Judge: Malcolm Mackey, Case: 22STCV26690, Date: 2023-02-02 Tentative Ruling
Case Number: 22STCV26690 Hearing Date: February 2, 2023 Dept: 55
RIEUX
v. CITY OF LOS ANGELES 22STCV26690
Hearing Date: 2/2/23,
Dept. 55
#6: DEMURRER TO PLAINTIFF DJEON RIEUX’S COMPLAINT.
Notice: Okay
Opposition
MP:
Defendant CITY OF L.A.
RP:
Plaintiff
Summary
On 8/17/22, Plaintiff DJEON RIEUX filed a Complaint alleging:
6. In 2019, Plaintiff
applied for a position on the LAFD. He completed all preliminary screenings and
background checks and was given a job offer on or about December 13, 2019.
7. Presumably due to the
COVID pandemic, Plaintiff’s start date at the LAFD academy was delayed. In or
about January 2021, Plaintiff was informed that he was eligible to begin the
LAFD academy class scheduled to begin in July 2021. In or about April 2021,
LAFD confirmed that Plaintiff was accepted to the July 2021 Fire Academy class and
informed him that he must appear in May 2021 to be fitted for personal
protective gear and to conduct Live Scan fingerprinting. Mr. Rieux terminated
his employment with the Atlanta City Fire Department and moved to California in
preparation for the LAFD academy.
8. Plaintiff is informed
and believed, and based thereon alleges, that LAFD received Plaintiff’s Live
Scan results on or about May 27, 2021. Plaintiff was sworn in as an LAFD
recruit on or about June 22, 2021. On or about June 28, 2021, Plaintiff
received a letter from the LAFD stating it “is rescinding the Conditional Job
Offer for Firefighter as a result of recent background developments.” The
letter did not contain: (A) a notice of any disqualifying conviction or
convictions that formed the basis for the preliminary decision to rescind the
offer; (B) a copy of any conviction history report; or (C) an explanation of
Plaintiff’s right to respond to the notice before that decision becomes final
and the deadline by which to respond.
9. Plaintiff has never
been convicted of a crime.
(Complaint, ¶¶ 6 – 9.)
The Complaint’s causes of action are:
1. VIOLATION OF BAN THE
BOX LAW [LABOR CODE § 432.7];
2. VIOLATION OF FAIR
EMPLOYMENT AND HOUSING ACT [GOV. CODE § 12952];
3. FAILURE TO MAKE AVAILABLE
PERSONNEL AND PAYROLL FILES [LABOR CODE §§ 226, 1198.5].
MP
Positions
Moving party requests an order sustaining a demurrer
to Plaintiff’s Third Cause of Action, on grounds including the following:
·
Plaintiff was never employed or paid by the
City, as statutorily required.
E.g., Brutsch v. City of Los
Angeles, (1992) 3 Cal. App. 4th 354, 359 (employers may choose to provide peace
officer applicant/employee with the substance of the interviewers’ comments in
summary form without identifying the names of the interviewers).
·
Nowhere in Plaintiff’s Government Claim
No. C22-04433 does Plaintiff make a claim for the City’s alleged failure to
produce an itemized wage statement or personnel records.
·
Plaintiff cannot establish jurisdiction
for this cause of action, because Labor Code § 226 does not apply to public
employers. (California Correctional Peace Officers' Assn. v. State of
California, (2010) 188 Cal. App. 4th 646.)
RP
Positions
Opposing party advocates overruling, or leave to
amend, for reasons including the following:
·
The clear allegation in the complaint is
that Plaintiff became an employee no later than June 22, 2021, and that
Defendant sent a letter claiming to rescind the offer after he was sworn in. Any doubts about whether Plaintiff was hired
can be resolved by reviewing the video of the swearing in ceremony, which
Defendant refers to as “Recruit Orientation.”
·
An employee is “every person in the
service of an employer under any appointment or contract of hire or
apprenticeship, express or implied, oral or written, whether lawfully or
unlawfully employed.” (Lab. Code, § 3351).
