Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Ct. No. SCVSS137487 Martin A. Hildreth, Judge.
Law Offices of Dennis J. Hayes, Dennis J. Hayes and Diana C. Boley, for Plaintiffs and Appellants.
Morrison & Foerster, Robert A. Naeve, Richard S. Ballinger; Jones Day and Robert A. Naeve for Defendants and Respondents.
OPINION
McKinster, J.
This is an appeal from a judgment of dismissal on a petition for writ of mandate entered after the trial court granted a motion for judgment on the pleadings. The appellants are four court reporters employed by the San Bernardino County Superior Court (hereafter referred to as plaintiffs). The respondents (hereafter referred to as defendants) are the San Bernardino County Superior Court, and its executive officer. Plaintiffs filed their petition for writ of mandate in order to compel defendants to pay plaintiffs the higher rate of compensation set out in Government Code section 69950, subdivision (a) when unforeseen circumstances require plaintiffs to reproduce in whole or substantial part a transcript that previously had been produced. Plaintiffs also sought declaratory relief, and the compensation, or fees, defendants allegedly owed as a result of having paid plaintiffs the lower rate set out in section 69950, subdivision (b) for reproducing transcripts that previously had been produced. Defendants moved for judgment on the pleadings on the ground that plaintiffs had not filed a claim under the Government Claims Act, section 900 et seq., in particular sections 905, 910, and 945.4, which is a prerequisite to recovering damages from a public entity. The trial court agreed, granted defendants’ motion, and entered judgment of dismissal against plaintiffs.
All further statutory references are to the Government Code unless indicated otherwise.
Plaintiffs contend in this appeal that in addition to recovering fees allegedly owed by defendants, their petition for writ of mandate seeks declaratory relief and a writ of mandate compelling defendants to comply with section 69950, neither of which is subject to the Government Claims Act. Therefore, plaintiffs contend that the trial court erred in granting defendants’ motion for judgment on the pleadings. We agree with plaintiffs, for reasons we explain below, and therefore will reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed their petition for writ of mandate alleging, in pertinent part, that they are court reporters employed by defendant San Bernardino County Superior Court; that section 69950 sets out the compensation court reporters receive for preparing transcripts of court proceedings; the fee for transcription is $0.85 for each 100 words and $0.15 for each 100 words for each copy purchased at the same time (§ 69950, subd. (a)); the fee for a first copy, i.e., a copy that is not purchased at the same time as the original transcript, is $0.20 for each 100 words: Sometimes plaintiffs are required to reproduce a new original transcript rather than reproduce a copy of a previously prepared transcript. According to the allegations of the petition, this situation most often occurs when court reporters are ordered to produce a new original transcript pursuant to former rules 32(d)(2) and 35(b)(1) (now rules 8.336(d)(4) and 8.616(b)(2)) of the California Rules of Court. “These specific California Court Rules require the court reporter to prepare both an original and copies, irrespective of whether an original was previously prepared. However, new originals created by court reporters are not always exact reprints of previously-submitted, court-ordered transcripts. [¶] There are several instances in which new originals require the task of completely reproducing the transcript. These situations occur when the original transcript is not available for duplication because the computer file was lost or damaged, because of incompatible software, or because of the necessity for repagination, re-indexing and creating a new transcript table of contents. In these situations, the product produced is not truly a copy of a previously produced transcript. Instead, the transcript is a new original for which significant additional labor is required to be performed by the court reporter. Due to this additional labor expended, the court reporter should be paid the fees in [section] 69959[, subdivision] (a). [¶] Despite undertaking the task of either entirely or substantially reproducing an original and copies pursuant to these specific California Court Rules, which would clearly require the court reporter be compensated at the [section] 69950[, subdivision] (a) rate, the San Bernardino Superior Court compensates the reporters at the [section] 69950[, subdivision] (b) rate, as if they had only produced the product of a copy of a transcript.”
We use the term to refer to plaintiffs’ first amended petition for writ of mandate because the previous version of that pleading is not relevant to the issues raised on appeal.
