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Alan W. Claudino v. County of Calaveras

May 29, 2012

ALAN W. CLAUDINO, PLAINTIFF AND APPELLANT,
v.
COUNTY OF CALAVERAS, DEFENDANT AND RESPONDENT.



(Super. Ct. No. CV35667)

The opinion of the court was delivered by: Duarte , J.

Claudino v. County of Calaveras 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Alan Claudino appeals after the trial court granted the motion for summary judgment by defendant County of Calaveras (the County) in Claudino's breach of contract case. Claudino, a retired highway patrol officer who was subsequently elected to the Board of Supervisors of Calaveras County, contends he was entitled to cash payments in lieu of a contribution to the California Public Employees Retirement System (CalPERS) for the period he served as a supervisor. He contends he was entitled to such payments pursuant to Government Code*fn1 section 21222. The trial court found that section 21222 did not apply to Claudino's situation, and that there existed no contract providing Claudino with cash in lieu of retirement benefits. We shall affirm the trial court's order.

FACTUAL AND PROCEDURAL BACKGROUND

I Claudino's Retirement and Election

Claudino worked as a highway patrol officer for 37 years, from 1965 until 2002. He began receiving retirement benefits from CalPERS in January of 2003. In 2004, Claudino was elected to the County's Board of Supervisors and took office in January 2005. He served four years. Because he was receiving a pension from CalPERS and chose not to be reinstated from retirement and stop receiving his pension, he was not eligible for participation in the CalPERS system for the period he served as a supervisor.

During his service as a supervisor, Claudino noticed his pay stub did not show any retirement contribution. He repeatedly inquired about it, but nothing was resolved by the time his term expired. He believed he was entitled to the same amount as had been contributed for Steven Wilensky, a supervisor who served the same 2005-2009 term. After his term ended, Claudino filed a claim for his retirement allowance. The claim was denied.

II The Lawsuit

Claudino filed suit against the County. The second amended complaint*fn2 originally set forth five causes of action for failure to discharge mandatory duty, breach of contract, misrepresentation, constructive trust, and common count. The County's demurrer to this complaint was overruled only as to the second, fourth, and fifth causes of action. Claudino elected not to amend, but to rely on these causes of action.

The second cause of action was for breach of contract. It alleged that as a result of being elected supervisor, Claudino "was entitled to payments as a Supervisor which included a PERS contribution." He was to receive that contribution for four years. He was repeatedly told his claim for those funds would be taken care of, but when he ceased being a supervisor, the County failed to pay Claudino the sums he was owed, a total of $35,395.21.

The fourth cause of action was for constructive trust. It alleged Claudino was entitled to receive biweekly retirement contributions as a result of his employment as a supervisor and that the County held $35,395.12 in the general fund as a constructive trustee on behalf of Claudino.

The fifth cause of action was a common count.*fn3 It alleged the County had received $35,395.12 on Claudino's behalf and denied his request for the money. He was ...


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