Case 4:19-cv-07637-JST Document 13 Filed 12/13/19 Page 1 of 24

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Wendy L. Wilcox, Esq. (SBN 193644)
wwilcox@skanewilcox.com
Joel P. Glaser, Esq. (SBN 194442)
jglaser@skanewilcox.com
SKANE WILCOX LLP
1055 W. 7th Street, Suite 1700
Los Angeles, CA 90017
T: (213) 452-1200 / F: (213) 452-1201
Attorneys for Defendants the County of Alameda
and Gregory J. Ahern, Sheriff

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ARMIDA RUELAS; DE ANDRE
EUGENE COX; BERT DAVIS;
KATRISH JONES; JOSEPH
MEBRAHTU; DAHRYL REYNOLDS;
MONICA MASON; LUIS NUNEZROMERO; and all others similarly
situated,
Plaintiffs,

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v.

Case No. Case No. 4:19-CV-07637 JST
Hon. Jon S. Tigar, judge
NOTICE OF MOTION AND MOTION
TO DISMISS PLAINTIFFS’
COMPLAINT FOR FAILURE TO
STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED;
MEMORANDUM OF POINTS AND
AUTHORITIES

COUNTY OF ALAMEDA; GREGORY FRCP 12(b)(6)
J. AHERN, SHERIFF; Aramark
Correctional Services, LLC, and DOES 1 Date: February 5, 2020
through 10,
Time: 2:00 p.m.
Location: 1301 Clay Street,
Defendants
Oakland, CA 94612,
Courtroom 6

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TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE that on February 5, 2020 at 2:00 p.m., or as soon

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thereafter as the matter may be heard in the above-entitled court, located at 1301

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Clay Street, Oakland, CA 94612, Courtroom 6 defendants the County of Alameda
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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF CAN BE GRANTED; MEMORANDUM OF POINTS AND AUTHORITIES ;
Case No. 4:19-CV-07637 JST

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and Gregory J. Ahern, Sheriff (collectively “Defendants”) will and hereby do, move

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the court pursuant to FRCP 12(b)(6) for an order dismissing all claims asserted in

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Plaintiffs’ complaint against the moving Defendants on the grounds Plaintiffs have

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failed to exhaust their administrative remedies under the Prisoners Legal Remedies

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Act, 42 U.S.C. § 1997(e) et seq. and under the California Government Code and thus

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the complaint fails to state any claim for which relief may be granted.

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In the alternative, Defendants will and hereby do, move to dismiss Plaintiffs’

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first, second, third and fourth claims of the Complaint for violation of Federal law on

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the grounds Plaintiffs have failed to exhaust their administrative remedies under the

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Prisoners Legal Remedies Act, 42 U.S.C. § 1997(e) et seq., and thus the complaint

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fails to state a first, second, third and fourth claim for which relief may be granted.

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In the alternative, Defendants will and hereby do, move to dismiss Plaintiffs’

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Fifth, Sixth, Seventh and Eighth claims for Violation of the California Labor Code,

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and the Ninth claim for Unfair Competition in violation of the California Business

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and Professions Code on the grounds that under California Law Defendants are not

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required to pay Plaintiffs’ wages and cannot be liable for failure to pay wages and/or

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for restitution of unpaid wages. Thus, the complaint fails to state a fifth, sixth,

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seventh, eighth, ninth and tenth claim for which relief may be granted.

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In the alternative, Defendants will and hereby do, move to dismiss Plaintiffs’

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Fifth, Sixth, Seventh and Eighth claims for Violation of the California Labor Code,

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the Ninth claim for Unfair Competition in violation of the California Business and

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Professions Code and Tenth Claim for violation of California Civil Code § 52.1 on

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the grounds Plaintiffs have failed to exhaust their administrative remedies prior to

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filing a complaint against the County of Alameda, a government entity, and/or

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Gregory J. Ahern, Sheriff, a public official, as required by California Law. Thus, the

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complaint fails to state a fifth, sixth, seventh, eighth, ninth and tenth claim for which

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relief may be granted.

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In the alternative Defendants will and hereby do, move to dismiss Plaintiffs’
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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR FAILURE TO STATE A
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Tenth Claim for violation of the Bane Act, California Civil Code § 52.1 on the

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grounds Plaintiffs have failed to exhaust their administrative remedies prior to filing

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a complaint against the County of Alameda, a government entity, and/or Gregory J.

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Ahern, Sheriff, a public official, as required by California Law and thus the

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complaint fails to state a tenth claim for which relief may be granted and on the

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grounds the complaint otherwise fails to state a tenth claim for which relief may be

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granted.

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This motion is made pursuant to FRCP 12(b)(6) and on the grounds the
complaint fails to state any claim upon which relief can be granted.

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This motion will be based on this Notice of Motion and Motion, the

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Memorandum of Points and Authorities filed herewith, the concurrently filed request

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for judicial notice, the pleadings and papers field herein and upon such other

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evidence or argument as may be presented to the Court at the time of the hearing.

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DATED: December 13, 2019

SKANE WILCOX LLP

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By:

_________________________________
Wendy L. Wilcox, Esq.
Joel P. Glaser, Esq.
Attorneys for Defendants the County of
Alameda and Gregory J. Ahern, Sheriff

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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF CAN BE GRANTED; MEMORANDUM OF POINTS AND AUTHORITIES ;
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TABLE OF CONTENTS

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I. INTRODUCTION AND SUMMARY OF COMPLAINT ................................... 1
II.

