Judge Daniel M. Crowley, Case Number: 23STCV30717, Date: 2024-08-20 Tentative Ruling

Defendants RSR Rim Repair, Inc. (“RSR”) and Cadova Aroldo Linton (“Linton”) (together “Defendants”) demur to and move to strike portions of plaintiff Jose A. Gaytan Bolanos (“Plaintiff”)’s first amended complaint (“FAC”).

This is an employment case. Plaintiff filed his initial complaint against Defendants on December 15, 2023 and his operative FAC on January 26, 2024. The FAC asserts causes of action for five (5) wage and hour violations, unfair business practices, and five (5) causes of action under California’s Fair Employment and Housing Act (“FEHA”).

As alleged in the FAC and accepted as true for purposes of a demurrer or motion to strike: Plaintiff worked for RSR as a Painter beginning in 2012, through filing of the FAC. (FAC, ¶¶ 12-13.) During this period he generally worked fourteen (14) hours per day, six (6) days per week. (Id., ¶ 12.) At the outset of his employment he was paid $10.00 hourly; his pay has since risen to $21.50 hourly. (Ibid.)

Plaintiff injured his lower back at work on November 11, 2023. (Id., ¶ 14.) He opened a worker’s compensation case after his injury, and in retaliation RSR, through Linton, cut his hours. (Id., ¶ 16.) On January 15, 2024, he filed a retaliation complaint with the Department of Fair Employment and Housing (“DFEH”).

Plaintiff asserts causes of action for failure to pay overtime, failure to provide meal or rest breaks, failure to reimburse business expenses, and waiting time penalties, arising from the conditions of his employment beginning in 2012. He also asserts causes of action for disability discrimination, hostile work environment, failure to prevent discrimination, retaliation, and harassment based on RSR and Linton’s handling of his workplace injury.

Defendants demurred and moved to strike on May 31, 2024. Plaintiff filed his oppositions on August 7, 2024. Defendants filed no reply.

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer for sufficiency tests whether the complaint alleges facts sufficient to constitute a cause of action. (Cal. Code Civ. Proc. § 430.10; Young v. Gannon (2002) 97 Cal.App.4th 209, 220.)

When considering a demurrer, a court reads the allegations stated in the challenged pleading liberally and in context, and “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Put differently: for purposes of demurrer, the court treats all facts alleged – but only the facts alleged – in the complaint as true. (Picton v. Anderson Union High School District (1996) 50 Cal.App.4th 726, 732.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

“The court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], 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.” (Id. § 436 (a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (Id., § 431.10.) The court may also “[s]trike 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.” (Id. § 436 (b).) Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See Code Civ. Proc. §§ 435, 436, and 437.)

A demurrer and motion to strike both require the moving party to meet and confer with its opponent prior to filing. (See Code Civ. Proc., §§ 430.41, 435.5.) Counsel here sent a “meet and confer letter”. (Chemerinski Decl., ¶ 4 and Ex. A.) This does not strictly satisfy the terms of the Code, which require meeting and conference by phone or in person. Notwithstanding the minor lapse, the Court considers the motion on the merits for the sake of efficiency.

Defendants argue all the causes of action in Plaintiff’s FAC fail because none alleges facts sufficient to constitute a cause of action and all are fatally uncertain. (See Demurrer, 3:1-5:11 [Notice of Motion].)

Defendants apply the same argument to all of Plaintiff’s wage and hour claims: that he has failed to allege who, what, where, when, etc. the violations were committed. Defendant cites no law suggesting the Court should impose this heightened pleading standard. The Court applies an ordinary fact-pleading standard: Plaintiff must put Defendants on sufficient notice of his claims that they may prepare a defense. (See Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719-721.) He has done so.

Plaintiff alleges he worked full-time for Defendant throughout a specified period. He also alleges Defendants committed the relevant violations while he worked for them. The Court and Defendants can easily infer that Plaintiff alleges Defendants had illegal policies in place throughout his employment. If this broad allegation is false, Defendants can disprove it at a later stage.

Defendant, RSR’s demurrer to Plaintiffs’ 1^st through 5^th causes of action is overruled.

