1

Filed 9/25/24 Bath v. State of Cal. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

AZEEM BATH et al.,

Plaintiffs and Appellants,

v.

STATE OF CALIFORNIA et al.,

Defendants and Respondents.

 A167908

 (Solano County Super. Ct. 

 No. FCS058670)

Plaintiffs are employees of the State of California who provide dental 

care to inmates in the state prison system; their employment is governed by a 

memorandum of understanding (MOU). Plaintiffs have sued the state and 

related defendants seeking compensation for time they have spent on “preand post-shift safety and security activities,” such as going through security

and picking up and returning alarm devices. 

Defendants filed a demurrer, which the trial court sustained without 

leave to amend on the ground these activities are not compensable under the 

Portal-to-Portal Act of the Fair Labor Standards Act. After judgment was 

entered, plaintiffs appealed. 

Plaintiffs contend they have alleged viable wage claims and the trial 

court improperly decided a disputed question of fact in ruling on the 

demurrer. Defendants respond that the trial court did not err, and, in any 

event, the judgment may be affirmed on alternative grounds they raised in
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their demurrer. Specifically, defendants argue the MOU governing the terms 

and conditions of plaintiffs’ employment precludes their claims; plaintiffs’

statutory claims fail because the statutes at issue do not apply to government 

employers; the claims are all subject to dismissal because plaintiffs failed to 

exhaust their contractual remedies (grievance and arbitration procedures in 

the MOU); and the claims are all barred by the applicable statute of 

limitations. 

We conclude defendants’ demurrer is well taken as to plaintiffs’ 

statutory claims, but plaintiffs have stated a claim for breach of contract. We 

further conclude that defendants’ affirmative defense of failure to exhaust 

contractual remedies cannot be resolved in a demurrer and plaintiffs’ 

contract claim is not time barred. Accordingly, we affirm in part and reverse 

in part. 

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Azeem Bath, Megan Roberts, and Makisha Bomar are hourly 

paid, non-exempt employees who work at an adult state prison. Bath is a 

dental hygienist, Roberts and Bomar are dental assistants, and they all are 

currently assigned to the California Medical Facility. The defendants are the 

State of California, California Department of Correction and Rehabilitation 

(CDCR), California Correctional Health Care Services, and California 

Department of Human Resources (CalHR). 

Memorandum of Understanding and the Governing Wage Law

The parties agree that plaintiffs’ union and the State of California 

entered a memorandum of understanding governing the terms and conditions 

of plaintiffs’ employment and that the MOU incorporates the Fair Labor 

Standards Act of 1938 (FLSA), as amended by the Portal-to-Portal Act (29 

U.S.C. § 251 et seq.). Plaintiffs further acknowledge that it is the FLSA that
3

“determine[s] whether activities performed by Plaintiffs are compensable.” 

We therefore begin with a brief overview of the applicable wage law. 

The Portal-to-Portal Act of the FLSA “exempt[s] employers from 

liability for future claims based on two categories of work-related activities as 

follows: [¶] ‘(a) Except as provided in subsection (b) [which covers work 

compensable by contract or custom], no employer shall be subject to any 

liability or punishment under the Fair Labor Standards Act of 1938, as 

amended, . . . on account of the failure of such employer . . . to pay an 

employee overtime compensation, for or on account of any of the following 

activities of such employee engaged in on or after the date of the enactment of 

this Act—

“ ‘(1) walking, riding, or traveling to and from the actual place of 

performance of the principal activity or activities which such employee is 

employed to perform, and

“ ‘(2) activities which are preliminary to or postliminary to said 

principal activity or activities,

“ ‘which occur either prior to the time on any particular workday at 

which such employee commences, or subsequent to the time on any particular 

workday at which he ceases, such principal activity or activities.’ § 4, 61 Stat. 

86–87 (codified at 29 U.S.C. § 254(a)).” (Integrity Staffing Solutions, Inc. v. 

Busk (2014) 574 U.S. 27, 32–33 (Integrity Staffing), italics added.) 

“As the statute’s use of the words ‘preliminary’ and ‘postliminary’ 

suggests, § 254(a)(2), and as [United States Supreme Court] precedents make 

clear, the Portal-to-Portal Act of 1947 is primarily concerned with defining 

the beginning and end of the workday. [Citation.] It distinguishes between 

activities that are essentially part of the ingress and egress process, on the 

one hand, and activities that constitute the actual ‘work of consequence 
4

performed for an employer,’ on the other hand. 29 CFR § 790.8(a); see also 

ibid. (clarifying that a principal activity need not predominate over other 

activities, and that an employee could be employed to perform multiple 

principal activities).” (Integrity Staffing, supra, 574 U.S. at p. 38 (conc. opn. 

of Sotomayor, J.).) 1

The phrase “ ‘ “principal activity or activities” ’ ” includes “ ‘all activities 

which are an “integral and indispensable part of the principal activities.” ’ ” 

(Integrity Staffing, supra, 574 U.S. at p. 33.) It is not enough to show “an 

employer required an activity” or “the activity is for the benefit of the 

employer.” (Id. at p. 36.) 

First Amended Complaint

In November 2022, plaintiffs filed a first amended complaint against 

defendants styled as a class action.2 They asserted four causes of action: 

(1) failure to pay California minimum wage in violation of Labor Code3

1 The Portal-to-Portal Act “does not affect the computation of hours 

worked within the ‘workday’ proper, roughly described as the period ‘from 

whistle to whistle,’ and its provisions have nothing to do with the 

compensability under the Fair Labor Standards Act of any activities engaged 

in by an employee during that period. . . . Periods of time between the 

commencement of the employee’s first principal activity and the completion of 

his last principal activity on any workday must be included in the 

computation of hours worked to the same extent as would be required if the 

Portal Act had not been enacted.” (29 C.F.R. § 790.6(a), fns. omitted.) In 

other words, once an employee engages in a principal activity, the 

compensable workday has started. 

2 The class and class members plaintiffs “seek to represent are all 

former and current hourly paid, non-exempt employees of Defendants who 

perform or have performed, without pay or other compensation, pre- and 

post-shift activities at one or more adult and youth prisons located in the 

State of California.” 

3 Further undesignated statutory references are to the Labor Code. 
5

sections 1182.11, 1182.12. and 1194, (2) failure to pay overtime wages in 

violation of section 1194, (3) failure to pay wages and/or overtime in breach of 

common law contractual obligations, and (4) failure to pay wages in violation 

of section 222. 

