Judge Gary I. Micon, Case Number: 23CHCV01616, Date: 2025-02-03 Tentative Ruling

RULING: Demurrer is sustained, in part, for the fifth cause of action, with leave to amend; sustained, in part, for the sixth cause of action, without leave to amend; and overruled, in part, for the first, second, third, fourth, seventh, eighth, and ninth causes of action.

Plaintiff Daniel Zewdu (Plaintiff) filed this wrongful termination suit against defendant Security Consulting Group, Inc. (Defendant) on June 2, 2023. Plaintiff filed his First Amended Complaint (FAC) on October 31, 2024 alleging nine (9) causes of action: (1) Failure to Pay for All Hours Worked and Overtime Compensation; (2) Rest Break Violation; (3) Meal Break Violation; (4) Pay Stubs Violation; (5) Waiting Time Penalties under Labor Code § 203; (6) Failure to Provide Written Notice of Paid Sick Leave; (7) Penalty for Failure to Keep Employee Time Records under Labor Code § 226; (8) Failure to Reimburse employee for Required Expenses; and (9) Violation of Business and Professions Code § 17200 et seq.

Plaintiff alleges that he worked as a security guard for Defendant from March 2018 through December 2020. (FAC, ¶ 4.) Plaintiff was a non-exempt employee who regularly worked over eight hours per shift, sometimes working as long as 12 hours. (FAC, ¶¶ 5-6.) Plaintiff alleges that throughout his employment, Defendant required Plaintiff to work overtime and prevented Plaintiff from taking meal and rest breaks. (FAC, ¶¶ 6-7.) Further, Defendant failed to pay Plaintiff for all the hours he worked, including overtime, and failed to provide Plaintiff with accurate wage statements. (FAC, ¶¶ 15, 33.) Finally, Defendant failed to pay Plaintiff all remaining wages due within 72 hours of Plaintiff resigning and more than 30 days after wages were due. (FAC, ¶¶ 40-41.)

Defendant filed a demurrer to the entire FAC on December 12, 2024. Plaintiff filed an opposition on January 22, 2025. Defendant replied on January 27, 2025.

Before filing a demurrer, the parties must meet and confer “in person, by telephone, or by video conference.” (Code Civ. Proc., § 430.41, subd. (a).) The moving party must file and serve a meet and confer declaration stating either: (1) the means by which the parties met and conferred, that the parties did not reach an agreement resolving the issues raised in the demurrer; or (2) that the party who filed the pleading subject to the demurrer failed to respond to the meet and confer request or failed to meet and confer in good faith. (Code Civ. Proc., §§ 430.41, subd. (a)(3).)

Defendant’s counsel states that on November 25, 2024, the parties agreed to extend the time for Defendant to respond to the FAC to December 11, 2024.[1] (Declaration of Ryan A. Gonzales, ¶ 6, Exh. A.) That same day, defense counsel sent a meet and confer letter to Plaintiff’s counsel identifying issues with the FAC, to which Plaintiff’s counsel responded the FAC sufficiently pleads its causes of action. (Gonzales Dec., ¶¶ 7-8, Exhs. B, C.)

As a general matter, a¿party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including¿that¿“the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e), (f)). The grounds for demurring must be apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law[.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

First Cause of Action: Failure to Pay for All Hours Worked and Overtime Compensation

Defendant demurs to the First Cause of Action for failure to state facts sufficient to constitute a cause of action and for being uncertain.

Defendant argues that Plaintiff’s conclusory allegations lack the specific factual support including the actual or estimated number of unpaid hours and overtime hours, Plaintiff’s hourly wage, and the amount of overtime wages owed. Plaintiff alleges only that Plaintiff worked over eight hours per shift, on some occasions worked twelve hours per shift, and did not receive full compensation for these hours.

Plaintiff opposes arguing that less specificity is allowed when the defendant possesses the full information concerning the facts in controversy. Defendant has access to all Plaintiff’s payroll records and timecards.