SUMMARY OF ARGUMENT.......................................................................... 2

III.

BASIC PLEADING STANDARDS .................................................................. 3

A. FRCP Rule 12(b)(6) Standards. .............................................................................. 3
IV.

PLAINTIFFS’ FEDERAL LAW CLAIMS ONE THROUGH FOUR ARE

BARRED DUE TO PLAINTIFFS’ FAILURE TO EXHAUST THEIR
ADMINISTRATIVE REMEDIES UNDER THE PRISONERS LEGAL REMEDIES
ACT, 42 U.S.C. § 1997(e) ET SEQ. ............................................................................ 4
V.

PLAINTIFFS FIFTH THROUGH NINTH CLAIMS FOR WAGE AND

HOUR VIOLATIONS AND RESTITUTION OF WAGES FAIL TO STATE A
CLAIM AGAINS THE DEFENDANTS FOR WHICH RELEIF MAY BE
GRANTED................................................................................................................... 5
VI.

UNDER CALIFORNIA LAW EXHAUSTION OF ADMINISTRATIVE

REMEDIES IS A PREREQUISITE TO FILING A SUIT FOR MONEY OR
DAMAGES AGAINST A GOVERNMENT ENTITY OR A PUBLIC OFFICIAL
UNDER STATE LAW ................................................................................................ 7
1. The Filing of a Claim Under California’s Government Claims Statute is a
Prerequisite to Filing Suit Against A Government Entity or a Public Official ........... 7
2. The Fifth Through Ninth Claims of the Complaint Seek Money or Damages and
are Subject to the California Government Claims Statute. .......................................... 9
A.

Plaintiffs’ fifth claim for failure to pay wages in violation of California Labor

Code §§ 201, 202 and 218 is a claim for money or damages. ..................................... 9
B.

Plaintiffs’ sixth claim is for failure to minimum wage in violation of California

Labor Code § 1194 is a claim for money or damages. ................................................ 9

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Plaintiffs’ seventh claim is for failure to pay overtime in violation of California

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C.

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Labor Code § 1194 is a claim for money or damages. .............................................. 10

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D.

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Labor Code § 1197.5 is a claim for money or damages. ........................................... 10

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E.

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damages. ..................................................................................................................... 11

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3. The Records attached to Defendants’ Request for Judicial Notice Conclusively

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Demonstrate the claim of Joseph Mebrahtu was Not Timely Presented as Required by

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the California Government Claims Statute and is time barred. ................................. 11

Plaintiffs’ eighth claim for failure to pay equal wages in violation of California
Plaintiffs’ Ninth Claim for Unfair Competition is a claim for money or

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4. The Records attached to Defendants’ Request for Judicial Notice Conclusively

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Demonstrate the Claim by Dahryl Reynolds fails to comply with the requirements of

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the California Government Claims Act ..................................................................... 12

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5. The Fifth Through Tenth Claims by Plaintiffs Monica Mason and Luis Nunez-

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Romero are Barred as a Matter of Law...................................................................... 12

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VII.

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VIOLATION OF THE BANE ACT, CALIFORNIA CIVIL CODE § 52.1............. 13

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1. The Ninth Circuit Has Ruled that the Filing of a Government Claim as Required

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Under California Law is a Prerequisite to a Prisoner’s Bringing a Claim for Violation

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of the Bane Act .......................................................................................................... 13

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2. Plaintiffs’ Tenth Claim for Violation of the Bane Act, California Civil Code §

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52.1, Fails to State a Claim for Which Relief May Be Granted ................................ 14

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VIII.

THE COMPLAINT FAILS TO STATE A TENTH CLAIM FOR

CONCLUSION ............................................................................................ 15

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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR FAILURE TO STATE A
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TABLE OF AUTHORITIES

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Cases
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) .......... 3
Atieh v. Riordan (1st Cir. 2013) 727 F3d 73, 76 .......................................................... 3
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990) ......................... 3
Canova v. Trustees of Imperial Irrig. Dist. Employee Pension Plan (2007) 150
Cal.App.4th 1487, 1493 ...................................................................................... 8, 11
Canova v. Trustees of Imperial Irrig. Dist. Employee Pension Plan, supra, 150
Cal.App.4th at 1493 .................................................................................................. 8
City of Los Angeles v. Sup.Ct. (Collins) (2008) 168 Cal.App.4th 422, 430 ................. 8
City of San Jose v. Sup.Ct. (Lands Unlimited) (1974) 12 Cal.3d 447, 454 .................. 8
City of Stockton v. Sup.Ct. (Civic Partners Stockton, LLC) (2007) 42 C4th 730, 743. 8
Coto Settlement v. Eisenberg (9th Cir. 2010) 593 F3d 1031, 1038 .............................. 4
Harris v. Escamilla (2018) 736 Fed.Appx. 618 ......................................................... 13
Harrison v. County of Del Norte (1985) 168 Cal.App.3d 1, 9 ..................................... 7
Munoz v. State of Calif. (1995) 33 Cal.App.4th 1767, 1776 .................................. 7, 13
Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 906 ............................................... 8, 12
Skilstaf, Inc. v. CVS Caremark Corp (9th Cir. 2012) 669 F3d 1005, 1016 .................. 4
State of Calif. v. Sup.Ct. (Bodde) (2004) 32 Cal.4th 1234, 1239 ................................. 7
Strom v. United States (9th Cir. 2011) 641 F3d 1051, 1067. Rule 12(b) ..................... 3
Vasquez v. State of California (2003), 105 Cal.App.4th 849, 851 ............................... 6
Von Saher v. Norton Simon Museum of Art at Pasadena (9th Cir. 2010) 592 F3d 954,
960 ............................................................................................................................. 4

