Filed 10/5/26 Moore v. PERS CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
DWAIN D. MOORE, C104513
Plaintiff and Appellant,
(Super. Ct. No. 25WM000055)
v.
PUBLIC EMPLOYEES’ RETIREMENT
SYSTEM,
Defendant and Respondent.
Appellant Dwain D. Moore appeals from a trial court judgment sustaining a
demurrer filed by respondent Public Employees’ Retirement System (CalPERS) without
leave to amend because appellant’s petition for writ of mandate was time-barred by the
statute of limitations contained in Government Code1 section 11523. Appellant contends
the trial court erred by failing to apply exceptions to the statute of limitations excusing
his delay, making his petition timely. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is a former member of CalPERS and separated from state service in
September 1997. CalPERS subsequently mailed him options for handling his retirement
contributions. In October 1997, appellant’s brother presented CalPERS with a document
1 Undesignated section references are to the Government Code.
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purporting to appoint him as power of attorney to handle appellant’s affairs, which
included “[r]etirement plan transactions.” After review, CalPERS approved appellant’s
brother to withdraw appellant’s retirement contributions and gave him a check payable to
appellant in the amount of $23,903.25.
In January 2015, appellant contacted CalPERS and requested reimbursement for
his retirement contributions, claiming he appointed his brother as his power of attorney
while under duress. In July 2020, CalPERS issued a final determination rejecting the
claim and appellant administratively appealed the decision, which led to an evidentiary
hearing before an administrative law judge in October 2021.
“In November 2021, the administrative law judge issued a proposed decision
rejecting [appellant]’s claim and finding CalPERS did not commit any errors in
processing the refund of retirement contributions to [appellant]’s brother.” “On
January 19, 2022, CalPERS issued and served a final decision adopting the proposed
decision,” noting it took effect 30 days following the final decision’s issuance. On
January 21, 2022, appellant filed a petition for reconsideration with CalPERS. CalPERS
denied the petition for reconsideration on March 16, 2022, and instructed appellant that
he had 30 days to appeal the denial to the superior court. Three years later, on March 24,
2025, appellant filed a petition for writ of mandate to challenge CalPERS’s decision in
the superior court. In his petition, appellant alleged CalPERS committed error by
processing a refund without following its own procedures, failing to provide notice to
appellant of the refund, and relying on his brother’s power of attorney while treating
appellant’s whereabouts as unknown.
The trial court sustained CalPERS’s demurrer without leave to amend because the
petition was time-barred under section 11523. In doing so, the court rejected appellant’s
argument the statute of limitations should be tolled because he was caring for his
terminally ill parents and did not learn of the termination of his pension rights until 2015.
The trial court further explained that, contrary to appellant’s arguments, the relevant
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inquiry was not appellant’s or CalPERS’s pre-2015 conduct, but conduct occurring after
CalPERS rejected appellant’s claim in 2022.
Appellant appeals.
DISCUSSION
Appellant contends the trial court erred by finding his petition time-barred by the
statute of limitations contained in section 11523 and not applying exceptions. We
disagree.
A petition for writ of mandate must be filed in the superior court within 30 days
after the last day on which reconsideration could be ordered by an agency. (§ 11523.)
Here, there is no dispute the face of the petition provides that appellant filed his petition
in March 2025, three years after CalPERS denied reconsideration. “If ‘ “the complaint’s
allegations or judicially noticeable facts reveal the existence of an affirmative defense[
such as the statute of limitations], the ‘plaintiff must “plead around” the defense, by
alleging specific facts that would avoid the apparent defense.’ ” ’ ” (Nichols v.
Alghannam (2026) 118 Cal.App.5th 726, 733.) The application of the statute of
limitations on demurrer is subject to de novo review. (Aryeh v. Canon Business
Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) When a trial court has sustained a
demurrer without leave to amend, however, the appellant can demonstrate trial court error
by proving there is a reasonable possibility the defect can be cured by amendment.
(Nichols, at p. 733.) If the appellant makes such a showing, the trial court has abused its
discretion by failing to grant leave to amend and we must reverse. (Ibid.)
Appellant identifies five exceptions to the statute of limitations he believes apply
to his case. First, appellant invokes the delayed discovery doctrine. The delayed
discovery exception to the statute of limitations defers accrual of a cause of action “until
the plaintiff has, or should have, inquiry notice of the cause of action.” (Fox v. Ethicon
Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) Appellant alleges he meets this standard
because he first learned of the refund and termination of his pension rights when he
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contacted CalPERS in 2015 and had no reason to suspect this had occurred prior. But as
the trial court noted, under section 11523, the relevant time period for discovery is not
when appellant discovered his cause of action against CalPERS but when he discovered
he needed to file a petition with the superior court to challenge CalPERS’s denial of his
claim. The proof of service attached to CalPERS’s decision provides that appellant was
served on January 19, 2022, with an adverse ruling, and appellant filed a petition for
reconsideration two days later, establishing he had notice of CalPERS’s denial. Further,
CalPERS informed appellant when denying his petition for reconsideration that he had 30
days following that denial to challenge CalPERS’s decision in the superior court.
