- Rescission is a Remedy Available on Class Action, Especially in a Fiduciary Context
Rescission is available as a remedy in class actions. (Vasquez v. Superior Court (1971) 4 C3d 800; accord, Richmond v. Dart Industries, Inc. (1981) 29 C3d 462.) The “[p]rotection of unwary consumers from being duped by unscrupulous sellers is an exigency of the utmost priority in contemporary society.” (Vasquez, at 808; People v. Boehringer Ingelheim Pharmaceuticals, Inc. (C.D. Cal., July 31, 2017, No. SACV1700923AGKSX) 2017 WL 3269074, at *3.) Class actions for rescission of standardized adhesion contracts that omit or misrepresent material terms are authorized. (Vasquez; Occidental Land, Inc. v. Sup. Ct. (1976) 18 C3d 355; Massachusetts Mutual Life Ins. Co. v. Sup.Ct. (2002) 97 CA4th 1282.) Class actions allow rescission based on recurring pattern evidence, such as standardized contracts. Anyone who received no advantage from the investment would have no reason not to rescind. (Jensen, 76-77.) Those who receive partial increases are entitled to a rescission of the incremental part of the contract that does not provide advantage. (Jensen, 78-80.)
Plaintiffs seek rescission. Class members may rescind the investment contract as CalPERS omitted, misrepresented, and failed to disclose material terms so that their putative consent was given by mistake and obtained through duress, menace, fraud, or undue influence exercised by CalPERS, including through breach of its fiduciary duties. (Hittle, supra.) The adhesion contracts are rescindable across the class for undue influence, misrepresentation, breach of fiduciary duties, omission, lack of consent, mistake, no consideration, and other defects.
Factually and legally, Plaintiffs were mistaken. Rescission for a mistake, such as Plaintiffs believing in increases with no risk of loss, is authorized. CalPERS knew of the risks, had reason to know of Plaintiffs’ mistake, yet CalPERS did not correct but instead took advantage. Even if CalPERS had no reason to know of Plaintiff’s mistake, the Plaintiffs across the class establish the following facts to obtain rescission:
- Each safety officer under 50 was entitled to full information about the risks from CalPERS and could not take into account the risk of loss that was not disclosed, so he/she necessarily made a mistake regarding a basic assumption of receiving increases at the time of contracting;
- The mistake about not knowing and not being able to take into consideration the risk of loss on IDR has a material effect upon the agreed exchange of performances that is adverse to the class member;
- The safety member investing in increases is a mistaken party who does not bear the risk of loss on IDR because the class member is already entitled to fiduciary duties of full information, and is also already fully entitled to the 50% IDR before investing; and
- The effect of the mistake is to make the class member lose his/her
investment, to pay for a share of IDR that he/she would not otherwise have to pay, and to suffer loss, increase, and the value of their money, such that enforcement of the contract would be unconscionable.
Rescission is a statutory and legal remedy. It is not personal and not an equitable action. No balancing is required. (4 Witkin, Cal.Proc. 5th (2008), Pleading, 541, p. 668.) Class members’ motive in choosing rescission is irrelevant (Conlin v. Osborn (1911) 161 C 659; Siegel v. Lewis (1946) 74 CA2d 86.) No plaintiff waived the right to rescind. Each rescinded promptly. Any delay was caused by CalPERS’ acts or omission.
CalPERS used standard practice and policy forms. CalPERS followed the same or similar policies, procedures, and processes with everyone who invested in military/airtime. CalPERS sent each class member the same or similar standardized information. CalPERS required each class member to read and sign the same or similar form contract that omitted or misrepresented material terms. All are presumed to rely on CalPERS. All class members are similarly situated. The only “difference” is the amount of restitution and interest, which is readily determined from CalPERS’ records. The different amounts are irrelevant for certification.
Elements of rescission. The elements authorizing rescission are met:
- Nondisclosure/misrepresentation of material terms, heightened in importance when the party writing the contract (CalPERS) is a fiduciary; or
- Lack of consent by the Plaintiffs; or
- Mistake by the Plaintiffs; or
- Unconscionability of the contract; or
- Failure to provide consideration to Plaintiffs.
Partial rescission is available. The contract is apportioned by increases or intervals. Partial rescission is available as it is a severable or divisible contract. (IMO Develop. Corp. v. Dow Corning Corp. (1982) 135 CA3d 451; Howell v. Courtesy Chevrolet, Inc. (1971) 16 CA3d 391.) Plaintiffs who suffered partial losses should be allowed to rescind the part of the contracts for which they receive no increase. (Simmons v. Cali Institute of Tech (1949) 34 C2d 264.)
