Judge: Gail Killefer, Case: 23STCV12925, Date: 2023-11-16 Tentative Ruling
Case Number: 23STCV12925 Hearing Date: November 16, 2023 Dept: 37
HEARING DATE: Thursday, November 16, 2023
CASE NUMBER: 23STCV12925
CASE NAME: Hyo Jen Lee v. Seamless Land, Inc., et al.
MOVING PARTY: Defendants Il Ok Le, Paul Lee,
and Annabelle Lee.
OPPOSING PARTY: Plaintiff Hyo Jean Lee
TRIAL DATE: Not Set
PROOF
OF SERVICE: OK
PROCEEDING: Demurrer to Complaint
OPPOSITION: 2 November 2023
REPLY: 8 November
2023
TENTATIVE:
The demurrer to
the first, third, and fourth causes of action is sustained with leave to amend
as to Defendant Il Ok Lee only. The demurrer to the second, fifth, ninth, and
eleventh causes of action is overruled. The demurrer to the sixth, seventh, and
tenth cause of action is sustained with leave to amend. Plaintiff is granted 30
days leave to amend. The court sets an
OSC Re: Amended Complaint for January 11, 2024, at 8:30 a.m. Defendants to give notice.
Background
On
June 6, 2023, Hyo Jean Lee (“Plaintiff”) filed a Complaint against Seamless
Land, Inc.; Il Ok Lee; Paul Lee; Annabelle Lee, and Does 1 to 50.
The
operative Complaint alleges eleven causes of action: (1) Sexual Harassment –
FEHA; (2) Failure to Prevent Sexual Harassment – FEHA; (3) Battery; (4)
Intentional Infliction Of Emotional Distress; (5) Negligent Infliction of
Emotional Distress; (6) Failure to Provide Accurate Itemized Wage Statements
(Lab. Code §§ 226 and 1174); (7) Failure to Pay Overtime Wages (Lab. Code §§
510 and 1194); (8) Failure to Provide Rest Periods (Lab. Code § 226.7); (9)
Wrongful Termination in Violation of Public Policy (Lab. Code §1102.5); (10)
Failure to Pay Sick Time (Lab. Code § 246); and (11) Unfair Business Practices
Business & Professions Code §17200 et seq.
On
August 15, 2023, Defendants Il Ok Lee, Paul Lee, and Anabelle Lee (collectively
the “Lee Defendants”) filed a demurrer to Plaintiff’s Complaint. Plaintiff
filed opposing papers on November 2, 2023. The Lee Defendants filed a reply on
November 8, 2023.
I. Legal
Standard
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 tests the sufficiency of
a pleading, and 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.) In evaluating a demurrer, the court
accepts the complainant’s properly pled facts as true and ignores contentions,
deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67
Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover,
the court does not consider whether a plaintiff will be able to prove the
allegations or the possible difficulty in making such proof. (Fisher v. San
Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.)
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 complainant to show the Court that a
pleading can be amended successfully. (Id.)
II. Discussion
The
Lee Defendants demur to all the causes of action alleged in Plaintiff’s
Complaint except for the eighth cause of action.
A. 1st
Cause of Action - Sexual Harassment – FEHA
To
establish a claim for harassment in violation of FEHA, a plaintiff must prove
that: (1) the plaintiff is a member of a protected class; (2) the plaintiff was
subjected to unwelcome harassment; (3) the harassment was based on plaintiff’s
membership in the protected class; (4) the harassment unreasonably interfered
with the plaintiff’s work performance by creating an intimidating, hostile, or
offensive work environment; and (5) the defendant is liable for the harassment.
(Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)
The
Lee Defendants demur to the first cause of action on the ground that the claim
is improperly asserted against Defendant Il Ok Lee. Defendants assert that the
first cause of action makes no specific allegations that Defendant Il Ok Lee
engaged in harassing conduct. The court
agrees that the first cause of action is improperly alleged against Defendant
Il Ok Lee because without specific facts as to what harassing conduct Il Ok Lee
engaged in, Defendant Il Ok Lee cannot properly respond to the allegation.
The
demurrer as to the first cause of action is sustained with leave to amend as to
Defendant Il Ok Lee only.
B. Second
Cause of Action – Failure to Prevent Harassment
The FEHA makes it unlawful employment practice “[f]or an
employer ... to fail to take all reasonable steps necessary to prevent
discrimination and harassment from occurring.” (Gov. Code § 12940(k).)