Plaintiffs alleged, “a principal activity [of their employment and that of 

all class members] is to provide safety and security for all prison occupants.” 

(Capitalization and bolding deleted.) They continued, “California Prisons 

present multiple dangers and safety concerns that are not present in the 

average workplace,” and given the risks, plaintiffs (and putative class 

members) “are specially employed to focus on and promote the security and 

safety of staff, visitors, and inmates.”4

Plaintiffs alleged the uncompensated “Pre-Shift Work” that they and 

other class members perform compromises the following five activities: 

(1) “The Security Checkpoint”—at the front gate of a prison, presenting their 

identification cards to security officers and opening their bags for visual 

inspections; (2) “The First Sally Port”—walking to a sally port, waiting to 

enter, and then waiting for the guard to open the gate; (3) “Collecting Work 

Specific Tools and Equipment”—walking to an administrative building, 

4 In support of the allegation that they were specially employed to 

provide security, plaintiffs alleged the CDCR Operations Manual “contains a 

host of safety regulations and directives that must be followed by all of 

Defendants’ employees,” and the Code of Regulations “similarly contain[s] a 

number of employee directives regarding prison safety and security,” 

including the provision, “The requirement of custodial security and of staff, 

inmate and public safety must take precedence over all other considerations 

in the operation of all the programs and activities of the institutions of the 

department.” (Quoting Cal. Code Regs., tit. 15, § 3270, underscoring deleted.) 

The regulations also provide that “ ‘[e]very employee, regardless of his or her 

assignment, is responsible for the safe custody of the inmates confined in the 

institution of the department.’ ” (Quoting Cal. Code Regs., tit. 15, § 3271.) 
6

picking up an alarm device and, if necessary, keys; (4) “The Control Sally 

Port”—“proceed[ing] to a second sally port to enter the mainline prison 

premises” and, again, showing their identification cards; and (5) “Walking to 

the Department and Signing In”—walking to their assignment area. When 

they arrive at their assignment area, they sign in “by reporting the precise 

time they arrive.” According to plaintiffs, these preshift activities generally 

take 10 to 15 minutes and sometimes take 20 minutes, and their “Post-Shift 

Work” involves “many of the same activities and functions . . . but in reverse”

and takes a similar amount of time. 

Demurrer and Court Ruling

In January 2023, defendants filed a demurrer to the first amended 

complaint. On April 21, 2023, the trial court issued a written ruling 

sustaining the demurrer to plaintiffs’ first amended complaint without leave 

to amend.

The trial court reasoned, “[D]espite Plaintiffs’ attempt to claim that one 

of their principal activities is to ‘provide safety and security for all prison 

occupants’ (see, FAC, ¶¶ 22-35), the productive work Plaintiffs are employed 

to perform is dental care, not the security of the prison. The bag checks, 

security screenings, and collection and return of alarm devices and other 

equipment are not closely related activities integral and indispensable to the 

performance of dental care. Consequently, these activities are not 

compensable under the FLSA and the Portal-to-Portal Act.” This reasoning 

disposed of all of plaintiffs’ claims, and the trial court did not address the 

other grounds defendants argued for sustaining their demurrer. 
7

DISCUSSION

A. Standard of Review

The law governing our review of a ruling on a demurrer is wellestablished. “[W]e examine the complaint de novo to determine whether it 

alleges facts sufficient to state a cause of action under any legal theory.” 

(McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415.) “[W]e 

accept as true even the most improbable alleged facts, and we do not concern 

ourselves with the plaintiff’s ability to prove its factual allegations.” (Nolte v. 

Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) On the 

other hand, we need not accept “contentions, deductions, or conclusions of 

fact or law.” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 

924.) “We may also consider matters subject to judicial notice.” (Ibid.) 

“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.) 

B. Relevant Law

1. The Purpose of the Portal-to-Portal Act of the FLSA

As we have seen, the Portal-to-Portal Act exempts from compensation 

“activities which are preliminary to or postliminary to [the] principal activity 

or activities,” “which [an] employee is employed to perform.” (29 U.S.C. 

§ 254, subd. (a).) 

In Integrity Staffing, the Supreme Court recounted the history and 

purpose of the law: “Enacted in 1938, the FLSA established a minimum wage 

and overtime compensation for each hour worked in excess of 40 hours in 

each workweek. [Citation.] An employer who violated these provisions could 

be held civilly liable for backpay, liquidated damages, and attorney’s fees. 
8

[Citation.] [¶] But the FLSA did not define ‘work’ or ‘workweek,’ and this 

Court interpreted those terms broadly. It defined ‘work’ as ‘physical or 

mental exertion (whether burdensome or not) controlled or required by the 

employer and pursued necessarily and primarily for the benefit of the 

employer and his business.’ [Citation.] Similarly, it defined ‘the statutory 

workweek’ to ‘includ[e] all time during which an employee is necessarily 

required to be on the employer’s premises, on duty or at a prescribed 

workplace.’ [Citation.] Applying these expansive definitions, the Court found 

compensable the time spent traveling between mine portals and underground 

work areas, [citation], and the time spent walking from timeclocks to work 

benches, [citation].

“These decisions provoked a flood of litigation . . . [seeking] nearly $6 

billion in back pay and liquidated damages for various preshift and postshift 

activities. [Citation.] [¶] Congress responded swiftly. It found that the 

FLSA had ‘been interpreted judicially in disregard of long-established 

customs, practices, and contracts between employers and employees, thereby 

creating wholly unexpected liabilities, immense in amount and retroactive in 

operation, upon employers.’ 29 U.S.C. § 251(a). Declaring the situation to be 

an ‘emergency,’ Congress found that, if such interpretations ‘were permitted 

to stand, . . . the payment of such liabilities would bring about financial ruin 

of many employers’ and ‘employees would receive windfall payments . . . for 

activities performed by them without any expectation of reward beyond that 

included in their agreed rates of pay.’ §§ 251(a)-(b).

“Congress met this emergency with the Portal-to-Portal Act.” (Integrity 

Staffing, supra, 574 U.S. at pp. 31–32.) 
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2. Supreme Court Decisions on Compensable Activities Under 

the Portal-to-Portal Act

The United States Supreme Court “has consistently interpreted ‘the 

term “principal activity or activities” [to] embrac[e] all activities which are an 

“integral and indispensable part of the principal activities.” ’ ” (Integrity 

Staffing, supra, 574 U.S. at p. 33.) The court has instructed that an activity 

is “integral and indispensable to the principal activities that an employee is 

employed to perform if it is an intrinsic element of those activities and one 

with which the employee cannot dispense if he is to perform his principal 

activities.” (Ibid.) 