·
Plaintiff was sworn in as a Recruit
Firefighter on June 22, 2021, and terminated six days later. Plaintiff
therefore has the right to compel Defendant to produce his personnel file. Lab. C.
§ 1198.5.
·
Plaintiff’s Third Cause of Action seeks
injunctive relief compelling Defendant to comply with Labor Code Section
1198.5, and is therefore not subject to the Tort Claims Act. Reference to the $750 penalty is immaterial
surplusage.
·
The demurrer was filed late.
Tentative
Ruling
The demurrer is overruled. Twenty days to answer.
Public
Employee
As a matter of procedure, the demurrer cannot succeed
unless all alleged bases fail to state a claim.
Demurrers do not lie as to only parts of causes of action, where
some valid claim is alleged. Poizner
v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119
(“A demurrer must dispose of an entire cause of action to be sustained.”); Kong v. City of Hawaiian Gardens Redev.
Agency (2003) 108 Cal.App.4th 1028, 1046; Caliber Bodyworks, Inc. v. Sup. Ct.
(2005) 134 Cal.App.4th 365, 384-85, disapproved
on other grounds by ZB, N.A. v.
Sup.Ct. (2019) 8 Cal. 5th 175, 196 n. 8.
A demurrer does not lie as to only a claim for relief (e.g., penalties)
where some valid claim is alleged. E.g., Caliber Bodyworks, Inc. v. Sup.
Ct. (2005) 134 Cal. App. 4th 365, 384,
disapproved on other grounds by
ZB, N.A. v. Sup.Ct. (2019) 8 Cal. 5th 175, 196 n. 8.
The instant Complaint cites various statutory
sections (e.g., Complaint, ¶¶ 22 – 26). Thus, a holding that Labor Code Section 226 in
inapposite to government, would not dispose of the entire cause of
action.
Independent research reveals that California law is
debatably unrefined as to whether Government Code Section 226 ever applies to
public entities. Defendant’s demurrer
correctly notes that governmental agencies are not included within the statute,
absent express words to the contrary. California
Corr. Peace Officers' Assn. v. State of California (2010) 188 Cal. App. 4th
646, 653. Assuming, arguendo,
that Section 226 is inapposite to the City, under such general reasoning, there
are other alleged sections to analyze.
The definition of “employee” under the Labor Code potentially
implicates a very complex array of definitions.
There are several possible definitions of employees, depending on the
statutory section and employment category.
The factors for determining an employer-employee relationship for
purposes of the wage provisions in the California Labor Code wage statutes come
from the wage order of the Industrial Welfare Commission that governs the
subject industry, which may be to exercise of control over wages, hours or
working conditions; to suffer or permit to work; or to engage and create a
common-law employment relationship. Futrell v. Payday Cal., Inc. (2010)
190 Cal.App.4th 1419, 1429, 1434. As to
some Labor Code Provisions, including Section 1194 (re paying overtime and
minimum wages), the definitions of “employment” (including an entity or
individual that “‘employs or exercises control over the wages, hours, or
working conditions of any person’”), are based upon common law, and the
Industrial Welfare Commission’s wage-orders. Martinez v. Combs (2010) 49
Cal.4th 35, 65-67. See also Reynolds
v. Bement (2005) 36 Cal. 4th 1075, 1085, 1088 (“the IWC since 1947 has
defined ‘employer’ to include an individual who ‘exercises control over the
wages, hours, or working conditions of any person.’” (quoting Wage Order No. 9,
subd. 2(F)), abrogated on other grounds by Martinez v. Combs (2010) 49 Cal.4th
35, 50. “[T]he common law test for
employment applies to define ‘employee’ in Labor Code section 2802.” Arnold v. Mutual of Omaha Ins. Co.
(2011) 202 Cal.App.4th 580, 588 (Section 2802 requires employers to indemnify
employees for all necessary expenditures or losses incurred in discharge of
duties).
