Judge Randolph M. Hammock, Case Number: BC635349, Date: 2023-09-05 Tentative Ruling

This court granted Defendant’s motion for summary adjudication on all of Plaintiff’s Fair Employment and Housing Act (FEHA) claims, except for his claims LAUSD was motivated by retaliation in denying him the Personnel Director position, his declaratory and injunctive relief cause of action, and his failure-to-prevent cause of action. As to the two causes of action alleging violations of Labor Code section 1197.5, this court treated the summary judgment motion as one for judgment on the pleadings and granted it without leave to amend. The declaratory and injunctive relief cause of action were also adjudicated against Melendez.

The matter came for hearing on September 5, 2023. Following oral argument, the court continued the hearing to this date and allowed supplemental briefing on the limited issue of whether Defendant is estopped from raising the Government Claims Act based on the parties’ stipulation. The court has read and considered Defendant’s supplemental brief of 09/12/2023, and Plaintiff’s supplemental brief of 09/18/2023, and now rules as follows.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294). Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.)

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action. (Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.) Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (§ 437c(o)(2).)

Plaintiff Jesus E. Melendez worked as an assistant general counsel for LA Unified School District. Starting in 2009, Plaintiff applied for four promotional positions. He was not selected for any of the positions. Plaintiff filed this action alleging he was denied the promotions due to his age and his Mexican and/or Latino origin; and in retaliation for a Department of Fair Employment and Housing (DFEH) complaint he had filed in 2003 and correspondence he had sent in 2008 to LAUSD’s General Counsel complaining about the budgetary lay-off of a Latina attorney. Plaintiff also alleged a violation of the Labor Code for being paid less than non-Latino attorneys who performed the same work. His Second Amended Complaint alleged causes of action for (1) FEHA Race/National Origin Discrimination, (2) FEHA Age Discrimination, (3) FEHA Disparate Pay, (4) FEHA Retaliation, (5) Failure to Prevent Discrimination, (6) Declaratory and Injunctive Relief, (7) Unequal Pay in Violation of California Labor Code Section 1197.5, and (8) Retaliation in Violation of Labor Code section 1197.5.

This court granted Defendant’s motion for summary adjudication on all of Melendez’s Fair Employment and Housing Act (FEHA) claims, except for his claims LAUSD was motivated by retaliation in denying him the Personnel Director position, his declaratory and injunctive relief cause of action, and his failure-to-prevent cause of action. As to the two causes of action alleging violations of Labor Code section 1197.5, this court treated the summary judgment motion as one for judgment on the pleadings and granted it without leave to amend. The declaratory and injunctive relief cause of action were also adjudicated against Plaintiff.

Plaintiff “who is of Mexican origin and Hispanic/Latino ethnicity,” alleges he “has received and continues to receive lower pay than non-Mexican, non-Hispanic/Latino White LAUSD employees despite performing the same or substantially similar work when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” (TAC ¶ 68.)

Plaintiff alleges “since around August 2011 and continuing through the present, [he] has been performing work that is at least substantially similar to the work of non-Mexican, non-Latino/Hispanic James Hunt, who is White, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” (Id. ¶ 21(a).) Both Plaintiff and Hunt are “attorney[s] in LAUSD’s Office of General Counsel responsible for overseeing the defense of LAUSD in litigation.” (Id.) “Around August 2011, Mr. Hunt was promoted to Associate General Counsel 1,” and received an annual salary increase worth “tens of thousands of dollars more than Mr. Melendez’s annual salary.” (Id.) Plaintiff alleges, however, that he “continues to perform work that is at least substantially similar to the work performed by Mr. Hunt.” (Id.) Indeed, Plaintiff alleges he “oversees all the highest exposure cases at LAUSD” whereas Mr. Hunt “oversees only the lowest exposure cases.” (Id. ¶ 21(b).) Plaintiff alleges he also oversees a “greater number of cases” than Hunt, and that he “supervises many more attorneys than Mr. Hunt and performs a broader range of responsibilities.” (Id. ¶ 21(c),(d).) Plaintiff alleges he joined LAUSA 19 years before Hunt did. (Id. ¶ 21(e).)

