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Lucio A. Barroga v. Board of Administration Cal Public Employees' Retirement System

October 25, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the undersigned is the Board of Administration for the California Public Employees' Retirement System's ("defendant") motion to dismiss plaintiff Lucio Barroga's ("plaintiff") complaint on grounds that (1) plaintiff's claims are barred by the doctrine of claim preclusion/res judicata and (2) this court lacks subject matter jurisdiction because defendant is entitled to immunity under the Eleventh Amendment of the United States Constitution. (Dkt. No. 21.) Plaintiff, who is proceeding without counsel in this action, filed a written opposition to the pending motion to dismiss.*fn1 (Dkt. No. 23.) Also before the undersigned are plaintiff's recent filings, styled as "Plaintiff's Motion for Judgment on the Pleadings to be Heard Concurrently With Defendant's Motion to Dismiss" (Dkt. No. 28) and a "Request for Observance of Cal. Code Of Civ. Proc. Sec. 1062.5(2) For Precedence Consideration Of Case" (Dkt. No. 29).

This matter came on for hearing on October 18, 2012. Plaintiff appeared on his own behalf. Attorney Brenda Ann Ray of the Attorney General's Office for the State of California appeared on behalf of defendant.

The undersigned has fully considered the parties' briefs and the appropriate portions of the record in this case and, for the reasons stated below, recommends that defendant's motion to dismiss be granted and that this action be dismissed with prejudice. Defendant is a state agency with immunity from private suit under the Eleventh Amendment and plaintiff has not plausibly alleged a waiver of such immunity. Accordingly, the Eleventh Amendment bars plaintiff's claims against defendant. Defendant argues in the alternative that plaintiff's claims are barred by the doctrine of claim preclusion given the California state court system's resolution of plaintiff's prior lawsuit, Barroga v. Board of Administration, Public Employee's Retirement System, Super. Ct. No. KC003981 ("Barroga I"). This alternative argument is not well-taken, due solely to the fact that defendant has not made the requisite showing under the correct "primary rights" standard for claim preclusion in this case.


A. The Earlier Action

In Barroga I, plaintiff filed a complaint in California Superior Court against the present defendant, CalPERS, wherein plaintiff sought relief in connection with defendant's alleged refusal to grant plaintiff retirement benefits to which plaintiff claimed he was entitled. (Dkt. No. 1 at 31-32.) The trial court entered judgment on the pleadings against plaintiff, agreeing with defendant that the sole remedy available was a petition for administrative mandamus and not a lawsuit for damages. (Id. at 52.) Plaintiff then unsuccessfully sought reconsideration of the trial court's determination. The court had dismissed plaintiff's case on procedural grounds because his "only remedy was a petition for a writ of mandamus, rather than a complaint for breach of contract and fraud." (Id. at 35.) Plaintiff failed to file a timely appeal. (Id. at 36.) Instead, he filed several ineffectual post-judgment motions in trial court. (Id.) The California Court of Appeal affirmed the trial court's judgment against plaintiff on the grounds that it lacked jurisdiction to review the case because plaintiff's filing was untimely. (Id. at 36-37.) Plaintiff appealed to the California Supreme Court, which denied review of his case. (Id. at 38.) Plaintiff then sought certiorari in the United States Supreme Court, which also denied review. (Id. at 55.)

In the years since the conclusion of Barroga I, plaintiff has continued to file complaints in both state and federal courts alleging defendant's wrongdoing in connection with denying retirement benefits to plaintiff. Since Barroga I, these courts have found plaintiff's claims to be procedurally barred by claim preclusion or, for filings in federal court, barred by defendant's Eleventh Amendment immunity.*fn3 (E.g., id. at 59-60, 64-66.)

B. The Present Action

Nearly fifteen years after the United States Supreme Court denied certiorari with respect to Barroga I, and after multiple failed attempts to bring the same claims in other courts, plaintiff filed his complaint in this action. The complaint consists of a nearly 300 page document that includes a memorandum of points and authorities and a long list of exhibits detailing nearly every motion filed and order issued in state and federal court for over 20 years regarding plaintiff's claims against defendant. (See Dkt. Nos. 1, 1-1.)

The complaint includes a brief statement of factual allegations. (Compl., Dkt. No. 1 at 2-3.) Plaintiff alleges that when he became eligible to retire from his job with the City of El Segundo he went to one of defendant's offices to apply for retirement benefits. (Id. at 2.) He alleges further that he was told that he could receive his benefits either through an immediate lump-sum payment, which paid out his personal contributions but withheld his employer's contributions, or through monthly payments; plaintiff chose the lump sum payment. (Id.) Some years later, plaintiff went back to defendant's office seeking to redeposit his withdrawn contributions so that he could receive a monthly pension. (Id. at 3.) Plaintiff alleges that defendant told him that he could not redeposit funds and receive monthly benefits because he ceased to be a member of the fund once he had withdrawn his personal contributions. (Id.)

Plaintiff bases his claims for relief on several grounds. He alleges that defendant's determination that he is no longer a member of CalPERS and defendant's denial of his retirement benefits violated the Equal Protection Clause of the Fourteenth Amendment, the Thirteenth Amendment's prohibition on slavery, and several sections of the California Government Code. (Id. at 24-25.) Plaintiff alleges that, as a result of defendant's actions, he is entitled to a declaratory judgment that he is "still a member of PERS" and is "entitled to retirement benefits and the redeposit of the withdrawn contributions." (Id. at 24.) Plaintiff also alleges that he is entitled to the accumulated amount of pension funds that defendant has allegedly withheld from him over the years and monthly pension payments starting from January 2012. (Id. at 25.)


A. Federal Rule 12(b)(1)

A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) or 12(h)(3) challenges the court's subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that "may not grant relief absent a constitutional or valid statutory grant of jurisdiction," and "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (citations and quotation marks omitted); see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."). When ruling on a motion to dismiss for lack of subject matter jurisdiction, the court takes the allegations in the complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). However, the court is not restricted to the face of the pleadings and "may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) ("A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence."). "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Communities for a Better Env't., 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), abrogated on other grounds by Hertz Corp v. Friend, 130 S. Ct. 1181 (2010); see also Colwell v. Dep't of Health & Human Servs., 558 ...

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