Case Number: BC684856 Hearing Date: February 23, 2018 Dept: 53

ASSOCIATION FOR LOS ANGELES deputy sheriffs v. COUNTY OF LOS ANGELES, et al.; BC684856, FEBRUARY 23, 2018; [tentative] order re: DEFENDANT AND RESPONDENT COUNTY OF LOS ANGELES’ DEMURRER TO COMPLAINT

Defendant and Respondent COUNTY OF LOS ANGELES’ Demurrer to Complaint is SUSTAINED.

background

Plaintiff and Petitioner Association for Los Angeles Deputy Sheriffs (“ALADS”) filed this action on November 22, 2017. ALADS alleges that its members are entitled to certain criteria-based bonus compensation given to members of another bargaining unit of the County (the “Off-Schedule POST Bonus”), pursuant to the operative Memorandum of Understanding (“MOU”) between ALADS and Defendant and Respondent County of Los Angles (the “County”), alternately referred to as the “me too” clauses. ALADS’ Complaint asserts causes of action for breach of contract, petition for writ of mandate, declaratory relief, and breach of the implied covenant of good faith and fair dealing.

ALADS’ contract claims allege that the County’s approval of the Off-Schedule POST Bonus violated the “me too” clauses of the MOU and that because the County has taken the position that the Off-Schedule POST Bonus does not trigger the “me too” clauses, the County has wrongfully modified the MOU. (Complaint, ¶¶ 12-19.)

ALADS’ implied covenant claim alleges that the County has an implied obligation to notify ALADS of any across-the-board salary increases or economic enhancements (pursuant to the “me too” clauses) provided to other bargaining units, and that the County breached the implied covenant by failing to notify ALADS of the Off-Schedule POST Bonus. (Complaint, ¶¶ 71-75.)

ALADS’ declaratory relief claims seek judicial determinations that: (1) the Off-Schedule POST Bonus triggered the “me too” clauses; (2) ALADS can initiate representative grievances; (3) ALADS can pursue individual arbitrations on behalf of all members backdated to July 2017 when the first two individual grievances were filed by ALADS (the “Hernandez and Martin Grievances”); and (4) the present dispute is not a grievance under the terms of the MOU. (Complaint, ¶¶ 39-54, 60-70.)

Lastly, ALADS seeks writs of mandate to compel the County to: (1) provide members of ALADS with either across-the-board increases in salaries or economic enhancements; (2) notify ALADS of proposed changes within the scope of representation pursuant to the MMBA[1]; (3) notify ALADS of the Off-Schedule POST Bonus and meet and confer about the provision of “like benefits” pursuant to the MMBA; and (4) allow ALADS the right to initiate grievances on behalf of its individual members pursuant to the MMBA. (Complaint, ¶¶ 20-38, 55-59.)

The County demurs to each cause of action pursuant to Code of Civil Procedure section 430.10(a) (on the basis that ALADS failed to exhaust its bargained-for grievance and arbitration process) and 430.10(e) (for failure to state facts sufficient to constitute a cause of action). ALADS opposes.

EVIDENCE

The Court denies both ALADS and the County’s respective Requests for Judicial Notice, as the requested items do not fall within any of the categories of Evidence Code section 452. Additionally, the Court declines to take judicial notice of irrelevant matters. (Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 341.)

Discussion

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

The County’s first argument in support of its demurrer is that ALADS’ entire Complaint, and all of the causes of action, are barred for ALADS’ failure to exhaust administrative remedies under the MOU. “It is the general rule that a party to a collective bargaining contract which provides grievance and arbitration machinery for the settlement of disputes within the scope of such contract must exhaust these internal remedies before resorting to the courts in the absence of facts which would excuse him from pursuing such remedies.” (Service Employees Intern. Union, Local 1000 (CSEA) v. Department of Personnel Admin. (2006) 142 Cal.App.4th 866, 869-870.)

