Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC208582, Carl J. West, Judge.
Clark & Markham, David R. Markham, Mark C. Hinkley, and James M. Treglio; The Lewis Law Firm and Murray Lewis for Plaintiffs and Appellants.
Jones Day, Elwood Lui, Philip E. Cook, and Brian M. Hoffstadt; Bergman & Dacey, Inc., and Gregory M. Bergman for Defendants and Respondents.
VOGEL, J.
The plaintiffs in this class action -- several lawyers employed and paid by Auxiliary Legal Services, Inc., an entity created to provide legal services to supplement those provided to the juvenile court by the office of the Los Angeles County Counsel -- claim they are common law employees of the County of Los Angeles and, among other things, entitled to benefits under the County’s retirement plan. The trial court disagreed and so do we.
FACTS
A.
In 1984, the Los Angeles County juvenile court caseloads increased so rapidly that many additional lawyers were needed to represent minors and others subject to the court’s jurisdiction, thus triggering section 44.7 of article IX of the Los Angeles County Charter, which provides: “Nothing in this Article shall prevent the County, when the Board of Supervisors finds that work can more economically or feasibly be performed by independent contractors, from entering into contracts for the performance of such work.” In response to the caseload crisis, the Board authorized “as-needed” contracts with lawyers for the juvenile court, and lawyers thereafter entered contracts with the County in which they were designated as “independent contractors.”
In June 1989, County Counsel informed the Board that the juvenile court’s caseloads had stabilized so that it would be administratively more efficient to acquire the needed attorney services through a single employer-provider, and asked the Board to approve the formation of Auxiliary Legal Services, Inc. (ALS) to provide legal and related services to supplement necessary services provided by County Counsel. County Counsel told the Board that a new infrastructure was needed to enable the County to continue to cost effectively manage and maintain a professional corps of service providers without increasing the number of permanent classified County employees. The Board adopted County Counsel’s proposals, ALS was created, and the County and ALS then entered a contract pursuant to which ALS agreed to provide lawyers in such number as were from time to time requested to work under the direction and control of County Counsel. Under the terms of the contract, ALS was an independent contractor, and the lawyers provided by ALS were to be employees solely of ALS and not of the County for any purpose. (Hall v. County of Los Angeles (2007) 148 Cal.App.4th 318, 320-321.)
Hall was a class action in which several ALS employees alleged gender-based wage discrimination claims against the County. The trial court granted the County’s motion for summary judgment and we affirmed. (Hall v. County of Los Angeles, supra, 148 Cal.App.4th 318.)
B.
In April 1999, Robert Shiell filed this class action against the County and, in his fifth amended complaint filed in July 2002, sought damages and other relief on “causes of action” for violations of his right to equal protection, breach of the County’s duty to properly designate its employees, breach of third-party beneficiary contracts, statutory violations, unfair and deceptive trade practices, and fraud. Shiell, a lawyer, alleged that he was hired by the County in 1987 and assigned to the Children’s Services Division, where he worked (for less pay and without County benefits) side-by-side with other lawyers “recognized” as “Deputy County Counsel.” According to Shiell, he worked as a trial lawyer until 1997, at which time he was promoted to “Lead Attorney,” in which capacity he supervised other attorneys, some of whom were “recognized” County employees (that is, Deputy County Counsel). The essence of Shiell’s complaint is that, since its inception, ALS and the County have used ALS as a “payroll service” to avoid the County’s duty to provide civil service benefits to the ALS lawyers.
Unless the context suggests otherwise, the other named plaintiffs (Danna Hall, Chester “Chet” Zager, Sheila Kurnetz, Florence Rhodes, Sabrina Eslamboly, Nydia Bonazzola, Angela Hernandez, Josie Haertel, and Michelle Mauricette) are included in our references to Shiell, and County Counsel (also named as a defendant) is included in our references to the County.
In 1999, Shiell was invited to and did apply for a County Counsel position to which, after examination, he was appointed.
