Bath v. State

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AZEEM BATH et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA et al., Defendants and Respondents.

A167908

California Court of Appeals, First District, Second Division

September 5, 2024

Certified for Publication 10/23/24

Solano County Super. Ct. No. FCS058670, Hon. Alesia F. Jones,Trial Judge:

Kaufman Dolowich Voluck, Arthur S. Gaus; McLaughlin &Stern, Lee S. Shalov, Jason S. Giaimo, for Plaintiffs and Appellants

Kronick, Moskovitz, Tiedemann & Girard, David W. Tyra Terilynn Diepenbrock; California Department of Human Resources, Frolan Aguiling, Christopher E. Thomas, David M. Villalba, for Defendants and Respondents

Miller, J.

Plaintiffs are employees of the State of California who provide dental care to inmates in the state prison system; their employment is governed by a memorandum of understanding (MOU). Plaintiffs have sued the state and related defendants seeking compensation for time they have spent on "pre-and post-shift safety and security activities," such as going through security and picking up and returning alarm devices.

Defendants filed a demurrer, which the trial court sustained without leave to amend on the ground these activities are not compensable under the Portal-to-Portal Act of the Fair Labor Standards Act. After judgment was entered, plaintiffs appealed.

Plaintiffs contend they have alleged viable wage claims and the trial court improperly decided a disputed question of fact in ruling on the demurrer. Defendants respond that the trial court did not err, and, in any event, the judgment may be affirmed on alternative grounds they raised in their demurrer. Specifically, defendants argue the MOU governing the terms and conditions of plaintiffs' employment precludes their claims; plaintiffs' statutory claims fail because the statutes at issue do not apply to government employers; the claims are all subject to dismissal because plaintiffs failed to exhaust their contractual remedies (grievance and arbitration procedures in the MOU); and the claims are all barred by the applicable statute of limitations.

We conclude defendants' demurrer is well taken as to plaintiffs' statutory claims, but plaintiffs have stated a claim for breach of contract. We further conclude that defendants' affirmative defense of failure to exhaust contractual remedies cannot be resolved in a demurrer and plaintiffs' contract claim is not time barred. Accordingly, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Azeem Bath, Megan Roberts, and Makisha Bomar are hourly paid non-exempt employees who work at an adult state prison. Bath is a dental hygienist, Roberts and Bomar are dental assistants, and they all are currently assigned to the California Medical Facility. The defendants are the State of California, California Department of Correction and Rehabilitation (CDCR), California Correctional Health Care Services, and California Department of Human Resources (CalHR).

Memorandum of Understanding and the Governing Wage Law

The parties agree that plaintiffs' union and the State of California entered a memorandum of understanding governing the terms and conditions of plaintiffs' employment and that the MOU incorporates the Fair Labor Standards Act of 1938 (FLSA), as amended by the Portal-to-Portal Act (29 U.S.C. § 251 et seq.). Plaintiffs further acknowledge that it is the FLSA that "determine[s] whether activities performed by Plaintiffs are compensable." We therefore begin with a brief overview of the applicable wage law.

The Portal-to-Portal Act of the FLSA "exempt[s] employers from liability for future claims based on two categories of work-related activities as follows: [¶] '(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, . . . on account of the failure of such employer . . . to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act-

" '(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and " '(2) activities which are preliminary to or postliminary to said principal activity or activities, " 'which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.' § 4, 61 Stat. 86-87 (codified at 29 U.S.C. § 254(a))." (Integrity Staffing Solutions, Inc. v. Busk (2014) 574 U.S. 27, 32-33 (Integrity Staffing), italics added.)

"As the statute's use of the words 'preliminary' and 'postliminary' suggests, § 254(a)(2), and as [United States Supreme Court] precedents make clear, the Portal-to-Portal Act of 1947 is primarily concerned with defining the beginning and end of the workday. [Citation.] It distinguishes between activities that are essentially part of the ingress and egress process, on the one hand, and activities that constitute the actual 'work of consequence performed for an employer,' on the other hand. 29 CFR § 790.8(a); see also ibid. (clarifying that a principal activity need not predominate over other activities, and that an employee could be employed to perform multiple principal activities)." (Integrity Staffing, supra, 574 U.S. at p. 38 (conc. opn. of Sotomayor, J.).) ^[1]

^{The phrase " ' "principal activity or activities" ' " includes " 'all activities which are an "integral and indispensable part of the principal activities." ' " (Integrity Staffing, supra, 574 U.S. at p. 33.) It is not enough to show "an employer required an activity" or "the activity is for the benefit of the employer." (Id. at p. 36.)}

^{First Amended Complaint}

In November 2022, plaintiffs filed a first amended complaint against defendants styled as a class action.^[2] They asserted four causes of action: (1) failure to pay California minimum wage in violation of Labor Code^[3] sections 1182.11, 1182.12. and 1194, (2) failure to pay overtime wages in violation of section 1194, (3) failure to pay wages and/or overtime in breach of common law contractual obligations, and (4) failure to pay wages in violation of section 222.

Plaintiffs alleged, "a principal activity [of their employment and that of all class members] is to provide safety and security for all prison occupants." (Capitalization and bolding deleted.) They continued, "California Prisons present multiple dangers and safety concerns that are not present in the average workplace," and given the risks, plaintiffs (and putative class members) "are specially employed to focus on and promote the security and safety of staff, visitors, and inmates."^[4]

Plaintiffs alleged the uncompensated "Pre-Shift Work" that they and other class members perform compromises the following five activities: (1) "The Security Checkpoint"-at the front gate of a prison, presenting their identification cards to security officers and opening their bags for visual inspections; (2) "The First Sally Port"-walking to a sally port, waiting to enter, and then waiting for the guard to open the gate; (3) "Collecting Work Specific Tools and Equipment"-walking to an administrative building, picking up an alarm device and, if necessary, keys; (4) "The Control Sally Port"-"proceed[ing] to a second sally port to enter the mainline prison premises" and, again, showing their identification cards; and (5) "Walking to the Department and Signing In"-walking to their assignment area. When they arrive at their assignment area, they sign in "by reporting the precise time they arrive." According to plaintiffs, these preshift activities generally take 10 to 15 minutes and sometimes take 20 minutes, and their "Post-Shift Work" involves "many of the same activities and functions . . . but in reverse" and takes a similar amount of time.

Demurrer and Court Ruling

In January 2023, defendants filed a demurrer to the first amended complaint. On April 21, 2023, the trial court issued a written ruling sustaining the demurrer to plaintiffs' first amended complaint without leave to amend.

The trial court reasoned, "[D]espite Plaintiffs' attempt to claim that one of their principal activities is to 'provide safety and security for all prison occupants' (see, FAC, ¶¶ 22-35), the productive work Plaintiffs are employed to perform is dental care, not the security of the prison. The bag checks, security screenings, and collection and return of alarm devices and other equipment are not closely related activities integral and indispensable to the performance of dental care. Consequently, these activities are not compensable under the FLSA and the Portal-to-Portal Act." This reasoning disposed of all of plaintiffs' claims, and the trial court did not address the other grounds defendants argued for sustaining their demurrer.

DISCUSSION

A. Standard of Review

The law governing our review of a ruling on a demurrer is well-established. "[W]e examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory." (McCall v PacifiCare of California, Inc. (2001) 25 Cal.4th 412 415.) "[W]e accept as true even the most improbable alleged facts, and we do not concern ourselves with the plaintiff's ability to prove its factual allegations." (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) On the other hand, we need not accept "contentions, deductions, or conclusions of fact or law." (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) "We may also consider...