With regard to the contract-based claims, ALADS alleges in the Complaint that the County breached the MOU and the implied covenant of good faith and fair dealing by failing to provide bonus compensation to members of ALADS pursuant to the “me too” clauses and by failing to notify ALADS of the bonus compensation given to another bargaining unit. ALADS concedes that these claims relate to the MOU, and accordingly, the County argues that the MOU’s grievance and arbitration procedures apply. In opposition, ALADS contends that certain facts excuse ALADS from having to first exhaust administrative remedies. ALADS contends that there is no administrative remedy available to ALADS in its own name, that there is no duty to exhaust an administrative remedy where it would not provide relief for the entire class of injured persons, that exhaustion is futile because the County has continuously and unyieldingly adhered to the position that it did not violate the “me too” clauses, and that the definition of “grievance” in the MOU does not apply to employees of the Sheriff’s Department.

The Court discusses each of ALADS’ contentions as follows:

1. Definition of “Grievance” for Sheriff’s Employees

As applied to employees of the Sheriff’s Department, the MOU defines a grievance as “any complaint concerning the interpretation or application of this [MOU] or rules or regulations governing personnel practices or working conditions that the departmental management has the ability to remedy.” (Complaint, ¶ 66.) ALADS interprets the last clause of this definition (“that the departmental management has the ability to remedy”) to modify the noun “complaint.” Accordingly, ALADS contends that because the violation of the “me too” clauses concerns the interpretation or application of the MOU and because it is not something the Sheriff’s Department can remedy (instead, such a violation can only be remedied by the Board of Supervisors), there is no requirement to exhaust administrative remedies.

In opposition, the County argues that ALADS’ interpretation does not conform with the plain language of the MOU. According to the County, it is clear that the clause “that the departmental management has the ability to remedy” modifies the phrase “working conditions” because it makes sense to consider the department’s ability to redress working conditions. Some working conditions are outside of the department’s ability to control, and therefore, should not be grievable.

The Court finds that the dispute in this case falls within the definition of “grievance,” because the dispute over the “me too” clauses relates to the MOU.

2. Inadequacy of Administrative Remedy for ALADS in Its Own Name

ALADS contends that there are no administrative remedies under the MOU that it could exhaust in its own name. Rather, the MOU only authorizes individual relief. ALADS cites to Glendale City Employees’ Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 331, in support of the proposition that unions may sue in their own name to enforce a memorandum of understanding. In opposition, the County argues that although ALADS is bringing this lawsuit in its own name, the relief it seeks is individual relief for each of its members. Further, the County argues that the inadequacy highlighted in Glendale related to the lack of rigor of the available administrative remedies. In Glendale, the Supreme Court held that the plaintiff union’s action was not barred for failure to exhaust administrative remedies because the remedy was inadequate. (Id. at p. 342.) The Supreme Court stated that “the city’s procedure is tailored for the settlement of minor individual grievances” and pointed out that a “procedure which provides merely for the submission of a grievance form . . . is manifestly inadequate to handle disputes . . . which turn[] on the effect of the underlying memorandum of understanding . . .” (Ibid.) The underlying dispute in Glendale was whether a ratified memorandum of understanding itself was binding on the parties. (Ibid.) (emphasis in original) The grievance procedure was not found in the memorandum of understanding but in an ordinance. (Ibid.) Because the scope of the grievance procedure was limited to “the interpretation or application of this Ordinance” and “an ordinance resulting from a memorandum of understanding,” the Supreme Court held that the grievance procedure was inadequate to resolve the actual controversy at issue. Here, in contrast, the parties do not dispute that the underlying issue concerns the interpretation or application of the MOU. Moreover, as discussed above, the MOU itself provides a grievance procedure for disputes concerning interpretation or application of the MOU. Though ALADS alleges that the grievance procedure is tailored only for the settlement of “individual” grievances, ALADS does not allege that the grievance procedure is tailored only for the settlement of “minor” grievances. Accordingly, the Court finds that ALADS has not established that the administrative remedies provided for in the MOU are inadequate merely because the procedure does not allow for ALADS to bring a grievance in its own name.