The County answered, discovery ensued, and the parties (with the trial court’s approval) ultimately stipulated to a class for the limited purpose of allowing the trial court to decide three threshold issues. The class was thus defined as “[a]ll persons who, at any point in time, worked in or at the office of Los Angeles County Counsel . . . and who performed personal services for [County Counsel], but were not designated as employees of [County Counsel] and instead were designated as employees of [ALS].” At about the same time, the court adopted a case management plan providing a schedule for the resolution of the threshold issues based on stipulated facts.
C.
These were the threshold issues framed by the parties and answered by the trial court:
Threshold Issue No. 1 asked: “Is plaintiffs’ lawsuit (or any of the individual causes of action alleged in their complaint) time-barred, or are recoverable damages limited, under applicable statutes of limitations or Government Claims Act presentation requirements?”
In July 2005, the trial court ruled: “Plaintiffs’ claims accrued when they began their employment with ALS, and/or at such time as their status became ‘permanent’ and they had no reason to believe that the County would relent in its refusal to grant them civil service status. . . . This occurred in 1989 during the course of the [Los Angeles County Employees Relations Commission] proceedings [to unionize ALS’s attorneys], or, for those class members not employed in 1989, at the time the individual Plaintiffs or class members became employed by ALS . . . . [¶] [T]he ‘triggering event’ for purposes of commencing the statute of limitations . . . was, at the latest, in 1989 . . . when County Counsel DeWitt Clinton stated [that] he would never allow [ALS’s attorneys] to become official employees of the County Counsel’s Office.” The court rejected Shiell’s contention that the County was estopped from asserting the bar of limitations, finding that the County had never concealed anything or otherwise prevented Shiell from filing his action. The court also found that Shiell’s damage claims outside the one-year statutory period were barred by the Government Tort Claims Act because no claims had been timely filed.
Threshold Issue No. 2 asked: “In the event the plaintiffs are found to be common law employees of the County upon application of common law employment factors, are they entitled to salary, benefits [other than retirement benefits, which are the subject of Threshold Issue No. 3] and protections provided classified employees under the County Charter, the County Code, and the Los Angeles County Civil Service Commission Rules?”
In May 2006, the trial court ruled that County employment is not governed by the common law definition of employment, and that the class members were not entitled to salary benefits or protections provided to the County’s civil service employees. The court held that the County’s comprehensive civil service scheme “determine[s] who is a civil service employee, and how one is to become a civil service employee” -- and that “compliance with the civil service system is the only way to attain civil service status, as well as its salary, benefits . . ., and protections.” The court rejected Shiell’s claim that he and the class members had substantially complied with the requirements for entry into the civil service system, refused to rely on the common law definition of “employee” because the term is described by the governing statutes and rules, and confirmed the County’s right to decide, for economic reasons, to have certain work performed by independent contractors rather than civil service employees.
Threshold Issue No. 3 asked: “In the event that plaintiffs are found to be common law employees of the County upon application of common law employment factors, are they entitled to pension benefits, or service credits affecting the calculation of such benefits, under the County Employees Retirement Law of 1937 (CERL)?”
In August 2006, the trial court ruled that, assuming the class members were “common law” employees, they were nevertheless not entitled to benefits under CERL because (a) it was up to the County to determine who became a civil service employee entitled to retirement benefits, and (b) the class members are not employees within the meaning of CERL (Gov. Code, § 31469, subd. (a)).
Subsequent undesignated section references are to the Government Code.
D.
Shiell stipulated with the County for entry of judgment on the threshold issues, and a judgment on that stipulation was entered on October 24, 2006. Shiell appeals.
DISCUSSION
I.
We begin with a summary of the laws governing the County of Los Angeles in its capacity as a charter county.
