Judge: Anne Richardson, Case: 24STCV01671, Date: 2024-11-08 Tentative Ruling

Case Number: 24STCV01671    Hearing Date: November 8, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff Liana Kabayan (Kabayan) sues Defendants Cosmetic Rejuvenation Medical Center, Zavant Aesthetics West Hollywood, E.Z. Management Inc., Zara Harutyunyan, Sirak Darbinian, and Does 1 through 20, pursuant to a July 8, 2024, First Amended Complaint (FAC) alleging causes of action for: (1) Wrongful Termination and Retaliation in Violation of Public Policy; (2) Discrimination Based on Protected Status; (3) Sexual Harassment – Hostile Working Environment; (4) Failure to Take Reasonable Steps to Prevent Discrimination, Harassment and/or Retaliation; (5) Retaliation in Violation of Whistleblowing Act; (6) Unpaid Overtime Pay; (7) Failure to Provide Meal Breaks; (8) Failure to Provide Rest Periods; (9) Failure to Provide Accurate Itemized Statements [Cal. Labor Code § 226 subd. (a)]; (10) Failure to Provide Accurate Itemized Statements [Cal. Labor Code § 226.3]; (11) Failure to Reimburse Expenses; (12) Untimely Payment of Wages; (13) Unlawful Withholding of Wages; (14) Waiting Time Penalties; (15) California Private Attorney General Act [Cal. Labor Code § 226.3]; (16) Negligence; (17) Negligent Infliction of Emotional Distress; (18) Negligent Hiring, Supervision, and Retention; (19) Failure to Provide Employment Records; and (20) Unfair Business Practices.

The claims arise from the following allegations. Kabayan was employed as a Patient Coordinator by Defendant Cosmetic Rejuvenation Medical Center on October 17, 2022. Kabayan alleges that throughout her employment, she was not timely paid and did not receive proper meal and rest breaks. Kabayan asserts that her boss Zara Harutyunyan (Harutyunyan) made negative comments about Kabayan’s appearance and race. Kabayan also alleges that the Defendants took unnecessary risks with patients and when Kabayan and other employees confronted Harutyunyan about this, Harutyunyan dismissed their concerns. In September 2023, Kabayan asserts that she sent a letter to human resources at Cosmetic Rejuvenation Medical Center complaining of Harutyunyan’s hostile treatment towards her and that she was terminated a few days later.

B. Motion Before the Court

On August 2, 2024, Defendants demurred to the FAC’s second, third, fourth, fifth, seventh, eighth, ninth, tenth, eleventh, seventeenth, eighteenth, and nineteenth causes of action. The Defendants also subsequently filed a motion to strike.

On October 28, 2024, Kabayan opposed the demurrer.

On November 1, 2024, the Defendants replied.

The Defendants demurrer and motion to strike are now before the Court.

II. Demurrer

A.    Meet and Confer Requirement

The Defendants have satisfied the meet and confer requirement pursuant to Code of Civil Procedure section 430.41 subdivision (a)(3)(A). (Malkhasyan Decl. ¶¶ 8-11.) 

B.    Requests for Judicial Notice

Pursuant to Evidence Code section 452, subdivision (h), the Court may take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” The court however may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made such that the truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.) 

Per Defendants’ request, the Court takes judicial notice of the United States Postal Service (USPS) search results for Kabayan’s PAGA Notice Letter’s tracking information (RJN, Exs. 1-3.)

The Court takes judicial notice to the extent of the documents’ existence.

C.    Legal Standard

1. Sufficiency

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).)

To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) “[E]ach evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) Courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A demurrer may only be used to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

2. Uncertainty

A demurrer to a pleading lies where the pleading is uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10, subd. (f).)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616, disapproved on other grounds in Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46 [holding claims for unfair business practices need not be pled specifically, impliedly disapproving Khoury].) As a result, a special demurrer for uncertainty is not intended to reach failure to incorporate sufficient facts in the pleading but is directed only at uncertainty existing in the allegations already made. (People v. Taliaferro (1957) 149 Cal.App.2d 822, 825, disapproved on other grounds in Jefferson v. J.E. French Co. (1960) 54 Cal.2d 717, 719-720 [statute of limitations question].)

Where a complaint is sufficient to state a cause of action and to apprise defendant of the issues it is to meet, it is not properly subject to a special demurrer for uncertainty. (See ibid.; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 643.)