In Integrity Staffing, the Supreme Court described several examples of 

“activities that satisfy this test” based on its prior decisions. (574 U.S. at p. 

34.) For instance, “the time battery-plant employees spent showering and 

changing clothes [was held compensable] because the chemicals in the plant 

were ‘toxic to human beings’ and the employer conceded that ‘the clotheschanging and showering activities of the employees [were] indispensable to 

the performance of their productive work and integrally related thereto.’ ” 

(Ibid., citing Steiner v. Mitchell (1956) 350 U.S. 247, 249 (Steiner).) In 

another case, the court “held compensable the time meatpacker employees 

spent sharpening their knives because dull knives would ‘slow down 

production’ on the assembly line, ‘affect the appearance of the meat as well as 

the quality of the hides,’ ‘cause waste,’ and lead to ‘accidents.’ ” (Integrity 

Staffing, at p. 34, citing Mitchell v. King Packing Co. (1956) 350 U.S. 260, 262

(Mitchell).) “By contrast, [the Supreme Court] . . . held noncompensable the 

time poultry-plant employees spent waiting to don protective gear because 

such waiting was ‘two steps removed from the productive activity on the 

assembly line.’ ” (Integrity Staffing, at p. 34, citing IBP, Inc. v. Alvarez (2005)

546 U.S. 21, 42.)
10

Integrity Staffing involved wage claims brought by hourly warehouse 

employees who “retrieved products from the shelves and packaged those 

products for delivery to Amazon customers.” (Integrity Staffing, supra, 574 

U.S. at p. 29.) These plaintiffs sought “compensation under the FLSA for the 

time spent waiting to undergo and actually undergoing [postshift] security 

screenings.” (Id. at p. 30.) They alleged the screenings took about 25 

minutes each day and “were conducted ‘to prevent employee theft’ and thus 

occurred ‘solely for the benefit of the employers and their customers.” (Ibid.)

The district court granted the employer’s motion to dismiss, finding the 

security screenings “fell into a noncompensable category of postliminary 

activities,” but the Ninth Circuit Court of Appeals reversed. (Integrity 

Staffing, supra, 574 U.S. at pp. 30–31.) The United States Supreme Court, 

however, granted review and reversed the Ninth Circuit. 

Agreeing with the district court, the Supreme Court reasoned: “To 

begin with, the screenings were not the ‘principal activity or activities which 

[the] employee is employed to perform.’ 29 U.S.C. § 254(a)(1). [The 

employer] did not employ its workers to undergo security screenings, but to 

retrieve products from warehouse shelves and package those products for 

shipment to Amazon customers. 

“The security screenings also were not ‘integral and indispensable’ to 

the employees’ duties as warehouse workers. . . . [A]n activity is not integral 

and indispensable to an employee’s principal activities unless it is an 

intrinsic element of those activities and one with which the employee cannot 

dispense if he is to perform those activities. The screenings were not an 

intrinsic element of retrieving products from warehouse shelves or packaging 

them for shipment. And [the employer] could have eliminated the screenings 
11

altogether without impairing the employees’ ability to complete their work.” 

(Integrity Staffing, supra, 574 U.S. at p. 35.) 

The court cited a Department of Labor opinion letter issued in 1951, 

which “found noncompensable a preshift security search of employees in a 

rocket-powder plant ‘ “for matches, spark producing devices such as cigarette 

lighters, and other items which have a direct bearing on the safety of the 

employees,” ’ as well as a postshift security search of the employees done ‘ “for 

the purpose of preventing theft.” ’ ” (Integrity Staffing, supra, 574 U.S. at pp. 

35–36.) The court also explained the Ninth Circuit “erred by focusing on 

whether an employer required a particular activity. (Integrity Staffing, 

supra, 574 U.S. at p. 36.) “The integral and indispensable test is tied to the 

productive work that the employee is employed to perform. See, e.g., IBP, 546 

U.S., at 42; Mitchell, supra, at 262; Steiner, 350 U.S., at 249–251; see also 29 

CFR § 790.8(a) (explaining that the term ‘principal activities’ was ‘considered 

sufficiently broad to embrace within its terms such activities as are 

indispensable to the performance of productive work’ (internal quotation 

marks omitted; emphasis added)); § 790.8(c) (‘Among the activities included 

as an integral part of a principal activity are those closely related activities 

which are indispensable to its performance’ (emphasis added)).” (Integrity 

Staffing, at p. 36.) 

3. Additional Case Law Considering the Compensability of 

Security Screenings Under the FLSA

In Aguilar v. Management & Training Corporation (10th Cir. 2020) 948 

F.3d 1270 (Aguilar), cited by plaintiffs, detention officers who worked at a

prison in New Mexico sought compensation for (among other things) time 

they spent undergoing security screenings when they first arrived at the 

prison. (Id. at p. 1274.) The district court granted the employer’s motion for 

summary judgment, relying on Integrity Staffing, but the Tenth Circuit Court 
12

of Appeals reversed, noting the Supreme Court “did not hold that a security 

screening can never be compensable.” (Id. at pp. 1275, 1277, italics added.)

In Aguilar, it was undisputed that “the officers’ principal activities 

include[d] maintaining ‘the custody and discipline of inmates,’ ‘supervising 

detainees,’ ‘searching for contraband[,] and providing security.’ ” (Aguilar, 

supra, 948 F.3d at p. 1277.) Distinguishing Integrity Staffing, where the 

postshift security screenings to prevent theft were “not ‘tied to’ the work of 

retrieving items from warehouse shelves,” the Tenth Circuit concluded the 

prison screenings “to prevent weapons and other contraband from entering 

the prison” were “necessarily ‘tied to’ the officers’ work of providing prison 

security and searching for contraband.” (Id. at p. 1278.) The court 

emphasized that “the security screening and the officers’ work share the 

same purpose.” (Id. at p. 1278.)5 

On the other hand, in Alkire, supra, cited by defendants, a federal 

claims court granted the federal government’s motion to dismiss prison 

employees’ wage claims related to preshift security screening. (Alkire, supra, 

158 Fed.Cl. at p. 399.) Accepting the plaintiffs’ allegation that “ ‘assuring 

that no contraband enters the Institution’ is a ‘primary duty’ of Prison 

5 The Tenth Circuit’s analysis has been criticized. In Hootselle v. 

Missouri Department of Corrections (Mo. 2021) 624 S.W.3d 123, 140, the 

Missouri Supreme Court declined to follow Aguilar, observing that the Tenth 

Circuit’s reasoning that security screenings were integral and indispensable 

to the principal activities because they “shared the same goals of providing 

prison security” was “a subtle expansion of the test formulated in [Integrity 

Staffing], and Aguilar cites no authority for the proposition that an activity 

[is] integral if it shares a common goal with the work.” Similarly, in Alkire v. 