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Statutes

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18 U.S.C. § 1589 ....................................................................................................... 2, 4

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42 U.S.C. § 1983 ....................................................................................................... 2, 4

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42 U.S.C. § 1997(e), subpart (a) ................................................................................... 4
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42 U.S.C. §1983 ............................................................................................................ 4

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Business & Professions Code § 17200 et seq. .......................................................... 2, 7

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California Business & Professions Code § 17200, et seq. ......................................... 11

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California Civil Code § 52.1 ....................................................................................... 14

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California Government Code § 900 et seq. .................................................................. 7

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California Government Code § 901........................................................................ 8, 12

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California Government Code § 905.............................................................................. 8

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California Government Code § 910(c) ....................................................................... 12

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California Government Code § 911.2..................................................................... 8, 11

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California Government Code § 912.4........................................................................... 9

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California Government Code § 950.2........................................................................... 8

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California Government Code §§ 912.4......................................................................... 7

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California Government Code §§ 912.4, 945.4........................................................ 7, 13

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California Labor Code § 1194, 1197 and 1197.1 ....................................................... 10

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California Penal Code § § 2717.8 ................................................................................ 6

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California Penal Code § 2717.2 ................................................................................... 6

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California Penal Code §2717.1 .................................................................................... 6

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Fed. R. Civ. P. 12(b)(6)................................................................................................. 3

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Labor Code § 1194 ...................................................................................................... 10

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Labor Code § 1197.5................................................................................................... 10

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Labor Code §§ 201and 202 ........................................................................................... 9

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Labor Code §218 ........................................................................................................... 9

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Pen. Code, § 2717.1 et seq. ........................................................................................... 6

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Prisoners Legal Remedies Act, 42 U.S.C. § 1997(e) et seq. ........................................ 2

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Rules
FRCP Rule 12(b)(6) ...................................................................................................... 3

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION AND SUMMARY OF COMPLAINT

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Plaintiffs, current and former inmates at the Santa Rita Jail (the “Jail”) in

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Alameda County, have alleged various Federal and State law Claims against the

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County of Alameda (the “County”) and Gregory J. Ahern, the Sheriff of Alameda

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County (the “Sheriff”), Aramark Correctional Services, LLC and various doe

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defendants. The complaint alleges the Jail is operated by the Alameda County

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Sheriff’s Department under the supervision of the Sheriff.

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The complaint alleges the County contracted with Defendant Aramark

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Correctional Services, LLC (“Aramark”) to allow Aramark to employ Jail inmates in

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the Jail’s kitchen to provide food preparation services, scullery services, and perform

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general cleaning and sanitation. The complaint further alleges Aramark sells the

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food prepared by the inmates to third parties at a profit.

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The complaint alleges Plaintiff were “required” to work without compensation

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under threat by Sheriff’s Deputies of longer jail sentences and/or solitary

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confinement, were not allowed to take time off when they were sick or injured and

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were forced to work in unsafe conditions. It is also alleged, that except for a brief

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period when male inmates “went on strike,” female inmates were only scheduled to

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work at night on shorter shifts than their male counterparts.

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The complaint further alleges that as a result of the contract between the

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County and Aramark the County and the Sheriff knew or should have known that

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Aramark was using inmate labor without compensation and thus the County and the

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Sheriff knew they were providing uncompensated labor in violation of state and

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federal law.

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Defendants the County and the Sheriff (“Defendants” or “Moving

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Defendants”) hereby move to dismiss the Complaint for failure to state a claim

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against Defendants for which relief may be granted.

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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF CAN BE GRANTED; MEMORANDUM OF POINTS AND AUTHORITIES ;
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II.

SUMMARY OF ARGUMENT
1. The first, second, third and fourth claims of Plaintiffs’ complaint for

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violation of Federal Law, 42 U.S.C. § 1983 and 18 U.S.C. § 1589, are

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barred due to Plaintiffs’ failure to exhaust their administrative remedies as

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required under the Prisoners Legal Remedies Act, 42 U.S.C. § 1997(e) et

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seq. Under that statute, Plaintiffs were required to exhaust all

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administrative remedies available to them regarding Jail conditions prior to

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bringing any lawsuit under 42 U.S.C. §1983, or any other Federal law,

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regarding those conditions. Plaintiffs have failed to allege that they have

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exhausted the administrative remedies available to them at the Jail,

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therefore their Federal Law claims are barred.

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2. The fifth, sixth, seventh, eighth and ninth claims of Plaintiffs’ complaint

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for violation of various wage and hour provisions of the California Labor

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Code, and for restitution of lost wages under California’s unfair

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competition law, Business & Professions Code § 17200 et seq., are barred

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because the County and the Sheriff are not required to pay the Plaintiffs’

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wages and cannot be held liable for failure to do so or for restitution of

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wages not paid. Thus, the complaint fails to state claims for which relief

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may be granted.

