Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC-08-477508.
Marchiano, P.J.
Twenty-six retired firefighters and their union, CDF Firefighters, filed suit against the California Department of Personnel Administration (DPA) and the California Public Employee’s Retirement System (CalPERS) for increased pension benefits. The individual plaintiffs retired between January 1 and May 16, 2006. Before and after this window of time, pension payments to retirees in plaintiffs’ position were limited to 90 percent of their final compensation, but plaintiffs contend that, during this time period, the 90 percent cap did not apply to them. The trial court rejected this argument and sustained CalPERS’ demurrer to the first amended complaint without leave to amend. The court sustained DPA’s demurrer without leave to amend based on the statute of limitations.
Subsequent references to plaintiffs are to the individual plaintiffs, or the individual plaintiffs and CDF Firefighters, as the context requires.
We conclude that plaintiffs cannot plead a viable cause of action because their case hinges on an erroneous interpretation of Government Code section 21363.4. Accordingly, we affirm the judgment.
Subsequent statutory references are to the Government Code.
I. BACKGROUND
Plaintiffs worked for all or most of their careers as fire suppression employees of the California Department of Forestry and Fire Protection (Cal Fire). All of plaintiffs served in both a rank-and-file capacity as members of State Bargaining Unit 8 (R08), and as a supervisor or manager of R08 personnel (S08 or M08).
Prior to January 1, 2006, R08, S08, and M08 employees accrued retirement benefits under CalPERS “ ‘three percent at age 55’ ” (3% at 55) defined benefit plan. Under this formula, set forth in section 21363.1, an employee who retired at age 55 earned annualized retirement benefits based on three percent of his or her compensation for a selected 12-month period (final compensation) for every year of service, subject to a cap of 90 percent of final compensation. To quote a hypothetical example in the first amended complaint: “an employee who retires at the age of 55 who earned $50,000 in his/her selected twelve month period and has worked for the state for 35 years would normally receive $52,500 (3% of $50,000 multiplied by the number of years of service: $1,500 x 35 years) per year in retirement payments[]. However, the state law governing the 3% at 55 formula contained a cap of 90% on the total percentage of benefits an employee could receive. This means that the hypothetical employee described above who was making $50,000 could only receive a maximum of $45,000 a year in retirement payments regardless of how many years in service he/she worked.”
In 2003, CDF Firefighters, on behalf of R08 employees, and DPA settled an arbitration concerning disputed retirement benefits with an agreement incorporated into their 2001−2006 Memorandum of Understanding that R08 employees would receive, by January 1, 2006, retirement benefits pursuant to a “3% at [age] 50” formula, which is set forth in section 21363.4, subdivision (a), rather than 3% at 55 under section 21363.1. References to “State Bargaining Unit 8” were then added to section 21363.4 to accomplish that result. (Stats. 2003, ch. 617, § 8.)
On January 12, 2006, DPA Chief of Labor Relations, David Gilb, issued DPA Memorandum No. 2006−003 to Personnel Management Liaisons (January 12, 2006 PML) indicating that the retirement formula for R08 employees in the state peace office/firefighter (POFF) service retirement category had been changed to 3% at 50 effective January 1, 2006. With respect to S08 and M08 employees, the January 12, 2006 PML stated: “For supervisors, managers, and exempt employees in the POFF category... the 3%-at-50 formula will apply to past POFF-covered rank-and-file service.... [¶]... [¶] DPA will propose legislation which, if adopted, would apply the 3%-at-50 formula to service in managerial, supervisory, and exempt POFF-covered positions....” Thus, under the January 12, 2006 PML, for S08 or M08 employees who had previously worked in a R08 classification, the 3% at 50 formula applied only to their R08 service, and not to their S08 or M08 service.
According to the first amended complaint, employees who had worked in both a R08, and an S08 or M08, position were at this point earning retirement benefits under two separate sections of the Government Code-section 21363.4 for their rank-and-file time in service, and section 21363.1 for their time in service as a supervisor or manager-each of which had a 90% of final compensation benefits cap. “Further, ” plaintiffs allege, “notwithstanding the 90% cap under each formula, Defendants’ actions authorized employees... [like plaintiffs] with both R08 and S08 or M08 time in service, to ‘stack’ the benefit earned under each formula so that the combined benefit due upon retirement was in excess of 90% of the final year[‘s] compensation. For instance, assuming our hypothetical employee who earned $50,000 during his/her last year worked 20 years in a R08 position and 20 years in a S08 or M08 position and retired at the age of 60, he/she would receive $60,000 per year in retirement warrants as a result of stacking even though that amount was 120% of his/her final year[‘s] compensation.”