To establish a claim for “failure to pay for all hours worked and overtime compensation,” the complaint must plead that: (1) plaintiff performed work for defendant; (2) plaintiff worked overtime hours; (3) plaintiff knew or should have known that plaintiff had worked overtime hours; (4) plaintiff was not paid or was paid less than the overtime rate; and (5) the amount of overtime owed. (CACI No. 2702; Lab. Code, §§ 510, 1194.) A complaint “parroting the language” of a statute is insufficient to state a cause under the statute. (Hawkins v. TACA International Airlines, S.A. (2014) 223 Cal.App.4th 466, 478.) Allegations that a worked over hours during a regular workday or over forty (40) hours during a regular forty-hour workweek are sufficient. (Landers v. Quality Communications, Inc. (9th Cir. 2014) 771 F.3d 638, 644.)

The FAC sufficiently pleads the amount of overtime compensation owed to Plaintiff. The FAC alleges that while employed with Defendant, Plaintiff regularly worked more than eight hours per shift, in some instances more than twelve hours. (FAC, ¶ 6.) Plaintiff alleges he was paid less for hours worked than he was entitled to. (FAC, ¶ 13.) Plaintiff also alleges that Defendant violated the applicable wage order in this case, “IWC Wage Order 4.” (FAC, ¶ 14.)

Accordingly, the Court overrules Defendant’s demurrer to the First Cause of Action.

Defendant demurs to the Second Cause of Action for failure to state facts sufficient to constitute a cause of action and for being uncertain.

Defendant argues that the FAC lacks the factual specificity required to allege rest break violations because Plaintiff’s allegations are legal conclusions. The FAC does not identify dates, frequency, or the circumstances under which the alleged rest break violations occurred.

Plaintiff opposes arguing that the FAC sufficiently alleges that he worked more than four hours each per shift, that he was not allowed to take his required break for shifts he worked, and that no other employees were present to relieve him of his responsibilities during his breaks.

To establish a claim for a rest break violation, the complaint must plead that: (1) plaintiff worked for defendant on one or more workdays at least three and one-half hours; and (2) defendant did not authorize and permit plaintiff to take one or more 10-minute rest breaks to which plaintiff was entitled. (CACI No. 2761; Lab. Code, § 226.7.) Allegations that an employer forced or required employees to work through rest breaks or inadequately staffed shifts to provide for rest breaks is sufficient to state a claim for rest break violations. (See Varsam v. Laboratory Corp. of America (2015) 120 F.Supp.3d 1173, 1178-1179.)

The FAC sufficiently alleges a rest break violation. Plaintiff alleges that he worked for Defendant from March 2018 through December 2020, regularly worked over eight hours per shift, and that Defendant required Plaintiff to work these overtime hours and prevented Plaintiff from taking breaks. (FAC, ¶¶ 4-7, 21, 23.) Finally, Plaintiff alleges that no other employees were present to relieve him of all his responsibilities during the break and that Defendant required Plaintiff to remain in his workplace throughout his shift. (FAC, ¶ 23.)

Accordingly, the Court overrules Defendant’s demurrer to the Second Cause of Action.

Defendant demurs to the Third Cause of Action for failure to state facts sufficient to constitute a cause of action and for being uncertain.

Defendant argues that the FAC lacks the factual specificity required to allege meal break violations because Plaintiff’s allegations are legal conclusions which parrot statutory language.

To establish a claim for a meal break violation, the complaint must plead that: (1) plaintiff worked for defendant for one or more workdays for a period lasting longer than five hours; and (2) defendant did not provide plaintiff with the opportunity to take a timely, uninterrupted meal break of at least 30 minutes for each five-hour period worked. (CACI No. 2766A; Lab. Code, §§ 226.7, 512.) Allegations that an employer forced or required employees to work through meal breaks or inadequately staffed shifts to provide for meal breaks is sufficient to state a claim for meal break violations. (See Varsam v. Laboratory Corp. of America (2015) 120 F.Supp.3d 1173, 1178-1179.)

