McLean v. State of California

Filed 8/19/14
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

JANIS S. McLEAN, C074515

Plaintiff and Appellant, (Super. Ct. No. 34-2012-
00119161-CU-OE-GDS)
v.

STATE OF CALIFORNIA et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Sacramento County,
Raymond M. Cadei, Judge. Affirmed in part and reversed in part.

Kershaw, Cutter & Ratinoff, William A. Kershaw, Lyle W. Cook, and Stuart C.
Talley for Plaintiff and Appellant.

The Law Offices of Brooks Ellison and Patrick J. Whalen for California
Attorneys, Administrative Law Judges and Hearing Officers in State Employment as
Amicus Curiae for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, Fiel D. Tigno, Supervising Deputy Attorney
General, and William T. Darden, Deputy Attorney General, for Defendants and
Respondents..

1
 Plaintiff Janis McLean, a retired deputy attorney general, appeals from a judgment
of dismissal after the trial court sustained the demurrer of defendants the State of
California and the California State Controller’s Office to her class action seeking waiting
time penalties under Labor Code section 2031 for the failure to comply with the prompt
payment requirements of section 202. She contends the trial court erred in ruling that the
term “quits” in sections 202 and 203 does not apply to employees who quit to retire.
As we will explain, in the context of sections 202 and 203, we agree with McLean
that requirements applying to employees who quit also apply to employees who quit to
retire. We therefore reverse the judgment as to the State of California. However,
because we hold that it was unnecessary to name the California State Controller’s Office
as a defendant, we affirm the judgment of dismissal as to the controller’s office.
BACKGROUND
The Complaint
The operative pleading is the first amended complaint (FAC). It alleges that
McLean worked for the State of California until she retired from the Attorney General’s
office on November 16, 2010. She separated from service the same day she retired. She
did not receive her final wages on her last day of employment or within 72 hours of that
date. The correct amount of her wages for unused leave and vacation time were not
transferred into her supplemental retirement plan within 45 days of the last day of her
employment, as she requested. She did not receive wages that she had elected to defer to
2011 by February 1, 2011.
The FAC alleged, on information and belief, that defendants failed to make
prompt payments required by section 202 to the Plaintiff Class. The Plaintiff Class was
defined as all employees employed by the state who resigned or retired from their

1 Further undesignated statutory references are to the Labor Code.

2
employment November 2010 through March 2011, who did not receive prompt payment
of wages as required by section 202.2
The FAC alleged that on June 14, 2011, McLean filed a claim with the California
Victim Compensation and Government Claims Board on behalf of herself and the
Plaintiff Class. The Board rejected the claim.
The FAC contained one cause of action titled “For Violations of California Labor
Code Section 202 and Relief under California Labor Code Section 203.” It alleged that
section 202 required defendants to do the following for employees who resigned or
retired: (1) pay final wages within 72 hours, or immediately at the time of resignation if
given 72 hours notice of the employee’s intent to resign; (2) transfer wages for unused
leave and vacation time to a state sponsored supplemental retirement plan within 45 days
of the employee’s last day of employment, if the employee so requested; and (3) transfer
any wages that the employee elects to defer to the following calendar year by February 1
of that next year. The FAC alleged defendant did not promptly pay McLean her full
wages when she retired and that defendants did not timely pay final wages to the Plaintiff
Class.
The FAC sought penalties, costs of suit and expenses, and reasonable attorney
fees.
Defendants’ Demurrer
Defendants demurred on the ground that the FAC failed to state facts sufficient to
constitute a cause of action. Specifically, defendants contended that since McLean
retired, rather than “quit,” which is the relevant descriptive word actually used in the
statute, there was no basis for her claim for penalties under section 203 and she had not
stated a claim for a violation of section 202. Defendants argued that section 202 applied

