Filed 12/16/22

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SHARLENE ALLEN,

Plaintiff and Appellant,

v.

SAN DIEGO CONVENTION CENTER 

CORPORATION, INC.,

Defendant and Respondent.

 D080045

 (Super. Ct. No. 37-2020-

00008163-CU-OE-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Timothy Taylor, Judge. Affirmed.

Setareh Law Group, Shaun Setareh, Thomas Segal, for Plaintiff and 

Appellant.

McDougal, Love, Boehmer, Foley, Lyon & Mitchell, Steven E. Boehmer, 

and Matthew A. Thurmer for Defendant and Respondent.

Sharlene Allen is a former employee of the San Diego Convention 

Center Corporation (SDCCC). After SDCCC terminated Allen, she filed the 

present class action lawsuit against SDCCC alleging various violations of the 
2

Labor Code. The trial court largely sustained SDCCC’s demurrer to the 

complaint on the grounds that the corporation was exempt from liability as a 

government entity. The court, however, left intact one claim for untimely 

payment of final wages under Labor Code sections 201, 202, and 203,1and 

derivative claims under the Unfair Competition Law (UCL, Bus. & Prof. 

Code, § 17200, et seq.) and the Private Attorneys General Act (PAGA, § 2698, 

et seq.). 

Allen then moved for class certification for her surviving causes of 

action. The trial court denied the motion based on Allen’s concession that her 

claim for untimely final payment was not viable because it was derivative of 

the other claims dismissed at the demurrer stage. Allen now appeals from 

the denial of the motion for class certification, which she asserts was the 

death knell of her class claims and thus, the lawsuit. She argues the trial 

court’s ruling on the demurrer was incorrect because SDCCC did not 

establish as a matter of law that it was exempt from liability. In response, 

SDCCC asserts that Allen’s appeal should be dismissed as taken from a 

nonappealable order. Alternatively, SDCCC contends the trial court’s order 

sustaining its demurrer was correct, and the subsequent denial of class 

certification should be affirmed. We reject SDCCC’s assertion that the order 

is not appealable. However, we agree that class certification was properly 

denied by the trial court and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In 2014, SDCCC hired Allen as a guest services representative on an 

hourly basis. She worked for SDCCC until 2019, when she was terminated. 

She filed the putative class action complaint initiating this lawsuit in 

1

Subsequent undesignated statutory references are to the Labor Code.
3

February 2020, and her First Amended Complaint (FAC), the operative 

complaint, in April. 

In the FAC, Allen alleged that SDCCC violated various provisions of 

the Labor Code. The basis for her complaint was that SDCCC failed to pay 

workers for the time spent walking to and from their meal and rest breaks,

and it required workers to work during breaks if they received a call on handheld radios that they were required to carry at all times. Allen also alleged 

SDCCC did not advise workers of their right to take a second meal period 

when they worked more than 10 hours in one shift, and failed to reimburse 

workers for the cost of non-slip shoes that were necessary to perform their 

jobs. 

Allen asserted eight Labor Code violation claims against SDCCC based 

on these general allegations. She alleged the corporation (1) failed to provide 

meal periods (§§ 226.7, 512, 1198, first cause of action); (2) failed to provide 

rest periods (§§ 226.7, 1198, second cause of action); (3) failed to pay hourly 

wages for time worked during meal and rest periods (§§ 223, 510, 1194, 

1194.2, 1197, 1197.1, 1198, third cause of action); (4) failed to pay vacation 

wages (§ 227.3, fourth cause of action); (5) failed to pay sick time (§ 246, et 

seq., fifth cause of action); (6) failed to indemnify Allen and others for the cost 