A. A Brief Overview of County Law
When a California county adopts a charter, its provisions “are the law of the State and have the force and effect of legislative enactments.” (Cal. Const., art. XI, §§ 1, subds. (a), (b), 3, subd. (a), 4.) Under the “home rule” doctrine, county charter provisions concerning the operation of the county, and specifically including the County’s right to provide “for the number, compensation, tenure, and appointment of employees” (that is, a county’s core operations) trump conflicting state laws. (Cal. Const., art. XI, § 1, subd. (b); County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 285 [the “constitutional language is quite clear and quite specific: the county, not the state, not someone else, shall provide for the compensation of its employees”]; Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 65; Dibb v. County of San Diego (1994) 8 Cal.4th 1200, 1207; see also Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1149.)
The County’s charter, adopted in 1912, expressly permits the County to either hire its own employees or outsource work to independent contractors (L.A. County Charter, §§ 32-36½, 44.7; and see § 31000), and the County has plenary authority to determine who is a civil service employee and who is not (Los Angeles County Employees Assn. v. Superior Court (2000) 81 Cal.App.4th 164, 173, fn. 7 [“the determination of civil service status must be made on a county-by-county basis in accordance with each county's charter”]). As a result, the terms of civil service employment are governed by statute, not by contract. (Miller v. State of California (1977) 18 Cal.3d 808, 813-814 [public employment is not held by contract but by statute].)
Section 31000 provides: “The board of supervisors may contract for special services on behalf of the following public entities: the county, any county officer or department, or any district or court in the county. Such contracts shall be with persons specially trained, experienced, expert and competent to perform the special services. The special services shall consist of services, advice, education or training for such public entities or the employees thereof. The special services shall be in financial, economic, accounting (including the preparation and issuance of payroll checks or warrants), engineering, legal, medical, therapeutic, administrative, architectural, airport or building security matters, laundry services or linen services. They may include maintenance or custodial matters if the board finds that the site is remote from available county employee resources and that the county's economic interests are served by such a contract rather than by paying additional travel and subsistence expenses to existing county employees. The board may pay from any available funds such compensation as it deems proper for these special services. The board of supervisors may, by ordinance, direct the purchasing agent to enter into contracts authorized by this section within the monetary limit specified in Section 25502.5 of the Government Code.”
B. A Brief Summary of Los Angeles County’s Civil Service System
The County’s Charter assigns all County employment positions into one of two groups -- “unclassified service” (elected County officials, heads of County agencies, and other enumerated executive positions) and “classified service” (all remaining positions). (L.A. County Charter, § 33.) As required by the Charter, the County has a formal civil service system (detailed in its Civil Service Rules adopted by the Board of Supervisors and found in the Los Angeles County Code) for filling classified positions and fixing the salary and benefits of classified employees, and these rules define an “employee” as “any person holding a position in the classified service of the county.” (L.A. County Civil Service Commission Rules, rule 2.24.) The only way to become a Los Angeles County civil service employee is through compliance with the procedures set out in the County’s Civil Service Rules. (Id., rules 5.05(A), 6.01-6.03, 13.03, 22.01.)
The Charter also gives the County the right to hire independent contractors as a cost saving measure. (See Hall v. County of Los Angeles, supra, 148 Cal.App.4th 318.) To that end, the Los Angeles County Code includes detailed procedures covering the County’s ability to enter contracts with independent contractors when the services can in that fashion be performed more economically or feasibly than by classified employees. (L.A. County Code, ch. 2.121, §§ 2.121.310, 2.121.320, 2.121.330, 2.121.340, 2.121.350, 2.121.380, 2.121.420(A).) When these conditions are satisfied or when the County’s authority to contract is authorized by statute, section 44.7 of the County’s Charter expressly authorizes the use of independent contractors, notwithstanding that the work could be “performed by county employees through the recruitment of additional county personnel.” (L.A. County Code, § 2.121.250(B)(1); and see § 31000, fn. 5, ante.)