2 We detail section 202 post in part III.

3
only to an employee who quits, and, by retiring, McLean did not quit. Further,
defendants claimed that neither the State of California nor the California State
Controller’s Office was McLean’s employer; rather, she was employed by the
Department of Justice. Defendants moved to strike considerable portions of the FAC.
Defendants requested judicial notice of two documents: (1) the legislative history
of Assembly Bill No. 1684, which approved a memorandum of understanding between
the state and State Bargaining Unit 2, the Association of California State Attorneys and
Administrative Law Judges, and amended section 202; and (2) provisions of the State
Administrative Manual regarding payrolls upon employee separations.
McLean requested judicial notice of the Legislative Counsel’s Digest of Assembly
Bill No. 2410, which amended section 220 to make sections 202 and 203 applicable to
the state. She also requested judicial notice of a different provision of the State
Administrative Manual concerning the controller’s payroll functions.
Ruling and Judgment
At the hearing on the demurrer, McLean indicated that if the trial court were to
affirm its tentative ruling sustaining the demurrer, she would prefer that the demurrer be
sustained without leave to amend, so she could immediately seek appellate review.
The trial court granted the requests for judicial notice. It sustained the demurrer
without leave to amend, finding that section 203 does not authorize penalties for
employees who have retired. The motion to strike was dropped as moot.
The court entered judgment in favor of defendants. McLean appealed.
DISCUSSION
I
Standard of Review
“Because the function of a demurrer is to test the sufficiency of a pleading as a
matter of law, we apply the de novo standard of review in an appeal following the
sustaining of a demurrer without leave to amend. [Citation.] We assume the truth of the

4
allegations in the complaint, but do not assume the truth of contentions, deductions, or
conclusions of law. [Citation.] It is error for the trial court to sustain a demurrer if the
plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of
discretion for the court to sustain a demurrer without leave to amend if the plaintiff has
shown there is a reasonable possibility a defect can be cured by amendment. [Citation.]”
(California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) We
will affirm the trial court’s decision to sustain the demurrer if it was correct on any
theory. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531,
539.)
“When considering an appeal from a judgment entered after the trial court
sustained a demurrer without leave to amend, we ‘accept as true all well-pleaded facts in
the complaint and give a reasonable construction to the complaint as a whole.’
[Citations.] In addition, we may consider matters that are properly the subject of judicial
notice, and were considered by the trial court. [Citation.]” (La Serena Properties, LLC v.
Weisbach (2010) 186 Cal.App.4th 893, 897.)
II
Statutory Interpretation
Resolution of this case requires interpretation of various provisions of the Labor
Code. Our fundamental task in construing a statute is to ascertain the Legislature’s intent
so as to effectuate the purpose of the law. (Hassan v. Mercy American River Hospital
(2003) 31 Cal.4th 709, 715.) The first step in the interpretative process is to examine the
words of the statute, because “statutory language is generally the most reliable indicator
of legislative intent.” (Ibid.) We give the words of a statute their ordinary and usual
meaning and construe them in the context of the statute as a whole. (Ibid.) “Courts
should give meaning to every word of a statute if possible, and should avoid a
construction making any word surplusage. [Citation.]” (Arnett v. Dal Cielo (1996)
14 Cal.4th 4, 22.)

5
 “Ordinarily, if the statutory language is clear and unambiguous, there is no need
for judicial construction. [Citation.] Nonetheless, a court may determine whether the
literal meaning of a statute comports with its purpose. [Citation.] We need not follow
the plain meaning of a statute when to do so would ‘frustrate[] the manifest purposes of
the legislation as a whole or [lead] to absurd results.’ [Citations.]” (California School
Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 340.)
When the plain meaning of the statutory language is insufficient to resolve the
question of interpretation, we proceed to the second step of statutory construction. In this
step, “we may consider various extrinsic aids to help us ascertain the lawmakers’ intent,
including legislative history, public policy, settled rules of statutory construction, and an
examination of the evils to be remedied and the legislative scheme encompassing the
statute in question. [Citation.]” (McAllister v. California Coastal Com (2008)
169 Cal.App.4th 912, 928.) “Both the legislative history of the statute and the wider
historical circumstances of its enactment may be considered in ascertaining the legislative
intent. [Citations.]” (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987)
43 Cal.3d 1379, 1387; accord, Mejia v. Reed (2003) 31 Cal.4th 657, 663.) “Finally, the
court may consider the impact of an interpretation on public policy, for ‘[w]here
uncertainty exists consideration should be given to the consequences that will flow from
a particular interpretation.’ [Citation.]” (Mejia, at p. 663.)
Labor Code provisions governing an employee’s wages are liberally construed to
effect their remedial purpose. (Brinker Restaurant Corp. v. Superior Court (2012)
53 Cal.4th 1004, 1027.) Such laws “reflect the strong public policy favoring protection
of workers’ general welfare and ‘society’s interest in a stable job market.’ [Citations.]”
(United Parcel Service Wage and Hour Cases (2010) 190 Cal.App.4th 1001, 1009.)
“ ‘[I]n light of the remedial nature of the legislative enactments authorizing the regulation
of wages, hours and working conditions for the protection and benefit of employees, the
statutory provisions are to be liberally construed with an eye to promoting such

