Filed 12/30/15 Castillo v. Military Dept. CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




RICHARD CASTILLO et al.,                                                                     C077086

                   Plaintiffs and Appellants,                                         (Super. Ct. No.
                                                                                 34201300154661-CU-OE-
         v.                                                                               GDS)

MILITARY DEPARTMENT,

                   Defendant and Respondent.




         Plaintiffs, 13 former active duty members of the California state militia, sued the
California Military Department (CMD) claiming age discrimination based on their relief
from duty after reaching the age of 60. CMD successfully demurred to the complaint and
plaintiffs appeal from the judgment of dismissal.
         Plaintiffs contend the remedies of the Fair Employment and Housing Act (FEHA)
(Gov. Code, §§ 12940 et seq.) apply to members of the militia and no exemption applies
here; they argue the age designations for mandatory retirement in Military and Veterans
Code section 142 apply only to “service members” and they did not meet the definition of

                                                             1
“service members.” They add that the Feres doctrine (Feres v. United States (1950) 340
U.S. 135 [95 L.Ed.2d 152]), which limits when members of the armed services can sue
for injuries arising out of or in the course of activity incident to service, does not apply to
their situation. We find the law expressly permits CMD to make retention decisions
based on age for service members aged 60 or older, and plaintiffs were service members
aged 60 or older. Accordingly, we shall affirm the judgment.
                                      BACKGROUND
        Employment in the California State Militia
        The active militia of the State of California consists of the National Guard, the
State Military Reserve, and the Naval Militia. (Mil. & Vet. Code, § 120.)1 The Governor
may order active militia to perform “military duty of every description.” (§ 142, subd.
(a).) When so ordered by the Governor, such service members constitute the state active
duty force. (§ 141.5.)
        A military selection process is used to select service members for permanent
positions. A service member who remains on state active duty for six consecutive years
is eligible for career active duty status and may remain on state active duty until age 60 or
separation for cause. At age 60, a service member may remain on active duty under
temporary orders which may be renewed annually. (§ 142, subd. (b).) When a service
member reaches age 64, or when federal recognition of his or her grade or rank is
withdrawn if later, the service member shall be retired from state active duty. (§ 142,
subd. (d).)
        There is a policy of nondiscrimination for members of the state militia. “(a)
Members of the militia of the state shall not be discriminated against in enlistments,
promotions, or commissions on any basis listed in subdivision (a) of Section 12940 of the




1   Further undesignated statutory references are to the Military and Veterans Code.

                                               2
Government Code, as those bases are defined in Sections 12926 and 12926.1 of the
Government Code, except as otherwise provided in Section 12940 of the Government
Code.
        “(b) It is hereby declared to be the policy of the State of California that there be
equality of treatment and opportunity for all members of the militia of the state without
regard to any basis listed in subdivision (a) of Section 12940 of the Government Code, as
those bases are defined in Sections 12926 and 12926.1 of the Government Code. This
policy shall be put into effect in the militia by rules and regulations to be issued by the
Governor with due regard to the powers of the federal government that are, or may be,
exercised over all the militia of the state with regard to positions requiring federal
recognition.” (§ 130.)
        Government Code section 12490 prohibits discrimination in employment, unless
based on a bona fide occupational qualification or where based on applicable security
regulations, on the basis of “race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, genetic information, marital
status, sex, gender, gender identity, gender expression, age, sexual orientation, or military
and veteran status.” (Gov. Code, § 12490, subd. (a).) “ ‘Age’ refers to the chronological
age of any individual who has reached his or her 40th birthday.” (Gov. Code, § 12926,
subd. (b).) Before the 2004 amendment to section 130 in Assembly Bill 2900 (Stats.
2004, ch. 788, § 17), the protected classes under section 130 were limited to race,
national origin, ancestry, and color. (Stats. 1965, ch. 283, § 9, p. 1284.)
        Government Code section 12940, subdivision (a)(5)(A) clarifies: “This part does
not prohibit an employer from refusing to employ an individual because of his or her age
if the law compels or provides for that refusal.”
        The Complaint and Demurrer
        The complaint alleged the 13 plaintiffs, all 60 years of age or older, “were strictly
and solely employees of the State of California as non-federally recognized members of

