Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC485532 Bernard Schwartz, Judge.
Westrup Klick, R. Duane Westrup, Lawrence R. Cagney, Patricia K. Oliver; Krieger & Krieger, Linda Guthmann Krieger and Terrence B. Krieger, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Alicia M.B. Fowler, Assistant Attorney General, and Chris A. Knudsen and Jodi L. Cleesattle, Deputy Attorneys General, for Defendants and Respondents.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Plaintiff Wesley E. Vandiver appeals from the judgment of dismissal following the trial court’s sustaining of demurrers to his complaints against defendants State of California (State) and California Highway Patrol (CHP) without leave to amend. Vandiver contends the trial court: (1) erred in sustaining defendants’ demurrer to his claim for a violation of Labor Code section 1194; (2) improperly considered its personal experience when finding that his on-call time was not compensable; (3) abused its discretion by refusing to grant him another opportunity to amend his complaint; and (4) erred in ruling that his breach of contract action was barred by his failure to exhaust his administrative remedies. We find no error, and affirm.
II. FACTS AND PROCEDURAL BACKGROUND
In this appeal, which arises from the trial court’s sustaining a demurrer, “we look to the ‘properly pleaded factual allegations’ of the operative complaint ‘read in light of’ any ‘judicially noticeable facts’ and ‘factual concessions’ of the plaintiff.” (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 506 & fn. 1.) Our statement of facts is therefore based on the factual allegations of the first and second amended complaints, which were the subjects of the demurrers at issue, as well as matters subject to judicial notice. (Baltins v. James (1995) 36 Cal.App.4th 1193, 1197.)
Vandiver filed a first amended complaint alleging a first cause of action for breach of contract and a second cause of action for a violation of Labor Code section 1194. Vandiver alleged he was employed by the CHP from May 2003 through May 2006 as an investigation officer with the Multidisciplinary Accident Investigation Team (MAIT). Vandiver was a member of the California Association of Highway Patrolmen (CAHP). Vandiver was subject to the terms and conditions of Bargaining Unit 5 Highway Patrol Agreement (the Agreement) between defendants and the CAHP.
We note that Vandiver’s complaint purported to allege claims on behalf of himself and others similarly situated; however, the record before us contains no indication the matter was ever certified as a class action; indeed, defendants demurred to the complaints on the ground, among others, that they failed “to adequately allege a well-defined community of interest between the members of the purported class.” It does not appear that the trial court sustained the demurrers on that basis, and the appeal was brought only by Vandiver as an individual.
Paragraph 33 of the Agreement provided that “[w]hen the employer requires that an employee must be available for work, and be able to report for work, in less than one and one-half hours, the employee shall be compensated at the rate of one hour’s pay... for each four hour shift or fraction thereof. Employees may only accrue five hours pay... for each 24-hour period of standby.”
Vandiver alleged that as a MAIT investigation officer, he was required to be on standby 24 hours a day, 7 days a week, 52 weeks a year, when he was not working his regular shifts, and he was required to be available and respond immediately while on standby. He was permitted to take a state-owned vehicle home with him, because he was required to respond rapidly with appropriate equipment to incidents in San Diego, Orange, Riverside, and Imperial Counties. Vandiver held a teaching position at a community college while he was also working as a MAIT investigation officer, with the understanding that his duty to respond to a MAIT call-out request would have priority.
Vandiver alleged that, although he was required to be on standby continuously, he was not compensated for his standby times under paragraph 33 of the Agreement. He further alleged that he was not compensated for all of the standby hours he worked and therefore received less than the legal minimum wage in violation of Labor Code section 1194, subdivision (a).
Defendants filed a demurrer to the first amended complaint on the ground, among others, that Vandiver failed to exhaust administrative remedies, and the court therefore lacked jurisdiction. (Code Civ. Proc., § 430.10, subd. (a).) The trial court sustained the demurrer without leave to amend as to the first cause of action for breach of contract on the ground of failure to exhaust administrative remedies, but with leave to amend as to his second cause of action for violation of Labor Code section 1194, subdivision (a).
Vandiver filed a second amended complaint alleging a violation of Labor Code section 1194. He repeated generally the allegations of the first amended complaint and added more specific allegations about his obligations and duties as a MAIT investigator. He alleged that MAIT team members investigate all major traffic collisions on highways throughout the state; there are only eight MAITs in California, and each is assigned to a separate region. Each team consists of five or six investigators and includes a CHP sergeant and two specially trained CHP officers. Each team member offers special skills essential to an investigation.