United States (Fed. Cl. 2022) 158 Fed.Cl. 380, 393 (Alkire), the claims court 

declined to follow Aguilar, opining that the case was wrongly decided because 

“[t]he question is not whether pre-shift activities align with the ‘purpose’ of 

employment.” 
13

employees,” the court found, “it does not follow that being screened to ensure 

compliance with contraband rules is an intrinsic part of Plaintiffs’ job.” (Id. 

at p. 391.) The claims court reasoned, “Just as a theft screening is ‘not an 

intrinsic element of retrieving products from warehouse shelves or packaging 

them for shipment,’ [citation] [the p]laintiffs can remove contraband from the 

Prison, screen others for contraband, and refrain from bringing contraband in 

even if they themselves are not screened. . . . [The security screenings] are 

certainly not related in the way that sharpening a knife is connected with 

cutting meat, or that wearing protective gear is connected with handling 

dangerous chemicals.” (Id. at p. 391 [citing Integrity Staffing and cases 

described therein].) The court further observed that its holding aligned with

“the bulk of authority holding as a matter of law (either at the pleadings or at 

summary judgment) that pre-shift security screenings generally are not 

compensable.” (Id. at p. 393 [citing cases].)6 

While the Alkire court found time the prison employees spent 

undergoing security screening was noncompensable as a matter of law, it

denied the defendant’s motion to dismiss as to the employees’ wage claim for

time spent “donning a security belt and other gear” because “donning 

6 After citing nine cases in accord with its ruling, the court cited as a 

“but see,” Fritz v. Corizon Health, Inc. (W.D. Mo. Jan. 31, 2020) 2020 WL 

9215899, at *9 (Fritz), in which the district court denied a motion to dismiss 

wage claims involving security screening for state prison nurses. (Alkire, 

supra, 158 Fed.Cl. at p. 393.) In denying the employer’s motion to dismiss, 

the district court in Fritz observed, “It is not apparent that Plaintiffs could 

dispense of each specified pre- and post-activity and still perform their 

alleged principal work duties without impairment,” and noted that the 

employer “relie[d] on cases where questions of whether a given preliminary or 

postliminary activity is compensable were resolved at a later stage of the 

litigation process, not on a motion to dismiss.” (2020 WL 9215899, at *9.) 
14

specialized items necessary to job functions is generally part of an employee’s 

principal activities.” (Alkire, supra, 158 Fed.Cl. at p. 395.) 

4. Stoetzl v. Department of Human Resources

We next consider the California Supreme Court decision Stoetzl v. 

Department of Human Resources (2019) 7 Cal.5th 718 (Stoetzl). This case

involved a class action brought by correctional employees working in state 

prisons who sought additional pay for time spent on various pre- and 

postwork activities, “including traveling from the outermost gate of the 

prison facility to their work posts within the facility, traveling back from 

their work posts to the outermost gate, being briefed before the start of a 

shift, briefing relief staff at the end of a shift, checking out and checking back 

in mandated safety equipment, putting on and removing such equipment, 

and submitting to searches at various security checkpoints within the 

facility.” (Id. at p. 722.) The plaintiffs were divided into two subclasses, one 

for employees who were represented by a union and had a collective 

bargaining agreement and one for supervisory employees who were 

unrepresented. (Id. at p. 723.) Following a court trial on certain threshold 

issues, the trial court found in favor of the defendants on all claims. (Id. at 

pp. 730, 734.) 

In discussing the plaintiffs’ claims, our high court referred to the preand postwork activities as “walk time” and divided walk time into two types, 

“entry-exit walk time” and “duty integrated walk time.”7 (Stoetzl, supra, 7 

Cal.5th at pp. 722–723.) The court defined entry-exit walk time as “the time 

a correctional employee spends after arriving at a prison’s outermost gate but 

7 The court recognized that these two types of “walk time” “include[d] 

many activities besides merely walking to and from a work post.” (Stoetzl, 

supra, 7 Cal.5th at p. 722.) 
15

before beginning the first activity the employee is employed to perform (plus 

analogous time at the end of the employee’s work shift)” and defined dutyintegrated walk time as “the time a correctional employee spends after 

beginning the first activity the employee is employed to perform but before 

the employee arrives at his or her assigned work post (plus analogous time at 

the end of the employee’s work shift).” (Ibid.) The court’s definitions were 

purposely “designed to reflect the distinction drawn by the Portal-to-Portal 

Act.” (Id. at p. 723, fn. 1.) In other words, by definition, “entry-exit walk 

time” referred to an employee’s activities that were preliminary or 

postliminary to the principal activities of the employee’s job (and, thus, were 

noncompensable under the Portal-to-Portal Act), and “duty-integrated walk 

time” referred to activities that occurred after the workday commenced for 

purposes of the FLSA (and, thus, were not subject to the Portal-to-Portal Act 

and required compensation). 

Despite the similarities between the Stoetzl plaintiffs and plaintiffs in 

the current case, Stoetzl does not answer the question whether the pre- and 

postwork activities alleged by plaintiffs are compensable under the FLSA. 

This is because in Stoetzl, the California Supreme Court was not asked to 

determine which activities qualified as duty-integrated walk time (and thus

were compensable under the FLSA) and which fell into the category of

noncompensable entry-exit walk time. Instead, the Stoetzl plaintiffs argued 

the state minimum wage law of Wage Order No. 4 applied to them. They 

took this position because arguably all walk time, both entry-exit and dutyintegrated, was compensable under the wage order. (Stoetzl, supra, 7 Cal.5th 
16

at p. 725.) Our high court, however, held that the general state minimum 

wage law did not apply to the plaintiffs. (Id. at pp. 744, 749.)8 

Still, the case illustrates the kinds of work-related activities the 

correctional officers’ union and the state have understood to be compensable 

under the FLSA.

9 In Stoetzl, the MOUs governing the represented plaintiffs’ 

employment provided, for most of the employees, a 28-day work schedule 

with 160 hours of “ ‘on post’ duty” and four hours of “ ‘pre and post work 

activities.’ ” (Stoetzl, supra, 7 Cal.5th at pp. 731–733.) The phrase “pre and 

post work activities” referred to duty-integrated walk time (that is, activity 

compensable under the FLSA), not entry-exit walk time. (Id. at p. 731.) 