The Lee Defendants contend that the second cause of action
cannot be asserted against them because they are not an “employer” under the
FEHA. (Gov. Code, § 12926(d).)
Even if the Lee Defendants were supervisors, they can only be
held liable for their own harassing conduct, and not that of their subordinates.
(See Fiol v. Doellstedt¿(1996) 50 Cal.App.4th 1318, 1326 [“a
supervisory employee owes no duty to his or her subordinates to prevent sexual
harassment in the workplace. That is a duty owed only by the employer.”].)
The Complaint alleges that the Lee Defendants are the employees
of Defendant Seamless, not the employer of Plaintiff. (Compl. ¶¶ 5, 6, 7.)
However, Plaintiff also alleges that Lee Defendants are
agents of Defendant Seamless. (Compl. ¶¶ 10, 11, 35, 87, 88.) The Complaint
alleges that Defendant Il Ok Lee is the owner, and Defendants Paul Lee and
Annabelle Lee are the managers and agents of Defendant Seamless. (Compl. ¶ 87.)
In Raines
v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268 (Raines), the California Supreme
Court held that in reading Government Code § 12926(d) “[t]he most natural reading of this language
is that a ‘person acting as an agent of an employer’
is itself an employer
for purposes of the FEHA.” (Id. at
p. 279.) Therefore, because the Lee Defendants are alleged to have been acting
as the agent of Seamless, the Lee Defendants can be held liable as the employer
of Plaintiff.
Indeed,
this interpretation accounts for and reasonably construes the word “includes”
(§ 12926, subd. (d)), a word that, in this context, can only be intended to
broaden the scope of the term “employer.”
In addition, because “partnerships, associations, corporations, [and] limited
liability companies” come within the FEHA's definition of the word “ ‘[p]erson’ ” (§
12925, subd. (d)), it follows that a business-entity agent of a FEHA plaintiff's employer
is, for purposes of the FEHA, an employer of the plaintiff.
(Id. at p. 279.) Furthermore,
Government Code § 1295 defines “Person” as “one or more individuals.”
Therefore, because Plaintiff has alleged that the Lee Defendants acted as
agents of the employer Seamless, they can be held liable for failing to prevent
harassment.
The demurrer to the second cause of action is overruled.
C. Third and
Fourth Causes of Action – Battery and Intentional Infliction of Emotional
Distress
The Lee Defendants’ demurrer to the third and fourth causes
of action contends that the Complaint fails to allege specific allegations as
to how Defendant Il Ok Lee committed a battery or caused emotional distress to
Plaintiff. The court agrees that without such information, Defendant Il Ok Lee
is unable to adequately Answer Plaintiff’s complaint.
The demurrer to the third and fourth causes of action is
sustained as to Defendant Il Ok Lee only, with leave to amend.
D. 5th
Cause of Action: Negligent Infliction of Emotional Distress (NIED)
California
courts have repeatedly recognized that Negligent Infliction of Emotional
Distress (NIED) is not an independent tort, but the tort of negligence such
that the traditional elements of duty, breach of duty, causation, and damages
apply. (See, e.g., Spates v. Dameron Hospital Association (2003) 114
Cal.App.4th 208, 213; Marlene F. v. Affiliated Psychiatric Medical Clinic,
Inc. (1989) 48 Cal.3d 583, 588.)
The
Lee Defendants allege that Plaintiff’s NIED claim is improperly pled because
Plaintiff seeks to recover damages due to Defendants' “negligent conduct in
breach of a statutory duty to take all reasonable steps necessary to prevent
discrimination and harassment of their employees.” (Compl. ¶ 2.) As the court
finds that Plaintiff has sufficiently alleged that the Lee Defendants acted as
agents of the employer, Plaintiff may allege a claim of NIED on the basis that
they failed to prevent discrimination and harassment.
The
demurrer to the fifth cause of action is overruled.
E. 6th,
7th, and 10th Causes of Action - Failure to Provide Accurate Itemized Wage
Statements (Lab. Code §§ 226 and 1174), Failure to Pay Overtime Wages (Lab.
Code §§ 510 and 1194); and Failure to Pay Sick Time (Lab. Code § 246.)
Defendants
assert that under Labor Code § 558.1, Plaintiff can assert a private right of
action against “other persons acting on behalf of an employer” for certain
Labor Code provisions. (Lab. Code, § 558.1(a)-(b).) The specific Labor Code
violations enumerated in Labor Code § 558.1 are sections 203, 226, 226.7, 1193.6, 1194, and 2802.
