Filed 1/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ASSOCIATION FOR LOS B296425
ANGELES DEPUTY
SHERIFFS, (Los Angeles County
Super. Ct. No. BS173389)
Plaintiff and Appellant,
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mary H. Strobel, Judge. Affirmed.
Rains Lucia Stern St. Phalle & Silver, Jacob A. Kalinski
and Brian P. Ross for Plaintiff and Appellant.
Miller Barondess, Mira Hashmall, Andrew H. Dubin and
Emily A. Sanchirico for Defendant and Respondent.
__________________________
SUMMARY
The Association for Los Angeles Deputy Sheriffs (ALADS)
sought a writ of mandate and declaration that a provision of the
memorandum of understanding (MOU) between ALADS and the
County of Los Angeles is unenforceable, on the ground it violates
wage garnishment law and the Labor Code. In the provision at
issue, the parties agreed on how paycheck errors would be
corrected, including how overpayments to employees would be
recovered by the county.
The trial court sustained the county’s demurrer to the
petition on the ground ALADS did not exhaust administrative
remedies. We follow the analysis in an appellate case decided
after the trial court’s ruling in this case and conclude ALADS’s
administrative remedies are inadequate, so dismissal on that
ground was improper. (Association for Los Angeles Deputy
Sheriffs v. County of Los Angeles (2019) 42 Cal.App.5th 918
(ALADS 2019).) We further conclude, however, dismissal was
proper because ALADS’s petition does not state valid claims
against the county. The home rule doctrine gives the county the
exclusive right to regulate matters relating to its employees’
compensation. The county’s MOU with ALADS, approved by the
board of supervisors, is a lawful exercise of that exclusive right,
and the Labor Code provision at issue does not apply to a charter
county. Consequently, ALADS cannot allege sufficient facts to
state a cause of action.
FACTS
ALADS is the recognized employee organization that
represents sworn nonmanagement peace officers employed by the
Los Angeles County Sheriff’s Department. An MOU sets forth
the understanding of ALADS and the county “regarding the
2
wages, hours and other terms and conditions of employment” of
the covered employees.
Article 18 of the MOU governs “Paycheck Errors,” including
both “Underpayments” (part A) and “Overpayments” (part B).
The “Overpayments” provision states: “1. Employees will be
notified prior to the recovery of overpayments. [¶] 2. Recovery of
more than 15% of net pay will be subject to a repayment schedule
established by the appointing authority under guidelines issued
by the Auditor-Controller. Such recovery shall not exceed 15%
per month of disposable earnings (as defined by State law),
except, however, that a mutually agreed-upon acceleration
provision may permit faster recovery.”
In April 2012, during conversion to a new payroll system,
the county failed to apply an agreed-upon cap to certain bonus
payments. This error resulted in salary overpayments to
107 deputies.
In May 2017, the county sent letters to the overpaid
deputies, informing them of the overpayment, and giving them
two repayment options: remitting payment in full, or repaying
the amount through payroll deductions at a specified rate. A
spreadsheet was enclosed with each letter, specifying the
amounts overpaid, “dating back, in some cases, to April 2012.”
ALADS’s counsel wrote to the county, asserting the actions
described in the May 2017 letters were unlawful. After a
meeting, the county sent letters suspending its efforts to collect
funds for 90 days so the parties could discuss a potential
resolution. Apparently there was none, and on April 2, 2018, the
county sent new letters stating it would deduct the overpayments
as described in the May 2017 letters.
3
Beginning on May 15, 2018, the county began the paycheck
deductions as described in the May 2017 and April 2018 letters.
Meanwhile, on April 19, 2018, ALADS filed its initial
petition. After the trial court sustained a demurrer to ALADS’s
first amended petition, ALADS filed the operative second
amended petition, alleging the facts we have described. Further,
the petition alleged that, “[o]ut of an abundance of caution,”
grievances had been filed on behalf of the affected employees,
challenging the unilateral deductions “in order to prevent the
waiver of rights in the event that it was later determined that
such actions were subject to the grievance procedure in the
MOU.”
