California Court of Appeals, Third District, Sacramento
JANIS S. McLEAN, Plaintiff and Appellant,
THE STATE OF CALIFORNIA et al., Defendants and Respondents.
[REVIEW GRANTED BY CAL. SUPREME COURT]
APPEAL from a judgment of the Superior Court of Sacramento County No. 34-2012-00119161-CU-OE-GDS, Raymond M. Cadei, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Kershaw, Cutter & Ratinoff, William A. Kershaw, Lyle W. Cook, and Stuart C. Talley for Plaintiff and Appellant.
The Law Offices of Brooks Ellison and Patrick J. Whalen for California Attorneys, Administrative Law Judges and Hearing Officers in State Employment as Amicus Curiae on behalf of Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Fiel D. Tigno and William T. Darden, Deputy Attorneys General, for Defendants and Respondents.
Plaintiff Janis S. McLean, a retired deputy attorney general, appeals from a judgment of dismissal after the trial court sustained the demurrer of defendants the State of California and California's State Controller’s Office to her class action seeking waiting time penalties under Labor Code section 203 for the failure to comply with the prompt payment requirements of
section 202. She contends the trial court erred in ruling that the term “quits” in sections 202 and 203 does not apply to employees who quit to retire.
As we will explain, in the context of sections 202 and 203, we agree with McLean that requirements applying to employees who quit also apply to employees who quit to retire. We therefore reverse the judgment as to the State of California. However, because we hold that it was unnecessary to name California's State Controller’s Office as a defendant, we affirm the judgment of dismissal as to the controller’s office.
The operative pleading is the first amended complaint (FAC). It alleges that McLean worked for the State of California until she retired from the Attorney General’s office on November 16, 2010. She separated from service the same day she retired. She did not receive her final wages on her last day of employment or within 72 hours of that date. The correct amount of her wages for unused leave and vacation time were not transferred into her supplemental retirement plan within 45 days of the last day of her employment, as she requested. She did not receive wages that she had elected to defer to 2011 by February 1, 2011.
The FAC alleged, on information and belief, that defendants failed to make prompt payments required by section 202 to the plaintiff class (Plaintiff Class). The Plaintiff Class was defined as all employees employed by the state who resigned or retired from their employment November 2010 through March 2011, who did not receive prompt payment of wages as required by section 202.
The FAC alleged that on June 14, 2011, McLean filed a claim with the California Victim Compensation and Government Claims Board on behalf of herself and the Plaintiff Class. The Board rejected the claim.
The FAC contained one cause of action titled “For Violations of California Labor Code Section 202 and Relief under California Labor Code Section 203.” It alleged that section 202 required defendants to do the following for employees who resigned or retired: (1) pay final wages within 72 hours, or immediately at the time of resignation if given 72 hours notice of the employee’s intent to resign; (2) transfer wages for unused leave and vacation
time to a state sponsored supplemental retirement plan within 45 days of the employee’s last day of employment, if the employee so requested; and (3) transfer any wages that the employee elects to defer to the following calendar year by February 1 of that next year. The FAC alleged defendant did not promptly pay McLean her full wages when she retired and that defendants did not timely pay final wages to the Plaintiff Class.
The FAC sought penalties, costs of suit and expenses, and reasonable attorney fees.
Defendants demurred on the ground that the FAC failed to state facts sufficient to constitute a cause of action. Specifically, defendants contended that since McLean retired, rather than “quit, ” which is the relevant descriptive word actually used in the statute, there was no basis for her claim for penalties under section 203 and she had not stated a claim for a violation of section 202. Defendants argued that section 202 applied only to an employee who quits, and, by retiring, McLean did not quit. Further, defendants claimed that neither the State of California nor the California State Controller’s Office was McLean’s employer; rather, she was employed by the Department of Justice. Defendants moved to strike considerable portions of the FAC.
Defendants requested judicial notice of two documents: (1) the legislative history of Assembly Bill No. 1684 (2001-2002 Reg. Sess.), which approved a memorandum of understanding between the state and State Bargaining Unit 2, the Association of California State Attorneys and Administrative Law Judges, and amended section 202; and (2) provisions of the State Administrative Manual regarding payrolls upon employee separations.
McLean requested judicial notice of the Legislative Counsel’s Digest of Assembly Bill No. 2410 (1999-2000 Reg. Sess.), which amended section 220 to make sections 202 and 203 applicable to the state. She also requested judicial notice of a different provision of the State Administrative Manual concerning the controller’s payroll functions.
Ruling and Judgment
At the hearing on the demurrer, McLean indicated that if the trial court were to affirm its tentative ruling sustaining the demurrer, she would prefer that the demurrer be sustained without leave to ...