Plaintiff alleges the General Counsel repeatedly rejected “Plaintiff’s request that the Office of General Counsel provide Plaintiff with an identical, similar, or comparable study of Plaintiff’s work duties and responsibilities that had been provided to another attorney (a white male) and which study resulted in that white male attorney receiving higher pay for or during a certain period, as well as by LAUSD’s refusal to adjust Mr. Melendez’s pay even after he informed LAUSD that he was paid less than Mr. Hunt despite performing substantially similar work.” (Id. ¶ 69.)

Plaintiff concludes that he has suffered damages, including “loss of salary and other valuable employment benefits including but not limited to future pension payments” and “other consequential damages, including damages for shame, humiliation, mental anguish and emotional distress caused by the conduct of Defendants.” (Id. ¶ 70.)

Generally, no suit for money or damages may be brought against a government entity (or against a government employee acting in the scope of employment) unless and until a timely claim has been presented pursuant to the Government Claims Act (Gov.Code § 810 et seq.) and either acted upon or deemed rejected by the passage of time. (Gov.Code §§ 945.4, 950.2, 912.4.) [FN 1] “Ordinarily, filing a claim with a public entity pursuant to the Claims Act is a jurisdictional element of any cause of action for damages against the public entity that must be satisfied in addition to the exhaustion of any administrative remedies.” (Cornejo v. Lightbourne (2013) 220 Cal. App. 4th 932, 938 [internal citation omitted].)

No published authority has addressed the presentation requirements in regard to Labor Code section 1197.5. However, courts have required that other claims brought under the Labor Code comply with the presentation requirements. (See Le Mere v. Los Angeles Unified Sch. Dist. (2019) 35 Cal. App. 5th 237, 245.)

The Act excludes from the claim presentation requirements “[c]laims by public employees for fees, salaries, wages, mileage, or other expenses and allowances.” (Gov. Code § 905(c).) However, claims “against a local public entity for money or damages which are excepted by Section 905…and which are not governed by any other statutes or regulations expressly relating thereto, shall be governed by the procedure prescribed in any charter, ordinance, or regulation adopted by the local public entity.” (§ 935(a).) “The procedure so prescribed may include a requirement that a claim be presented and acted upon as a prerequisite to suit thereon.” (§ 935(b).) Defendant contends it has implemented Rules that require that such claims be presented and acted upon in accordance with the Act.

In opposition, Plaintiff argues that “no case holds that that Government Claims Act (“GCA”) even applies to claims of discrimination under Labor Code § 1197.5.” (Opp. 12: 10-11.) He continues that because he brings his claim only for “the balance of the wages,” the claim is excluded from presentation under section 905(c). Recognizing that the entity can adopt its own presentation requirements under section 935(a), Plaintiff contends that the District’s governing rules requiring claim presentation are not a “charter, ordinance, or regulation.”

First, Plaintiff’s claim under section 1197.5, if successful, allows Plaintiff to recover “the balance of the wages, including interest thereon, and an equal amount as liquidated damages, together with the costs of the suit and reasonable attorney’s fees.” (Labor Code § 1197.5(b) [emphasis added].) Absent authority holding otherwise, this court construes the cause of action as one for money or damages subject to the Government Code Claim requirements. This is consistent with authorities requiring a claim for complaints under the Labor Code. (See Le Mere, supra, 35 Cal. App. 5th at 245.)

Second, even assuming that Plaintiff’s cause of action meets the exception under section 905(c) as a claim for “fees, salaries, wages, mileage, or other expenses and allowances,” Defendant has demonstrated that it enacted its own Rule consistent with section 935(a) that require claim presentation. LA Unified “Rules of the Board of Education,” Rule 1206 is entitled “Claims for Money or Damages.” (See Defendant’s RJN, Exh. S.) It provides:

Pursuant to Section 935 of the Government Code, and as a prerequisite to bringing suit against the Los Angeles Unified School District, all claims against the District for money or damages, including claims which are otherwise excepted by Section 905 of the Government Code, or for money or damages which are not governed by any other statutes or regulations expressly relating thereto, shall be presented and acted upon in accordance with Title 1, Division 3.6, Part 3, Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910), of the Government Code of California.

In the case of Ruggiero v. Los Angeles City Unified Sch. Dist. (1973) 33 Cal. App. 3d 970, 975, the Court held that Board Rule 1206 “was authorized by [section 935], was adopted pursuant to its authority and was intended by the board of education to become effective immediately upon its adoption, namely, on September 11, 1969.” Therefore, this court concludes that Defendant has implemented its own process requiring a claim in that case.