The first and second causes of action, seeking declaratory
relief and a writ of mandate, challenged the lawfulness of the
county’s deductions and sought to compel the county to comply
with state laws and statutes of limitations. ALADS alleged the
wage garnishment law (Code Civ. Proc., § 706.010 et seq.)
provided the exclusive procedure for withholding an employee’s
earnings, and those earning are exempt from prejudgment
attachment (§ 487.020, subd. (c)).
ALADS further alleged the deductions violated Labor Code
section 221, which makes it unlawful “for any employer to collect
or receive from an employee any part of wages theretofore paid by
said employer to said employee.” The petition alleged the MOU
“does not and could not lawfully authorize Defendants to
unilaterally deduct from [the employees’] wages in order to
recoup alleged overpayments.” In the event the court were to
hold otherwise, the petition alleged, the county failed to
demonstrate that any amounts had been overpaid; in cases
dating back to April 2012, a three-year statute of limitation
4
applied and had expired; and the overpaid employees were
entitled to offsets for overpaid taxes. The petition also alleged
administrative remedies were inadequate.
A third cause of action sought declaratory relief on the
same bases, alleging the county had a “pattern and practice of
unilaterally deducting the wages of ALADS-represented
employees.”
The county demurred, contending ALADS failed to exhaust
its remedies under the MOU and those remedies were adequate.
The county also asserted the petition failed to state valid claims,
contending the home rule doctrine applied, Labor Code
section 221 does not apply to the county, the MOU governs
overpayments and recoupment, and the wage garnishment law
does not apply. ALADS filed its opposition arguing to the
contrary.
On January 29, 2019, the trial court sustained the county’s
demurrer without leave to amend on the ground ALADS failed to
exhaust administrative remedies. The court granted judicial
notice of a request for arbitration ALADS filed on behalf of one of
its members, and also judicially noticed a November 26, 2018
letter from ALADS’s attorney to the Employee Relations
Commission stating “the parties have selected arbitrators for
about 106 grievances.” From the petition and judicially
noticeable record, the court concluded the MOU provided an
adequate administrative remedy to resolve the dispute at issue.
The court rejected several other contentions raised by ALADS,
including that the MOU remedies were inadequate because they
did not allow for resolution of issues on behalf of an entire class of
persons. The court was “not persuaded that a representative
action by a union is functionally equivalent to a class action.”
5
The court did not reach the county’s arguments that
ALADS did not allege sufficient facts to state a cause of action.
The court entered judgment of dismissal on February 20,
2019, and ALADS filed a timely notice of appeal.
Both parties have filed requests for judicial notice. The
county requested judicial notice of its petition to confirm a
November 21, 2019 arbitration award in favor of the county and
against Deputy Sheriff Robert Harris, one of the overpaid
employees, with exhibits including the MOU, the July 19, 2018
request for arbitration, and the arbitrator’s award. ALADS
requested judicial notice of Mr. Harris’s “Response and Notice of
Non-Opposition” to the county’s petition to confirm the award,
and of the trial court’s September 11, 2020 ruling confirming the
award. We grant both requests.
DISCUSSION
1. The Standard of Review
A demurrer tests the legal sufficiency of the complaint. We
review the complaint de novo to determine whether it alleges
facts sufficient to state a cause of action. For purposes of review,
we accept as true all material facts alleged in the complaint, but
not contentions, deductions or conclusions of fact or law. We also
consider matters that may be judicially noticed. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.)
When a demurrer is sustained without leave to amend, “we
decide whether there is a reasonable possibility that the defect
can be cured by amendment: if it can be, the trial court has
abused its discretion and we reverse; if not, there has been no
abuse of discretion and we affirm.” (Blank v. Kirwan, supra,
39 Cal.3d at p. 318.) Plaintiff has the burden to show a
6
reasonable possibility the complaint can be amended to state a
cause of action. (Ibid.)
