Judge: Armen Tamzarian, Case: 23STCV03952, Date: 2023-05-24 Tentative Ruling

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Case Number: 23STCV03952    Hearing Date: November 13, 2023    Dept: 52

Plaintiff David Mathews’ Demurrer to Defendants’ First Amended Answer

Plaintiff David Mathews demurs to the 7th-11th, 13th, 15th-18th, 20th, 22nd, 25th-27th, 30th, and 31st affirmative defenses alleged in the first amended answer by defendants Gene Simmons, Paul Stanley, Doc McGhee, and GAPP 2002 Ltd.

Rather than denying the plaintiff’s allegations, affirmative defenses assert new allegations that would defeat the plaintiff’s claims.  (CCP § 431.30(b); FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 383-385.)  Affirmative defenses must not be pled as “terse legal conclusions,” but “rather … as facts averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.” (In re Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812-13, internal quotes and citations omitted.)

Plaintiff demurs to 17 affirmative defenses.  For 16 of the 17 defenses, plaintiff makes only conclusory arguments with no citation to authority.  “The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.”  (Cal. Rules of Court, rule 3.1113(a).) 

For example, the 17th affirmative defense states, “Answering Defendants’ alleged acts of which Plaintiff complains were based on reasonable factors other than his alleged whistleblower status or other prohibited factor due, in part, to the regularly increasing costs of Plaintiff’s work for certain Answering Defendants.”  (FAA, ¶ 17.)  Plaintiff argues, “Defendants fail to provide what reasonable factors these acts were based on.”  (Demurrer, p. 9.)  But they allege an ultimate fact constituting such a factor: “the regularly increasing costs of Plaintiff’s work.”

As another example, the 26th affirmative defense states, “Plaintiff’s claim that he was unlawfully denied his right to meal and rest periods is barred due to his status as an Independent Contractor, and further to the extent that he affirmatively chose not to take or voluntarily waived meal periods, which were provided, and rest breaks, which were authorized and permitted despite his status as an Independent Contractor.”  (FAA, ¶ 26.) 

Without citing any authority, plaintiff argues, “California law requires there be written notice and an employee sign-off before any meal break can be waived.”  (Demurrer, p. 11.)  That may apply if the employee is not relieved of all duty (see Cal. Code Regs., tit. 8, § 11100, subd. 11(C), but this defense asserts that defendants provided the breaks, but plaintiff chose not to take them—not that defendants failed to relieve him of duty.  “[T]he employer is not obligated to police meal breaks and ensure no work thereafter is performed.  Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay.”  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040–1041.)

Plaintiff only cites authority supporting the demurrer to the 16th affirmative defense, that “Defendants would have made the same decisions with respect to Plaintiff’s claims pursuant to valid business justification due to, in part, the regularly increasing costs of Plaintiff’s work for certain Answering Defendants.”  (FAA, ¶ 16.)  Plaintiff alleges whistleblower retaliation in violation of Labor Code section 1102.5 and argues the same-decision defense only applies to FEHA claims.  (Demurrer, p. 9, citing Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 233-234 (Harris.))  That is incorrect.  Harris applies the same-decision defense to FEHA but does not preclude applying it to other forms of employment discrimination or retaliation.  To the contrary, the Legislature codified the same-decision defense to whistleblower retaliation.  (Lab. Code, § 1102.6 [“the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5”]; Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 716 [section 1102.6 “codifi(ed) the burden on the employer to make out its same-decision defense”].)

Disposition