3. Inadequacy of Administrative Remedy for the Entire Class

ALADS also contends that there is no requirement to exhaust administrative remedies where it would not provide relief for the entire class of injured persons. ALADS again cites to Glendale, supra, 15 Cal.3d at p. 342 in support. According to ALADS, the MOU is tailored for grievances by individual members, and not for a “class.” ALADS also cites to, inter alia, Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494, 1509 and Rose v. City of Hayward (1981) 126 Cal.App.3d 926 for the proposition that when administrative remedies do not allow for the resolution of issues on behalf of an entire class of persons, there is no requirement to exhaust those remedies.

In opposition, the County argues that the cited cases are inapposite. The Glendale distinction has already been discussed above. Tarkington and Rose were class actions and therefore inapplicable to the case at hand. In Rose, the Court of Appeal held that “plaintiffs in a class action need not exhaust their administrative remedies prior to instituting judicial proceedings where the administrative remedies available to the plaintiffs do not provide for class relief.” (Rose, supra, 126 Cal.App.3d at p. 935.) Although ALADS reasons that the rule in Rose and its other cited cases makes “practical sense” so that members of a union would not have to bring duplicative and costly grievances for every violation by an employer of a memorandum of understanding, the fact that Rose and the other cases were class actions is an important distinguishing element. Indeed, in analyzing the basis for its holding, the Court of Appeal in Rose discussed due process issues that are not implicated here. (See Id. at pp. 936-937; Opp’n p. 12:24-28.) Accordingly, the Court finds that ALADS has not established that the administrative remedies provided for in the MOU are inadequate because the procedure does not allow for class-wide relief.

4. Futility

ALADS contends that futility is an exception to the doctrine of exhaustion of administrative remedies and cites to Sanchez v. City of Los Angeles (2006) 140 Cal.App.4th 1069, 1079 in support of the proposition that the County’s continuous and unyielding adherence to its position that it did not violate the “me too” clauses makes any attempt to engage in the MOU’s grievance and arbitration policy futile. ALADS argues that after it filed two grievances relating to the “me too” clauses and requested arbitration per the MOU, the County objected on the grounds that ALADS could not initiate a grievance on behalf of the individuals it represents. (Complaint, ¶ 49.) ALADS also makes the argument that because arbitration is not binding, pursuing an administrative remedy in the face of the County’s “entrenched position” is futile. (Opp’n, p. 14: 1-2.)

In opposition, the County argues that because the outcome of the dispute has yet to be determined, the futility exception does not apply. The County cites to AIDS Healthcare Foundation v. State Department of Health Care Services (2015) 241 Cal.App.4th 1327, 1350 in support of the proposition that the futility exception does not apply unless the agency has declared what its ruling will be. In AIDS Healthcare Foundation, the Court of Appeal declined to apply the futility exception because the outcome of the proceedings had not been determined or predetermined because no final decision had been made. (Ibid.)

The Court finds that the facts in Sanchez are distinguishable from the instant case. In Sanchez, the plaintiff had already gone through the administrative process but raised additional arguments in his subsequent lawsuit that were not raised in the administrative proceedings. (Sanchez, supra, 140 Cal.App.4th at pp. 1078-1079.) The Court of Appeal held that the employer had “consistently maintained” its position regarding these additional arguments, and therefore, it would have been futile for the plaintiff to challenge them by going through the administrative process again. (Id. at p. 1079.) Accordingly, the Court finds that the futility exception does not apply because no final decision has been made in the administrative proceeding.

The Court finds that the contract-based claims and the implied covenant claim are barred for ALADS’ failure to complete grievance and arbitration procedures.

With respect to the declaratory relief claims and the claims for writ relief, the Court finds that these claims are similarly barred. (See Sacramento Cty. Deputy Sheriffs’ Ass’n v. County of Sacramento (1990) 220 Cal.App.3d 280, 286 n.7, 288 (applying the doctrine of exhaustion to actions for declaratory relief); AIDS Healthcare Foundation, supra, 241 Cal.App.4th at p. 1333 (applying the doctrine of exhaustion to petitions for writs of mandate).)

Because the Court finds that all causes of action in ALADS’ Complaint are barred, the Court does not reach the merits of the demurrers on the basis of failure to state a claim.

conclusion

For the foregoing reasons, the demurrer is sustained as to each cause of action without leave to amend.

The County is to give notice of this Order.

DATED: February 23, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court