Vandiver alleged the team members were on call 24 hours a day, 7 days a week, 365 days a year. Team members cannot turn down calls to an accident scene and cannot trade on-call duty with another officer. Holidays, evenings, and weekends were particularly busy times for MAIT investigators. They cannot carry their equipment with them when conducting personal business and cannot drive their state-owned vehicles for personal business. They instead keep their state-owned vehicles and equipment at their homes and must remain close to their homes so they can quickly retrieve their vehicles, uniforms, and equipment and immediately report to the scene of an accident. Failure to accept a call could result in a reprimand and potentially in discipline. The investigations often last several hours or all day.
Vandiver alleged that because MAIT team members are always on call, they cannot spontaneously go out of town, especially on weekends and holidays, with their families. They often are called away during meals with their families or dates. They must schedule care for their children in advance because they are subject to being called away on a moment’s notice. They must always leave their cell phones on and be accessible by telephone or radio. They must avoid social drinking.
Vandiver again alleged he was never compensated for his standby time and therefore received less than the legal minimum wage in violation of Labor Code section 1194, subdivision (a).
Defendants filed a demurrer to the second amended complaint on the ground it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer without leave to amend and thereafter entered a judgment of dismissal.
III. DISCUSSION
A. Breach of Contract Claim
The trial court sustained the demurrer to the breach of contract claim in the first amended complaint because Vandiver did not adequately plead exhaustion of his administrative remedies or any legally viable excuse for his failure to exhaust his administrative remedies. Vandiver contends the trial court’s ruling was in error.
1. Standard of Review
On appeal from a judgment of dismissal following the sustaining of a demurrer to a complaint without leave to amend, this court exercises its independent judgment as to whether the complaint states a cause of action as a matter of law. (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) We give the complaint a reasonable interpretation and accept as true the well-pleaded allegations. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)
2. Requirement of Exhaustion of Administrative Remedies
Exhaustion of administrative remedies is a jurisdictional prerequisite to a lawsuit against a public entity. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321-322.) A public entity “must be given the opportunity to reach a reasoned and final conclusion on each and every issue upon which [it has] jurisdiction to act before those issues are raised in a judicial forum.” (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 510.) Thus, “failure to exhaust administrative remedies is a bar to relief in a California court....” (Id. at p. 495.) “[A]n administrative remedy is exhausted only upon ‘termination of all available, nonduplicative administrative review procedures.’” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080.)
An exception to the requirement of exhaustion of administrative remedies applies when “resort to the administrative process would be futile because it is clear what the agency’s decision would be.” (Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 222.) However, the futility exception “is very narrow and will not apply unless the petitioner can positively state that the administrative agency has declared what its ruling will be in a particular case.” (Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1126.)
Vandiver’s breach of contract claim arose from and involved the interpretation of the Agreement. Vandiver admitted he did not exhaust the grievance procedure provided under the terms of the Agreement. He alleged it would have been futile to do so, and his remedies would have been inadequate, because his superiors told him he was not entitled to standby pay. Specifically, he alleged: “During the course of his employment and prior to filing this lawsuit, Plaintiff verbally communicated to Defendants’ representatives, on several occasions, Plaintiff’s belief that he was entitled to be compensated for the hours that he spent working on standby. Approximately one year after Plaintiff began his employment as [a] MAIT Investigation Officer, Plaintiff spoke with the Division’s Assistant Chief and his immediate supervisor about his belief that he was entitled to payment for hours spent on standby. Defendants’ representatives responded by discouraging Plaintiff from seeking further recourse. Further, Plaintiff was told by the Assistant Chief that, raising the issue was not a good way for Plaintiff to keep his position as [a] MAIT Investigation Officer. Additionally, in and around late 2004 or early 2005, Plaintiff mentioned the Agreement terms, along with his belief that he was entitled to compensation for hours he spent on standby, to the Division Chief. The Division Chief responded that the CAHP Agreement terms did not apply.” Vandiver further alleged: “In light of the response Plaintiff received from Defendants’ representatives to his inquiries regarding entitlement to standby pay, Plaintiff believed further requests would be futile and would jeopardize his position as [a] MAIT Investigation Officer. Plaintiff is relieved and excused from his obligation to exhaust administrative remedies on the basis that they would be futile and inadequate.”
The Agreement defines a grievance as “a dispute... involving the interpretation, application, or enforcement of the express terms of this Agreement.” The Agreement provides a multilevel appeal process. Under the Agreement, if Vandiver was not satisfied with the result of his informal discussions with his superiors, he could have appealed with a formal grievance. If he was not satisfied with the decision on his formal grievance, he could have pursued the grievance through second and third levels of appeal. If he was not satisfied with the CHP’s decision, he could have brought the issue before the Director of the Department of Personnel Administration. If he was still not satisfied, he had the option of arbitration before a neutral arbitrator. Vandiver took none of those steps beyond the informal discussions with superiors. Moreover, Vandiver did not allege that the superiors with whom he raised the issue were the ultimate decision makers on a grievance, nor does the Agreement so indicate. Thus, Vandiver has failed to “positively state that the administrative agency has declared what its ruling will be in a particular case” (Bollengier v. Doctors Medical Center, supra, 222 Cal.App.3d at p. 1126), and his allegations are legally insufficient to establish the futility exception.