                                               3
the State Militia.” A retention board was convened to implement section 142,
subdivision (b), and none of the plaintiffs were retained, but were, or will be, separated
from state employment because of their age. The complaint alleged there is a
controversy because of a perceived conflict (which we explain post) between section 142
on the one hand, and section 130 and Government Code section 12490 on the other.
       The first cause of action was for discrimination on the basis of age in violation of
section 130 and Government Code section 12490. The second cause of action alleged
failure to prevent discrimination in violation of Government Code section 12490,
subdivision (k). The third cause of action alleged a violation of due process in violation
of article I, section 7 of the California Constitution, causing damage to plaintiffs. The
fourth cause of action sought declaratory relief, an adjudication of the parties’ rights and
duties with regard to age discrimination in employment. The complaint sought damages,
a declaratory judgment, costs and attorney fees, and an order for the court to retain
jurisdiction to implement and carry out any court orders.
       CMD demurred to the complaint, asserting it failed to state facts to constitute a
cause of action. (Code Civ. Proc., § 430.10, subd. (e).) CMD contended the Feres
doctrine barred all of plaintiffs’ claims. CMD also asserted that FEHA did not apply to
service members and that section 142, subdivision (b) authorized retention decisions
based on age if the service member was age 60 or older. Damages were not available for
constitutional violations and plaintiffs had no beneficial interest in the rights they sought
to adjudicate.
       The trial court sustained the demurrer without leave to amend and entered
judgment for CMD.




                                              4
                                      DISCUSSION
                                              I
                       Plaintiffs’ Classification as Service Members
       “In reviewing the sufficiency of a complaint against a general demurrer, we are
guided by long-settled rules. ‘We treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law.
[Citation.] We also consider matters which may be judicially noticed.’ [Citation.]
Further, we give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. [Citation.] When a demurrer is sustained, we determine whether
the complaint states facts sufficient to constitute a cause of action. [Citation.] And when
it is sustained without leave to amend, we decide whether there is a reasonable possibility
that the defect can be cured by amendment: if it can be, the trial court has abused its
discretion and we reverse; if not, there has been no abuse of discretion and we affirm.
[Citations.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
       As set forth ante, section 142, subdivision (b) provides that a service member who
has attained state active duty status may remain on state active duty until age 60.
Thereafter, a service member may be retained under temporary orders which may be
renewed annually. (Ibid.) A service member shall be retired from state active duty at age
64. (§ 142, subd. (d).) Thus, under these express and clear provisions of the Military and
Veterans Code, plaintiffs had no right to remain on state active duty after the age of 60 if
indeed they were properly classified as service members under that code section.
       Plaintiffs contend they were not service members as contemplated by section 142.
Instead, the complaint alleged (the legal conclusion) that plaintiffs “were strictly and
solely employees of the State of California as non-federally recognized members of the
State Militia.” “Although in reviewing the sufficiency of a complaint against a general
demurrer we treat the demurrer as admitting ‘all material facts properly pleaded,’ we do



                                              5
not treat as true such conclusions of law. [Citation.]” (Wildensten v. East Bay Regional
Park Dist. (1991) 231 Cal.App.3d 976, 980.)
       Section 142 does not specifically define the term “service member.” Where a
specific definition is not provided, we give the words of a statute “their usual and
ordinary meanings” and construe “them in context.” (Wells v. One2One Learning
Foundation (2006) 39 Cal.4th 1164, 1190.) A “service member” is usually understood to
be a member of the service and in the context of section 142 relating to the active militia,
a “service member” is a member of active militia. Plaintiffs had been members of the
militia and had been on active duty. The trial court granted CMD’s request to take
judicial notice of plaintiffs’ military order that showed each was relieved from state
active duty. In reviewing an order sustaining a demurrer, “we also consider facts of
which the trial court properly took judicial notice. [Citation.]” (Intengan v. BAC Home
Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052.) As active service militia
members, plaintiffs were service members for purposes of section 142. (§ 141.5.)
       A definition of the term “service member” appears in section 400. Plaintiffs point
to this definition to argue that they are not properly classified as service members for
purposes of section 142. Section 400, subdivision (a) states: “ ‘Service member’ means
both of the following: [¶] (1) Officers and enlisted members of the National Guard
called or ordered into active state service by the Governor pursuant to the provisions of
Section 143 or 146 into active federal service by the President of the United States
pursuant to Title 10 or 32 of the United States Code. [¶] (2) Reservists of the United
States Military Reserve who have been called to full-time active duty.” We agree that
this specific definition applies only to members of the National Guard or the United
States Military Reserve called into active service in times of insurrection (§ 143), war, or
other emergency (§ 146). It does not cover those, such as plaintiffs, who are serving in
the state active duty force. (§ 141.5.)