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3. Plaintiffs Joseph Mebrahtu, Dahryl Reynolds, Monica Mason and Luis

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Nunez-Romero’s fifth, sixth, seventh, eighth and ninth claims for

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violations of various wage and hour provisions of the California Labor

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Code and for restitution of lost wages under California’s unfair

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competition law are barred because said Plaintiffs failed to exhaust their

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administrative remedies prior to filing suit against the County, a

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government entity, and against the Sheriff, a public official, as required by

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the California Government Code. Thus, the complaint fails to state claims

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for which relief may be granted.
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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT FOR FAILURE TO STATE A
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4. Plaintiffs’ claim for violation of the Bane Act is barred due to Plaintiffs’

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failure to exhaust their administrative remedies prior to filing suit against

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the County, a government entity, and against the Sheriff, a public official,

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as required by the California Government Code. Thus, the complaint fails

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to state a claim for which relief may be granted. In addition, the complaint

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otherwise fails to state facts constituting a tenth claim under the Bane Act

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for which relief may be granted.

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For these reasons, and as set forth more fully below, the court should grant

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this motion and dismiss all of the Claims asserted in Plaintiffs’ complaint. In the

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alternative, the Court should dismiss second and fifth through tenth claims for the

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reasons stated herein.

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III.

BASIC PLEADING STANDARDS

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A. FRCP Rule 12(b)(6) Standards.

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A Rule 12(b)(6) motion is similar to the common law general demurrer—i.e.,

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it tests the legal sufficiency of the claim or claims stated in the complaint. Strom v.

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United States (9th Cir. 2011) 641 F3d 1051, 1067. Rule 12(b) provides that "a party

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may assert the following defenses by motion: … failure to state a claim upon which

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relief can be granted." Fed. R. Civ. P. 12(b)(6). "The purpose of a Rule 12(b)(6)

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motion is to test the legal sufficiency of the claim or claims stated in the complaint."

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To survive a motion to dismiss, a complaint must contain sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

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(internal quotation marks omitted.) The facially plausible standard “is a screening

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mechanism designed to weed out cases that do not warrant either discovery or trial.”

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Atieh v. Riordan (1st Cir. 2013) 727 F3d 73, 76.

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A claim can be dismissed under Rule 12(b)(6) "based on the lack of a

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cognizable legal theory or the absence of sufficient facts alleged under a cognizable

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legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990)
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(citation omitted).

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Generally, the court cannot consider material outside the complaint except for

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facts susceptible to judicial notice. Coto Settlement v. Eisenberg (9th Cir. 2010) 593

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F3d 1031, 1038. A matter that is properly the subject of judicial notice (see FRE

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201) may be considered along with the complaint when deciding a motion to dismiss

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for failure to state a claim. Skilstaf, Inc. v. CVS Caremark Corp (9th Cir. 2012) 669

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F3d 1005, 1016. The court need not accept as true allegations that contradict facts

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which may be judicially noticed by the court. Von Saher v. Norton Simon Museum of

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Art at Pasadena (9th Cir. 2010) 592 F3d 954, 960.

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ARGUMENT
IV.

PLAINTIFFS’ FEDERAL LAW CLAIMS ONE THROUGH FOUR

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ARE BARRED DUE TO PLAINTIFFS’ FAILURE TO EXHAUST

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THEIR ADMINISTRATIVE REMEDIES UNDER THE PRISONERS

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LEGAL REMEDIES ACT, 42 U.S.C. § 1997(e) ET SEQ.

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The complaint alleges a first, third and fourth claim for violation of 42 U.S.C.

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§1983 based upon the allegations that due to employment and other conditions at the

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Jail Plaintiffs were deprived of certain constitutional rights guaranteed under the

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thirteenth and fourteenth amendments to the United States Constitution.

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The complaint also alleges a second claim for violation of 18 U.S.C. § 1589,

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the “Trafficking Victims Protection Act.”

However, exhaustion of the

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administrative remedies available to the Plaintiffs for the complaints regarding Jail

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conditions is a prerequisite to filing any lawsuit based upon a violation of 42 U.S.C.

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§1983 or any other Federal Law (emphasis added.) The failure to allege the

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exhaustion of administrative remedies bars any claim based upon conditions at the

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Jail.

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42 U.S.C. § 1997(e), subpart (a) provides:

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“No action shall be brought with respect to prison conditions under

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section 1983 of this title, or any other Federal law, by a prisoner
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confined in any jail, prison, or other correctional facility until such

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administrative remedies as are available are exhausted.”

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The complaint filed herein fails to allege Plaintiffs, or any of them, complied

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with any administrative remedies available to them regarding the conditions at the

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Jail, therefore their federal law claims are barred as a matter of law.

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V.

PLAINTIFFS FIFTH THROUGH NINTH CLAIMS FOR WAGE AND

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HOUR VIOLATIONS AND RESTITUTION OF WAGES FAIL TO

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STATE A CLAIM AGAINS THE DEFENDANTS FOR WHICH

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RELEIF MAY BE GRANTED

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The complaint alleges Plaintiffs were incarcerated in the Jail and were

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employed under a contract between the County and Aramark. (¶21) The complaint

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further alleges the contract allows Aramark to “employ” persons incarcerated in the

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Jail (Id) allegedly without compensating them. Throughout the complaint the

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Plaintiffs allege they were employed by Aramark.