2. Exhaustion of Remedies
a. The legal principles
The principle that a party must exhaust administrative
remedies before resorting to the courts has been described many
times, including in ALADS 2019. The exhaustion doctrine “ ‘ “is
principally grounded on concerns favoring administrative
autonomy (i.e., courts should not interfere with an agency
determination until the agency has reached a final decision) and
judicial efficiency (i.e., overworked courts should decline to
intervene in an administrative dispute unless absolutely
necessary).” ’ [Citation.] In addition, even if an administrative
proceeding does not eliminate the need for a subsequent judicial
action, it ‘will still promote judicial efficiency by unearthing the
relevant evidence and by providing a record which the court may
review.’ ” (ALADS 2019, supra, 42 Cal.App.5th at pp. 927–928.)
The exhaustion doctrine is subject to exceptions. “In
particular, the doctrine does not apply when the available
administrative remedy is inadequate or when it is clear that
pursuing that remedy would be futile.” (ALADS 2019, supra,
42 Cal.App.5th at p. 928.)
b. ALADS 2019
ALADS argues its administrative remedy is inadequate for
the same reasons described in ALADS 2019. There, the court
found the remedy inadequate because it did not provide
“classwide” relief. The same principle applies here.1
1 Our conclusion the administrative remedy is inadequate
makes it unnecessary to discuss ALADS’s further argument that
the dispute does not fall within the definition of a grievance. Nor
7
i. The grievance procedure
ALADS 2019 involves the same MOU and grievance
procedures that govern this case. Those procedures are described
in detail in ALADS 2019, and there is no need to recite the
details here. (See ALADS 2019, supra, 42 Cal.App.5th at
pp. 925–926.) Suffice it to say that, after various informal and
formal steps, grievances that “directly concern or involve the
interpretation or application of the specific terms and provisions
of [the MOU] and which are brought by an employee who was
represented by ALADS in any steps of the grievance procedure
may be submitted to arbitration.” The decision of the arbitrator
“shall be binding upon ALADS,” and “[t]o the extent the decision
and award . . . does not require legislative action by the Board of
Supervisors,” it is binding upon the county.
However, as ALADS 2019 pointed out, “[i]t is undisputed
that classwide relief is not available under the administrative
procedures set out in the MOU.” (ALADS 2019, supra,
42 Cal.App.5th at p. 930.) And here, as in ALADS 2019, it
appears there is no dispute that, although the same issues “would
arise in each individual grievance, a decision on that issue in one
member’s proceeding would not have any binding effect on other
members’ claims.” (Ibid.)
ii. The ALADS 2019 decision
In ALADS 2019, the complaint alleged the county failed to
comply with compensation provisions in the MOU that required
the county to match compensation increases given to other county
need we discuss ALADS’s claim that it is not obligated to pursue
the administrative remedies available to its members; ALADS
2019 held otherwise, and ALADS has conceded the point in its
reply brief.
8
safety employee unions. (ALADS 2019, supra, 42 Cal.App.5th at
pp. 922–923.) The issues raised and the relief sought applied to
all ALADS members. (Id. at p. 923.) Because the grievance
procedures in the MOU “would require each of the thousands of
individual ALADS members to pursue a grievance through
arbitration to obtain the relief that ALADS seeks in this lawsuit,
they are not adequate.” (Ibid.; see id. at p. 930 [“such an onerous
and time-consuming process precludes adequate relief”].) The
court relied on such precedents as Tarkington v. California
Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494.
Tarkington concluded that, when a judicial action seeks relief on
behalf of a class, “[i]f the [available administrative] remedies do
not provide classwide relief, then no plaintiff need exhaust them
before suing.” (Tarkington, at p. 1510; ALADS 2019, at pp. 931–
932.)
ALADS 2019 rejected the county’s claim the case was not a
class action, stating: “However, it is a representative action.