D.    Analysis

1.     Second Cause of Action, Discrimination Based on Protected Status

To establish a prima facie case of discrimination, a plaintiff must allege that (1) he or she was a member of a protected class, (2) that he or she was qualified for and performing competently in the position she held, (3) he or she suffered an adverse employment action, and (4) conduct by the employer suggesting that it is more likely than not that the adverse employment action was due to a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) It is sufficient to show that one of the employer’s motives was to discriminate, even if the employer had other lawful motives in causing the adverse employment action. (University of Texas Southwestern Medical Center v. Nassar (2013) 570 U.S. 338, 343.) 

The FAC alleges that Kabayan is a member of a protected class based on her gender, and that Cosmetic Rejuvenation Medical Center terminated her employment on September 15, 2023. (Compl. ¶¶ 21 [“as a woman”], 26 [termination].) The FAC alleges that Kabayan, “as a woman, was constantly given negative comments on her appearance from ZARA. PLAINTIFF was called ugly and was told she should wear a mask while at work because her lips were ugly. ZARA also told other employees that ‘I don’t like Liana’s hair. It looks trashy, looks like a wig.’ There were other discriminative and harassing comments from ZARA towards PLAINTIFF such as ‘you are not fit for my standard’ ‘you are costing my business.’” (Compl. ¶ 21.)

For many years, courts have accepted that sex discrimination can be shown by evidence that stereotypes about how women should act or appear have affected the employee. (Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 250-251 (superseded by statute on other grounds as stated in Stender v. Lucky Stores, Inc. (1992) 780 F.Supp. 1302, 1305); Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.A4th 1028, 1044 [an appearance standard that imposes more stringent appearance requirements on employees of one sex than on employees of the other sex can constitute unlawful sex discrimination under the FEHA].)

Plaintiff’s allegations suffice to state a claim for sex discrimination.  Thus, the demurrer to the second cause of action is OVERRULED. 

2.     Third Cause of Action, Sexual Harassment – Hostile Working Environment

To establish harassment under FEHA, a plaintiff must show: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to harassment; (3) the harassment complained of was based on the plaintiff’s membership in the protected group; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior. (Jones v. Dep’t of Corrections & Rehabilitation, supra, 152 Cal.App.4th at p. 1377.)

As discussed above, Kabayan has sufficiently alleged that the offensive comments were based on Kabayan’s gender.

Thus, the demurrer to the third cause of action is OVERRULED.  

3.     Fourth Cause of Action, Failure to Take Reasonable Steps to Prevent Discrimination and Harassment

Government Code section 12940(k) provides that it is an unlawful employment practice “[f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) To establish this claim, a plaintiff must establish the defendant’s legal duty of care, breach of duty, legal causation, and damages to the plaintiff. (See Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 286-287.) 

Because the second and third causes of action for discrimination and harassment are sufficiently pled, as discussed above, the fourth cause of action for failure to prevent discrimination and harassment is also sufficient at this stage.

Thus, the demurrer to the fourth cause of action is OVERRULED.

4.     Fifth Cause of Action, Retaliation in Violation of Whistleblowing Act

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA Inc. (2005) 36 Cal.4th 1028, 1042 [internal citations omitted].) “A plaintiff … need only prove that a retaliatory animus was at least a substantial or motivating factor in the adverse employment decision” to prevail on her claim. (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1492.) 

The FAC alleges that Harutyunyan “would use expired Kybella and other medicated production on patients without informing the patient. ZARA even admitted to PLAINTIFF and others that it may be risky. However, in 2023 when PLAINTIFF and several medical assistants conformed ZARA about the practice and told her it was not a good idea, she responded, ‘I don’t care nothing will happen.’” (Compl. ¶ 24.) The FAC further alleges that “[s]hortly thereafter [Kabayan] was fired. (Compl. ¶ 65.)

The Defendants argue that Kabayan has failed to establish a causal link between Kabayan and other employees confronting Harutyunyan about use of expired product and Kabayan’s termination. (Demurrer, p. 14.) Although the link is tenuous, Kabayan does allege that she was terminated shortly after she and other employees told Harutyunyan it was not a good idea to use the expired products. Harutyunyan will have to establish that this comment was a substantial or motivating factor in terminating her employment in order to prevail on the claim, but the standard for demurrer is merely whether she has alleged facts to establish each element of the cause of action, which she has done so here.

Thus, the demurrer to the fifth cause of action is OVERRULED.  

5.     Seventh Cause of Action, Failure to Provide Meal Breaks

Labor Code, section 512 subdivision (a) states: “An employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer shall not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.”   

The FAC alleges: “[s]cheduled for work from 9:30 a.m. to 5 p.m., Monday through Friday, [Kabayan] would have to work overtime till 6 p.m. when the doctor wasn’t in the office. While she was on her meal breaks, she had to be on call in case she was needed. And typically, [Kabayan] was not given any rest breaks.” (Compl. ¶ 19) The FAC further alleges that Kabayan “was at times not given meal breaks and at other times meal breaks which were not compliant with labor laws.” (Compl. ¶ 82.)

