Filed 7/7/26 Lazard v. County of Santa Clara CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
ZURI LAZARD, H052886
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 23CV414401)
v.
COUNTY OF SANTA CLARA,
Defendant and Respondent.
Zuri Lazard, a nurse, filed a putative class action lawsuit against the County of
Santa Clara, her former employer, alleging that the county had failed to pay all wages
(including overtime), meals, and rest periods. The trial court sustained successive
demurrers, the last without leave to amend, and entered judgment for the county. On
appeal, because Lazard has not shown the trial court’s ruling to be erroneous, we will
affirm the judgment.
I. BACKGROUND
A. The County Charter, Relevant Ordinances, and Employee Agreements1
The County of Santa Clara is a charter county. By its charter, the county’s Board
of Supervisors has adopted an administrative code to “prescribe the powers and duties of
1
The trial court granted judicial notice of the documents attached to the County’s
demurrer, which included copies of the Santa Clara County Charter, the Santa Clara
appointive departments and officers and the procedures and rules of operation of all
departments and officers of the county.” (Santa Clara County Charter, § 301, subd. (d)).
1. County Ordinances on Timekeeping and Specific Procedures
The Santa Clara County Code requires that “[t]the head of each office, department
and institution shall be responsible for maintaining the personnel and time records, and
incidents of absences of his or her office, department or institution, and shall certify such
information as necessary for the preparation of the payroll to the Controller and
Personnel Department at the time and upon the forms prescribed by the Controller.”
(Santa Clara County Code, § A2-18.)
Both county-run hospitals, the Santa Clara Valley Medical Center and O’Connor
Hospital use the Kronos timekeeping system. The Santa Clara Valley Medical Center’s
timekeeping procedure manual specifies that meal breaks are automatically deducted for
employees working more than six hours (unless they routinely work shifts under eight
hours), and employees unable to take a meal break are required to make a notation on an
Exception Form. O’Connor Hospital’s policy set forth that meal breaks will be
automatically deducted for employees working more than four hours, and if an employee
is unable to take a meal break, they must so indicate on an Exception Form.
For unionized employees, the Santa Clara County Code provides that
“[g]rievances involving wages, hours and other conditions of employment … may be
processed by the recognized employee organization on its own behalf directly with the
appropriate level of management.” (Santa Clara County Code, § A25-398.) But “when
the recognized employee organization … has signed a written memorandum of
[agreement (MOA)] with County management which provides for a grievance procedure
County Code, agreements between the County and various labor groups, and written
procedures for how nursing employees were to record their time.
2
and such memorandum has been approved by the Board of Supervisors and is in effect,”
the MOA controls. (Santa Clara County Code, §§ A25-398, A25-600.)
2. MOA with the Registered Nurses Professional Association (Registered
Nurses)
The county had an MOA with the Registered Nurses effective January 27, 2020,
through October 29, 2023.2 Included in the Registered Nurses bargaining unit were “Per
Diem Clinical Nurses,” which was Lazard’s employee classification with the county.
The MOA set forth policies for meal periods and rest periods, specifying how missed
breaks must be reported. It also included a grievance procedure. Under the MOA, a
grievance is “an alleged violation, misrepresentation or misapplication of the provisions
of this Memorandum of Agreement, Department Memoranda of Agreement and/or
Understanding, Merit System Rules, or other County ordinances, resolutions, Policy
and/or Procedure Manuals, or alleged infringement of an employee’s personal rights (i.e.,
discrimination, harassment) affecting the working conditions of the nurses covered by
this Agreement,” subject to exclusions not relevant here. “Nurses shall have the right to
present their own grievance or do so through a representative of their own choice.
Grievances may also be presented by a group of nurses, by the Association, or by the
County.” Grievances could be pursued formally or informally. Formal grievances are to
be presented in writing within 20 days of the alleged occurrence or discovery of the
grievance; formal grievances were subject to a defined procedure for decision and, if
necessary, referral to an impartial arbitrator.3 The union “shall have the right to appear
2
The County also had a MOA with the Registered Nurses effective between
November 10, 2014, through October 20, 2019.