The first amended complaint alleges that, after the January 12, 2006 PML was issued, individuals representing defendants informed CDF Firefighters and many individual plaintiffs that they would retire at amounts greater than 90 percent of their final compensation. On February 10, 2006, Cal Fire’s Deputy Director of Management Services wrote an e-mail received by multiple members of CDF Firefighters that stated: “Question: How does the 90% cap apply to individuals with multiple retirement formulas? [¶] Response: The 90% cap applies to each formula, which means that manager and/or supervisor employees may be able to earn more than 90% retirement, if they worked under two different formulas, i.e., 3% at 50 and 3% at 55. Although the maximum percentage that an employee can earn for each formula is 90%, the final percentage of retirement an employee can earn is equal to the sum of the calculations under each formula and, therefore, may exceed 90%.” CalPERS provided service retirement estimates to many plaintiffs showing that they would receive benefits in excess of the 90 percent cap because of the dual retirement formulas applicable to R08 service on the one hand, and S08 and M08 service on the other. Upon retirement, some plaintiffs received retirement warrants exceeding the 90 percent cap “because, ” in plaintiffs’ words, “CalPERS, under direction from DPA, stacked the two retirement formulas.”
CDF Firefighters’ President, Bob Wolf, wrote two letters in February 2006 to Fred Buenrostro, CalPERS’ Executive Officer, requesting “clarification of the stacked pension issue.” The first letter stated that CDF Firefighters believed benefits could now exceed the 90 percent cap, and asked for “an expedited response to this question, as we have many members of our organization directly and immediately affected by this apparent change.” The second letter stated: “We have members who, if the status quo continues, could retire above 90% or even 100% of salary, possibly. We do not want to have those members feel as if they should retire quickly to maintain that benefit, fearing that if the state employer extends ‘3% at 50’ to their group they would then lose what right now was their ability to retire in excess of 90%.” On February 24, 2006, an attorney for CDF Firefighters wrote to DPA Labor Relations Chief Gilb and Senior DPA Labor Relations Officers asking them to address the issue of “stacked benefits in excess of 90%” as soon as possible. The letter said that implementation of the January 12, 2006 PML had “caused tremendous questions, anxiety, and, in some cases, expectations of retirement [in] excess of 90%.” These letters were not answered.
On April 6, 2006, a member of CDF Firefighters received the following e-mail from CalPERS stating: “A person with two formulas can retire[] over 90% of final comp, but that does not guarantee that it will stay that way. Negotiations [are] currently under way to switch bargaining unit 8 supervisory time to 3%@50 from 3%@55. If that switch is approved and made retroactive all a person’s time would switch to 3%@50 even if they had already retired, which would cap them at 90%, because they would then have only one formula....” On April 24, 2006, CalPERS Benefit Services Division Chief wrote a CDF Firefighters board member stating that two retired Cal Fire battalion chiefs were “receiving the benefits to which they [were] entitled under the California retirement law based on earned service credit under both the ‘rank and file’ 3% @ 50 formula and the ‘supervisory’ 3% of 55 formula.”
On April 26, 2006, Gilb issued DPA Memorandum No. 2006−015 to Personnel Management Liaisons (April 26, 2006 PML), which stated that: “Effective January 1, 2006, the 3%-at-50 retirement formula shall apply to POFF supervisors (S08) and mangers (M08) for their POFF service affiliated with Unit 8.” The first amended complaint explains that, by applying the 3% at 50 formula to S08 and M08 service, the April 26, 2006 PML “abolish[ed] the dual retirement formula established by the January 12, 2006 PML. Since R08 and S08 and M08 time in service was now calculated using only the 3% at 50 formula, and that formula had a cap of 90%, the net effect was a retroactive reduction for... plaintiffs’ yearly retirement benefits down to 90% of their final year[’s] compensation.”