- Contract Law Applies
Before contracting, Plaintiffs’ money was their own and free of any restrictions. A putative agreement to transfer that money to CalPERS must satisfy contract law. Since the investments were optional, consent to material terms is required. Consent is not mutual unless all the parties agree to the same thing in the same sense. (Chalmak v. H.J. Lucas Masonry, Inc. (1976) 55 CA3d 124, 127.) CalPERS and Plaintiffs did not agree to the same things in the same way. CalPERS cannot attempt to omit material terms and then say that those terms are included because they exist in the PERL. The PERL applies only by contract, even to contracting agencies such as cities. CalPERS’ conduct in seeking a waiver after the fact shows that CalPERS thought that (i) it needed a contract and (ii) it did not get consent to the “no refunds” terms in the original contract. No contract formed. The contract is rescindable, with restitution.
- Existence of Waiver
The existence of a form waiver that CalPERS first used after some injured Plaintiffs retired with IDR also shows that CalPERS knew that the original contract did not include all material terms and was defective. The existence of the waiver shows that CalPERS was aware of Plaintiffs’ legal and factual mistake and lack of consent at the time of the original contract, and tried to “fix it” piecemeal after the fact in CalPERS favor. The waiver establishes the grounds for legal mistake and rescission across the class. The “no refunds” language cannot be inserted after IDR. Lacking consideration and consent, the waiver is rescindable and cannot retroactively impose new terms. As a fiduciary and sole provider of the IDR, CalPERS’ contract and waiver are both unconscionable, without consent, and voidable.
- No Formation, No Consent, No Contract, Rescission Under Civil Code §1566
Plaintiffs were not informed, did not agree, and did not consent to the material terms of risk, loss, risk of no increases, no refund, IDR offset, transfer to CalPERS or the employer, and other material terms that are expressly contrary to “increases” and “present value” in the original “contract”. There is no contract until there has been a meeting of the minds on all material points. (American Employers Group, Inc. (2007) 154 CA4th 836; Elyaoudayan v. Hoffman (2003) 104 CA4th 1421.) If there is no consent, rescission is appropriate. (Civ. Code, §1566.)
Ambiguous object of investment, ambiguous term. CalPERS informed Plaintiffs it offer-ed “present value” or risk-free investments for future increases. Plaintiffs invested for increases. “The object of a contract is the thing that it is agreed to on the part of the party receiving the consideration, to do or not to do.” (Civ. Code, §1595.) CalPERS says Plaintiffs are not entitled to increases after taking IDR. But “[w]here a contract has but a single object, and such object is unlawful, whether in whole or in part, or wholly impossible of performance, or so vaguely expressed as to be wholly unascertainable, the entire contract is void.” (Civ. Code, §1598.)
If CalPERS sold Plaintiffs time instead of increases, that would be a misrepresentation of the terms explicitly promising “present value” or risk-free “increases.” CalPERS may say that it sold service credit, but “service credit” is not included in IDR. (Gov’t Code, §21151(a).) Normal contributions fund IDR (Gov’t Code, §21418), but there was no disclosure that all Plaintiffs were investing in was “normal contributions,” much less that their investments would fund their IDR.
Adhesion contract. The standardized forms were adhesion contracts that CalPERS imposed, and were drafted by the party of superior bargaining strength. (Perdue v. Crocker Nat’l Bank (1985) 38 C3d 913; Poublon v. C.H. Robinson Company, 846 F.3d 1251 (9th Cir. 2017).) Ambiguous terms must be construed against CalPERS as the preparer of the contract. (United Multiple Listing Service, Inc. v. Bernstein (1982) 134 CA3d 486.) It may also be necessary to call the weaker party’s attention to the contractual provision that would defeat the strong expectation of the weaker party. (Penilla v. Westmont Corp. (2016) 3 CA5th 205.)
Subjective understanding is not relevant. Plaintiffs’ subjective understanding of the form contracts and related documents is irrelevant, including as the objective language controls. (Marzec v. CalPERS (2015) 236 CA4th 889, 914-916.) Further, Plaintiffs’ actions or under-standings are irrelevant because inquiry notice is not the correct standard. (Hittle, supra, at 394.)
