] evaluation protocol are left to DMH's judgment and discretion.
[Citation.] Without any specific statutory command, DMH is not subject to a
mandatory duty to conduct in-person evaluations of all referred inmates.”
(Ibid., fns. omitted.)
The court in State Dept. pointed to Creason v. Department of Health
Services (1998) 18 Cal.4th 623 as an illustration of a statutory scheme that
required a public agency’s exercise of judgment, not giving rise to a
mandatory duty. (State Dept. of State Hospitals v. Superior Court, supra, 61
Cal.4th at p. 349.) The relevant statute in Creason required the Department
of Health Services to establish a genetic disease unit to promote a testing
program in accordance with “ ‘accepted medical practices’ ” with procedures
that are “ ‘accurate, provide maximum information, and . . . produce results
that are subject to minimum misinterpretation.’ ” (Creason, 18 Cal.4th at p.
632.) Creason held such “general and broad” guiding principles that were
“subject to considerable interpretation,” did not create a mandatory duty.
(Id. at pp. 634-635.) The court in State Dept. relied on Creason and other
cases to emphasize that “[a] mandatory duty is created only when an
enactment requires an act that is clearly defined and not left to the public
entity’s discretion or judgment. [Citation.] Such an act is mandated only to
the extent of the enactment’s precise formulation. When the enactment
leaves implementation to an exercise of discretion, ‘lend[ing] itself to a
normative or qualitative debate over whether [the duty] was adequately
fulfilled,’ an alleged failure in implementation will not give rise to liability.”
(State Dept., at p. 350; see also de Villers v. County of San Diego (2007) 156
Cal.App.4th 238, 260.)
13
This court addressed section 815.6 in the context of a claim that the
Department of Corporations (the Department) should be held liable for
investment losses suffered by investors who had purchased fraudulent
securities from brokers subject to Department “desist and refrain orders”
after the Department rescinded those orders. (Department of Corporations v.
Superior Court (2007) 153 Cal.App.4th 916, 921.) On a demurrer, the trial
court ruled that Corporations Code section 25612 required the Department to
make certain findings before rescinding an order. (Id. at p. 924.) The
Department filed a writ petition, and this court granted the writ. (Id. at p.
936.) We acknowledged the cited law used mandatory language directing the
Department that “ ‘[n]o . . . order may be . . . amended, or rescinded unless’
the Commissioner finds the action ‘necessary or appropriate.’ ” (Id. at p.
931.) But the provision was within “an overall statutory framework granting
the Commissioner ‘pervasively discretionary’ authority to address violations
of the [Corporate Securities Law].” (Ibid.) Further, we observed “the only
thing [the law] mandates is that the Commissioner ‘finds’ that his actions are
‘necessary or appropriate.’ [Citation.] The section does not provide any
further guidance with respect to exactly what the Commissioner must do, for
example, by mandating written or even express findings.” (Id. at p. 932.)
Because the language “fail[ed] to mandate any specific conduct on the part of
the Commissioner” it strongly supported a conclusion the statute did not
create any mandatory duty. (Ibid.)
Additionally, the statutory language “d[id] not dictate any particular
result, or even provide a standard by which action taken by the
Commissioner can be objectively measured, but rather ‘explicitly call[s] upon
the judgment, expertise and discretion of the’ Commissioner to define what
action, if any, is ‘necessary or appropriate . . . .’ ” (Department of
14
Corporations v. Superior Court, supra, 153 Cal.App.4th at p. 933.) This
likewise indicated there was no mandatory duty. (Ibid.)
San Mateo Union High School Dist. v. County of San Mateo, supra, 213
Cal.App.4th 418 is also instructive. There, plaintiff school districts sued the
county after investments in a county-operated pooled retirement fund lost
money when Lehman Brothers Holdings, Inc. went bankrupt. (Id. at p. 424.)