The FAC sufficiently alleges a meal break violation. Plaintiff alleges that he worked for Defendant from March 2018 through December 2020. (FAC, ¶ 4.) Plaintiff regularly worked over eight hours per shift, sometimes twelve hours. (FAC, ¶¶ 5-6.) Defendant required Plaintiff to work these overtime hours and prevented Plaintiff from taking meal breaks. (FAC, ¶¶ 6-7, 28.) Plaintiff also alleges that no other employees were present to relieve him of all his responsibilities during the break and that Defendant required Plaintiff to remain in his workplace throughout his shift. (FAC, ¶ 28.)

Accordingly, the Court overrules Defendant’s demurrer to the Third Cause of Action.

Defendant demurs to the Fourth Cause of Action for failure to state facts sufficient to constitute a cause of action and for being uncertain.

Defendant argues that Plaintiffs allege vague statements about overtime and premium pay missing from his paystub. Claims of inaccuracy regarding wages owed due to alleged failure to pay overtime or meal and rest break premiums are not omissions or misstatements of specific statutory information required by the wage statement under Section 226, such as total hours worked or gross wages earned. Section 226 does not require employers to itemize missed meal or rest breaks or to include an “effective overtime rate of pay.” Failure to allege facts supporting a “knowing and intentional” violation renders a pay stub claim legally insufficient because this is a legal conclusion without supporting factual allegations.

Plaintiff opposes arguing that the FAC sufficiently alleges Defendant committed paystub violations. The FAC states that the paystub misstated the actual wages earned because it did not include overtime pay and pay for missing meal and rest breaks. The FAC also states that Defendant knew about the hours Plaintiff worked and its obligations to make overtime and premium pay part of the gross wages.

To establish a claim for furnishing inaccurate wage statements, the complaint must plead that: (1) defendant failed to provide plaintiff with an accurate wage statement; (2) defendant’s violation was knowing and intentional; and (3) plaintiff suffered an injury as a result of the violation. (Lab. Code, § 226, subd. (a); see also Lopez v. Friant & Associates, LLC (2017) 15 Cal.App.5th 773, 779-780.)

An accurate wage statement must include: (1) gross wages earned; (2) total hours worked by the employee, such as overtime; (3) all deductions made on written orders of the employee; (4) net wages earned; (5) inclusive dates of the period for the which the employee was paid; (6) the employee’s name and the last four digits of their social security number; (7) name and address of legal entity that is the employer; and (8) the applicable hourly rates in effect during the pay period and the corresponding hours worked at each hourly rate by the employee. (Lab. Code, § 226, subdivision (a).)

The violation is knowing and intentional if the defendant knows of existing facts that trigger the wage statement requirement including facts establishing that the plaintiff is an employee and that the plaintiff performed work for defendant during a specific time period. (Kao v. Holiday (2017) 12 Cal.App.5th 947, 961; see also Senne v. Kansas City Royals Baseball Corp. (N.D. Cal. 2022) 591 F.Supp.3d 453.) However, “if an employer reasonably and in good faith believed it was providing a complete and accurate wage statement in compliance with the requirements of section 226, then it has not knowingly and intentionally failed to comply with the wage statement law.” (Naranjo v. Spectrum Security Services, Inc. (2024) 15 Cal.5th 1056, 1065.)

An employee suffers an injury as a result of a knowing and intentional failure by an employer’s failure to comply with if (1) the employer fails to provide a wage statement or (2) the employer fails to provide accurate and complete information required by subdivision (a) and the employee cannot easily determine from the wage statement alone certain information such as the amount of gross or net wages paid during the pay period based on the listed total hours of work, the deductions, the pay period dates, and the applicable hourly rates paid for the hours worked. (Lab. Code, § 226, subd. (e)(A)-(B)(i).)