Plaintiff also contends that even if the GCA does apply, Defendant waived the claims presentation requirement “when it stipulated on October 10, 2017, that Plaintiff could allege a claim under Labor Code § 1197.5 to be heard just 22 days later, on November 1, 2017.” (Opp. 13: 2-3.) “Because the GCA provides public agencies 45 days to grant or deny a claim, see Gov. Code § 911.6, Plaintiff could not have satisfied the Claims Presentation Requirement during the 22-day period provided by the Parties’ stipulation. Nor could Plaintiff have filed a government claim after alleging a cause of action under § 1197.5 because ‘[f]iling a government claim while simultaneously attempting to prosecute a cause of action based on that claim, . . . does not satisfy the purpose of the Government Claims Act[.][‘] Le Mere, 35 Cal. App. 5th at 247.” (Opp. 13: 3-9.) Thus, Plaintiff contends the “only reasonable construction of the Parties’ stipulation” is that Defendant “waived any requirement to complete the claim presentation requirements prior to alleging the § 1197.5 claim.” (Opp. 13: 9-11.)

In reply, Defendant calls Plaintiff’s argument “preposterous,” “utterly baseless,” and “obviously” without merit. Defendant argues there is no authority that the stipulation can constitute a waiver, at least not “for the entire litigation (as opposed to merely the then-pending MSJ).” (Reply 3: 24-27.) Defendant also contends this Court “mooted the [Government Claims Act] issue for purposes of the MSJ by granting judgment on the pleadings as to the SAC’s EPA claim.” (Reply 4: 5-6.)

Following the hearing, this court invited supplemental briefing on the limited issue of whether Defendant should be “estopped” from raising a Government Claims Act defense. The court has read and considered those arguments, and focuses its attention solely on the estoppel issue, which it finds dispositive here.

In some instances, courts have held a public entity may be estopped from asserting a plaintiff’s failure to file a timely claim. “Estoppel most commonly results from misleading statements about the need for or advisability of a claim; actual fraud or the intent to mislead is not essential.” (John R. v. Oakland Unified Sch. Dist. (1989) 48 Cal. 3d 438, 445.) It “generally requires an affirmative representation or act by the public entity.” (J.M. v. Huntington Beach Union High Sch. Dist. (2017) 2 Cal. 5th 648, 657.)

On August 18, 2017, Defendant filed a motion for summary judgment or adjudication on all claims in the First Amended Complaint. On October 10, 2017, Defendant stipulated to allow Plaintiff to file a Second Amended Complaint to assert his seventh cause of action under Labor Code section 1197.5. The stipulation provided that the pending motion for summary judgment would remain on calendar, and Defendant could “submit an Amended Notice of Motion for Summary Judgment/Adjudication, an Amended Separate Statement, and any additional briefing or evidence to address Plaintiffs new cause of action in the SAC.” (10/10/17 Stipulation, ¶ 9.)

Notably, at the time the parties executed the stipulation, the motion for summary judgment was set for November 1, 2017. Because a public entity has 45-days to grant or deny an Government Code Claim application, the date to respond would have fallen after the MSJ hearing date. (See Gov. Code § 911.6(a).)

Moreover, the stipulation did not specifically address any required compliance with the Government Claims Act. There is no indication that Defendant reserved its rights to require any necessary compliance. Importantly, Defendant then failed to raise the Government Claims Act in its then-pending motion for summary judgment as a defense to Plaintiff’s section 1197.5 claim.

Here, by executing the stipulation and then failing to raise noncompliance with the Government Claims Act for nearly six years, Defendant essentially represented that no claim was necessary. Plaintiff, in turn, reasonably relied on this conduct to believe that any compliance was waived or satisfied by the stipulation and Defendant’s course of conduct that followed.

This conclusion is consistent with the purposes underlying the GCA. Among the purposes of the Government Claims Act is to permit the “early assessment [of claims] by the public entity, [which] allows its governing board to settle meritorious disputes without incurring the added cost of litigation.” (Rubenstein v. Doe No. 1 (2017) 3 Cal. 5th 903, 907–08.) It “provide[s] the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. [Citations.]” (City of Stockton v. Superior Ct. (2008) 42 Cal. 4th 730, 738.)

These purposes underlying the Act serve limited purpose where, as here, the parties are already well into litigating claims based on the same alleged discriminatory conduct. Moreover, by the very nature of the stipulation, Defendant had complete notice of the nature of the allegation.