3
Post-dating Lazard’s employment, the county has a newer MOA with the
Registered Nurses, effective from June 24, 2024, to October 24, 2027. Under the
Registered Nurses’ current MOA, the grievance procedures remain unchanged. But a
new section, consistent the Legislature’s enactment of Labor Code section 512.1,
3
and be heard in all individual or group grievances” and “[u]pon request by [the c]ounty
… shall appear and be heard in such grievances.”
3. MOA with the Service Employees International Union, Local 521 (SEIU)
SEIU represents classified and unclassified workers in various bargaining units
including in the Public Health Nursing Unit and the Social Services Unit. The MOA
between the county and SEIU provided for specified meal periods and rest periods.
The SEIU MOA defines a grievance in the same terms as the Registered Nurses
MOA. Like the Registered Nurses MOA, the grievance procedure under the SEIU MOA
was one to which covered workers enjoyed a “right” to invoke either individually or as a
“group of workers.” The grievance procedure could culminate in arbitration.4
B. Lazard’s First Amended Complaint and the County’s Demurrer
Between March 2019 and September 2022, Lazard worked as a per diem clinical
nurse at O’Connor Hospital. In June 2023, Lazard filed a first amended class action
complaint against the County alleging six causes of action: (1) failure to pay wages
under Labor Code sections 1194, 1197, 1197.1,5 unspecified wage orders of the Industrial
provides for one hour of additional pay at an employee’s regular rate for each missed
meal or rest period, with a maximum monetary remedy for any workday of two one-hour
additional hourly payments. The provision however “shall terminate immediately upon a
final court determination that Labor Code section 512.1 does not apply to a charter
county and/or charter city or is otherwise inapplicable to the County.”
4
The county’s current agreement with SEIU, effective from August 14, 2023, to
June 21, 2026, maintains the same provision for meal periods and reimbursement of
meals during overtime. But this new agreement now provides that an employee who has
not been provided one or more required meal periods or one or more required rest periods
would be entitled to one additional hour of pay at their regular rate of pay, with the
maximum monetary remedy for any workday being two one-hour increments of
additional pay for one shift.
5
Unspecified statutory references are to the Labor Code.
4
Wage Commission (IWC),6 and unspecified local minimum wage ordinances,7 (2) failure
to provide all meal periods, violating sections 226.7 and 512.1, (3) failure to provide all
rest periods, violating sections 226.7 and 512.1, (4) civil penalties under PAGA,
section 2698 et seq. for failure to pay all wages, (5) PAGA civil penalties for failure to
provide all meal periods, and (6) PAGA civil penalties for failure provide all rest periods.
Lazard sought to represent a class defined as all persons employed by the county as non-
exempt employees “at any time starting four years from the filing of this Complaint” who
provided “direct patient care or supporting direct patient care in general acute care
hospital, clinic, or public health settings.”
Lazard alleged that the county (1) paid her and the putative class members “based
on rounded time, rather than actual time worked,” and (2) automatically deducted at least
30 minutes during each shift of five hours or more, “whether meal periods were provided
or not.” Lazard also alleged that the county did not provide uninterrupted duty-free rest
periods yet failed to compensate class members an hour of pay at their regular rate for
each day a rest period was not authorized or permitted. Lazard alleged that “[t]here is no
federal question, the issues are based solely on California law ….”
6
The Legislature in establishing the IWC gave it “ ‘authority to investigate
various industries and promulgate wage orders establishing minimum wages, maximum
work hours, and conditions of labor.’ ” (Marquez v. City of Long Beach (2019)
32 Cal.App.5th 552, 559 (Marquez).) IWC wage orders have “ ‘ “the same dignity as
statutes.” ’ ” (Id. at p. 560.) Although the Legislature defunded the IWC in 2004, its
wage orders remain and are now enforced by the Division of Labor Standards
Enforcement. (Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903,
936, fn. 14; Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 581.)
7
In opposition to the county’s first demurrer, Lazard cited multiple wage orders
including “for example” IWC Wage Order No. 5-2001. And in her opposition to the
second demurrer, she referenced IWC Wage Order Nos. 4-2001 and 5-2001, which she
asserted applied to public employees.