of non-slip shoes, which she alleged were necessary to her work (§ 2802, sixth 

cause of action); (7) failed to provide accurate written wage statements (§ 226, 

seventh cause of action); and (8) failed to timely pay all final wages (§§ 201, 

202, 203, eighth cause of action). Allen also alleged that her first, second, 

third, fourth, fifth, and sixth causes of action constituted violations of the 

UCL (ninth cause of action), and sought civil penalties under PAGA as a 

representative of other current and former SDCCC employees for the alleged 

Labor Code violations (tenth cause of action). 
4

SDCCC demurred, arguing that it was exempt from liability for the 

alleged Labor Code violations as a public entity and wholly-owned subsidiary 

and instrumentality of the City of San Diego. The demurrer also argued that 

the inaccurate wage statement, UCL, and PAGA causes of action failed 

because they were derivative of the other Labor Code violation claims. Allen 

opposed the demurrer, arguing, among other things, that SDCCC had not 

shown it was an “other municipal corporation” under section 220, 

subdivision (b), as established by case law and, thus, was not exempt from 

liability. 

After oral argument, the trial court largely sustained the demurrer. 

The court concluded that SDCCC had conclusively established it was a public 

entity for purposes of Allen’s first through seventh causes of action. The 

court overruled the demurrer as to the eighth cause of action for failure to 

timely pay final wages, agreeing with Allen that SDCCC had not established 

it was an “other municipal corporation.” The court also left in place Allen’s 

UCL and PAGA causes of action based on that claim. 

Shortly after the court’s demurrer ruling, Allen brought her motion for 

class certification, seeking to certify a class of “all non-exempt employees who 

were required to carry a radio during breaks who worked for San Diego 

Convention Corporation in California between February 11, 2016 and the 

present,” and a class of “all non-exempt employees who worked for San Diego 

Convention Corporation in California between February 11, 2016 and the 

present who were not timely paid their final wages.” SDCCC opposed the 

motion, asserting Allen was attempting to circumvent the court’s demurrer 

ruling by seeking to certify her derivative claim for timely payment of final 

wages under sections 201, 202, and 203. SDCCC also asserted Allen was not 

an adequate class representative of the remaining claim because she received 
5

her final paycheck on a timely basis. In addition, SDCCC argued there were 

only eight former employees who could allege such a claim, precluding 

certification because the proposed class lacked sufficient numerosity.

In reply to her motion for class certification, Allen stated her claim for 

timely final payment under section 203 was derivative of her claims for 

unpaid meal and rest breaks, and thus she was a proper class representative. 

Further, the other requirements for class certification could be satisfied for 

this derivative, and still live, claim. 

After oral argument on the motion, the trial court denied class 

certification. The court concluded that because it dismissed Allen’s claim 

“related to missed meal and rest periods at the demurrer stage,” she no 

longer had “a claim for derivative waiting time penalties under section 203, 

and cannot satisfy the typicality requirement.” The court likewise found 

certification of Allen’s UCL claim was not warranted because the FAC alleged 

unlawful conduct based on Labor Code violations for which SDCCC was 

exempt from liability and that had been dismissed on demurrer. The court’s 

order denying the motion concluded by stating the PAGA and individual 

claims under sections 201, 202, and 203 remained set for trial. Thereafter, 

Allen filed her notice of appeal. 

DISCUSSION

I

Appealability

In its brief, SDCCC asks this court to dismiss Allen’s appeal as taken 

from a non-appealable order. It argues that because Allen’s PAGA and 

individual claims remain, the denial of class certification did not constitute 

the “death knell” of the case and the order is not appealable. Allen responds 

that the remaining claims are not viable because they are derivative of the 
6

claims the court dismissed at the demurrer stage. We agree with Allen that 

the denial of class certification effectively ended her case, and the order is 

therefore appealable.

“Under the one final judgment rule, ‘ “an appeal may be taken only 

from the final judgment in an entire action.” ’ [Citations.] ‘ “The theory 

[behind the rule] is that piecemeal disposition and multiple appeals in a 

single action would be oppressive and costly, and that a review of 

intermediate rulings should await the final disposition of the case.” ’ ” (In re 

Baycol Cases I & II (2011) 51 Cal.4th 751, 756 (Baycol).) An exception to the 

rule, however, exists for the denial of class certification. Known as the “death 

knell doctrine,” the rule is a “ ‘ “tightly defined and narrow’ ” exception to the 

one-final-judgment rule ....” (Williams v. Impax Laboratories, Inc. (2019) 41 

Cal.App.5th 1060, 1066 (Williams).) 