The first amended complaint states that Kathie Vaughn, Assistant Executive Officer of the Member and Executive Branch of CalPERS, advised plaintiffs in letters dated May 16 and 19, 2006, that “employees with a retirement date of January 1, 2006 or later would have their allowances adjusted downward to reflect the formula change to only one formula for R08 and S08/M08 service credit. The letter explained that for those members who[se] benefits previously exceed[ed] the 90% cap, the adjustment downward would begin on the retiree’s August 1, 2006 warrant.” Affected individuals were given “options to repay the resulting overpayment from the period of their retirement date to June 30, 2006. If no response was received, [CalPERS] began automatic monthly deductions to recover the overpayment.”
Plaintiffs filed their original complaint against defendants on July 14, 2008. The first amended complaint seeks lost pension benefits, plus interest, and reinstatement of the “dual retirement formulas present at the time that each of the individually named [p]laintiffs retired, ” based on causes of action for violation of California Constitution, article I, section 9 (prohibiting laws impairing the obligation of contracts), and equitable estoppel.
II. DISCUSSION
A. CalPERS’ Demurrer
CalPERS’ demurrer hinges primarily on the proper meaning of section 21363.4. “We apply well-settled principles of statutory construction. Our task is to discern the Legislature’s intent. The statutory language itself is the most reliable indicator, so we start with the statute’s words, assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute’s plain meaning governs. On the other hand, if the language allows more than one reasonable construction, we may look to such aids as the legislative history of the measure and maxims of statutory construction. In cases of uncertain meaning, we may also consider the consequences of a particular interpretation, including its impact on public policy.” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190 (Wells).)
“... ‘Where more than one statutory construction is arguably possible, our “policy has long been to favor the construction that leads to the more reasonable result. [Citation.]” [Citation.] This policy derives largely from the presumption that the Legislature intends reasonable results consistent with its apparent purpose. [Citation.] Thus, our task is to select the construction that comports most closely with the Legislature’s apparent intent, with a view to promoting rather than defeating the statutes’ general purpose, and to avoid a construction that would lead to unreasonable, impractical, or arbitrary results. [Citations.]’ ” (Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, 555−556 (Witt), quoting Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1291.)
Section 21363.4 reads in full as follows: “(a) Upon attaining the age of 50 years or more, the combined current and prior service pension for a state peace officer/firefighter member described in subdivision (c) who retires or dies on or after January 1, 2006, is a pension derived from the contributions of the employer sufficient when added to the service retirement annuity that is derived from the accumulated normal contributions of the member at the date of his or her retirement to equal 3 percent of his or her final compensation at retirement, multiplied by the number of years of state peace officer/firefighter service, as defined in subdivision (d), subject to this section with which he or she is credited at retirement.
“(b) For state peace officer/firefighter members, with respect to service for all state employers under this section, the current service pension and the combined current and prior service pension under this section shall not exceed an amount that, when added to the service retirement annuity related to that service, equals 90 percent of final compensation. If the pension relates to service to more than one employer and would otherwise exceed that maximum, the pension payable with respect to each employer shall be reduced in the same proportion as the allowance based on service to that employer bears to the total allowance computed as though there were no limit, so that the total of the pensions shall equal the maximum.
“(c) For purposes of this section, ‘state peace officer/firefighter member’ means state peace officer/firefighter members under this part who, on or after January 1, 2006, are employed by the state and are members of State Bargaining Unit 6 or State Bargaining Unit 8, and may include state peace officer/firefighter members in related managerial, supervisory, or confidential positions and officers or employees of the executive branch of state government who are not members of the civil service, provided the Department of Personnel Administration has approved their inclusion in writing to the board.
“(d) For purposes of this section, ‘state peace officer/firefighter service’ means service performed by a state peace officer/firefighter member while a member of State Bargaining Unit 6 or State Bargaining Unit 8, and may include state peace officer/firefighter service in related managerial, supervisory, or confidential positions or as officers or employees of the executive branch of state government who are not members of the civil service, provided the Department of Personnel Administration has approved their inclusion in writing to the board.
“(e) This section shall supersede Section 21363 or 21363.1, whichever is applicable, with respect to state peace officer/firefighter members and service as defined herein.
“(f) The Legislature reserves, with respect to any member subject to this section, the right to provide for the adjustment of industrial disability retirement allowances because of earnings of a retired person and modification of the conditions and qualifications required for retirement for disability as it may find appropriate because of the earlier ages of service retirement made possible by the benefits under this section.”
