Peck
v. City of Hawthorne







Filed
2/26/13 Peck v. City
of Hawthorne CA2/7

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
SEVEN




>

HOLLY PECK et al., Plaintiffs and Appellants, v. THE CITY OF HAWTHORNE, Defendant and Respondent.

B236442 (href="http://www.sandiegohealthdirectory.com/">Los Angeles County Super. Ct. No. BC444994)

APPEAL from
a judgment of the Superior Court of Los
Angeles County, Mel Red Recana, Judge.
Affirmed.

Abrolat
Law, Nancy L. Abrolat and Edward E. Kim for Plaintiffs and Appellants.

Liebert
Cassidy Whitmore, Jeffrey C. Freedman and Kevin W. Chiang for Defendant and
Respondent.



____________________



>INTRODUCTION



Plaintiffs Holly Peck, Daniel Mills and Kathy Burnett,
individually and on behalf of others similarly situated, appeal from a judgment
of dismissal in favor of defendant The City of Hawthorne entered after the
trial court sustained defendant’s demurrer without leave to amend. The trial court sustained the demurrer on the
ground the Public Employees Medical
Care and Hospitalization Act (PEMCHA, Gov. Code, § 22751 et seq.)
provided no private right of action. We affirm.



FACTS



Plaintiffs
were employed by defendant. As public
employees, they were entitled to enroll in health insurance plans through the
Public Employees Retirement System (PERS).

Under
PEMCHA, the amount plaintiffs were to pay for the href="http://www.sandiegohealthdirectory.com/">health insurance plans was
the total cost of coverage less the amount paid by defendant as their
employer. That amount was specified by
statute.

Defendant
failed to make the required payments toward the cost of plaintiffs’ health
insurance coverage. Instead, it deducted
the entire cost from plaintiffs’ paychecks, without their consent.



DISCUSSION



On href="http://www.fearnotlaw.com/">appeal from a judgment dismissing an
action following the sustaining of a demurrer, we apply the de novo standard of
review. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.) “We assume the truth of the allegations in
the complaint, but do not assume the truth of the contentions, deductions, or
conclusions of law.” (California
Logistics, Inc. v. State of California
(2008) 161 Cal.App.4th 242, 247.) We
review de novo “whether the complaint states facts sufficient to constitute a href="http://www.mcmillanlaw.us/">cause of action.” (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.)

As the
trial court found, the question whether a statute provides a private right of
action is a question of law, which may be decided on demurrer. (See Moradi-Shalal
v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 313; >Animal Legal Defense Fund v. Mendes
(2008) 160 Cal.App.4th 136, 139.) This
question “is primarily one of legislative intent.” (Animal
Legal Defense Fund, supra, at p.
142.) If the statute expresses an intent
on the matter, we are bound by that intent.
(Ibid.) If no intent is expressed, there is no
private right of action unless required by “compelling reasons of public
policy.” (Id. at pp. 142, 144.)

Government
Code section 22890href="#_ftn1" name="_ftnref1"
title="">^[1] requires a contracting agency and an employee
to “contribute a portion of the cost of providing the benefit coverage afforded
under the health benefit plan” in which the employee is enrolled. Section 22892 sets forth the minimum employer
contribution to the cost of the employee’s health insurance coverage. The trial court found “that the Legislature
neither directly nor impliedly intended for [section] 22892 to provide a
private right of action,” and the remedy for a failure to comply with section
22892 is a petition for writ of mandate under Code of Civil Procedure section
1085 (see, e.g., Bernard v. City of
Oakland (2012) 202 Cal.App.4th 1553, 1558; McKee v. Public Employees’ Retirement System (1985) 176 Cal.App.3d
1054, 1056; California Correctional
Officers’ Assn. v. Board of Administration (1978) 76 Cal.App.3d 786, 789).

Plaintiffs
first contend that the trial court failed to perform a proper analysis in
determining PEMCHA did not create a private right of action for violation of
section 22892. Inasmuch as we
review the question de novo, we need not be concerned with the trial court’s
method of analysis.

Plaintiffs
do not argue that the Legislature expressed the intent to create a private
right of action under section 22892.
Rather, they argue that “compelling reasons of public policy” (>Animal Legal Defense Fund v. Mendes, >supra, 160 Cal.App.4th at p. 142)
require that public employees be given a private right of action to enforce
section 22892. They rely primarily on
the fact that PEMCHA was enacted as “an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect.” (Stats. 2004, ch. 69,
§ 41, p. 435.) However, the
enacting legislation went on to state that “[t]he facts constituting the
necessity are: [¶] In order to facilitate the orderly
administration of public retirement systems subject to this act at the earliest
possible time, it is necessary that this act take effect immediately.” (Ibid.)

