Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

This case arises from claims of discrimination, harassment, and retaliation.  Plaintiff Aurice Veloso was employed by Defendant Leo David as a caregiver for his wife.  Plaintiff alleges that David asked her to sleep with him in exchange for improved working conditions and other financial incentives including a house, car and tuition.  David also allegedly made offensive remarks about Plaintiff’s menstrual period, personal hygiene and sexual activity.  Plaintiff further alleges that despite her working around the clock, she was not compensated for overtime or provided rest and meal breaks.  David then terminated Plaintiff when she opposed his alleged discrimination and harassment.   

Defendant paid Plaintiff’s wages through various companies he owned, including XCVI, LLC (“XCVI”), Construction for Less, Inc. (CFL), AMLease Corporation, and Tri-Net HR II, Inc..  Plaintiff is suing these corporate defendants as “joint employers.”  Plaintiff alleges these corporate defendants ratified and adopted the conduct of David.   

The operative complaint alleges claims for: (1) violations of Fair Employment and Housing Act; (2) wrongful termination in violation of public policy; (3) violation of Labor Code Section 1102.5; (4) violation of California Wage & Hour Laws and Regulations; (5) assault and battery; (6) breach of oral and implied contract; (7) false promise/intentional misrepresentation; and (8) violation of Business and Professions Code Section 17200.     

This hearing is on XCVI and CFL’s (“Moving Defendants’”) demurrer and motion to strike.  Moving Defendants demur (1) to all causes of action on the ground they are not vicariously liable for the conduct of David, (2) to the employment related claims (first to eight causes of action) because they are not Plaintiff’s employer, (3) to the FEHA claims (first to fifth causes of action) on the ground Plaintiff has not adequately plead she exhausted her administrative remedies, and (4) to the seventh to twelfth causes of action on the ground they are unintelligible and Plaintiff fails to plead essential elements of the claims.  Moving Defendants also move to strike Plaintiff’s prayer for specific performance on the grounds that there are no contracts to be enforced; the alleged “promises” by David are not enforceable; legal remedies are sufficient, and Plaintiff has not pled a mutuality of remedies.  

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

A demurrer to a complaint may be general or special.  A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)  A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).)  The term uncertain includes the issue of whether the pleading is “ambiguous and unintelligible.”  (Id.)  A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.¿ (Code Civ. Proc., § 436, subd. (a).)¿ The court may also strike 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. (Code Civ. Proc., § 436, subd. (b).)¿ The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.¿ (Code Civ. Proc., § 436.)¿ The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)¿ 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

EVIDENTIARY OBJECTIONS 

The Court strikes the Declarations of Aurice Veloso, Sharlie Guta and Aaron Zelter, as the Court cannot consider declarations which do not contain judicially noticeable facts in ruling on a demurrer or a motion to strike.  (Donabedian v. Mercury Ins. Co.¿(2004) 116 Cal.App.4th 968, 994 (“In reviewing the ruling on a demurrer, a court¿cannot consider the substance of¿declarations, matter not subject to judicial notice, or documents judicially noticed but not accepted for the truth of their contents.”).)  The Court¿cannot consider extrinsic evidence on a demurrer or motion to strike.  (Ion Equipment Corp. v. Nelson¿(1980) 110 Cal. App. 3d 868, 881.)  A¿demurrer or motion to¿strike “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court¿(1984) 153 Cal.App.3d 902, 905.)¿ 

REQUESTS FOR JUDICIAL NOTICE 

Under § 452(d), a court may take¿judicial notice of “[r]ecords of (1) any court of this case or (2) any¿court of record¿of the United States or of any state of the United States.” (Evid. Code § 452(d).)  Pursuant to § 453, the court must take judicial notice of any matter specified in¿§452¿if a party requests it and: “(a)¿Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b)¿Furnishes the court with sufficient information to enable it to take judicial notice of the matter.”  (Evid. Code § 453.)  

Moving Defendants request judicial notice of a cross-complaint filed by Plaintiff in a related action brought by David against Plaintiff, in Case No. 22SMCV01934.  Moving Defendants rely on the cross-complaint to argue that in that separate action, Plaintiff alleged she was terminated because she blocked a number in David’s iPhone, which purportedly contradicts Plaintiff’s claim here that she was terminated in retaliation for reporting FEHA violations.  The Court grants Moving Defendants’ request for judicial notice (“RJN”) pursuant to Cal. Evid. Code §§ 452(d) and 453.   

Plaintiff also requests judicial notice of David’s complaint against her in Case No. 22SMCV01934.  The Court grants the request pursuant to Cal. Evid. Code §¿§¿452(d) and 453, for the same reasons set forth above.      

DISCUSSION 

FEHA Claims (First to Fifth Causes of Action) 

Moving Defendants argue that Plaintiff’s FEHA claims fail because the complaint fails to adequately allege that Plaintiff exhausted her administrative remedies.  The Court agrees. 

To pursue a FEHA claim, an employee must first exhaust administrative remedies by filing a complaint with the Department of Fair Employment and Housing (“DFEH”) within “three years from the date upon which the unlawful practice … occurred” and obtaining a notice of the right to sue from DFEH.  (See Cal. Gov’t Code § 12960(e)(5), Blum v. Superior Court (2006) 141 Cal.App.4th 418, 422; Medix Ambulance Service Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116.)  An employee must then file suit “within one year after the filing of a complaint” with the DFEH.  (Cal. Gov’t Code §12965(a)(5)(C).)  The scope of the DFEH complaint is important as it “defines the scope of the subsequent civil action.”  (Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir. 2001).)  “Allegations in a complaint that fall outside the scope of the administrative charge are barred for failure to exhaust.”  (Okoli v. Lockheed¿(1995) 36 Cal.App.4th 1607, 1617.)   

