Judge: Daniel S. Murphy, Case: 22STCV12613, Date: 2022-08-29 Tentative Ruling

Case Number: 22STCV12613    Hearing Date: August 29, 2022    Dept: 32

BACKGROUND

            On April 14, 2022, Plaintiff Anthony Durney initiated this action for wage violations against Defendant Aecom Technical Services, Inc. The complaint alleges causes of action for: (1) unpaid overtime; (2) unpaid subsistence pay; (3) unpaid travel pay; (4) inaccurate wage statements; (5) waiting time penalties; and (6) unfair competition.

            On July 5, 2022, Defendant filed the instant demurrer to the complaint on the grounds that (i) the causes of action are barred by res judicata due to a prior settlement on the same claims, and (ii) the allegations fail to state facts to constitute a cause of action.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) 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, 147 Cal.App.4th at p. 747.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court finds that Defendant has satisfied the meet and confer requirement. (See Cliffe Decl. ¶¶ 8-9.)

JUDICIAL NOTICE

            Defendant’s request for judicial notice is granted. (Evid. Code, § 452, 453.)

DISCUSSION

I. Res Judicata (First, Fourth, Fifth, and Sixth Causes of Action)

            “Res judicata or claim preclusion precludes the relitigation of a cause of action that previously was adjudicated in another proceeding between the same parties or parties in privity with them. Res judicata applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding. Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated.” (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202, internal citations omitted.)

“Where all of the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer.” (Shine v. Williams-Sonoma, Inc. (2018) 23 Cal.App.5th 1070, 1076-77.) “[A] judgment pursuant to a class settlement can bar [subsequent] claims based on the allegations underlying the claims in the settled class action. This is true even though the precluded claim was not presented, and could not have been presented, in the class action itself.” (Id. at p. 1078.)

Here, Defendant argues that Plaintiff’s first, fourth, fifth, and sixth causes of action are barred by res judicata due to a settlement in the federal case Jerry Singletary, et al. v. Aecom, et al. (Case No. 4:18-cv-05187-SMJ). (Def.’s RJN, Ex. 7.) The Singletary action arose from the same facts and wage violations as this action. (See Def.’s RJN, Ex. 3.) Defendant argues that the privity requirement for res judicata is satisfied because Plaintiff was a class member in the Singletary action. (Dem. 7:21-8:4.) Defendant argues that Plaintiff failed to opt out of the class or object to the settlement. (Dem. 9:1-4.)

However, it is a factual issue whether Plaintiff was properly notified of the requirement to opt out and whether Plaintiff actually opted in or out. The language of the class action notice, as quoted by Defendant, states that “[i]f you choose to do nothing, you will not receive your share of the settlement nor will you release AECOM or Amentum Services, Inc. for your potential unpaid overtime claims. If you worked in a covered state, as describe below, you will release AECOM or Amentum Services, Inc. for the time worked in those states.” (Dem. 5:4-9; Def.’s RJN, Ex. 8.) The notice further states that “[y]ou must complete and return the attached Claim and Consent to Join Settlement Form to receive your portion of the settlement.” (Def.’s RJN, Ex. 8.) This creates ambiguity as to whether a potential class member like Plaintiff was required to affirmatively opt in or out.

This dispute cannot be resolved on a demurrer. It is not apparent from the face of the complaint that Plaintiff received the class action notice, acknowledged the requirement to opt out, and then failed to opt out and consented to participate in the settlement. Nor can the Court take judicial notice of such facts. Therefore, the demurrer is OVERRULED as to the first, fourth, fifth, and sixth causes of action.  

II. Travel and Subsistence Pay (Second and Third Causes of Action)

            Plaintiff alleges that he is entitled to travel and subsistence pay because he “worked in San Francisco, a significant distance from both his home and from the AECOM office nearest his residence in San Bernardino County.” (Compl. ¶ 15.)

Defendant argues that Plaintiff has not pled entitlement to travel and subsistence pay because the prevailing wage order at the time of Plaintiff’s employment provided that an employee is only entitled to such pay “[w]hen an Employee is working at a location so distant from the Individual Employer’s regularly established office as to preclude the Employee from returning to his or her regular place of residence at the end of the working day.” (Def.’s RJN, Ex. 9.) The order defines the “employer’s regularly established office” as the “place to which the Employee has been last dispatched.” (Ibid.) Defendant argues that because Plaintiff was last dispatched to San Francisco, San Francisco is the location of the “employer’s regularly established office” by which Plaintiff’s commute is to be measured. (Reply 5:20-23.) Defendant argues that Plaintiff did not have to work far from San Francisco because Plaintiff was working in San Francisco. (Ibid.)

However, a demurrer is not the place to resolve the factual issue of where Defendant’s office was, where Plaintiff was dispatched, or whether Plaintiff was precluded from returning to his residence. Plaintiff’s allegations must be assumed true. Plaintiff has alleged that the AECOM office was in San Bernardino, that he resided in San Bernardino, and that he worked for AECOM in San Francisco without being compensated for the travel or subsistence. (Compl. ¶¶ 15, 32, 33.) This is sufficient at the pleading stage. Therefore, the demurrer is OVERRULED as to the second and third causes of action.

CONCLUSION

            Defendant’s demurrer is OVERRULED.