Judge Daniel S. Murphy, Case Number: 23STCV14020, Date: 2023-08-21 Tentative Ruling

On June 16, 2023, Plaintiff Alma Rosa Hernandez filed this action against Defendants County of Los Angeles (erroneously sued as Los Angeles County High Desert Regional Health Center) and SEIU Local 721. The complaint was labeled as one for discrimination and violation of labor/union rights. However, the complaint contained no factual allegations. Instead, the complaint merely attached prior complaints filed with the Civil Rights Department and Labor Commissioner’s Office. On August 21, 2023, the Court sustained the County’s demurrer with leave to amend.

Plaintiff filed her First Amended Complaint on September 8, 2023. On November 15, 2023, the Court sustained the County’s demurrer to the FAC with leave to amend, finding that the FAC contained no facts beyond conclusory statements that Plaintiff was discriminated against. On December 14, 2023, Plaintiff filed the operative Second Amended Complaint. The SAC alleges that Plaintiff was suspended for 5 days without pay for inappropriate behavior towards coworkers. Plaintiff also alleges that she asked for union representation but was denied. The complaint concludes with the statement: “I claim employment discrimination on the characteristics of race, and color, national origin and reverse age discrimination.”

On January 12, 2024, Defendant SEIU Local 721 filed the instant demurrer against the SAC.¹ Plaintiff has not filed an opposition.

A demurrer for sufficiency tests whether a pleading states a cause of action or defense. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the pleading, as it stands, unconnected with extraneous matters, states a cause of action or defense. (Hahn, supra, 147 Cal.App.4th at 747.)

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Nava Decl.)

¹Defendant refers to the first amended complaint throughout its demurrer, but its argument makes clear that it is attacking the second amended complaint.

The SAC does not contain sufficient facts to state a cause of action against the union. The SAC is labeled as one for discrimination and “labor/union rights violated.” It is unclear which union rights Plaintiff claims were violated or how. To the extent the discrimination claims are aimed at the union, it is also unclear how the union discriminated against Plaintiff. The complaint implies that Plaintiff was suspended for discriminatory reasons, but that is attributed to her employer (the County), not the union.

To the extent Plaintiff is claiming that the union failed to fairly represent her, this would constitute an unfair labor practice under the Meyers-Milias-Brown Act (MMBA). (Paulsen v. Local No. 856 of Internat. Brotherhood of Teamsters (2011) 193 Cal.App.4th 823, 831). “The administrative agency authorized to adjudicate unfair labor practice charges under the MMBA is California’s Public Employment Relations Board (PERB)” (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 601), or in the case of Los Angeles County, the Employee Relations Commission (ERCOM) (Gov. Code, § 3509(d)). “[E]mployees must exhaust their administrative remedies under the MMBA by applying to PERB [or ERCOM] for relief before they can ask a court to intervene in a labor dispute.” (City of San Jose, supra, 49 Cal.4th at p. 601.) The statute of limitations for bringing an unfair practice charge under the MMBA is six months. (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1091.)

Here, Plaintiff does not allege that she exhausted her administrative remedies under the MMBA or that she did so within six months. Plaintiff has not filed an opposition and therefore fails to explain how she can cure this defect.