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The complaint alleges that in 1990 the voters approved California Proposition

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139, the “Prison Inmate Labor Initiative of 1990” which Plaintiffs allege allows

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California Counties to hire out prisoners to private entities.

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Proposition 139 was adopted into California law as Article 14, section 5 of the
California Constitution. That section reads at part (a)

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“The Director of Corrections or any county Sheriff or other local

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government official charged with jail operations, may enter into

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contracts with public entities, nonprofit or for-profit organizations,

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entities, or businesses for the purpose of conducting programs which

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use inmate labor. Such programs shall be operated and implemented

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pursuant to statutes enacted by or in accordance with the provisions of

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the Prison Inmate Labor Initiative of 1990, and by rules and

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regulations prescribed by the Director of Corrections and, for county

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jail programs, by local ordinances.”
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Proposition 139 (codified in Pen. Code, § 2717.1 et seq.), requires the

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Director of Corrections (the Director) to “establish joint venture programs within

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state prison facilities to allow joint venture employers [private businesses] to employ

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inmates confined in the state prison system for the purpose of producing goods or

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services.” California Penal Code § 2717.2.

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A “joint venture employer” means any public entity, nonprofit or for-profit

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entity, organization, or business which contracts with the Director of Corrections for

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the purpose of employing inmate labor. California Penal Code §2717.1

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Proposition 139 requires a private business to pay inmates compensation

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“comparable to wages [it] paid ... to non-inmate employees performing similar work

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for that employer. (emphasis added) If the joint venture employer does not employ

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such non-inmate employees in similar work, compensation shall be comparable to

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wages paid for work of a similar nature in the locality in which the work is to be

14

performed” (prevailing wages). Vasquez v. State of California (2003), 105

15

Cal.App.4th 849, 851, see, California Penal Code § § 2717.8.

16

However, neither the County nor the Sheriff is required to pay such inmates.

17

Defendants have found no California decision, statute or regulation that requires the

18

Jail, the County or the Sheriff to pay inmates employed in joint venture programs.

19

Because neither the County nor the Sheriff are required to pay wages to the

20

Plaintiffs, neither the County nor the Sheriff can be liable for violations of various

21

provisions the California Labor Code, which provide a private right of action to

22

recover unpaid wages, including the fifth claim for violation of §§ 201, 202, 218

23

(failure to pay wages upon separation form employment), the sixth and seventh

24

claims for violation of violation of § 1194, (failure to pay minimum wages, failure to

25

pay overtime) or the eighth claim for violation § 1197.5, (failure to pay equal

26

wages).

27

Similarly, because neither the County nor the Sheriff are required to pay

28

wages to the Plaintiffs, neither the County nor the Sheriff can be liable for restitution
6
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of unpaid wages under California's Unfair Competition Law, (“UCL”) California

2

Business & Professions Code § 17200, et seq.

3

VI.

UNDER CALIFORNIA LAW EXHAUSTION OF ADMINISTRATIVE

4

REMEDIES IS A PREREQUISITE TO FILING A SUIT FOR MONEY

5

OR DAMAGES AGAINST A GOVERNMENT ENTITY OR A PUBLIC

6

OFFICIAL UNDER STATE LAW

7

1.

The Filing of a Claim Under California’s Government Claims

8

Statute is a Prerequisite to Filing Suit Against A Government

9

Entity or a Public Official

10

No suit for money or damages may be maintained against a governmental

11

entity unless a formal claim has been presented to such entity, and, has been rejected

12

(or is deemed rejected by the passage of time). California Government Code §§

13

912.4, 945.4; see Munoz v. State of Calif. (1995) 33 Cal.App.4th 1767, 1776. The

14

claims filing statutes have been repeatedly upheld against challenges on “due

15

process” and “equal protection” grounds. See Harrison v. County of Del Norte

16

(1985) 168 Cal.App.3d 1, 9.

17

With few exceptions, the claims filing statutes apply to claims against every

18

public entity in the State. This includes the State and every political subdivision,

19

every agency and department thereof, and every special purpose district (public

20

schools, public hospitals, public transportation, etc.). See, California Government

21

Code § 900 et seq.

22

Compliance with the government claim filing requirement is an essential

23

element of a cause of action for damages against a government entity. Consequently,

24

a Plaintiff must plead and prove timely compliance with the government claims

25

statute in order to prevail. Failure to comply with the claims statute bars the claim

26

against the public entity. See, State of Calif. v. Sup.Ct. (Bodde) (2004) 32 Cal.4th

27

1234, 1239. If action against the public entity is barred by failure to file a timely

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claim, suit against a public employee for causing injury in the scope of his or her

2

employment is also barred. California Government Code § 950.2.

3

The statutory requirements for presentation of a claim apply to claims for

4

“money or damages.” California Government Code § 905; see, City of Los Angeles

5

v. Sup.Ct. (Collins) (2008) 168 Cal.App.4th 422, 430.

6

The statutes do not apply to nonpecuniary actions, “such as those seeking

7

injunctive, specific or declaratory relief.” Canova v. Trustees of Imperial Irrig. Dist.