It is Plaintiff’s burden to plead timely exhaustion of administrative remedies.  (Kim v. Konad USA Distribution Inc. (2014) 226 Cal.App.4th 1336, 1345.)  “In order to withstand a demurrer for failure to allege exhaustion of available administrative remedies, the plaintiff must allege facts showing that [s]he did exhaust administrative remedies or facts showing that [s]he was not required to do so.”  (Tejon Real Estate LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 156.)  Here, Plaintiff has failed to adequately allege facts showing that she exhausted her administrative remedies.  She makes a single conclusory allegation that she “filed [a] timely complaint against Defendants with …. [the DFEH] in which she alleged unlawful FEHA violations and requested and received her right to sue letter.”  (Compl. ¶2.)  She fails to allege when she made the complaint so there is no way of knowing whether she filed the administrative charge within three years of the unlawful practice or whether her complaint was filed within the one year limitations period.  She also fails to allege that the administrative charge included each of the FEHA violations asserted here.  

In opposition, Plaintiff submits a May 9, 2023 letter from the Civil Rights Department.  (Ex. A to Abrolat Decl.)  Plaintiff does not request judicial notice of the letter, and accordingly, the Court cannot properly consider it on a demurrer.  Setting that aside, the letter is not a right to sue letter, although it references an “original Notice of Case Closure and Right to Sue”.  Also, the letter attaches an amended complaint (amended on May 9, 2023) which alleges wrongdoing “on or about September 14, 2022,” which covers only a fraction of the allegations in this case.  Also, both the letter and amended complaint are dated May 9, 2023 which post-dates the filing of the Complaint on November 3, 2022.  There is no indication when the original DFEH complaint was filed or that it covered the allegations in the Complaint in this action.         

In sum, Plaintiff has not adequately alleged she exhausted her administrative remedies prior to the filing of her Complaint, and accordingly, the Court SUSTAINS the demurrer to the first to fifth causes of action with leave to amend. 

Employment Related Claims (First to Eighth Causes of Action) 

Moving Defendants argue that Plaintiff’s employment related claims against them are defective because Plaintiff has not adequately alleged they were her “joint employers.”  The Court agrees. 

In evaluating whether a defendant is an “employer”, courts consider whether the defendant (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, (4) maintained employment records, and (5) whether the workers’ service is an integral part of the alleged employer’s business.  (Bureerong v. Uvawas¿(CD. Cal. 1996) 922 F. Supp. 1450, 1467-1468.)   

Plaintiff does not plead any facts showing any of these factors are met.  She has not alleged that Moving Defendants had the independent authority to hire and fire her, supervised and controlled her work schedule, determined her pay, maintained her employment records or that her services were an integral part of Moving Defendants’ business.  To the contrary, she alleges these determinations were made by David.  (Compl. ¶¶ 3, 16, 17, 20, 21, 27, 29, 30.)  And she further alleges she did not work for XCVI.  (Compl. ¶¶ 17, 29.) 

In opposition, Plaintiff submits her declaration attesting that the CEOs of the Moving Defendants played significant roles impacting the terms and conditions of her employment.  (Veloso Decl. ¶¶3-40.)  The Court cannot consider the declaration in ruling on a demurrer.     

Accordingly, the Court SUSTAINS the demurrer to the first to eighth causes of action with leave to amend.     

Respondeat Superior (All Causes of Action) 

Moving Defendants also argue that all of the claims against them rest on the doctrine of respondeat superior or vicarious liability, for which there are no supporting facts in the Complaint.  The Court agrees. 

The doctrine of respondeat superior imposes vicarious liability on an employer for the torts of an employee acting within the scope of his or her employment.  (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 160.)   

The Complaint does not allege facts showing that the Moving Defendants are liable under respondent superior.  The Complaint does not allege that David was an employee of Moving Defendants.  There are also no allegations that David acted within the scope of his “employment”.   

The Opposition does not address any of the foregoing deficiencies.  Instead, Plaintiff argues that alter ego liability applies here because David and Moving Defendants “were not operating as separate entities, that the companies were following David’s orders and acting in concert with him, including facilitating tortious conduct and breach of contract violations resulting in [Plaintiff’s] detriment and damages.”  (Opp. at 8:6-10).  Plaintiff does not cite to any allegations in the Complaint supporting a claim of alter ego.  To the extent Plaintiff relies on her declaration to support such a claim, the Court cannot properly consider the declaration on a demurrer.           

Accordingly, the Court SUSTAINS the demurrer as to all causes of action against Moving Defendants.  Given this ruling, the Court does not consider other arguments raised by Moving Defendants as additional grounds to sustain a demurrer.  The Court also denies the motion to strike as moot. 

CONCLUSION 

Based on the foregoing, the Court SUSTAINS the Moving Defendants’ demurrer with 20 days’ leave to amend and DENIES as moot the motion to strike.   

 

IT IS SO ORDERED. 

 

DATED: May 23, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court