California Rules of Court, rules 8.336(d)(4) and 8.616(b)(2) both state: “Any portion of the transcript transcribed during trial must not be retyped unless necessary to correct errors, but must be repaginated and bound with any portion of the transcript not previously transcribed. Any additional copies needed must not be retyped but must be prepared by photocopying or an equivalent process.” Rule 8.336 is entitled “Preparing, Certifying, and Sending the Record,” and rule 8.616 is entitled “Preparing the Trial Record.”
Plaintiffs also alleged that in January 2003 defendants entered into an agreement with its court reporters pursuant to which defendants agreed to pay the higher rate of compensation if the court reporter submitted an affidavit setting out the circumstances that required the reporter to reproduce a previously produced transcript and the superior court confirmed that the transcription was a valid reproduction. “Upon validation of a valid reproduction,” defendants would pay court reporters the higher rate specified in section 66950, subdivision (a). Plaintiffs alleged that they each had to prepare new original transcripts at various times over the preceding four years, but defendants failed to pay them the higher rate of compensation specified in section 69950, subdivision (a).
In their writ petition plaintiffs refer to the purported agreement as both the “2002 agreement,” and the “2003 agreement,” even though the petition alleges that the agreement was the result of a meeting on January 15, 2003. We will use the designation adopted by the parties, and refer to the agreement as the 2002 agreement.
The petition also includes allegations with respect to four court reporters who no longer are parties to the proceeding.
Plaintiffs’ petition includes only one purported cause of action, which incorporates the previously noted allegations, and further alleges that defendants do not properly compensate plaintiffs because defendants do not pay the higher rate of compensation set out in section 69950, subdivision (a) when plaintiffs are required to produce a new original transcript. In the prayer, plaintiffs requested that the court grant the following relief, “whether collectively or alternatively:” (1) declare that defendants have violated and continue to violate section 69950; (2) issue a writ ordering the superior court to compensate court reporters as required by section 69950; (3) enjoin defendants from compensating plaintiffs in a manner inconsistent with section 69950; and (4) award plaintiffs the fees defendants have improperly withheld as a result of their failure to compensate plaintiffs according to section 69950.
After defendants demurred to the original petition and the trial court sustained the demurrer but granted leave to amend, defendants filed their answer and moved for judgment on the pleadings. In that motion, defendants alleged, in pertinent part, that plaintiffs seek in their petition to recover money from defendants but have not filed a written claim, which is a prerequisite to recovery of money or damages from a public entity, as specified in sections 905, 905.2, and 945.4. Plaintiffs argued in their opposition that the San Bernardino County Superior Court is a local public entity, and because plaintiffs seek only to recover wages improperly withheld by such an entity, plaintiffs are exempt under section 905, subdivision (c) from the claim filing requirement. In reply, defendants asserted that since July 1, 1997, the effective date of the Trial Court Funding Act, section 77000 et seq. (TCFA), the term “local public entity” has not included superior courts, and therefore plaintiffs’ money claims are not exempt. The trial court denied defendants’ motion for judgment on the pleadings because defendants asserted the TCFA argument in their reply and consequently plaintiffs did not have an opportunity to respond to that assertion.
In an earlier appeal (San Bernardino Public Employees Assoc. v. Superior Court (Oct. 17, 2007, E041539) [nonpub. opn.]), we affirmed the judgment of dismissal with respect to San Bernardino Public Employees Association (SBPEA) which the trial court entered after it found that SBPEA did not have associational standing to pursue the action on plaintiffs’ behalf.
Section 905 pertains to claims for money or damages against a local public entity. Section 905.2 pertains to claims for money or damages against the state. Section 945.4 states that no suit for money or damages may be brought against a public entity unless a claim has been presented and acted upon by the board, or is deemed to have been rejected.
Section 905, subdivision (c) exempts from the claim presentation requirement all claims “against local public entities” by “public employees for fees, salaries, wages, mileage, or other expenses and allowances.”
