Judge: Armen Tamzarian, Case: 23STCV18886, Date: 2024-03-04 Tentative Ruling

Case Number: 23STCV18886    Hearing Date: March 8, 2024    Dept: 52

Cross-Defendants Wiliams & Ribb LLP and WNR CPA’s, Inc.’s Demurrer to Cross-Complaint

Cross-defendants Wiliams & Ribb LLP and WNR CPA’s, Inc. demur to all six causes of action alleged by cross-complainant Deanna J. Wiebe. 

First Two Causes of Action Under Fair Employment and Housing Act

            Wiebe fails to allege sufficient facts for her first cause of action for gender discrimination (Gov. Code, § 12940(a)) or her second cause of action for failure to prevent gender discrimination (id., subd. (k)).  The cross-complaint does not allege she exhausted her administrative remedies.  “Before pursuing a civil action asserting violation of the FEHA, an employee must file an administrative complaint with the” Civil Rights Department “and obtain a right-to-sue letter from the agency.”  (Foroudi v. Aerospace Corporation (2020) 57 Cal.App.5th 992, 1002.)  “ ‘Exhaustion of these procedures is mandatory; an employee may not proceed in court with a FEHA claim without first obtaining a right-to-sue letter.’ ”  (Id. at pp. 1002-1003.)   

            The cross-complaint does not allege Wiebe filed an administrative complaint with the Civil Rights Department.  Wiebe’s opposition does not respond to this argument. 

Remaining Causes of Action

Wiebe alleges sufficient facts for her third through sixth causes of action for: (3) misclassification, (4) failure to pay wages, (5) waiting time penalties, and (6) violation of ERISA section 502(a)(1)(B).  Cross-defendants’ demurrer never states or addresses any of the elements of these causes of action.  It makes two arguments that apply to these claims.

First, cross-defendants contend Wiebe was not their employee because she alleges she was a partner in the accounting firms.  (Demurrer, pp. 13-15.)  But they do not identify the legal standard for determining whether she was an employee under the relevant statutes.  Whether someone is an employee requires analyzing “the intended scope and purposes of the particular statutory provision or provisions at issue.”  (Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 934.)  The demurrer makes no argument based on any of the tests for determining when someone is an employee.  Cross-defendants’ argument also relies on factual assertions extrinsic to the cross-complaint, such as: “the sums collected and distributed by the firm were paid to Ms. Wiebe’s professional corporation, not to her individually.”

Second, cross-defendants argue “Wiebe is estopped from bringing any cause of action based on the status of her relationship with respect to the accountants.”  (Demurrer, p. 15.)  The demurrer, however, fails to identify the elements of estoppel or apply them to the cross-complaint’s allegations.  This argument also again relies on factual assertions not included in the cross-complaint.  (Demurrer, p. 15 [they paid sums “to Ms. Wiebe’s professional corporation”].) 

Disposition

Cross-defendants Wiliams & Ribb LLP and WNR CPA’s, Inc.’s demurrers to the cross-complaint’s first and second causes of action are sustained with 20 days’ leave to amend.  Cross-defendants’ demurrers to the third, fourth, fifth, and sixth causes of action are overruled.