5
In October 2023, the county demurred and moved to strike portions of Lazard’s
complaint. The county argued that Lazard failed to exhaust internal grievance procedures
and that its home rule authority as a charter county superseded state law for the first three
causes of action. The county further argued that section 512.1, the basis of Lazard’s
second and third causes of action, became effective only after Lazard had separated from
county employment. And because Lazard’s PAGA claims were wholly dependent on the
first three causes of action, the county maintained these were also subject to demurrer.
In April 2024, the trial court sustained the county’s demurrer with leave to amend,
denying as moot the county’s motion to strike. The trial court agreed with the county that
Lazard had failed to exhaust internal remedies and that the county’s home rule authority
precluded Lazard’s meal and rest period claims.
C. Lazard’s Second Amended Complaint and the County’s Demurrer
In May 2024, Lazard filed a second amended complaint realleging the same six
causes of action as in her first amended complaint and adding a seventh claim, failure to
pay wages under the FLSA. Lazard alleged that during the relevant period, “no collective
bargaining agreement or memorandum of agreement existed or applied to Plaintiff or
Class Members, which purports to provide, or more importantly, could in fact actually
provide, the class-wide relief sought in this [c]omplaint ….” Further, there was no
“collective bargaining agreement or memorandum of agreement which could provide any
remedy for violations of Labor Code section 512.1.” Lazard also pleaded a seventh cause
of action under the federal FLSA, based on the originally pleaded facts.
In July 2024, the county again demurred and moved to strike portions of Lazard’s
second amended complaint largely on the same grounds—that Lazard had not exhausted
internal remedies and that the county’s home rule authority permitted it to set its own pay
practices. The county further alleged that Lazard’s seventh cause of action under the
FLSA was subject to demurrer because Lazard did not seek or obtain leave of court to
add a new cause of action to her complaint. Lazard opposed the county’s demurrer but
6
conceded that her PAGA claims were now foreclosed by the California Supreme Court’s
newly announced holding that public employers are not subject to PAGA penalties.
(Stone v. Alameda Health System (2024) 16 Cal.5th 1040, 1086 (Stone).)
D. The Order Sustaining the Demurrer and the Judgment
In December 2024, the trial court sustained the county’s demurrer without leave to
amend. As to the fourth, fifth, and sixth causes of action, the trial court accepted
Lazard’s concession under Stone that public employers are not subject to PAGA
penalties. As to the first three causes of action alleging Labor Code and IWC violations,
the court concluded that the second amended complaint failed to allege exhaustion of the
county’s internal grievance procedures and the county’s home rule authority superseded
state law. And finally, as to Lazard’s FLSA claim, the trial court held that Lazard had not
sought, nor had the trial court granted, leave to amend her complaint to allege a new
cause of action.
In March 2025, the trial court entered judgment for the county, dismissing the
matter. Lazard timely appealed.
II. DISCUSSION
When a trial court has sustained a demurrer, we review de novo “whether the
complaint states facts sufficient to state a cause of action.” (Schifando v. City of Los
Angeles (2003) 31 Cal.4th 1075, 1081 (Schifando); see also California Logistics, Inc. v.
State of California (2008) 161 Cal.App.4th 242, 247.) Although we “accept the truth of
material facts properly pleaded in the operative complaint,” we do not assume the truth of
“contentions, deductions, or conclusions of fact or law.” (Yvanova v. New Century
Mortgage Corp. (2016) 62 Cal.4th 919, 924.) We may also consider matters that are
subject to judicial notice. (Ibid.)8 If the demurrer was properly sustained, we review for
8
Lazard argues on appeal that the trial court erred in granting judicial notice of the
exhibits the county attached to its demurrer, which included the various MOA’s with the
7
abuse of discretion the trial court’s denial of leave to amend, and “[t]he plaintiff has the
burden of proving that amendment would cure the defect.” (Schifando, at p. 1081.) In
our independent judgment, Lazard’s second amended complaint was defective. Because
she has not affirmatively shown a reasonable probability that amendment could cure the
defect, we will affirm the judgment of dismissal.