Here, Plaintiff alleges Labor Code violations that are not specifically
enumerated in § 558.1
such as Labor Code §§ 246, 510, and 1174. Accordingly,
Plaintiff fails to show they can bring a private right of action against the
Lee Defendants for Labor Code violations not specifically enumerated in Labor
Code § 558.1.
The
demurrer to the sixth, seventh, and tenth causes of action is sustained with
leave to amend.
F. Ninth Cause of Action - Wrongful
Termination in Violation of Public Policy (Lab. Code §1102.5)
“The
elements of a claim for wrongful discharge in violation of public policy are
(1) an employer-employee relationship, (2) the employer terminated the
plaintiff’s employment, (3) the termination was substantially motivated by a
violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau
v. Allen (2014) 229 Cal.App.4th 144, 154.)
The
Lee Defendants’ demurrer to the ninth cause of action contends that they are
not the employer of Plaintiff and cannot be held liable for Plaintiff’s
termination. As explained above, pursuant to Raines, the Lee Defendants
can be held liable as agents of the employer.
The demurrer to the
ninth cause of action is overruled.
G. 11th Cause of Action - Unfair Business
Practices Business and Professions Code § 17200 et seq.
Business and Professions
Code § 17200 (“UCL”) prohibits “any unlawful, unfair or fraudulent business act
or practice.” (Bus. & Prof. Code, § 17200; see Clark v.
Superior Court (2010) 50 Cal.4th 605, 610.) To plead this statutory
claim, the pleadings must state with reasonable particularity the facts
supporting the statutory elements of the violation. (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 619.) In
a private unfair competition law action, the remedies are “‘generally limited
to injunctive relief and restitution.’” (Kasky v. Nike,
Inc. (2002) 27 Cal.4th 939, 950, 119; see Bus. & Prof.
Code, § 17203.)
The
Complaint alleges that Defendants engaged in unfair and unlawful practices due
to the:
“failure to pay overtime wages and wages
due upon termination. Moreover, Cal. Labor Code §226(b) requires Defendants to
itemize in wage statements all deductions from payment of wages and to
accurately report total hours worked by Plaintiff. Defendants have knowingly
and intentionally failed to comply with Cal. Labor Code §226(b) on each and
every wage statement that should reflect all of the hours worked by Plaintiff
and should have been provided to Plaintiff. Cal. Labor Code §1174 requires
Defendants to maintain and preserve, in a centralized location, among other
items, records showing the names and addresses of all employees employed,
payroll records showing the hours worked daily by and the wages paid to its
employees. Defendants have knowingly and intentionally failed to comply with
Cal. Labor Code §1174. Defendants’, and each of them, failure to comply with
Cal. Labor Code §1174 is unlawful pursuant to Cal. Labor Code §1175. By their
failure to accurately report Plaintiff’s hourly and overtime wages earned for
the hours worked, Defendants knowingly and intentionally failed to comply with
Cal. Labor Code §1174. Defendants’, and each of them, failure to comply with
Cal. Labor Code §1174 is unlawful pursuant to Cal. Labor Code §1175.”
(Comp.
¶ 100.)
The
Lee Defendants contend Plaintiff is entitled only to restitution under the UCL,
not damages. Moreover, Defendants assert that pursuant to Cortez v. Purolator Air Filtration
Products Co. (2000) 23 Cal.4th 163, Plaintiff is only entitled to
restitution for unpaid wages that must be disgorged from the employer,
Seamless, and not the Lee Defendants.
As
explained above, since Plaintiff alleges that Defendants acted as an agent of
the employer, they can be held liable pursuant to Raines. Accordingly,
Plaintiff may be able to recover restitution for unpaid wages. (Compl. ¶ 105.)
The
demurrer to the eleventh cause of action is overruled.
Conclusion
The Lee Defendants’ demurrer to the first, third, and fourth
causes of action is sustained with leave to amend as to Defendant Il Ok Lee
only.
The demurrer to the second, fifth, ninth, and eleventh
causes of action is overruled.
The
demurrer to the sixth, seventh, and tenth cause of action is sustained with
leave to amend.
Plaintiff
is granted 30 days leave to amend. The court sets an OSC Re: Amended Complaint
for
January
11, 2024, at 8:30 a.m.
Defendants
to give notice.