Schupbach v. So. Cal. Regional Rail Authority CA2/3

Opinion

Filed 9/28/26 Schupbach v. So. Cal. Regional Rail Authority CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

MATTHEW SCHUPBACH, B344932

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 23STCV30545) v. SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY et al., Defendants and Respondents.

APPEAL from judgments of the Superior Court of Los Angeles County, Laura A. Seigle, Judge. Affirmed. Schneider Wallace Cottrell Konecky, Schneider Wallace Cottrell Kim, Jason H. Kim, Bradley R. Fagnani and John J. Nestico for Plaintiff and Appellant. Southern California Regional Rail Authority, Geoffrey P. Forgione; Meyers Nave, Jenny L. Riggs and Margaret W. Rosequist for Defendants and Respondents Southern California Regional Rail Authority and Board of Directors of the Southern California Regional Rail Authority. Mayer Brown, John Nadolenco, Andrew J. Demko and Elisabeth M. Anderson for Defendant and Respondent MissionSquare Retirement.

‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ Plaintiff Matthew Schupbach is a participant in a public employee retirement plan maintained by the Southern California Regional Rail Authority (SCRRA). He sued SCRRA, its board of directors, and a third party for breach of fiduciary duty and aiding and abetting breach of fiduciary duty, contending that he and other plan members paid excessive plan management fees. The trial court sustained defendants’ demurrers, finding that plaintiff failed to state either claim because the public entities were immune from suit. Plaintiff has failed to demonstrate error, and thus we affirm. FACTUAL AND PROCEDURAL BACKGROUND I. Complaint. Defendant SCRRA is a joint powers authority that operates the Metrolink rail service. SCRRA maintains a deferred compensation plan, known as the Southern California Regional Rail Authority 457 Deferred Compensation Plan (the Plan), for the benefit of its employees. SCRRA’s board of directors (Board), also a defendant, manages the Plan pursuant to Article XVI, 2 section 17 of the California Constitution (section 17), which provides that the boards of public pension or retirement plans have “plenary authority and fiduciary responsibility for investment of moneys and administration of” those plans.” The Board retained defendant MissionSquare Retirement (MissionSquare) to provide recordkeeping and administrative services. MissionSquare also offered Plan participants its own branded investment options. Plaintiff, a Plan participant, filed the present putative class action against SCRRA, the Board, and MissionSquare in December 2023, and filed the operative first amended complaint (FAC) on behalf of himself and Plan participants and beneficiaries in July 2024. The FAC alleged that MissionSquare does not charge an explicit fee for its administrative services, but instead adds “grossly excessive” fees to each of its branded funds. As against SCRRA and the Board, the complaint alleged breach of fiduciary duties pursuant to section 17 by failing to control MissionSquare’s excessive administrative fees (first cause of action). As against MissionSquare, the complaint alleged aiding and abetting the Board’s breach of fiduciary duty— namely, that MissionSquare “devised, promoted, and maintained the pricing scheme that resulted in the Plan and participants paying excessive and unreasonable compensation for Plan administrative services and excessive investment management fees for minimal or non-existent services, knowing that the SCRRA Board of Directors was failing to adequately investigate or monitor MissionSquare’s compensation” (second cause of action). The complaint sought a judgment requiring SCRRA and the Board to “[r]estore participants’ accounts to the value they 3 would have had [if SCRRA and the Board had] prudently and diligently negotiated reasonable fees,” to seek restitution against MissionSquare, and to engage a new Plan administrator, develop an investment policy statement, and engage a third-party consultant. As against MissionSquare, the complaint sought a judgment ordering restitution of excessive fees and disgorgement of profits. II. Demurrers. SCRRA and the Board (collectively, SCRRA defendants) demurred to the first cause of action for breach of fiduciary duty. The SCRRA defendants asserted that under the Government Claims Act (Gov. Code, § 810 et seq.; the Act),1 there is no common law tort liability for public entities in California; such liability is wholly statutory. Plaintiff did not allege a proper statutory basis for his breach of fiduciary duty claim because there is no private right of action under section 17, and although public entities are liable under the Act for injuries resulting from their employees’ nondiscretionary acts or omissions within the scope of employment, the Board’s actions alleged to create liability resulted from their discretionary exercise of fiduciary duties under section 17. The SCCRA defendants further asserted that plaintiff failed to timely present a prelitigation damages claim as required by section 911.2, the FAC failed to adequately state a claim for breach of fiduciary duty, and any amendment would be futile. The SCRRA defendants thus asked the court to 1 Except for references to section 17, all subsequent undesignated statutory references are to the Government Code.