“Under this exception, an order is appealable when ‘it effectively 

terminates the entire action as to [a] class, in legal effect being “tantamount 

to a dismissal of the action as to all members of the class other than 

plaintiff.” ’ [Citations.] Thus, an order determining that a plaintiff cannot 

‘maintain his [or her] claims as a class action but [can] seek individual relief’ 

is immediately appealable. [Citation.] Because death knell orders are 

directly appealable, ‘a plaintiff who fails to appeal from one loses forever the 

right to attack it. The order becomes final and binding.’ ” (Williams, supra, 

41 Cal.App.5th at pp. 1066–1067.)

“To qualify as appealable under the death knell doctrine, an order must 

‘(1) amount[ ] to a de facto final judgment for absent plaintiffs, under 

circumstances where (2) the persistence of viable but perhaps de minimis 

individual plaintiff claims creates a risk no formal final judgment will ever be 

entered.’ (Baycol, supra, 51 Cal.4th at p. 759.) Among the orders that 
7

generally qualify are ‘[a] trial court’s decision to sustain a demurrer to class 

allegations without leave to amend, deny a motion for class certification, or 

grant a motion to decertify a class.’ ” (Williams, supra, 41 Cal.App.5th at 

p. 1067.) The “death knell” doctrine also applies to representative claims 

under PAGA. An order dismissing a representative PAGA claim is 

immediately appealable to the extent it effectively rings the “death knell” of 

that claim. (Miranda v. Anderson Enterprises, Inc. (2015) 241 Cal.App.4th 

196, 200‒203.) “ ‘What ultimately matters, however, is ‘not the form of the 

order or judgment but its impact.’ ” (Williams, supra, 41 Cal.App.5th at 

p. 1067.)

“[T]he death knell doctrine does not apply to orders only partially 

certifying a class. ... ‘[O]rders that only limit the scope of a class or the 

number of claims available to it are not similarly tantamount to dismissal 

and do not qualify for immediate appeal under the death knell doctrine; only 

an order that entirely terminates class claims is appealable.’ ” (Munoz v. 

Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 308 (Munoz).)

Here, the demurrer left standing just one substantive class claim based 

on sections 201, 202 and 203, under which Allen challenged the timely 

payment of final wages. As her briefing before this court and the class 

certification denial order make clear, however, Allen’s claim under these 

three statutes was solely derivative of her claims for meal and rest break pay 

under other provisions of the Labor Code. She does not allege a direct 

violation of sections 201, 202, and 203 because she timely received her final 

wage payment. 

Because the meal and rest break violations were dismissed at the 

demurrer stage, the trial court found class certification was not warranted 

since Allen could not satisfy the typicality requirement. Further, while the 
8

court did not outright dismiss Allen’s PAGA claim, all that remained to form 

the basis of the claim was the derivative violation of sections 201, 202, and 

203, which the class certification order made clear were no longer viable. 

SDCCC relies on Munoz, supra, 238 Cal.App.4th 291 to support its 

argument that dismissal of the appeal is warranted. Unlike this case, after 

the denial of class certification in Munoz, the plaintiff had a still-viable 

PAGA claim. Thus, Munoz appropriately concluded that the denial of class 

certification did not constitute the death knell of the case. “Given the 

potential for recovery of significant civil penalties if the PAGA claims are 

successful, as well as attorney fees and costs, plaintiffs have ample financial 

incentive to pursue the remaining representative claims under the PAGA 

and, thereafter, pursue their appeal from the trial court’s order denying class 

certification.” (Id. at p. 311.) Unlike here, where the PAGA claim is not 

viable, in Munoz, “[d]enial of class certification where the PAGA claims 

remain in the trial court would not have the ‘legal effect’ of a final judgment.” 