A. Meals and Rest Period Claims (Second and Third Causes of Action)
Lazard’s second and third causes of action allege violations of sections 512.1 and
226.7, further referencing unspecified IWC wage orders. But Lazard cannot state a claim
for relief based on meal and rest period obligations that do not apply to the charter county
under its home rule authority.
1. General Legal Principles
California counties are either charter counties or general law counties. (Cal.
Const., art. XI, § 3, subd. (a); San Bernardino County Board of Supervisors v. Monell
(2023) 91 Cal.App.5th 1248, 1275 (San Bernardino).) Under the California Constitution,
a charter county’s charter “shall supersede … all laws inconsistent therewith. The
provisions of a charter are the law of the State and have the force and full effect of
legislative enactments.” (Cal. Const., art. XI, § 3, subd. (a).)
A charter county is granted “ ‘home rule,’ i.e., the authority of the people to create
and operate their own local government and define the powers of that government, within
the limits set out by the [California] Constitution.” (Dibb v. County of San Diego (1994)
8 Cal.4th 1200, 1206 (Dibb).) A charter county’s home rule authority extends to “matters
concerning the structure and operation of local government.” (Dibb, at p. 1207.) This
employer groups, the Santa Clara County Charter, and Santa Clara County Code,
“without formal proof.” Because Lazard did not object or oppose the county’s request
for judicial notice below, she has forfeited any objection to the trial court’s grant of
judicial notice. (J&A Mash & Barrel, LLC v. Superior Court of Fresno County (2022)
74 Cal.App.5th 1, 25.)
8
includes provisions for “ ‘the operation of the county, … specifically including the
county’s right to provide “for the number, compensation, tenure, and appointment of
employees” (that is, a county’s core operations),’ ” which override any conflicting state
law. (Dimon v. County of Los Angeles (2008) 166 Cal.App.4th 1276, 1281–1282
(Dimon), italics omitted.)9 A charter county’s autonomy, however, yields to the
Legislature’s regulation of “ ‘matters of statewide concern even if the regulation
impinges “to a limited extent” [citation] on powers the Constitution specifically reserves
to counties ([Cal. Const., art. XI,] § 1) or charter cities.’ ” (Marquez, supra,
32 Cal.App.5th at p. 562.)
2. Analysis
Examining Lazard’s second amended complaint, we find the trial court properly
sustained the demurrer as to her second and third causes of action, which alleged the
county failed to provide meal and rest breaks required by sections 226.7, 512.1,10 and
unspecified IWC wage orders, because she has failed to state a claim: Section 226.7 and
related IWC wage orders relating to meal and rest periods are inapplicable to the county
under its home rule authority, and section 512.1 was not in effect at the time of Lazard’s
employment—and upon section 512.1’s passage, the county’s respective MOAs now
incorporate the requirements of section 512.1.
9
Charter cities have a more expansive home rule than charter counties. (San
Bernardino, supra, 91 Cal.App.5th at pp. 1275–1276, fn. 6.) “Subject to that caveat, case
law dealing with charter cities also applies to charter counties.” (Ibid.)
10
Section 226.7, subdivisions (b) and (c) respectively require employers to comply
with meal, rest, or recovery periods otherwise mandated by state law and to pay an
employee an additional hour’s compensation for each noncompliant workday.
Section 512.1 mandates meal and rest periods for health care workers employed by “the
state, political subdivisions of the state, counties, municipalities, and the Regents of the
University of California.” (§ 512.1, subd. (e)(2); but see Levy v. City and County of San
Francisco (2025) 114 Cal.App.5th 997 (Levy) [interpreting § 512.1 to exempt charter
counties].)
9
The home rule doctrine exempts charter counties from application of
section 226.7. An employee’s claims under section 226.7 are “matters of compensation
within the [charter] county’s exclusive constitutional purview.” (Curcini v. County of
Alameda (2008) 164 Cal.App.4th 629, 645 (Curcini); see also Dimon, supra,
166 Cal.App.4th 1276, 1283 [accord].) And the home rule doctrine likewise precludes
application to charter counties of IWC wage orders related to meal and rest periods
because such orders “impermissibly regulate employment compensation, a matter within
the County’s exclusive constitutional purview.” (Dimon, at p. 1290.)