- CalPERS’ Breach of Its Fiduciary Duties on Standardized Forms and Contracts
As a retirement system, CalPERS owed fiduciary duties to each class member, including duties of loyalty, to not act adverse, and to adequately inform, especially if CalPERS was secretly adverse. (California Constitution, art. XVI, §17; Gov’t Code, §§20170, 20178, 20225, 20160, 20164; Hittle, supra.) CalPERS, its Board, and employees have mandatory fiduciary duties of good faith and fair dealing, to account, to not take advantage, and other duties. (Cal. Const., art XVI, §17; Gov’t Code, §20151.) CalPERS owes Plaintiffs a mandatory duty to inform and provide timely and accurate information to its Members (Hittle, supra, at 389-90; In re Smith, CalPERS’ Preced. Dec. No. 99-01 (March 31, 1999) [“The duty to inform and deal fairly with members also requires that the information conveyed be complete and unambiguous”].)
CalPERS breached its fiduciary duties, including when it took advantage, acted adverse, took Plaintiffs money, used it to fund the IDR or offset the employer, failed to adequately inform, and omitted material terms in the contracts, publications and other written materials. (Vasquez; Occidental Land; Massachusetts Mutual Life; Estate of Gump (1991) 1 CA4th 582; Mirkin v. Wasserman (1993) 5 C4th 1082; Caro v. Proctor & Gamble (1993) 18 CA4th 644.)
Instead of informing Plaintiffs, CalPERS sought a waiver after the fact. CalPERS’ breaches of duties are considered undue influence sufficient to allow rescission. (Hittle; Vasquez; Marzec v. CalPERS, at 914-916.) Breach of fiduciary duties based on the standardized forms and practices is a class-wide issue. CalPERS’ neglect of its legal and fiduciary duty caused the plaintiffs lack of consent, mistake, and no consideration. These risks must be allocated to CalPERS. (Civ. Code, §1688.)
CalPERS is the sole party at fault. As a fiduciary, CalPERS took adverse positions, took advantage, failed to disclose, transferred funds, took the money, and benefitted itself without Plaintiffs’ consent. CalPERS’ averse position and advantage make the contract voidable. (Hittle, supra.) Plaintiffs did not bear the risk.
Nondisclosure or misrepresentation by a fiduciary. When a claim is based upon a misrepresentation or nondisclosure by a fiduciary, “the reliance element is relaxed … to the extent we may presume reasonable reliance … absent direct evidence of a lack of reliance.” (Estate of Gump, supra; Toadter v. Bradshaw (1958) 164 CA 200..; Edmunds v. Valley Circle Estates (1993) 16 CA4th 1290, 1302.) CalPERS has not produced a single document that provides “specific notice” of the material terms before contracting or that shows a lack of reliance. (Jensen, 55-61.) No evidence shows that Plaintiffs were informed that CalPERS turned adverse against them before contracting.
- Reliance: Material Misrepresentations and Omission Communicated Across Class
“[W]hen the same material misrepresentations have actually been communicated to each member of a class, an inference of reliance arises as to the entire class.” (Mirkin v. Wasserman at 1095, citing Vasquez.) “[ A]ctual reliance can be proved on a class-wide basis when each class member has read or heard the same misrepresentations.…” (Ibid.) Reliance is presumed when (a) the false representations were made to each putative class member (which by definition occurs when each receives essentially the same form documents), and (b) each putative member’s acts were consistent with reliance upon the representations. (Vasquez; Occidental Land; Massachusetts Mutual.)
Materiality. The risk of loss, IDR offset, risk of no increases, and transfer to employers are objectively material. Materiality is an objective, not a subjective, element. (See, e.g., Vasquez, cited in Low v. Trump University, LLC (S.D. Cal., Nov. 15, 2016, No. 310CV00940GPCWVG) 2016 WL 6732110, at *2; Massachusetts Mutual, supra; In re Steroid Hormone Produce Cases (2010) 181 CA4th 145, 157, as modified on denial of reh’g (2/8/10).)
Uniform material misrepresentations were actually communicated to class members. CalPERS advertises the investment through only one channel, its written publications. When Plaintiffs called or visited CalPERS’ office, CalPERS employees regularly would not talk or advise them orally and instead told Plaintiffs to read and rely on CalPERS written materials. CalPERS’ publications contained the same or similar material omissions and misrepresentations.
No other correct information was provided or disclosed by CalPERS before contracting. (In re First American Home Buyers Protection Corporation Class Action Litigation (S.D. Cal. 2016) 313 F.R.D. 578, 604-605.) The representations and reliance are common. (Vasquez, at 814-815; see also Occidental Land, at 362-363 [misrepresentations contained in public report which each purchaser was obliged to read]; Wilner v. Sunset Life Ins. Co. (2000) 78 CA4th 952, 962 [misrepresentations to life insurance purchasers always the same].)