We conclude the trial court properly sustained defendants’ demurrer to Vandiver’s breach of contract action because Vandiver failed to exhaust his administrative remedies and failed to plead futility or a legally valid excuse. (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., supra, 35 Cal.4th at p. 1080.)
B. Claim under Labor Code Section 1194
Vandiver contends the trial court erred in sustaining defendants’ demurrer to his claim for a violation of Labor Code section 1194 in his second amended complaint. Specifically, Vandiver contends an issue of fact existed as to whether his standby time was compensable under Labor Code section 1194, subdivision (a).
1. Analysis
Labor Code section 1194, subdivision (a) states: “Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” Under California Code of Regulations, title 8, section 11040, “‘[h]ours worked’” “means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”
“Whether and to what extent employees are able to use on-call time for personal activities is a question of fact.... However, whether the limitations on the employees’ personal activities while on-call are such that on-call waiting time would be considered compensable... is a question of law which we review de novo.” (Berry v. County of Sonoma (9th Cir. 1994) 30 F.3d 1174, 1180.) In this case, Vandiver alleged certain restrictions on his private activities, and for purposes of reviewing the trial court’s ruling on the demurrer, we accept those allegations as true. Our task is therefore to determine whether, as a matter of law, those restrictions so limited his private activities that his on-call time was compensable. (Ibid.)
In Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403 (Madera), the court adopted a two-step analysis for determining whether city police officers were entitled to compensation during their meal breaks: “We first examine whether the restrictions on off-duty time are primarily directed toward the fulfillment of the employer’s requirements and policies. Second, we analyze whether the employee’s off-duty time is so substantially restricted that they are unable to engage in private pursuits.” (Id. at p. 409.) The court “must examine the restrictions cumulatively to assess their overall effect on the worker’s noncompensatory time.” (Id. at p. 411.)
In Madera, a city police officers association and several of its members sued the city seeking payment for overtime wages. The plaintiffs claimed they were subject to so many restrictions during their half-hour meal breaks (Code 7 time) that they were entitled to overtime pay for that time. The court described those restrictions: “The watch commander of a shift decides when the employee may begin Code 7 time. The officers, sergeants and dispatchers do not decide when to take their Code 7 period and they do not have any right to a Code 7 period at a particular time. Thus, they cannot schedule in advance and keep personal appointments during Code 7 time. The employees are on call during Code 7 time and can be interrupted or called away from their meal because of emergencies. They must leave a telephone number or address where they can be reached. If actually called into duty during Code 7 time, they must apply for overtime compensation, although it is unclear from the record if the employees were ever made aware of this possibility. If the employees remain in uniform, they cannot conduct personal business.... The officers must also respond to citizen inquiries and crimes committed in their presence. Finally, because fewer employees are at work during the swing shift (2:45 p.m. to 11:15 p.m.) and the graveyard shift (10:45 p.m. to 7:15 a.m.) the dispatchers working those shifts are not even permitted to leave the building during Code 7 time.” (Madera, supra, 36 Cal.3d at pp. 407-408, fn. omitted.) The court held that, considered cumulatively, the restrictions so limited the employees’ private time that they were entitled to compensation. (Id. at p. 409.)
In Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508 (Gomez), service representative employees of a company that provided respiratory services and medical equipment setup in patients’ homes sued their employer to recover compensation for, among other things, “the time they were on call, even when not responding to customer calls.” (Id. at p. 511.) The plaintiffs’ duties included transporting and setting up medical equipment for patient clients. They worked regular eight-hour shifts, but were also required to carry pagers or cell phones after regular work hours and to respond to patient telephone calls within 30 minutes and to be able to respond in person within two hours at night or on weekends. (Id. at pp. 512, 524.) They were allowed to trade on-call responsibilities. (Id. at p. 524.) While on call, they were prohibited from consuming alcohol, but could engage in any other activities. When they made after-hours service calls, they were compensated at their regular rate of pay; however, they were not compensated for patient telephone calls. (Id. at pp. 512-513.)
The defendant in Gomez moved for summary adjudication on the plaintiffs’ statutory claim for failure to pay wages; the trial court determined there were no triable issues of material fact and granted the motion. (Gomez, supra, 173 Cal.App.4th at p. 523.) Citing Armour & Co. v. Wantock (1944) 323 U.S. 126, 132, the court stated: “On-call waiting time may be compensable if it is spent primarily for the benefit of the employer and its business.” (Gomez, supra, at p. 523.) The Gomez court applied the list of factors set forth in Owens v. Local No. 169 (9th Cir. 1992) 971 F.2d 347, 351, for determining whether the employee was free to engage in personal activities: “‘(1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee’s movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during call-in time.’” (Gomez, supra, at p. 523.)
