Judge: Cynthia A Freeland, Case: 37-2022-00020415-CU-PO-NC, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - November 16, 2023

11/17/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00020415-CU-PO-NC BADDOUR VS MIYAKE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 06/27/2023

Plaintiff/Cross-Defendant Caroline Baddour ('Cross-Defendant')'s demurrer to Defendant/Cross-Complainant Hector Martinez dba Flamingo Landscaping ('Cross-Complainant')'s Cross-Complaint is overruled.

A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994. '[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.' Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal. App. 4th 1125, 1135. Such demurrers are strictly construed since ambiguities can be clarified during discovery. See Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 616.

The demurrer to the second cause of action for failure to pay wages due and the third cause of action for failure pay minimum wage is overruled. As to the second cause of action, California Labor Code ('CLC') § 203(a) provides that: If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.6, 201.8, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. An employee who secretes or absents themselves to avoid payment to them, or who refuses to receive the payment when fully tendered to them, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which the employee so avoids payment.

Cal. Lab. Code § 203(a). 'A willful failure to pay wages within the meaning of Labor Code Section 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due.' Naranjo v. Spectrum Security Services, Inc. (2023) 88 Cal. App. 5th 937, 944.

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2990694 CASE NUMBER: CASE TITLE:  BADDOUR VS MIYAKE [IMAGED]  37-2022-00020415-CU-PO-NC As to the third cause of action, CLC § 1194(a) provides that: Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit.

Cal. Lab. Code § 1194(a). CLC § 1194(a) thus accords an employee a statutory right to recover unpaid wages from an employer who fails to pay the minimum wage. See Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal. App. 4th 765, 778.

The court finds that the Cross-Complaint states facts sufficient to constitute causes of action for failure to pay wages due and failure to pay minimum wage. The Cross-Complaint alleges that Defendants/Cross-Defendants Cherry Miyake and Rex Miyake (collectively, the 'Miyakes') own the real property located at 6479 Kite Place, Carlsbad, CA 92011 (the 'Property'). See Cross-Complaint, ¶ 2.

Cross-Defendant has been residing at the Property since 2019. Ibid., ¶ 3. Around that time, Cross-Complainant was employed to maintain the landscape at the Property. Ibid., ¶ 9. Cross-Defendant became familiar with Cross-Complainant's gardening routine, which occurred two times per month on Saturdays. Ibid. In 2020, Cross-Defendant laid stones along the edge of the grass in the Property's backyard where the lawn ended and the cement patio/walkway began. Cross-Complainant did not instruct Cross-Defendant to do this. Ibid., ¶ 10. Cross-Defendant alleges that on or about June 3, 2020, she 'was walking on the grass in her backyard and her foot became entangled in the 'crab grass' and it caused her to fall, striking her face on the nearby gas meter' which resulted in serious injuries. Ibid., ¶ 11. Cross-Complainant contends that Cross-Defendant failed to take appropriate care when walking around the Property. Ibid. As to the second and third causes of action, the Cross-Complaint alleges that on May 30, 2020, Cross-Defendant hired Cross-Complainant to perform certain services for which Cross-Complainant was not compensated. Ibid., ¶¶ 17, 20.

The foregoing is sufficient to survive the pleading stage. Toward that end, the court respectfully disagrees with Cross-Defendant that the Cross-Complaint fails to sufficiently allege the existence of an employer/employee relationship between Cross-Complainant and Cross-Defendant. 'Labor Code section 1194 does not define the employment relationship nor does it specify who may be liable for unpaid wages. Specific employers and employees become subject to the minimum wage requirements only through and under the terms of wage orders promulgated by the IWC, the agency formerly authorized to regulate working conditions in California.' Flowers v. Los Angeles County Metropolitan Transportation Authority (2015) 243 Cal. App. 4th 66, 74. Industrial Wage Order ('IWC') No. 15-001 provides the definition of an employer, which 'means any person as defined in Section 18 of the Labor Code, who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.' IWC No. 15-001. In this case, the Cross-Complaint, when read as a whole with its parts in their proper contexts, sufficiently alleges an employer/employee relationship between Cross-Complainant and Cross-Defendant. The Cross-Complaint alleges that Cross-Defendant hired Cross-Complainant to perform certain services at the Property. Cross-Defendant had control over Cross-Complainant's hours to the extent that Cross-Defendant failed to pay Cross-Complainant for the work he performed and/or failed to pay Cross-Complainant the 2020 minimum wage of $12.00 per hour. To the extent that Cross-Defendant argues that the Miyakes, rather than Cross-Defendant, are Cross-Complainant's employer, such contention is not well taken as it constitutes a factual dispute that cannot be resolved on demurrer. See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113-114 ('A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.'). The same is true as to the factual issue of whether Cross-Complainant qualified as an employee or independent contractor.

See, e.g., Angelotti v. The Walt Disney Co. (2011) 192 Cal. App. 4th 1394, 1404 (whether an individual is an employee or independent contractor is generally a question of fact). Moreover, there is a factual dispute as to whether Cross-Complainant meets the definition of an employee under CLC § 3351.

Cross-Defendant contends that Cross-Complainant is excluded from that definition by operation of CLC Calendar No.: Event ID:  TENTATIVE RULINGS

2990694 CASE NUMBER: CASE TITLE:  BADDOUR VS MIYAKE [IMAGED]  37-2022-00020415-CU-PO-NC § 3352(a)(8) because Cross-Complainant contracted to work for less than 52 hours. However, Cross-Defendant assumes that Cross-Complainant's work for Cross-Defendant was limited to one day, i.e., May 30, 2020, which is contradicted by other allegations in the Cross-Complaint that Cross-Complainant performed services at the Property two Saturdays of every month since 2019. To the extent any uncertainty exists, such ambiguity(s) can be clarified through discovery.

Finally, Cross-Defendant's argument that the second and third causes of action are uncertain because the Cross-Complaint fails to sufficiently allege Cross-Complainant's damages/the sums owed for the services allegedly rendered, the court again must respectfully disagree. The Cross-Complaint sufficiently alleges that Cross-Complainant worked, at a minimum, one day's worth of work at the then-existing minimum wage of $12.00 per hour. The exact number of days and/or hours worked can be clarified through discovery.

Accordingly, the court overrules the demurrer to the second and third causes of action.

In light of the foregoing, the court overrules the demurrer. Cross-Defendant shall file an answer or otherwise plead to the Cross-Complaint within ten (10) days of this hearing. See Cal. R. Ct. 3.1320(j).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, November 17, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of November 17, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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