The plaintiffs alleged, inter alia, statutory violations of prudent investor
standards set forth in sections 27000.3 and 53600.3. (Ibid.) On appeal from
a judgment following the county’s successful demurrer, the Court of Appeal
affirmed: “The basic compulsory obligation imposed on the county treasurer
by sections 27000.3 and 53600.3 to act as a prudent investor, while stated in
mandatory language, is quite general. The statutes do not command specific
acts designed to achieve compliance with the prudent investor standard.
[Citation.] The manner in which the required standard of the prudent
investor is to be attained entails the exercise of extensive discretion that is
not in the least specified by the statutes or any accompanying implementing
measures.” (Id. at pp. 429-430.) The statutes did not articulate standards
appropriate to consider in prudently investing and managing assets (id. at p.
430. fn. 5), and granted comprehensive discretion to evaluate and decide how
best to comply with the command to act as a prudent investor. (Id. at p. 431.)
The appellate court observed: “The issue of defendants’ compliance with the
prudent investor standard would also necessitate a complex qualitative
analysis, rather than merely a straightforward determination that a specific
ministerial directive has been ignored or violated.” (Id. at p. 430.)
The San Mateo court held the defendants were immune: “This is not a
case in which the plaintiff seeks to impose liability for clear breach of a
mandatory ministerial or regulatory directive that leaves no choice other
15
than to execute the enacted requirement. [Citations.] . . . The prudent
investor standards set forth in sections 27000.3 and 53600.3 fall squarely
within the scope of enactments that set forth the general policy goals—acting
with the care, skill, prudence, and diligence under the prevailing
circumstances in the investment or management of funds deposited with the
county treasury—but do not specifically direct the manner in which the goals
will be performed.” (San Mateo Union High School Dist. v. County of San
Mateo, supra, 213 Cal.App.4th at pp. 431-432.)
With this overview, we turn to each of the provisions plaintiffs cite to
ascertain whether they create mandatory duties designed to protect against
the kind of financial and emotional injury they allege they suffered here,
requiring the court to grant them leave to amend to allege such duties. As we
explain, the cited provisions manifestly do not support any claim for breach of
a mandatory duty.
B. Probate Code Section 16002
Probate Code section 16002, part of the Probate Code’s trust law,
provides: “The trustee has a duty to administer the trust solely in the
interest of the beneficiaries.” (Prob. Code, § 16002, subd. (a).)4 Added in
1986, Probate Code section 16002 “restate[d] the general duty of loyalty
expressed in former Civil Code sections 2228 (trustee to act in ‘highest good
faith’), 2229 (not to use property for trustee’s profit), 2231 (influence not to be
used for trustee’s advantage), 2232 (trustee not to undertake adverse trust),
2233 (trustee to disclose adverse interest), 2235 (transactions between
4 The remainder of the section governs a trustee who “administers two
trusts to sell, exchange or participate in the sale or exchange of trust
property between the trusts . . . .” (Prob. Code, § 16002, subd. (b).) Plaintiffs
do not make any argument concerning this subdivision, which on its face is
not applicable to these circumstances.
16
trustee and beneficiary presumed under undue influence), and 2263 (trustee
cannot enforce claim against trust purchased after becoming trustee).” (18
Cal. Law Revision Com. Rep. (1986) pp. 1369-1370.)
Plaintiffs contend this section requires SDCERS and its agents “to
make complete disclosure to its trust fund beneficiaries, particularly when
they ask SDCERS questions.” They maintain this proposition—that
SDCERS had the duty of “full disclosure”—is established by Hittle, supra, 39
Cal.3d 374.
