SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

LETICIA PELAYO, et al.,

Plaintiffs,

vs.

COUNTY OF SANTA CLARA,

Defendant.
Case No. 2016-1-CV-295818

TENTATIVE RULING RE: MOTION FOR JUDGMENT ON THE PLEADINGS

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on June 8, 2018, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

According to the allegations of the Complaint filed on June 1, 2016, Plaintiffs are female pediatricians employed as P-41 Santa Clara County employees within the last two years at Santa Clara Valley Medical Center and the Santa Clara Valley Health Care System. (Complaint, ¶ 2.) Plaintiffs have performed the same or substantially similar work as the work performed by male pediatricians classified as P-41 employees employed by defendant County of Santa Clara (“Defendant”) at Santa Clara Valley Medical Center and the Santa Clara Valley Health Care System. (Id., ¶ 4.) Notwithstanding the requirements of Labor Code section 1197.5, Defendant has paid some of its male pediatricians classified as P-41 employees more compensation than that paid to Plaintiffs. (Id., ¶ 5.)

Now before the Court is Defendant’s motion for judgment on the pleadings.

II. REQUESTS FOR JUDICIAL NOTICE

A. Defendant’s Request for Judicial Notice

Defendant requests judicial notice of the following:

(1) Complaint for Violation of Labor Code Section 1197.5 and for Damages filed with the Santa Clara County Superior Court on June 1, 2016;
(2) Defendant County of Santa Clara’s Answer to Plaintiffs’ Complaint filed with the Santa Clara County Superior Court on July 6, 2016;
(3) Plaintiffs’ Request for Dismissal of Amendment to Complaint, dated September 29, 2017, and entered by the Court Clerk on October 3, 2017;
(4) Senate Bill No. 358 (Stats. 2015, ch. 546), approved by the Governor and filed with the California Secretary of State on October 6, 2015;
(5) Assembly Bill No. 46 (States. 2017, ch. 776), approved by the Governor and filed with the California Secretary of State on October 14, 2017;
(6) The Senate Judiciary Committee Report pertaining to Assembly Bill No. 46, July 11, 2017 hearing date;
(7) Senate Rules Committee, Senate Floor Analyses, third reading of Assembly Bull No. 46, September 3, 2017.

The Court can take judicial notice of the first three items as court records. (Evid. Code, § 452, subd. (d).) The other items are subject to judicial notice as official acts of the California Legislature and as facts and propositions not reasonably subject to dispute. (Evid. Code, § 452, subds. (c), (h); Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th 508, 519, fn. 5.) Accordingly, Defendant’s request for judicial notice is GRANTED.

B. Plaintiffs’ Request for Judicial Notice

Plaintiffs request judicial notice of the following:

(1) Complaint for Violation of Labor Code Section 1197.5 and for Damages filed with the Santa Clara County Superior Court on June 1, 2016;
(2) Defendant County of Santa Clara’s Answer to Plaintiff’s Complaint filed with the Santa Clara County Superior Court of July 6, 2016;
(3) Senate Bill No. 358 (Stats. 2015, ch. 546), approved by the Governor and filed with the California Secretary of State on October 6, 2015;
(4) Assembly Bill No. 46 (States. 2017, ch. 776), approved by the Governor and filed with the California Secretary of State on October 14, 2017;
(5) Assembly Committee on Labor and Employment Policy Analysis for Assembly Bill No. 46 from the committee hearing on April 19, 2017.
Plaintiffs’ request for judicial notice is GRANTED. (Evid. Code, § 452, subds. (c), (d), and (h).)
C. Defendant’s Request for Judicial Notice in Support of Reply
Defendant requests judicial notice of the following in support of the reply memorandum:
(1) Joint Case Management Statement, e-filed on June 29, 2017; and
(2) Joint Status Conference Statement, e-filed on April 13, 2018.
Defendant’s request for judicial notice is support of the reply is GRANTED. (Evid. Code, § 452, subd. (d).)

III. DISCUSSION

The Complaint is based solely on Labor Code section 1197.5. Section 1197.5 states generally that an employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.
As of 2018, section 1197.5 was amended to define “employer” as including both private and public employers. Defendant argues that prior to this amendment the statute did not apply to public employers and therefore did not apply to Defendant. Defendant contends that because Plaintiffs’ lawsuit was filed when section 1197.5 did not apply to Defendant (a public employer), there is no claim against Defendant and the lawsuit must be dismissed.

In opposition, Plaintiffs do not dispute that section 1197.5 did not apply to Defendant in 2016 when Plaintiffs filed the lawsuit. Plaintiffs argue that Defendant is simply asserting the lawsuit was filed prematurely and that Defendant’s motion is a plea in abatement, which is disfavored. As explained in one case cited by Plaintiffs:
Defendant’s position would not be improved had the action in fact been premature, for defendant had lost the privilege to urge this defense by failing to plead it plainly and to assert it promptly. Dilatory tactics are not favored by the law, for they waste the court’s time, increase the cost of litigation unnecessarily, and may easily lead to abatement of an action on purely technical grounds after the statute of limitations has run. Defendant’s plea of prematurity was a dilatory plea in abatement, unrelated to the merits and not asserted for nearly a year after plaintiff’s action was filed. Under these circumstances defendant loses its privilege to raise it.

(Bollinger v. National Fire Ins. Co. of Hartford, Conn. (1944) 25 Cal.2d 399, 405-406, citations omitted.)

In this case, the defect was not strictly procedural. At the time of the filing of the Complaint, no cause of action could be maintained against Defendant pursuant to section 1197.5 because that statute did not apply to public employers. In other words, under the substantive law at that time there was no basis for the lawsuit brought by Plaintiffs. The allegations of the Complaint necessarily cannot state a claim because they are based on the facts as they existed in 2016. Therefore, the motion must be granted as to the Complaint.

It is undisputed, however, that Labor Code section 1197.5 now applies to public employers such as Defendant. Therefore, if Plaintiffs amend the Complaint to allege facts pursuant to the current law, Plaintiffs may be able to state a claim.

Defendant argues Plaintiffs cannot state a claim as to at least some of the plaintiffs who are no longer employed by Defendant. However, there are no allegations in the Complaint demonstrating any Plaintiff is no longer an employee. To the extent Defendant seeks to rely on deposition transcripts attached to the supplemental declaration of Karen Reinhold, such evidence is not properly before the Court on a motion for judgment on the pleadings. (See Richardson-Tunnell v. School Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1061 [“A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint.”].)

Accordingly, Defendant’s motion for judgment on the pleadings is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.

The Court will prepare the final order if this tentative ruling is not contested.