Defendants filed a second or “renewed” motion for judgment on the pleadings, again asserting that plaintiffs had not complied with the claim presentation requirement in sections 905, 905.2, and 945.4. In this second motion, defendants argued that because plaintiffs’ claims were primarily ones to recover damages, they were required to file claims in accordance with the noted code sections. Defendants also asserted that plaintiffs were not exempt from the claim filing requirement because the San Bernardino County Superior Court is not a “local public entity” within the meaning of section 905, subdivision (c). Since enactment of the TCFA, which made trial courts part of state government, financial responsibility for trial court operations is a function of the state, not the county. Defendants argued that as a result, claims for money damages against a trial court “are deemed to be claims against the State of California” and such claims must be presented to the pertinent state entity. Until 2002, that entity was the State Board of Control. In 2002, the Legislature enacted Assembly Bill No. 2321, which amended the Government Claims Act to require, among other things, that claims against a judicial branch entity, the definition of which includes “any superior court,” be presented to the Judicial Council of California. (§§ 900.2, 900.3, 905.7.)
The trial court purported to deny their original motion without prejudice and, as a result, defendants called their subsequent motion a “renewed” motion for judgment on the pleadings.
In their opposition, plaintiffs asserted that their petition is “an action in traditional mandamus, which seeks an order compelling an official to perform a mandatory duty” and not an action against the state for money. Plaintiffs asserted that the mandatory duty in question is set out in section 69950, subdivision (a), which requires the superior court to pay a court reporter who completely or substantially reproduces a previously produced original transcript at the rate of $0.85 for each 100 words. Plaintiffs asserted that the claims alleged in their petition did not seek damages and instead sought declaratory and equitable relief, along with fees, salaries, and wages, all of which are exempt from the claim filing requirement of the Government Claims Act. The trial court disagreed and found that plaintiffs’ claims were for monetary relief and that plaintiffs were not exempt from the claim filing requirement. Accordingly, the trial court granted defendants’ motion for judgment on the pleadings. Plaintiffs appeal from the subsequently entered judgment of dismissal.
DISCUSSION
Plaintiffs contend, as they did in the trial court, that their damage claims are only incidental to their request for declaratory relief, and for issuance of a writ of mandate directing defendants to pay plaintiffs in accordance with section 69950, subdivision (a). According to plaintiffs, damage claims that are incidental to claims that are exempt from the claim filing requirement are also exempt. Therefore, plaintiffs contend that the trial court erred in granting defendants’ motion for judgment on the pleadings.
We agree that the trial court erred, but we do not share plaintiffs’ articulation of the nature of the error.
A. Standard of Review
A statutory motion for judgment on the pleadings is akin to a demurrer, in that it tests the adequacy of the pleading under attack. When the defendant is the moving party the grounds for the motion are that the complaint does not state facts sufficient to constitute a cause of action against the defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) The grounds for a motion for judgment on the pleadings must appear on the face of the pleading and from matter of which the court may take judicial notice. (Code Civ. Proc., § 438, subd. (d).) On appeal, we independently review a trial court’s order granting such a motion because the underlying determination is purely a question of law. (See Smiley v. Citibank (1995) 11 Cal.4th 138, 146.)
B. Analysis
According to the pertinent allegations of their writ petition, as recounted above, plaintiffs sought (1) to obtain a declaration regarding the parties’ rights and obligations under section 69950; (2) to compel defendants to comply with what plaintiffs alleged was defendants’ mandatory duty under section 69950, subdivision (a) to pay plaintiffs the higher rate of compensation when plaintiffs are required, as a result of extraordinary circumstances, to reproduce a previously produced original transcript; and (3) to recover compensation, or fees, they allegedly are entitled to as a result of defendants’ past failure to compensate plaintiffs in accordance with section 69950, subdivision (a).