The FAC sufficiently alleges facts showing Defendant “knowingly and intentionally” failed to provide accurate wage statements. Plaintiff alleges that Defendant knew Plaintiff worked overtime and missed his meal and rest breaks but failed to pay Plaintiff for the overtime worked and premium pay for Plaintiff working through his meal and rest breaks. (FAC, ¶ 34.) Defendant knew it was required to reflect this information on the paystubs and that Defendant “knowingly and intentionally” did not do so. (FAC, ¶ 14, 16, 35.) Because Plaintiff’s paystubs did not reflect overtime pay and meal and rest break pay, Plaintiff was underpaid. (FAC, ¶¶ 33-34.) Plaintiff also alleges that Defendant failed to provide an accurate wage statement reflecting gross wages that included overtime pay and meal and rest break pay. (FAC, ¶¶ 34-35.) Further, the paystubs did not itemize overtime and regular hours worked or the missed meal and rest breaks. (FAC, ¶ 35.)

Accordingly, the Court overrules Defendant’s demurrer to the Fourth Cause of Action.

Defendant demurs to the Fifth Cause of Action for failure to state facts sufficient to constitute a cause of action and for being uncertain.

Defendant argues that the FAC is riddled with conclusory allegations that fail to specify whether or when Plaintiff was discharged or voluntarily resigned. The FAC also fails to allege facts showing Defendant’s “willfulness” or deliberate failure to pay Plaintiff. Finally, the FAC does not specify the amount of wages that were unpaid or the nature of the wages owed.

Plaintiff opposes arguing that regardless of whether Plaintiff resigned or was terminated, Plaintiff was forced to wait more than 72 hours to receive his final paycheck. The FAC sufficiently alleges Defendant’s willfulness because its states Defendant knew of its legal obligations, intentionally declined to follow them, and did not act in good faith in committing the violations.

To establish a claim for waiting-time penalties, the complaint must plead that: (1) plaintiff’s employment with defendant had ended, and (2) defendant willfully failed to pay plaintiff all wages when due. (CACI No. 2704.) Willfully means defendant “intentionally failed or refused to pay the wages.” (Ibid.) The complaint must also state (1) plaintiff’s daily wage rate at the time plaintiff’s employment with defendant ended, and (2) either the date defendant finally paid plaintiff all wages due or that defendant never paid plaintiff all wages. (Ibid.) The court may sustain a demurrer where the complaint does not allege “either the amount of wages accrued and unpaid at the time of his discharge, the rate of his compensation, or the number of working days for which he has not been paid.” (See Oppenheimer v. Robinson (1957) 150 Cal.App.2d 420, 423.)

The FAC contains conclusory statements that Defendant’s failure to pay wages was willful and that Defendant failed to pay all wages due to Plaintiff for more than 30 days after the wages were due. (TAC, ¶ 39-40.) The FAC contains no facts showing that Defendant implemented a policy of deliberately not paying wages owed. (See Varsam, supra, 120 F.Supp.3d 1173, 1179.) Further, Plaintiff does not state his daily wage rate, the amount of wages accrued and unpaid at the time of his discharge or the number of working days for which he was not paid.

Accordingly, the Court sustains Defendant’s demurrer to the Fifth Cause of Action, with leave to amend.

Defendant demurs to the Sixth Cause of Action for failure to state facts sufficient to constitute a cause of action and for being uncertain.

Defendant argues that Plaintiff cannot state a private right of action under Labor Code section 246, subdivision (i) because Labor Code section 248.5 directs employees to report suspected sick pay violations to the Labor Commissioner.

Plaintiff opposes arguing that Labor Code section 248.5, subdivision (d), allows aggrieved employees to report sick leave violations to the Labor Commissioner and that subdivision (f) provides an administrative or civil action for sick pay violations.

The Healthy Workplaces, Healthy Families Act requires private employers to provide sick leave to employees who work for an employer for 30 or more days within a year. (Lab. Code, § 246, subd. (a)(1).) The employer must provide each employee with a written notice of the amount of paid sick leave available for use on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. (Lab. Code, § 246, subd. (i).) Only the Labor Commissioner may enforce sick leave requirements. (Lab. Code, § 248.5, subd. (a).) Further, the Act grants the Labor Commissioner and the Attorney General permission to bring a civil action against employers who violate the sick leave requirements, including failure to comply with the written notice requirement. (Lab. Code, § 248.5, subd. (e).)