(Ibid.)

As Allen asserts, the class certification order left the case without 

either class or PAGA claims and constituted the death knell of the litigation. 

The order is, therefore, appealable. 

II

SDCCC Is a Public Entity Not Subject To 

The Labor Code Violations Alleged by Allen

Allen’s primary contention on appeal is that the court erred by 

sustaining the demurrer based on the court’s finding that SDCCC was a 

public entity. She argues the court improperly relied on federal authority to 

reach this conclusion. SDCCC responds that it established as a matter of law 

its status as a public entity, exempt from the Labor Code provisions Allen 
9

alleges it violated. Thus, it argues, the trial court properly sustained its 

demurrer. 

“ ‘ “On appeal from an order of dismissal after an order sustaining a 

demurrer, our standard of review is de novo, i.e., we exercise our independent 

judgment about whether the complaint states a cause of action as a matter of 

law.” ’ [Citation.] ‘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.’ 

[Citation.] In reviewing the complaint, ‘we must assume the truth of all facts 

properly pleaded by the plaintiffs, as well as those that are judicially 

noticeable.’ [Citation.]

“Further, ‘[i]f the court sustained the demurrer without leave to amend, 

as here, we must decide whether there is a reasonable possibility the plaintiff 

could cure the defect with an amendment. ... If we find that an amendment 

could cure the defect, we conclude that the trial court abused its discretion 

and we reverse; if not, no abuse of discretion has occurred. ... The plaintiff 

has the burden of proving that an amendment would cure the defect.’ 

[Citation.] ‘[S]uch a showing can be made for the first time to the reviewing 

court....’ ” (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 

1149, 1153–1154.)

As in other areas of the law, governmental actors enjoy protection from 

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

employer within its ambit. (See Campbell v. Regents of University of 

California (2005) 35 Cal.4th 311, 330 [“ ‘Generally ... provisions of the Labor 

Code apply only to employees in the private sector unless they are specifically 

made applicable to public employees.’ ”]; Johnson v. Arvin-Edison Water 

Storage Dist. (2009) 174 Cal.App.4th 729, 736 [“traditionally, ‘absent express 
10

words to the contrary, governmental agencies are not included within the 

general words of a statute’ ”] (Johnson).) Here, the parties agree that the 

Labor Code provisions at issue do not apply to public employers. They 

dispute, however, whether SDCCC is a public employer.2

In Johnson, supra, 174 Cal.App.4th 729, the Fifth District Court of 

Appeal considered whether the provisions requiring meal and rest breaks 

(§§ 510 and 512), allegations central to Allen’s complaint against SDCCC, 

were applicable to a water storage district. Johnson rejected the employee’s 

assertion that the trial court improperly sustained the water district’s 

demurrer to its class action claims “because those sections do not exempt 

public entities.” (Johnson, at p. 736.) The court upheld the established 

principal that “unless Labor Code provisions are specifically made applicable 

to public employers, they only apply to employers in the private sector,” and 

it concluded that “[s]ince sections 510 and 512 do not expressly apply to 

public entities,” they were not applicable to the water district. (Id. at p. 733.) 

As the trial court here concluded, the other provisions of the Labor Code that 

Allen alleges SDCCC violated—sections 223, 226.7, 227.3, 246, 226, and 

2 As the trial court determined, Allen’s derivative claim for timely final 

payment is subject to a different statutory provision governing the 

parameters of government liability. That provision, section 220, 

subdivision (b), states that “Sections 200 to 211, inclusive, and Sections 215 

to 219, inclusive, do not apply to the payment of wages of employees directly 

employed by any county, incorporated city, or town or other municipal 

corporation. All other employments are subject to these provisions.” (Italics 

added.) Neither party challenges the trial court’s determination that SDCCC 

did not qualify as an “other municipal corporation” as a matter of law.
11

2802—also do not expressly apply to public entities, and Allen makes no 

argument to the contrary.