The contentions lack merit. It is true that the SDCERS board is a
fiduciary “charged with administering the City’s pension fund” in ways this
court described in Krolikowski v. San Diego City Employees’ Retirement
System (2018) 24 Cal.App.5th 537 (Krolikowski), including to determine
member eligibility for benefits. (Id. at p. 544, fn. 1.) Assuming arguendo
SDCERS is also a trustee governed by Probate Code section 16002 with an
obligation of loyalty to beneficiaries, the statute does not set out the sort of
mandatory duty sufficient to impose liability on SDCERS. There is no
“explicit” or “particular action” specified in Probate Code section 16002, nor
do plaintiffs point to any “implementing guidelines” that would give rise to a
mandatory duty under section 815.6. (State Dept. of State Hospitals v.
Superior Court, supra, 61 Cal.4th at pp. 348-349; Srouy, supra, 75
Cal.App.5th at pp. 559-560.) The general expression of duty to act in the
beneficiaries’ best interests does not describe any “specific conduct”
(Department of Corporations v. Superior Court, supra, 153 Cal.App.4th at p.
932) nor does it “dictate any particular result, or even provide a standard by
which action taken by [SDCERS] can be objectively measured . . . .” (Id. at p.
933.) The statute’s general description of a trustee’s duty leaves it to the
trustee to decide what is or what is not in the beneficiaries’ best interests.
17
The statute is far from the sort of enactment sufficient to impose a
mandatory duty on SDCERS or Claussen designed to protect against the type
of injuries allegedly suffered by plaintiffs.
Our conclusion does not change in view of Hittle, supra, 39 Cal.3d 374.
As plaintiffs point out, Hittle establishes that “ ‘[pension] plans create a trust
relationship between pensioner beneficiaries and the trustees of pension
funds who administer retirement benefits . . . and the trustees must exercise
their fiduciary trust in good faith and must deal fairly with the pensioners-
beneficiaries.’ ” (Id. at p. 392.) Hittle held the officers of the public pension
plan there were voluntary trustees “ ‘bound to act in the highest good faith
toward [their beneficiaries], and may not obtain any advantage therein over
the latter by the slightest misrepresentation, concealment, threat, or adverse
pressure of any kind.’ ” (Id. at p. 393, quoting former Civ. Code, § 2228.) The
administrator of a pension plan should “exercise[ ] toward the pensioner a
fiduciary duty of good faith and fair dealing.” (Id. at p. 393.) But Hittle does
not present a question of whether the retirement association in that case
owed the plaintiff a mandatory duty under section 815.6. The California
Supreme Court held a pensioner did not waive his right to apply for disability
retirement (id. at p. 389); the retirement association did not fulfill its
fiduciary duty to deal fairly and in good faith with him, and so the court
reversed a trial court finding on a petition for writ of mandate that the
association had put the pensioner on “specific notice” of his right to apply for
disability retirement upon termination of his employment. (Id. at pp. 391-
392.) A case is not authority for propositions not considered or issues not
presented by its own particular facts. (Satten v. Webb (2002) 99 Cal.App.4th
365, 383, citing Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
18
Plaintiffs’ reliance on Hittle suffers from another fatal problem: Hittle
itself is not an “enactment” as defined by the law that must be the source of
any mandatory duty. (See § 810.6;5 State Dept. of State Hospitals v. Superior
Court, supra, 61 Cal.4th at pp. 348, 350 [mandatory duty is created only by
an enactment having certain dictates].) Plaintiffs acknowledge the
definition, but argue “according to binding Supreme Court precedent [Haggis,
supra, 22 Cal.4th 490], the enactment itself does not need to specifically state
that it creates a private right of action.” This does not address whether case
law is an enactment on which plaintiffs can rely to create a mandatory duty.
In short, we disagree the Legislature’s imposition of a duty of loyalty on a
trustee in Probate Code section 16002 gives rise to a mandatory duty on
SDCERS to provide accurate advice, much less accurate advice to a
beneficiary regarding the state of his disability pension upon a job change.