6
protection.’ [Citations.]” (Brinker, at pp. 1026-1027; see also Murphy v. Kenneth Cole
Productions, Inc. (2007) 40 Cal.4th 1094, 1103 (Murphy) [given the Legislature's
remedial purpose, “statutes governing conditions of employment are to be construed
broadly in favor of protecting employees”].)
III
Prompt Payment Laws
The prompt payment of wages due an employee is a fundamental public policy of
California. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137,
1147.) “Public policy has long favored the ‘full and prompt payment of wages due an
employee.’ [Citation.] ‘[Wages] are not ordinary debts . . . . [Because] of the economic
position of the average worker and, in particular, his dependence on wages for the
necessities of life for himself and his family, it is essential to the public welfare that he
receive his pay’ promptly. [Citation.]” (Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d
831, 837.)
The Labor Code contains several provisions governing the payment of wages to an
employee who terminates service with his employer. Section 201 requires immediate
payment of earned and unpaid wages to an employee who is discharged. There are
special rules for temporary service employees (§ 201.3), employees engaged in the
production or broadcasting of motion pictures (§ 201.5), employees engaged in the
business of drilling oil (§ 201.7), and employees employed at venues that host live
theatrical or concert events (§ 201.9).
Section 202, one of the sections at issue here, provides in relevant part as follows:

“(a) If an employee not having a written contract for a definite period quits his or
her employment, his or her wages shall become due and payable not later than 72 hours
thereafter, unless the employee has given 72 hours previous notice of his or her intention
to quit, in which case the employee is entitled to his or her wages at the time of quitting.
...
“(b) Notwithstanding any other provision of law, the state employer shall be
deemed to have made an immediate payment of wages under this section for any unused
or accumulated vacation, annual leave, holiday leave, sick leave . . . or time off . . . ,
provided at least five workdays prior to his or her final day of employment, the employee

7
submits a written election to his or her appointing power authorizing the state employer
to tender payment for any or all leave to be contributed on a pretax basis to the
employee’s account in a state-sponsored supplemental retirement plan . . . provided the
plan allows those contributions. The contribution shall be tendered for payment to the
employee’s 401(k), 403(b), or 457 plan account no later than 45 days after the employee's
last day of employment. . . .

“(c) Notwithstanding any other provision of law, when a state employee quits,
retires, or disability retires from his or her employment with the state, the employee may,
at least five workdays prior to his or her final day of employment, submit a written
election to his or her appointing power authorizing the state employer to defer into the
next calendar year payment of any or all of the employee's unused or accumulated
vacation, annual leave, holiday leave, sick leave to which the employee is otherwise
entitled due to a disability, retirement, or time off to which the employee is entitled by
reason of previous overtime work where compensating time off was given by the
appointing power. . . .

[¶] . . . [¶]

“Payments shall be tendered under this section no later than February 1 in the year
following the employee’s last day of employment. . . .” (Emphasis added.)

Section 203, subdivision (a) provides: “If an employer willfully fails to pay,
without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 202, and
205.5, any wages of an employee who is discharged or who quits, the wages of the
employee shall continue as a penalty from the due date thereof at the same rate until paid
or until an action therefor is commenced; but the wages shall not continue for more than
30 days.” (Emphasis added.)
Sections 202 and 203 apply to the state as an employer. (§ 220, subd. (a).)
IV
“Quits” as used in Sections 202 and 203
A. Plain Meaning
McLean contends the plain meaning of the term “quits,” as used in the phrase an
employee who quits in sections 202 and 203, includes an employee who “retires.”
McLean reasons that the terms “quits” and “retires” both refer to a voluntary separation
from service and an employee must quit before she can retire. She contends the