                                             6
       However, although plaintiffs contend the section 400 definition of “service
member” applies to all provisions of the Military & Veterans Code, we disagree. The
definition in section 400 is limited “[f]or purposes of this chapter.” (§ 400.) “This
chapter” is chapter 7.5, which provides certain financial protections, such as a stay,
postponement, or suspension of the payment of tax, fine, penalty, insurance premium, or
other civil obligation of liability. (§ 401, subd. (a).) The Governor’s signing message
explains the need for such protections for service members who are called into active
service, leave civilian jobs, and may experience financial hardship. The signing message
states the bill “will ensure that equal protection is provided to all California National
Guard members and other reservists, who unselfishly put their civilian lives on hold to
serve and protect millions of Californians.” (See Historical and Statutory Notes, 46
West’s Ann. Mil. & Vet. Code (2010 ed.) foll. § 395.06, p. 197.) Plaintiffs were not
leaving civilian jobs for active service in times of insurrection, war, or other emergency;
they were not the limited class of “service members,” defined in section 400, for whom
chapter 7.5 offered special protections. Simply put, the narrow definition in section 400
does not apply to plaintiffs. They are not “service members” for the special protections
of sections 400 et seq.2
                                              II
                                            FEHA
       Plaintiffs contend the remedies of FEHA were extended to members of the militia
by the 2004 amendment (Assem. Bill No. 2900) to section 130. Section 130, subdivision
(b) sets forth the policy of nondiscrimination on the same bases as set forth in FEHA, but,
contrary to plaintiffs’ argument, it expressly provides for a different remedy. “This
policy shall be put into effect in the militia by rules and regulations to be issued by the



2There is a similar definition of “service member” in section 821, limited to the
California Military Families Financial Relief Act of 2005. (§§ 820 et seq.)

                                              7
Governor with due regard to the powers of the federal government that are, or may be,
exercised over all the militia of the state with regard to positions requiring federal
recognition.” (§ 130.) This remedy is found in CMD Directive 600-22, which
“establishes policies and procedures for filing, processing, investigating, settling, and
adjudicating discrimination complaints in the California Military Department (CMD) for
State Active Duty (SAD) members and State Military Reserve (SMR) members.” The
trial court granted CMD’s request for judicial notice of this directive.
       Further, FEHA contains an exception that is applicable here. Subdivision
(a)(5)(A) of Government Code section 12940 provides: “This part does not prohibit an
employer from refusing to employ an individual because of his or her age if the law
compels or provides for that refusal.” Section 142 “provides for that refusal” at age 60
and “compels” it at age 64. Moreover, the nondiscrimination policy set forth in section
130 incorporates this exception: “except as otherwise provided in Section 12940 of the
Government Code.” (§ 130.)
       Plaintiffs contend this exception applies only to the opening sentence of
Government Code section 12490: “It is an unlawful employment practice, unless based
upon a bona fide occupational qualification or, except where based upon applicable
security regulations established by the United States or the State of California.” Plaintiffs
argue the only exceptions to nondiscrimination under FEHA must be based on a bona
fide occupational qualification or a security regulation.
       The structure of the statute defeats this argument. Subdivision (a) of Government
Code section 12940 prohibits discrimination in employment on a number of bases. After
the basic prohibition of discrimination there are five paragraphs (some with
subparagraphs), each referring to “this part.” In context, it is clear each of these
paragraphs refers to subdivision (a) as “this part,” not the opening sentence which is
separate from any subdivision. Thus, the language of subdivision (a)(5)(A)--“This part
does not prohibit an employer from refusing to employ an individual because of his or

                                              8
her age if the law compels or provides for that refusal”-- refers to and modifies
subdivision (a), not the opening sentence of Government Code section 12940.
                                             III
                                         Conclusion
       Plaintiffs have failed to state a viable cause of action for age discrimination or
failure to prevent discrimination because the express language of section 142 authorized
CMD to relieve plaintiffs from active duty at age 60. CMD acted in accordance with the
law, so there was no violation of plaintiffs’ due process rights and there is no actual
controversy requiring a declaratory judgment. Accordingly, the trial court did not err in
sustaining CMD’s demurrer without leave to amend.
       Because we have resolved this case based on the statutory provisions involved, we
need not consider the proper scope of the Feres doctrine and whether it applies to
preclude plaintiffs’ suit against CMD.
                                      DISPOSITION
       The judgment is affirmed. CMD shall recover costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(2).)



                                                         /s/
                                                   Duarte, J.


We concur:


      /s/
Butz, Acting P. J.



     /s/
Hoch, J.


                                              9