Ultimately, “[e]quitable estoppel is a rule of fundamental fairness.” (In re Marriage of Valle (1975) 53 Cal. App. 3d 837, 840.) Based on the totality of the circumstances, fundamental fairness requires that Defendant be estopped from raising Plaintiff’s noncompliance with the Government Claims Act at this stage of the proceedings.

Next, Plaintiff argues that even if the Act applies, and even if Defendant did not waive the Act’s requirements, Plaintiff nonetheless sent a demand letter to Defendant in 2011 “providing notice that he had been denied equal pay.” (Opp. 13: 15-17.) Relatedly, Plaintiff argues that his prelitigation DFEH charges “specifically alleging that he was denied equal pay as non-Hispanic / Latino attorneys” substantially complied with the Act.

“A claim has been presented to the public entity when the public entity ‘receives a document which contains the information required by section 910 and is signed by the claimant....’ ” (Simms v. Bear Valley Cmty. Healthcare Dist. (2022) 80 Cal. App. 5th 391, 400.) The information required by section 910 includes the “date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted” and “[a] general description of the ... injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.” (§ 910, subds. (c), (d).) “A claim need not contain the detail and specificity required of a pleading, but need only fairly describe what [the] entity is alleged to have done. Moreover, [w]here there has been an attempt to comply [with the claims statute] but the compliance is defective, the test of substantial compliance controls. Substantial compliance contemplates that there is at least some compliance with all of the statutory requirements.” (Id. [internal citations omitted].)

“[C]ourts employ a test of substantial rather than strict compliance in evaluating whether a plaintiff has met the demands of the claims act. If the claim satisfies the purpose of the act without prejudice to the government, substantial compliance will be found.” (Mouchette v. Board of Education (1990) 217 Cal.App.3d 303, 311.) “[N]o more is required under the statutory scheme than the governmental entity be apprised of the claim and have an opportunity to investigate and potentially to settle the matter.” (Krainock v. Superior Court (1990) 216 Cal.App.3d 1473, 1477.) “The primary purpose of the governmental claims act is to apprise the governmental body of an imminent legal action so that the entity may investigate and evaluate the claim and, where appropriate, avoid litigation by settling meritorious claims. Thus, the act should not be allowed to become a snare for the unwary litigant if its statutory purposes have been satisfied.” (S. California Edison Co., supra, 217 Cal. App. 4th at 238.)

It is noted that Plaintiff’s 2011 demand letter was sent before the Legislature amended the Equal Pay Act to prohibit unequal pay on the basis of race or ethnicity. The same is true of Plaintiff’s DFEH complaints of 2011 and 2016. Prior to January 1, 2017, section 1197.5 did not prohibit unequal pay based on race, and so Plaintiff could not have taken any action pursuant to section 1197.5 until January 1, 2017 or later. (Stats. 2016, ch. 856, §§ 2.5, 3 [Assem. Bill No. 1676; Stats. ch. 866, §§ 1.5, 3 [Sen. Bill No. 1063].) The only action Melendez took after that time was filing his amended complaint on November 30, 2017.

Plaintiff asserts this fact is “of no consequence.” (Opp. 14: 26-27.) In support of that position, he cites only an unpublished Federal District Court case. (See Rivera v. City of Merced, No. 1:04-CV-6771-SMS, 2006 WL 3349576, at *7 (E.D. Cal. Nov. 16, 2006) [stating “the precise nature of the causes of action is not determinative; rather, it is the factual and not the legal bases that are the concern reflected in the requirements of the Tort Claims Act.”].)

As noted by Defendant, however, the California Court of Appeal has held a claim letter ineffective where the letter “predated the enactment of” the governing statute under which the plaintiffs brought a claim and the plaintiffs had “not identif[ied] any other presuit claim.” (The Kind & Compassionate v. City of Long Beach (2016) 2 Cal. App. 5th 116, 125.) Moreover, in the total absence of a claim after the enactment of section 1197.5, Plaintiff’s claim cannot be deemed “defective” in a manner that would trigger Defendant’s duty to provide written notice of any such deficiency within 20 days. (See Gov. Code § 910.8.)