8
“undeniable overlap” of the two terms requires that “quits” includes “retires.” She argues
the penalties provided in section 203 apply to the failure to pay wages timely to
employees who terminate their service with the employer, whether the termination is
initiated by the employer (a discharge), or by the employee (a quit). She posits there is
no reason to believe the Legislature intended to treat employees who planned to retire
upon separation of service differently than those who were discharged or who quit for
other employment.
The parties and the trial court offer a variety of dictionary definitions to support
their positions. Relying on the 1985 edition of New Webster’s Dictionary, the trial court
defined “retire” as “to go from a company or a public place into privacy” or “to withdraw
from business or active life,” while “quit” in the employment context means “to resign,”
which means “to give up, as an office or post.” McLean relied on the Merriam-Webster
online dictionary, which defined “quit” as “to leave a job” or “to stop working”
(http://merriam-webster.com/dictionary/quit [as of 3/12/14] ), and “retire” as “to stop a
job or career because you have reached the age when you are not allowed to work
anymore or do not need or want to work anymore.” (http://merriam-
webster.com/dictionary/retire [as of 3/12/14]) Defendants contend dictionary definitions
are of little aid, but note that Black’s Law Dictionary defines “retire” as “to terminate
employment or service upon reaching retirement age.” (Black’s Law Dict. (5th ed. 1979)
p. 1183, col. 2.) A later edition, however, defines “retirement” more broadly as
“termination of one’s employment or career, esp. upon reaching a certain age or for
health reasons.” (Black’s Law Dict. (10th ed. 2014) p. 1510, col. 1.)
Like defendants, we find these dictionary definitions are not dispositive.
However, we note that all of the definitions of the term “quit” seem to encompass the
definitions describing retirement, as all the definitions speak to leaving a job.
Defendants contend the issue in this case must be understood in the context of
civil service employment as McLean and the members of the class she purports to
represent are civil service employees. They assert we need not determine how section
203 applies to any separation from service other than a civil service retirement.

9
Defendants argue that in the civil service context it is well recognized that a “quit” is
different from a “retirement.” (See Gore v. Reisig (2013) 213 Cal.App.4th 1487, 1493
[“At the point in time that an employee leaves employment, he or she falls into one of
three categories—a resigned employee, a terminated employee, or a retired employee.”];
Lucas v. State of California (1997) 58 Cal.App.4th 744, 750 [civil service statutes
expressly distinguish separation from a civil service position by resignation and
separation by service retirement].)
Defendants contend that in the civil service, a quit is clearly distinguishable from
retirement, and this distinction is reflected in the language of subdivision (c) of section
202 (section 202(c)): “when a state employee quits, retires, or disability retires from his
or her employment with the state.” According to defendants, this language distinguishes
between a quit and a retirement, and adds a third category, a disability retirement.
While the instant case involves civil service employees, section 202, subdivision
(a) (section 202(a)) and section 203 are not so limited. These statutes apply to all
employers and employees not otherwise excluded (such as city and county employees,
who are excluded under subdivision (b) of section 220), including those in the private
sector. (§ 220.) Nothing in the language of either statute permits an interpretation where
the word “quits” has one meaning for the state employer and its employees, and another
meaning where the employers and employees are in the private sector. We decline to
adopt an interpretation of a statute which adds a distinction between types of employers
and employees “which is neither expressly included in nor suggested by its plain
language.” (Panos v. Superior Court (1984) 156 Cal.App.3d 626, 630.) “Doing so
would violate the cardinal rule that a statute ‘ . . . is to be interpreted by the language in
which it is written, and courts are no more at liberty to add provisions to what is therein
declared in definite language than they are to disregard any of its express provisions.’
[Citation.]” (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1097.)

10
 B. Legislative History
Since the plain language of the statutes does not definitively establish whether an
employee who “quits” includes an employee who “retires,” we turn to the second step of
statutory construction and consider extrinsic sources.
Defendants rely on the legislative history of Assembly Bill No. 1684, which added
subdivisions (b) and (c) to section 202 in 2002. The purpose of the bill was to approve a
memorandum of understanding entered into by the state employer and State Bargaining
Unit 2, the Association of State Attorneys and Administrative Law Judges. (Stats. 2002,
ch. 40, §§ 1-2, p. 458.)
As the enrolled bill report explains, “This bill also corrects an unintended result
that occurred with the enactment of AB 2410. AB 2410 amended section 220 of the
Labor Code thereby making sections 201, 202, and 206.5 applicable to the State as an
employer. As a result, the State employer is now required to tender the ‘prompt payment
of wages’ due and owing to an employee upon separation from State employment. In the
case of an employee terminated (discharged) by the employer, all wages must be tendered
on his/her last day of employment. In the case of an employee who quits without giving
the employer 72 hours’ notice, the employer must tender payment within 72 hours of the
employee’s last day of employment. Because payments must be made within these time
frames, the State can no longer allow employees to rollover into a subsequent tax year
lump sum payments for accrued leave due the employee upon separation. Similarly,
these shortened time frames place the State at risk to be assessed penalties in the event
the lump sum contribution cannot be tendered to the employee’s supplemental retirement
plan (plan administrator or recordkeeper) within the time frame specified for payment
under the Labor Code. Section 206.5 prohibits employers from entering into private
agreements with employees to waive their right to prompt payment of wages. [¶] The
intent in this bill is to restore a benefit State employees previously enjoyed which allows
them to contribute the cash value of their accrued leave . . . to an employer sponsored
401(k), 403b, and/or 457 Plan on a pre-tax basis and/or defer receipt of payment for such