According to the state’s chief negotiator, compensated duty-integrated walk 

time “only encompassed activities that began when an employee first picked 

up his or her equipment in the central control area of the prison facility and 

. . . ended when an employee dropped off the same equipment at the end of 

his or her shift” and “did not include time spent between entering the 

outermost gate of a prison facility and first picking up equipment, or time 

spent leaving a facility after dropping off equipment.” (Ibid.) The union’s 

8 As to the represented plaintiffs, the court concluded the MOUs 

governing their employment were “legislative enactments that because of 

their specificity, supersede[d] the more general state laws on which the 

represented plaintiffs base[d] their claims.” (Stoetzl, supra, 7 Cal.5th at p. 

740.) As to the unrepresented plaintiffs, the court noted, “the Legislature 

expressly authorized CalHR to provide for overtime payments as prescribed 

by the FLSA” (id. at p. 745, citing Gov. Code, § 19845, subd. (a)), and 

concluded CalHR’s “Pay Scale Manual, including its narrow FLSA-based 

definition of compensable work time, governs the right of the unrepresented 

plaintiffs to compensation and . . . they are not entitled to minimum wage 

compensation based on Wage Order No. 4’s broader definition of compensable 

work time.” (Id. at p. 749.) 

9 Stoetzl is also instructive in other respects as we discuss below. 
17

chief negotiator similarly understood the four hours of compensation for dutyintegrated walk time was for “ ‘picking up your keys, picking up your tools, 

Mace, whatever was appropriate for the particular post that they were 

working.’ ” (Id. at p. 732.) 

Notably, there were two job classifications, “Correctional Counselors I” 

and “Correctional Counselors II,” for which the MOUs “did not allocate any 

time for ‘pre and post work activities.’ The trial court made a factual finding, 

with respect to those employees, that ‘neither the State nor [the union] 

believed that these individuals engaged in any compensable [pre- and 

postwork activities].’ ” (Stoetzl, supra, 7 Cal.5th at p. 731, fn. 8.)

Our high court concluded the represented plaintiffs’ claims all failed. 

As to their minimum wage claim, the court explained the MOUs provided for 

compensation for duty-integrated walk time and nothing suggested “that 

duty-integrated walk time ever went uncompensated.” (Stoetzl, supra, 7 

Cal.5th at p. 744.) The court continued, “Although the MOUs did not 

specifically refer to entry-exit walk time, they expressly stated that they 

constituted the entire understanding of the parties regarding the matters 

they addressed, and compensation for pre- and postwork activities was one of 

those matters. Moreover, the Legislature’s enactment of special laws 

approving the MOUs . . . precludes the represented plaintiffs’ reliance on 

more general state laws to support their minimum wage claims.” (Ibid.) The 

court concluded the represented plaintiffs’ claim for breach of contract failed 

because they had not shown the “terms of their employment [as provided in 

the MOUs] included walk time that these employees actually worked and 

that the state failed to compensate.” (Id. at p. 750.) 
18

C. Analysis

1. The Trial Court Should Have Accepted as True Plaintiffs’

Allegation that Providing Security Is Among the Principal

Activities They Are Employed to Perform

In Aguilar, the court held that when prison employees’ principal 

activities include “ ‘maintaining ‘the custody and discipline of inmates,’ 

‘supervising detainees,’ ‘searching for contraband[,] and providing security’ ” 

(Aguilar, supra, 948 F.3d at p. 1277, italics added), undergoing security 

screenings “is integral and indispensable to their principal activities” and is 

therefore compensable under the FLSA (id. at p. 1279). 

Here, plaintiffs—presumably aware of Aguilar—expressly alleged that 

“a principal activity of class members is to provide safety and security for all 

prison occupants” and that they “are specially employed to focus on and 

promote the security and safety of staff, visitors, and inmates.” 

(Capitalization and bolding deleted, italics added.) 

In ruling that plaintiffs failed to state a claim, the trial court reasoned: 

“Like [Integrity Staffing v.] Busk and unlike Aguilar, despite Plaintiffs’ 

attempt to claim that one of their principal activities is to ‘provide safety and 

security for all prison occupants’ (see, FAC, ¶¶ 22-35), the productive work 

Plaintiffs are employed to perform is dental care, not the security of the prison. 

The bag checks, security screenings, and collection and return of alarm 

devices and other equipment are not closely related activities integral and 

indispensable to the performance of dental care. Consequently, these 

activities are not compensable under the FLSA and the Portal-to-Portal Act.” 

(Italics added.)

Thus, the trial court accepted Aguilar’s holding but did not credit 

plaintiffs’ allegations that a principal activity of their employment is to 

provide security and that they were specially employed to promote security. 
19

However, “ ‘[i]t is not the ordinary function of a demurrer to test the truth of 

the plaintiff’s allegations or the accuracy with which he describes the 

defendant’s conduct. A demurrer tests only the legal sufficiency of the 

pleading.’ [Citation.] In considering the merits of a demurrer, ‘the facts 

alleged in the pleading are deemed to be true, however improbable they may 

be.’ ” (Requa v. Regents of University of California (2012) 213 Cal.App.4th 

213, 222–223.) 

Plaintiffs contend the trial court improperly resolved questions of fact 

in sustaining defendants’ demurrer. We agree. “Questions of fact cannot be 

decided on demurrer.” (Avila v. Citrus Community College Dist. (2006) 38 

Cal.4th 148, 172 (conc. & dis. opn. of Kennard, J.).) In this case, plaintiffs 

alleged that “provid[ing] safety and security for all prison occupants” is a 

principal activity they are employed to perform. But, in ruling on the 

demurrer, the trial court effectively determined as a factual matter that this 

allegation is not true, as it found plaintiffs’ productive work does not include 

“the security of the prison,” “despite” plaintiffs’ allegations to the contrary. 

This was error. The trial court should have accepted plaintiffs’ factual 

allegations as true even if those allegations seemed improbable or unlikely to 

be proven. 

Defendants respond that “merely following safety and security 

directives does not convert activities taken in response to those directives into 

an integral and indispensable part of the job duties of a dental hygienist or 

dental assistant.” Defendants’ argument is not satisfactory because it

assumes that plaintiffs’ duties as dental hygienists and assistants within the 

prison system do not include providing security even though plaintiffs

specifically allege that “provid[ing] safety and security for all prison 

occupants” is a principal activity of their job. Given plaintiffs’ allegations,
20

whether their principal activities include providing safety and security is a 

question of fact that cannot be resolved on demurrer. 

