Judge: Carolyn M. Caietti, Case: 37-2023-00022858-CU-OE-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Other employment Demurrer / Motion to Strike 37-2023-00022858-CU-OE-CTL JOHNSON VS R Q CONSTRUCTION LLC [EFILE] CAUSAL DOCUMENT/DATE FILED: Demurrer, 10/31/2023

Defendant RQ Construction, LLC's Demurrer to the First Amended Class and Representative Complaint is OVERRULED.

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Class Allegations The FACC sufficiently alleges class allegations and the prerequisites to maintaining a viable class action. 'It is often premature for a trial court to make determinations pertaining to class suitability on demurrer. Rather, 'all that is normally required for a complaint to survive demurrers to the propriety of class litigation is that the complaint allege facts that tend to show: (1) an ascertainable class of plaintiffs, and (2) questions of law and fact which are common to the class.'' (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 487 (reversing trial court's order sustaining demurrer to class action allegations); see also, Gutierrez v. California Commerce Club, Inc. (2010) 187 Cal.App.4th 969, 975-76 (reversing order dismissing action as to putative members of the alleged class and representative and class allegations and explaining if there is a reasonable possibility the plaintiffs can plead a prima facie community of interest among class members, the preferred course is to defer decision on the propriety of the class action until an evidentiary hearing has been held on the appropriateness of class litigation; Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1329 [demurrer to class action complaint improper where the plaintiff 'alleges institutional practices ... that affected all of the members of the potential class in the same manner, and it appears from the complaint that all liability issues can be determined on a class-wide basis'].) The FACC sufficiently alleges an ascertainable class of 'All persons who worked for any Defendant in California as an hourly-paid or non-exempt employee at any time during the period beginning four years and 178 days before the filing of the initial complaint in this action and ending when notice to the Class is sent.' (FAC, at ¶ 25; see also, Prince, supra.) As framed by the FACC, the case is about Defendant's Calendar No.: Event ID:  TENTATIVE RULINGS

3051707  41 CASE NUMBER: CASE TITLE:  JOHNSON VS R Q CONSTRUCTION LLC [EFILE]  37-2023-00022858-CU-OE-CTL alleged policies and practices of not paying Plaintiff and its employees as required under the law. (See, FACC, at ¶ 16.) The FACC sufficiently alleges a community of interest among class members. (FACC, at ¶ 28.) There are predominant questions of law and fact. (FACC, at ¶ 29.) Similarly, Plaintiff sufficiently alleged typicality and adequacy. (FACC, at ¶ 28(b)-(c).) The FACC also alleges Plaintiff will fairly and adequately protect the interests of the Class members. (Id., at ¶ 28(b).) These allegations are sufficient.

First and Second Causes of Action The first cause of action states sufficient facts to constitute a failure to pay minimum and straight time wages. (E.g., FACC, at ¶¶ 34; Lab. Code, § 204.) The second cause of action states sufficient facts to constitute a failure to pay overtime wages. (E.g., FACC, at ¶¶ 43-48.) Defendant does not provide any legal authority Plaintiff is required to identify which California Industrial Welfare Commission wage order applies. Thus, the demurrer to the first and second causes of action are OVERRULED.

Third and Fourth Causes of Action The third cause of action states sufficient facts to constitute a failure to provide meal periods. (FACC, at ¶ 53.) The fourth cause of action states sufficient facts to constitute a failure to authorize and permit rest periods. (FACC, at ¶¶ 57.) As Defendant acknowledges, Plaintiff must plead she was not provided with a required meal period; and the FACC does that. The case law cited by Defendant does not concern meal period and rest break violations. Thus, the demurrer to the third and fourth causes of action are OVERRULED.

Fifth Cause of Action The fifth cause of action states sufficient facts to constitute a failure to pay wages of discharged employees. (E.g., FACC, at ¶ 61; Lab. Code, § 203.) Defendant does not provide nay legal authority requiring Plaintiff to allege when she was discharged or quit. Notwithstanding, the FACC, alleges she worked for Defendant until March 2023. Thus, the demurrer to the fifth cause of action is OVERRULED.

Sixth Cause of Action The sixth cause of action states sufficient facts to constitute a failure to provide and maintain accurate and compliant wage records. (E.g., FACC, at ¶ 68; Lab. Code, § 226.) The California cases cited by Defendant do not concern the sufficiency of pleading allegations. Thus, the demurrer to the sixth cause of action is OVERRULED.

Seventh Cause of Action The seventh cause of action states sufficient facts to constitute a failure to indemnity employees for expenditures. (E.g., FACC, at ¶¶ 75-76; Lab. Code, § 2802.) Defendant's argument that Plaintiff did not sufficiently plead she incurred expenses actually due to the performance of her duties is refuted by paragraph 75, which alleges she and the Class were required to incur substantial necessary expenditures and losses in direct consequence of the discharge of their duties or at Defendant's direction. Thus, the demurrer to the seventh cause of action is OVERRULED.

Eighth Cause of Action The eighth cause of action states sufficient facts to constitute a violation of Business and Professions Code section 17200. 'By prescribing 'any unlawful' business practice, the UCL borrows violations of other laws and treats them as unlawful practices that the UCL makes independently actionable.

(Citation.) Virtually any statute or regulation (federal or state) can serve as a predicate for a UCL unlawful practice cause of action.' (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1265.) As discussed above, the FACC sufficiently alleges several violations of the California Labor Code. (E.g., FACC, at ¶¶ 81-94.) Thus, the demurrer to the eighth cause of action is Calendar No.: Event ID:  TENTATIVE RULINGS

3051707  41 CASE NUMBER: CASE TITLE:  JOHNSON VS R Q CONSTRUCTION LLC [EFILE]  37-2023-00022858-CU-OE-CTL OVERRULED.

Ninth Cause of Action The ninth cause of action states sufficient facts to constitute a cause of action under the PAGA.

Defendant takes issue with Plaintiff's PAGA Letter to the LWDA. But Defendant did not request judicial notice of it, so the Court is precluded from assessing its sufficiency. Rather, the FACC alleges Plaintiff: (i) was employed by Defendant (FACC, at ¶ 8); (ii) Plaintiff exhausted her administrative remedies by giving written notice to the LWDA and Defendant (id., at ¶ 99); and (iii) outlines the violations Defendant committed against Plaintiff and the aggrieved employees. Thus, the demurrer to the ninth cause of action is OVERRULED.

Concluding Orders For these reasons, the demurrer is OVERRULED in its entirety.

Defendant is ordered to: (i) file and serve an answer by May 10, 2024; and (ii) serve written notice of this ruling on all appearing parties by April 30, 2024, if the tentative ruling is confirmed without modification.

Plaintiff is reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of motion briefing.

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