C. A Brief Summary of the County Employees Retirement Law (CERL)
Since 1937, Los Angeles County has participated in CERL, a pension system available to California’s counties that elect to participate and (as adopted by the County) covering persons (1) “employed by the county,” (2) “whose compensation is fixed by the board of supervisors of the county,” and (3) “whose compensation is paid by the county.” (L.A. County Code, ch. 5.20, § 5.20.010; §§ 31500, 31469, subd. (a) [“‘Employee’ means any officer or other person employed by a county whose compensation is fixed by the board of supervisors or by statute and whose compensation is paid by the county , and any officer or other person employed by any district within the county”], emphasis added.) Subject to a few exceptions for seasonal and part-time employees, all classified County employees are automatically enrolled in the Los Angeles County Employees Retirement Association (LACERA). (§§ 31550, 31551, 31552.)
Under section 31469, counties may make CERL available to employees whose compensation is fixed by statute or by the Board of Supervisors, but the County’s provision limits CERL’s benefits to employees whose compensation is fixed by the Board of Supervisors.
With these rules in mind, we turn to the issues raised on this appeal.
II.
Because the positions of Deputy, Associate, and Assistant County Counsel are identified in the Los Angeles County Code as classified civil service positions, Shiell contends the County cannot “hire more employees for the same work outside of civil service.” Since he and the class members were doing the same work as Deputy, Associate, and Assistant County Counsel, he claims they were de facto civil service employees. The essence of this claim is that they were “common law employees” and, as such, entitled to CERL benefits. We disagree.
A.
The concept of common law employment originally fixed the boundaries of vicarious liability in tort actions (Villanazul v. City of Los Angeles (1951) 37 Cal.2d 718), and later was applied to determine an employee’s responsibility under anti-kickback laws (People v. Palma (1995) 40 Cal.App.4th 1559, 1565-1566). More recently, the doctrine has been applied in employment law -- but only when the relevant statutory scheme does not define “employment.” (Metropolitan Water Dist. v. Superior Court (2004) 32 Cal.4th 491, 500-501 [referred to by the parties as Cargill, the name of the real party in interest].) Where (as here) the term is defined by the statute, the legislature’s definition controls and the doctrine of common law employment is irrelevant. (E.g., Reynolds v. Bement (2005) 36 Cal.4th 1075, 1086-1087 [common law doctrine does not apply when the Legislature has clearly and unequivocally defined its terms]; Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 10 [common law test applied where governing statute did not expressly define “employee” for purposes of an employer’s obligation to indemnify the employee’s expenses]; see also Eureka Teacher’s Assn. v. Board of Education (1988) 202 Cal.App.3d 469, 473-474; Peralta Federation of Teachers v. Peralta Community College Dist. (1979) 24 Cal.3d 369, 375-386; Balasubramanian v. San Diego Community College Dist. (2000) 80 Cal.App.4th 977, 983; Heard v. Board of Administration, etc. (1940) 39 Cal.App.2d 685, 695; Los Angeles County Employees Assn. v. Superior Court, supra, 81 Cal.App.4th at pp. 169-175.)
In Cargill, the statute stated only that an “employee” was “‘[a]ny person in the employ of any contracting agency.’” (Metropolitan Water District v. Superior Court, supra, 32 Cal.4th at p. 500.) In our case, by contrast, section 31469, subdivision (a), and Los Angeles County Code section 5.20.010 quite clearly and unequivocally define a CERL-eligible employee as a person employed by the county whose compensation is fixed by the Board of Supervisors and paid by the County. Consistent with the statute, the County’s Civil Service Rules define an “employee” as “any person holding a position in the classified service of the county” (L.A. County Civil Service Rules, rule 2.24) and provide that the only way to become a Los Angeles County civil service employee is through compliance with the procedures set out in the Civil Service Rules. (Id., rules 5.05(A), 6.01-6.03, 13.03, 22.01.) It follows ineluctably that this is not a case in which the statute refers to employees without defining the term, that eligibility for CERL benefits is entirely dependent on the statutory definition, and that the common law doctrine does not apply in this context.
B.