2. The Comprehensive MOU Precludes Plaintiffs from Seeking

Additional Wages Under General State Wage Laws

As an alternative ground to affirm the judgment, defendants contend 

(as they did below) that Stoetzl dictates that the MOU in this case precludes 

plaintiffs from pursuing any of their four causes of action. We do not read 

Stoetzl as preventing plaintiffs from pursuing a claim to recover wages 

plaintiffs allege they are owed under the MOU, but we agree with defendants 

that Stoetzl means plaintiffs cannot bring wage claims based on state wage 

laws because the MOU supersedes these more general state laws. This 

means defendants’ demurrer was properly sustained as to plaintiffs’ first and 

second causes of action. 

In Stoetzl, the California Supreme Court explained, “Since enactment 

of the Ralph C. Dills Act in 1977 (the Dills Act) (Gov. Code, § 3512 et seq.), 

state government employees have had the right to be represented by a union 

and to bargain collectively over the wages, hours, and terms of employment. 

[Citations.] The Director of CalHR represents the Governor in these 

negotiations [citations], and once a union and the director have reached 

agreement, they are required to prepare an MOU memorializing the terms of 

that agreement [citation]. Significantly, ‘the Dills Act is a “ ‘supersession 

statute’ ” [citation], meaning that when a provision of an MOU conflicts with 

an otherwise applicable statutory provision governing the terms and 

conditions of employment, the provision of the MOU generally “supersedes”

or prevails over the terms of the otherwise applicable statute, without any 

need for further legislative approval of the conflicting MOU provision. 

[Citation.]’ ” (Stoetzl, supra, 7 Cal.5th at p. 738.) 
21

Addressing the plaintiffs’ minimum wage claim, the Stoetzl court 

concluded that “the represented plaintiffs agreed, through the collective 

bargaining process, to receive a specific amount of compensation for walk 

time, and the state’s minimum wage laws do not entitle them to additional 

compensation.” (Stoetzl, supra, 7 Cal.5th at p. 737.) The court reasoned, 

“The represented plaintiffs . . . agreed through the collective bargaining 

process to forgo compensation for entry-exit walk time. Each of the MOUs

included a heading that read ‘Entire Agreement,’ followed by a provision that 

stated: ‘This [MOU] sets forth the full and entire understanding of the parties 

regarding the matters contained herein . . . .’ Compensation was certainly 

one of the ‘matters contained’ (i.e., provided for) in each of the MOUs. In fact, 

the preamble of each of the MOUs stated: ‘This AGREEMENT . . . has as its 

purpose . . . the establishment of rates of pay, hours of work, and other terms 

and conditions of employment.’ (Italics added.) Therefore, pursuant to the 

integration clauses, the MOUs ‘set[ ] forth the full and entire understanding 

of the parties regarding’ compensation, precluding any forms of compensation 

not addressed in the MOUs. More to the point, each of the MOUs made 

specific provision for compensating pre- and postwork activities, providing 

four hours’ pay for such activities in a recurring 28-day work period. Because 

the MOUs ‘set[ ] forth the full and entire understanding of the parties 

regarding the matters contained [t]herein,’ and because compensation for 

[pre- and] postwork activities was one of the ‘matters contained’ in each of the 

MOUs, the MOUs precluded compensation for entry-exit walk time by not 

making any provision for it.” (Id. at p. 740.) 

The court continued, “Moreover, the MOUs were all approved by the 

Legislature, with this approval signed by the Governor and chaptered into 

law. Thus, the MOUs became legislative enactments that because of their 
22

specificity, supersede the more general state laws on which the represented 

plaintiffs base their claims.” (Stoetzl, supra, 7 Cal.5th at p. 740, italics 

added.) 

In the current case, the preamble to the governing MOU similarly

provides, “This MEMORANDUM OF UNDERSTANDING . . . has as its 

purpose . . . the establishment of rates of pay, hours of work, and other 

conditions of employment, including health and safety,” and the MOU 

includes a section titled “Entire Agreement,” which provides that the parties 

“each had unlimited right and opportunity to make demands and proposals

with respect to any subject or matter not removed by law from the area of 

collective bargaining, and that the understanding and agreements arrived at 

by the parties after the exercise of that right and opportunity are set forth in 

this Contract.”

The MOU in this case differs from the one in Stoetzl in that it does not 

provide for four hours of pay each work period for pre- and postwork 

activities. But it is nonetheless a comprehensive agreement between the 

union and the state addressing in great detail “rates of pay, hours of work, 

and other conditions of employment.”10 Following the California Supreme 

Court’s reasoning in Stoetzl, we conclude the MOU in this case is a legislative 

10 The MOU, not including side letters and appendices, spans 370 

pages; Article 11 on “Salaries” alone covers over 48 pages; Article 19 on 

“Hours of Work and Overtime” covers more than 35 pages. (Capitalization 

omitted.) 

We also note that, even in Stoetzl, there was a subset of represented 

plaintiffs (correctional counselors) for whom the MOUs did not provide

compensation for pre- and postwork activities, but our high court did not

apply different reasoning as to these represented plaintiffs. (Stoetzl, supra, 7 

Cal.5th at p. 731, fn. 8.) 
23

enactment that, because of its specificity, supersedes the more general state 

wage laws on which plaintiffs base their first and second causes of action.11 

Responding to defendants’ argument that the MOU forecloses their 

claims, plaintiffs agree with defendants that “the MOU incorporates the 

FLSA and the Portal-to-Portal Act to determine which activities should be 

afforded compensation,” and they do not mention general state wage laws at 

all. Thus, plaintiffs fail to explain why they should be able to bring claims 

under general state minimum wage laws when Stoetzl instructs that the

MOU supersedes these more general laws.

Under Stoetzl, plaintiffs may bring wage claims only to the extent they 

claim they were not paid for time they spent on work-related activities that 

are compensable under the MOU, and by extension, the FLSA. (See Stoetzl, 

supra, 7 Cal.5th at p. 750 [the represented plaintiffs could succeed in a 

breach of contract claim only “insofar as the legislatively created terms of 

their employment [found in the applicable MOUs] included walk time that 

these employees actually worked and that the state failed to compensate”].) 

