Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV006633
BAMATTRE-MANOUKIAN, ACTING P.J.
This appeal arises from a collection action involving the overpayment of pension benefits. After the dissolution of her marriage to James Terry, a retired San Jose police officer, appellant Leilani Brewster received monthly payments of her community share of his pension benefits. When Terry died, Brewster continued to receive monthly payments although the San Jose Police and Fire Department Retirement Plan (Plan) provided that Terry’s pension benefits were to cease upon his death. The Plan eventually discovered its error and filed an action against Brewster to collect the over payments After a court trial, judgment in favor of the Plan was entered in the amount of $36,494.82.
At the time of trial, the complaint was amended to include the City of San Jose as a plaintiff. For ease of reference, we will refer to respondents Plan and City of San Jose collectively as the Plan.
On appeal, Brewster contends that the judgment should be reversed because (1) the evidence established that the Plan should be estopped from collecting the overpayment; (2) the Plan lacks the authority to collect an overpayment from Brewster because she is a third party non-beneficiary; and (3) the Plan has the authority to pay Brewster her share of the survivor’s benefits that are attributable to the community. For reasons that we will explain, we find no merit in any of Brewster’s contentions and therefore we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Plan’s Payment of Pension Benefits
In 1990, Terry retired from the City of San Jose Police Department for a service-connected disability and began receiving pension benefits from the Plan. Before that time, Terry’s marriage to Brewster had ended. In their marital dissolution action, Brewster was awarded a portion of Terry’s monthly pension payments pursuant to the judgment on reserved issues entered on June 12, 1985. After Terry died on October 4, 2001, the Plan continued to make monthly pension payments to Brewster although the San Jose Municipal Code did not provide for the payment of pension benefits after a retiree’s death. (San Jose Mun. Code, § 3.36.1230, subd. F.) The Plan stopped making payments to Brewster in March 2003 after discovering its error.
B. The Collection Action
On October 7, 2003, the Plan filed a collection action against Brewster. The Plan alleged that it had overpaid Brewster the sum of $29,274 and she had refused to return any portion of the overpayment. Based on these allegations, the Plan stated causes of action for recovery of public retirement funds paid in error and for money had and received.
Brewster raised several affirmative defenses in her answer, including estoppel. The factual allegations in support of the estoppel defense included the following: Brewster did not know that payment of pension benefits was to cease upon Terry’s death; the judgment on reserved issues did not state that payment of pension benefits terminated on his death; and agents of the Plan and the City of San Jose had informed her on three separate occasions in 1998 that she was entitled to monthly payments of a portion of Terry’s pension benefits for the rest of her life.
Brewster also filed a cross-complaint in the collection action, in which she asserted that she was entitled to continued pension payments and compensatory damages under various tort and contract theories. After several rounds of demurrers, the trial court sustained the Plan’s demurrer to the second-amended cross-complaint without leave to amend. The cross-complaint was dismissed on June 15, 2006.
1. The Motion for Summary Adjudication
The Plan filed a motion for summary adjudication of the affirmative defense of estoppel. It argued that even if the allegations set forth in Brewster’s answer were assumed to be true, the affirmative defense of estoppel was barred as a matter of law under the rules applicable to a public entity. The Plan asserted that as a public entity it could not be estopped from collecting the overpayment because it had no legal authority to make pension payments after a retiree’s death and to do so would constitute an improper gift of public funds.
The trial court granted the motion for summary adjudication at the hearing held on June 1, 2006, observing that Brewster had failed to file opposition. The record on appeal does not indicate whether a written order was filed. The trial court subsequently granted reconsideration of the order granting the motion for summary adjudication on its own motion, allowed Brewster to file opposition, and set the matter for a hearing, as stated in the order filed on June 14, 2006.
In her opposition to the motion for summary adjudication, Brewster contended that the Plan could be estopped from collecting the overpayment because the payment of retirement benefits to her after Terry’s death was a valid government act, based on the Plan’s authority to pay her the community share of the survivor’s benefits to which she was entitled pursuant to Family Code section 2610. Alternatively, Brewster asserted that the Plan’s only remedy was to make an adjustment in future retirement benefit payments.
The Plan provides that survivor’s benefits may be paid to the “surviving spouse” of a retiree who “dies during his or her service-connected disability retirement after receiving any disability retirement allowance or pay.” (San Jose Mun. Code, § 3.36.1230, subd. A.3. “Surviving spouse” is defined as “the person who survives the deceased person and who was married to the deceased person both at the time of the deceased person’s death and at the time the deceased person was retired for service or disability, and no other person.” (San Jose Mun. Code, § 3.36.1230, subd. B.1.)
Family Code section 2610, subdivision (a) provides in pertinent part, “Except as provided in subdivision (b), the court shall make whatever orders are necessary or appropriate to ensure that each party receives the party’s full community property share in any retirement plan, whether public or private, including all survivor and death benefits, including, but not limited to, any of the following: [¶] (1) Order the disposition of any retirement benefits payable upon or after the death of either party in a manner consistent with Section 2550.” Subdivision (b) of section 2610 provides in pertinent part, “A court shall not make any order that requires a retirement plan to do either of the following: [¶] (1) Make payments in any manner that will result in an increase in the amount of benefits provided by the plan.”
In its order of July 19, 2006, the trial court denied reconsideration of the order granting summary adjudication of the affirmative defense of estoppel. The order stated, “[The Plan] established that it cannot be equitably estopped from recouping over payments of pension benefits made to [Brewster] because said payments either violated public policy or contravened the law defining [the Plan’s] powers, and [Brewster] failed to cite any legal authority or evidence to support a contrary conclusion.”
2. The Court Trial
A court trial was held on November 13, 2006. Before trial, the parties stipulated to a number of facts, including the fact that under the provisions of the Plan, as set forth in San Jose Municipal Code section 3.36.010 et seq., the “Plan distributes retirement benefits to the retiree from the date of retirement to the date of death.” The parties also stipulated that the Plan did not stop payment of retirement benefits to Brewster when Terry died; that she continued to receive payments through February 28, 2003; and the total amount of the overpayment was $29,095.74 plus interest.
When the trial began, the court noted that there was a related proceeding pending in family court. The court accordingly granted the Plan’s motion in limine to preclude Brewster from arguing the applicability of Family Code section 2610 because that issue was to be determined in the family court proceeding. The trial court also granted the Plan’s motion in limine to preclude Brewster “from introducing any evidence alleged in her affirmative defense of equitable estoppel, because it’s barred by [the summary adjudication] order of July 19[, 2006].”
The witnesses at trial included Brewster and Thomas J. Webster, the deputy director of the City of San Jose department of retirement services. Webster’s testimony focused on the Plan’s policy regarding the collection of over payments Before 2001, the Board that administers the Plan had an informal non-written policy requiring recovery of over payments In 2001, the Board issued a written policy requiring recovery of over payments, which was revised in 2004.
Accordingly, when Terry died on November 3, 2001, there was a written policy requiring recovery of over payments in effect. The 2004 revisions to the policy allowed the Plan to cease efforts to collect an overpayment where the Board determined that recovery was not reasonably probable or pursuing the recovery would not be cost-effective. Webster acknowledged, however, that in the event the Plan obtained a judgment against Brewster, she could ask the Board for a determination of good cause to forgive or reduce her debt.
Brewster testified that she had spent all of the overpayment monies on living expenses because her husband was out of work. The City of San Jose did not advise her that the overpayment could be reduced or forgiven if she gave them a good reason, or that she could make an arrangement for payment. Brewster also denied that she had been overpaid, asserting that she is entitled to lifetime payment of retirement benefits as part of her divorce.
At the conclusion of testimony, the trial court asked the parties to submit a posttrial brief on the issue of whether the Plan had the legal authority to collect the overpayment. In her posttrial brief, Brewster argued that the Plan should be estopped from collecting the overpayment because she had received and spent the funds and the Plan had the power to forgive an overpayment. Alternatively, Brewster contended that the San Jose Municipal Code did not expressly authorize the Plan to file a collection action against a third party to recover an overpayment and the Plan’s only remedy was to adjust future payments.
The Plan responded in its posttrial brief that Brewster’s argument on the issue of estoppel was improper because the trial court had previously decided that issue in the Plan’s favor when the court granted summary adjudication and excluded trial testimony pertaining to estoppel. Additionally, the Plan argued that collection of over payments was authorized pursuant to San Jose Municipal Code section 4.24.020, which provides that “The city attorney is hereby authorized to file legal actions to collect any and all claims for damages or other money owed to the city.” This provision applied, according to the Plan, because the Plan was created by the San Jose City Charter and is therefore part of the City of San Jose, which makes contributions to the Plan’s trust fund. The Plan also maintained that Brewster had erred in relying upon inapplicable case law interpreting the provisions of the Employee Retirement Income Security Act (ERISA) and Public Employee Retirement Law (PERL).
The federal Employee Retirement Income Security Act of 1974 is codified at title 29 United States Code section 1001 et seq.
“California’s Public Employees’ Retirement System (PERS) manages the pension benefits provided to more than 1.2 million public employees, retirees, and their families under the Public Employee Retirement Law (PERL). (Gov.Code, § 20000 et seq.)” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 347, dis. opn of Kennard, J.)
3. The Judgment
On December 8, 2006, the trial court entered judgment in favor of the Plan and the City of San Jose and against Brewster in the amount of $36,494.82, which included the principal amount of $29,095.74 and prejudgment interest of $7,399.08, plus costs.
III. DISCUSSION
Brewster filed a timely notice of appeal and raises three issues in support of her challenge to the judgment: (1) the evidence established that the Plan should be estopped from collecting the overpayment; (2) the Plan lacks authority to collect an overpayment from Brewster because she is a third party non beneficiary; and (3) the Plan has the authority to pay Brewster her share of the survivor’s benefits that are attributable to the community. We will address each issue in turn.
A. Estoppel
In her opening brief, Brewster states that the trial court committed reversible error because she “provided sufficient evidence to establish that she was entitled to an affirmative defense of estoppel because she relied to her detriment on the receipt of the payments through no fault of her own and that the Plan had the power to forgive any overpayment.”
Brewster therefore frames her estoppel argument in terms as a sufficiency of the evidence issue, although the court trial did not involve a determination of whether the collection action was barred by the affirmative defense of estoppel. Since the trial court had granted the Plan’s motion in limine to exclude evidence pertaining to estoppel, in light of the trial court’s previous order granting the Plan’s motion for summary adjudication, no evidence was admitted on the issue. However, we understand Brewster to challenge the trial court’s order granting the Plan’s motion for summary adjudication, which we may review because an order granting summary adjudication is generally review able on appeal from the final judgment in the action. (Jennings v. Marralle (1994) 8 Cal.4th 121, 128.)
The standard of review for an order granting summary adjudication is de novo. (Aguilar v. Atlantic Richfield Co. (2001)25 Cal.4th 826, 860 (Aguilar.) The trial court's stated reasons for granting summary adjudication are not binding on the reviewing court, which reviews the trial court's ruling, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.) “Summary adjudication of an affirmative defense is properly granted when there is no triable issue of material fact as to the defense, and the moving party is entitled to judgment on the defense as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f)(1).)” (Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 977-978.)
In the present case, there are no triable questions of fact as to the affirmative defense of estoppel because the Plan conceded Brewster’s factual allegations regarding estoppel, as set forth in her answer, for purposes of the motion for summary adjudication. We will therefore determine whether Brewster is barred as a matter of law from asserting the affirmative defense of estoppel, based on the undisputed facts and the rules governing the application of the doctrine of estoppel to a public entity.
The California Supreme Court has established the elements of the affirmative defense of estoppel: “Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he [or she] must intend that his [or her] conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he [or she] must rely upon the conduct to his [or her] injury. [Citations.]” (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305.)
However, the doctrine of equitable estoppel may be applied to a public entity only under certain circumstances. Our Supreme Court has instructed that “[t]he government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel.” (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 496 -497.)
Moreover, “neither the doctrine of estoppel nor any other equitable principle may be invoked against a governmental body where it would operate to defeat the effective operation of a policy adopted to protect the public.” (County of San Diego v. Cal. Water etc. Co. (1947) 30 Cal.2d 817, 826; Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 316.) Additionally, “no court has expressly invoked principles of estoppel to contravene directly any statutory or constitutional limitations.” (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 28; Smith v. Governing Bd. of Elk Grove Unified School Dist. (2004) 120 Cal.App.4th 563, 569.)
The application of the doctrine of equitable estoppel to a public entity plaintiff in a retirement-related action was addressed in Longshore v. County of Ventura, supra, 25 Cal.3d 14. In that case, Woodrow Longshore, a retired deputy sheriff, sued the County of Ventura for cash compensation for his unused overtime credits. The California Supreme Court determined that Longshore had retained no right to overtime credits pursuant to the applicable county ordinance and the state constitutional bar on local enactments that allow the retroactive grant of extra compensation for work already performed (Id. at pp. 23, 25; Cal. Const., art. IV, § 17.) The Supreme Court therefore rejected Longshore’s contention that the County of Ventura should be estopped from denying his right to cash compensation for unused overtime credits, on the ground that “[a]pplication of estoppel to enlarge Longshore’s rights would directly thwart a clear constitutional policy against retroactive compensation and would effectively purport to enforce an employment contract in contravention of law.” (Longshore v. County of Ventura, supra, 25 Cal.3d at p. 29.)
Similarly, in Smith v. Governing Bd. of Elk Grove Unified School Dist., supra, 120 Cal.App.4th 563, the appellate court rejected a plaintiff teacher’s argument that the school district should be estopped from denying her permanent status. The court noted, “[a]s stated more directly in a teacher tenure case, ‘our holding that [granting relief would exceed statutory authority] leaves no room to apply the estoppel doctrine.’ [Citations.]” (Id. at p. 569.)
We agree with the Plan that as a matter of law it may not be equitably estopped from recovering the overpayment of pension benefits to Brewster because the application of estoppel would contravene the law prohibiting a gift of public funds. “Section 6 of article XVI of the California Constitution provides that the Legislature has no power ‘to make any gift or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation . . . .’ ” (Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 450.) The payment of retirement benefits in an amount in excess of that to which a retired public employee is entitled constitutes an impermissible gift of public funds. (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 651.)
Here, it is undisputed that Brewster continued to receive her community share of Terry’s pension benefits for approximately 17 months after Terry died, although payment of post death benefits was not authorized under the Plan. As set forth in the San Jose Municipal Code, the only benefits payable after the death of a person retired for a service-connected disability are (1) survivor’s benefits payable to an eligible surviving spouse or to eligible surviving children; or (2) in the absence of eligible survivors, a payment of a $1000 death benefit to the deceased person’s estate. (San Jose Mun. Code, § 3.36.1230, subd. E.) It is undisputed that Brewster was not eligible for survivor’s benefits under section 3.36.1230 because she was not married to Terry both at the time of his retirement and the time of his death. (San Jose Mun. Code, § 3.36.1230, subd. B.1.)
The Plan was therefore not authorized to pay Brewster any retirement benefits after Terry’s death under the applicable provisions of the Plan. Accordingly, after Terry’s death the Plan paid Brewster pension benefits to which she was not legally entitled. To estop the Plan from recovering the overpayment would directly contravene the constitutional prohibition on gifts of public funds as well as the San Jose Municipal Code provisions barring payment of pension benefits after a retiree’s death. For that reason, the doctrine of equitable estoppel may not be applied in the present case as a matter of law.
Brewster’s argument in favor of the application of equitable estoppel is not convincing. She contends the court may estop the Plan from collecting the overpayment without contravening the law because the Plan’s board has the power to forgive an overpayment of pension benefits, as stated in Thomas Webster’s testimony. In making this argument, Brewster relies on the decision in Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567 (Crumpler).
In Crumpler, the PERS board sought to reclassify animal control officers under the retirement system from local safety officers to miscellaneous members, with a corresponding reduction in retirement benefits, although the animal control officers had been told when they were hired that they would be entitled to the same retirement benefits as police officers. (Id. at p. 572.) The appellate court determined that the PERS board could be estopped from retroactively reclassifying the animal control officers because former Government Code section 20124 (now section 20125) provided that the board “ ‘is the sole judge of the conditions under which persons may be admitted to and continue to receive benefits under [the] system.’ ” (Crumpler, supra, 32 Cal.App.3d at pp. 578, 584.) Thus, the court reasoned that “this is not a case where the government agency ‘utterly lacks the power to effect that which an estoppel against it would accomplish.’ [Citation.]” (Id. at p. 584.)
Government Code section 20125 provides, “The board shall determine who are employees and is the sole judge of the conditions under which persons may be admitted to and continue to receive benefits under this system.”
Crumpler was distinguished in the factually similar case of Medina v. Board of Retirement (2003) 112 Cal.App.4th 864 (Medina). In Medina, the appellate court determined that the county retirement board could not be estopped from reclassifying two deputy district attorneys as general members, where they had been classified as safety members prior to becoming deputy district attorneys ineligible for safety member status under the applicable Government Code provisions. (Id. at pp. 870-871.) The Medina court noted, “As recognized by the Crumpler court, estoppel is barred where the government agency to be estopped does not possess the authority to do what it appeared to be doing.” (Id. at p. 870.) Thus, “[t]he fact that the board did not possess the authority to classify appellants as safety members distinguishes this case from Crumpler.” (Ibid.)
In the present case, we have determined that under the relevant provisions of the San Jose Municipal Code, the Plan does not possess the authority to pay Brewster any retirement benefits after Terry’s death, and payments made in excess of the Plan’s authority constitute an unconstitutional gift of public funds. The Board’s policy allowing it to forgive or reduce an overpayment of retirement benefits under certain circumstances does not operate as an amendment to the San Jose Municipal Code or the California Constitution that would authorize excess payments of retirement benefits. Consequently, as a matter of law the Plan may not be estopped from recovering an unlawful overpayment of retirement benefits and the trial court properly granted the Plan’s motion for summary adjudication of Brewster’s affirmative defense of estoppel.
B. The Plan’s Authority to Recover the Overpayment
Alternatively, Brewster argues that the Plan lacks the authority to file a collection action against a third party non-beneficiary of the Plan to recover over payments of retirement benefits because such actions are not expressly authorized by the San Jose Municipal Code. She asserts that the Plan’s only remedy is to recover over payments through adjustments on future monthly retirement payments.
We will review Brewster’s claim under the standard of review applicable to a judgment made after a court trial. Where, as here, there is no statement of decision, the reviewing court must presume that the trial court made all of the findings necessary to support the judgment, and review is limited to a determination of whether there is substantial evidence to support the judgment. (Gibbs v. American Savings & Loan Assn. (1990) 217 Cal.App.3d 1372, 1375.) However, we “will independently review any matter which does not involve the resolution of disputed facts.” (Hodges v. Mark (1996) 49 Cal.App.4th 651, 655.)
Under Code of Civil Procedure section 632, a statement of decision is not required in a court trial unless timely requested by a party.
Brewster’s contention that the Plan lacked authority to file a collection action against her to recover its overpayment of pension benefits in the absence of an express San Jose Municipal Code provision authorizing such actions relies upon the United States Supreme Court’s decision in Great-West Life & Annuity Insurance Co. v. Knudson (2002) 534 U.S. 204 (Knudson).) The Plan maintains that Brewster’s reliance on Knudson is misplaced because that case is not on point. We agree.
In Knudson, the question addressed by the United States Supreme Court was whether an employee benefit plan was authorized under ERISA to bring an action in federal court for specific performance of the reimbursement provision of the plan, and thereby compel a plan beneficiary who had received a personal injury settlement to reimburse the plan for the medical expenses paid by the plan. (Knudson, supra, 534 U.S. at pp. 206-207.) The Supreme Court concluded that because the plan was seeking legal relief (“the imposition of personal liability on respondents for a contractual obligation to pay money),” rather than equitable relief, the plan’s federal action was not authorized under ERISA. (Id. at p. 221.) The decision in Knudson is obviously inapplicable in the present case, which does not involve the interpretation of any ERISA provisions or a federal action for reimbursement of medical expenses paid by an employee benefit plan.
Similarly, Brewster’s contention that the Plan may recover an overpayment only by adjusting future retirement benefits is not supported by the authority she cites, Foster v. Pension Board (1937) 23 Cal.App.2d 550 (Foster) and Government Code section 20163. In Foster, the appellate court concluded that the County of Alameda was entitled to recover over payments of retirement benefits to a firefighter, and that “[a]s further pension payments become due . . . the method adopted for recovering the over payments by withholding one-fourth of the amount thereof from each of the pension payments made for the four succeeding months was a reasonable and proper method for effecting such recovery.” (Foster, supra, 23 Cal.App.2d at p. 555.)
Government Code section 20163, subdivision (a) provides in pertinent part that, with respect to PERS benefits, “Adjustments to correct overpayment of a retirement allowance may also be made by adjusting the allowance so that the retired person or the retired person and his or her beneficiary, as the case may be, will receive the actuarial equivalent of the allowance to which the member is entitled.”
Government Code section 20163, subdivision (a) provides, “(a) If more or less than the correct amount of contribution required of members, the state, or any contracting agency, is paid, proper adjustment shall be made in connection with subsequent payments, or the adjustments may be made by direct cash payments between the member, state, or contracting agency concerned and the board or by adjustment of the employer’s rate of contribution. Adjustments to correct any other errors in payments to or by the board, including adjustments of contributions, with interest, that are found to be erroneous as the result of corrections of dates of birth, may be made in the same manner. Adjustments to correct overpayment of a retirement allowance may also be made by adjusting the allowance so that the retired person or the retired person and his or her beneficiary, as the case may be, will receive the actuarial equivalent of the allowance to which the member is entitled. Losses or gains resulting from error in amounts within the limits set by the California Victim Compensation and Government Claims Board for automatic write off, and losses or gains in greater amounts specifically approved for write off by the California Victim Compensation and Government Claims Board, shall be debited or credited, as the case may be, to the reserve against deficiencies in interest earned in other years, losses under investments, and other contingencies.”
Thus, neither Foster nor Government Code section 20163 concerns the recovery of over payments made by a charter city’s retirement plan. This distinction is important, because it is well established that “[c]hartered cities have full power to regulate municipal affairs, and ordinances governing municipal affairs supersede general laws insofar as the latter conflict with the ordinance unless the state has preempted the field.” (Bellus v. City of Eureka (1968) 69 Cal.2d 336, 346; Winslow v. City of Pasadena (1983) 34 Cal.3d 66, 70.) The state has not preempted the field of city retirement plans, because “[t]he State Pension Act by its own terms makes clear that its provisions are not intended to preempt the field of pensions for municipal employees. [Citations.]” (Bellus v. City of Eureka, supra, 69 Cal.2d at p. 346; Gov. Code, § 45300 et seq.) Therefore, a charter city’s ordinances governing its retirement plan supersede the provisions of PERL. (Gov. Code, § 20000 et seq.)
The City of San Jose, a charter city, established the Plan pursuant to its city charter. (See San Jose City Charter (1965 as amended through 2004), art. II, § 200, art. XV, § 1500 et seq.) The current version of the Plan is set forth at sections 3.36.500 et seq. of the San Jose Municipal Code. Accordingly, the San Jose City Charter and the San Jose Municipal Code govern the Plan and supersede the provisions of PERL. Because Government Code section 20163 is a provision of PERL, it is inapplicable in the present case. The decision in Foster is also inapplicable, because that decision concerned the recovery of over payments by a county, not a charter city.
We are also not convinced by Brewster’s argument that the Plan may not bring a collection action to recover over payments from a third party non-beneficiary of the Plan, such as herself, because the San Jose Municipal Code does not expressly provide for a civil action to recover over payments of retirement benefits from an individual. As the Plan points out, San Jose Municipal Code section 4.24.020 provides in pertinent part that “The city attorney is hereby authorized to file legal actions to collect any and all claims for damages or other money owed to the city.” Brewster does not attempt to explain why this section would not authorize the present action to recover the over payments made to her by the Plan.
For these reasons, we conclude that the Plan had the authority to bring the present action to recover the over payments that it erroneously made to Brewster.
C. Payment of Survivor’s Benefits
While Brewster acknowledges that she does not qualify as a surviving spouse under the terms of the Plan, her final argument is that she is entitled to either payment of her share of survivor’s benefits that are attributable to the community or a resulting trust on the portion of the survivor’s benefits payable to Terry’s surviving spouse. We need not address this issue for two reasons. First, the trial court did not consider the issue of whether Brewster was entitled under the Family Code to a share of the survivor’s benefits because that issue was to be determined by the family court in a pending action. Second, the family court’s decision concerning that issue has been addressed in the opinion filed this day in the companion appeal. (Terry v. Brewster (Feb. 27, 2008, H031146) [nonpub. opn.].)
IV. DISPOSITION
The judgment is affirmed. Each party shall bear its costs on appeal.
WE CONCUR: MIHARA, J., MCADAMS, J.