C. Article XVI, Section 17 of the California Constitution
Plaintiffs next contend article XVI, section 17 of the California
Constitution “mandates that SDCERS owes fiduciary duties to [them].” They
cite to the following provisions:
“Notwithstanding any other provisions of law or this Constitution to
the contrary, the retirement board of a public pension or retirement system
shall have plenary authority and fiduciary responsibility for investment of
moneys and administration of the system, subject to all of the following:
5 As used in section 815.6, an “enactment” is “a constitutional provision,
statute, charter provision, ordinance or regulation.” (§ 810.6; Department of
Corporations v. Superior Court, supra, 153 Cal.App.4th at p. 926, fn. 3.)
“ ‘This definition is intended to refer to all measures of a formal legislative or
quasi-legislative nature.’ ” (Department of Corporations, at p. 926, fn. 3,
quoting County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627,
638.)
19
“(a) The retirement board of a public pension or retirement system
shall have the sole and exclusive fiduciary responsibility over the assets of
the public pension or retirement system. The retirement board shall also
have sole and exclusive responsibility to administer the system in a manner
that will assure prompt delivery of benefits and related services to the
participants and their beneficiaries. The assets of a public pension or
retirement system are trust funds and shall be held for the exclusive
purposes of providing benefits to participants in the pension or retirement
system and their beneficiaries and defraying reasonable expenses of
administering the system.
“(b) The members of the retirement board of a public pension or
retirement system shall discharge their duties with respect to the system
solely in the interest of, and for the exclusive purposes of providing benefits
to, participants and their beneficiaries, minimizing employer contributions
thereto, and defraying reasonable expenses of administering the system. A
retirement board’s duty to its participants and their beneficiaries shall take
precedence over any other duty.
“(c) The members of the retirement board of a public pension or
retirement system shall discharge their duties with respect to the system
with care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent person acting in a like capacity and familiar with
these matters would use in the conduct of an enterprise of like character and
with like aims.”
Plaintiffs also cite this court’s statement in Krolikowski, supra, 24
Cal.App.5th 537 that this constitutional article “establishes that members of
a public pension board, such as the SDCERS Board members, are fiduciaries;
that they must exercise their fiduciary duties with the purpose, among
20
others, of providing benefits to participants and their beneficiaries; and that
the Board Members’ duty to pension plan participants and beneficiaries takes
precedence over any other duty.” (Id. at p. 553.)6 They make no other
argument beyond these quotes, nor do they explain how article XVI, section
17 sets out the necessary explicit and forceful language (State Dept. of State
Hospitals v. Superior Court, supra, 61 Cal.4th at pp. 348-349), “rigidly
delineated” (Williams v. Horvath, supra, 16 Cal.3d at p. 838) requirements, or
6 Krolikowski did not involve a claim of section 815.6 mandatory duty.
Underlying that case was SDCERS’s decision and effort to recoup pension
overpayments made to the plaintiffs. (Krolikowski, supra, 24 Cal.App.5th at
p. 543.) We held that the plaintiffs’ claim for breach of fiduciary duty against
SDCERS based on an alleged “ ‘refusal to follow California law regarding the
statute of limitations and exempting pensions from levy or attachment’ ” (id.
at p. 551) was premised on SDCERS’s discretionary decisionmaking, and
thus subject to discretionary act immunity under section 820.2. (Id. at pp.
550-551.) We rejected the plaintiffs’ argument that because their claim arose
under article XVI, section 17 of the California Constitution, section 815.2
immunity did not bar their cause of action: “The doctrine of constitutional
supremacy does not apply here because appellants have not identified any
conflict between the constitutional provisions and the Government Claims
Act immunity provisions. As we have explained, the constitutional provisions
we have cited above merely establish that public pension board members
have certain fiduciary duties to participants and beneficiaries, but those
provisions do not address whether beneficiaries and participants have the
right to recover monetary damages from pension board members who breach
those duties. Therefore, no constitutional provision is trumped when
Government Claims Act immunity is applied to bar liability for monetary
damages based on the SDCERS Board members’ alleged breach of fiduciary
duty.” (Id. at pp. 553-554.) We held our conclusion was consistent with
Nasrawi v. Buck Consultants LLC (2004) 231 Cal.App.4th 328, which held
Government Claims Act immunity applied to a breach of fiduciary claim even
based on the constitutional provision because immunity was a separate
question from whether the provision imposed fiduciary duties, and plaintiffs
did not identify authority that public employees were liable for injuries
caused by discretionary acts that violated constitutionally imposed duties.