Plaintiffs do not argue otherwise. Consequently, plaintiffs may not 

11 The statutes plaintiffs rely on generally set the minimum wage and 

provide a right of action for failure to pay the applicable minimum wage or 

legal overtime compensation. (See §§ 1182.11 [setting a minimum wage of 

not less than $5.75 per hour by March 1, 1998, and providing that the 

Industrial Welfare Commission to adopt wage orders]; 1182.12 [scheduled 

increases in the minimum wage]; 1194, subd. (a) [“Notwithstanding any 

agreement to work for a lesser wage, any employee receiving less than the 

legal minimum wage or the legal overtime compensation applicable to the 

employee is entitled to recover in a civil action the unpaid balance of the full 

amount of this minimum wage or overtime compensation, including interest 

thereon, reasonable attorney’s fees, and costs of suit”].) There is no question 

that the 370-page MOU is more specific legislation than these general 

statutes concerning the terms and conditions of plaintiffs’ employment

including compensation. 
24

separately claim they are also entitled to additional compensation under the 

general state wage laws of Labor Code sections 1182.11, 1182.12, and 1194

(their first and second causes of action). 

However, we reject defendants’ argument that all of plaintiffs’ claims 

are foreclosed by Stoetzl and the applicable MOU. “[A]lthough the terms of 

public employment are legislatively determined, when a public agency 

employee has completed his or her work in accordance with those legislative 

terms, the employee’s right to receive compensation for the completed work 

ripens into a contractual right that is protected by the contract clause of the 

state Constitution.” (Stoetzl, supra, 7 Cal.5th at p. 750.)12 Plaintiffs, 

therefore, are permitted to bring a contract claim to the extent their claim is 

based on allegations the state failed to compensate them for completed

activities that are compensable under the terms of the MOU (their third 

cause of action). 

3. Labor Code Section 222 Does Not Apply to Defendants

In their fourth cause of action, plaintiffs assert defendant failed to pay 

wages in violation of section 222. We agree with defendants that this claim 

fails because section 222 does not apply to them.

Section 222 provides, “It shall be unlawful, in case of any wage 

agreement arrived at through collective bargaining, either wilfully or 

12 In Stoetzl, the trial court rejected the represented plaintiffs’ breach of 

contract claim after trial because plaintiffs failed to prove they were owed 

additional compensation under the MOUs as they could not, “as a factual 

matter, show that duty-integrated walk time ever went uncompensated.” 

(Stoetzl, supra, 7 Cal.5th at p. 739, italics added.) Here, of course, plaintiffs 

have not yet attempted to prove they were not paid for activities that are 

compensable under the MOU. 
25

unlawfully or with intent to defraud an employee, a competitor, or any other 

person, to withhold from said employee any part of the wage agreed upon.” 

“A traditional rule of statutory construction is that, 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; see Stone v. Alameda Health System (2024) 16 Cal.5th 

1040 [quoting Wells and observing the rule “is deeply embedded in our state’s 

jurisprudence”].) The Legislature recognizes this rule applies to the Labor 

Code. (California Correctional Peace Officers’ Assn. v. State of California

(2010) 188 Cal.App.4th 646, 653; see Campbell v. Regents of University of 

California (2005) 35 Cal.4th 311, 330 [quoting Senate Committee legislative 

analysis explaining that generally “ ‘provisions of the Labor Code apply only 

to employees in the private sector unless they are specifically made 

applicable to public employees’ ”].) And courts regularly apply this rule to the 

Labor Code. (E.g., Allen v. San Diego Convention Center Corp., Inc. (2022) 86 

Cal.App.5th 589, 597 [“governmental actors enjoy protection from liability 

under the Labor Code unless a statute specifically brings a public employer 

within its ambit”]; Association for Los Angeles Deputy Sheriffs v. County of 

Los Angeles (2021) 60 Cal.App.5th 327, 338–339 [applying rule and 

concluding section 221 did not apply to charter counties]; California 

Correctional Peace Officers’ Assn., supra, 188 Cal.App.4th at pp. 651–653 

[applying rule and concluding meal break statutes did not apply to public 

employer]; Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 

Cal.App.4th 729, 736 [same].) 

Here, section 222 does not expressly provide that it applies to

governmental agencies or public employees. Under the traditional rule of 

statutory construction stated in Wells, section 222 does not apply to 
26

defendants. Plaintiffs offer no reason to depart from this rule in interpreting 

section 222, and we see no reason to. While we have found no authority 

specifically holding that a public employee cannot bring a claim under section 

222, in Stoetzl, our high court expressed doubt that section 222 permits a 

private right of action at all, or that such a private lawsuit could be brought

against a state employer. (Stoetzl, supra, 7 Cal.5th at p. 752 [“It is not at all 

clear that there is a private right of action for violation of Labor Code sections

222 and 223 (see Lab. Code, § 225.5 [specifying civil penalties that the Labor 

Commissioner may recover]), nor is it clear that these Labor Code provisions 

apply against the state government”].) Accordingly, the trial court properly 

sustained the demurrer as to plaintiffs’ fourth cause of action.

4. Defendants’ Affirmative Defense of Failure to Exhaust

Contractual Remedies Cannot Be Decided on Demurrer

Defendants contend another reason to affirm the judgment is that 

plaintiffs failed to exhaust their contractual remedies.13 We reject this basis 

for affirming the judgment because the question whether the MOU requires 

plaintiffs to exhaust contractual remedies cannot be resolved on the record 

before us.

Article 6 of the governing MOU is titled “GRIEVANCE, 

ARBITRATION, AND AWOL PROCEDURES.” Section 6.1, paragraph A,

provides, “This grievance procedure shall be used to process and resolve 

grievances arising under this Contract and employment-related complaints.” 

At section 6.2, paragraph A, a grievance is defined as “a dispute of one or 

more employees, or a dispute between the State and the Union, involving the 

13 Defendants raised this argument with the trial court in their 

demurrer. 
27

interpretation, application, or enforcement of the express terms of this 

Contract.” 

In Charles J. Rounds Co. v. Joint Council of Teamsters No. 42 (1971) 4 

Cal.3d 888, 894 (Charles J. Rounds), the California Supreme Court 

recognized, “[I]n the absence of waiver by the other party, an aggrieved party 

must seek to enforce his contractual right to arbitration before suing for 

breach of contract. ‘ “[S]uch arbitration, or an unsuccessful attempt to secure 

the same, is a condition precedent” to the right to maintain an action for 

breach of the contract.’ ” The court held that when a plaintiff sues a 

defendant over a dispute covered by an arbitration agreement, the defendant 

may elect to assert failure to arbitrate as an affirmative defense. (Id. at p. 