The UCL “addresses ‘unfair competition,’ which ‘… include[s] any unlawful, unfair or fraudulent business act or practice … .” (Bus. & Prof. Code, § 17200.) An “unlawful” business practice borrows violations from other laws; virtually any law can supply a basis for a UCL claim where the claim’s other elements are satisfied. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143; Candelore v. Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1155.) Employment law is no exception; an employer's unlawful employment practices, such as the failure to pay wages, may form the basis for a UCL claim. (Sullivan v. Oracle Corp. (2011) 51 Cal.4th 1191, 1206; Hodge v. Superior Court (2006) 145 Cal.App.4th 278, 283.)

Defendants recite the law regarding unfair business practices claims, but they do not apply the law to Plaintiff’s FAC at all. (See Demurrer, 10:7-12:2 [arguing only “[t]he FAC contains no allegations” and “there are no allegations” to support a UCL claim].)

Plaintiff has alleged his wage and hour causes of action, so he states a claim for unfair business practices. Defendants have not shown otherwise.

Plaintiff does not state claims under the FEHA. Each of his FEHA claims requires him to plead that (1) he was a member of a protected class or engaged in some protected activity; (2) he suffered some adverse action, whether discrimination, harassment, or retaliation; and (3) his membership in his class substantially motivated the adverse action. (E.g. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 [discrimination]; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 [retaliation]; Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377 [harassment].) Plaintiff alleges he is a member of a protected class (individuals suffering from disabilities), and he alleges he suffered adverse action (a reduction in hours) but does not allege any facts that indicate Defendants were motivated by animus; he only asserts conclusions.

Defendants’ demurrer to Plaintiff’s 7^th through 11^th causes of action is sustained.

All of Plaintiff’s claims depend on his employer/employee relationship with defendant Linton, or – in the case of his UCL claim – that Linton personally engaged in the business practices in question. An individual defendant’s liability for the actions of her employer depends on the nature of her relationship with the company and her involvement with the facts underlying a dispute. (See Lab. Code, § 558.1 [wage and hour claims only against officer, director, etc.]; Gov. Code, § 12926(d) [“employer” includes “any person acting as an agent of an employer”]; see also e.g. Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173-1174 [“nonemployer individuals” are not personally liable for retaliation]; People v. Toomey (1984) 157 Cal.App.3d 1, 14 [individual liability for unfair business practices “must be predicated on ... personal participation”].)

Here, Plaintiff has pled no facts from which Defendants or the Court can infer Linton’s specific relationship to RSR or to the conduct underlying Plaintiff’s causes of action. For that reason, Linton is unable to prepare a defense based on the FAC as currently pled.

Linton’s demurrer to the First Amended Complaint is sustained in its entirety.

As long as a party shows there is “a reasonable possibility any defect identified by the defendant can be cured by amendment,” the trial court should grant leave to amend the pleadings when sustaining a demurrer. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.) However, “[t]he burden is on the plaintiff to demonstrate the manner in which the complaint can be amended. (Ross v. Creel Printing & Publishing Company (2002) 100 Cal.App.4th 736, 748.)

“To carry its burden, plaintiff must show the manner it can amend its complaint and demonstrate how that amendment will change the legal effect of the pleading.” (Community Assisting Recovery, Inc. v. Aegis Security Insurance Co. (2001) 92 Cal. App. 4th 886, 895, citation omitted.) “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal. 3d 335, 349, quotations omitted.)

Plaintiff argues he can amend the complaint to describe Linton’s personal involvement in the dispute (Opposition, 9:4, 6, 10-11, 13) and “to add more facts detailing the discrimination, [etc.], including but not limited to additional events which transpired after the FAC was filed” (id., 9:15-17).

If Plaintiff is able to supplement his offer of proof at the hearing, the Court will grant leave to amend.

The demurrer having been sustained with leave to amend, Defendants’ motion to strike is moot. In the interest of avoiding future motion practice, the Court notes that it does not find the opposition papers persuasive. Plaintiff is advised to supplement his allegations supporting malice, etc. upon amendment.

Defendant RSR’s demurrer to the 1^st through the 6^th Causes of Action is overruled. Defendant RSR’s demurrer to the 7^th through the 11^th Causes of Action is sustained.

Absent an appropriate offer of proof at the hearing of this matter, the demurrers are sustained without leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court