Judge Daniel M. Crowley, Case Number: 24STCV07775, Date: 2024-08-22 Tentative Ruling

Defendant Second Street Corp.’s Demurrer to Plaintiff’s Complaint is Sustained as to the Fourth Cause of Action. Plaintiff is granted twenty days leave to amend the Fourth Cause of Action.

Defendant Second Street Corp. (“Second St.”) (“Defendant”) demurrers to the Complaint on the grounds that it does not state sufficient constitute its causes of action. (Notice of Motion p. 1-2; Code of Civ. Proc. § 430.10(e).)

On March 27, 2024, Plaintiff Lukas Dylan McIntire (“Plaintiff”) filed the operative complaint against fifteen causes of action against Second St., Daniel Doe, and Robert Doe (collectively “Defendants”) for 1) Wrongful Termination in Violation of Public Policy and Gov’t Code §12940, et seq.; 2) Retaliation in violation of Gov’t Code §12940, et seq.; 3) Retaliation in violation of Gov’t Code §1102.5, et seq. 4) Sexual Harassment in violation of Gov’t Code §12940(j); 5) Harassment based on Sex in violation Gov’t Code §12940(j); 6) Failure to Prevent Harassment form Occurring in violation of Gov’t Code §12940(k); 7) Hostile Work Environment in violation of Gov’t Code §12940; 8) Failure to Provide Meal Periods; 9) Failure to Provide Rest Period; 10) Waiting Time Penalties; 11) Failure to Pay Wages Due Upon Termination; 12) Failure to Pay Uniform Maintenance Allowance; 13) Failure to Allow Inspection of Employment Records; 14) Negligent Hiring, Supervision and Retention; and 15) Unfair Competition.

On June 28, 2024, Defendant filed the instant Demurrer to the Complaint. Plaintiff filed his opposition o the Demurrer on August 9, 2024. Defendant files in reply.

Defendant’s request for the Court to take Judicial Notice of Barton v. Niss-Cali Holdings, San Mateo Superior Court Case No. 16-CIV-02168 is Granted under Evid. Code § 452(c) as it is a court document of the San Mateo County Superior Court.

Defendant’s request for the Court to take judicial notice of Palma v. Pegasus Shipping, Los Angeles Superior Court Case No. BC669656 is granted under Evid. Code § 452(d) as it is a court document.

Defendant's requests No. 3-4 are denied because the Court did not rely on these documents.

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)

When ruling on a demurrer, the Court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)

As an initial matter, while Defendant demurrers to the entire complaint, Defendant’s memorandum of point argues explicitly that the fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth causes of action fail to state a claim. The Court, therefore, overrules the demurrer to the entire complaint and addresses the argued causes of action on the merits.

Defendant contends that the Fourth Cause of Action fails to state a cause of action because it does not allege facts in support of Daniel Doe engaging in any sexual acts or sexual communications with Plaintiff.

“The elements [of a sexual harassment cause of action] are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondent superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)

The complaint does sufficiently plead that Plaintiff was subject to unwelcome sexual harassment because it alleges Robert Doe would show Plaintiff porn on Robert’s phone and be very rude toward Plaintiff. (Compl. ¶ 14.) Plaintiff alleges that the ongoing harassment fostered a hostile work environment and placed him under considerable stress. (Id. ¶18.) Plaintiff additionally alleges that Robert Doe physically abused Plaintiff and that on more than one occasion, Robert Doe kicked Plaintiff in the leg and screamed at him. (Id. ¶19.) The complaint further alleges that the respondent was superior because the plaintiff allegedly reported Robert Doe’s actions to Daniel Doe in or about October 2022, but it was never taken seriously, and nothing was done to curb the problem. (Id. ¶ 16.) However, the complaint does not allege that Plaintiff is a part of a protected group or that the harassment was based on his sex. Based on this, the cause of action, as pleaded, cannot survive on demurrer. Therefore, the Court sustains the demurrer with leave to amend.

Defendant next contends that its demurrer to the Fifth and Seventh Causes of Action should be sustained because it duplicates the Fourth Cause of Action. In opposition, Plaintiff argues that this is not proper grounds for demurrer, citing Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-890. The Court agrees. While some appellate courts have sustained demurrers on the basis a cause of action is duplicative, the Sixth Appellate District has squarely rejected the proposition that a demurrer may be sustained on the ground of redundancy. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890.) The court stated that redundancy is not an enumerated ground for a demurrer under Code of Civil Procedure section 430.10. (Id., at 890.) The court further stated that in the past, the proper vehicle for such a challenge would have been a motion to strike redundant matter from a pleading pursuant to former Code of Civil Procedure section 435. (Id.) But now, Code of Civil Procedure section 436, subdivision (a) does not explicitly empower a court to strike out redundant matter from a pleading. The court surmised that the “elimination of the reference to redundancy may have rested on the irreproachable rationale that it is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness.” (Id.) “This is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Id.) The Court agrees with the analysis in Blickman and will not sustain a demurrer on the ground of redundancy.

Defendant contends that the wage-related claims are subject to immediate dismissal as Cal. Labor Code 558.1 does not create a private right of action citing Barton v. Niss-Cali Holdings. However, the Court disagrees as Labor Code § 558.1 does allow a private right of action to allow employees to hold individuals liable for wage violations. (Arias v. Superior Court, (2009) 46 Cal.4th 969); see also Seviour-Iloff v. LaPaille, (2022) 80 Cal.App.5th 427.) Therefore, the Court overrules the demurrer regarding these causes of action.

Defendant Second Street Corp.’s Demurrer to Plaintiff’s Complaint is Sustained as to the Fourth Cause of Action. Plaintiff is granted twenty days leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court