899.) 

Relying on Charles J. Rounds, defendants assert their demurrer should 

be sustained based on plaintiffs’ failure to exhaust Article 6’s grievance 

procedure. 

Plaintiffs respond that the MOU in this case does not require

exhaustion of the grievance procedure because it does not specify that the

grievance procedure is “the exclusive means of resolving disputes or that 

employees are prohibited from asserting claims in court.” (Italics added.) 

They argue a collective bargaining agreement must “clearly and 

unmistakably” require that a grievance procedure is the exclusive means of 

resolving a dispute for a defendant to successfully raise an exhaustion 

defense.14 

14 Plaintiffs cite Desert Regional Medical Center, Inc. v. MacManes

(C.D. Cal., June 11, 2021) 2021 WL 4459676, at *3, in which the district court 

held a collective bargaining agreement (CBA) “must ‘clearly and 

unmistakably’ require employees to use [its] Union grievance procedures 

‘rather than skipping over that process and proceeding directly to court.’ ” 
28

Plaintiffs also cite a provision in Article 5, “GENERAL PROVISIONS”

as evidence that the parties never intended exhaustion of the grievance 

procedure to be a condition precedent to filing a lawsuit. Section 5.7, 

paragraph D, provides, “The filing of a grievance is not mandatory and 

neither the filing nor non-filing of a grievance shall be construed as a waiver 

of an employee’s right to maintain a separate, private cause of action.” 

Disagreeing with plaintiffs’ interpretation of the MOU, defendants 

reply that section 5.7, paragraph D, is “an exception to the general 

exhaustion requirement contained in Article 6 of the MOU” and that the 

exception applies only to discrimination and harassment claims. Section 5.7 

is titled “Non-Discrimination,” and section 5.7, paragraph A, prohibits

discrimination and harassment “in State employment.” Plaintiffs point out, 

on the other hand, that section 5.7, paragraph D, is not limited to disputes

“under this section.”15 We also note that section 5.7, paragraph E, provides, 

“Alleged retaliation may be subject to the grievance and arbitration 

procedure” (italics added), which indicates, at the very least, that the parties

did not intend the grievance procedure to be the exclusive means of resolving 

all disputes that might arise under the MOU. 

In Charles J. Rounds, our high court observed that the affirmative 

defense of failure to exhaust contractual arbitration remedies may be raised 

There, the court observed, “the presence of an arbitration agreement in a 

CBA does not automatically displace other remedies.” (Id. at *2.) 

15 Plaintiffs note that, in contrast, the next provision expressly specifies 

that it applies to “this section.” Section 5.7, paragraph E, states, “No 

employee shall be subject to retaliation . . ., nor shall any employee be 

restrained, coerced or otherwise interfered with in the exercise of the 

employee’s rights under this section.” (Italics added.) This demonstrates that 

the parties knew how to limit provisions to particular sections when that was 

their intention. 
29

by demurrer or motion for summary judgment. (4 Cal.3d at p. 899.) In that 

case, there was a trial on the defendant union’s “special defense” of failure to 

arbitrate after which “[t]he trial court ruled that the employer’s suit was 

barred because it had failed to adhere to the requirements of the arbitration 

provisions of the [parties’ collective bargaining] agreement.” (4 Cal.3d at p.

891.) Our high court affirmed the judgment after “conclud[ing] that it was 

the intention of the parties to include the instant [dispute] within the 

coverage of the arbitration clause.” (Id. at p. 894.) Here, in contrast, we are

at the pleading stage, and we cannot say the language of the MOU 

establishes as a matter of law that the parties intended the grievance and 

arbitration procedure to be the exclusive remedy for disputes such as

plaintiffs’ wage claim. (Cf. Service Employees International Union, Local 

1000 v. Department of Personnel Admin. (2006) 142 Cal.App.4th 866, 870 

[after a successful demurrer, the reviewing court “cannot consider conflicting 

extrinsic evidence in aid of interpretation of the arbitration agreement”].) In 

this circumstance, we conclude the merits of defendants’ affirmative defense 

cannot be decided on demurrer. 

5. Plaintiffs’ Contract Claim Is Not Time Barred

Finally, defendants argue the judgment may be affirmed because 

plaintiffs’ claims are barred by the one-year statute of limitations of 

Government Code section 19815.8. 

Government Code section 19815.8, subdivision (a), provides in 

pertinent part, “No action or proceeding shall be brought by any person 

having or claiming to have a cause of action or complaint or ground for 

issuance of any complaint or legal remedy for wrongs or grievances based on 

or related to any law administered by the Department of Human Resources 

unless the action or proceeding is commenced and served within one year 
30

after the cause of action or complaint or ground for issuance of any writ or 

legal remedy first arose.” 

Plaintiffs alleged they began working for the CDCR in 2008 (Roberts), 

2011 (Bath), and 2016 (Bomar). Defendants assert plaintiffs’ claims “first 

arose” when they began working and, therefore, the claims are now time 

barred. We are not persuaded. 

Our high court has explained that, when a governmental entity 

unlawfully withholds payment from an employee, “each deficient payment 

constitutes a separate violation triggering the running of a new period of 

limitations, and hence . . . the employee can recover only those payments 

which accrued within the period of the applicable statute of limitations 

preceding the filing of his complaint.” (Green v. Obledo (1981) 29 Cal.3d 126, 

141.) Following the logic of Green, we conclude plaintiffs in this case may

pursue a claim for compensation based on allegations that they performed 

compensable work that went uncompensated during the period of the 

applicable statute of limitations preceding the filing of their complaint.16 

DISPOSITION

The trial court’s order filed April 21, 2023, on the demurrer is reversed 

as to plaintiffs’ third cause of action for “failure to pay regular wages and/or 

overtime in breach of common law contractual obligations” and is affirmed as 

to the first, second, and fourth causes of action. The judgment is reversed, 

16 The parties disagree on what statute of limitations apply. Plaintiffs 

argue the four-year statute of limitations for contract claims (Code Civ. Proc. 

§ 337, subd. (a))—not the one-year limitations period of Government Code 

section 19815.8—applies in this case. We need not decide this question 

because plaintiffs’ claims are not time barred regardless of which statute of 

limitations applies.
31

and the matter is remanded for further proceedings consistent with this 

opinion. 

The parties are to bear their own costs on appeal,
32

_________________________

Miller, J.

WE CONCUR:

_________________________

Richman, Acting P. J.

_________________________

Desautels, J.

A167908, Bath et al. v. State of California et al.