Subdivision (a) of section 21363.4 defines the 3% at 50 benefit formula for “member[s] described in subdivision (c), ” based on “years of... service, as defined in subdivision (d).” CalPERS and plaintiffs diverge in their interpretations of subdivisions (c) and (d). Subdivisions (c) and (d) can each be divided into two parts. The first part of subdivision (c) includes the rank-and-file (R08) as members; the second part of subdivision (c) includes managers and supervisors such as plaintiffs (S08 and M08) as members, subject to DPA written approval. The first part of subdivision (d) includes members’ R08 service as “service” under the statute; the second part of subdivision (d) includes S08 and M08 service as “service” under the statute, but, again, subject to DPA approval. Under the subdivisions’ plain terms, once DPA has approved managers and supervisors as members under subdivision (c), those members’ prior rank-and-file R08 service qualifies for the upgraded 3% at 50 formula under the first part of subdivision (d). The dispute is over those members’ S08 and M08 service, and what approval is required to upgrade that S08 and M08 service to the 3% at 50 formula.
In CalPERS’ view, once DPA approves inclusion of managers and supervisors as members under subdivision (c) of section 21363.4, all of their service credit, whether in R08, S08, or M08 positions, is automatically upgraded under subdivision (d) to the 3% at 50 formula. CalPERS submits that the words “provided the [DPA] has approved their inclusion in writing to the board” have the same meaning in subdivisions (c) and (d), and refer to a single act on the part of DPA that both (1) makes managers and supervisors members pursuant to subdivision (c), and (2) upgrades their S08 and M08 service, as well as their R08 service, pursuant to subdivision (d). Based on this construction, CalPERS maintains that “as a matter of law, either all of [plaintiffs’] service credit was upgraded on January 12, 2006, or none was, ” and plaintiffs “could not have been subject to two retirement formulas at the same time....”
The “board” to which the statute refers is CalPERS’ Board of Administration.
Plaintiffs interpret subdivisions (c) and (d) of section 21363.4 to require two separate approvals by DPA. Plaintiffs argue that DPA’s inclusion of managers and supervisors as members under subdivision (c) causes only their R08 service to be upgraded to the 3% at 50 formula under subdivision (d). S08 and M08 service is not upgraded, in plaintiffs’ view, unless DPA both (1) approves managers and supervisors as members under subdivision (c), and (2) approves inclusion of such service under subdivision (d). Under this construction, the words “their inclusion” have different meanings in subdivision (c) and (d): in subdivision (c), the words refer to people, i.e., managers and supervisors; in subdivision (d), the words refer to types of service, i.e., “service in related managerial, supervisory, or confidential positions.”
Plaintiffs note that the January 12, 2006 PML was consistent with their reading of subdivisions (c) and (d) insofar as it “made supervisors and managers ‘members’ to permit the upgrading of their prior R08 service but, expressly did not upgrade S08/M08 service.” Plaintiffs contend that DPA “changed its mind, as was its prerogative and decided to upgrade S08/M08 ‘service’ in the April 26 PML, ” but that the decision “had prospective effect only. [Plaintiffs, ] having retired, cannot be subject to a retroactive change in their benefit structure....”
CalPERS’ argument with respect to the statutory language gives a consistent meaning to the words “their inclusion” in the two subdivisions. “Where the same words are repeated in a statute there is a presumption that the same meaning is intended....” (Braun v. Bureau of State Audits (1998) 67 Cal.App.4th 1382, 1389.) Plaintiffs contend that CalPERS’ construction improperly reads the second part of subdivision (d) out of the statute. (People v. Cole (2006) 38 Cal.4th 964, 980−981 [interpretations that render a part of a statute surplusage should be avoided if possible].) However, the second part of subdivision (d) serves an explanatory function under CalPERS’ theory-that of allowing S08 and M08 service to be upgraded to the 3% at 50 formula. As CalPERS points out, plaintiffs would actually be in a stronger position if the second part of subdivision (d) had not been enacted. In that event, only R08 service could have qualified for the 3% at 50 formula, and plaintiffs could plausibly claim that their S08 and M08 service must therefore be governed by the 3% at 55 formula under section 21363.1.
