Judge Bruce G. Iwasaki, Case 22STCV16105 2023-01-18 Tentative Ruling

Moving Parties: Specially Appearing TJ Sierra RMG, Inc. dba Tenno Sushi; A Mi Japanese Restaurant, Inc.; Crazy Tokyo Sushi Group, Inc.; 321 JC, Inc.

Tentative Ruling: Defendant’s motion to strike is granted in part as to punitive damages. The motion to quash service is denied.

This is an action for wrongful termination and Labor Code violations. Jake Choi (Plaintiff or Choi) sued TJ Sierra RMG, Inc. dba Tenno Sushi, A Mi Japanese Restaurant, Inc., Crazy Tokyo Sushi Group, Inc., 321 JC, Inc., Kopan Ramen – LA, and Sushi Moon Japanese Restaurant[1] for unlawful business practices, unpaid overtime wages, failure to provide meal/rest periods, failure to pay split shift premium, declaratory relief, and wrongful termination.

Defendants TJ Sierra RMG, Inc., A Mi Japanese Restaurant, Inc., Crazy Tokyo Sushi Group, Inc., and 321 JC, Inc. specially appeared and moved to strike the Complaint and to quash service of the summons. Defendants contend that the parties executed a settlement agreement that bars all of Plaintiff’s claims and that the claims against A Mi are time-barred. Defendants also argue that service was ineffective because they received the summons and complaint via mail and were not personally served.

Plaintiff opposes the motion to strike and to quash service of the summons. He argues that the motion is untimely, based on inadmissible evidence, and the claims are within the statutory time frame for unlawful business practices. He also produces the proof of service for each Defendant. Defendants reiterate its moving arguments in reply and submit an additional declaration of Byung Ha Chang.

Plaintiff’s request for judicial notice of the proofs of service of the summons and complaint is granted. (Evid. Code, § 452, subd. (d).) The parties did not appear to substantively discuss this matter prior to the motion to strike being filed, but a determination that the “meet and confer process was insufficient shall not be grounds to grant or deny the motion.” (Code Civ. Proc., § 435.5, subd. (a)(4).)

“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440; accord Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160 [“It was incumbent upon plaintiff, after the filing of defendant’s motion to quash, to present evidence discharging her burden to establish the requisites of valid service on defendant”].) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper,” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at pp. 1441-1442.) The presumption applies where the return is furnished by a registered process server. (Evid. Code, § 647.)

A corporation may be served by substitute service. Code of Civil Procedure section 415.20, subdivision (a) states “In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.”

The proof of service of summons indicate that Defendants were properly served.

Defendants argue that service of summons should be quashed as they “were never personally served because the documents were left at the door step.” (Motion, p. 5:19-20.)

Since Defendants challenge service of process, Plaintiff carries the burden of proving valid service. (See Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868; BBA Aviation PLC v. Superior Court (2010) 190 Cal.App.4th 421, 428-29.)

Here, Plaintiff produces the proofs of service for Defendants TJ Sierra RMG, Inc., A Mi Japanese Restaurant, Inc., Crazy Tokyo Sushi Group, Inc., and 321 JC, Inc. (See generally, Request for Judicial Notice, Exs. 1-4.) Each of these Proofs of Service was served by David Hernandez of A Plus Legal Service, a registered California process server. Thus, the rebuttable presumption under Evidence Code section 647 applies.

All proofs of service indicate that the process server attempted service at least three different times on different dates. Eventually, on July 25, 2022, the process server left the papers with “Kathy Wu,” the person apparently in charge at the location. The Secretary of State indicates that the mailing and street address for all the entities are identical: 4405 Fruitland Avenue, Vernon, CA 90058, which was where the papers were served.

In their reply, Defendants submit a declaration by Byung Ha Chang with new evidentiary assertions. The declaration is improper because it raises new issues to which Plaintiff has not had an opportunity to respond. (Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333.) Thus, the Court may disregard it.

Even if the Court considered the declaration, it is unpersuasive. Chang avers that he was at the office at the times alleged to have been served, does not know who Kathy Wu is as she is not an employee of Defendants, the office space is shared with other entities, and his belief that the wrong office was served. (Chang Reply Decl., ¶ 4.) He concedes that he received mailing of the Complaint. (Id. at ¶ 6.)

There is no requirement in the statute that the person who was served be an employee of the defendant. Rather, it only requires that a copy of the summons and complaint be left “during usual office hours in his or her office . . . with the person who is apparently in charge thereof.” (Code Civ. Proc., § 415.20, subd. (a).) The proofs of service indicate that the Defendants were all served at the 4405 Fruitland Avenue address, which Chang concedes is the correct address. (Chang Reply Decl., ¶ 3.) The summonses were served during “usual office hours,” between 11:05 and 11:40 AM on Monday, July 25, 2022. (Request for Judicial Notice, Exs. 1-6.) Defendants concede that there are multiple businesses in that same location; therefore, the reasonable method of service was to leave it with the person “apparently in charge.” Defendants’ implication that the person in charge must be its employee is without merit.