The court in Gomez observed that “[p]laintiffs’ depositions confirmed they had engaged in some personal activities while on call; we do not believe plaintiffs’ unilateral decisions to avoid personal activities while on call changes the fact that they did engage in some activities and could have continued to do so.” (Gomez, supra, 173 Cal.App.4th at p. 524.) Thus, the court held that summary adjudication in favor of the defendant was proper. (Ibid.)
In Owens, employees were not required to live on the employers’ premises, “were not required to stay at home or anywhere else, ” were not required to accept call-ins, and were provided pagers to make the call-ins easier. (Owens v. Local No. 169, supra, 971 F.2d at p. 357.) Moreover, the defendants established that the plaintiffs “engaged in a wide variety of personal activities during the on-call hours....” (Id. at p. 356.) Based on those facts, the court reversed a grant of summary judgment in favor of the plaintiffs and remanded with directions to grant summary judgment in favor of the defendants. (Id. at p. 357.)
Here, defendants did not require Vandiver to live on-site. Vandiver did not allege specific geographic restrictions, other than being required to report “immediately, ” nor did he allege the frequency with which he was required to respond to calls when he was off duty. Vandiver was not allowed to trade on-call responsibilities. He was required to be accessible by radio or cell phone-the modern equivalent of a pager-and thus was not restricted to his home or office. Those factors, considered together, might lead to a conclusion that an issue of fact existed as to whether Vandiver’s on-call time was spent primarily for the employer. Significantly, however, the complaint made clear that Vandiver was free to engage in personal activities during his on-call time-the complaint referred to going to dinner and the movies and spending time with family and friends, even if he was subject to calls during those activities. Most importantly, he alleged that he even engaged in outside employment-a teaching position at a community college-while he was on call, albeit “with the understanding” that his MAIT responsibilities “would have priority....”
Although the issue in this case arose in the context of a demurrer rather than a motion for summary judgment as in many of the authorities cited, we can determine as a matter of law that the allegations of the complaint do not support relief-an employee who is allowed to accept outside paid employment cannot establish that the restrictions on his activities entitled him to compensation from another employer during the same time. As the trial court observed, the complaint really alleged only that the standby status interfered with personal activities only to the extent that Vandiver could have been called at any time. That limitation alone is insufficient as a matter of law to require compensation.
C. Basis for Trial Court’s Ruling
Vandiver argues the trial court improperly considered its personal experience when finding that MAIT officers’ on-call time was not compensable. Because we review the trial court’s decision de novo, we affirm the judgment if it is correct for any reason, regardless of the trial court’s stated reasons. (See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) Thus, the trial court’s reasoning, even if incorrect, is irrelevant. As we have discussed above, we agree with the trial court’s result.
D. Trial Court’s Discretion to Permit Amendment of Complaint
Vandiver contends the trial court abused its discretion by refusing to allow him to amend his complaint for the third time.
1. Standard of Review
We review the trial court’s decision whether to grant leave to amend for abuse of discretion. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) If there is no reasonable possibility that the pleading can be cured by amendment, we will affirm the trial court’s decision. (Ibid.) The appellant has the burden of demonstrating an abuse of discretion by showing the manner in which he can amend his complaint and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
2. Labor Code Section 1194 Claim
Here, with respect to his claim under Labor Code section 1194, Vandiver’s counsel expressly stated he could not plead any additional facts regarding the restrictions on MAIT officers’ freedom while they were on call. We have concluded, as discussed above, that the facts pleaded were insufficient to state a claim for relief. We therefore conclude that the trial court properly sustained the demurrer to the second amended complaint without leave to amend. (Goodman v. Kennedy, supra, 18 Cal.3d at pp. 349-350.)
3. Breach of Contract Claim
With respect to his breach of contract claim, Vandiver represented to the trial court that he could amend his first amended complaint to allege with greater specificity the statements his superiors made to him, including that pursuing administrative remedies would result in negative consequences and even the loss of his position on the MAIT team. However, such allegations would not, as a matter of law, establish the excuse of futility-that exception requires that the government agency has declared what the result would be. (Bollengier v. Doctors Medical Center, supra, 222 Cal.App.3d at p. 1126.) Thus, the trial court did not err in sustaining defendants’ demurrer to Vandiver’s breach of contract claims without leave to amend.
IV. DISPOSITION
The judgment is affirmed. Parties to bear their own costs.
We concur: RAMIREZ P.J., MILLER J.