CalPERS finds additional support for its position in two other subdivisions of section 21363.4. Subdivision (e) states that section 21363.4 “shall supersede” section 21363.1, “with respect to... members and service as defined herein.” This provision appears aimed at precluding members’ service from being governed by different benefit formulas under the two statutes. Plaintiffs, however, argue that under their reading of subdivisions (c) and (d), service “as defined” in section 21363.4 means only their R08, and not their S08 or M08, service. Subdivision (b) caps members’ benefits at 90 percent of final compensation “[i]f the pension relates to service to more than one employer and would otherwise exceed that maximum.” In CalPERS’ view, this provision “makes clear that the Legislature fully intended to retain the 90% cap that had always applied to [plaintiffs’] benefits” and prohibits the application of both formulas for the two types of service. The argument makes sense when the statute is put in context, but the wording of the provision is not written with such clarity that it applies to plaintiffs, who are alleged to have spent all or most of their careers working only for Cal Fire.
While the statutory language on balance tends to support CalPERS’ interpretation, we discern no meaning sufficiently plain to be dispositive in CalPERS’ favor, and therefore look to aids such as legislative history and maxims of statutory construction, and consider the consequences of the parties’ interpretations. (Wells, supra, 39 Cal.4th at p. 1190.)
Plaintiffs cite the principle that the contemporaneous construction of a new enactment by an agency charged with its administration is entitled to great weight. (See, e.g., Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1388.) Plaintiffs observe that defendants initially interpreted and applied section 21363.4 in the manner plaintiffs advocate, and plaintiffs submit that defendants’ contemporaneous construction is entitled to greater weight than “the ex post facto litigation position now asserted.” However, since the benefits plaintiffs seek were paid for only a few months, this is not a case where a consistent, longstanding administrative interpretation warrants judicial deference. (See Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1012 (Sara M.) [consistent administrative construction of a statute over many years is entitled to great weight]; State Building & Construction Trades Council of California v. Duncan (2008) 162 Cal.App.4th 289, 303 [administrative interpretation is entitled to deference if the interpretation is consistent and long-standing; interpretation that was less than two years old “hardly qualifie[d] as long-standing”].) “Ultimately, ” in any event, “the interpretation of a statute is a legal question for the courts to decide, and an administrative agency’s interpretation is not binding.” (Sara M., supra, at p. 1011.)
Plaintiffs invoke the “general and well recognized rule that pension provisions shall be liberally construed in favor of the applicant” (Gibson v. City of San Diego (1945) 25 Cal.2d 930, 935), but “the purpose of the rule of liberal construction is to effectuate legislative intent” (Overend v. Board of Administration (1991) 232 Cal.App.3d 166, 171). “It often is said that public employee pension legislation should be construed liberally in favor of the applicant. [Citation.] It must be kept in mind, however, that the legislative purpose is paramount. [Citation.]” (Haywood v. American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292, 1304.) In San Diego County Employers Retirement Assn. v. County of San Diego (2007) 151 Cal.App.4th 1163, 1180, for example, the court acknowledged the rule of liberal construction, but found no reasonable basis for the employees’ statutory arguments.
Plaintiffs appeal to section 21363.4’s legislative history, which shows that the references to “State Bargaining Unit 8” were added to the statute as the result of collective bargaining. (Stats. 2003, ch. 617, § 8.) Plaintiffs explain that, unlike rank-and-file R08 employees, they had no collective bargaining rights, and thus no contractual right to the 3% at 50 formula. We fail to see how those facts tend to show, as plaintiffs claim, that DPA has “two acts of discretion” under section 21363.4, subdivisions (c) and (d), rather than one. Plaintiffs’ lesser right to benefits under the statute undercuts their position that the statute permits them to avoid the single 90 percent of compensation cap to which R08 employees are subject, and thereby collect far greater benefits than the rank-and-file.
This point helps illustrate why plaintiffs’ interpretation would produce the less reasonable result and must therefore be rejected. (Witt, supra, 165 Cal.App.4th at p. 555 [if two constructions are arguably possible, the one leading to the more reasonable result must be favored].) Section 21363.4’s apparent purpose is to provide incrementally increased pension benefits, not the substantial windfall plaintiffs are in effect seeking. “ ‘ “If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.” [Citation.] “When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.” [Citations.]’ ” (DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 388.) Nothing in the language, context, or history of the statute suggests that its purpose was to provide a way around the 90 percent cap for M08 and S08 employees (and only for such managers and supervisors). The statute is structured to potentially afford M08 and S08 employees benefits equal to, not double, those of R08 employees. We are called upon “to avoid a construction that would lead to unreasonable, impractical, or arbitrary results” such as the one offered by plaintiffs here. (Witt, supra, at pp. 555−556.)
Other statutes in Article 4 covering retirement for service also have a 90% or lower cap, e.g., sections 21362, 21362.2, 21363, 21363.1, 21363.3, and 21363.8.
Plaintiffs contend that they should have been allowed to conduct discovery as to section 21363.4’s meaning. They note that even where the statutory language “is clear and intelligible and suggests but a single meaning, ... extrinsic evidence [can] create[] a necessity for interpretation or a choice among two or more possible meanings.” (Mosk v. Superior Court (1979) 25 Cal.3d 474, 495, fn. 18, original italics.) They seek discovery on matters “such as: the collective bargaining pretext to passage of section 21363.4... and the actions and pre-litigation interpretations of CalPERS and DPA officials.” However, we have acknowledged that section 21363.4 has more than one possible meaning, and we have taken the legislative history and defendants’ contemporaneous construction of the statute into account in rendering our interpretation. “The interpretation of a statute... is a question of law” (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699; see San Diego Police Officers Assn. v. City of San Diego (2002) 98 Cal.App.4th 779, 787 [request for evidentiary hearing on meaning of terms employed by the Legislature was correctly denied]), and plaintiffs have not demonstrated that discovery is either necessary or appropriate in the circumstances of this case.
As we have explained, section 21363.4 does not permit payment of the pension benefits plaintiffs are seeking. Accordingly, plaintiffs’ cause of action for unconstitutional impairment of contractual rights is untenable as a matter of law. CalPERS’ demurrer was correctly sustained without leave to amend as to that cause of action.
Since plaintiffs’ appellate briefs do not address the issue of equitable estoppel as to CalPERS, the judgment for CalPERS on that cause of action must also be affirmed.
B. DPA’s Demurrer
DPA demurred to the first amended complaint on the grounds that (1) section 21363.4 and other statutes prohibited plaintiffs from receiving the benefits they sought, and (2) plaintiffs’ claims were barred by a one-year statute of limitation (§ 19815.8, subd. (a) [actions based on laws administered by DPA]). Plaintiffs argued that even if the claimed benefits were not constitutionally protected, defendants could be equitably estopped from withholding them.
DPA’s demurrer was sustained based on the statute of limitation, and the briefing on the appeal as to DPA was initially confined to that issue. We asked the parties to brief whether, aside from the statute of limitation, plaintiffs would have a cause of action against DPA if we agreed with CalPERS’ interpretation of section 21363.4.
When that issue was argued at the hearing on the demurrers to the first amended complaint, plaintiffs’ counsel stated, “[I]f the Court agrees with Calpers and their interpretation of the statute, I think much of what we are arguing on equitable tolling here is academic. I don’t know that we have any claim left.”
Plaintiffs contend that they have a viable equitable estoppel claim because they were induced to retire by DPA’s January 12, 2006 PML, which provided for receipt of benefits under two formulas by upgrading only part of their service credit to 3% at 50. However, equitable estoppel cannot be invoked to “contravene directly any statutory or constitutional limitations.” (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 28 (Longshore).) As we have said, under section 21363.4 once DPA approved plaintiffs as members entitled to benefits under the 3% at 50 formula, all of plaintiffs’ service credit was automatically upgraded to that formula. The January 12, 2006 PML thus directly contravened section 21363.4 insofar as it purported to upgrade only a portion of the service credit.
The situation here is virtually indistinguishable from that in Medina v. Board of Retirement (2003) 112 Cal.App.4th 864, 869 (Medina), where the county retirement board misclassified plaintiffs as safety members, and the court, citing Longshore, supra, 25 Cal.3d 14, held that the board could not be equitably estopped from correcting the mistake. Plaintiffs maintain that DPA did not directly contravene section 21363.4 because the statute does not “prohibit” application of different benefit formulas to different types of service, it merely fails to “authorize” that result. But this distinction fails. Because section 21363.4 did not authorize a partial service credit upgrade, it effectively prohibited the receipt of stacked benefits under different formulas. Medina’s observation that “estoppel is barred where the government agency to be estopped does not possess the authority to do what it appeared to be doing” applies equally here. (Medina, supra, at p. 870.)
For these reasons, plaintiffs cannot state a cause of action against DPA, and we need not determine whether as to DPA the suit was timely.
III. CONCLUSION
The judgment is affirmed.
We concur Margulies, J., Dondero, J.