(Krolikowski, at p. 556.)
21
specific conduct with implementing guidelines, that would meet the above-
summarized standards to create a mandatory duty.
The California Constitution’s broadly-worded duties on retirement
boards to administer pension systems to assure prompt delivery of services
and benefits, or to discharge duties solely in the beneficiaries’ interests and
with care, skill, prudence and diligence, are not specific commands to engage
in particular advice or disclosures of the sort on which plaintiffs base their
claim. (See State Dept. of State Hospitals v. Superior Court, supra, 61 Cal.4th
at pp. 348-349; de Villers v. County of San Diego, supra, 156 Cal.App.4th at p.
260.) It is not enough that the provisions contain mandatory language; an
enactment will not suffice if it does not dictate a particular result, or requires
a qualitative debate over whether the obligations were fulfilled. (de Villers,
at p. 260 [“the Legislature’s use of mandatory language (while necessary) is
not the dispositive criteria. Instead, the courts have focused on the particular
action required by the statute, and have found the enactment created a
mandatory duty under section 815.6 only where the statutorily commanded
act did not lend itself to a normative or qualitative debate over whether it
was adequately fulfilled”].) For the same reasons expressed above with the
Probate Code duty of loyalty, the constitutional provisions do not create a
mandatory duty.
D. Civil Code Sections 1709 and 1710
Plaintiffs contend Civil Code sections 1709 and 1710 impose a duty on
SDCERS to make “full disclosure” because Claussen spoke to them in 2013
about Conway’s pension. They cite case law for the propositions that even
without a duty to disclose, when a person speaks, he or she must “speak the
whole truth and not conceal facts that materially qualify those stated” or
must be truthful when asked for or volunteering information.
22
Civil Code section 1709 provides: “One who willfully deceives another
with intent to induce him to alter his position to his injury or risk, is liable for
any damage which he thereby suffers.” The portion of Civil Code section
1710 cited by plaintiffs provides: “A deceit, within the meaning of the last
section, is [ ]: The suppression of a fact, by one who is bound to disclose it, or
who gives information of other facts which are likely to mislead for want of
communication of that fact[.]” (Civ. Code, § 1710, subd. (3).)
The general duties expressed in these fraud statutes manifestly do not
create a mandatory duty on SDCERS as required for public entity liability.
They do not purport to apply to SDCERS in particular or public entities in
general, and as with the other provisions discussed above, they do not set out
precisely formulated, explicit duties that leave no room for a public entities’
discretion or judgment. (State Dept. of State Hospitals v. Superior Court,
supra, 61 Cal.4th at p. 351.)
Because none of the foregoing provisions suffice to create mandatory
duties on SDCERS, we need not address plaintiffs’ contentions as to the other
elements, i.e., the legislative purposes behind the provisions or issues of
probable cause.
III. Plaintiffs Do Not State an Actual Fraud, Corruption or Actual Malice
Claim Against Claussen
Plaintiffs contend the operative complaint pleads facts showing that
Claussen’s conduct was “actual fraud, corruption or actual malice,” sufficient
23
to overcome any statutory immunity provided in section 822.2.7 They argue
they pleaded facts that were found lacking in Masters, supra, 32 Cal.App.4th
30 when they alleged Claussen “intentionally concealed” evidence and did so
willfully, consciously, and maliciously. They argue that even if these
allegations are insufficient to support fraud, corruption or actual malice, they
should be given at least one opportunity to plead more specific facts.
“[S]ection[ ] . . . 822.2 provide[s] public employees with immunity from
liability for misrepresentations unless the employees are guilty of actual
fraud, corruption, or malice. [Citation.] . . . Section 822.2 provides: ‘A public
employee acting in the scope of his employment is not liable for an injury
caused by his misrepresentation, whether or not such misrepresentation be
negligent or intentional, unless he is guilty of actual fraud, corruption or
actual malice.’ [¶] ‘The purpose of . . . section[ ] . . . 822.2 is to immunize
public . . . employees “from liability for misrepresentation or deceit, a ‘tort
distinct from the general milieu of negligent and intentional wrongs, [and
which] applies to interferences with financial or commercial interest.’ . . .” ’ ”
(County of San Bernardino v. Superior Court (2022) 77 Cal.App.5th 1100,
1112.)
“ ‘ “[T]he immunity afforded by . . . section 822.2 applies unless, in
addition to the essentials of common law deceit, a public employee is
motivated by corruption or actual malice, i.e., a conscious intent to deceive,
vex, annoy or harm the injured party[ ]” [citation] with respect to [his or] her
7 Plaintiffs dropped their fraud claims against SDCERS and Claussen,
for which SDCERS and Claussen are expressly immune under sections 818.8
and 822.2. Nor can they state such a claim against SDCERS, whose
immunity is “absolute.” (Masters, supra, 32 Cal.App.4th at pp. 42-43.)
Section 818.8 provides: “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.”
24
financial dealings.’ [Citation.] [¶] . . .[C]onclusory allegations of corruption
or malice [are not] sufficient to bring a fraud action within the exception of
. . . section 822.2. In addition to facts establishing the ordinary elements of
common law deceit, the pleader also must allege facts showing that the fraud
was motivated by corruption or actual malice.” (Curcini v. County of
Alameda (2008) 164 Cal.App.4th 629, 649.)
Plaintiffs allege: “In late September or early October 2013, while in
San Diego for [Conway’s] medical appointments, [plaintiffs] met with Ms.
Claussen of SDCERS to inquire whether Conway’s acceptance of a position as
a detention deputy in Idaho would jeopardize his disability pension. [¶] . . .
Ms. Claussen told [plaintiffs] that [Conway’s] proposed position as a
detention deputy was similar to a corrections deputy in the San Diego County
Jail system run by the San Diego County Sheriff. Further[,] Claussen stated
that since the San Diego Police Department did not staff jails, there was no
comparable position with the San Diego Police Department, so that his
disability pension would not be jeopardized by his taking the detention
deputy position in Idaho because the San Diego Police Department had no
comparable position. [¶] [Plaintiffs] asked Claussen four times to place her
assurances (that taking the detention deputy job would not jeopardize . . .
Conway’s disability retirement) in writing. Claussen would not do so, stating
‘we don’t do that, but you have nothing to worry about.’ ”
Plaintiffs further allege: “Conway would not have pursued and taken
the detention deputy position . . . had Claussen told [plaintiffs] that taking
that position would jeopardize his SDCERS’ disability retirement. [¶] As a
result of Claussen’s statements to [plaintiffs], . . . Conway took the detention
deputy position. [¶] In 2018 and 2019, despite Claussen’s 2013 assurances
that Conway accepting the detention deputy position would not jeopardize his
25
disability retirement, she intentionally concealed her statements to
[plaintiffs] from SDCERS. [Plaintiffs] did not discover Claussen’s
concealment, nor could they have reasonably done so, until they deposed
Claussen on June 4, 2019. [¶] As a result, SDCERS sought to have Conway’s
disability retirement taken away because it was unaware of Claussen’s
statements to [plaintiffs] in 2013.” They allege “Claussen’s concealment and
suppression, in 2018 and 2019, from the SDCERS’ board what she had told
[plaintiffs] in 2013 was a substantial factor in causing harm to [plaintiffs].”
