Judge: Cynthia A Freeland, Case: 37-2023-00034113-CU-WT-NC, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - March 28, 2024

03/29/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Wrongful Termination Demurrer / Motion to Strike 37-2023-00034113-CU-WT-NC AGUILAR LOPEZ VS ZEST ANCHORS LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 11/17/2023

Defendants Zest Anchors, LLC dba Zest Dental Solutions, Raul Nunez, and Mike Gurosko (collectively, 'Defendants')'s demurrer to Plaintiff Raul Aguilar Lopez ('Plaintiff')'s Private Attorney General Act ('PAGA') cause of action is sustained.

The court declines to overrule the demurrer for Defendants' alleged failure to meet and confer before filing the demurrer. See Cal. Code Civ. P. § 430.41(a)(4) ('A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.'). Although Plaintiff disagrees with Defendants' approach to the meet and confer process, there is no dispute that counsel for the parties discussed their positions with regard to the sufficiency of the LWDA Notice allegations. There further is no dispute that counsel have a fundamental disagreement that was not resolved through meet and confer efforts. Consequently, the court concludes it is appropriate to address the substance of the demurrer.

Plaintiff's argument that a demurrer is not the appropriate procedural vehicle to obtain the requested relief is not well taken. Defendants have demurred to Plaintiff's PAGA cause of action on the ground that the court lacks subject matter jurisdiction because Plaintiff's August 11, 2022 PAGA Notice (the 'PAGA Notice') to the California Labor and Workforce Development Agency ('LWDA') was deficient. A lack of subject matter jurisdiction is a proper basis on which to demur to a pleading. See Cal. Code Civ. P. § 430.10(a). Moreover, the court respectfully disagrees with Plaintiff that Defendants instead should have brought a motion to strike portions of the First Amended Complaint (the 'FAC'). Under California law, '[w]here a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike.' Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1281 (citing Triodyne, Inc. v. Sup. Ct. (1966) 240 Cal. App. 2d 536, 542).

In this case, Defendants, in fact, are demurring to an entire cause of action – the twenty-fifth cause of action seeking civil penalties under PAGA – by arguing that the entire cause of action fails for Plaintiff's alleged failure to submit a legally sufficient PAGA Notice to the LWDA.

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, Calendar No.: Event ID:  TENTATIVE RULINGS

3052999 CASE NUMBER: CASE TITLE:  AGUILAR LOPEZ VS ZEST ANCHORS LLC [IMAGED]  37-2023-00034113-CU-WT-NC 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.

The demurrer to Plaintiff's PAGA cause of action is sustained. California Labor Code ('CLC') § 2699.3(a) sets forth the prerequisites an aggrieved employee must satisfy before bringing a civil action alleging a violation of the Labor Code. In relevant part: (1)(A) The aggrieved employee or representative shall give written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts an theories to support the alleged violation.

Cal. Lab. Code § 2699.3(a)(1)(A).

Proper notice under CLC § 2699.3 is a mandatory condition of a PAGA lawsuit. See Williams v. Sup. Ct.

(2017) 3 Cal. 5th 531, 545; Arias v. Sup. Ct. (2009) 46 Cal. 4th 969, 981. The notice requirement 'serves two purposes: it allows the LWDA 'to decide whether to allocate scarce resources to an investigation,' and it allows the employer to submit a response to the LWDA which can inform the agency's decision.' Hutcheson v. Sup. Ct. (2022) 74 Cal. App. 5th 932, 943. At a minimum, the notice must provide 'the LWDA and the employer adequate information about the alleged violations so that each may respond in an informed manner.' Moniz v. Adecco USA, Inc. (2021) 72 Cal. App. 5th 56, 80. This is not a particularly difficult threshold – the plaintiff simply must provide sufficient information to demonstrate that his or her claim(s) is/are not frivolous. See Uribe v. Crown Building Maintenance Co. (2021) 70 Cal. App. 5th 986, 1003-1004. Toward that end, the plaintiff must provide 'something more than bare allegations of a Labor Code violation[.]' See Brown v. Ralphs Grocery Co. (2018) 28 Cal. App. 5th 824, 836. Mere code section references with prose excerpting or rephrasing the statutory language are 'insufficient because they simply paraphrase[] the allegedly violated statutes.' Ibid., at 837. The plaintiff instead is 'required to put forward sufficient facts to support their claims of labor violations.' Uribe, 70 Cal. App. 5th at 1004.

In this case, the court is unable to rule on the propriety of PAGA Notice. As set forth above, in ruling on the demurrer the court's analysis is limited to the FAC, exhibits attached to the FAC and incorporated by reference, and matters properly subject to judicial notice. Here, Plaintiff has not attached a copy of the PAGA Notice as an exhibit to the FAC or incorporated its contents by reference. Each side instead has asked that the court take judicial notice of the PAGA Notice. See ROA Nos. 21, 26. The court can take judicial notice of the PAGA Notice's existence and the fact that Plaintiff sent the PAGA Notice to the LWDA; however, the court cannot take judicial notice of the truth of the statements contained within those documents. See, e.g., People v. Woodell (1998) 17 Cal. 4th 448, 455. Moreover, the court cannot take judicial notice of the contents of documents 'prepared by private parties [that are] merely on file with state agencies.' People v. Thacker (1985) 175 Cal. App. 3d 594, 598-599. Regardless, judicial notice is improper where, as here, the parties dispute the fact that occasioned the request for judicial notice, namely whether the PAGA Notice gives sufficient notice of Defendants' alleged PAGA violation(s). See Cruz v. County of Los Angeles (1985) 173 Cal. App. 3d 1131, 1134.

Absent a legal avenue for reviewing the PAGA Notice, the court is left with reviewing the FAC's sufficiency, which sufficiency Defendants have called into question. See Defendants' Demurrer, p. 8, ll.

8-9 ('Plaintiff's FAC allegation that it provided the LWDA proper notice is not sufficient and does not have to be accepted as true because it is a legal allegation, not a factual allegation.'). The court agrees with Defendants that the FAC, as presently pled, fails to sufficiently allege that Plaintiff satisfied CLC § 2699.3(a)'s notice requirements. As set forth above, Plaintiff did not attach the PAGA Notice to the FAC.

Moreover, the FAC pleads in conclusory terms, without supporting factual allegations, that Plaintiff complied with the notice requirements. See FAC, ¶¶ 48, 51, 60, 231. Consequently, the court must sustain the demurrer.

Accordingly, the court sustains the demurrer to Plaintiff's PAGA cause of action with leave to amend to address the foregoing deficiencies, if possible. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, Calendar No.: Event ID:  TENTATIVE RULINGS

3052999 CASE NUMBER: CASE TITLE:  AGUILAR LOPEZ VS ZEST ANCHORS LLC [IMAGED]  37-2023-00034113-CU-WT-NC 967. To the extent Defendants contend that leave to amend should not be granted because the one-year statute of limitations has expired (see Brown, 28 Cal. App. 5th at 839), such argument is not well taken as it fails to recognize that such further amendment, as it relates to the LWDA Notice at issue, would relate back to the filing of the initial Complaint on August 9, 2023, which Complaint was filed within one year of Plaintiff filing the PAGA Notice with the LWDA on August 11, 2022.

In light of the foregoing, the court sustains the demurrer with leave to amend. Plaintiff shall file and serve a second amended complaint, if he chooses to file such a pleading, within ten (10) days of this hearing.

See Cal. R. Ct. 3.1320(g).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, March 29, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of March 29, 2024. 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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