8

Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1493. However, the claims

9

filing requirements apply where the primary purpose of a suit for declaratory or

10

injunctive relief is “money or damages.” Canova v. Trustees of Imperial Irrig. Dist.

11

Employee Pension Plan, supra, 150 Cal.App.4th at 1493 [primary purpose of

12

injunctive and declaratory relief action was to transfer additional funds to pension

13

plan accounts.]

14

Claims for restitution for the reasonable value of services rendered are subject

15

to the statutory claim requirements. City of Stockton v. Sup.Ct. (Civic Partners

16

Stockton, LLC) (2007) 42 C4th 730, 743.

17

The statutory requirements for presentation of a claim apply to class actions as

18

well as individual claims. Where the class claim is against a governmental entity, or

19

a public official, timely filing of a proper claim is required. City of San Jose v.

20

Sup.Ct. (Lands Unlimited) (1974) 12 Cal.3d 447, 454.

21

Any claim for money damages against a public entity, other than for personal

22

injury or death, or for damage to personal property or crops, must be presented to the

23

governmental entity within 1 year of the accrual of the claim. California

24

Government Code § 911.2. The time limit runs from the date the claimant's right to

25

sue arises. This is the date upon which the statute of limitations would begin to run if

26

there were no claim-filing requirement. California Government Code § 901; see,

27

Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 906,

28

The governmental entity then has 45 days within which to either accept or
8
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reject the claim (unless extended by stipulation with the claimant). No Civil Action

2

may be filed until the claim is rejected or the 45-day period has expired. If it fails to

3

act within the 45-day period, the claim is deemed rejected by operation of law.

4

California Government Code § 912.4.

5

2.

The Fifth Through Ninth Claims of the Complaint Seek Money or

6

Damages and are Subject to the California Government Claims

7

Statute.

8

A.

9

Plaintiffs’ fifth claim for failure to pay wages in violation of
California Labor Code §§ 201, 202 and 218 is a claim for money

10

or damages.

11

Labor Code §§ 201and 202 provide that an employer is required to pay an

12

employee all wages including accrued vacation, within twenty-four (24) hours of the

13

employee’s involuntary separation from employment; within twenty-four (24) hours

14

of his voluntary separation if the employee gave at least seventy-two (72) hours of

15

notice, and within seventy-two (72) hours, if the employee voluntarily separated, but

16

did not give at least seventy-two (72) hours’ notice.

17

A Plaintiff who prevails a claim for violation of Labor Code §§ 201and/or 202

18

is entitled to entitled to one day of pay for each day that he or she was paid late.

19

Thus, Plaintiffs’ fifth claim is a claim for money or damages and is subject to the

20

California claims filing requirements.

21

Labor Code §218 authorizes the district attorney of any county or prosecuting

22

attorney of any city to enforce the provision of Article 1 of the California Labor Code

23

and is inapplicable to Plaintiffs’ claims

24

B.

Plaintiffs’ sixth claim is for failure to minimum wage in violation

25

of California Labor Code § 1194 is a claim for money or

26

damages.

27

An employee who prevails on claim for unpaid minimum wages is entitled to

28

recover the unpaid balance of their minimum wage compensation as well as interest,
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costs, and attorney’s fees and liquidated damages in an amount equal to the wages

2

unlawfully unpaid and interest thereon, a penalty of $100.00 for the initial failure to

3

pay each employee minimum wages and $250.00 for each subsequent failure to pay

4

each employee minimum wages liquidated damages in an amount equal to the wages

5

unlawfully unpaid and interest thereon. California Labor Code § 1194, 1197 and

6

1197.1. Thus, Plaintiffs’ sixth claim is a claim for money or damages and is subject

7

to the California claims filing requirements.

8

C.

9

Plaintiffs’ seventh claim is for failure to pay overtime in violation
of California Labor Code § 1194 is a claim for money or

10

damages.

11

Labor Code § 1194 provides that an employee who has not been paid

12

overtime compensation as required by Section 1198 may recover the unpaid balance

13

of the full amount of such overtime compensation, together with costs of suit, as

14

well as liquidated damages in an amount equal to the overtime compensation

15

unlawfully withheld, and interest thereon, in a civil action. Thus, Plaintiffs’ seventh

16

claim is a claim for money or damages and is subject to the California claims filing

17

requirements.

18

D.

Plaintiffs’ eighth claim for failure to pay equal wages in violation

19

of California Labor Code § 1197.5 is a claim for money or

20

damages.

21

Labor Code § 1197.5 provides that an employer shall not pay any of its

22

employees at wage rates less than the rates paid to employees of the opposite sex for

23

substantially similar work. An employee who prevails on a claim for violation of §

24

1197.5 is entitled to recover the amount of the wages, and interest thereon, of which

25

the employee is deprived by reason of the violation, and an additional equal amount

26

as liquidated damages. Thus, Plaintiffs’ eighth claim is a claim for money or

27

damages and is subject to the California claims filing requirements.

28

\\\
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E.

2

Plaintiffs’ Ninth Claim for Unfair Competition is a claim for
money or damages.