Kabayan has alleged, however cursorily, that she was not provided with meal breaks.  At the demurrer stage, the allegations in the seventh cause of action are sufficient.

Thus, the demurrer to the seventh cause of action is OVERRULED. 

6.     Eighth Cause of Action, Failure to Provide Rest Periods

Labor Code section 226.7(b) states: “An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.”

The FAC alleges that throughout Kabayan’s employment, the Defendants “typically did not provide [Kabayan] with rest breaks and/or compliant breaks for every four hours of work.” (Compl. ¶ 88.) At the demurrer stage, this is sufficient to allege a cause of action for failure to provide rest periods.

Thus, the demurrer to the eighth cause of action is OVERRULED. 

7.     Ninth Cause of Action, Failure to Provide Accurate Itemized Statements [Labor Code § 226 subd. (a)]

Labor Code section 226 states that an employer, semimonthly or at the time of each payment of wages, shall furnish to their employee an accurate itemized statement in writing showing: “(1) gross wages earned, (2) total hours worked by the employee, except as provided in subdivision (j), (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of their social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer …, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee ….”  (Lab. Code, § 226 subd. (a).)  An employee is deemed to suffer injury if the employer fails to provide a wage statement or fails to provide accurate and complete information under subsection (a). (Lab. Code, § 226 subd. (e).)   

The FAC alleges that the Defendants “failed to provide [Kabayan] with complete and accurate wage statements, willfully or intentionally” and further that the Defendants “also failed to account for accurate withholdings, hours, wage rates, overtime, meal and rest premiums, and sick leaves, among other things.” The Defendants assert that Kabayan has not shown that there were any inaccuracies within her wage statements and that if Kabayan’s claims are predicated on failure to pay overtime pay or for meal and rest periods, then Kabayan’s recovery comes from the violated wage and hour law, not wage statement penalties. (Demurrer, p. 17:3-9; See also Maldonado v. Epsilon Plastics, Inc., (2018) 22 Cal.App.5th 1308, 1337 [“the absence of . accurate wages earned will be remedied by the violated wage and hour law itself…”].)

However, Kabayan need only assert that she was not provided with accurate wage statements, which she has. The decision in Maldonado, supra, pertained to judgment issued after a bench trial, not a demurrer. (Maldonado, supra, 22 Cal.App.5th 1308)

Thus, the demurrer to the ninth cause of action is OVERRULED. 

8.     Tenth Cause of Action, Failure to Provide Accurate Itemized Statements [Labor Code § 226.3]

Labor Code section 226.3 provides for civil penalties for violations of citations issued by the Labor Commissioner. (Lab. Code. § 226.3) It is not a basis for a stand-alone cause of action by an employee against an employer for failure to provide itemized statements.

Thus, the demurrer to the tenth cause of action is SUSTAINED.

9.     Eleventh Cause of Action, Failure to Reimburse Expenses

Labor Code section 2802 subdivision (a) states: “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.”

In the FAC, Kabayan alleges that she “was asked to buy scrub pants and shoes out-of-pocket following [Defendants] requirements, however, she was never reimbursed for the expenses.” (FAC, ¶ 20.)

Kabayan does not allege that she sought reimbursement for these items and was denied. Regardless, California law has held that while a uniform is a reimbursable expense under Labor Code section 2802, required clothing is not. (See, e.g, Townley v. BJ's Restaurants, Inc., (2019) 37 Cal.App.5th 179, 185 [finding that basic, nonuniform wardrobe items that are generally usable within the occupation do not qualify as ‘necessary expenditures’ under Labor Code section 2802].)

Thus, the demurrer to the eleventh cause of action is SUSTAINED.

10.  Seventeenth Cause of Action, Negligent Infliction of Emotional Distress

There is no independent tort of negligent infliction of emotional distress. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 818.) 

“[The] negligent causing of emotional distress is not an independent tort but the tort of negligence ….” (Marllene F. v. Affiliated Psychiatric Inc. (1989) 48 Cal.3d 583, 588.) 

Kabayan asserts that recovery for negligent infliction of emotional distress has been permitted in direct victim cases. (Opp. pp. 7:19-8:3.) However, this is not a direct victim case.

Thus, the demurrer to the seventeenth cause of action is SUSTAINED.