Plaintiffs’ actions were reasonable. All of Plaintiffs’ acts were reasonable and consis-tent with reliance on CalPERS and the promise of increases. Some mortgaged their homes, others rolled over their 457 accounts, and others planned financially and relied on increases. In Vasquez, justifiable reliance may be established on a common basis. (Occidental Land, at 363.)
Reliance is presumed and burden shifts to CalPERS. The presumption of reliance is more than the simple shifting of the burden of proof to facilitate the determination of a particular action. (Evid. Code, §605; Edmunds v. Valley Circle, at 1302; see also In re Tobacco II Cases (2009) 46 C4th 298, 327 [plaintiff need not demonstrate individualized reliance on specific misrepresentations to satisfy the reliance requirement]; Williams v. Gerber Products, 552 F.3d 934, 938 (9th Cir. 2008); Kumar v. Kumar v. Salov North America Corp (N.D. Cal, July 15, 2016, No. 14-CV-2411-YGR), 2016 WL 3844334, at *4.) CalPERS must show that it provided some material information to all class members that advised them of the material terms.
No information on “no refunds” provided before contracting. Before contracting, none of the class had access to all the information Plaintiffs believe they needed before investing in the military/airtime. Indeed, CalPERS’ own assessment of no refunds and other matters was withheld before contracting and only disclosed to a few after the harm was done when CalPERS sought an unlawful waiver. An inference of reliance that the adverse terms were material and not included as to the entire class would arise. (Massachusetts Mutual, at 1295.)
Class claims are manageable, no inquiry needed into individual reliance. In Occidental Land, the Supreme Court did not require each class member to separately prove justifiable reliance, especially about material facts (Occidental Land, Inc. v. Sup. Ct., In and For County of Orange (1975) 52 CA3d 373, vacated sub nom; Occidental Land, supra.)
This case involves a significant investment of tens of thousands of dollars each of Plaintiffs’ retirement funds that was transacted by a series of misleading form contracts. Each member was required to sign the form Election contract. (Occidental Land, at 361.) Reliance is presumed. (Mirkin v. Wasserman, at 1095.)
- Legal and Factual Mistake
Mistake may be either of fact or law. (Civ. Code, §1576.) Plaintiffs and class members satisfy all parts of the mistake of fact and mistake of law statute. At the time of “contracting,” safety members were not informed and did not consent to material terms about any risk, loss, no refunds, transfer, or offset of their money. Each class member made a legal and factual mistake regarding a basic assumption upon which they considered the investment. (Ibid.) The mistake has a material effect upon the agreed exchange of performances that is adverse to class members. (Ibid.) As CalPERS was the fiduciary hiding terms to its benefit, class members did not bear the risk of the mistake. (Ibid.) The effect of the mistake is such that enforcement of the contract would be unconscionable. (Ibid.) As evidenced by its later “waiver” and other conduct, CalPERS knew at the time of the original contracting that each class member made a mistake of law, but CalPERS failed to correct it. (Jensen, 81-87.)
Factually, CalPERS represented that it lawfully could provide increases without a risk of loss of their money. Class members were entitled to rely on CalPERS disclosing the material terms. Class members invested for “present value” or risk-free increases without a risk of loss of their money. Class members suffered a mistake of fact not caused by their neglect of a legal duty. Because of CalPERS’ failure to disclose and it being the sole source of official information, each class member was unconscious, ignorant or forgetful of a fact past or present, material to the contract. Each class member relied or was presumed to rely on CalPERS’ representations of the present existence of the increases and no risk of loss which are material to the contract, but the increases and no risk of loss do not exist, or did not exist. (Civ. Code, §1577.)
Since at the latest 1991, CalPERS knew or should have known that it would not provide increases if a safety officer retired with IDR. CalPERS knew or should have known that each safety member under age 50 that invested was uninformed, factually and legally mistakenly about any risk, loss, transfer, or offset of their money. CalPERS failed to disclose before they contracted, and remained silent for those who invested lump sums, but forced waiver of refunds on others in the guise of suspending installment payments after injury.