4 sustain their demurrer to the first cause of action without leave to amend. MissionSquare demurred to the second cause of action. It asserted that to properly plead a cause of action for aiding and abetting a breach of fiduciary duty, plaintiff had to allege specific facts showing that MissionSquare knew that the Board was breaching its fiduciary duties and substantially assisted or encouraged that breach. MissionSquare urged that plaintiff failed to plead that it had actual knowledge of any breach of fiduciary duty and, in any event, he failed to state a claim against the Board for breach of fiduciary duty. Plaintiff opposed both demurrers. In opposition to the SCRRA defendants’ demurrer, plaintiff asserted that the Act did not bar his breach of fiduciary duty claim because it sounded in contract, not tort, sought only equitable remedies, and did not arise out of the Board’s exercise of discretion. Alternatively, plaintiff urged that he was not required to demonstrate a statutory basis for his claim because section 17 is self-executing; claims for breach of fiduciary duty arising under the California Constitution trump any immunities created by statute; claims for benefits due under a public retirement system are expressly exempt from the statutory claims presentation requirement; and the FAC adequately pled a cause of action for breach of fiduciary duty. In opposition to MissionSquare’s demurrer, plaintiff contended that the complaint properly pled MissionSquare’s knowledge of SCRRA’s breach of fiduciary duty by inference or circumstantial evidence, and even if his allegations failed to allege aiding and abetting, they stated a claim for knowing 5 participation in a breach of fiduciary duty under common law trust principles. The trial court sustained both demurrers without leave to amend. It noted, first, that a public entity is not liable for common law torts, and thus tort liability against a public entity must be authorized by statute. Section 17 does not expressly create an exception to that rule or a private right of action for monetary relief. To the contrary, as the Court of Appeal noted in Krolikowski v. San Diego City Employees’ Retirement System (2018) 24 Cal.App.5th 537, 553–554 (Krolikowski), section 17 “ ‘says nothing about creating liability for money damages against public pension plan members in instances when such liability would otherwise be barred by statutory governmental immunity.’ ” Second, the court rejected plaintiff’s contention that he was seeking only equitable remedies, not damages, and so the Act’s immunity provisions did not apply. Instead, the court concluded that the FAC requested monetary relief by seeking restoration of Plan participants’ accounts to the value they would have had absent the allegedly excessive administrative fees, restitution for all excessive compensation paid to MissionSquare, and disgorgement of profits. Third, the court rejected as “baseless” plaintiff’s contention that section 17 is “ ‘effectively’ a contract,” and thus the Act did not apply because plaintiff was actually suing for breach of contract. The court explained: “The [complaint] does not allege the elements of a breach of contract cause of action; it alleges breach of fiduciary duty, and it seeks remedies not available for breach of contract. . . . Plaintiff cites no law that a breach of 6 fiduciary duty cause of action is actually a contract, and not a tort, claim. The law is clear—breach of fiduciary duty is a tort.” The trial court therefore concluded that the FAC did not allege a statutory basis for the breach of fiduciary duty claim. And, because the FAC did not satisfy the statutory requirements for stating a breach of fiduciary duty claim against SCRRA, it also failed to state a claim for aiding and abetting a breach of fiduciary duty. Finally, plaintiff did not show that he could amend the complaint to remedy these defects. The trial court thus sustained the demurrers without leave to amend as to all defendants. The trial court entered judgments of dismissal on January 3, 2025. Plaintiff timely appealed.2 DISCUSSION I. Legal standards. A. Standard of review. Because this appeal was taken from a judgment following an order sustaining a demurrer and involves questions of statutory interpretation, our review is de novo. (Stone v. 2 Plaintiff filed a single notice of appeal, purportedly from a judgment entered on January 7, 2025. No judgment was entered on January 7; instead, the trial court entered two judgments of dismissal on January 3, although notice of entry of the judgment in favor of MissionSquare was served on January 7. Nonetheless, because “ ‘ “it is reasonably clear what [the] appellant was trying to appeal from” ’ ” and defendants “ ‘ “could not possibly have been misled or prejudiced” ’ ” (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882), we will construe the notice of appeal to be from the judgments entered January 3, 2025.