Like the named plaintiff in a class action, ALADS seeks relief on
behalf of a designated group of persons (i.e., its members). The
form of the action is therefore not material. (Cf. [Glendale City
Employees’ Assn., Inc. v.] City of Glendale [(1975)] 15 Cal.3d
[328,] 341 [the plaintiff’s class allegations were ‘superfluous,’
because the plaintiff association, ‘as the recognized
representative of city employees, may sue in its own name to
enforce the memorandum of understanding’].) The material issue
is whether the relief available through the administrative process
would apply to the class of employees that ALADS represents. It
is undisputed that it would not.” (ALADS 2019, supra,
42 Cal.App.5th at p. 932.)
9
iii. This case
The county does not contend ALADS 2019 was wrongly
decided. The county instead asserts this case is distinguishable
and ALADS 2019 does not control, because this case involves only
107 members rather than all the members. The county cites no
authority and articulates no reason why that distinction makes a
difference. Nor have we found any such authority or any reason
for a meaningful differentiation in this case.
In a class action, “[t]here is no set number required” to
maintain the action, and the statutory test “is whether a class is
so numerous that ‘it is impracticable to bring them all before the
court . . . .’ ” (Hendershot v. Ready to Roll Transportation,
Inc. (2014) 228 Cal.App.4th 1213, 1223, italics omitted, quoting
Code Civ. Proc., § 382.) We see no reason why the same principle
would not apply in the context of a representative action, where
the number of members the union is representing is so numerous
that bringing them all before the court is impracticable.
As we have seen, a union may bring a representative action
on behalf of its members, and we have found no precedents
suggesting this is so only when the entire membership is affected.
Quite the contrary. (See Anaheim Elementary Education Assn. v.
Board of Education (1986) 179 Cal.App.3d 1153, 1157, 1155 [“It is
settled that ‘[a] labor union is entitled to represent its members
in an action which is inseparably founded upon its members’
employment’ ”; lawsuit sought relief for two temporary teachers
and others similarly situated].)
We believe the number of affected employees here—107—is
sufficiently numerous that, if this were a class action, the
numerosity requirement would be met. And, regardless of the
size of the class, when the county disputes the precedential effect
10
of any individual arbitration decision and does not agree to be
bound by any single arbitration, it would seem there is no
adequate alternative to a representative court action.
We therefore conclude the rule stated in ALADS 2019
applies. The relief available through the administrative process
would not apply to the class of employees that ALADS is
representing. As in ALADS 2019, “administrative relief is not
adequate in a class or representative action if it does not apply to
the class.” (ALADS 2019, supra, 42 Cal.App.5th at p. 934.)
3. ALADS’s Petition Does Not State Valid Claims
Against the County
“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.” (Carman v. Alvord (1982) 31 Cal.3d 318,
324.)
As indicated at the outset, we conclude ALADS has not
stated valid claims as a matter of law. This conclusion flows
principally from the home rule doctrine. That doctrine gives the
county—a charter county—the exclusive right to regulate matters
relating to its employees’ compensation. The county has done so
through its MOU with ALADS, approved by the board of
supervisors, lawfully governing (among other things)
compensation and overpayments of compensation. Neither Labor
Code section 221 nor the wage garnishment law renders the
recoupment provision of the MOU unlawful.
We discuss below the various arguments and legal
authorities ALADS proffers in opposition to this conclusion and
explain why we find no merit in any of them.
11
a. The home rule doctrine and Labor Code
section 221
We begin with some general principles.
The California Constitution specifically reserves to counties
(not just charter counties) the authority to provide for the
compensation of their employees. (Cal. Const., art. XI, § 1,
subd. (b), see also §§ 3 & 4.) “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.
Although the language does not expressly limit the power of the
Legislature, it does so by ‘necessary implication.’ ” (County of
Riverside v. Superior Court (2003) 30 Cal.4th 278, 285 (County of
Riverside).)
As mentioned earlier, Labor Code section 221 states that
“[i]t shall be unlawful for any employer to collect or receive from
an employee any part of wages theretofore paid by said employer
to said employee.” 2 But, “unless Labor Code provisions are
specifically made applicable to public employers, they only apply
to employers in the private sector.” (Johnson v. Arvin-Edison
Water Storage Dist. (2009) 174 Cal.App.4th 729, 733.)