Plaintiffs satisfy both prongs of the mistake of law statute. (1) CalPERS and Plaintiffs misapprehension of the law, all supposing that they knew and understood the investment would provide increases and refunds (or CalPERS’ failure to disclose no increases and no refunds on IDR), and CalPERS and Plaintiffs making substantially the same mistake as to the law; or, (2) a misapprehension of the law by class members that there were refunds on IDR and increases, and that CalPERS was aware of the Plaintiffs misapprehension at the time of contracting, but which CalPERS did not rectify before contracting. (Civ. Code, §1578.)
- Class Members Are Entitled to Rescission
Lack of Consideration. Plaintiffs were already entitled to a 50% IDR before contracting. They contracted for increases in their benefit, but received no increase and no benefit under the contracts. The contracts provide no good consideration (Civ. Code, §1605.) Plaintiffs can rescind as they receive no consideration, the consideration provided in exchange by CalPERS fails through no fault of Plaintiffs, or the consideration becomes entirely void. (Civ. Code, §1689.)
Since service credit is not counted in IDR, the service credit purchase becomes entirely void. CalPERS’ consideration also fails as each class member fails to receive a commensurate increase for their investment. Some receive no increase at all. Instead, they receive only the 50% IDR that they were already entitled to before contracting. Others receive only partial increase and partial rescission is allowed. To say that they received “service credit” of no value to them also means that they received no value or consideration. (Civ. Code, §§1688-1689.)
Unconscionability. The loss and no refunds terms fall outside Plaintiffs’ reasonable expectations, are unduly oppressive, and “unconscionable.” (Therma-Coustics Mfg., Inc. v. Borden, Inc. (1985) 167 CA3d 282.) CalPERS is a fiduciary, sole information source, sole administrator, and there are no market substitutes. (Harper v. Ultimo (2003) 113 CA4th 1402.)
Interest, costs, fees, and consequential damages. Rescission restores the parties to their former positions. (Imperial Cas. & Indem. Co. v. Sogomonian (1988) 198 CA3d 169.) The Court may including interest and attorney fees, to afford Plaintiffs complete relief, as CalPERS is at fault. (Civ. Code, §1692; Runyan v. Pacific Air Industries, Inc. (1970) 2 C3d 304.)
Defenses to rescission are limited. CalPERS has limited defenses to rescission. The trial plan allows CalPERS to present its defenses. (See Duran v. U.S. BankNat. Assn. (2014) 59 C4th 1.) Class wide, CalPERS could defend the adequacy of its disclosure, or argue that the PERL controls even without disclosure or consent. CalPERS may assert individual defenses. But the motive for rescission is irrelevant and cannot be a defense. Rescission is a legal right, not an equitable claim, and there is no equitable balancing. See accompanying trial management plan.
- Delayed Accrual: Mistake and Rescission In a Fiduciary Relationship
Plaintiffs assert delayed accrual and discovery from reliance, failure to disclose, mistake, omission, misrepresentation, adversity, rescission, et al in a fiduciary context. (See United States Liability Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 C3d 586, 598; Hobart v. Hobart Estate Co. (1985) 26 C2d 412, 439-440; April Enterprises, Inc. v. KTTV (1983) 147 CA3d 805.)
- ALL REQUIREMENTS FOR CLASS CERTIFICATION ARE MET
Common legal and factual issues predominant over any individual issues. CalPERS’ breaches, omissions, and acts involve the same or similar standardized contracts distributed across the class and common legal issues that affect numerous similarly situated parties who are impracticable to bring to court. (Code Civ. Proc., §382; Richmond v. Dart, supra, at 470; see also Daar v. Yellow Cab Co. (1967) 67 C2d 695, 704. Common questions of law predominant and involve (1) the scope of CalPERS fiduciary duties, (2) the adequacy of the contract language, (3) whether CalPERS breached its fiduciary duties, (4) was there a legal mistake, including about “no refunds”, (5) the purpose of the contract; (6), whether “no refunds” was a term in the original contract, (7) what is “present value”, (8) whether Plaintiffs received consideration, (9) is CalPERS required to gain consent of material terms, (10) does the existence of a waiver of no refunds after the fact indicate that CalPERS knew the original contract did not contain the term “no refunds” and (11) other legal questions. The common questions of fact predominate and include (1) did Plaintiffs sign the contract; (2) retire on IDR; (3) receive an increase; and (4) other facts, most of which are not in dispute or resolved by documents. Any individual issues are negligible or easily managed at trial. See concurrent trial management plan.
The proposed class representatives have claims typical of the class. CalPERS’ defenses to the class representatives’ rescission claims are typical of the class. The class representatives are sufficiently motivated and without conflicts that each can adequately represent the class. (Richmond v. Dart, supra, at 470.) (See generally, Declarations of Named Plaintiffs.)
