Wage Law

A recent unpublished opinion could resolve a conflict in the law between a 1988 case and a 1957 case which has been cited by employers seeking to dismiss wage and hour cases on demurrer.

In Oppenheimer v. Robinson (1957) 150 Cal.App.2d 420, an employee filed a complaint to recover unpaid wages. The company filed a special demurrer alleging that the complaint was uncertain and ambiguous because it did not allege the amount of wages the employee earned nor the amount due at the time of his discharge. The employee argued that the precise amount of wages due was an evidentiary matter that did not need to be pled with specificity in the complaint. The trial court sided with the employer and the Court of Appeal agreed.

The mere allegation that plaintiff was damaged in the sum of $ 6,000 by reason of the failure to pay the wages earned is meaningless in the absence of any allegation as to the amount of wages due plaintiff. That allegation is an obvious attempt to claim a sum as damages that would give the superior court jurisdiction of the action, while suppressing facts that would determine whether the action was within the jurisdiction of the superior court. The court was not required to give any effect to the allegation of damage in the absence of the allegation of facts showing liability in damages, nor to proceed further in the action in the face of the refusal of plaintiff to plead essential jurisdictional facts.

We take that to mean that you must allege facts showing that the amount of wages due are within the jurisdiction of your court. In Superior Court, that can be satisfied, for example, by alleging that the amount of unpaid wages exceeds the minimum jurisdiction of the Superior Court. However, many defendants read that passage to mean that a wage and hour plaintiff must allege, to the dollar, if not the penny, exactly what wages and penalties are due, and why. So far, we've never encountered a judge who agreed, particularly because the 1988 case, Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, makes it clear that even at trial, the specific number of hours, and hence, the precise amount of wages due, need not be proven by the employee. In permitting an employee to meet his burden by alleging an estimate of the amounts due, the court held that

[o]nce an employee shows that he performed work for which he was not paid, the fact of damage is certain; the only uncertainty is the amount of damage. [Citations.] In such a case, it would be a perversion of justice to deny all relief to the injured person, thereby relieving the wrongdoer from making any restitution for his wrongful act.

Although last week's opinion in Gonzalez v. Western Pacific Roofing Corp. does not mention Oppenheimer, it appears that the trial court must have followed it, and if it did not, it followed its reasoning, granting a demurrer in a prevailing wage class action on uncertainty grounds. In reversing the order sustaining the demurrer, the Court of Appeal held:

Plaintiffs are required only to set forth the essential facts of their case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action. (Youngman v. Nevada Irrigation Dist., supra, 70 Cal.2d at p. 245.) Plaintiffs are not required to plead the specific amount of damages. (Furia v. Helm (2003) 111 Cal.App.4th 945, 957.)

The amount of unpaid wages due to each plaintiff is only a matter of proof (the number of hours worked on public works projects multiplied by the difference between the lawful wage and the wages actually paid). The amount of waiting time penalties under section 203 is also a simple matter of proof; the penalty is the amount of unpaid wages for a 30-day period. (Lab. Code, § 203.) Defendants should have full and complete records dealing with this subject. “Once an employee shows that he performed work for which he was not paid, the fact of damage is certain; the only uncertainty is the amount of damage. [Citations.] In such a case, it would be a perversion of justice to deny all relief to the injured person, thereby relieving the wrongdoer from making any restitution for his wrongful act. [Citation.]” (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 726-727.)

That makes perfect sense to us. If you don't have to prove the precise amounts at trial, you certainly would not be required to plead those amounts in your complaint, as long as the complaint alleges facts that establish Superior Court jurisdiction and each of the elements of the cause of action.

You can download the full text of Gonzalez v. Western Pacific Roofing Corp. here in pdf or word formats. We anticipate that requests for publication will be filed.