Plaintiff’s reading of subdivision (f) is inaccurate. Subdivision (f) simply means that if the Labor Commissioner or Attorney General brings an administrative or civil action, interest must be awarded on all amounts due; it does not create a private right of action. (Lab. Code, § 246, subd. (f).) Because Labor Code section 248.5 does not provide a private right of action for sick leave violations, Plaintiff cannot state a claim under Labor Code section 246, subdivision (i).

Accordingly, the Court sustains Defendant’s demurrer to the Sixth Cause of Action, without leave to amend.

Seventh Cause of Action: Penalty for Failure to Keep Employee Time Records under Labor Code section 226

Defendant demurs to the Seventh Cause of Action for failure to state facts sufficient to constitute a cause of action and for being uncertain.

Defendant argues that section 226 does not impose a penalty for failure to keep employee time records or “accurate records” or provide a standalone cause of action for failure to keep such records. This claim is also duplicative of Plaintiff’s Fourth Cause of Action which also arises under Labor Code section 226.

Plaintiff opposes arguing that the cause of action is not duplicative and that the Court cannot sustain a demurrer if the plaintiff stated a cause of action under any possible legal theory. Plaintiff pleads causes of action under Labor Code sections 1174.5, 1174, and 226.

Employers who fails to keep the records required by Labor Code section 226, subdivision (a), is subject to penalties ranging from $250.00 to $1,000.00 per employee for each violation. (Lab. Code, § 226.3.)

The FAC sufficiently states that Defendant “failed to keep time records”. Plaintiff alleges that during “the relevant period,” Defendant “knowingly and intentionally” failed to keep accurate records of any of the hours that Plaintiff worked for Defendant or the hourly pay rate for the hours worked, and that Defendant’s failure proximately caused Defendant’s failure to pay the wages owed to Plaintiff. (FAC, ¶¶ 49, 50.)

Accordingly, the Court overrules Defendant’s demurrer to the Seventh Cause of Action.

Defendant demurs to the Eighth Cause of Action for failure to state facts sufficient to constitute a cause of action and for being uncertain.

Defendant argues that the FAC fails to allege specific facts stating when the alleged expenses were incurred and the amount of the alleged expenses for travel and uniform deposits. Merely asserting that Plaintiff incurred expenses without specifying the dates of these expenditures or the actual amounts involved does not meet the standard for pleading a reimbursement claim under California law.

Plaintiff opposes arguing that less specific facts are required when pleading this cause of action because Defendant possesses the full information concerning the facts of the dispute.

To establish a claim for failure to reimburse or indemnify an employee for expenses, the complaint must plead that: (1) employer made expenditures or incurred losses, (2) the expenditures or losses were incurred in direct consequence of the employee’s discharge of his or her job duties or obedience to the directions of the employer; and (3) the expenditures were necessary for the job. (Gallano v. Burlington Coat Factory of California, LLC (2021) 67 Cal.App.5th 953, 960.) “[A]n indemnification claim may arise under section 2802 when the employee has made a monetary payment (i.e., an expenditure) for a business-related expense or incurred a loss in some other way—such as by becoming ‘liable or subject to’ a charge or obligation on the employer’s behalf.” (Id. at p. 962.)

The FAC sufficiently alleges a failure to reimburse employee claim because Plaintiff pleads facts showing the nature and type of expenses Defendant failed to reimburse. (See Tan v. GrubHub Inc. (N.D. Cal. 2016) 171 F.Supp.3d 998, 1005.) Plaintiff alleges that Defendant had a uniform policy, practice, and procedure of not reimbursing expenses that resulted from travel in the course of Plaintiff’s employment even if the expenses were necessary to complete Plaintiff’s job duties. (FAC, ¶ 54.) Plaintiff alleges that Defendant would assign him as a security officer at Defendant’s client locations, that Plaintiff incurred costs related to travelling on Defendant’s behalf, and that Plaintiff incurred these expenses while discharging his job duties for Defendant’s benefit. (FAC, ¶¶ 4, 54.) Plaintiff also allege that Defendant required Plaintiff to wear a uniform and deducted money from Plaintiff’s paychecks as a “deposit” for these uniforms but later refused to return the deposit after the employment relationship ended. (FAC, ¶ 55.)