11
leave into the next tax year, subject to the payroll procedures of the State Controller’s
Office.”
Defendants contend the newly created section 202(c) had to specify it applied to
“an employee who quits, retires, or disability retires from his or her employment with the
state,” because under civil service a “quit” and a “retirement” were understood to be
different things. They further contend the new law “ensure[d]” that a retirement was not
included in the penalty provisions of section 203 (presumably by not amending §§ 202(a)
and 203 to include the word retire, see part C, post).
Defendants’ argument presupposes that the term “quits” in sections 202 and 203
may have a different meaning depending on whether state employment or private
employment is at issue. We have rejected that interpretation of the statutes, as discussed
ante. To the contrary, it appears that the Legislature specified “quits, retires, or disability
retires” in section 202(c) because that subdivision, unlike section 202(a) or section 203,
applies only to state employees by its express terms, and in that context, the terms have
different meanings. Further, if the general rule of section 202(a) and the penalty
provisions of section 203 did not apply to an employee who retires, it would clearly be
unnecessary for section 202(c) to discuss employees who retire. Defendants do not
discuss this fact, despite McLean’s lengthy discussion of it in her briefing.
The legislative history offered by defendants does not show that in using the term
“quits” in section 202(a) and section 203, the Legislature intended to exclude employees
who separate from employment to retire.
C. Rules of Statutory Construction
Defendants contend that under well-settled rules of statutory construction, the
terms “quits” and “retires” cannot have the same meaning because the Legislature used
only the term “quits” in sections 202(a) and 203, while it used both “quits” and “retires”
in section 202(c). They argue that “retires” cannot be implied in section 202(a) and
section 203, and if “quits” includes “retires,” then the use of “retires” in section 202(c) is
surplusage. Although possessing some surface appeal, defendants’ argument fails to
persuade.

12
 “When the Legislature ‘has employed a term or phrase in one place and excluded
it in another, it should not be implied where excluded.’ [Citation.]” (Pasadena Police
Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576.) “When two statutes touch
upon a common subject, they are to be construed in reference to each other, so as to
‘harmonize the two in such a way that no part of either becomes surplusage.’ [Citations.]
Two codes ‘ “must be read together and so construed as to give effect, when possible, to
all the provisions thereof.” ’ [Citation.]” (DeVita v. County of Napa (1995) 9 Cal.4th
763, 778-779.)
We agree that: “Where different words or phrases are used in the same connection
in different parts of a statute, it is presumed the Legislature intended a different
meaning.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1117.) The inference, of course, is stronger when the different parts of the statute are
enacted at the same time. (See People v. Jones (1988) 46 Cal.3d 585, 596 [“when
different words are used in contemporaneously enacted, adjoining subdivisions of a
statute, the inference is compelling that a difference in meaning was intended”], italics
omitted.) That is not the case here as section 202(b) and (c) were added in 2002. (Stats.
2002, ch. 40, § 7, pp. 461-462.)
As discussed at length ante, section 202(c) refers to an employee who “quits,
retires, or disability retires.” A disability retirement is a particular type of retirement and
therefore a subset of “retires.” Thus, the phrase “quits, retires, or disability retires” can
be understood as listing the types of separation from employment from the most general,
“quits,” to the most specific, “disability retires,” rather than as listing three entirely
distinct occurrences. The reason for the different language is explained by the different
contexts. In enacting subdivisions (b) and (c) of section 202, the Legislature was
concerned with only state employees, and understood that “quits,” “retires,” and
“disability retires” have particular meanings in that context. This distinction is not
generally made in private sector employment and so it was unnecessary to make it in the
more general provisions of section 202(a) and section 203, which originally applied only
to private employees and employers, and now apply to the State as well.

