Judge Alison Mackenzie, Case Number: 23STCV31730, Date: 2024-08-05 Tentative Ruling

Judge: Alison Mackenzie, Case: 23STCV31730, Date: 2024-08-05 Tentative Ruling

Case Number: 23STCV31730 Hearing Date: August 5, 2024 Dept: 55

Proceeding: Defendants' Demurrer to Complaint

BACKGROUND

This case arises out of an employment relationship. Plaintiff Aveon Goosby (“Plaintiff”) was employed with Defendants Panda Restaurant Group, Inc., and Panda Express, Inc. (“Defendants”), between November 2021 and June 2022. Plaintiff claims that he was wrongfully terminated after informing a human resources representative that he and other employees under the age of 18 were routinely required to work hours not allowed under Labor Code Section 1391. Plaintiff alleges Defendants required Plaintiff and other minors to work more than four hours on schooldays and after 10:00 p.m. on days preceding a schoolday.

Defendants demur to each cause of action alleged in Plaintiff’s Complaint. Plaintiff opposes the demurrer to the first and second causes of action but not to the third cause of action.

Meet and Confer

Defendants’ meet and confer efforts were sufficient as Code of Civil Procedure section 430.41, subdivision (a), and section 435.5, subdivision (a), require meeting and conferring “in person or by telephone.” On March 1, 2024, Defense counsel and Plaintiff’s counsel discussed the grounds for demurrer by telephone. (Declaration of Vivian Shen, ¶¶ 4,5.)

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Code of Civ. Proc. §430.10(f) provides for a demurrer where a pleading is uncertain. Demurrers for uncertainty are disfavored and are only sustained where a pleading is so incomprehensible a defendant cannot reasonably respond. (A.J. Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695; Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) “

ANALYSIS

First Cause of Action: Whistleblower Retaliation in Violation of Labor Code § 1102.5

Defendants contend that the first cause of action for whistleblower retaliation in violation of Labor Code §1102.5(b) does not contain sufficient facts to state a claim. This claim requires a showing that Plaintiff engaged in a protected activity, the employer subjected Plaintiff to adverse employment action, and there is a causal link between the two. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.)

Plaintiff alleges that Defendants required him and other minors to work hours not allowed under Labor Code section 1391. (Compl., ¶ 12.) He further alleges that: (1) he complained to his manager, Bee Yang (“Yang”) of the hours worked, (2) that the area coach, Argie Santoyo acknowledged that the hours worked should not be required, and (3) that he informed a human resources representative that visited the store in or around April of 2022, that he and other employees under the age of 18 were required to work more than four hours on schooldays and after 10:00 p.m. on days preceding schooldays. (Compl., ¶ 17.) Plaintiff alleges that he continued to complain to Yang about the hours he and other minors worked and was wrongfully terminated in retaliation of these statements. (Id.). These factual allegations adequately describe Plaintiff’s belief that Defendants required him and other minors to work hours not permitted by Labor Code section 1391, that he complained about it to his managers, the conduct continued, and he was terminated shortly thereafter. This is sufficient to state a claim. Defendants’ contention that minors can work longer hours if they have work permits is a factual issue not appropriate for a demurrer. Nor is Defendants’ contention that Plaintiff’s allegations do not establish a causal connection between his complaints and termination.

Defendants also argue that the claim is uncertain though they fail to specify where the uncertainty appears by reference to page line and numbers in the Complaint. In any event, the allegations adequately apprise Defendants of the factual basis for his claim.

Based on the foregoing, Plaintiff’s demurrer to the first cause of action is overruled.

Second Cause of Action: Wrongful Termination in Violation of Public Policy

Defendants contend this claim fails because it is derivative of the first cause of action. As discussed above, the first cause of action does adequately state a claim and so the second cause of action also stands.

Third Cause of Action: Intentional Infliction of Emotional Distress

Plaintiff concedes that the third cause of action for intentional infliction of emotional distress is barred by the exclusive remedies of the Workers’ Compensation Act. The Corut therefore sustains this cause of action without leave to amend.

CONCLUSION

The demurrer is overruled as to the first and second causes of action. The demurrer to the third cause of action is sustained without leave to amend. Twenty days to answer.