(City & County of San Francisco Super. Ct. No. 468417). Trial judge Hon. Harold E. Kahn.
The opinion of the court was delivered by: Pollak, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Plaintiff Jorge A. Pineda appeals an adverse judgment entered after the trial court granted a motion for judgment on the pleadings by defendant Bank of America, N.A. He contends that the court applied the wrong statute of limitations to his claim under Labor Code*fn2 section 203 for penalties incurred for the late payment of wages; that the court erred in concluding that section 203 penalties are not restitution within the meaning of Business and Professions Code section 17203; and that the court abused its discretion in denying him leave to amend. In the unpublished portion of this opinion we adopt the conclusion reached in McCoy v. Superior Court (2007) 157 Cal.App.4th 225, 233, that the extended statute of limitations for the recovery of section 203 penalties found in that section applies only if the penalties are sought in conjunction with an action for recovery of the unpaid wages. Since plaintiff here acknowledges that all wages due were paid before this action was filed, we reject his contention that the court erred in applying the one-year statute of limitations for an action upon a statute for a penalty found in Code of Civil Procedure section 340, subdivision (a), and we also reject the contention that the court abused its discretion in denying plaintiff leave to amend his complaint. In the published portion of the opinion we affirm the trial court's conclusion that section 203 penalties may not be recovered as restitution under Business and Professions Code section 17203.
Factual and Procedural Background
Plaintiff's complaint, filed on October 22, 2007, alleges that "Plaintiff was employed by defendant Bank of America within the three-year period preceding the filing of the complaint . . . . Plaintiff gave Bank of America two weeks advance notice of his resignation, which occurred on May 11, 2006. Bank of America did not pay him his final pay until May 15, 2006." Plaintiff seeks to represent a class of persons formerly employed by Bank of America "whose final wage payment occurred after their last day of employment." His first cause of action alleges that "Bank of America failed to pay plaintiff and members of the class final wages timely upon separation from employment in accordance with Labor Code section 201 or 202" and that as a result of Bank of America's conduct, "plaintiff and members of the class are entitled to recover the full amount of their continuation wages under Labor Code section 203 . . . ." Plaintiff's second cause of action alleges that "[t]he unlawful conduct of Bank of America alleged herein constitutes unfair competition within the meaning of Business and Professions Code section 17200." As a result of the unfair competition, the pleading continues, "plaintiff and members of the class were deprived of their rights to timely payment of final wages . . . and were not paid continuation wages owed to them under Labor Code section 203." The complaint seeks "restitution of all the unpaid continuation wages" owed to plaintiff and other class members under Labor Code section 203.
The trial court ultimately granted defendant's motion for judgment on the pleadings. The trial court concluded that plaintiff's claim under the Labor Code was barred by the one-year statute of limitations for the recovery of a penalty prescribed by Code of Civil Procedure section 340, subdivision (a), and that plaintiff could not allege a cause of action under the Unfair Competition Law (UCL) because section 203 penalties are not recoverable as restitution under Business and Professions Code section 17203.
The court denied plaintiff leave to amend to substitute a new plaintiff in the first cause of action. Plaintiff filed a timely notice of appeal.
"The standard of review for a motion for judgment on the pleadings is the same as that for a general demurrer: We treat the pleadings as admitting all of the material facts properly pleaded, but not any contentions, deductions or conclusions of fact or law contained therein. . . . We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any theory." (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1298.)
2. Plaintiff's Claim for Penalties Under Section 203 is Barred by the Statute of Limitations
Section 202, subdivision (a) provides in relevant part: "If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting." Under section 203, "If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefore is commenced; but the wages shall not continue for more than 30 days. . . . [¶] Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise." The statute of limitations on an action to recover unpaid wages under section 202 is three years. (Code Civ. Proc., § 338, subd. (a); Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1108-1109 (Murphy).) Plaintiff argues that the three-year statute of limitations is applicable to this action by virtue of section 203.
In McCoy v. Superior Court (2007) 157 Cal.App.4th 225, 233 (McCoy), the court held that the extended statute of limitations set forth in section 203 applies only if the penalties are sought in conjunction with an action for the unpaid wages. If the action seeks to recover only waiting time penalties under section 203, the one-year statute of limitations found in Code of Civil Procedure section 340, subdivision (a) applies. Code of Civil Procedure section 340, subdivision (a) sets forth a one-year statute of limitations for "[a]n action upon a statute for a penalty or forfeiture, if the action is given to an individual . . . except if the statute imposing it prescribes a different limitation."
Section 203 is a "statute for a penalty" within the meaning of Code of Civil Procedure section 340, subdivision (a). (Murphy, supra, 40 Cal.4th at p. 1108 ["section 203 establishes that the unpaid wages continue to accrue as ...