3

Rather, Allen argues that the trial court erred by relying on United 

Nat. Maintenance, Inc. v. San Diego Convention Center, Inc. (9th Cir. 2014) 

766 F.3d 1002 (United), to support its determination that SDCCC is a public 

entity. We disagree. In its demurrer briefing, SDCCC asserted it was a 

public entity as a matter of law, and cited to the Ninth Circuit opinion in 

United to support this fact. In United, the court considered whether SDCCC 

was a public entity for purposes of determining its immunity from potential 

antitrust liability under the federal Sherman Act. (United, at p. 1009.) The 

United plaintiff was a vendor of trade show cleaning services that challenged 

SDCCC’s employment of its own cleaners as anti-competitive. (Id. at p. 1005)

Under the U.S. Supreme Court’s antitrust jurisprudence, nonstate 

actors are entitled to immunity where the challenged restraint is one “clearly 

articulated and affirmatively expressed as state policy” and “actively 

supervised by the State itself.” (United, supra, 766 F.3d at p. 1009.) 

However, the active supervision requirement “does not apply ‘to the activities 

of local governmental entities,’ as ‘they have less of an incentive to pursue 

3 Three cases cited by the trial court in its order sustaining the demurrer

involved disputes over whether the Labor Code protections should be applied 

to public entities, and not disputes over whether the entities were properly 

characterized as public. We agree with Allen that these cases do not 

establish SDCCC is a public entity. (See Johnson, supra, 174 Cal.App.4th at 

p. 733; California Correctional Peace Officers’ Assn v. State of California

(2010) 188 Cal.App.4th 646, 650 [affirming trial court’s determination that 

wage and hour statutes do not apply to public employees]; In re Work

Uniform Cases (2005) 133 Cal.App.4th 328, 332 [holding that Labor Code 

section 2802 does not require public entities to pay claims for costs related to 

employee work uniforms].) These cases do support the trial court’s general 

finding that the Labor Code provisions at issue in this case do not apply to 

public entities.
12

their own self-interest under the guise of implementing state policies.’ ” (Id. 

at pp. 1009‒1010.) The court concluded SDCCC was a local government 

entity, entitled to immunity, based on several facts that also apply here. 

Specifically, United noted that “San Diego’s municipal code ... defines the city 

itself as including SDC[CC],” and that SDCCC’s “relationship with San Diego 

also shows that [it] acts as the instrument of San Diego: (1) San Diego 

appoints all of SDC[CC]’s board members, (2) upon dissolution, SDC[CC]’s 

assets revert back to San Diego; (3) SDC[CC] must publicly account for its 

operations. Overall, SDC[CC] acts as an agent that operates the convention 

center for the benefit of its principal, the city of San Diego.” (Id. at p. 1011.)

Although considered in the context of the clear-articulation 

requirement to determine antitrust immunity, United noted that “California 

[state law] has granted cities the statutory authority to construct public 

assembly or convention halls,” that cities may appoint a commission to 

manage the use of the facilities,” and that under state law, “[f]unds gained 

from operation of the convention center first go to paying the asserted 

expenses associated with its operation” and “any remaining money may then 

go to the city’s general fund.” (United, supra, 766 F.3d at p. 1005, citing Gov. 

Code, §§ 37500–37506.) We agree with SDCCC that these undisputed facts

establish as a matter of law that it is a public entity, which is not subject to 

the Labor Code provisions Allen alleges it violated. 

Allen argues that United does not establish SDCCC is a public entity 

because it was decided in context of the federal Sherman Act, and the case’s 

procedural posture was an appeal after trial. These differences, however, do 

not show that SDCCC is not a public entity. The factual basis for the 

determination in United is the same as that made here for purposes of 

determining whether SDCCC is a public entity. Those facts establish SDCCC 
13

is an extension of the City of San Diego. Indeed, Allen does not disagree with 

the facts set forth in United about SDCCC, rather she asserts only they were 

deduced at trial. However, United’s determination of SDCCC’s public status 

was determined by the trial court on a motion for judgment as a matter of 

law. (United, supra, 766 F.3d at p. 1006.) Allen posits no additional facts 

that would be necessary to determine whether SDCCC is a public entity and 

provides no argument concerning how her complaint could be modified to 

show SDCCC is not a public entity. 