Because the record establishes appellant knew of CalPERS’s adverse ruling and the need
to promptly challenge it in superior court, appellant fails to demonstrate he can avail
himself of the delayed discovery doctrine.
Second, appellant invokes equitable tolling. Equitable tolling applies when there
are three elements present: (1) timely notice, “ ‘[(2)] lack of prejudice[] to the defendant,
and [(3)] reasonable and good faith conduct on the part of the plaintiff.’ ” (Saint Francis
Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710, 724.) Appellant
alleges equitable tolling applies because after discovery in 2015, he made a reasonable
good faith effort by seeking records and reconsideration and pursuing administrative
remedies before filing the writ petition in March 2025. Appellant, however, fails to meet
the standard for equitable tolling because he does not allege facts demonstrating he made
a good faith effort between CalPERS’s denial of reconsideration in 2022 and the filing of
his petition for writ of mandate in March 2025. The 30-day statute of limitations
provided for in section 11523 began to run in March 2022 after CalPERS’s denial of
appellant’s petition for reconsideration.
Third, appellant alleges equitable estoppel bars CalPERS from invoking the statute
of limitations. The doctrine of equitable estoppel “preclude[s] a party from asserting the
statute of limitations as a defense to an untimely action where the party’s conduct”
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delayed a plaintiff from filing suit. (McMackin v. Ehrheart (2011) 194 Cal.App.4th 128,
142.) Appellant argues he meets this standard because CalPERS concealed his pension
refund until his inquiry in 2015 by processing the refund without a member signed
election, failing to provide clear notice to appellant of the refund, and relying on a
document purporting to assign power of attorney to his brother while treating appellant’s
whereabouts as unknown. Appellant’s argument is without merit because he only refers
to events that occurred prior to 2015 and none that occurred after CalPERS’s final
decision in 2022. More importantly, CalPERS instructed appellant that he had 30 days
from March 16, 2022, to appeal to the courts. Thus, appellant fails to show wrongful
conduct as required for equitable estoppel to apply.
Fourth, appellant argues, “Continuing accrual independently preserves timeliness
for ongoing nonpayment.” (Some capitalization omitted.) To determine if the
continuous accrual doctrine applies, we look “to the nature of the obligation allegedly
breached.” (Aryeh v. Canon Business Solutions, Inc., supra, 55 Cal.4th at p. 1200.)
When the obligation arises on a recurring basis, a new limitations period is triggered each
time a wrongful act occurs. (Ibid.) Appellant claims he meets this standard because of
the “continuing monthly harm through ongoing nonpayment of vested retirement benefits
that [a]ppellant reasonably expected to receive for life.” In his petition, however,
appellant claims CalPERS’s actionable conduct was terminating his membership and
refunding his retirement contributions to his brother in 1997. Because the wrongful act
alleged is a single act in 1997, the continuous accrual doctrine does not apply.
Lastly, appellant appears to argue he can amend his complaint and invoke
disability tolling. Code of Civil Procedure section 352, subdivision (a) tolls the statute of
limitations when at the time the cause of action accrued, a person entitled to bring an
action is lacking capacity to make decisions. This provision applies when plaintiffs are
under a legal disability that restricts them from commencing legal action, such as
insanity. (Blankenship v. Allstate Ins. Co. (2010) 186 Cal.App.4th 87, 97.) “For
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purposes of Code of Civil Procedure section 352,” plaintiffs are “ ‘insane’ if ‘incapable
of caring for [their] property or transacting business or understanding the nature or effects
of [their] acts.’ ” (Alcott Rehabilitation Hospital v. Superior Court (2001)
93 Cal.App.4th 94, 101.)
Appellant alleges he meets this standard because after 2015, he experienced a
“psychiatric disability and was prescribed sedating psychotropic medications that
impaired his concentration, memory, and ability to manage complex tasks and deadlines.”
Additionally, he alleges his mental condition combined with his caregiving
responsibilities “limited his capacity to investigate his rights or navigate administrative
and judicial procedures.”
The problem with appellant’s argument is that the record demonstrates appellant’s
psychiatric disability did not prevent him from engaging in the legal process. Indeed,
after discovering in 2015 that he was no longer a CalPERS member, appellant sought
records, requested reimbursement from CalPERS, engaged in CalPERS’s administrative
process, and requested reconsideration with the CalPERS board. Appellant does not
provide any facts to show his psychiatric disability has worsened after receiving
CalPERS’s final decision in 2022 to explain why he waited three years to file a petition
for writ of mandate. Thus, appellant has not shown he can amend his petition to allege
disability tolling.
Consequently, the trial court did not err by sustaining CalPERS’s demurrer
without leave to amend.
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DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
/s/
ROBIE, J.
We concur:
/s/
HULL, Acting P. J.
/s/
MAURO, J.
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