As for section 512.1, Lazard cannot claim relief under this new statute because it
did not take effect until January 1, 2023—after Lazard had already separated from
County employment. (Stats. 2023, ch. 845, § 2, eff. Jan. 1, 2023.) Lazard has no
standing to assert an individual claim under section 512.1, and “ ‘[i]n general, a named
plaintiff must have standing to prosecute an action.’ ” (Schoshinski v. City of Los
Angeles (2017) 9 Cal.App.5th 780, 791 (Schoshinski).) Generally, “ ‘[t]o have standing,
a party must be beneficially interested in the controversy; that is, he or she must have
“some special interest to be served or some particular right to be preserved or protected
over and above the interest held in common with the public at large.” ’ ” (CashCall, Inc.
v. Superior Court (2008) 159 Cal.App.4th 273, 286 (CashCall), see also Chai v. Velocity
Investments, LLC (2025) 108 Cal.App.5th 1030, 1037 [finding that the Unfair Debt
Buying Practices Act confers standing to any plaintiff who pleads a debt buyer’s
violation of their rights under the statute].) Furthermore, after the enactment of
section 512.1, the County’s more recent MOA’s with both the Registered Nurses and
SEIU appear to reflect language adopting the meal and rest period requirements set forth
under section 512.1.
For these reasons, we conclude that Lazard’s meal and rest period claims, under
sections 226.7 and 512.1 and unspecified IWC wage orders, fail to state a claim for relief
10
against the county. (Curcini, supra, 164 Cal.App.4th at p. 645; Dimon, supra,
166 Cal.App.4th at pp. 1283, 1290; see also Schoshinski, supra, 9 Cal.App.5th at p. 791.)
As to Lazard’s claims under section 512.1, we acknowledge the “general rule
allowing substitution of new plaintiffs with standing in place of original plaintiffs without
standing applies to class actions.” (CashCall, supra, 159 Cal.App.4th at p. 288.) But
even though the county’s demurrer to Lazard’s first amended complaint put Lazard on
notice that section 512.1 was not enacted until after Lazard separated from county
employment, Lazard in filing her second amended complaint failed to either add or
substitute a named plaintiff whose employment period might supply standing to sue
under the new statute. (See CashCall, at p. 288 [if the trial court extends opportunity to
amend complaint but class still lacks suitable representative, “the court may conclude that
it must dismiss the action”].) Thus even if section 512.1 were to apply to charter
counties, we discern no reasonable possibility that an amendment would cure the defects
in her claims under section 226.7 or IWC wage orders. (Schifando, supra, 31 Cal.4th at
p. 1081.)
B. The Wage Claim (First Cause of Action)
Lazard’s first cause of action asserts that the county failed to pay all “earned
wages”—“including by rounding time downward … and automatically deducting time
for meals not provided”—and “violated laws and regulations having the force of law,
including … sections 1194, 1197, 1197.1, IWC [w]age [o]rders, and local minimum
wage ordinances.” We recognize that even charter counties must pay employees earned
wages and comply with state minimum wage laws. (See Marquez, supra, 32 Cal.App.5th
at p. 569 [IWC Wage Order Nos. 4-2001 and 10-2001 apply to charter cities]; see also
Sheppard v. North Orange County Regional Occupational Program (2010)
191 Cal.App.4th 289, 300–301 [IWC Wage Order No. 4-2001 applied to public school
11
employees].)11 But Lazard’s claims arise out of alleged violations of the MOA’s or
County policies, requiring Lazard to exhaust the bargained-for internal grievance
procedures before filing this lawsuit. In short, her claims fall within the definition of a
“grievance” under the MOA’s. Because it is undisputed that she did not exhaust her
contractual remedies, the demurrer was properly sustained as to her wage claims as well.