“[T]raditionally, ‘absent express words to the contrary,
governmental agencies are not included within the general words
of a statute.’ (Wells v. One2One Learning Foundation [(2006)]
39 Cal.4th [1164,] 1192.) The Legislature has acknowledged that
2 Because we find Labor Code section 221 does not apply to
the county, we do not address the county’s alternative argument
that the collective bargaining exception in section 224 takes this
dispute over the MOU overpayment provision outside the scope of
section 221.
12
this rule applies to the Labor Code.” (Johnson, at p. 736; see
Stoetzl v. Department of Human Resources (2019) 7 Cal.5th 718,
752 [“ ‘ “Generally, . . . provisions of the Labor Code apply only to
employees in the private sector unless they are specifically made
applicable to public employees.” ’ ”].)
Two cases have expressly held that various sections of the
Labor Code do not apply to charter counties under the doctrine of
home rule.
Curcini v. County of Alameda (2008) 164 Cal.App.4th 629
(Curcini) explains that, among the powers specifically delegated
to charter counties under section 4 of article XI of the California
Constitution “is control over matters of employee compensation.”
(Curcini, at p. 640.) As Curcini observes, the Supreme Court has
held that “ ‘the determination of the wages paid to employees of
charter cities as well as charter counties is a matter of local
rather than statewide concern.’ ” (County of Riverside, supra,
30 Cal.4th at p. 288, quoting Sonoma County Organization of
Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 317;
Curcini, at p. 641.)
Curcini concluded that Labor Code provisions on overtime,
meal periods, and payment of a premium wage to compensate for
missed meal and rest periods, “are matters of compensation
within the county’s exclusive constitutional purview. . . . [W]e
agree with those cases that have concluded that such
compensation matters are of local rather than statewide
concern.” (Curcini, supra, 164 Cal.App.4th at p. 645.)
Dimon v. County of Los Angeles (2008) 166 Cal.App.4th
1276 (Dimon) similarly held: “[T]he County has exclusive
authority, as a charter county, to provide for the compensation
and conditions of employment of its employees, and has done so
13
with respect to probation officers through a collective bargaining
agreement adopted by resolution. It is thus exempt from state
statutes and regulations governing meal breaks.” (Id. at p. 1279.)
Dimon elaborated: “The state Constitution’s express grant
of authority to charter counties necessarily implies that the
Legislature lacks the authority to provide for compensation of the
County employees. [Citation.] In other words, the determination
of wages to be paid to employees of charter counties ‘is a matter
of local rather than statewide concern.’ [Citation.] Consequently,
‘[w]hen a California County [such as Los Angeles County] adopts
a charter, its provisions “are the law of the State and have the
force and effect of legislative enactments.” [Citations.] 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.’ ” (Dimon, supra, 166 Cal.App.4th
at pp. 1281–1282, first & second brackets added.)
ALADS contends Curcini and Dimon do not apply, “because
the issue here is not one of employee compensation,” but rather a
matter of statewide concern, whether an employer “may deduct
from those wages without any legal process.” ALADS points out
the state can regulate matters of statewide concern “even if they
impinge to a limited extent upon some phase of local control”
(Baggett v. Gates (1982) 32 Cal.3d 128, 139), and a “factor to be
considered in determining if a state law reflects a matter of
statewide concern so that it applies to a charter county is
whether the law is procedural or substantive” (Dimon, supra,
166 Cal.App.4th at p. 1289).
14
ALADS contends Labor Code section 221 (and the wage
garnishment law, discussed in more detail post) regulate only the
methods by which the county may recover overpayments, and so
this is a procedural matter that does not infringe on the county’s
home rule power over employee compensation. According to
ALADS, the garnishment and attachment laws “provide the
framework for how an employer may deduct wages from its
employees to collect an alleged debt,” and “leave the substantive
ultimate decision making authority to the charter city or county
as to whether and when to pursue recoupment for alleged debts
owed by employees.”
We are not persuaded. As Curcini put it, in the context of
overtime, meal periods, and premium wage payment, “the link to
compensation seems clear.” (Curcini, supra, 164 Cal.App.4th at
p. 644.) In our view, the recovery of overpayments of wages
concerns the compensation of county employees no less than the
payment of wages in the first instance. Therefore, the recovery of
overpayments of wages is within the county’s “exclusive
authority, as a charter county” (Dimon, supra, 166 Cal.App.4th at
p. 1279) to provide for compensation, and to do so (as in Dimon)
through a collective bargaining agreement approved by the
county board of supervisors.
