Judge: Frank M. Tavelman, Case: 22BBCV00450, Date: 2022-09-09 Tentative Ruling

Case Number: 22BBCV00450    Hearing Date: September 9, 2022    Dept: A

Demurrer

ALLEGATIONS:

Plaintiff Elizabeth Amador ("Plaintiff") filed suit against Defendant M S International, Inc., an Indiana Corporation ("Defendant") on June 21, 2022, alleging a single cause of action for violation of PAGA.

HISTORY:

The Court received the Demurrer filed by Defendant on August 17, 2022; the opposition filed by Plaintiff on August 26, 2022; and the reply filed by Defendant on August 31, 2022.

On September 2, 2022, the Court granted Defendant’s Motion to Compel Arbitration as to Plaintiff’s individual PAGA claims only.

RELIEF REQUESTED:

Defendant demurs to the Complaint.

ANALYSIS:

I.          LEGAL STANDARD

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (CCP § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to CCP §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

II.        MEET AND CONFER

CCP § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. (CCP § 430.41.) The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (CCP §§ 430.41(a)(4) & 435.5(a)(4).)

The Court finds that meet and confer requirements have been satisfied to code. (Decl. Young-Agriesti.)

III.       MERITS

Defendant makes arguments as to both the individual and non-individual PAGA claims; however, the Court previously granted Defendant’s motion to compel arbitration as to the individual PAGA claims.  The non-individual claims are still at issue; the Court will not address any arguments concerning the individual PAGA claim, as that has been sent to mandated arbitration.

Defendant cites the recent Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 for the contention that a plaintiff lacks standing to pursue a non-individual or representative PAGA claim when the individual claim has been referred to arbitration.  Plaintiff filed an opposition but does not provide any substantive argument in response.

Previously, the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 held that (1) PAGA actions could not be split into individual and non-individual claims through an arbitration agreement, and that (2) an arbitration agreement could not waive PAGA claims wholesale. The United States Supreme Court in Viking reversed this holding in Iskanian and held that a PAGA actions could split when an arbitration agreement applies to an individual claim, did not reverse Iskanian’s holding that an arbitration agreement could not waive a non-individual or representative PAGA action wholesale. (Viking, supra, 142 S.Ct. at p. 1925.) The Supreme Court in Viking reasoned further that “PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding. Under PAGA’s standing requirement, a plaintiff can maintain non-individual PAGA claims in an action only by virtue of also maintaining an individual claim in that action. [Citation omitted.]” (Ibid.) The same circumstance exists here: as Plaintiff’s individual PAGA claims have been separated and compelled to arbitration, Plaintiff has no individual claim left in the action, nor standing under Viking to maintain the non-individual claims.

IV.       CONCLUSION

The Court thus sustains the demurrer in its entirety without leave to amend.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant M S International, Inc.’s Demurrer came on regularly for hearing on September 9, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND.

IT IS SO ORDERED.

DATE:  September 9, 2022                           _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles