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Case No.: B232920

• IN THE COURT OF APPEAL

• OF THE STATE OF CALIFORNIASECOND APPELLATE DISTRICT

• DIVISION THREE

DAVID YOSTPlaintiff and Appellant,

VS.

• CALIFORNIA PUBLIC EMPLOYEES'RETIREMENT SYSTEM, et al.,

Defendants and Respondents

Appeal from Los Angeles County Superior CourtCase No. BC444842

The Honorable Anthony Mohr, Judge Presiding

RESPONDENT CALPERS' OPPOSITION BRIEF

Edward Gregory, SBN 128375Jason Levin, SBN 161807

Jennifer Morrow, SBN 185964Sheri T. Cheung, SBN 193296

Steptoe & Johnson LLP

633 West Fifth Street, Suite 700Los Angeles, California 90071

(213) 439-9400

• Retirement System, et al. (collectively, CalPERS)•

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Attorneys for Defendants-Respondents California Public Employees'

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By:

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

In accordance with California Rules of Court Rule 8.208,

respondent CalPERS knows of no entity or person, other than the

parties themselves, with either (1) a ten percent or more ownership

interest in it, or (2) a financial or other interest in the outcome of the

proceeding.

Dated: March 8, 2012

STEPTOE & JOHNSON LLP

•

Edward Gregory• Jason Levin

Attorneys for Respondent CalPERS

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TABLE OF CONTENTSPage(s)

I. STATEMENT OF THE CASE 1

II. FACTUAL AND PROCEDURAL BACKGROUND 4

A. The PERL 4

I. Service retirement allowances 5

2. Sevice credit purchases 5

3. Industrial disability retirement (IDR)allowances 6

4. Additional payment/annuities. 6

5. No contribution refunds after IDR. 7

B. Statement of Alleged Facts. 7

C. Proceedings in the Superior Court 9

III. STANDARD OF REVIEW 12

IV. LEGAL DISCUSSION 13

• A. Yost Neither Complied Nor SubstantiallyComplied with the GCA's Claim PresentationRequirement. 13

•1. Yost deliberately decided not to comply. 13

2. Yost did not substantially comply with theGCA Error! Bookmark not defined.5

B. Yost Can Point to No Valid Excuse for Failing toComply with the GCA. 18

1. Yost never invoked CalPERS' claimsprocess, which in any event is not"functionally equivalent" to the GCA 18

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a. Yost never invoked the claimsprocess 18

b. CalPERS' administrative claimsprocedures are not functionallyequivalent to the GCA. 22

2. Yost Does Not Seek Return of SpecificFunds; His Suit for Pension Money isCovered by the GCA 27

3. The GCA Contains no Statutory ExclusionApplicable to Yost's Pension Claims 29

4. Yost's GCA Filing Deadline Has Long SincePassed. 32

C. Yost Was Correctly Denied Leave to Amend HisComplaint 35

V. CONCLUSION 39

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TABLE OF AUTHORITIES

STATE CASES

Bates v. Franchise Tax Bd. (2004) 124 Cal.App.4th 367 25

Bozaich v. State of California (1973) 32 Cal.App.3d 688 21-22

Branick v. Downey Sav. and Loan Ass 'n (2006) 39 Ca1.4th 235 12, 36

California Restaurant Management Systems v. City of SanDiego (2011) 195 Cal.App.4th 1581 14

CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273 38

City of Oakland v. Public Employees 'Retirement System (2002)95 Cal.App.4th 29 26

City of Sacramento v. Public Employees' Retirement System(1991) 229 Cal.App.3d 1470 5

City of San Jose v. Superior Court (1974) 12 Ca1.3d 447 14, 17

City of Stbckton v. Superior Court (Civic Partners Stockton,LLC) (2007) 42 Ca1.4th 730 Passim

Del Real v. City of Riverside (2002) 95 Cal.App.4th 761 16

Eaton v. Ventura Port Dist. (1975) 45 Cal.App.3d 862 16

First American Commerical Real Estate Services, Inc. v.County of SanDiego (2011) 196 Cal.App.4th 218 19, 31, 37-38

First American Title Ins. Co. v. Superior Court (2007) 146Cal.App.4th 1564 37

Garcia v. Los Angeles Uned School Dist (1985) 173Cal.App.3d 701 20, 24-25

Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744 25

Janis v. California State Lottery Com. (1998) 68 Cal.App.4th824 15

III

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Lozada v. City and County of San Francisco (2006) 145Cal.App.4th 1139 25

Minsky v. City of Los Angeles (1974) 11 CaI.3d 113 13, 27-29

Molina v. CalPERS (2011) 200 Cal.App.4th 53 26-28

Nguyen v. Los Angeles County Harbor/UCLA ifedical Center(1992) 8 Cal.App.4th 729 14

Norgart v. Upjohn Co. (1999) 21 Ca1.4th 383 33

Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42 33-34

Phillips v. Desert Hosp. Dist. (1989) 49 Ca1.3d 699 14

Pidada v. Superior Court (2011) 201 Cal.App.4th 1074 12

Prentice v. Board of Administration (2007) 157 Cal.App.4th983 5,12

Rose v. City of Hayword (1981) 126 Cal.App.3d 926 19

Shirk v. Vista Unified School Dist. (2007) 42 Ca1.4th 201 16, 33

Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861 Passim

Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820 38

State of California v. Superior Court (Bodde) (2004) 32 Ca1.4th1234 11, 13, 15

Tarkington v. California Unemployment Ins. Appeals Bd.(2009) 172 Cal.App.4th 1494 19

Torres v. County of Los Angeles (1989) 209 Cal.App.3d 325 14

TrafficSchoolOnline, Inc. v. Clarke (2003) 112 Cal.App.4th 736.... 16, 25, 28

White v. State of California (1987) 195 Cal.App.3d 452 21

iv

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STATE STATUTES

Gov. Code, § 810 13

Gov. Code § 905 13

Gov. Code § 905.2 11, 13, 15,31

Gov. Code § 911.2(a) 15, 32-33, 35

Gov. Code § 915(a) 13

Gov. Code § 915(e) 16

Gov. Code § 945.4 11,13-15

Gov. Code § 20000 2

Gov. Code § 20002 4, 15

Gov. Code § 20120 5

Gov. Code § 20160(c) 26

Gov. Code § 20164(a) 26

Gov. Code § 20170 30

Gov. Code § 20176 30

Gov. Code § 20710 6

Gov. Code § 21151(a) 6

• Gov. Code § 21153 7

Gov. Code § 21413 6

• Gov. COde § 21420 6,30

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STATEMENT OF THE CASE

It is has long been settled that a plaintiff must satisfy the

Government Claims Act (GCA) and present a claim before filing a

class action seeking money or damages from a public entity. For suits

against a state agency like defendant CalPERS, the claim must be

presented to the Victims Compensation and Government Claims

Board (VCGCB). Here, Plaintiff David Yost was aware he was

required to present his claim against CalPERS to the VCGCB, but he

"decided not to consent to VCGCB jurisdiction" out of fear that doing

so might thwart his effort to spearhead this class action. In fact, the

opposite was true. It was Yost's failure to present his claim to the

VCGCB that prevents him from representing this class action and

forced the dismissal of his complaint.

His strategy now defeated, Yost appeals to this Court to

expansively reinterpret the GCA and its exceptions and do one of

three things: (1) validate his decision to skip claim presentation; (2)

find he somehow presented a claim despite his decision not to do so;

or (3) permit him or someone else to present an untimely claim on his

behalf The Court should reject each of these suggestions.

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Yost is a former state employee. When he became disabled on

the job, he applied for and received an industrial disability retirement

(IDR) allowance from CalPERS, which administers the state

retirement system under the Public Employees' ,Retirement Law

(PERE), Government Code § 20000, et seq. In April 2008, CalPERS

began sending Yost his IDR allowance checks and explained how

they were calculated. Yost alleges he believed and expected his

allowance would be much higher in light of having purchased service

credit, but he did not raise the issue until nearly two-and-a-half years

later when he filed this September 2010 class action. Yost's

complaint demanded more money for himself and other CalPERS

members who took IDR after buying service credit.

Yost knew the GCA required him to present his claim to the

VCGCB before filing his civil complaint, but he admittedly chose not

to present a claim to the VCGCB because he was long past the one-

year claims presentation deadline. He now attempts to justify his

choice by insisting CalPERS' administrative claims process is the

"functional equivalent" of presenting a claim to the VCGCB and

arguing CalPERS has a duty to correct administrative errors and

• omissions throughout a member's lifetime. The problem with all this

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is that Yost never made an administrative claim or sought

• administrative relief Had he done so, he could have avoided the need

to present a claim to the VCGCB or meet the GCA deadline. Instead,

• Yost went directly to court and filed his class action.

Having chosen not to comply with the GCA, Yost should not

have been surprised his civil action was dismissed on demurrer. The

•Superior Court correctly ruled that his failure to present a claim was

fatal. Yost now suggests that, unless the Court revives this class

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action, there would be no way to compel CalPERS to comply with its

obligations under the PERL. That is simply not true. Had Yost truly

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been interested in obtaining a neutral interpretation of the PERL, he

could have had a hearing before an administrative law judge and, if

the administrative determination went against him, petitioned the

superior court for a writ of mandate.

Yost's problem is that he never wanted to bring an

•administrative proceeding for his individual claim. He wished only to

take the lead in a class action that was doomed from the start because

• the GCA's claim presentation deadline had run.

Yost strains fruitlessly trying to persuade the Court he either

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did not have to satisfy, or somehow did satisfy, the claim presentation

requirement. But to accept any of these arguments, the Court would

have to ignore the GCA's plain language and intent. The purpose of

claim presentation—formal pre-litigation notice so a public entity can

explore settlement, engage in fiscal planning, or take steps to avoid

similar liabilities before incurring litigation costs—would be

frustrated by what Yost asks the Court to find was compliance:

refusing to present a claim, filing a complaint, and mailing CalPERS a

copy.

• The Court should find the superior court properly interpreted

and applied GCA precedent in sustaining the demurrer and affirm

• judgment in CalPERS' favor.

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FACTUAL AND PROCEDURAL BACKGROUND

A. The PERU.

CalPERS is a "unit of the State and Consumer Services

Agency." (Gov. Code § 20002. 1 ) In accordance with the PERU,

CalPERS administers the retirement system for employees of the State

Unless stated otherwise, statutory cites are to the CaliforniaGovernment Code.

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of California and other public entities within the State. (§ 20120.)

This case concerns the pension rights of CalPERS members

retired for industrial disability. Those rights are controlled by PERL

provisions and case law that do not bear directly on this GCA appeal,

but which we briefly summarize for context.

(1) Service retirement allowances. A service retirement

allowance is the ordinary pension paid to a CalPERS member who,

depending on his or her membership category, retires at age 50 or

some later age. The amount of the allowance is most directly a

function of two variables: (1) an age-adjusted fraction of the

employee's "final compensation"; and (2) •the employee's service

credit. (Prentice v. Board of Administration (2007) 157 Cal.App.4th

983, 989 [citing City of Sacramento v. Public Employees' Retirement

System (1991) 229 Cal.App.3d 1470, 1478-79].)

(2) Service credit purchases. There are two ways members

can boost their, service credit, and by doing so, increase their service

retirement allowance at age 50 (or older). The traditional way is to

earn the credit by working additional years for their public employer.

The other way, available to certain members, is to purchase service

• credit.

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(3) Industrial disability retirement (IDR) allowances. If

disabled on the job, safety members (police officers, firefighters,

correctional officers, etc.) can receive an IDR allowance. They need

not be retirement age or reach any level of service—those who qualify

can take IDR "regardless of their age or amount of service." (§

21151(a).) They are guaranteed monthly, tax-free payments of no less

than 50% of their highest monthly pay. (See e.g., § 21413.)

(4) Additional payments/annuities. In some instances,

members who take IDR can receive more than the standard 50% IDR

allowance. For example, under Section 21413, a member who takes

IDR at or above retirement age may receive a "service retirement

payable" IDR allowance to the extent his or her service retirement

allowance exceeds the standard 50%. (§ 21413.) Certain members

can also receive an annuity on top of the standard IDR allowance,

based on either of two types of contributions they may have made: (1)

PERL-defined "additional contributions" a member may have elected

to make (§§ 20710, 21413); or (2) contributions the member may have

made for service in a CalPERS membership category different from

the category in which the member took IDR. (§21420.)

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(5) No contribution refunds after IDR. Generally,

members who take IDR cannot obtain a refund of past contributions,

including service credit purchase contributions. (§ 21153.)

B. Statement of Alleged Facts.

In his First Amended Complaint (Complaint), Yost alleges he

was a vocational instructor for the California Youth Authority. (2

Clerk's Transcript (CT) 237.) While working, he purchased five years

of service credit. (2 CT 237.)

Yost says he became disabled from chemical exposures, applied

for IDR, and was approved in late 2007. (2 CT 237.) In April 2008,

CalPERS advised Yost he would receive a service retirement payable

IDR allowance equal to 51.425% of his final compensation, but Yost

expected a much higher percentage. (2 CT 238, 320.) Yost believed

his allowance should have been 62.5% of his final compensation—the

standard 50% IDR allowance plus 2.5% for each of the five years of

service credit he had purchased. (Id.)

CalPERS had warned Yost in bold capital letters that

purchasing additional service credit might not benefit him if he were

to "RETIRE ON DISABILITY" (2 CT 267), yet Yost alleges

CalPERS failed to "disclose the risk of loss if the Plaintiff [became]

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disabled" (2 CT 273, 304). He demands his money back—a refund

of all amounts contributed to purchase service. 2 (2 CT 273-275.)

Yost filed his original class action complaint against CalPERS

in September 2010. (1 CT 7.) Neither it nor his December 2010 First

Amended Complaint (2 CT 232) alleges any pre-litigation effort to

comply with the GCA and present a claim to the VCGCB. Yost

deliberately did not comply: "Yost's counsel was aware of the GCA.

But after careful consideration, Yost decided not to consent to

VCGCB jurisdiction in order to secure the full benefits and right that

he and the proposed class were entitled to." (Appellant's Opening

Brief (AOB), p. 11; see also AOB, p. 4 ["Yost chose not to submit or

consent to the VCGCB

Yost's First Amended Complaint addresses his failure to

present a GCA claim. (2 CT 247-252.) For example, Yost alleges

CalPERS' administrative process somehow relieved him from GCA

compliance (2 CT 248-49); maintains he sought equitable or specific

2 Essentially, Yost demands preferential treatment for him and otherswho purchased service credit. Other CalPERS members take IDRwith precisely the same years of credited service, but have worked toearn all those years rather than buying some of them. Those memberscannot obtain inflated monthly allowances or contribution refundssimply by pointing to some of their service.

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relief, making GCA compliance unnecessary (2 CT 248); and asserts

he substantially complied with the GCA by delivering a copy of his

original complaint to CalPERS' General Counsel the day it was filed,

• together with a settlement letter. (2 CT 249.)

C. Proceedings in the Superior Court.

After Yost filed his original complaint, CalPERS demurred on

multiple grounds, including Yost's failure to present a claim as the

GCA requires. (1 CT 119-153.) Before the demurrer was heard, Yost

• filed the First Amended Complaint (FAC). (2 CT 232.) CalPERS

demurred again, focusing (at the trial court's direction) on the lack of

• GCA compliance. (4 CT 711-740; Reporter's Transcript of

Proceedings (RT) A-13.) Yost opposed the demurrer, asserting a

• number of excuses for his failure to present a GCA claim.

• Yost insisted he need not exhaust administrative

remedies (though the case law makes plain•

exhaustion bears no relationship whatever to GCA

compliance) (compare 7 CT 1261-65, 1268-70

• with 8 CT 1522-24);

• Yost asserted that presenting a claim would have

• been futile because it would be rejected (even

though the whole point of the GCA is to get a

rejection before coming to court) (compare 7 CT

1265 with 8 CT 1524);

• Yost argued that delivering a copy of the

complaint to CalPERS, enclosed in a settlement

letter, "substantially complied" with the GCA

(despite no compliance at all with GCA claim

presentation as a precondition to filing suit)

(compare 7 CT 1270 with 8 CT 1525); and

• Yost pointed to the PERL's open-ended period for

members to recover money and urged it must

govern over the GCA's one-yeab claims

presentation deadline (despite the California

Supreme Court's teaching that claims against

government entities must be presented within the

GCA deadline regardless of whether another

statute extends, relieves or revives the limitations

period for filing the underlying civil claims)

(compare 7 CT 1265-66 with 8 CT 1525-26).

The superior court acknowledged "[t]he controlling issue of the

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demurrer is whether Plaintiff complied with, or was required to

comply with procedural requirements prior to suing CalPERS in

Superior Court." (8 CT 1648.) The superior court found Yost was

required to but did not comply with the GCA, rejected each of his

excuses for not complying, and held that his civil claims were barred

by the Government Code (citing §§ 905.2, 945.4 and State of

California v. Superior Court (Bodde) (2004) 32 Ca1.4th 1234, 1239-

41). (8 CT 1648-51).

The superior court not only sustained the demurrer, it did so

without leave to amend. The court gave two reasons for that decision.

First, the time for Yost to present a GCA claim had long since passed,

so it would have been impossible for him to present a claim and allege

GCA compliance in an amended complaint. (8 CT 1653-54.) Second,

to amend the complaint and allege GCA compliance by another

CalPERS member, Yost would need to take discovery. The superior

court rejected discovery because IcJourts draw the line at granting

discovery to find other class members where doing so would sanction

abuse of the class actions device to make and end run around that

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• standing requirement — especially where there is no need to do so."3

(8 CT 1655.)

The superior court issued its order sustaining the demurrer on

April 26, 2011. (8 CT 1647.) Yost filed premature notice of appeal

on May 10, 2011. (8 CT 1657.) The superior court entered final

judgment in CalPERS' favor on June 17, 2011. (8 CT 1669.)

STANDARD OF REVIEW

The superior court's interpretation of GCA requirements are

conclusions of law, which this Court reviews de novo. (Prentice,

supra, 157 Cal.App.4th at p. 989.)

The superior court's denial of Yost's request to take discovery

for a new class representative is reviewed for abuse of discretion.

(Branick v. Downey Say. and Loan Ass 'n (2006) 39 Ca1.4th 235, 242;

Pirjada v. Superior Court (2011) 201 Cal.App.4th 1074, 1085-86.)

3 The lower court explained there was no need to save this improperlawsuit with class discovery because Yost and other CalPERSmembers had administrative remedies available to them. (8 CT 1656.)

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IV.

LEGAL DISCUSSION

A. Yost Neither Complied Nor Substantially Complied with the

GCA's Claim Presentation Requirement.

1. Yost deliberately decided not to comply.

Under the Government Claims Act (Gov. Code, § 810, et seq.4),

a party "must present a timely claim for money or damages to a [ ]

public entity before suing the [ ] public entity for money or damages .

. ." (City of Los Angeles, supra, 168 Cal.App.4th at 427, citing §§

905, 905.2, 915, subd. (a), 945.4.) "The failure to do so bars the

plaintiff from bringing suit against that entity." (Bodde, supra, 32

Ca1.4th at p. 1237 [citing § 945.4].)

"The purpose of the claims statutes is not to prevent surprise,

but 'to provide the public entity sufficient information to enable it to

adequately investigate claims and to settle them, if appropriate,

without the expense of litigation. It is well-settled that claims statutes

must be satisfied even in face of the public entity's actual knowledge

This series of statutes has been known by many names. Our StateSupreme Court stated its preference for "Government Claims Act"(GCA) in City of Stockton v. Superior Court (Civic Partners Stockton,LLC) (2007) 42 Ca1.4th 730, 734, 741-42.

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of the circumstances surrounding the' claim." (City of Stockton,

supra, 42 Ca1.4th at p. 738 [citations omitted].) "The claims statutes

also 'enable the public entity to engage in fiscal planning for potential

liabilities and to avoid similar liabilities in the future." (Id.)

To achieve the GCA's purposes, "section 911.2 requires a

claimant to present a claim to the public entity within a specified time

after accrual of the cause of action." (Phillips v. Desert Hosp. Dist.

(1989) 49 Ca1.3d 699, 705, fn. omitted.) The failure to comply is fatal

• to a civil cause of action. (Nguyen v. Los Angeles County

Harbor/UCLA Medical Center (1992) 8 Cal.App.4th 729, 732; Torres

• v. County of Los Angeles (1989) 209 Cal.App.3d 325, 335 ["Only

after the public entity rejects the, claim can the plaintiff sue."]; see

• also, § 945.4.) Named plaintiffs must comply with the GCA as well

and present government claims before filing class actions. (See, e.g.,

City of San Jose v. Superior Court (1974) 12 Ca1.3d 447, 457 [GCA

•claim must identify class representative and describe putative class];

California Restaurant Management Systems v. City of San Diego

•• (2011) 195 Cal.App.4th 1581, 1597-98 [same].) A demurrer must be

sustained in the absence of factual allegations in the complaint

• demonstrating compliance with the GCA's claim presentation

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requirements. (Bodde, supra, 32 Ca1.4th at pp. 1243-44.)

CalPERS is a state entity (§ 20002; AOB, p. 4, fn. 5), and state

entities are expressly protected by the GCA. (§ 905.2.) Claims

against them must be made to the California Victim Compensation

and Government Claims Board (VCGCB) (§§ 905.2(a) and 945.4)

within one year of accrual (or, in cases not relevant here, within six

months). (§ 911.2(a).)

Yost neither disputes these GCA principles nor contends he

presented anything to the VCGCB. Just the opposite—Yost admits

his failure to comply was intentional. He did not comply because he

believed the GCA deadline for presenting a claim to the VGCGB

would "limit[ ] the reach' of his class action." (AOB, pp. 11-12; 2

CT 247-249.)

2. Yost did not substantially comply with the GCA.

Yost alleges that after filing his complaint, he served a copy on

CalPERS' General Counsel together with a settlement letter. (2 CT

249-250.) But post-litigation notice is irrelevant to the GCA's pre-

litigation claim requirement. (Janis v. California State Lottery Corn.

(1998) 68 Cal.App.4th 824, 832 [plaintiff did not present GCA claim

"until after Janis filed its civil complaint, and accordingly, Janis

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cannot maintain the civil action"] [emphasis in original].)

• To the extent Yost suggests that giving CalPERS a copy of his

complaint and a settlement letter somehow satisfies the doctrine of

• substantial compliance, he is incorrect. The substantial compliance

doctrine has been applied in the GCA context only with respect to the

substance of the claim and the manner of its presentation, but never to•

its timing. (See § 915(e) [describing conditions under which

misdirected GCA claims will be accepted as long as they were

• presented "within the time prescribed for presentation"]; see also Del

Real v. City of Riverside (2002) 95 Cal.App.4th 761, 769-770

[describing substantial compliance with• the GCA's content

requirements].)

• The whole point of GCA claim presentation is not for claimants

to perform a perfunctory, paperwork exercise, but to afford the

government an opportunity to investigate, negotiate and make a•

meaningful decision about their claims before they institute litigation.

(Eaton v. Ventura Port Dist. (1975) 45 Cal.App.3d 862, 867.) Thus,

• the GCA requires "presentation of a claim as a precondition to the

filing of suit." (TrafficSchoolOnline, Inc. v. Clarke (2003) 112

• Cal.App.4th 736, 741; see also Shirk v. Vista Unified School Dist.

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(2007) 42 Ca1.4th 201, 213 ["before a plaintiff can bring a cause of

action against a public entity, a timely claim must be presented to the

entity, or the action must be dismissed"].) There can be no

"substantial compliance" with the GCA absent this fundamental pre-

litigation opportunity for the government entity to adequately

investigate the claim. 5 (See City of San Jose, supra, 12 Ca1.3d at p.

456 [substantial compliance must "reasonably enable the public entity

to make an adequate investigation of the merits of the claim and to

settle it without the expense of a lawsuit"].)

The Court should find that Yost's complaint and settlement

letter afforded CalPERS no opportunity to do anything before he filed

suit and hold he did not substantially comply with the GCA.

Because Yost neither complied nor substantially complied with

the GCA, the Court should affirm judgment for CalPERS unless he

can establish an exception to the GCA. As set out below, he cannot.

5 Likewise, there can there be no "claim as presented" under the GCAunless the government is provided this pre-litigation opportunity toinvestigate. (See City of Stockton, supra, 42 Ca1.4th at pp. 744-45["claim as presented" must satisfy GCA's primary purpose offacilitating government's investigation by giving notice litigationmight ensue].)

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Yost Can Point to No Valid Excuse for Failing to Comply with

the GCA.

Though Yost's failure to comply with the GCA stems from his

intentional litigation decision, he asks the Court to excuse him from

the results of that decision. The Court should refuse because each

excuse Yost proffers is based on a misreading or inappropriate

expansion of existing law, and thwarts the purpose of the GCA.

1. Yost never invoked CalPERS' claims process, which

in any event is not "functionally equivalent" to the

GCA.

Yost argues he was not required to comply with the GCA

because he instead filed an administrative claim that satisfied

CalPERS' own "functionally equivalent" claims process. (AOB, pp.

29, 40-45.) Yost is wrong on both counts: (1) he neither filed an

administrative claim nor did anything else to invoke CalPERS'•

administrative process; and (2) CalPERS' claims process is not

functionally equivalent to the GCA.

a. Yost never invoked the claims process.

Yost misleads by asserting he "filed" a claim with CalPERS or

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otherwise "satisfied" or "did comply" with CalPERS' administrative

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process. (AOB, p. 29 ["Yost argues he filed a Claim with CalPERS"],

.pp. 44-45 ["Yost satisfied that process"]; p. 46 ["Yost (i) did comply

with CalPERS administrative claims notice process"].) In fact, Yost

never filed a claim, gave notice, or took any action to initiate the

CalPERS' administrative process. Yost merely delivered to CalPERS

a file-stamped summons and complaint, showing he had filed a

lawsuit (6 CT 1181, 1184-86), asserting he need not exhaust

administrative remedies, and insisting "there is no administrative

action required." (1 CT 0019-20.)

As his brief eventually explains, Yost did nothing to file an

administrative claim because he concluded doing so would force him

to forego his class claims. 6 (AOB, pp. 46-48 [citing Rose v. City of

Hayword (1981) 126 Cal.App.3d 926].) "Yost could not first file an

administrative claim with CalPERS (and wait for rejection before

filing suit) because he as an individual would be personally

6 Yost refused to invoke the administrative process, even whenCalPERS pointed out he could challenge an unfavorable result bypetitioning for a writ of administrative mandate on behalf of similarly-situated class. (5 CT 0932-0933 [citing Tarkington v. CaliforniaUnemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494, 1499-1501].) Yost refused because would be unable to conduct immediatediscovery on other potential class members' identities. (AOB, p. 49.)

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consenting to CalPERS' adjudication through CalPERS' limited

jurisdiction." (AOB, p. 46.)

As the basis for his "functional equivalent" argument, Yost

relies on cases involving the Fair Employment and Housing Act

(FEHA). These cases, however, are inapposite. In each, the court

concluded FEHA's administrative procedures were functionally

equivalent to GCA claims presentation, but only where the plaintiffs

exhausted those procedures. (See, e.g., Snipes v. City of Bakersfield

(1983) 145 Cal.App.3d 861, 864, 868-69; Garcia v. Los Angeles

Unified School Dist. (1985) 173 Cal.App.3d 701, 711-12.) With the

government engaged via the administrative process, the GCA's

purpose would be served: the entity is afforded an opportunity to

resolve the matter without litigation. (Snipes, 145 Cal.App.3d at p.

869 ['to give the governmental entity an opportunity to settle a claim

before suit is brought"]; Garcia, 173 Cal.App.3d at p. 712 [same].)

Yost, on the other hand, did not initiate much less exhaust his

administrative remedies. And Yost provided no notice to CalPERS

whatsoever until after he filed his complaint. (2 CT 249.) Nothing

Yost did had anything to do with the CalPERS' administrative

procedures.

20

•

Yost had a choice to make. If he wanted to take his individual

claim to CalPERS, he had to follow its administrative procedures. If

he wanted to take a class claim to court, he had to follow GCA claim

presentation procedures.' Even assuming those two procedures were

somehow functionally equivalent (they are not, as explained below),

Yost chose to reject both. 8 The Court should find Yost followed

7 See Bozaich v. State of California (1973) 32 Cal.App.3d 688, 697-98[class claims against public entity subject to GCA.1; White v. State ofCalifornia (1987) 195 Cal.App.3d 452, 464-65, 477 [plaintiffs did notneed to exhaust administrative remedies before making class claimsfor violation of Education of th ,e Handicapped Act, but could not seekdamages in light of failure to make GCA claim].

8 Opposing the demurrer below, Yost argued not that he compliedwith CalPERS' administrative procedures, but that he was excusedfrom doing so because his was a class action. (7 CT 1261-65.) Hethen attempted to conflate GCA and administrative procedures,insisting he need not present a claim because he need not exhaust.(Id.) The trial court properly rejected that attempt. (8 CT 1649-50.)As Bozaich, supra, explains:

. [Plaintiffs] have built a man of straw only to destroyhim. [They] equate the [GCA] claim filing requirements.. .withan administrative remedy and then assume that the state's onlycomplaint is that they did not pursue that remedy. [Plaintiffs]conclude that the individual claim filing requirements have noapplication to a class action because a class action constitutesan exception to the doctrine of exhaustion of administrativeremedies.

"The doctrine of exhaustion of administrative remediesevolved for the benefit of the courts . . . . It rests 'onconsiderations of comity and convenience,' and its basicpurpose is to secure a 'preliminary administrative sifting

[footnote cont'd next page]

21

•

•

•

I.

•

•

•

neither GCA procedures nor administrative procedures, functionally

equivalent or otherwise, and affirm judgment for CalPERS.

b. CalPERS' administrative claims procedures are

not functionally equivalent to the GCA.

Yost's functional-equivalent argument begins with Snipes,

supra, 145 Cal.App.3d 861. In Snipes, the plaintiff sued a under the

FEHA, alleging the city engaged in unlawful employment practices by

refusing to hire him, consistent with its practice of not hiring African-

Americans as police officers. (Snipes, supra, 145 Cal.App.3d at pp.

865-67.) Before filing suit, the plaintiff exhausted administrative

process' (internal citation omitted) to lighten the burden ofoverworked courts in cases where administrative remedies areavailable and are as likely as the judicial remedy to provide thewanted relief. (internal citation omitted) The claim filingrequirements of the Government Code are directly related to thedoctrine of governmental immunity and exist for the benefit ofthe state, not the judicial system; they were adopted by theLegislature . . . to impose conditions as a prerequisite to thecommencement of any action against the public entity.(internal citation omitted) The doctrine of exhaustion ofadministrative remedies has no relationship whatever to [theGC4], and it follows that any exception to that doctrine is notcontrolling here."

(32 Cal.App.3d at pp. 697-698 [italics added]; see also 8 CT 1522-24[CalPERS' reply supporting demurrer, distinguishing administrativeexhaustion from GCA claims presentation].)

S

22

•

remedies by filing a complaint with, and later obtaining a right-to-sue

letter from, what was then the Division of Fair Employment Practices.

(Id. at p. 864.) The City successfully demurred on GCA grounds, but

• the Court of Appeal reversed, finding "the purposes and procedures of

the FEHA demonstrate a legislative intent" to except FEHA actions

from the GCA. (Id. at p. 868.) Snipes paid particular attention to the•

timing requirements set out in the FEHA procedures, noting that:

• The administrative claim must be filed "within one

•year from the date of the alleged unlawful

practice" (id. at pp. 866-67);

• • There is "no right to sue, even after conciliation

breaks down" unless no administrative accusation

• issues (id.); and

• There is a 150-day waiting period before it can be

said no accusation has issued and "[o]nly then may•

that person sue in the superior court" (id. at p.

866).

•It was these "special limitations periods," the FEHA's

statutorily-created cause of action, and its scheme "for administrative

• enforcement, emphasizing conciliation, persuasion, and voluntary

23

•

compliance" before such a cause action could be brought, that led

Snipes to conclude FEHA procedures served the same purpose for

discrimination disputes as GCA claims presentation does for disputes

generally. (Id. at pp. 867-69.) Each provides the government entity

an opportunity for "resolution short of going to court." (Id. at p. 869

[internal quotes omitted].)

Two years after Snipes was decided, the Second District Court

of Appeal reached the same conclusion in a case brought by a school

teacher alleging her school district discriminated based on gender and

national origin and retaliated against her for reporting such

discrimination to the EEOC. (Garcia, supra, 173 Cal.App.3d 701.)

Again, the plaintiff had exhausted FEHA administrative procedures

and obtained a right to sue letter. (Id. at p. 711.) Like the court in

Snipes, the appeals court focused on the FEHA's one-year deadline

for bringing an administrative claim, its 150-day waiting period for

bringing civil actions, and the FEHA's emphasis on conciliation,

persuasion and voluntary compliance. (Id. at pp. 710-11.) And again,

like Snipes, Garcia concluded the government entity "had ample

notice of appellant's claim . . . and had the opportunity to investigate

and resolve the claim" before suit was brought. (Id. at p. 712.)

24

Snipes and Garcia excuse GCA compliance "only where the

• claim is based on a statute or statutory scheme that includes a

functionally equivalent claim process." (See Gatto v. County of

• • Sonoma (2002) 98 Cal.App.4th 744, 764 [citing 'Snipes].) In the

nearly 30 years since Snipes and Garcia were decided, no published

decision has extended their holdings beyond the FEHA. (See, e.g.,

•Gatto, supra, 98 Cal.App.4th at pp. 764-765 [Unruh Civil Rights Act

claims not exempt from GCA compliance];• Bates v. Franchise Tax

• Bd. (2004) 124 Cal.App.4th 367, 382-385 [same, Information

Practices Act claims]; TrafficSchoolOnline, Inc. v. Clarke (2003) 112

• Cal.App.4th 736, 742 [Snipes inapposite because "[n]o Fair

Employment and Housing Act issue is present in this case."]; Lozada

v. City and County of San Francisco (2006) 145 Cal.App.4th 1139,

1153 [Public Safety Officers Procedural Bill of Rights (POBRA) does

not contain functionally equivalent claim process.])

•Like these other statutes and unlike the FEHA, the PERL

contains no administrative claims procedures functionally equivalent

to GCA claims presentation. Nor do the Administrative Procedures

Act (APA) provisions CalPERS follows in adjudicating claims.

• Unlike the FEHA, the APA has no GCA-like 1-year deadline for

25

•

bringing administrative claims. 9 Unlike the FEHA, there is no GCA-

• like waiting period or administrative notice giving the claimant the

right to go to court. Indeed, unlike the FEHA, neither the PERL nor

• the APA suggests that an administrative filing is merely a step

towards a complaint for damages. If claimants are dissatisfied with a

CalPERS' administrative decision, they cannot bring a complaint for

•damages, but must petition the superior court for a writ of mandate.

(See, e.g., Molina v. CalPERS (2011) 200 Cal.App.4th 53, 58-59.)

• Yost is, at-best, mistaken when he asserts that CalPERS, in its

Sylvester brief, took the "position that it had an equivalent claims

• process to satisfy the GCA." (AOB, p. 45.) For one thing, nothing in

the Sylvester brief says anything about the GCA. Moreover,

• CalPERS' position in Sylvester is entirely consistent with its position

here: unlike the FEHA, CalPERS' administrative procedures cannot

be exhausted simply by obtaining a right-to-sue letter and then going

•

9 There is a 6-month deadline, but only for correcting members' errorsor omissions. CalPERS' administrative duty to correct all other errors

• continues through retired members' lifetimes. (City of Oakland v.Public Employees' Retirement System (2002) 95 Cal.App.4th 29, 50[citing §§ 20160(c), 20164(a)].) As the superior court observed, thisstatutory duty, "does nothing to revive the presentment deadlines set

• forth in GC §911.2." (8 CT 1653-54.)

26

•

straight to court. CalPERS' point, in Sylvester and here, is that its

• procedures are self-contained in the sense that they cannot be

exhausted short of completing an administrative appeal and obtaining

• an administrative decision. (8 CT 1564-66.)

In sum, CalPERS' administrative procedures are nothing like

the FEHA's pre-lawsuit procedures and nowhere near functionally•

equivalent to the GCA claims-presentation process. The Court should •

affirm and bar Yost's court action for want of GCA compliance.

• 2.

Yost Does Not Seek Return of Specific Funds; His Suit

for Pension Money is Covered by the GCA

• Citing Minsky v. City of Los Angeles (1974) 11 Ca1.3d 113,

Yost argues he need not comply with the GCA because his lawsuit

• does not seek "money or damages," merely the return of personal

property. (AOB, pp. 52-53.) In Minsky, the plaintiff sued the City for

return of $7,720 the LAPD seized upon his arrest. The plaintiff did

•not need to first present a GCA claim because the return of seized

money is a form of specific recovery and, as the California Supreme

• Court explained, the GCA does not apply to "nonpecuniary actions,

such as those seeking injunctive, specific, or declaratory relief" (Id.

• at p. 121.) The GCA does not apply where the plaintiff seeks "a

27

specific sum of money which, under general constructive trust

principles, is traceable to property within the possession of the

defendant." (Id.)

The High Court subsequently explained what it meant by

"general constructive trust principles," and in doing so, narrowed

Minsky's scope. (City of Stockton, supra, 42 Ca1.4th at p. 730.)

Minsky applies only where the defendant has a duty, enforceable by

mandamus, to return specific property seized from a claimant and held

in trust. (Id. at p. 743, fn. 8.) "When a claim for 'money or damages'

is not based on a governmental obligation to return specific property,

it is subject to the [GC.A.] claim requirements." (Id.; see also

TrafficSchoolOnline, supra, 112 Cal.App.4th at p. 742 ["Minsky and

the cases relying upon it have not been applied outside the bailee

context"].)

Unlike the plaintiff in Minsky, Yost did not entrust CalPERS

with a sum of money expecting that that specific sum would later be

returned. Instead, Yost's purchase of service credit was an investment

that he understood would benefit him in the form of a higher

retirement benefit. (2 CT 238-39.) Hence, Yost's restitution theory,

seeking refund of his purchase contributions, does not concern

28

•

specific money, but is a monetary claim subject to the GCA. (See

City of Los Angeles, supra, 168 Cal.App4th at pp. 429-30 [no GCA

exemption for restitution claims unless they seek specific property].)

The Court should find service credit purchase contributions are

not specific property and hold Yost was obliged to present a

government claim for his restitution and other monetary claims.

3. The GCA Contains no Statutory Exclusion Applicable

to Yost's Pension Claims.

Yost looks to GCA § 905.2(b) to proffer two more excuses for

not presenting a claim. That section describes the claims a plaintiff

must present to the VCGCB before suing a state entity:

There shall be presented.. .all claims for money or

damages against the state: (1) For which no

appropriation has been made or for which no fund is

available but the settlement of which has been provided

for by statute or constitutional provision. (2) For which

the appropriation made or fund designated is exhausted.

(3) For money or damages on express contract, or for an

injury for which the state is liable. (4) For which

settlement is not otherwise provided for by statute or

29

•

constitutional provision.

(§ 905.2(b).) Yost contends subsections (b)(1) and (b)(4) do not fit

his claim. (AOB, pp. 54-56.)

Under subsections (b)(1) and (b)(4), GCA compliance is

unnecessary where a settlement fund or settlement process is already

in place. Yost argues that the PERL itself has created a fund for

settlement of the claims he has asserted. Specifically, he contends

that the Public Employees' Retirement Fund (PERF) – the fund out of

which member benefits are paid (§§ 20170, 20176) – can satisfy

claims for member benefits. Further, Yost contends that § 21420 –

the PERL section authorizing annuities for members who take IDR

after making certain contributions – provides for settlement of claims

for those annuities. (AOB, pp. 54-56.) Indeed, according to Yost,

every PERL section and constitutional provision underlying his

complaint is a "statute or constitutional provision" authorizing

settlement outside of the GCA process. (AOB, p. 56.)

Yost complains that the court below "dismissed these

arguments as 'an exception that swallows the entire scheme." (AOB,

p. 56.) But dismissal is exactly what these arguments deserve. The

construction Yost urges—that pension laws fall outside the GCA

30

•

because they provide for settlement of pension claims—runs contrary

to case law and the GCA. The GCA expressly applies to most "claims

for money or damages against the state," and this "money or

damages" language has historically been "construed to cover 'all

forms of monetary demands including pension claims and all types of

tort and contract claims.' (City of Stockton, supra, 42 Ca1.4th at p.

739.) The Legislature plainly understood the GCA to apply to

pension claims against the state when it carved out a special exception

for "claims for money or benefits under any public retirement or

pension system" maintained by local public entities. (§ 905 (f).)'°

Yost's pension-statutes-are-settlement-statutes argument is not

only unfounded," but also moot because he declares he "was required

11) Note the Legislature chose not to create a pension benefitsexception for state systems like CalPERS and the California StateTeachers' Retirement System (CalSTRS). (Compare § 905(f) [localpublic entity exceptions include pension claims] with § 905.2 [no stateexception for pension claims].) "Where a statute, with reference toone subject contains a given provision, the omission of such provisionfrom a similar statute concerning a related subject ... is significant toshow that a different intention existed." (First American CommericalReal Estate Services, Inc. v. County of San Diego (2011) 196Cal.App.4th 218, 229.)

Yost cites no authority for his assertion that an appropriation hasbeen made or a settlement fund exists for his claims. (See AOB, pp.54-56.

31

•

to present his claim to CalPERS." (AOB, p. 55.) However, as

explained above, Yost never presented a claim. (See Section IV.A.1

above, pp. 13-15.)

The Court should reject the notion that the pension laws were

enacted to provide for settlement of claims brought under those laws

and affirm Yost's suit was properly dismissed for unexcused failure to

present a government claim.

4. Yost's GCA Filing Deadline Has Long Since Passed.

Yost's final attempt to excuse his failure to comply with the

GCA is the half-hearted suggestion that he could not have alleged

GCA compliance when he filed his original complaint because his

GCA claim had yet to accrue. (AOB, pp. 56-59.) This makes no

sense.

GCA § 911.2(a) sets the deadline for presenting a claim to the

VCGCB:

A claim relating to a cause of action for death or for

injury to person or to personal property or growing crops

shall be presented ... not later than six months after the

accrual of the cause of action. A claim relating to any

other cause of action shall be presented ... not later than

32

one year after the accrual of the cause of action.

(§ 911.2(a).) Hence, Yost had one year from accrual to present his

claim with the VCGCB.

The accrual rules under the GCA are the same as the accrual

rules under civil statutes of limitation. (Ovando v. County of Los

Angeles (2008) 159 Cal.App.4th 42, 63 ["date of accrual for purposes

of the claim presentation requirement is the same date on which the

cause of action would accrue for purposes of the statute of limitations

in an action against a private party," citing Shirk v. Vista Unified

School Dist. (2007) 42 Ca1.4th 201, 208-209].) Even under the

delayed discovery doctrine, accrual is postponed no later than when

the plaintiff "suspects .. . that someone has done something wrong" to

him—as "wrong" is understood by a layman. (Norgart v. Upjohn Co.

(1999) 21 Ca1.4th 383, 397-98.)

Yost suspected CalPERS had done something wrong to him no

later than April 2008. (2 CT 238, 320.) That is when Yost received

notice that CalPERS would provide him a 51.425% IDR allowance,

and when Yost understood that his allowance would be much less

than the amount he "rightly believed and expected" based on his

service credit purchase. (Id.) But despite a belief in April 2008 that

33

CalPERS had done something wrong to him, Yost waited nearly two

• and a half years—until September 2010—to sue. (1 CT 7.)

Under Yost's view, his claim to be either paid more or paid

• back for his service credit purchase had not accrued even by the time

he filed his complaint making those claims. Yost insists his claim did

not accrue until October 2010, when CalPERS demurred to the•

original complaint. (AOB, p. 59, fn. 27.) Supposedly, Yost did not

know until then that his alleged injury "likely originated from

• CalPERS' wrongful accounting." (AOB, p. 56.)

It cannot be, of course, that Yost had sufficient information to

• bring a civil lawsuit against CalPERS, but lacked enough knowledge

to file a claim with the VCGCB. As Orvando explains, accrual means

the same thing in both contexts. (Orvando, supra, 159 Cal.App.4th at•

p. 63.)

As Yost concedes, delayed accrual is not properly before this

Court on appeal. (AOB, p. 23, fn. 19.) The Court should reject his

backhanded attempt to introduce it as yet another excuse for failing to

present a claim and hold the GCA bars Yost's civil action, which was

properly dismissed on demurrer.

0

•

•

34

•

C. Yost Was Correctly Denied Leave To Amend His Complaint

• Though he deliberately chose not to comply with the GCA,

Yost invites this Court to give him another chance. He asks this Court

• to remand, to direct the trial court to rule on his delayed accrual

argument, and, if the trial court were to somehow find in his favor, to

permit him to finally go to the VCGCB so he might file a second•

amended complaint. (AOB, pp. 23 [fn.19], 59 [fn. 27].) The relief

sought by Yost would be pointless. As recognized by the trial court in

• sustaining CalPERS' demurrer without leave to amend, "Plaintiff has

shown no possible way of timely presenting his disputes to VCGCB

O as required by the GCA." (See 8 CT 1654.) This was a correct ruling

because, as explained in the last section, Yost's claim accrued in April

• 2008, but he waited until September 2010 to bring it, long past the

GCA's one-year deadline. (See § 911.2(a)).

Affording Yost another chance would also sanction a "file first,•

fix later" approach inconsistent with the GCA's essential purpose: to

provide the public entity an opportunity to investigate claims, and

• perhaps settle them, without the expense of litigation. (City of

Stockton, supra, 42 Ca1.4th at p. 738.) CalPERS can no longer avoid

• the expense now that Yost has forced it into litigation.

35

Yost proposes in the alternative that the trial court should have

granted him leave to take discovery, find a new class representative,

have the new representative present the class claim to the VCGCB,

and then file another amended complaint naming the new class

representative and alleging GCA compliance. (AOB, pp. 59-60.) The

trial court, however, acted within its discretion to deny the discovery

request. (8 CT 1655-56.)

Citing Branick v. Downey Savings and Loan Association (2006)

39 Ca1.4th 235, Yost contends that the trial court erred in denying his

discovery request because the substitution of plaintiffs should be

"liberally allowed." Branick, however, is inapposite. In Branick, the

plaintiff filed a lawsuit under California's Unfair Competition Law

(UCL) before voter-approved Proposition 64 amended it to add

standing requirements. The action was dismissed because the

plaintiffs could not satisfy the new standing requirements, and a

question on appeal was whether the plaintiffs might amend the

complaint to substitute in or add a party with standing. (Id. at p. 240.)

The Supreme Court remanded that question to the trial court to decide

under an "abuse of discretion" standard (id. at p. 242), but noted that

amendments for substituting parties were historically "liberally

36

•

allowed" as long as the plaintiff proposed to be substituted did not

"state facts which give rise to a wholly distinct and different legal

obligation against the defendant." (Id.)

The Second District Court of Appeal later narrowly interpreted

this liberal policy of party substitutions. (First American Title Ins.

Co. v. Superior Court (2007) 146 Cal.App.4th 1564.) First American

explained the liberal policy "is usually applied in situations where the

class representative originally had standing, but has since lost it by

intervening law or facts" or "when the class representative had

standing when she sent the defendant a demand letter threatening suit,

but lacked standing when the suit was filed because the defendant had

granted plaintiff individual relief in response to her demand letter."

(Id. at 1574-75 [citations omitted].) First American drew the line

when it found the plaintiffs before it fell within neither category,

refusing to permit "fishing expedition" discovery to enable party

substitutions: "We cannot permit attorneys to make an 'end-run'

around Proposition 64 by filing class actions in the name of private

individuals who are not members of the classes they seek to represent

and then using precertification discovery to obtain more appropriate

plaintiffs." (Id. at pp. 176-77.)

37

Since First American, two other appellate panels have focused

on the interests of absent class members in deciding whether to

approve precertification discovery to find substitutes for unfit named

plaintiffs. The Fourth District, Division 1, permitted substitution

where a "class of 551 members whose calls were secretly monitored

would be unable to obtain any relief for the alleged violations of their

privacy rights" absent such discovery. (CashCall, Inc. v. Superior

Court (2008) 159 Cal.App.4th 273,290-91.) More recently, a Fourth

District, Division 3, panel vacated an order for precertification

discovery, limiting CashCall and holding that the proposed discovery

would harm the privacy rights of absent class members. (Starbucks

Corp. v. Superior Court (2011) 194 Cal.App.4th 820, 829 [CashCall

reflects "the unique circumstances of the case"; employer need not

name applicants with marijuana convictions to help revive putative

class action charging it invaded their privacy by asking about older

convictions].)

None of these authorities suggests that the trial court abused its

discretion by denying Yost's request for discovery. Yost never had

the right to sue CalPERS, but came to court anyway, intentionally

disregarding the GCA's claim presentation requirements. Moreover,

38

discovery is unnecessary to preserve a claim for putative class

members because, unlike in CashCall , the existence of a cause of

action is no secret. From the moment they receive their first monthly

check, every CalPERS IDR retiree who bought service credit would

know (or be able to form a belief) as to whether CalPERS was paying

them a sufficient allowance. Any aggrieved CalPERS members can

seek administrative relief

The superior court cited several of these reasons in denying

discovery it concluded would "invariably burden[] CalPERS." (8 CT

1655-56.) Yost offers one more reason that discovery in search of a

plaintiff would be unnecessary: other CalPERS members have already

filed their own class action (the related Marzec suit) that raises the

same claims and issues that Yost raises here. (AOB, p. 23 [fn. 19].)

V.

CONCLUSION

The right to bring a lawsuit against a public entity has long

been governed by the GCA, which specifies that the state can only be

sued after the claim is presented to the VCGCB. The VCGCB and

state entity then have the opportunity to investigate, and perhaps

39

By:

settle, before the entity is obliged to incur litigation costs.

Yost knew about the GCA and its claim presentation

requirements, yet intentionally refused to comply before filing a class

action against CalPERS. Yost's explanation—not wanting "to

voluntarily waive the benefits of CalPERS legal duties to him and

others" (AOB, p. 4)—makes no sense. The Court should uphold the

GCA and affirm the dismissal below.

Dated: March 8, 2012 STEPTOE & JOHNSON LLP

Edward GregoryJason Levin

Attorneys for Respondent CalPERS

40

WORD COUNT CERTIFICATE

(Cal. Rules of Court, Rule 8.204(c)(1))

The Microsoft Word computer program used to prepare this

brief counts 7,827 words of text, including footnotes.

•

Dated: March 8, 2012

STEPTOE & JOHNSON LLP

• By:

Edward GregoryJason Levin

Attorneys for Respondent CalPERS•

•

0

•

•

41

42

Elena Hernande

PROOF OF SERVICE BY MAIL2d Civil No. B232920

I am a resident or employed in Los Angeles County, am over

age 18 and not a party to this action. My business address is: Steptoe

& Johnson LLP, 633 West Fifth Street, Suite 700, Los Angeles,

California 90071.

On March 8, 2012, I served RESPONDENT CALPERS'

OPPOSITION BRIEF by the method(s) described below, on the

parties in this action, addressed to their counsel of record as follows:

[SEE ATTACHED SERVICE LIST]

I am readily familiar with the firm's business practice for

collection and processing of correspondence for mailing with the

United States Postal Service. On this Date, I placed the Document for

collection and processing, to be deposited with the United States

Postal Service in the ordinary course of business. In the ordinary

course of the firm's business, such correspondence was deposited with

the United States Postal Service on the same Date.

I declare under penalty of perjury under California law that the

foregoing is true and correct.

Executed March 8, 2012, at Los Angeles County, California.

SERVICE LISTDavid Yost v. CalPERS, case no. B232920

Counsel for AppellantDavid Yost

John Michael Jensen

Law Offices of John Michael Jensen

11500 West Olympic Boulevard, Suite 550Los Angeles, California 90064

Superior Court CLERK, Department 309Honorable Anthony J. MohrLos Angeles Superior Court600 South Commonwealth AvenueLos Angeles, California 90005(I copy)

43

•