Accordingly, the Court overrules Defendant’s demurrer to the Eighth Cause of Action, with leave to amend.

Ninth Cause of Action: Violation of Business and Professions Code § 17200 et seq.

Defendant demurs to the Ninth Cause of Action for failure to state facts sufficient to constitute a cause of action and for being uncertain.

Defendant argues that Plaintiff fails to plead this claim with particularity and alleges conclusionary statements. Plaintiff does not identify specific statutory provisions Defendant violated in order to claim damages under the UCL. The UCL claim also fails because it is derivative of Plaintiff’s deficient Labor Code causes of action.

Plaintiff opposes arguing that the complaint contains several Labor Code violations which are predicate for the UCLA claim.

California’s Unfair Competition Law (UCL) prohibits unlawful, unfair or fraudulent business practices. (Bus. & Prof. Code, § 17200, et seq.) To assert a UCL claim, a plaintiff must have suffered injury in fact and lost money or property as a result of the unfair competition. (See Bus. & Prof. Code, § 17204.) Unfair behavior under the UCL is behavior that is “immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (Bardin v. Daimlerchrysler Corp. (2006) 136 Cal.App.4th 1255, 1260.) The FAC alleges Defendant’s actions were unfair and unlawful. (FAC, ¶ 60.)

A plaintiff can plead a UCL violation under the “unlawfulness” prong by pleading that a business practice violated a predicate federal, state, or local law. (See Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Telephone. Co. (1999) 20 Cal.4th 163, 180.) A business practice is unlawful if it violates laws other than the UCL. (Farmers Ins. Exchange v. Superior Court (1993) 2 Cal.4th 337, 383.) The complaint must allege facts sufficient to show violation of the predicate law and resulting harm. (People v. McKale (1979) 25 Cal.3d 626, 635 [“Without supporting facts demonstrating the illegality of a rule or regulation, an allegation that it is in violation of a specific statute is purely conclusionary and insufficient to withstand demurrer.”].)

Plaintiff alleges he bases his UCL claim on Defendant’s failures to keep accurate employment records, to pay Plaintiff for all hours worked, to produce statutory notices, and to provide Plaintiff with accurate pay stubs that show the correct number of hours worked. (FAC, ¶ 59.) Plaintiff also alleges a conclusory statement that Defendant intentionally and repeatedly violated various Labor Code sections without stating specific statutory provisions. Because Plaintiff bases his UCL claim on the first eight causes of action, and the fifth and sixth causes of action fail to state a claim, Plaintiff’s UCL claim also fails for those causes of action. However, the claim survives based on the first, second, third, fourth, seventh, and eighth causes of action.

Accordingly, the Court overrules Defendant’s demurrer to the Ninth Cause of Action, with leave to amend, to the extent that this cause of action is based on the first, second, third, fourth, seventh, and eighth causes of action.

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. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)

Plaintiff’s opposition references statutory provisions and a paystub which implies that Plaintiff could amend the complaint to add more facts and legal support.

Defendant’s demurrer to First Amended Complaint is sustained, in part, for the fifth cause of action, with leave to amend; sustained, in part, for the sixth cause of action, without leave to amend; and overruled, in part, for the first, second, third, fourth, seventh, eighth, and ninth causes of action.

1. Plaintiff may file and serve a Second Amended Complaint within thirty (30) days of the date of this order.

[1] The Court notes that Defendant’s hearing reservation reflects a filing date of December 11, 2024 but that the filing date stamped on the demurrer is 12/12/2024. Plaintiff does not raise this issue in his opposition, and the Court does not address it.