“ ‘In general, a party must exhaust administrative remedies before resorting to the
courts.’ ” (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2019)
42 Cal.App.5th 918, 927 (ALAD).) A party’s failure to exhaust internal remedies may be
raised by demurrer or—as when extrinsic evidence is necessary to ascertain the intent of
the parties—by “motion for summary judgment.” (Bath v. State of California (2024)
105 Cal.App.5th 1184, 1207 (Bath).) Courts have acknowledged a “ ‘ “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 Internat. Union, Local
1000 v. Department of Personnel Admin. (2006) 142 Cal.App.4th 866, 869–870 (SEIU).)
In such cases, “[a] party to [the] collective bargaining agreement containing an express
grievance and arbitration mechanism can bypass arbitration only if it can be said ‘ “ ‘with
11
IWC wage orders “guarantee[] at least minimum wage for ‘all hours worked in
the payroll period.’ ” (Oman v. Delta Air Lines, Inc. (2020) 9 Cal.5th 762, 779.) IWC
Wage Order No. 4-2001 “governs employees in the professional, technical, clerical,
mechanical, and ‘similar occupations’ ” (Marquez, supra, 32 Cal.App.5th at p. 557,
fn. 2), which includes “nurses” (Cal. Code Regs., tit. 8, § 11040, subd. 2(P)). Section 4
of IWC Wage Order No. 4-2001 requires employers to pay employees no less than a
designated hourly wage “for all hours worked.” (Cal. Code Regs., tit. 8, § 11040,
subd. 4(A) [Wage Order No. 4-2001].) And IWC Wage Order No. 5-2001 applies to
those in the “public housekeeping industry,” which includes those employed by hospitals.
(Cal. Code Regs., tit. 8, § 11050, subds. 1 & 2(R)(4).) Effective January 1, 2022, for
Lazard’s last year of county employment, IWC Wage Orders No. 4-2001 and No. 5-2001
set the minimum wage at $15 per hour for employers of 26 or more employees.
12
positive assurance’ ” ’ the clause is not susceptible to an interpretation that covers the
asserted dispute.” (Id. at p. 870.)
On their face, the Registered Nurses and SEIU MOA’s describe the internal
grievance procedures as permissive and at best hortatory, not mandatory.12 But courts
have extended the exhaustion requirement even in cases where “ ‘ “the administrative
remedy is couched in permissive language.” ’ ” (Terris v. County of Santa Barbara
(2018) 20 Cal.App.5th 551, 559 (Terris); but see Bath, supra, 105 Cal.App.5th at p. 1207
[finding that demurrer was not appropriate when circumstances before the court did not
“establish[] as a matter of law that the parties intended the grievance and arbitration
procedure to be the exclusive remedy for disputes such as plaintiffs’ wage claim” (italics
added)].)13 This is because the “exhaustion doctrine does not turn on contractual
principles” but on policy reasons—and “[t]he exhaustion requirement flows from the
adequacy and availability of an administrative remedy.” (Williams v. Housing Authority
of Los Angeles (2004) 121 Cal.App.4th 708, 736 [holding that where “an adequate
available internal administrative remedy” exists, the employee “must exhaust that
remedy”]; see also Palmer v. Regents of University of California (2003) 107 Cal.App.4th
12
The Santa Clara County Code provisions on grievances that apply to employees
not covered by MOAs is likewise permissively worded—that “[g]rievances involving
wages, hours and other conditions of employment which affect members of the
representation unit may be processed by the recognized employee organization on its own
behalf directly with the appropriate level of management.” (Santa Clara County Code,
§ A25-398, italics added.)
13
In its respondent’s brief, the County’s only argument on exhaustion was limited
to asserting that Lazard’s claims must “cede to local rule and the contractual grievance
procedure applicable to her employment” and distinguishing Zavala v. Scott Brothers
Dairy, Inc. (2006) 143 Cal.App.4th 585 (Zavala). But reviewing courts will affirm a
judgment if correct on any ground, and the County cited Terris at oral argument for the
proposition that the MOA’s permissive grievance procedures are effectively mandatory.
So we requested supplemental briefing to permit Lazard, representing herself on appeal,
to respond.