11.  Eighteenth Cause of Action, Negligent Hiring, Supervision, and Retention

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

In the demurrer, the Defendants argue that Kabayan does not identify what risk or hazard the “Defendants knew or should have known would materialize by hiring and retaining” Harutyunyan. (Demurrer p. 18:23-24.) The FAC states that Harutyunyan is the Director of Defendants, that Harutyunyan “became unfit and incompetent to supervise,” and that the Defendants knew or should have known that Harutyunyan “became unfit and incompetent to supervise” and that she “created a particular risk to others.” (FAC, ¶¶ 134-136.)

The FAC fails to plead in what way Harutyunyan became unfit to supervise. Further, it is unclear who Kabayan alleges is responsible for negligently hiring, supervising, or retaining Harutyunyan considering Harutyunyan is the Director of the Defendants.  

Thus, the demurrer to the eighteenth cause of action is SUSTAINED.

12.  Nineteenth Cause of Action, Failure to Provide Employment Records

Labor Code section 226 subdivision (b) provides that employers required by this code to keep the information required by Section 226 subdivision (a), “shall afford current and former employees the right to inspect or receive a copy of records pertaining to their employment, upon reasonable request to the employer…” (Lab. Code § 226 subd. (b).)

Labor Code section 226 subdivision (c) provides as follows: “An employer who receives a written or oral request to inspect or receive a copy of records pursuant to subdivision (b) pertaining to a current or former employee shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request… Impossibility of performance, not caused by or a result of a violation of law, shall be an affirmative defense for an employer in any action alleging a violation of this subdivision…” (Lab. Code § 226 subd. (c).)

Labor Code section 1198.5 provides that “The employer shall make the contents of those personnel records available for inspection to the current or former employee, or his or her representative, at reasonable intervals and at reasonable times, but not later than 30 calendar days from the date the employer receives a written request, unless the current or former employee, or his or her representative, and the employer agree in writing to a date beyond 30 calendar days to inspect the records, and the agreed-upon date does not exceed 35 calendar days from the employer’s receipt of the written request.” (Lab. Code § 1198.5.)

The Defendants assert that they never received Kabayan’s December 14, 2023 request for her personnel file and wage statements. To support this assertion, the Defendants present evidence that the requests were never delivered to their office. (RJN, Exs. 1-3 [tracking information from the USPS website showing that the letters were not delivered.])  Additionally, the Defendants assert that they provided Kabayan’s counsel with her personnel file along with all wage related documents on April 9, 2024. (Demurrer, p. 19; Malkhasyan Decl. ¶ 6, Ex. 2.) Kabayan contends that the Defendants rejected service of the December 2023 letters but does not otherwise argue that she has not since received the requested information. (Opp. p. 8:19-27.)

Thus, the demurrer to the nineteenth cause of action is SUSTAINED.

Accordingly, the demurrer is OVERRULED as to the second, third, fourth, fifth, seventh, eighth and ninth causes of action and SUSTAINED as to the tenth, eleventh, seventeenth, eighteenth, and nineteenth causes of action. Leave to amend is only granted as to the 18th and 19th causes of action.

III. Motion to Strike

A.    Legal Standard

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subds. (a), (b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

For the purposes of a motion to strike pursuant to Sections 435 to 437 of the Code of Civil Procedure, the term “pleading” generally means a demurrer, answer, complaint, or cross-complaint, (Code Civ. Proc., § 435, subd. (a)), and an immaterial allegation or irrelevant matter in a pleading entails (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint (Code Civ. Proc., § 431.10, subds. (b)(1)-(3), (c)).

In analyzing a motion to strike, California courts “accept as true the well-pleaded allegations” in the challenged pleadings, as well as “well-pleaded allegations admitted in” the responsive “answer.” (Atwell Island Water Dist. v. Atwell Island Water District (2020) 45 Cal.App.5th 624, 628 (Atwell); Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 [California courts “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)

B.    Discussion

The Defendants move to strike certain portions of the FAC relating to punitive damages on the grounds that the FAC does not include any factual assertions establishing malice, oppression, or fraud on behalf of the Defendants or any support for Kabayan’s punitive damages claims. (Mot. to Strike, pp. 4:10-5:24.)

As the Court has overruled the demurrer to the second, third, and fifth causes of action,  the Court will DENY the motion to strike as to paragraph 37, 45 and 54 in the FAC and prayer for relief, request 9.

Thus, the motion to strike is DENIED.

IV. Conclusion

Defendants' Demurrer is OVERRULED as to the Fifth, Seventh, Eighth and Ninth Causes of Action and SUSTAINED as to the Second, Third, Fourth, Tenth, Eleventh, Seventeenth, Eighteenth, and Nineteenth Causes of Action. Leave to amend is granted only as to the 18th and 19th causes of action.

Plaintiff shall file an Amended Complaint within 14 days.

Defendants' Motion to Strike is DENIED.