7 Alameda Health System (2024) 16 Cal.5th 1040, 1052; Levy v. City and County of San Francisco (2025) 114 Cal.App.5th 997, 1012.) We therefore exercise our independent judgment about whether the complaint states a cause of action as a matter of law. (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439–440.)3 B. The Act. Enacted in 1963, the Act abolished common law tort liability and immunity for public entities, replacing them with “ ‘a comprehensive statutory scheme governing the liabilities and immunities of public entities and public employees for torts.’ ” (Leon v. County of Riverside (2023) 14 Cal.5th 910, 918 (Leon).) The Act provides that public entities are liable for torts only as specifically authorized by statute or by the state or federal Constitutions. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899; § 815.) The Act then authorizes suits against public entities and public employers under the following circumstances. First, if a 3 Our review of an order denying leave to amend a complaint is for abuse of discretion. (E.g., Nichols v. Alghannam (2026) 118 Cal.App.5th 726, 743.) However, “ ‘[t]o satisfy that burden on appeal, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” ’ ” (Id. at pp. 743–744.) If the appellant fails to seek leave to amend or to demonstrate the viability of new causes of action, “ ‘there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend.’ ” (Id. at p. 744.) Because plaintiff has not suggested that he can amend to state a cause of action against any defendant, we will not address the issue.

8 public entity is under a “mandatory duty” that is designed to protect against a particular kind of injury, the entity is liable for an injury of that kind if it is caused by the entity’s failure to discharge its duty with reasonable diligence. (§ 815.6.) Second, a public entity is vicariously liable for injuries proximately caused by its employees in the course of their employment, but is immune from liability when the employee is immune. (§ 815.2, subds. (a), (b); Leon, supra, 14 Cal.5th at p. 918.) Third, public employees are liable for injuries caused by their acts or omissions to the same extent as private persons, unless the act or omission “was the result of the exercise of the discretion vested in [the employee], whether or not such discretion be abused.” (§§ 820, 820.2; Leon, at p. 918.) These rules do not “ ‘ “expand the rights of plaintiffs in suits against governmental entities [or employees], but [instead] confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the [A]ct are satisfied.” ’ ” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 985 (Caldwell).) C. Section 17. Section 17 was adopted by the voters in 1984 and amended in 1992. Prior to section 17’s adoption, the state Constitution limited the kinds of stocks that public pension and retirement systems could purchase and hold. The 1984 amendment eliminated these restrictions, but imposed fiduciary duties on public pension managers. (Ballot Pamp., Primary Election (June 5, 1084) Legislative Analyst analysis, p. 24.) The 1992 amendment gave public pension boards complete administrative control of the system’s assets and required each board to give highest priority to providing benefits to members and their 9 beneficiaries. (Ballot Pamp., General Election (November 3, 1992) Legislative Analyst analysis, p. 37.) II. Plaintiff’s claim against the SCRRA defendants. Plaintiff contends that the SCRRA defendants are liable for the Board’s alleged breaches of fiduciary duty because section 17 creates a private right of action that trumps the Act’s immunity provisions. Alternatively, plaintiff urges that the Board has a “mandatory duty” under section 17 to protect against losses by Plan members; his damages resulted from nondiscretionary actions by Board members, for which the SCRRA defendants are vicariously liable; and he seeks only equitable remedies, which are not subject to the Act. Each of these claim lacks merit. A. Section 17 does not create a private right of action that trumps the Act’s immunity provisions. Plaintiff’s primary contention on appeal is that section 17 creates a private right of action that trumps the Act’s immunity provisions. That is, he urges that by adopting section 17, the voters intended to carve out an exception to the Act by making public employee retirement boards subject to suit for violations of section 17. Plaintiff therefore contends that allowing his suit against the SCRRA defendants to proceed is consistent with both the Act and section 17’s plain language. Before we address the central arguments, we pause to note what appears to be plaintiff’s animating contention, which is that there can be no right without an obligation: here, that it makes no sense to have a fiduciary duty without the ability of the duty’s beneficiary to enforce it. The liability must be, plaintiff suggests, “attendant” on the duty; liability must be automatic. In other 10 words, plaintiff says, if there were no consequences to a breach of the duty, the creation of a duty would be pointless , a result that Section 17 could not have contemplated. This is of a piece with plaintiff’s argument that the “common law” recognized that liability must follow duty. Our response is, first, that the Legislature was empowered to set aside common law liability and replace it with the Act. But more directly to plaintiff’s apparent conviction that liability must follow duty, as night follows day, we note that suits for violations of mandatory duties can indeed be pursued under the Act, as well as claims for “injunctive, specific or declaratory relief.” (Canova v. Trustees of Imperial Irrig. Dist. Employee Pension Plan (2007) 150 Cal. App. 4th 1487, 1493.) There are remedies. These matters are discussed in detail below. We begin with Caldwell, supra, 10 Cal.4th 972, in which the Supreme Court discussed the interplay between the Act and subsequent enactments creating new duties applicable to public employees. There, a school superintendent sued the school board’s members for race and age discrimination in violation of the Fair Employment and Housing Act (FEHA; § 12900 et seq.). The trial court concluded that the school board members were immune under the Act for their discretionary actions and sustained the demurrer. On appeal, the superintendent noted that although section 820.2 generally creates immunity for public employees’ discretionary acts, that immunity applies “ ‘[e]xcept as otherwise provided by statute.’ ” (Caldwell, at p. 984, quoting § 820.2, italics added.) The superintendent contended that FEHA “otherwise provided,” and thus the board members were not immune from suit.

