Guerrero v. Superior Court of Sonoma Cnty.

Citation153 Cal.Rptr.3d 315,213 Cal.App.4th 912
Decision Date11 March 2013
Docket NumberA133202
PartiesAdelina Tapia GUERRERO, Petitioner, v. The SUPERIOR COURT of Sonoma County, Respondent; Jo Weber, as Director, Sonoma County Department of Human Services et al., Real Parties in Interest.
CourtCalifornia Court of Appeals

OPINION TEXT STARTS HERE

Reversed and remanded.

See 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 382 et seq.

Sonoma County Superior Court, Hon. Elliot Daum, (Sonoma County Super. Ct. No. SCV248680)

Attorneys for Petitioner Adelina Tapia Guerrero: California Rural Legal Assistance, Inc., San Francisco, William Hoerger, Robert J. Lotero.

Attorneys for Amicus Curiae in support of Petitioner: National Employment Law Project, Eunice Hyunhye Cho.

No appearance for respondent Sonoma County Superior Court.

Attorneys for Real Parties in Interest: Bruce Goldstein, County Counsel, Jeffrey L. Berk, Deputy County Counsel, Joshua A. Myers, Deputy County Counsel.

Attorneys for Amicus Curiae in support of Real Parties in Interest: California State Association of Counties, Jennifer B. Henning.

Kline, P.J.

INTRODUCTION

Petitioner Adelina Tapia Guerrero was employed to provide in-home support services (IHSS) to eligible recipients in Sonoma County (County) under the In–Home Support Services Act. (Welf. & Inst.Code, § 12300 et seq. 1) She was never paid for any of the services she rendered to program recipient Alejandra Buenrostro from November 4, 2008 through January 29, 2009, despite a comprehensive scheme of federal and California statutes, implemented within County through enactment of local ordinances that spell out the responsibilities of County and the Sonoma County In–Home Support Services Public Authority (Public Authority) for establishing and monitoring IHSS providers' wages, hours, and conditions of employment. She contends that County and Public Authority were her “joint employers” with Buenrostro for purposes of her federal and state wage and hour claims. The Sonoma County Superior Court rejected this contention, sustaining without leave to amend, the demurrer of real parties in interest Jo Weber, as Director of the Sonoma County Department of Human Services, and Michael Humphrey, as Manager of the Public Authority, as to her causes of action for unpaid wages and overtime under the Fair Labor Standards Act (FLSA) ( 29 U.S.C. § 201 et seq.); California statutes ( Lab.Code, §§ 1182.12, 1194, 1194.1, 1194.2 & 1197; §§ 12301.6, subd. (c)(1), 12302.25) and Industrial Welfare Commission (IWC) wage order No. 15–2001 ( Cal.Code Regs., tit. 8, § 11150 et seq.).

Guerrero seeks extraordinary relief from the order. She contends the superior court erred in determining that real parties County and Public Authority were not her “employers” or “joint employers” with other defendants for purposes of her federal and state wage and hour claims and by failing to consider whether real parties acted “in the interest of an employer in relation to [her] under the FLSA. (29 U.S.C. § 203(d).) She further contends that the superior court erred in sustaining real parties' demurrer to her claims for unpaid wages, based upon its determinations that her job classification was exempt from federal and state wage and hour laws and that the California wage and hour laws upon which she relied did not apply to public entities. Underlying these contentions is Guerrero's assertion that disputed material facts exist as to all of these issues, so that the sustaining of demurrers to her wage and hour claims was error.

We shall conclude the superior court erred in sustaining the demurrer to Guerrero's federal and state wage and hour claims.

FACTS AND PROCEDURAL BACKGROUND
A. The first amended complaint

On February 22, 2011, Guerrero filed the instant first amended complaint naming as defendants real parties County and Public Authority and defendants Buenrostro and Sherry Amezcua.2 The complaint alleged as follows: Buenrostro was disabled and a recipient and a consumer of IHSS services as provided in an interagency agreement between County and Public Authority and a memorandum of understanding between the Public Authority and Service Employees International Union (SEIU), effective October 1, 2007 through September 30, 2009. County and Public Authority authorized Buenrostro and Amezcua to hire and engage an IHSS provider and they engaged Guerrero to provide IHSS services from November 4, 2008 through January 29, 2009. Guerrero provided services seven days a week, for seven hours a day and had worked no fewer than 501 hours regular time and not less than 87 hours of overtime. Guerrero alleged she performed general household work exceeding 20 percent of her total weekly hours worked. Guerrero provided services to Buenrostro at all times under the supervision and direction of Amezcua. Buenrostro, Amezcua and real parties County and Public Authority failed to pay her for the personal services she rendered to Buenrostro and refused to pay minimum wages and overtime premium wages owed.