State statutes aimed at protecting the privacy of
employment-related information while providing employees and job applicants
with access to their work records encompass:
• Restrictions on the use
and disclosure of employee social security numbers (Lab.C. § 226; ¶ 7:15);
• Employees' right to
inspect and receive copies of their employment records (Lab.C. § 226; ¶ 7:25
ff.);
• Employees' right to
inspect and receive copies of their personnel records (Lab.C. § 1198.5; ¶ 7:50
ff.);
• Restrictions on
inquiries into and utilization of an employee's or job applicant's criminal
history (Lab.C. §§ 432.7 & 432.8; ¶ 7:60 ff.); and
• Restrictions on
workplace surveillance. [Lab.C. § 435; ¶ 7:620 ff.]
In addition, California's
Fair Chance Act (Gov.C. § 12952) limits an employer's use of and inquiry into a
job applicant's criminal conviction history (¶ 7:220 ff.), and the
Investigative Consumer Reporting Agency Act (Civ.C. § 1786 et seq.) requires
consumer reporting agencies hired by employers to exercise fairness,
impartiality and respect for a prospective employee's privacy rights when
executing their responsibilities (¶ 7:275 ff.).
Cal. Prac. Guide Privacy Law, ¶ 7:1. [Emphasis added.]
Here, at a minimum, the Third Cause of Action clearly
alleges the applicant’s entitlement to signed documents relating to
obtaining the employment. “If an
employee or applicant signs any instrument relating to the obtaining or
holding of employment, he shall be given a copy of the instrument upon request.” Cal. Lab. Code § 432 [Emphasis added.]
Further, Labor Code Section 1198.5, referencing
employees’ personnel records, has been somewhat unclearly analyzed in
connection with an applications in the selection of deputy sheriffs. See
Johnson v. Winter (1982) 127 Cal. App. 3d 435, 439–40 (“We are concerned that similar to personnel
files, an applicant's investigation file contains an assortment of
information, only some of which must be protected.2 (Gov.Code, s
31011; Lab.Code, s 1198.5….”). [Emphasis
added.]
However, cited Labor Code Section 3351 distinguishably
applies to Workers Compensation, which is not in issue in the subject
Complaint. See, e.g., Lab.
C. §§ 3201 (Div. 4 is about workers’
compensation), 3350 (employee definition
applies to this Division).
Government
Claim
No government claim was required as to the Third Cause
of Action.
Alternatively, Plaintiff’s attorney’s letter
constitutes substantial compliance with government claim requirements, by
referencing the failure to produce requested personnel information, as follows:
(Defendant’s
request for judicial notice, ex. 1, penultimate page).
Specifically, the Complaint makes clear that amounts
sought under the Complaint’s Third Cause of Action are only incidental to the
main relief of an injunction mandating Defendant to produce personnel
records (e.g., Complaint, ¶ 30 (“Defendants failed to produce Plaintiff’s
entire personnel or payroll files. Plaintiffs therefore seeks injunctive relief
ordering Defendants to comply with Labor Code §§ 226 and 1198.5, and seeks to
recover penalties of at least $750.00, plus reasonable attorney’s fees and
costs.”)). The penalties are a nominal
amount and the requests attorney’s fees and costs are compensation for
obtaining the overriding goal of production of the records).
“ ‘[T]he claims filing requirement remains applicable
to actions in which money damages are not incidental or ancillary to any
specific relief that is also sought, but the primary purpose of the action.’
” Lozada v. City and County of San
Francisco (2006) 145 Cal.App.4th 1139, 1167, 1168 (government claim requirement applied to
complaint for damages that were not incidental to his claims for injunctive and
declaratory relief, but the focus). Accord
Sparks v. Kern County Bd. of
Supervisors (2009) 173 Cal.App.4th 794, 799. The
alleged penalty is incidental, for deterrence purposes. Although “civil penalties are punitive in
nature in that they are intended to deter persons” from engaging in prohibited
conduct, they are not barred by Section 818, where they are not simply and
solely punitive, but also are to compensate people. San Francisco Civil Service Assoc. v. Sup.
Ct. of Marin County (1976) 16 Cal. 3d 46, 50.