The court finds that Defendants have not rebutted the presumption of the facts stated in the proof of service. Accordingly, the motion to quash service is denied.

“The court may, upon a motion made pursuant to Section 435, 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. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”¿ (Code Civ. Proc., § 436.) “Immaterial” or “irrelevant” matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subds. (b)(1)-(3).)

A motion to strike must be filed and served “within the allowed time to respond to a pleading.” Code Civ. Proc., § 435, subd. (b)(1).) Plaintiff contends that the motion to strike is late because Defendants were only granted a short extension (until September 6, 2022) to file their responsive pleadings and this motion was filed on October 12.

While this is untimely, the Court nevertheless has discretion to consider the motion on the merits. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 749-750.) Moreover, Plaintiff filed a substantive objection and does not contend that he suffered any prejudice.

Defendants improperly rely on extrinsic evidence to support their motion to strike.

Defendants rely on a “Severance Agreement and General Release” as a basis to strike the entire Complaint. This is improper, irrespective of any foundation issues disputed by the parties. Grounds for a motion to strike “shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a); see also See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 7:169 [“defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence showing that the allegations are ‘false’ or ‘sham.’ Such challenges lie only if these defects appear on the face of the complaint, or from matters judicially noticeable”].) Defendants did not request judicial notice of the settlement document, nor does there appear to be any grounds for which judicial notice would be appropriate. Thus, the Court declines to strike any portion of the Complaint on that basis.

Defendants also argue that the statute of limitations has run as to Plaintiff’s claims against A Mi Japanese Restaurant. They point to page 6:5 of the Complaint that alleges A Mi owed Plaintiff for unpaid wages between March 2017 and June 30, 2017. Defendants contend that the statute of limitations for violations of Labor Code sections 201 and 202 are three years under Code of Civil Procedure section 338, subdivision (a).

First, this section of the Complaint is in the first cause of action for unlawful business practices under Business and Professions Code section 17200. The statute of limitations under those claims are four years. (Bus. & Prof. Code, § 17208.)

“[S]ection 17200 ‘borrows’ violations of other laws and treats them as unlawful practices independently actionable under section 17200 et seq.” (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 839.) However, the statute of limitations for the underlying violation is superseded by the four-year statute of limitations of section 17208. (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178-179 [“Any action on any UCL cause of action is subject to the four-year period of limitations created by that section”].) Thus, it is no defense to a Section 17200 claim that the statute of limitations has run on the underlying claim.

Secondly, even assuming a three-year statute of limitations on the Labor Code violations, this period has not passed. The claims for unpaid wages did not accrue until Plaintiff was terminated or resigned. (Lab. Code, §§ 201, subd. (a); 201, subd. (a); Pauley v. CF Entertainment (9th Cir. 2019) 773 Fed.Appx. 357, 361.) As Defendants do not move to strike any other portions of the Complaint for statute of limitations grounds, the Court denies the motion that the claims are time-barred.

Finally, Defendants seek to strike the punitive damages allegations in Paragraph 49. The complaint need only allege ultimate facts supporting oppression, fraud, or malice. (See Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055; Clauson v. Superior Court, supra, 67 Cal.App.4th at p. 1255. Thus, “a general allegation of [wrongful] intent is sufficient to support a claim for exemplary damages. (Unruh v. Truck Ins. Exch. (1972) 7 Cal.3d 616, 632, superseded by statute on other grounds as stated in Hendy v. Losse (1991) 54 Cal.3d 723, 732, n. 6.) In addition, when seeking punitive damages against a corporation, the plaintiff must allege “advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice … on the part of an officer, director, or managing agent of the corporation” of the wrongful conduct. (Civ. Code, § 3294.)

Plaintiff does not challenge the motion on this basis. Paragraph 49 is under the ninth cause of action for wrongful termination against Defendant Crazy Rock n Sushi.[2] It alleges that Defendant acted with malice, oppression and willful disregard “for Plaintiff’s financial condition and his legal rights.” This is conclusory and it is unclear what this means. Plaintiff does not allege who terminated him and how/why they disregarded his financial condition and legal rights. The motion to strike is granted as to Paragraph 49 with leave to amend.

The motion to quash service of process is denied. The motion to strike is granted solely as to paragraph 49 with twenty days leave to amend, but is otherwise denied.

[1] Paragraph 9 of the Complaint also refers to Defendant “Young Jun Lee.” This Defendant is not listed in the case caption nor otherwise described in the Complaint.

[2] Plaintiff only names “Crazy Tokyo Sushi Group, Inc.” in his case caption and describes that entity twice in Paragraphs 4 and 6 of the Complaint. The Court will assume these entities are the same.

Department 58