Once again, this court finds for purposes of this Tentative Ruling that the defendant is equitably estopped form using the failure to comply with the Government Claims Act, as a basis for its pending motion for summary adjudication/judgment. However, the court continues to address the merits of the claim for purposes of discussion, or alternatively, in the event its conclusion on the equitable estoppel issue is incorrect.

With some exceptions, “[a]n employer shall not pay any of its employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” (Labor Code § 1197.5.) “An employee receiving less than the wage to which the employee is entitled under this section may recover in a civil action the balance of the wages, including interest thereon, and an equal amount as liquidated damages, together with the costs of the suit and reasonable attorney’s fees, notwithstanding any agreement to work for a lesser wage.” (§ 1197.7(h).)

To establish a claim under Labor Code section 1197.5, Plaintiff must prove (1) that he was paid less than the rate paid to a person of another race or ethnicity working for Defendant; (2) that Plaintiff was performing substantially similar work as the other person, considering the overall combination of skill, effort, and responsibility required; and (3) that Plaintiff was working under similar working conditions as the other person. (CACI 2740.) [FN 2]

As a defense, a defendant may offer any one of four factors to justify a pay differential that results in an apparent pay disparity based on gender, race, or ethnicity. These include “(A) A seniority system[,] (B) A merit system[,] (C) A system that measures earnings by quantity or quality of production[,] [or] (D) A bona fide factor other than” race or ethnicity. (Labor Code § 1197.5(a)(1).)

Defendant contends Plaintiff’s wage deferential is based on a reasonably applied merit system. Defendant presents evidence that LAUSD has adopted a merit system (Ed. Code §§ 45240-45320), which provides for promotional opportunities and wage levels, among other things, on the basis of merit. (SSUMF 8.) LAUSD’s Personnel Commission enforces the merit system. (SSUMF 9.) The merit system applies to all Associate GC Is such as Plaintiff. (Id.) The Classified Salary Schedule includes multiple salary “steps” through which classified employees progress based on their length of service in their classification without regard to race, national origin, or ethnicity. (SSUMF 10.) If the Personnel Commission determines an employee has performed duties outside of their class, this may result in the employee being reclassified to a different position and a change in salary. (SSUMF 15.)

At no time since January 1, 2017, has Plaintiff asked the PC for a job classification study pertaining to a classified position, nor has he asked the DCHR for a job classification study pertaining to another certificated position (SSUMF 16.) Jim Hunt, who Plaintiff uses as a comparator, has been capped at “Step 5” at all times since January 1, 2017. (SSUMF 10, 11.)

From January 1, 2017 to April 11, 2022, as an Assistant GC on the BGS team, Plaintiff “selected, oversaw, and guided outside attorneys retained by LAUSD in high level, high exposure tort litigation in state and federal court, including wrongful death and sex abuse and molestation cases; conducted triennial meetings with outside counsel to develop litigation management strategy and establish maximum case budgets; approved outside counsel billing; assisted in tracking of data for such matters; coordinated, prioritized, and scheduled legal work; provided legal advice to Risk Management; assisted in planning and developing legal policy and office procedures and processes; and provided training for paralegals. (SSUMF 18.) However, he never supervised any OGC attorneys. (Id.)

Hunt, on the other hand, “directly supervised multiple OGC attorneys at a time (including preparing their performance reviews), directly supervised the Internal Litigation Unit (ILIT) (established in 2014, pursuant to which in-house attorneys handle the lowest-risk and highest-volume (Priority 3) tort litigation, with outside counsel becoming involved if the case must be prepared for trial), and also oversaw litigation concerning overpayment of current and former LAUSD employees.” (Id. 19.) [FN 3]

Defendant contends the evidence showing that Plaintiff did not supervise any OGC attorneys, while Hunt supervised multiple OGC attorneys, is “a sufficient basis, by itself, to prove that Plaintiff’s and Hunt’s job responsibilities were not substantially similar at relevant times.” (Mtn. 9: 24-26.)

As raised by Defendant, although the federal Equal Pay Act might recognize that “[a]n employee who occasionally exercises supervisory duties has substantially greater job responsibilities than an employee who does not,” California has not recognized such a straight rule. (See Mtn. 9: 14-16 [citing 29 C.F.R. § 1620.17(b)(1).) Rather, as already noted, whether two employees perform “substantially similar work” under California law must be viewed “as a composite of skill, effort, and responsibility.” (Labor Code 1197.5(a) [emphasis added].) Thus, even if Hunt has more responsibilities in that he manages other attorneys, that fact alone is insufficient. [FN 4] The court must also consider the employees’ respective skills and efforts along with their responsibilities.