3

An employee may file a civil action under California's Unfair Competition

4

Law, (“UCL”) California Business & Professions Code § 17200, et seq., to recover

5

unlawfully withheld wages in restitution for said violation. While declaratory and

6

equitable relief are also available under the UCL the complaint alleges Plaintiffs

7

“lost money in the form of wages they were owed.” (¶105) Further, Plaintiffs do not

8

allege a right to declaratory or equitable relief under the UCL in the ninth claim of

9

the Complaint. Where the primary purpose of a suit for declaratory or injunctive

10

relief is to recover “money or damages” the claim is subject to the California claims

11

filing requirements. Canova v. Trustees of Imperial Irrig. Dist. Employee Pension

12

Plan (2007) 150 Cal.App.4th 1487, 1493.

13

3.

The Records attached to Defendants’ Request for Judicial Notice

14

Conclusively Demonstrate the claim of Joseph Mebrahtu was Not

15

Timely Presented as Required by the California Government

16

Claims Statute and is time barred.

17

Here, a copy of the claim submitted by Plaintiffs Armida Ruelas; De Andre

18

Eugene Cox; Bert Davis; Katrish Jones; Joseph Mebrahtu; Dahryl Reynolds to the

19

County is attached to Defendants’ Request for Judicial Notice as Exhibit 1.

20

Claimant Joseph Mebrahtu alleges he worked as an incarcerated Aramark

21

employee in the jail kitchen for approximately eleven months between 2014 and

22

2018. (Exh. 1, pg. 3, lines 21-21)

23

Any claim against a public entity for personal injury or death, or for damage

24

to personal property or crops must be presented to the governmental entity within 6

25

months of accrual of the cause of action. All other claims must be presented within 1

26

year.

27

claims were required to made within 1 year of the accrual of their causes of action

28

(claims).

California Government Code § 911.2. Therefore, Plaintiffs’ government

11
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The time limit runs from the date the claimant's right to sue arises. This is the

2

date upon which the statute of limitations would begin to run if there were no claim-

3

filing requirement. California Government Code § 901; see, Rubenstein v. Doe No. 1

4

(2017) 3 Cal.5th 903, 906.

5

Notably, although his claim is deliberately vague, Joseph Mebrahtu does not

6

allege he worked for Aramark in or after 2018. Accordingly, the deadline for Joseph

7

Mebrahtu’s claim expired prior to the end of 2018. Because his claim was not

8

presented to Defendants until August 6, 2019, his claims are time barred. Therefore,

9

Joseph Mebrahtu failed to exhaust his administrative remedies prior to filing suit and

10
11

his claim is barred.
4.

The Records attached to Defendants’ Request for Judicial Notice

12

Conclusively Demonstrate the Claim by Dahryl Reynolds fails to

13

comply with the requirements of the California Government

14

Claims Act

15

Claimant Dahryl Reynolds states in the claim filed with the Defendants

16

(Exhibit 1 to Defendants’ Request for Judicial Notice) that he was “formerly

17

incarcerated in Santa Rita Jail and worked as an incarcerated Aramark employee in

18

the jail kitchen for approximately one year.”

19

To comply with the California Government claims statutes a claim must state

20

the “date of the accident or event out of which the claim arose.” California

21

Government Code § 910(c).

22

Reynolds’ claim fails to comply with the statutory requirements for a government

23

claim and fails to satisfy the requirements of the government claims statute.

24

Therefore, he failed to exhaust his administrative remedies prior to filing suit and his

25

claims against the Defendants are barred.

26
27
28

5.

Thus, even if his claim was timely presented,

The Fifth Through Tenth Claims by Plaintiffs Monica Mason and
Luis Nunez-Romero are Barred as a Matter of Law

No suit for money or damages may be maintained against a governmental
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entity or a public official unless a formal claim has been presented to such entity,

2

and, has been rejected (or is deemed rejected by the passage of time). California

3

Government Code §§ 912.4, 945.4; see Munoz v. State of Calif. (1995) 33

4

Cal.App.4th 1767, 1776.

5

The complaint alleges Plaintiffs Monica Mason and Luis Nunez-Romero

6

presented their claims to the County on November 8, 2019 (¶66) The complaint does

7

not allege the claims were rejected by the County.

8

This action was filed on November 20, 2019, just 12 days after presentation of

9

these claims Because Plaintiffs Monica Mason and Luis Nunez-Romero filed this

10

action before the expiration of the 45-day period required for the County to consider

11

to their claim under the claims statute, the claims by Plaintiffs Monica Mason and

12

Luis Nunez-Romero are premature and are barred as a matter of law.

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VII. THE COMPLAINT FAILS TO STATE A TENTH CLAIM FOR

14

VIOLATION OF THE BANE ACT, CALIFORNIA CIVIL CODE § 52.1

15

1.

The Ninth Circuit Has Ruled that the Filing of a Government

16

Claim as Required Under California Law is a Prerequisite to a

17

Prisoner’s Bringing a Claim for Violation of the Bane Act

18

In the Ninth Circuit case of Harris v. Escamilla (2018) 736 Fed.Appx. 618

19

(“Harris”) the Court ruled that the submission of an administrative claim as required

20

by the California Government Claims Act is a prerequisite to a prisoner bringing a

21

lawsuit against a prison official under the Bane Act.

22

In Harris Plaintiff-Appellant Darrell Harris contended that Defendant-

23

Appellee Officer S. Escamilla violated his constitutional rights as well as state and

24

federal laws during a cell search in a California state prison.