Allen also relies on Wells v. One2One Learning Foundation (2006) 39 

Cal.4th 1164 (Wells) to support her assertion that SDCCC should not be 

considered a public entity for purposes of the Labor Code provisions at issue. 

Her reliance is misplaced. Wells, an appeal from judgment entered after 

demurrer, considered the application of the California False Claims Act 

(CFCA, Gov. Code, § 12650, et. seq.) and the UCL to several charter schools 

and the public school districts under which they operated. (Wells, at 

pp. 1178‒1179.) After first determining the CFCA did not apply to the school 

district defendants, the court rejected the charter schools’ assertion that the 

immunity afforded the school districts should extend to the charter schools, 

which were subject to oversight by the immune public districts. (Id. at 

p. 1189.) The court rejected this argument, concluding that the charter 

schools were not public entities. (Id. at pp. 1200‒1201.)

Wells stated, “Though charter schools are deemed part of the system of 

public schools for purposes of academics and state funding eligibility, and are 

subject to some oversight by public school officials [citation], the charter 

schools here are operated, not by the public school system, but by distinct 

outside entities—which the parties characterize as non-profit corporations—

that are given substantial freedom to achieve academic results free of 
14

interference by the public educational bureaucracy. The sole relationship 

between the charter school operators and the chartering districts in this case 

is through the charters governing the schools’ operation. Except in specified 

respects, charter schools and their operators are ‘exempt from the laws 

governing school districts.’ ” (Wells, supra, 39 Cal.4th at pp. 1200–1201.) 

The SDCCC was formed under the authority of state law, operates 

solely for the benefit of the municipality, and is defined by the City of San 

Diego’s municipal code as part of the city. While the non-profit corporation 

may have some independence in its management of the facility, unlike the 

charter schools at issue in Wells, it is an agent of the City of San Diego, which 

appoints its leadership and “must publicly account for its operations.” 

(United, supra, 766 F.3d at p. 1011.) Because of these facts, SDCCC is not an 

independent corporation like the operators of the charter schools in Wells.

This critical difference supports the trial court’s determination that SDCCC 

is a public entity. Accordingly, it is not subject to the Labor Code provisions 

at issue, which contain no express inclusion of public entities.4(See Johnson, 

4 Allen makes two additional arguments concerning Wells. She states 

that “[a]t a minimum Wells shows that issue required evidence and should 

not have been resolved on a demurrer.” Contrary to Allen’s argument, 

however, Wells was decided at the demurrer stage. (Wells, supra, 39 Cal.4th 

at pp. 1183‒1184.) The California Supreme Court reversed the trial court’s 

order sustaining the demurrer and finding the charter school defendants 

shared immunity from the CFCA and UCL afforded to the public school 

districts that governed them, and affirmed the order sustaining the demurrer 

as to the district defendants. (Ibid.) 
15

supra, 174 Cal.App.4th at p. 736 [“appellant’s position is contrary to an 

established rule that has been recognized by the Legislature, i.e., public 

entities are not subject to a general statute unless expressly included”].)

DISPOSITION

The order is affirmed. Respondent is awarded the costs of appeal.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

IRION, J.

Allen also argues Wells supports her contention that it is inappropriate 

to look to United, as a federal case, to determine SDCCC’s status as a public 

entity. This argument also lacks merit. The Wells court distinguished 

federal cases interpreting the federal False Claims Act, which it determined 

were unpersuasive because of the significant differences between the 

statutory language in the federal law and the CFCA that governed whether 

the charter schools were “persons” within the meaning of those statutes. 

United, however, did not base its determination that SDCCC was a public 

entity on the language of a federal statute. Rather, United looked to the 

same state and local laws we apply here to determine SDCCC’s public status. 

(United, supra, 766 F.3d at pp. 1010‒1011.)