11 The Supreme Court affirmed the trial court’s order sustaining the demurrer. The court noted that in adopting the Act, the Legislature expressly intended that the Act’s specific immunities would prevail over general rules of actionable duty. Thus, “where the immunity provided by [the Act] would otherwise apply, that immunity cannot be abrogated by a statute which simply imposes a general legal duty or liability on persons, including public employees. Such a statute may indeed render the employee liable for his violations unless a specific immunity applies, but it does not remove the immunity. This further effect can only be achieved by a clear indication of legislative intent that statutory immunity is withheld or withdrawn in the particular case.” (Caldwell, supra, 10 Cal.4th at p. 986.) The court concluded that FEHA “does not meet this test” because while it prohibits employment discrimination by public and private employers, it “contains no indicia of an additional intent that individual public officials or employees may be sued despite a specific statutory immunity that would otherwise apply in a particular case.” (Id. at p. 986, italics added.) Thus, FEHA does “does not abrogate [the Act’s] specific grant of immunity to public employees for their discretionary acts.” (Ibid.) In so concluding, the court rejected the superintendent’s contention that its holding would undermine FEHA’s goal of eliminating invidious discrimination. The court explained: “Because plaintiff can cite no clear indication of legislative intent that FEHA suits should prevail over specific personal immunities provided by [the Act], he is left with the argument that section 820.2, by its own terms, withholds such immunity whenever the theory of liability asserted in the lawsuit derives from ‘statute.’ However, such a construction of section 820.2 12 would conflate the separate barriers of duty and immunity. Moreover, it would lead to the anomalous conclusion that discretionary act immunity protects a public employee against all common law suits, however fundamental, but has no such effect against any statutory cause of action, however mundane. As we have suggested, that does not appear to be the purpose of [the Act].” (Caldwell, supra, 10 Cal.4th at p. 987.) The Court of Appeal applied Caldwell’s analysis in the context of a section 17 claim in Krolikowski, supra, 24 Cal.App.5th 537. There, two members of SDCERS, a public employee retirement plan, sued the plan under a variety of theories, including breach of fiduciary duty in violation of section 17, after SDCERS discovered an error in calculating the members’ monthly pension benefits and took steps to recoup past overpayments. (Id. at p. 543.) The trial court sustained SDCERS’s demurrer to the fiduciary duty claim, and the Court of Appeal affirmed. (Id. at pp. 547–549.) It explained that although section 17 provides that members of a public pension board have fiduciary duties to plan members, section 17 “says nothing about creating liability for money damages against public pension plan members in instances when such liability would otherwise be barred by statutory governmental immunity.” (Id. at p. 553.) For the same reason, the court concluded that section 17 does not trump the Act under the doctrine of constitutional supremacy because there is no conflict between section 17 and the Act’s immunity provisions. The court explained that section 17 imposes fiduciary duties on public pension board members, but it does not expressly provide that plan members have the right to recover monetary damages for breach of those duties. Accordingly, “no constitutional provision is trumped when 13 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 p. 554.) The court noted that there are instances, such as in suits for inverse condemnation, where a constitutional provision specifically provides for a monetary remedy against a public entity, thus trumping any immunity under the Act. (Krolisowski, supra, 24 Cal.App.5th at p. 554 [“Indeed, the legislative committee comments to Government Code section 815, which sets forth the general rule of immunity for public entities, acknowledges that in some instances, such as inverse condemnation, constitutional provisions will trump Government Claims Act immunity”].) In the case before the court, however, “because the constitutional provisions at issue do not expressly create a monetary remedy for breach of fiduciary duty against public pension board members, this is not a case where the Constitution requires liability and therefore trumps the Government Claims Act immunity provisions.” (Ibid.) Finally, the court rejected the plaintiffs’ contention that section 17 expressly exempts breach of fiduciary duty claims from the Act’s immunity provisions because it includes the phrase “[n]otwithstanding any other provisions of law or this Constitution to the contrary.” The court found that the plaintiffs’ contention “takes the phrase out of context,” explaining: “The full phrase provides that ‘[n]otwithstanding 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 . . . .’ (Cal. Const., art. XVI, § 17.) Nothing in this phrase 14 communicates an intent to create a constitutional monetary damages claim against public pension board members or to abrogate Government Claims Act immunity. Instead, the phrase is directed at the scope of a public pension board’s authority to invest and manage pension system funds.” (Krolikowski, supra, 24 Cal.App.5th at p. 555.) A similar conclusion was reached in Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328 (Nasrawi). There, beneficiaries of a public employee retirement fund sued the retirement association responsible for managing the fund for breach of fiduciary duties in violation of section 17. (Id. at p. 341.) The plaintiffs contended that the association was not immune from suit under the Act because the complaint alleged a constitutionally based duty. (Ibid.) The court disagreed, explaining: “Plaintiffs’ argument ignores case law holding that the existence of a