Procedurally, causes of
action are vulnerable to demurrers where the alleged factual basis for recovery
is not fairly reflected in the written claim.
Stockett v. Assoc. of Cal. Water Agencies Joint Powers Ins. Auth.
(2004) 34 Cal. 4th 441, 447. A material
variance between a government claim and a complaint based on a different set of
facts from those set out in the claim, is a ground to bar a claim, and to
sustain a demurrer, unless the allegations are additions of details or
elaborations on the facts and fairly included within the facts in the
claim. Stevenson v. San Francisco
Housing Authority (1994) 24 Cal. App. 4th 269, 275-78. Government Code Section 910 prescribes the
information that a government claim must contain, which includes the date,
place and circumstances of the occurrence or transaction giving rise to the
claim, a description of the injury, damage or loss, and names of employees
causing the alleged injury, if known, so as to give notice sufficient for the
entity to investigate and evaluate the claim.
Stockett v. Association of Cal. Water Agencies Joint Powers Ins.
Auth. (2004) 34 Cal. 4th 441,
446; Blair v. Sup. Ct. (1990) 218
Cal. App. 3d 221, 224-25. “[A] claim
under Government Code section 910 is sufficient if (1) there is ‘some
compliance with all of the statutory requirements’; and (2) the claim discloses
sufficient information to enable the public entity adequately to investigate
the merits of the claim so as to settle the claim, if appropriate.” County of L. A. v. Sup. Ct. (2008) 159
Cal. App. 4th 353, 360. Government
claims are sufficient in content where they provide sufficient information to
enable public entities to investigate adequately, and are not required to
identify causes of action, or to contain the detail required in pleading. Kempton v. City of L.A. (2008) 165
Cal.App.4th 1344, 1350.
Moreover, the Complaint,
paragraph 10, already alleged FEHA exhaustion, as to which Government Claims
are not required. Actions under the Fair
Employment and Housing Act are not subject to claim-presentation requirements
of the Tort Claims Act, where plaintiffs exhausted administrative
remedies. Murray v. Oceanside Unified
School Dist. (2000) 79 Cal.App.4th 1338, 1360; Eureka Teacher's Assn. v. Board of
Education (1988) 202 Cal.App.3d 469, 475;
Gatto v. County of Sonoma (2002) 98 Cal. App. 4th 744, 764; Lozada
v. City and County of S. F. (2006) 145 Cal. App. 4th 1139, 1164 (“FEHA
claims were not subject to the claim presentation requirements of the
Government Claims Act.”); Williams v.
Housing Authority of L. A. (2004) 121 Cal. App. 4th 708, 729 (“actions
under the FEHA are not subject to the claim presentation requirement of the
Tort Claims Act.”); Bates v.
Franchise Tax Bd. (2004) 124 Cal. App. 4th 367, 383 (non-statutory
exceptions to Tort Claim filing have been allowed where the claim was statutory
scheme involving a “functionally equivalent” claim process); TrafficSchoolOnline, Inc. v. Clarke
(2003) 112 Cal.App.4th 736, 742 (dictum
that, "the Legislature intended that a Fair Employment and Housing Act
cause of action against a public entity, which is subject to a pre-lawsuit
administrative complaint procedure, is not subject to the general requirements
of the Tort Claims Act.").
Untimely
Demurrer
The Court exercises its discretion to reach the merits,
to assist in resolving issues in this case.
Judges have discretion as to whether to consider or
strike an untimely demurrer or pleading.
McAllister v. County of Monterey (2007) 147 Cal. App. 4th 253,
281; Tuck v. Thuesen(1970) 10
Cal. App. 3d 193, 196, disapproved on
other grounds by Neel v. Magana, Olney, Levy, Cathcart & Gelfand
(1971) 6 Cal. 3d 176.
Finally, although the Court’s analyses far extended
beyond what the parties have very inadequately briefed, “[i]n considering a
demurrer, the court is not required to ignore controlling law merely because
the plaintiff does not rely on it.” Dey
v. Continental Central Credit (2008) 170 Cal. App. 4th 721, 730.