13
 Finally, the rules of statutory construction must yield to the purpose and intent of a
statute. (See Costco Wholesale Corp. v. Workers’ Comp. Appeals Bd. (2007)
151 Cal.App.4th 148, 154-155 [the “last antecedent rule does not trump” considerations
of “the spirit of the statute . . . as a whole”].) Statutes governing conditions of
employment, such as the payment of wages, are to be liberally construed “in favor of
protecting employees.” (Murphy, supra, 40 Cal.4th at p. 1103.) This policy and purpose
is not furthered by excluding retirees from the full protections of section 202, enforced by
the penalty provisions of section 203. We interpret an employee who “quits” in section
202(a) and section 203 to include an employee who quits to retire.3
V
Proper Defendants
Defendants contend that even if McLean has a viable claim under section 203, the
demurrer was properly sustained because she sued the wrong defendants. Since section
203 imposes penalties upon an employer, the proper defendant is her employer and
defendants argue McLean’s employer is the Department of Justice, which contains the
Attorney General’s office.
While the trial court did not reach this argument, we must address it. “A judgment
of dismissal after a demurrer has been sustained without leave to amend will be affirmed
if proper on any grounds stated in the demurrer, whether or not the court acted on that
ground. [Citations.]” (Carman v. Alvord (1982) 31 Cal.3d 318, 324.)
The State of California clearly was McLean’s employer and defendants’ argument
to the contrary borders on frivolous. Defendants concede that McLean was a civil service
employee. “The civil service includes every officer and employee of the State except as
otherwise provided in this Constitution.” (Cal. Const., art. VII, § 1, subd. (a); see

3 Amicus California Attorneys, Administrative Law Judges and Hearing Officers in State
Employment requests that we take judicial notice of the original and amended versions of
Assembly Bill No. 1684 and a CalPers publication relating to retirement. Because we
find these documents are not necessary to our decision, we deny the request. (Aguiar v.
Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 128, fn. 2.)

14
Colombo v. State of California (1991) 3 Cal.App.4th 594, 598 [“As a CHP traffic officer,
Russell Colombo is a civil service employee of the State of California, paid by the state,
not the CHP.”].) Sections 202 and 203 apply “to the payment of wages of employees
directly employed by the State of California.” (§ 220, subd. (a).) Indeed, subdivision (b)
of section 202 refers to “the state employer” and subdivision (c) of that section refers to
“a state employee.”4
Defendants contend the controller’s office is not a proper party defendant because
it is not McLean’s employer. The FAC alleges that the controller’s office “is responsible
for disbursing any and all wages owed to” state employees upon resignation or
retirement. It further alleges that the State of California and the controller’s office failed
to make these payments on a timely basis. Thus, the FAC alleges wrongful conduct by
the controller’s office. It is not necessary, however, to name the controller’s office as a
party defendant. An action against state agencies in their capacity as such is, in effect, an
action against the state. Thus it is sufficient to name only the state as party defendant.
(Bacich v. Board of Control (1943) 23 Cal.2d 343, 346 [approving substituting the state
as party defendant in place of the defendants Board of Control, California Toll-Bridge
Authority, and Department of Public Works].) Accordingly, the trial court did not err in
sustaining the demurrer of the controller’s office.
VI
Class Allegations
For the first time on appeal, defendants contend the demurrer was properly
sustained because McLean does not have standing to represent the Plaintiff Class as
defined in the complaint. The FAC defines the Plaintiff Class as employees employed by
the state who resigned or retired during a certain time period. Defendants contend that

4 Defendants argue, unconvincingly, that these statutory terms are merely “helpful
shorthand.” To accept this argument is to find the words do not mean what they say,
which would undermine the basic rule of statutory construction to give the words of a
statute “their usual and ordinary meaning.” (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th
593, 601.)

15
since McLean retired instead of resigning, she cannot represent those who resigned and
since the Department of Justice is her employer, she can represent only those employed
by that agency.
Although defendants did not raise any challenge to the class allegations in the
demurrer, “an appellate court may consider new theories on appeal from the sustaining of
a demurrer to challenge or justify the ruling.” (Ortega v. Topa Ins. Co. (2012)
206 Cal.App.4th 463, 472.)
We can easily dispose of these contentions. We have already explained that
“quits” in sections 202 and 203 includes all employees who quit, whether to retire or for a
different reason, and these employees constitute a single group under the statutory
scheme. We have also explained that McLean’s employer is the State of California. We
do not opine on the issue of class certification or reach any other issue regarding
McLean’s class allegations.
DISPOSITION
As to defendant controller’s office, the judgment is affirmed. As to defendant
State of California, the judgment is reversed and the matter remanded for further
proceedings. McLean shall recover costs on appeal. (Cal. Rules of Court, rule
8.278(a)(3).)

DUARTE , J.

We concur:

BUTZ , Acting P. J.

HOCH , J.

16