In granting defendants’ motion for judgment on the pleadings, the trial court focused on defendants’ assertion, repeated in this appeal, that plaintiffs seek only to recover money for breach of contract. Plaintiffs’ writ petition, as noted above, includes allegations regarding an agreement between plaintiffs and defendants in January 2003, pursuant to which defendants agreed to pay plaintiffs at the higher rate of compensation set out in subdivision (a) of section 69950, and also includes a paragraph entitled “Respondent’s Breach of the 2002 [sic] Agreement.” Despite the quoted heading, the paragraphs that follow do not allege facts regarding breach of the agreement. Instead, the allegations relate to a controversy, resolved in plaintiffs’ previous appeal, regarding whether plaintiffs are independent contractors or employees of the San Bernardino County Superior Court when they prepare transcripts. Plaintiffs also do not include damages for breach of the purported agreement in their prayer for relief. Plaintiffs instead seek fees improperly withheld in the past as a result of defendants’ failure to compensate plaintiffs in accordance with section 69950. In other words, and contrary to defendants’ view, plaintiffs did not seek damages for breach of the alleged agreement. However, even if plaintiffs did seek such damages, plaintiffs’ petition includes other claims that are not subject to the claim filing requirement.
The Government Claims Act only applies to claims for money or damages. (See §§ 900, 905, 905.2.) Plaintiffs’ pleading, as previously noted, includes allegations that seek declaratory relief and a writ of mandate directing defendants to comply with their alleged statutory duty to compensate plaintiffs in accordance with section 69950, subdivision (a) when plaintiffs are required to reproduce a previously prepared original transcript. Neither of those claims is subject to the Government Claims Act. Because the claim filing provision does not apply to the declaratory relief and mandate allegations, defendants were not entitled to judgment on the pleadings with respect to those claims. In other words, the trial court erred when it granted defendants’ motion for judgment on the pleadings.
In concluding that the trial court erred in granting defendants’ motion for judgment on the pleadings, we express no opinion regarding whether plaintiffs are entitled to the other relief requested in their writ petition. Defendants moved for judgment on the pleadings solely on the basis of plaintiffs’ purported failure to comply with the requirements of the Government Claims Act. Defendants incorrectly, although vehemently, asserted in the trial court that plaintiffs’ claims were all barred, even those seeking injunctive or declaratory relief, as a result of their failure to comply with the Government Claims Act. Defendants cited two cases in the trial court to support that assertion, one of which does not pertain, and the other which says exactly the opposite. The Government Claims Act precludes only claims for money or damages, and does not apply to claims for other forms of relief.
Defendants cited Hart v. County of Alameda (1999) 76 Cal.App.4th 766, which holds, in pertinent part, that the declaratory relief request was irrelevant because the plaintiff had not filed a claim to recover the jury fees that were the subject of the declaratory relief request, and the jury fee statute had been amended as a result of which a declaration of future rights was moot. (Id. at pp. 782-783.) California School Employees Assn. v. Governing Bd. of South Orange County Community College Dist. (2004) 124 Cal.App.4th 574, the other case defendants cited in the trial court, holds that failure to file a claim for lost wages does preclude a separate claim to compel the defendant to recognize the plaintiffs as classified employees. (Id. at p. 580.)
Although defendants contend on appeal that plaintiffs’ writ petition does not “sound in ‘traditional mandamus,’” defendants did not raise that claim in their motion for judgment on the pleadings, and may not raise it for the first time on appeal. The rule is well established “that points not urged in the trial court may not be urged for the first time on appeal.” (Damiani v. Albert (1957) 48 Cal.2d 15, 18.) Moreover, even if we were to address the claim and were to agree with defendants, the declaratory relief allegations contained in the petition would remain. Defendants did not address the declaratory relief allegations in the trial court. Therefore, defendants did not demonstrate that the writ petition fails to allege facts sufficient to state a viable basis for such relief.
In summary, defendants demonstrated in their motion for judgment on the pleadings that plaintiffs did not comply with the Government Claims Act and therefore their petition failed to allege facts upon which plaintiffs could recover the “[p]ast fees improperly withheld from court reporters employed by the San Bernardino Superior Court as a result of failing to compensate Court Reporters as required by . . . [section] 69950.” However, because defendants did not show that plaintiffs failed to allege facts sufficient to establish any basis for relief, the trial court should not have granted defendants’ motion for judgment on the pleadings. Therefore, we will reverse the subsequently entered judgment of dismissal.
DISPOSITION
The judgment of dismissal is reversed. Plaintiffs to recover their costs on appeal.
We concur: Hollenhorst, Acting P.J., Miller, J.