Further, we observe that the State of California can recover
overpayments of wages from state employees notwithstanding
Labor Code section 221 and the wage garnishment law.
Government Code section 19838 requires reimbursement to the
state of overpayments made to state employees through a process
similar to that in the MOU.3 If the state can do it, we see no
3 Government Code section 19838 states, in part: “(a) When
the state determines an overpayment has been made to an
15
reason why a charter county should not be able to do likewise, by
means of the MOU which was approved by the board of
supervisors. In short, this is fundamentally a dispute about
wages overpaid and their recoupment by payroll deductions, and
these are matters properly and exclusively governed by the
agreed and approved MOU.
ALADS asserts another rationale for its claim that Labor
Code section 221 necessarily applies to charter counties, but it
fails as well. ALADS points out that section 220 specifies a
number of sections of the Labor Code that do not apply to public
employees. Section 220, subdivision (a) lists sections that do not
apply to the payment of wages to employees of the state, and
subdivision (b) lists sections that do not apply to the payment of
wages of employees of any county. The latter subdivision states,
in part: “Sections 200 to 211, inclusive, and Sections 215 to 219,
inclusive, do not apply to the payment of wages of employees
employee, it shall notify the employee of the overpayment and
afford the employee an opportunity to respond prior to
commencing recoupment actions. Thereafter, reimbursement
shall be made to the state through one of the following methods
mutually agreed to by the employee and the state: [¶] (1) Cash
payment or payments. [¶] (2) Installments through payroll
deduction to cover at least the same number of pay periods in
which the error occurred. When overpayments have continued
for more than one year, full payment may be required by the
state through payroll deductions over the period of one year. [¶]
(3) The adjustment of appropriate leave credits or compensating
time off . . . . [¶] Absent mutual agreement on a method of
reimbursement, the state shall proceed with recoupment in the
manner set forth in paragraph (2).”
16
directly employed by any county, incorporated city, or town or
other municipal corporation.” (§ 220, subd. (b).)
ALADS finds it “notable” that Labor Code section 221 is not
listed in section 220, and concludes this means, under the
statutory construction canon expressio unius est exclusio alterius,
that section 221 does apply. We do not see why that should be so,
particularly as to a charter county. The Curcini court found a
similar argument not only weak but also beside the point. Like
the Curcini court, we find the question does not turn on
principles of statutory interpretation but on the scope of the
constitutional grant of power to the county.
Curcini said this: “[T]he express recognition by Labor Code
section 220, subdivision (b), that ‘[s]ections 200 to 211, inclusive,
and [s]ections 215 to 219, inclusive, do not apply to the payment
of wages of employees directly employed by any county . . .’
provides no support for appellants’ argument that Labor Code
sections 510, 512, 226.7 and 1194 apply to counties, because they
are not expressly made inapplicable by section 220. The
argument appears weak in any event, but to the extent it is based
on a view of legislative intent, it is also beside the point.”
(Curcini, supra, 164 Cal.App.4th at p. 641, fn. 11; ibid. [“the
question is not what was the Legislature’s intent, but what is the
scope of the constitutional grant of power to the county”]; accord,
California Correctional Peace Officers’ Assn. v. State of
California (2010) 188 Cal.App.4th 646, 653–654 [rejecting claim
that, because the Legislature expressly exempted public entities
from specific Labor Code provisions referred to in subdivision (a)
of section 220, the Legislature must have intended the entirety of
the chapter on payment of wages to be generally applicable to
public entities, referring to this as a “bald assertion,” and finding
17
specific exemptions “cannot, by implication, be read as making”
that entire chapter of the Labor Code generally applicable to
public entities].)
ALADS further contends City of Oakland v. Hassey (2008)
163 Cal.App.4th 1477 (Hassey) shows that Labor Code
section 221 applies “even to charter cities and counties.” We
cannot agree.