duty ‘ “is only a threshold issue, beyond which remain the immunity barriers.” ’ [Citations.] Undoubtedly, the board owes fiduciary duties under section 17, but whether it is immune from alleged violations of those duties is a separate question. And, contrary to plaintiffs’ view, the immunity question is not answered by the mere fact that the Constitution is the source of the duties at issue.” (Ibid.) We agree with Krolikowski and Nasrawi that section 17 does not trump the Act’s immunity provisions. Under the framework established by Caldwell, the mere imposition of a duty on public employees does not abrogate the Act’s immunity provisions. Instead, those provisions are overcome only “by a clear indication of legislative intent that statutory immunity is withheld or withdrawn in the particular case.” (Caldwell, supra, 10 Cal.4th at p. 986.) By its plain language, section 17 imposes a 15 duty on public employee retirement boards—to exercise “sole and exclusive fiduciary responsibility over the assets of the public pension or retirement system”—but it does not provide that boards or their members may be sued for a breach of that duty. (§ 17.) To the contrary, section 17 says nothing about the creation of a right of action or a damages remedy. (Ibid.) Under Caldwell, therefore, section 17 does not create an exception to the Act’s immunity provisions. Plaintiff urges us to reject Krolikowski’s analysis for a number of reasons, including that section 17 was adopted after the Act’s passage and imposed new legal obligations on public retirement plan boards. Having imposed these obligations, plaintiff urges, the voters did not have to explicitly authorize a private right of action enforcing section 17—instead, it was enough “simply to create the duty.” To do otherwise, he says, would “effectively nullif[y] Section 17” by “impos[ing] substantial fiduciary duties on fiduciaries of public pension funds but without creating any accountability.” But as we have said, the Supreme Court rejected a nearly identical contention in Caldwell, which plaintiff does not address. Plaintiff also suggests that Krolikowski reached the wrong result because it ignored the principle that constitutional provisions are “self-executing.” Not so. Constitutional provisions are “self-executing” if they are “ ‘of a statutory character’ ” and may be enforced by the courts without the passage of additional legislation. (Bring Back the Kern v. City of Bakersfield (2025) 110 Cal.App.5th 322, 348,review granted July 16, 2025, S290840.) But as the SCRRA defendants correctly note, the “self- executing” terminology has no relevance here because the question before us is not whether section 17 is effective without 16 the enactment of additional legislation, but rather whether it carves out an exception to the Act’s immunity provisions. The answer to that question does not depend on whether section 17 is self-executing—it unquestionably is—but rather on whether it expressly sets forth both a duty and liability for breach of that duty. (See Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300, 307 [whether constitutional provision is self-executing is not relevant to whether violation of the provision gives rise to a damages remedy].) Next, plaintiff urges that because section 17 imposes fiduciary duties on board members “ ‘notwithstanding any other provisions of law or this Constitution to the contrary’ ” (§ 17), it expresses the voters’ intention that section 17’s fiduciary duties should prevail over any competing statutory immunities. We agree with Krolikowski that this contention takes the relevant words out of context. As Krolikowski noted, the clause “[n]otwithstanding any other provisions of law or this Constitution” modifies the phrase that follows—“the retirement board of a public pension or retirement system shall have plenary authority and fiduciary responsibility of investment of moneys and administration of the system.” (Krolikowski, supra, 24 Cal.App.5th at p. 555.) Nothing in this phrase communicates an intent to create a constitutional monetary damages claim against public pension board members or to abrogate immunity under the Act. (Ibid.) Plaintiff suggests that Los Angeles County Employees Retirement Assn. v. County of Los Angeles (2024) 102 Cal.App.5th 1167, revd. (2026) 20 Cal.5th 292 (LACERA), interpreted the “notwithstanding any other provision of law” clause of section 17 differently than Krolikowski did, and he urges us to adopt 17 LACERA’s interpretation and reject Krolikowski’s. The California Supreme Court recently reversed the Court of Appeal’s opinion in LACERA, and the opinion therefore is no longer good law. (Los Angeles County Employees Retirement Association v. County of Los Angeles, supra, 20 Cal.5th 292.) Plaintiff also contends that our interpretation of section 17 should be guided by the statements in the 1984 Voter Information Guide that plan fiduciaries would be personally liable for breaches of fiduciary duty. It is true, as plaintiff suggests, that under some circumstances we may turn to extrinsic sources such as ballot summaries and arguments for insight into the voters’ intent. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 321.) But reference to those materials is appropriate only if the statutory text “ ‘is ambiguous and supports multiple interpretations.’ ” (Ibid.) Absent ambiguity, “ ‘we presume that the voters intend the meaning apparent on the face of an initiative measure [citation] and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language.’ ” (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037). There is no such ambiguity here because nothing in section 17’s plain language suggests that boards may be held liable for breaches of fiduciary duty. Finally, plaintiff contends that his interpretation is consistent with a 1988 Attorney General opinion concluding that a public employee board was not permitted to self-insure against its members’ liability for breach of fiduciary duty. (71 Ops.Cal.Atty.Gen. 129 (1988).) We are unpersuaded. The Attorney General opinion was issued before the adoption of section 17 in its current form and addressed a different question 18 than the one before us—namely, whether a public employee retirement board was legally permitted to self-insure. While the Attorney General opinion assumed that board members could be liable for breaches of fiduciary duty under section 17, it did not decide the issue. (See People v. Evans (2008) 44 Cal.4th 590, 599 [opinion is authoritative only “ ‘ “for the points actually involved and actually decided” ’ ”].) Nor did it consider whether a public entity (as distinct from Board members personally) are liable under section 17. For all the foregoing reasons, we conclude that section 17 does not trump the Act’s immunity provisions. We therefore now turn to the plaintiff’s contention that the SCRRA defendants are liable under the Act itself. B. The SCCRA defendants are not subject to suit under section 815.6 for violation of a “mandatory duty.” Section 815.6 of the Act provides that if a public entity is under a “mandatory duty” imposed by an enactment designed to protect against a particular kind of injury, the public entity is liable for an injury proximately caused by the entity’s failure to discharge its duty with reasonable diligence. Plaintiff asserts that the SCCRA defendants are liable under section 815.6 because “[t]here can be no dispute that Section 17 imposes mandatory duties on the retirement boards of public pension funds and their board members, which are expressly designed to protect the financial interests of participants and beneficiaries of those retirement funds.” We disagree. Mandatory duties are those that are “ ‘ “manifestly ministerial, because they amount only to obedience to orders which leave the officer no choice.” ’ ” (Danielson v. 19 County of Humboldt (2024) 103 Cal.App.5th 1, 13–14, quoting Ortega v. Sacramento County Dept. of Health & Human Services (2008) 161 Cal.App.4th 713, 728.) On the other hand, “ ‘the duty of a public entity is not mandatory if it is debatable whether the duty was adequately fulfilled.’ ” (Id. at p. 14.) In San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 429 (San Mateo Union), the court considered whether a county and its treasurer could be held liable for imprudently investing county funds under section 815.6 and sections of the Government Code providing that the county treasurer “ ‘shall act’ ” according to the prudent investor standard when investing or managing funds. (San Mateo Union, at p. 426.) The plaintiffs contended that the statute’s use of the term “shall” imposed a mandatory duty to comply with the prudent investor standard for purposes of section 815.6 liability. (San Mateo Union, at p. 428.) The court disagreed, explaining that the statutory obligation 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.” (Id. at pp. 429–430.) Instead, “[t]he 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.” (Ibid.) The court thus concluded that section 815.6 did not subject the defendants to liability for violating the prudent investor standards. (San Mateo Union, at p. 432.) The present case is analogous to San Mateo Union. As in that case, although section 17 contains mandatory language— “shall have” and “shall discharge”—it does not require any 20 particular actions by retirement boards. Instead, it directs retirement boards to exercise “fiduciary responsibility” over plan assets and to “discharge their duties with respect to the system with the 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 a like character and with like aims.” (§ 17, subd. (c).) Because this statutory directive requires the exercise of significant discretion, alleged violations of section 17 do not subject retirement boards to liability under section 815.6. C. Plaintiff forfeited the contention that the Board is not entitled to discretionary act immunity under sections 815.2 and 820.2. Section 815.2 provides that public entities are vicariously liable for injuries caused by their employees in the course of their employment, but are immune from liability when the employee is immune; and section 820.2 provides that public employees are not liable for injuries caused by discretionary acts or omissions. Thus, the SCRRA defendants can be liable under these sections only if plaintiff’s alleged injuries were caused by Board members’ nondiscretionary acts. Plaintiff does not address the SCRRA defendants’ immunity under sections 815.2 and 820.2 in his opening brief. Instead, he discusses these sections for the first time in his reply brief, asserting that the mandatory duty imposed on fiduciaries by section 17 does not involve the exercise of discretion, and thus neither the Board nor SCRRA are immune from suit under sections 815.2 and 820.2. We may treat as forfeited any point that an appellant raises for the first time in a reply brief. “ ‘ “Obvious 21 considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. . . . [Citations.]” ’ ” (Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115, italics added.) Plaintiff has made no showing as to why he could not have raised this issue in his opening brief, and thus it is forfeited. D. Plaintiff’s fiduciary duty claim seeks monetary damages, and thus it is within the scope of the Act. Plaintiff contends finally that his fiduciary duty claim is not barred by the Act because he seeks only equitable remedies, which he urges are not subject to the Act under O’Neal v. Stanislaus County Employees’ Retirement Assn. (2017) 8 Cal.App.5th 1184 (O’Neal). The SCRRA defendants disagree, suggesting that the relief plaintiff seeks—namely, restoration of value, restitution of compensation, disgorgement—constitute monetary relief subject to the Act, and O’Neal does not hold to the contrary.4 4 It is not entirely clear whether plaintiff’s contention relates the Act’s claim-filing requirements or immunity provisions (or both). Since we conclude that plaintiff’s claims are for “money or damages” within the meaning of the Act, we need not resolve this issue.