13
899, 905 [requiring exhaustion based not on the parties’ contractual relationship but on
public policy grounds favoring efforts at eliminating and mitigating damages before
resorting to the courts]; Campbell v. Regents of University of California (2005)
35 Cal.4th 311, 328–329 [employee required to exhaust administrative remedy before
pursuing judicial lawsuit for statutory wrongful termination].)
Applying these cases here, we conclude that Lazard was required to exhaust
available internal remedies before pursuing her wage claims, so long as those claims are
“within the scope of” the collective bargaining agreement. (SEIU, supra,
142 Cal.App.4th at p. 869.)14 And based on our review of the complaint, we find that
Lazard’s claim that the county failed to pay all earned wages and, for each missed
30-minute meal break, minimum wages for all hours worked fall within the scope of the
County’s MOA’s.
The MOAs at issue broadly define a grievance as “an alleged violation,
misinterpretation or misapplication of the provisions of this Memorandum of Agreement,
Department Memoranda of Agreement and/or Understanding, Merit System Rules, or
other County ordinances, resolutions, Policy and/or Procedure Manuals, or alleged
infringement of an employee’s personal rights (i.e., discrimination, harassment) affecting
the working conditions … covered by this [a]greement ….” And here, Lazard’s claim
that the County failed to pay all wages is essentially a claim that the County breached its
obligations under the MOA’s.
First, Lazard alleges that the county “maintained policies which failed to pay
Plaintiff, Class Members, Covered Employees, and aggrieved employees at least
14
Both the RNPA and SEIU MOA’s provide that an aggrieved employee who is
not satisfied with the decision of the first step of the formal grievance procedure “may”
request arbitration. Thus at issue here is not whether the MOAs contain a clear and
unmistakable waiver of the right to a judicial forum (see Wilson-Davis v. SSP America,
Inc. (2021) 62 Cal.App.5th 1080, 1093 (Wilson-Davis)) but whether Lazard was required
to utilize internal grievance procedures before pursuing her lawsuit.
14
minimum wages for all hours worked, including by paying based on rounded time, rather
than actual time worked.” The mechanism of the alleged underpayment is the county’s
failure to pay any wages for time worked for time lost to rounding. In other words,
Lazard’s allegations about wages turn on the operation of the county’s internal policies
and timekeeping practices and their effect on negotiated wages. But “[t]he compensation
owed employees is a matter determined primarily by contract.” (Oman v. Delta Air
Lines, Inc. (2020) 9 Cal.5th 762, 781 (Oman).) Lazard’s claim about the rounding policy
denying wages is thus essentially a claim that the county violated its agreement to pay
contractual wages.
Second, Lazard claims that the county violated its own judicially noticed policies
by not accounting for missed meal periods that Lazard at oral argument represented were
duly noted for compensation purposes on an Exception Form.
As to both theories of uncompensated work, Lazard’s claim is that she and others
were denied their contractually determined wage for all hours actually worked, whether
the mechanism was the operation of county policy (rounding) or the violation of county
policy (failure to compensate documented “exceptions” to the automatically deducted
meal period). Her claim is thus grounded in the MOAs’ compensation terms and
accordingly subject to its grievance procedures.
We assume that a charter county’s failure to compensate employees at least the
state minimum wage is a statutory violation not subject to the MOAs’ grievance
procedure, because it arises from a statutory right that exists independent of the MOA.
(Cf. Zavala, supra, 143 Cal.App.4th at p. 595 [affirming order denying motion to compel
arbitration after finding that the lawsuit “represent[ed] an effort to enforce nonwaivable
statutory rights, not an attempt to enforce compliance” with a collective bargaining
15
agreement];15 see also Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949,
959–960 [arbitration not required when collective bargaining agreement did not “contain
a provision whereby the plaintiffs agreed to arbitrate alleged violations of statutory
rights”].) But Lazard does not effectively allege a violation of state minimum wage law
that is outside the purview of the grievance procedures. To be sure, Labor Code
provisions prohibit “wage borrowing” to meet minimum wage on average, but this is
“only when [the wage borrowing] results in failure to maintain the wage scale designated
by contract.” (Oman, supra, 9 Cal.5th at p. 783.) Here, as in Oman, resolution of
Lazard’s minimum wage claim “necessarily turns on the nature of [the employer’s]
contractual commitments.” (Ibid.) Lazard’s claim of zero compensation for the labor
performed on missed breaks and rounded time is thus implicitly a claim that the state
minimum wage cannot be met for that labor without effectively shortchanging employees
their contractual rate for the hours actually compensated. This interdependence of her
minimum wage claim and the contractual rate necessarily grounds her claim in a
“misapplication of the [MOA] provisions” that the MOA’s define as a grievance.