Plaintiffs end with conclusory and unspecific assertions as to
Claussen’s assertedly malicious or corrupt conduct: “The conduct of Claussen
as described herein was despicable and was carried on by her with wilful [sic]
and conscious disregard for [plaintiffs’] rights and Claussen’s fiduciary duty
to them. Claussen was aware of the probable dangerous consequences of her
conduct and wilfully [sic] and deliberately failed to avoid those consequences.
This conduct constitutes malice, oppression and fraud such that [plaintiffs]
are entitled pursuant to California Civil Code section 3294 to recover
punitive damages in an amount sufficient to punish and set an example of
these defendants.”
Such general allegations do not avoid section 822.2 immunity. In
Curcini, the court held allegations that “representations, false promises and
concealments were done ‘for corrupt purposes and/or with malice towards
plaintiffs and their interests’ and that defendants’ conduct ‘was intended . . .
to cause injury to plaintiffs or constituted despicable conduct which was
carried on by defendants, and each of them, with a willful and conscious
disregard of the rights of plaintiffs’ ” were insufficient to survive a demurrer.
(Curcini v. County of Alameda, supra, 164 Cal.App.4th at p. 650.) We reject
plaintiffs’ claim that an assertion that Claussen “intentionally concealed” her
26
statements from SDCERS overcomes section 822.2 immunity as evidenced by
Masters, supra, 32 Cal.App.4th 30. Masters makes clear that the term actual
fraud in section 822.2 is not coextensive with tort fraud or deceit, as such
interpretation would render the statute unintelligible. (Masters, at p. 42.)
There must be specific facts showing motivation by a “ ‘ “conscious intent to
deceive, vex, annoy or harm the injured party” [citation] with respect to her
financial dealings.’ ” (Ibid.)
The complaint here contains no facts showing Claussen’s conduct in
allegedly incorrectly advising Conway about the consequence of taking the
new position on his disability retirement was somehow motivated by
corruption or actual malice. Masters does not hold that a bare allegation of
intentional concealment fills that void.8 And because this was plaintiffs’
second effort to state a cause of action (having chosen to file a first amended
pleading in response to SDCERS and Claussen’s first demurrer), we perceive
no error in the court denying leave to amend. Plaintiffs in any event have not
stated on appeal how their pleading can be amended to allege more specific
facts demonstrating corruption or actual malice on Claussen’s part. Although
as stated they may try to make this showing for the first time here, “it is
8 Masters held an allegation that a pension administrator “ ‘caused to be
withheld’ ” medical reports from a medical advisor did not state a cause of
action for breach of fiduciary duty, and was vague and uncertain as to
whether it alleged intentional, bad faith conduct. (Masters, supra, 32
Cal.App.4th at pp. 48-49 & fn. 12.) Reciting examples (id. at p. 48, fn. 13),
the court held the trial court erred by finding discretionary immunity applied
to the administrator’s “lower-level, operational” decisions about how to
handle paperwork including an applicant’s medical evidence. (Ibid.) Masters
did not involve a question of immunity under section 822.2: “Inexplicably,
neither the parties nor the court below referred to or considered the express
immunity for misrepresentation as to public employees (. . . § 822.2) or as to
public entities (. . . § 818.8).” (Id. at p. 39, fn. 4.)
27
their burden to ‘show in what manner [they] can amend [their] complaint and
how that amendment will change the legal effect of [their] pleading.’ ” (640
Tenth, LP v. Newsom, supra, 78 Cal.App.5th at p. 865.) Simply asking for the
opportunity to amend is insufficient. (See ibid.) We conclude the demurrer
was properly sustained without leave to amend.