The proposed class is ascertainable. Class members can be ascertained readily from CalPERS’ records using the class definition in the Third Amended Complaint. (Miller v. Woods (1983) 148 Cal.App.3d 862, 873.) In an initial search of safety officers who retired since 2003 with IDR, CalPERS identified at least 177 with total losses and 70 with partial losses. The class includes safety members from 1991 to the present who invested in military, airtime, or other service credit on CalPERS’ forms. (See Trial Management Plan, documents lodged under seal.) Class members are readily identified without unreasonable expense or time by reference to official records. (Rose v. City of Hayward (1981) 126 CA3d 926, 932.) The class is sufficiently numerous that it would be impracticable to join them all. (Rose v. City of Haywood, at 934.)
Common issues of law and fact are central and predominate over individual issues. “Common questions” around contract formation predominate. (Collins v. Rocha (1972) 7 C3d 232, 238.) CalPERS expressly knew or should have known the specific significant risks for safety members across the class, but did not add a sufficient warning, and then took advantage.
Few or no individual issues about liability. The language of the standardized form contracts are the same or similar to all and the standardized contracts do not disclose the risk of loss, no refunds, the risk of no increases, the IDR offset, etc. No inquiry into motive or any act or non-act of Plaintiffs regarding rescission is relevant. There are few or no relevant factual issues that would be individualized regarding CalPERS’ liability. (See trial plan and Duran.)
Few or no individual issues re CalPERS’ defenses. Since the contract failed at the time of contracting, each safety member is entitled to rescind, with restitution, and to be made whole without regard to what happened after the contract. After contracting, few or no issues or events are relevant. (See trial plan and Duran.) Motive is irrelevant. No equitable balancing is required.
Named Plaintiffs’ claims are typical of those of the putative class members. Each named Plaintiff’s interest and claim is similar to those of the other class members. (See Daniels v. Centennial Group, Inc. (1993) 16 CA4th 467, 473; B.W.I. Custom Kitchen v. Owens-Illinois (1987) 191 CA3d 1341, 1347; see also Declarations, trial management plan and Duran.)
Each proposed class representative (1) is a CalPERS member; (2) was a safety officer; (3) had money on deposit with CalPERS; (4) was entitled to IDR before contracting; (5) requested information from CalPERS; (6) received standardized form information from CalPERS; (7) signed the CalPERS material; (8) relied or was presumed to rely on CalPERS and the written CalPERS information; (9) invested money with CalPERS; (10) was injured on the job; (11) retired with IDR; (12) lost some or all of the value of the money invested; (13) receives no commensurate advantage; (14) receives a check with 50% IDR; (15) seeks rescission and restitution of their investment; and (16) seeks to be whole for their losses, interest from deposit, costs, fees, or other detriments. (See generally Declarations of Named Plaintiffs.)
Plaintiffs will fairly and adequately represent the class. Each named Plaintiff does “not have a conflict of interest antagonistic to the other class members. (Ibid.; McGhee v. Bank of Am. (1976) 60 CA3d 442, 450.) Plaintiff’s attorney is experienced in pension related class action litigation, and qualified to prosecute this action. (Jensen, 88-92.)
 The waiver itself is misleading. It was supposedly a request to suspend future installments, but the waiver language also sought something very different, an agreement to deny “refunds” of prior paid money.
 A fiduciary’s failure to share material fact constitutes “constructive fraud,” and eliminates the need to prove actual fraudulent intent. (Michel v. Palos Verdes Network Group, Inc.(2007) 156 CA4th 756, 762.)
 CalPERS has relied on dicta in Sotelo v. MediaNews Group, Inc., a de minimus wage and hour case where no business records proved class membership. (See Aguirre v. Amscan Holdings, Inc. (2015) 234 CA4th 1290, 1304.) In dicta in Sotelo, the court conjectured that reliance could not be presumed on a class-wide basis absent a showing that class members actually read their contracts. Sotelo’s dicta is inconsistent with Mirkin, Vasquez, Occidental Title and other law. Plaintiffs herein could not take the next steps without reading prior documents.
 CalPERS is a fiduciary. It is unreasonable to expect Plaintiffs to continually monitor whether CalPERS is performing some act inconsistent with terms in a contract. …the discovery rule applies to breaches which are committed in secret and, and where the harm will not be reasonably discoverable until a future time.” (April Enterprises, Inc. v. KTTV, supra, at 832.)