Our decision here does not bar the adjudication of wage claims like Lazard’s; we
only hold that a represented employee must first exhaust applicable internal
administrative remedies before pursuing her claims in court. And because Lazard does
not allege that she exhausted internal remedies, demurrer as to her state law wage claims
was appropriate.
15
Zavala, supra, 143 Cal.App.4th 585 is distinguishable, as it involved the
question of whether judicial resolution of claimed statutory violations could be precluded
by an arbitration agreement. Zavala was also decided before more recent cases held that
waiver of a right to pursue statutory claims is valid if it is clear and unmistakable. (See
Wilson-Davis, supra, 62 Cal.App.5th at p. 1093.)
16
C. The FLSA Claim (Seventh Cause of Action)
Finally, Lazard argues that the trial court erred when by sustaining the county’s
demurrer to her newly added seventh cause of action under the FLSA. “[W]hen a trial
court sustains a demurrer with leave to amend, the scope of the grant of leave is
ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the
particular causes of action to which the demurrer was sustained, but that is all. [Citation.]
‘The plaintiff may not amend the complaint to add a new cause of action without having
obtained permission to do so, unless the new cause of action is within the scope of the
order granting leave to amend.’ ” (Community Water Coalition v. Santa Cruz County
Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1329.) Because the trial
court did not give Lazard permission to add a new cause of action, her addition of a new
cause of action under the FLSA was improper.
We recognize that in limited circumstances, it may be proper for a plaintiff to add
a new cause of action if the cause of action directly responds to the trial court’s rationale
for sustaining a demurrer. For example, in Patrick v. Alacer Corp. (2008)
167 Cal.App.4th 995, the Court of Appeal held that it was proper for a plaintiff to add a
new cause of action for declaratory relief that she had a community property interest in
the defendant corporation when the trial court sustained a demurrer on the basis that the
plaintiff lacked standing to bring a lawsuit. (Id. at p. 1015.) But unlike Patrick, Lazard’s
new legal theory under the FLSA does not cure the defect the trial court identified in
sustaining the demurrer to her first amended complaint—Lazard’s failure to allege
exhaustion for her existing causes of action. By pleading a new cause of action under the
FLSA, Lazard did not allege that she had exhausted internal remedies for those existing
claims; instead, she alleged a cause of action under a new legal theory that she believes is
17
not subject to exhaustion under the collective bargaining agreement.16 Amending the
complaint to add the FLSA action thus exceeded the trial court’s grant of leave to amend
her claims to cure the litigated deficiencies.
Accordingly, the addition of a new cause of action was “not within the scope of
the order granting leave to amend”; thus, the trial court did not err in sustaining the
demurrer without leave to amend as to the seventh cause of action. (Harris v. Wachovia
Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023–1024.)
III. DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
16
The county argues that the FLSA cause of action was based on federal law that
Lazard “expressly disclaimed” in her first amended complaint, making her inclusion of
the claim in the second amended complaint a sham pleading. Not so. Lazard’s initial
claim that her lawsuit raised no federal question was a legal conclusion, not a factual
allegation. Thus the sham pleading doctrine would be inapplicable. (See Berman v.
Bromberg (1997) 56 Cal.App.4th 936, 949 [declining to apply sham pleading doctrine
when “plaintiff seeks to change his legal theory of recovery and the legal conclusions he
seeks to draw from underlying factual events” (italics added)].)
18
LIE, J.
WE CONCUR:
GROVER, Acting P. J.
WILSON, J.
Lazard v. County of Santa Clara
H052886