In Hassey, the city of Oakland sued defendant Hassey, a
police officer, for breach of an agreement he made to reimburse
the city for the costs of his training if he left Oakland’s police
force after less than five years. (Hassey, supra, 163 Cal.App.4th
at pp. 1482–1484.) The court concluded the reimbursement
agreement was valid under federal and state law, but it was
improper to withhold the defendant’s final paycheck, because he
was entitled to at least the statutory minimum wage under
federal law. (Id. at pp. 1486, 1490–1493.)
As pertinent here, Hassey also concluded a triable issue
existed as to whether the city’s seizure of the defendant’s final
paycheck violated Labor Code section 221, since nothing in the
record showed he agreed to the withholding of wages owed to
him. (Hassey, supra, 163 Cal.App.4th at p. 1500.) The court
observed that an MOU allowed the deduction of training costs
from the employee’s final paycheck, but section 224 of the Labor
Code restricted the type of deductions permitted. (See fn. 2,
ante.) Oakland is, as ALADS pointed out below by way of judicial
notice, a charter city. But Hassey does not stand for the
proposition that section 221 applies to charter counties. The
issue of whether section 221 applied to a charter city (or county)
was nowhere raised or discussed in Hassey. A case is not
18
authority for a proposition not even mentioned, much less
discussed, in it.
b. The home rule doctrine and the wage
garnishment law
The same principles apply to ALADS’s contention that the
wage garnishment law makes the MOU provision on
overpayments unlawful.
ALADS cites several cases that have held recoupment of
salary overpayments by payroll deductions violated the wage
garnishment law. These do not control here, where a charter
county, not the state, has the exclusive right to regulate matters
relating to its employees’ compensation.
ALADS first relies on California State Employees’ Assn. v.
State of California (1988) 198 Cal.App.3d 374 (CSEA), a case that
predated the statute requiring the state to recoup overpayments
of salary. CSEA held that salary deductions by the State to
recoup overpayments to state employees violated the then-
recently-enacted (1983) wage garnishment law (Code Civ. Proc.,
§ 706.010 et seq.). (CSEA, at p. 375.) The court noted that the
wage garnishment law applies to public employees. (Id. at p. 377,
fn. 3, citing § 708.720, subd. (b).)
CSEA was decided in 1988. In 1989, the state enacted
Government Code section 19838. As discussed above,
section 19838 requires reimbursement to the state of
overpayments made to state employees, with payroll deduction as
the default method if the parties do not agree. So, the proposition
that the wage garnishment law “applies to public employees” no
longer prevents a public employer—the state, at least—from
recouping overpayments by payroll deductions.
19
ALADS answers this by saying that no state statute
authorizes the county to do what the state does. That, of course,
ignores the home rule principle we have already discussed at
length. The county is a charter county, and its board of
supervisors approved the MOU to which ALADS and the county
agreed. Just as the state has authorized recoupment of
overpayments to its employees, so has the governing body of the
county.4
4 The county points out that Social Services Union v. Board
of Supervisors (1990) 222 Cal.App.3d 279 held a union could
voluntarily agree through collective bargaining to collection of
accumulated insurance premiums by way of payroll deductions,
and the deductions “were not prohibited by the attachment and
garnishment laws.” (Id. at p. 286; see id. at p. 287 [observing
that both the obligation to pay the increased premiums and the
method of payment were a result of collective bargaining, and
“[t]herefore, the payroll deductions did not constitute
extrajudicial seizures condemned in CSEA”].) The Social
Services court also rejected the union’s alternative argument (like
ALADS’s here) that “the union cannot voluntarily waive its
members’ rights under the attachment and garnishment laws.”
(Ibid.) But the court appears to have done so on the basis that
Labor Code section 224 expressly authorizes agreements for the
payment of health care costs through payroll deductions. (Social
Services, at p. 287.) Here, the county is a charter county and
section 224 does not apply, so Social Services (which did not
involve a charter county) is of limited relevance on this point.