25

The court in Harris affirmed the district court’s dismissal of this claim

26

because Harris had not alleged that he submitted an administrative claim before

27

bringing his lawsuit, as required by the Government Claims Act. Harris at 621.

28

The same reasoning and statutory interpretation apply to Plaintiffs’ tenth
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claim. The defendant in Harris was a prison guard, an employee of a Government

2

entity, and the requirements of the Government Claims Act apply equally to

3

Government entities and employees of government entities and public officials. The

4

County is a government entity, the Sheriff is an employee of the County and/or a

5

public official. Therefore, Plaintiffs were required to comply with the government

6

claims act prior to filing suit for violation of the Bane Act. Plaintiffs failed to do so,

7

and their tenth claim is barred.

8

As noted above, a copy of the claim submitted by Plaintiffs Armida Ruelas;

9

De Andre Eugene Cox; Bert Davis; Katrish Jones; Joseph Mebrahtu; Dahryl

10

Reynolds to the County is attached to Defendants’ Request for Judicial Notice as

11

Exhibit 1.

12

Under the Bane Act a civil action for damages may be brought against any

13

person or persons that “interferes by threat, intimidation, or coercion, or attempts to

14

interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any

15

individual or individuals of rights secured by the Constitution or laws of the United

16

States, or of the rights secured by the Constitution or laws of this state...”

17

Harris is controlling precedent for this Court and Plaintiffs’ tenth claim must

18

be dismissed.

19

2.

Plaintiffs’ Tenth Claim for Violation of the Bane Act, California

20

Civil Code § 52.1, Fails to State a Claim for Which Relief May Be

21

Granted

22

§ 52.1(c) provides:

23

Any individual whose exercise or enjoyment of rights secured by the

24

Constitution or laws of the United States, or of rights secured by the

25

Constitution or laws of this state, has been interfered with, or

26

attempted to be interfered with, have may institute and prosecute in

27

his or her own name and on his or her own behalf a civil action for

28

damages, including, but not limited to, damages under Section 52,
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injunctive relief, and other appropriate equitable relief.”

2

As with Plaintiffs’ ninth claim, Plaintiffs do not allege a right to declaratory or

3

equitable relief in the tenth claim of the Complaint. A general claim for damages and

4

equitable or declaratory relief is alleged in the prayer to the Complaint.

5

However, at ¶110 under the heading “DAMAGES” the complaint alleges

6

“…plaintiffs have been injured and have suffered damages as follows:

7

a. They have been financially injured and damaged including, but not limited

8

to, by the loss of wages and overtime premiums due to plaintiffs and the

9

putative class.

10

b. They have suffered emotional distress.”

11

The lack of any claim for a right to declaratory or equitable relief in the tenth

12

claim, coupled with the affirmative allegation that Plaintiffs have been financially

13

injured and damaged, reasonably implies the tenth claim, like Plaintiff’s other state

14

law claims, is a claim for money or damages subject to the California claims filing

15

requirements.

16

VIII.

CONCLUSION

17

Under the Prisoners Legal Remedies Act, 42 U.S.C. § 1997(e), et seq.

18

Plaintiffs were required to exhaust the administrative remedies available to them

19

before filing any civil action related to Jail conditions under 42 U.S.C. § 1983 or any

20

other federal law. The Plaintiffs’ failure to plead the exhaustion of their

21

administrative remedies prior to filing this action is fatal to their first through fourth

22

causes of action

23

Neither the County nor the Sheriff are required to pay the wages of the

24

Plaintiffs, who at all times were employed by Aramark. Accordingly, the fifth

25

through ninth claims for relief fail against moving defendants as a matter of law.

26

Plaintiffs have failed to comply with California’s Government Tort Claims

27

Statute and therefore their fifth through tenth claims for relief fail as a matter of law.

28

Accordingly, this motion to dismiss should be granted without leave to
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amend.

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3

DATED: December 13, 2019

SKANE WILCOX LLP

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By:

_________________________________
Wendy L. Wilcox, Esq.
Joel P. Glaser, Esq.
Wendy L. Wilcox, Esq.
Joel P. Glaser, Esq.
Attorneys for Defendants the County of
Alameda and Gregory J. Ahern, Sheriff

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CERTIFCATE OF SERVICE
I, Gonzalo Valverde, am employed in the County of Los Angeles, State of
California. I am over the age of 18 and not a party to the within action. My
business address is 1055 West 7th Street, Suite 1700, Los Angeles, CA 90017.

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6

On December 13, 2019, the following document(s) is(are) being filed
electronically and will be available for viewing and downloading from the Court’s
CM/ECF system:

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NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’
COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED; MEMORANDUM OF POINTS AND
AUTHORITIES

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The Notice of Electronic Case Filing automatically generated by the system
and sent to all parties entitled to service under the Federal Rules of Civil Procedure
and the Local Rules of the Northern District of California who have consented to
electronic service shall constitute service of the filed document to all such parties.
Parties who have not consented to electronic service are entitled to receive a paper
copy of any electronically filed pleading or other documents. Any such parties will
be served by regular mail.
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and that this declaration was executed on December
13, 2019, at Los Angeles, California.

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/s/ Gonzalo Valverde
Gonzalo Valverde

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