On a related point, Shiell contends the County has an “included-unless-excluded” civil service system, so that every “employee” who is not expressly excluded from the County’s civil service system is necessarily an included civil service employee. Shiell’s reliance on our decision in Los Angeles County Employees Assn. v. Superior Court, supra, 81 Cal.App.4th 164 (LACEA) to support this notion is misplaced. In LACEA, the judges at the Compton Municipal Court, in implementing a series of cost-saving measures, decided “that newly hired [courtroom] clerks would be non-civil service” and that existing deputy court clerks would lose their civil service status if they accepted a promotion. (Id., at p. 167.) We affirmed a judgment in favor of the clerks, holding that the judges had no power to deny civil service status to any county employee. (Id., at pp. 176-178.) LACEA has nothing to do with the County’s authority to hire independent contractors in lieu of creating more civil service positions, and there is nothing in LACEA to support Shiell’s “included-unless-excluded” theory in the context of this case.
The fact that Shiell and the class members performed the same duties as civil service employees has nothing to do with the price of tomatoes. As explained above, the County’s charter gives it the power to use independent contractors as a cost saving measure, notwithstanding that the work performed by the employees of the contractors could be performed by county employees through the recruitment of additional county personnel, and section 31000 expressly confirms this power with regard to lawyers. Under these circumstances, the quotidian details defining Shiell’s job duties are irrelevant. (Heard v. Board of Administration, etc., supra, 39 Cal.App.2d 685; Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 610-616; Smith v. County Engineer (1968) 266 Cal.App.2d 645, 649, 653; Anderson v. Lewis (1915) 29 Cal.App. 24, 27; Lopez v. Payne (1921) 51 Cal.App. 447, 449; Pinion v. State Personnel Board (1938) 29 Cal.App.2d 314, 318-319; Conover v. Board of Equalization (1941) 44 Cal.App.2d 283.)
Section 31000 is not limited to contracts for “special services.” In Handler v. Board of Supervisors (1952) 39 Cal.2d 282, 286-287, the Supreme Court held that section 31000 gives counties authority to enter special service contracts, not that the authority granted by the statute is limited to such contracts or in any other way. By its plain language (see fn. 5, ante), there is no such limitation in section 31000, and the only issue in Handler was whether the County of San Mateo had to proceed by way of ordinance rather than resolution.
For the reasons stated in the text, we reject Shiell’s contentions that he and the members of the class cannot be denied civil service protection simply because the County refused to give them examinations, or because the County did not “budget the positions for civil service compensation.”
III.
Shiell contends he and the class members are nevertheless covered by CERL and entitled to the same pension benefits as the County’s civil service employees. We disagree.
A.
These are the stipulated facts.
In June 1989, the County contracted with ALS for the latter’s provision of supplemental legal services. Shiell and the other class members were “hired to perform legal services consistent with their individual contracts with ALS, and with ALS’s contract with the County.” From the time Shiell and the members of the class “began working at ALS, and until they received a County civil service appointment, each class member received his or her paychecks from ALS drawn on ALS’s bank account,” and such benefits as were provided by ALS. “ALS billed the County monthly for the services provided by ALS attorneys and support staff under the 1989 contract. ALS was reimbursed by the County for these salary and benefit expenses each month.”
These are the materialfacts presented to the trial court with regard to this issue.
B.
Assuming (contrary to our discussion above) that Shiell and the class members are “common law employees for purposes of CERL,” and further assuming (without deciding) that the Board of Supervisors fixed the amount paid to the ALS lawyers by ALS, the stipulated facts establish that the lawyers were paid only by ALS from an ALS account, not by the County. It follows that the trial court’s decision -- that Shiell and the class members are not “employees” for purposes of CERL -- is factually and legally correct. (§ 31469, subd. (a); L.A. County Code, § 5.20.010 [defining a CERL-eligible employee as a person employed by the county whose compensation is fixed by the Board of Supervisors and paid by the County].)