The court ultimately concluded that “[u]nder the circumstances
presented here, public policy would not be promoted by limiting
the County’s recourse to the filing of individual lawsuits against
each of its affected employees.” (Social Services, at p. 288.)
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ALADS next argues that a 2012 decision by the Public
Employee Relations Board (PERB) “should be considered
precedential,” referring us to Berkeley Council of Classified
Employees v. Berkeley Unified School District (2012) PERB
Decision No. 2668 [as of Jan. 25, 2021], archived at
(Berkeley Council). In that case,
an expired collective bargaining agreement had a provision for
recoupment of erroneous overpayments in salary, but the union
declined to negotiate renewal of the provision, contending it
improperly waived statutory rights and was a nonmandatory
subject of bargaining. PERB agreed, concluding “the District’s
proposed recoupment procedure for wages allegedly overpaid to
individual employees exceeds the ambit of negotiable exceptions
to California’s policy protecting employee wages from
prejudgment attachment, and that the District’s proposal is
therefore a non-mandatory bargaining subject to which the
parties had no right to agree in the first place as it was at
variance from mandatory external law and thus nonnegotiable.”
(Id. at p. 11.)
Berkeley Council is not binding on this court, and we do not
find it persuasive either, in the circumstances before us. For one
thing, both the city and the county of Los Angeles are “expressly
exempted . . . from PERB’s jurisdiction.” (City of Los Angeles v.
City of Los Angeles Employee Relations Board (2016)
7 Cal.App.5th 150, 161.) More to the point, Berkeley Council’s
conclusion that the state policy codified in the wage garnishment
law (and in Labor Code sections 221 to 224) “establishes an
inflexible standard and immutable provisions” (Berkeley Council,
supra, at p. 9) seems contraindicated by state law allowing the
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state to recoup overpayments (Gov. Code, § 19838, discussed
ante). And, of course, Berkeley Council does not involve a charter
county and does not address the home rule doctrine. Berkeley
Council does not address whether Labor Code sections 221 to 224
apply to public employers in the first place. As we have
concluded and discussed in the preceding part, those provisions
do not apply to a charter county.
c. Other contentions
ALADS also argues the MOU overpayments provision “does
not authorize the County to unilaterally deduct wages,” and does
not permit the county to “deduct wages for alleged debts beyond
any relevant statute of limitations.” These arguments fail as
well.
First, despite the constant repetition of the claim the
county is acting “unilaterally,” that is no more the case than for
any other action taken under an MOU to which ALADS and the
county both agreed. ALADS complains the overpayment
provision does not use the word “deduction,” and does not
expressly say the county may recover overpayments without first
bringing a legal proceeding to prove the overpayments. But the
plain meaning of the overpayment provision is clear. We have
already determined the overpayment provision is not unlawful,
and we see no reason why it must be any more explicit than it is.
Second, ALADS contends that, even if the deductions are
permitted, the three-year statute of limitations for mistake (Code
Civ. Proc., § 338, subd. (d)) should apply, and the county’s
deductions dating to 2012 violate that limitation. ALADS cites
no authorities, and is mistaken.
The county sought recoupment of the overpayments
through the administrative process specified in the MOU, not in
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a judicial action. “[W]hen, as here, recoupment is obtained
through an administrative process, rather than through a lawsuit
filed in court, the statute of limitations does not apply.”
(Krolikowski v. San Diego City Employees’ Retirement System
(2018) 24 Cal.App.5th 537, 559; id. at p. 560 [where a retirement
system “did not file a lawsuit to recoup the [pension]
overpayments, but instead pursued recoupment through its own
internal administrative process, it is not subject to a statute of
limitations period set forth in the Code of Civil Procedure”]; see
also 3 Witkin, Cal. Procedure (5th ed. 2020) Actions, § 430 [“The
general and special statutes of limitation referring to actions and
special proceedings are applicable only to judicial proceedings;
they do not apply to administrative proceedings.”].) They
likewise do not apply to the overpayment procedure in the MOU.
DISPOSITION
The judgment is affirmed. The county shall recover costs
on appeal.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J. OHTA, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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