Where a Defendant meets its initial burden, the burden shifts to Plaintiff to show via specific facts that a triable issue of material facts exists. (CCP § 437c(p)(2).) Plaintiff presents evidence, that like Hunt, he supervised at least two OGC attorneys, Terrye Cheathem and Ryan Luther, between approximately mid-2017 and at least 2021. (SSDMF 18.)

Plaintiff also presents evidence that he handled Priority 1 and 2 cases (cases involving catastrophic injury or death, high profile child abuse cases, high exposure cases or high visibility cases with media exposure), whereas Hunt handled Priority 3 cases (cases involving fender benders and personal injury cases with damages that are not significant and damages that are not expected to exceed $100,000.) (PSSAMF 14, 15, 16.) Plaintiff suggests his cases were therefore more complex, involved higher amounts of potential damages, were higher profile, and involved novel legal issues. (PSSAMF 17-21.) Plaintiff suggests his cases often involved multiple plaintiffs, significant injuries, and were often litigated by more aggressive and skilled plaintiff’s counsel compared to the Priority 3 cases handled by Mr. Hunt. (PSSAMF 21.) Plaintiff presents evidence that he had settlement authority up to $250,000, whereas Hunt’s settlement authority was not more than $100,000.00. (PSSAMF 32.)

During her deposition, Katrina Campbell—who supervised both Plaintiff and Hunt—stated that Plaintiff worked more hours than Hunt, despite Plaintiff being “very much” an efficient attorney. (Campell Depo. 166: 7-18; 167: 10-15.) During the relevant period, Campbell believed Plaintiff “had too much work.” (Campbell Depo. 181: 1-3.) She did not believe Hunt had too much work during the same period. (Campbell Depo. 181: 4-5.) Due to the “complexity of the litigation” that Plaintiff handled, Campbell testified: “[the litigation] required a higher level of skill. A different skill set. It was a different skill set because it was a different type of litigation.” (Campbell Depo 215: 2-6.)

Court must “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) Doing so here, Plaintiff has demonstrated the existence of a triable issue of fact as to whether Defendant paid Plaintiff wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions. (Labor Code § 1197.5(b).)

The court likewise finds there is a triable question of as to Defendant’s defense that any difference in Plaintiff’s pay was due to the merit system. A merit system must be “applied reasonably,” and must “account for the entire wage differential.” (Labor Code § 1197.5(a)(2),(3).) A reasonable fact-finder could conclude, based on the record before it, that Defendant did not apply the merit system reasonably, and that such did not account for the entire variation between Plaintiff and Hunt.

As the Court of Appeal concluded, the record shows that LAUSD has two classes of employees: certificated and classified. (SSDMF 13-15.) The record also suggests that the merit system applies to only classified attorneys. (Id.) Melendez was a certificated employee. (SSAMF 93.) Therefore, “whether any difference in his pay was due to the merit system is a question of fact.” (See Defendant’s Exhibit Q, Court of Appeal Opinion at p. 45.) [FN 5]

Judge of the Superior Court

FN 1 - Plaintiff’s former claims under FEHA were not subject to the claim filing requirement because FEHA includes its own procedural guidelines that “control over the general rules governing claims against governmental entities.” (Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal. App. 3d. 701, 710-711.)

FN 2 - Although the Statute refers to “employees” (plural) of a different race or ethnicity, case authorities suggest that a single comparator (e.g., one person to one person) is sufficient. (See Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 324.)

FN 3 - Aside from Hunt, Defendant’s separate statement also provides the job duties and classifications of individual employee Sharon Thomas. Plaintiff does not address Thomas as a comparator in his opposition, solely focusing on Hunt. The Court therefore will not address Sharon Thomas.

FN 4 - This is to also assume that the supervision of other attorneys is the only means that an employee can have increased responsibilities. But Plaintiff has presented evidence that he handled higher exposure cases than Hunt did, among other things. This would suggest that at least in some ways, Plaintiff had greater job responsibilities than Hunt.

FN 5 - The parties dispute whether the Court of Appeal’s conclusion on this point is—or was intended to be—binding on this court. This court need not determine that issue, because based on its own review of the record, finds there is a triable issue.