22 Plaintiff is mistaken in his assumption that the application of the Act depends on whether damages can be characterized as “equitable” or not. With a few exceptions not pertinent here, the Act applies to all claims for “money or damages.” (§ 905.) So for example, most claims for restitution, which might be thought of as “equitable,” are subject to the Act. (E.g., City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 742–743; City of Los Angeles v. Superior Court (2008) 168 Cal.App.4th 422, 430.) The Act does not apply to actions seeking nonpecuniary remedies, “ ‘such as those seeking injunctive, specific or declaratory relief.’ ” (Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1493). The remedy sought here is pecuniary, so the Act applies. O’Neal does not stand for the proposition that equitable remedies are not subject to the Act; in fact, the O’Neal defendants did not assert that their actions were immune from suit under the Act, and thus the Court of Appeal did not consider that issue. (See B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11 [“ ‘ “cases are not authority for propositions not considered” ’ ”].) In any event, the remedies sought by the O’Neal plaintiffs were very different than those plaintiff seeks here. In O’Neal, the plaintiffs sought an injunction requiring the board to unwind certain transfers between funds the board controlled, not payment of money directly to the plaintiffs. (O’Neal, supra, 8 Cal.App.5th at pp. 1195–1196, 1220 & fn. 8.) But here, plaintiff expressly seeks a judgment requiring the SCRRA defendants to “[r]estore participants’ accounts to the value they would have had [if SCRRA and the Board had] prudently and diligently negotiated reasonable fees . . . to . . . administer the Plan.” In other words, plaintiff is asking the court to order payments 23 directly to plan participants, a remedy that courts have held subject to the Act. (See, e.g., Hart v. Alameda County (1999) 76 Cal.App.4th 766, 778, 780 [plaintiffs’ claim for return of jury deposits was subject to the Act because a suit “for ‘money or damages’ includes all actions where the plaintiff is seeking monetary relief”], italics added; Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1162 [“The claim presentation requirement of the Government Claims Act does not apply solely to claims for compensatory ‘damages,’ but to ‘all claims for money’ (§ 905), as well”], italics added.) Plaintiff also contends that his case is analogous to a claim for reinstatement and back pay, which the court in Harris v. State Personnel Bd. (1985) 170 Cal.App.3d 639, 645, disapproved on other grounds in Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1123, fn. 8, held was not subject to the Act’s claim presentation requirement. In Harris, the court concluded that the plaintiff could seek backpay even though he had not filed a government claim because the claims requirement expressly excludes contract actions, and the employees’ suit sought contract damages. (Harris, at p. 643.) The present case, in contrast, manifestly seeks a tort remedy. Plaintiff contends finally that his suit is exempt from the Act under section 905, subdivision (f), which excludes from the claim filing requirement claims “for money or benefits under any public retirement or pension system.” But the case plaintiff cites in support, Dalton v. East Bay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566, 1573 (Dalton), holds to the contrary. Dalton considered whether former municipal employees who were participants in a public employee retirement system could file an action for breach of fiduciary duty and denial of equal 24 protection without first filing a government claim pursuant to section 905. The Court of Appeal held the employees could not, explaining: “The legislative history of section 905 indicates the scope of the enumerated exceptions to filing claims was intended to be extremely limited. . . . [¶] Consequently, commentators have construed the section 905 exceptions as essentially nontortious claims ‘for which some other adequate claims procedure has already been devised or for which the procedural protection of the Tort Claims Act is believed to be unnecessary.’ [Citation.] [¶] The instant action is not such a case. Plaintiffs are basically alleging tortious wrongdoing by defendants. They do not seek money due to them under the terms of the existing pension system; rather, they claim defendants treated them unfairly in administrating the system . . . . Consequently, we conclude plaintiffs were required to file a claim pursuant to section 905.” (Id. at pp. 1573–1574.) As in Dalton, plaintiff here does not seek money due to him under the terms of an existing retirement system, but instead seeks a tort remedy for an alleged breach of fiduciary duty. In other words, plaintiff does not seek to enforce a contract, but instead seeks to impose an extra-contractual remedy. E. Conclusion. For all the foregoing reasons, plaintiff has failed to demonstrate that the trial court erred by sustaining the SCRRA defendants’ demurrer. We therefore affirm the judgment of dismissal against the SCRRA defendants. III. Plaintiff’s claim against MissionSquare. The trial court found that because plaintiff failed to state a cause of action for breach of fiduciary duty against the SCRRA 25 defendants, it necessarily also failed to state a cause of action against MissionSquare for aiding and abetting a breach of fiduciary duty. Plaintiff asserts that this conclusion is incorrect as a matter of law, citing two cases in support. Neither is persuasive. In Harris Trust and Sav. Bank v. Salomon Smith Barney, Inc. (2000) 530 U.S. 238, 241, the United States Supreme Court held that the federal Employee Retirement Income Security Act of 1974 (ERISA) authorizes a participant in an ERISA plan to bring a civil action against nonfiduciary “ ‘party in interest.’ ” The court’s analysis in Harris was based on the language of particular provisions of ERISA, which have no apparent analog in section 17. Additionally, Harris did not consider the question before us—whether a third party may be liable for aiding and abetting a breach of fiduciary duty by a fiduciary who is itself immune from suit. Harris is not relevant to our analysis. Nasrawi, supra, 231 Cal.App.4th 328, also does not assist plaintiff. The Nasrawi plaintiffs, beneficiaries of a public employee retirement fund, brought two separate suits against the retirement fund. In the first suit, the trial court sustained the association’s demurrer to the causes of action for breaches of fiduciary duty, and the Court of Appeal reversed, holding that plaintiffs had adequately pled causes of action for declaratory relief. (Id. at p. 334 & fn. 4.) In the second suit, the plaintiffs sought damages against the retirement association for breach of fiduciary duty, and also sought damages against the fund’s actuaries for aiding and abetting breach of fiduciary duty. (Id. at p. 332.) The Court of Appeal held that the plaintiffs’ complaint adequately alleged a claim against the actuaries for aiding and 26 abetting breach of fiduciary duty, but that the association was immune from liability for monetary damages. (Id. at p. 344.) The Nasrawi’s court’s analysis does not suggest that the trial court here erred in sustaining MissionSquare’s demurrer. Although Nasrawi held that the association was not liable for damages, the earlier appellate decision had already found that the plaintiffs could pursue injunctive relief in connection with their breach of fiduciary duty claim. Nasrawi thus does not suggest that an aiding and abetting claim is viable even in the absence of an underlying breach of fiduciary duty claim. Although our review of an order sustaining a demurrer is de novo, “it remains the burden of the plaintiff/appellant ‘to show . . . that the demurrer was sustained erroneously.’ ” (Eghtesad v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411; see also Y.P. v. Wells Fargo Company (2026) 119 Cal.App.5th 1069, 1079 [appellant “must affirmatively demonstrate that the demurrer was sustained erroneously”].) Plaintiff’s citations to Harris and Nasrawi manifestly fail to meet this burden. We therefore affirm the judgment of dismissal against MissionSquare.

27 DISPOSITION The judgments are affirmed. Respondents are awarded their appellate costs. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS KARNOW, J.* We concur:

ADAMS, P. J.

HANASONO, J.

* Retired Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.