IV. Section 821.6
Section 821.6 provides: “A public employee is not liable for injury
caused by his instituting or prosecuting any judicial or administrative
proceeding within the scope of his employment, even if he acts maliciously
and without probable cause.” This court has explained that “ ‘California
courts construe section 821.6 broadly in furtherance of its purpose to protect
public employees in the performance of their prosecutorial duties from the
threat of harassment through civil suits.’ ” (Doe v. State of California (2017)
8 Cal.App.5th 832, 843-844.) “Courts have long held that acts undertaken in
the course of an investigation or in preparation for instituting a judicial
proceeding cannot give rise to liability, even if no proceeding is ultimately
instituted.” (Id. at p. 844.) This court has also held that immunity under
section 821.6 extends to intentional tortious conduct. (Ibid.)
On the other hand, we have held that “merely being a witness in a
criminal prosecution and giving information in response to a request by law
enforcement in an ongoing criminal proceeding, without more, does not give
rise to a claim for malicious prosecution . . . .” (Zucchet v. Galardi (2014) 229
Cal.App.4th 1466, 1485.) Absent allegations that a witness “insisted upon or
urged further prosecution of [a] case, or gave advice to the prosecutors or
placed pressure on the government to continue the case” that witness, even if
he or she gives valuable testimony, does not transform the witness into an
active participant. (Ibid.)
28
Plaintiffs contend the trial court erred by applying section 821.6 and
extending its immunity to Claussen, who they assert “had nothing to do with
SDCERS’s administrative process” as she “neither investigated it, or
participated in it (except as witness [sic] called by [plaintiffs] regarding
Claussen’s 2013 statements to them).” They maintain the court interpreted
the statute too broadly, and assert as an example that liability may be
imposed for false arrest or imprisonment, but not for investigating or
bringing charges leading to the imprisonment.
Here, the trial court found the gravamen of the first amended
complaint was malicious prosecution: that SDCERS had wrongfully
commenced an administrative proceeding against Conway as a result of
Claussen’s concealment.9 But plaintiffs’ allegations that Claussen was an
SDCERS medical review officer who caused them financial and emotional
damage from having to undergo an administrative proceeding, in our view,
brings Claussen’s actions within the scope of section 821.6 immunity. The
trial court took judicial notice of SDCERS’s board rules, including Rule 8.10,
which defines a medical review officer as a person with the responsibility,
inter alia, to review personnel records and other relevant information, “and
based upon that analysis, to prepare Disability Committee and Board
recommendations to terminate a Disability Retiree’s benefit.” (Italics added.)
Plaintiffs’ allegations, combined with this judicially-noticed information,
demonstrate that Claussen’s input was an “integral part of the . . .
[administrative] process” (Kayfetz v. State of California (1984) 156
9 The California Supreme Court has granted review on the question of
whether immunity under section 821.6 is limited to actions for malicious
prosecution. (See Silva v. Langford, supra, 79 Cal.App.5th at p. 719, fn. 7;
citing Leon v. County of Riverside (2021) 64 Cal.App.5th 837, 841, review
granted Aug. 18, 2021, S269672.)
29
Cal.App.3d 491, 496-498) and its institution, and that SDCERS considered
her advice in bringing the administrative action. (Accord, Zucchet v. Galardi,
supra, 229 Cal.App.4th at p. 1485.)
Thus, we conclude the court correctly applied section 821.6 immunity to
Claussen, and SDCERS under section 815.2, which extends an employee’s
immunity to the public entity: “ ‘Except as otherwise provided by statute, a
public entity is not liable for an injury resulting from an act or omission of an
employee of the public entity where the employee is immune from liability.’ ”
(Silva v. Langford, supra, 79 Cal.App.5th at p. 720, see also id. at p. 721
[citing cases in which appellate courts have applied section 821.6 to public
entities through application of section 815.2].) Having concluded plaintiffs
cannot state causes of action against SDCERS or Claussen and the court
properly sustained the demurrer without leave to amend, we need not reach
plaintiffs’ arguments concerning the timeliness of their government claim.
DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
DATO, J.
DO, J.
30