Nothing in
the Legislature’s stated intent for enacting PEMCHA as an urgency statute
suggests the existence of a compelling public policy requiring enforcement of
its provisions by private right of action.
The stated intention of the legislation was not to remedy an evil
directly affecting public employees; it was an administrative measure.

Plaintiffs
rely on Goehring v. Chapman University
(2004) 121 Cal.App.4th 353 in support of their argument. Goehring
involved Business and Professions Code section 6061, a provision of the
State Bar Act, which requires unaccredited law schools to provide students with
disclosure statements containing information regarding the school’s
unaccredited status, its bar passage rate, and other pertinent facts. The section also provides that if the school
does not comply with the disclosure requirements, it must make a full refund of
the fees paid by the students. Based on
the refund requirements, the court held that since “the Legislature
unquestionably intended to bestow students or former students with individual
monetary claims, it must have intended to give them private rights of action to
pursue such claims. In our view,
[Business and Professions Code] section 6061’s refund language explicitly
denotes a private right of action.” (>Goehring, supra, at pp. 377-378.)

Plaintiffs
argue that “by enacting PEMCHA, the Legislature similarly granted every
qualifying public employee the right to monetary contribution from his or her
public employer toward health insurance premiums. Consequently, the Legislature must have
intended a means by which monies which were due but unpaid could be recovered.” But unlike Business and Professions Code
section 6061, nothing in section 22892 suggests an individual right to recover
if the public employer fails to pay its contribution toward employee health
insurance coverage. Rather, the focus of
section 22892 is setting the amounts which the employer must pay.

Plaintiffs
also assert that a writ of mandate is not a remedy for violation of
section 22892, in that payment of employer contributions to employee
health insurance coverage is not a ministerial duty to which Code of Civil
Procedure section 1085 applies. As
previously noted, petitions for writ of mandate previously have been used to
raise claims under PEMCHA, and those claims have not been rejected on the
ground mandate was not an appropriate remedy.
(See, e.g., Bernard v. City of
Oakland, supra, 202 Cal.App.4th
at p. 1558; McKee v. Public Employees’
Retirement System, supra, 176
Cal.App.3d at p. 1056; California
Correctional Officers’ Assn. v. Board of Administration, >supra, 76 Cal.App.3d at p. 789.)

Mandate is
an appropriate means for compelling a public official to perform an official
act that is required by law. (>Common Cause v. Board of Supervisors
(1989) 49 Cal.3d 432, 442.) It generally
will lie only to compel the public official’s performance of a duty which is
purely ministerial in nature. (>Transdyn/Cresci, JV v. City and County of
San Francisco (1999) 72 Cal.App.4th 746, 752.) “A ministerial duty is an obligation to
perform a specific act in a manner prescribed by law whenever a given state of
facts exists, without regard to any personal judgment as to the propriety of
the act. [Citation.]” (People
v. Picklesimer (2010) 48 Cal.4th 330, 340.)
Mandate also is “available to ‘correct those acts and decisions of
administrative agencies which are in violation of
law . . . .’ [Citation.]” (Transdyn/Cresci,
JV, supra, at p. 752.)

As noted in
Bernard v. City of Oakland, >supra, 202 Cal.App.4th at page 1560, if
a public employer chooses to contract with PERS, it must comply with section
22892’s requirement that it make specified minimum payments toward the
employee’s health insurance coverage.
This is the essence of a ministerial duty—a duty to act when a given
factual situation exists. (>People v. Picklesimer, >supra, 48 Cal.4th at p. 340.)

Plaintiffs
argue that the acts required here are not ministerial, in that “the trial court
must calculate the amounts that are owed to each claimant and direct
[defendant] to pay that amount.”
Plaintiffs are incorrect.
Defendant’s duty to pay its employees the amount “prescribed by law” is
a ministerial duty. (>People v. Picklesimer, >supra, 48 Cal.4th at p. 340.) Consequently, mandate is appropriate to
remedy defendant’s failure to comply with section 22892’s minimum payment
requirements.href="#_ftn2" name="_ftnref2"
title="">^[2]



DISPOSITION



The
judgment is affirmed. Defendant is to
recover costs on appeal.





JACKSON,
J.





We concur:







PERLUSS,
P. J.







ZELON,
J.