In this context as elsewhere in his brief, Shiell’s reliance on Cargill is misplaced. The plaintiffs in Cargill, workers provided by contractors to the Metropolitan Water District, claimed they were the MWD’s common law employees and, as such, entitled to retirement benefits under the Public Employees’ Retirement Law (PERL, the state version of CERL). (Metropolitan Water Dist. v. Superior Court, supra, 32 Cal.4th at p. 496.) The Supreme Court did not decide in Cargill that the workers were in fact common law employees, only that, assuming they were, PERL requires enrollment of all common law employees. (Id., at p. 497.)
Under PERL, which applies to the state, not counties, workers are covered if they are “employees of a contracting agency who have by contract been included within [PERL], except local safety members.” (§ 20383; Metropolitan Water Dist. v. Superior Court, supra, 32 Cal.4th at p. 499.) MWD, a contracting agency, contended that the Legislature intended section 20383 to apply to an agency’s workers “only if the funds from which the worker is paid are controlled by the agency,” a criterion these workers did not meet (according to MWD) because their paychecks were issued by the labor suppliers, not MWD. (Metropolitan Water Dist. v. Superior Court, supra, 32 Cal.4th at p. 501.) The Supreme Court disagreed, noting the absence of any such limitation in the statute. (Id., at pp. 502-504.)
Cargill is factually and legally irrelevant in our case. First, there is no CERL equivalent of section 20383. Second, the rule is just the opposite -- a Los Angeles County worker becomes a CERL-eligible employee only if his salary is fixed by the Board of Supervisors and paid “by the county .” (§ 31469, subd. (a), emphasis added.) Third, there is nothing in the stipulated facts to suggest that the funds paid to Shiell and the class members by ALS were controlled by the County. (Compare People v. Groat (1993) 19 Cal.App.4th 1228, 1232-1235 [local government manager who approved her own time sheets thereby controlled disbursement of public funds within the meaning of the criminal misappropriation statute]; People v. Qui Mei Lee (1975) 48 Cal.App.3d 516, 519, 523 [same as to county medical director with authority to approve invoices from private hospitals which were then paid by county auditor]; and see Metropolitan Water Dist. v. Superior Court, supra, 32 Cal.4th at p. 504, fn. 9 [although control over the disbursement of funds may be exercised by persons other than those who actually write the checks, the “legal question of how much control is enough” cannot be made without a factual context].)
Although Shiell’s complaint alleged that ALS is an unlawful subterfuge and that it was created as part of a scheme to avoid the County’s obligations under its own civil service rules, Shiell presented the eligibility issue for decision without any evidence to support these allegations.
For these reasons, we agree with the trial court that Shiell and the members of the class are not CERL-eligible employees.
IV.
We summarily reject Shiell’s contention that he and the class members have substantially complied with the civil service system’s requirements and have become civil service employees “by operation of law.” A civil service statute is mandatory as to every requirement, and the doctrine of substantial compliance does not apply in this context. (State v. Adamson (1948) 226 Minn. 177, 182-183 [32 N.W.2d 281]; Conjour v. Whitehall Tp. (E.D. Pa. 1994) 850 F.Supp. 309, 315; Civil Service Board of City of Phoenix v. Warren (1952) 74 Ariz. 88, 90 [244 P.2d 1157]; Davenport v. Reed (Pa. Cmwlth. 2001) 785 A.2d 1058, 1062; Resnick v. Civil Service Com’n of City of Bridgeport (1968) 156 Conn. 28, 32-33 [238 A.2d 391]; Horner v. Acosta (Fed. Cir. 1986) 803 F.2d 687, 691-694.)
Our conclusion that Shiell has no rights under the civil service system makes it unnecessary to consider his challenges to the trial court’s rulings vis-à-vis the bar of limitations and the claim filing statutes, and Shiell’s failure to present any meaningful argument with regard to several other half-page “arguments” makes it unnecessary to say anything more than none of those claims have merit.
DISPOSITION
The judgment is affirmed. The County is entitled to its costs of appeal.
We concur: MALLANO, Acting P.J. JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.