The first amended complaint further alleged that each defendant (County, Public Authority, Buenrostro and Amezcua) employed Guerrero and either directly or indirectly exercised control over her wages or hours or conditions of employment or all of the foregoing. It further alleged that in failing to pay Guerrero minimum wages and overtime premium wages owed for her personal services, all defendants, including real parties, had violated the federal FLSA (29 U.S.C., § 201 et. seq.), California statutes, including Labor Code sections 1194, 1194.1, and IWC wage order No. 15–2001. In addition to federal and state wage and hour claims, the complaint also contained a cause of action for breach of a contract entered into by Buenrostro and Amezcua with County and the Public Authority, to which Guerrero alleged she was a third-party beneficiary, and for breach of the collective bargaining agreement entered into by County and Public Authority with SEIU and providers of IHSS in Sonoma County, to which Guerrero alleged she was a third party beneficiary.

B. Demurrer

County and Public Authority filed a joint demurrer to the complaint, in which they argued: (1) Guerrero's federal wage and hour claims failed to state facts sufficient to constitute a cause of action against them because they were not her employer for purposes of her FLSA wage and hour claims; (2) alternatively, Guerrero's federal wage and hour claims failed because her job was exempt from the FLSA minimum wage and overtime provisions; (3) Guerrero's claims under the California Labor Code failed because real parties were not her employer for purposes of state wage and hour claims; and (4) alternatively, that her claims under state law failed because the relevant portions of the California Labor Code did not apply to public entities such as real parties. Real parties also argued the breach of contract cause of action failed because Guerrero failed to comply with the requirements of the Government Claims Act. (Gov.Code, § 915.)

On July 18, 2011, the trial court filed its order sustaining real parties' demurrer without leave to amend as to all federal and state statutory claims for minimum wage and overtime premium wage. The court overruled the demurrer as to the contractual cause of action, finding the complaint had adequately pleaded excuse from the Government Claims Act.

C. Writ proceedings

On September 19, 2011, Guerrero filed a writ petition in this court, seeking extraordinary relief. On November 23, 2011, we issued an order to show cause why the relief requested in the petition should not be granted. On that date we also granted Guerrero's request for judicial notice of certain provisions of the California Department of Social Services Manual—Social Service Standards, Service Program No. 7: In–Home Supportive Services, pp. 50–115 (hereafter, DSS Manual) and of the California Department of Social Services County Fiscal Letter (CFL) No. 10/11–43 (Dec. 13, 2010) and its attachment relating to funds allocated to counties for fraud investigations and program integrity activities.

Real parties filed their answer and return on January 12, 2012. Guerrero's traverse was filed February 2, 2012. We granted requests of the California State Association of Counties to file an amicus curiae brief in support of real parties in interest and to the National Employment Law Project (NELP) to file an amicus letter in support of Guerrero. Petitioner's answer to the amicus brief filed by CSAC was filed on February 14, 2012 and oral argument was held.

DISCUSSION

The threshold issue here is whether County, Public Authority, or both of them were Guerrero's “employer” for purposes of federal and state wage and hour laws. To assist in that determination, we describe in some detail the IHSS Program and its implementation in Sonoma County.

I. The IHSS Program
A. Statutory background

“IHSS is a state social welfare program designed to avoid institutionalization of incapacitated persons. It provides supportive services to aged, blind, or disabled persons who cannot perform the services themselves and who cannot safely remain in their homes unless the services are provided to them. The program compensates persons who provide the services to a qualifying incapacitated person.” ( Basden v. Wagner (2010) 181 Cal.App.4th 929, 931, 104 Cal.Rptr.3d 394.) 3 The statutory background of the IHSS program was described by the Third Appellate District in Basden v. Wagner :

“In 1973, the Legislature enacted the IHSS program to enable aged, blind or disabled poor persons to avoid institutionalization by remaining in their homes with proper supportive services. (Welf. & Inst.Code, § 12300 et seq.) ‘Supportive services' are described in discrete categories, such as ‘domestic services,’ ‘personal care services,’ and ‘protective supervision,’ to name a few. (§ 12300, subd. (b).) [...

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