Judge: Gary Y. Tanaka, Case: 22TRCV00406, Date: 2023-03-02 Tentative Ruling
Case Number: 22TRCV00406 Hearing Date: March 2, 2023 Dept: B
LOS ANGELES SUPERIOR COURT –
SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Thursday, March 2, 2023
Department B Calendar No. 8
PROCEEDINGS
Labor
Commissioner v. Torrance Carwash, Inc., et al.
22TRCV00406
1. Torrance Carwash, Inc., et al.’s Demurrer to First
Amended Complaint
TENTATIVE RULING
Torrance Carwash, Inc., et al.’s
Demurrer to First Amended Complaint is overruled, in part, and sustained
without leave to amend, in part.
Background
Plaintiff filed the Complaint on May 24, 2022, and the
First Amended Complaint on September 26, 2022. Plaintiff alleges the following
facts. Defendant Torrance Carwash, Inc. employed Mario Flores from January 2013
to March 11, 2019. Flores filed an
administrative claim against Torrance Carwash, Inc. at the Labor Commissioner's
office on August 16, 2019. The Labor
Commissioner notified Defendant Torrance Carwash, Inc. of the claim and held a
settlement conference on October 24, 2019. The COVID-19 pandemic delayed
further administrative proceedings. The Labor
Commissioner's Bureau of Field Enforcement, a distinct unit from the unit handling
the administrative complaint, separately commenced an investigation into
Torrance Carwash, Inc.'s potential Labor Code violations against their entire
workforce. On March 3, 2021, the Bureau
of Field Enforcement sent tolling letters to Torrance Carwash, Inc., Reza
Abolahrar, and Susan Amini indicating that they were under investigation and
potentially liable for Labor Code violations. On February 9, 2022, Mario Flores assigned his
claim for wages to the Labor Commissioner's office. The Bureau of Field Enforcement cited Torrance
Carwash, Inc., Reza Abolahrar, and Susan Amini for Labor Code violations
spanning the entire workforce on April 8, 2022. Plaintiff alleges the following causes of
action: 1. Unpaid Minimum Wages; 2. Unpaid Overtime Wages; 3. Rest Break
Premiums; 4. Failure to Provide Accurate Itemized Wage Statements; 5. Penalties
for Failure to Provide Access to Payroll Records; 6. Penalties for Failure to
Provide Access to Personnel Records; 7. Waiting Time Penalties; 8. Violation of
the California Unfair Competition Law (Bus. & Prof. Code 17200 et seq.).
Meet and
Confer
Defendants set forth a meet and confer declaration in
sufficient compliance with CCP § 430.41. (Decl., Cody S. Chapple, ¶¶ 3-16.)
Request for Judicial Notice
Defendants’ request for judicial notice is granted
pursuant to Evidence Code section 452(d) and (h).
Demurrer
A demurrer
tests the sufficiency of a complaint as a matter of law and raises only
questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th
1702, 1706.) In testing the sufficiency
of the complaint, the court must assume the truth of (1) the properly pleaded
factual allegations; (2) facts that can be reasonably inferred from those
expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985)
39 Cal.3d 311, 318.) The Court may not
consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th
634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the
plaintiff must show that the complaint alleges facts sufficient to establish
every element of each cause of action. (Rakestraw
v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts
sufficient to constitute a cause of action, courts should sustain the demurrer.
(C.C.P., § 430.10(e); Zelig v. County
of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)
Sufficient facts are the essential facts of the case
"with reasonable precision and with particularity sufficiently specific to
acquaint the defendant with the nature, source, and extent of his cause of
action.” (Gressley v. Williams
(1961) 193 Cal.App.2d 636, 643-644.) "Whether
the plaintiff will be able to prove the pleaded facts is irrelevant to ruling
upon the demurrer." (Stevens v.
Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a
demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual
allegations are so confusing they do not sufficiently apprise a defendant of
the issues it is being asked to meet. (Williams
v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
Defendants demur, pursuant to CCP § 430.10(a)(b)(c)
and (e), to the FAC and each cause of action on the following grounds. “Plaintiff
Labor Commissioner failed to provide timely notice of its intent to file a
civil action or otherwise take any action in response to real party in interest
Mario Flores’ administrative complaint, as required by California Labor Code
section 98; and (2) each cause of action is barred by the applicable statutes
of limitations as set forth in California Code of Civil Procedure § 338(a), the
doctrine of equitable tolling does not apply, and Emergency Rule 9 is
inapplicable to pending actions[.] Furthermore, Defendants specially demurrer
to Plaintiff’s Eighth Cause of Action in its FAC for violations under the
California Business & Professions because the California Labor Commissioner
lacks the statutory authority to enforce non-Labor Code statutes and
regulations. In the alternative, Defendants are entitled to a Plea in Abatement
as a matter of right because the Labor Commissioner initiated two prior actions
(Case No. 35-CM-693270-19) initiated on March 8, 2021, on behalf of Mario
Flores and other similarly situated individuals, against the same Defendants,
and raising the same legal issues and causes of action. The action is currently
pending. The Labor Commissioner is also pursuing this case administratively
(Case No. WC-CM-733833). That action is also pending.” (Notice of Demurrer,
page 1, lines 8-21).
Defendants
argue that the demurrer should be sustained without leave to amend because “Plaintiff
Labor Commissioner failed to provide timely notice of its intent to file a
civil action or otherwise take any action in response to real party in interest
Mario Flores’ administrative complaint, as required by California Labor Code
section 98[.]” (Notice of Demurrer, page
1, lines 8-10.) Labor Code section 98(a)
states, in relevant part: “Within 30 days of the filing of the complaint, the
Labor Commissioner shall notify the parties as to whether a hearing will be
held, whether action will be taken in accordance with Section 98.3, or whether
no further action will be taken on the complaint.” Irrespective of whether the word “shall”
constitutes a mandatory or directory act, Defendants submit absolutely no
authority as to the implications or consequences of failing to comply with this
requirement. Nothing in section 98 sets
forth the consequences of the purported failure, nor is any authority presented
for the proposition that failing to comply with this alleged requirement
mandates sustaining a demurrer on a civil action which is a completely separate
proceeding than the employee “complaint” referenced in the statute. The demurrer set forth on this ground is
overruled.
Defendants
argue that “each cause of action is barred by the applicable statutes of
limitations as set forth in California Code of Civil Procedure § 338(a).” (Notice of Demurrer, page 1, lines 10-11.) Defendants contend that the Complaint was
untimely filed by a period of 74 days. However, Plaintiff has established that
Emergency Rule 9(b) tolled the statute for a period of 180 days. Emergency Rule 9(a) states: “Notwithstanding
any other laws, the statutes of limitations and repose for civil causes of
action that exceed 180 days are tolled from April 6, 2020, until October 1,
2020.” Cal. Rules of Court, App. I. “The language is clear and unambiguous;
Emergency Rule 9 tolls ‘statutes of limitations and repose for civil causes of
action.’ Statutes of limitations and statutes of repose are specific statutes
that serve to bar the initiation of legal proceedings after the expiration of a
defined timeline.” People v. Philadelphia Reinsurance Corporation (2021)
70 Cal.App.5th Supp. 10. Thus, Emergency Rule 9 tolls the filing of a civil
cause of action, within that time frame, for a period of 180 days. Defendants’
attempt to negate Emergency Rule 9 via the convoluted argument that the instant
action is somehow a part of the “Section 98” procedure is not well taken. The
instant action constitutes a separate civil action to which Emergency Rule 9
was intended to apply. The demurrer set forth on this ground is overruled.
Defendants
demur on the ground that “Defendants are entitled to a Plea in Abatement as a
matter of right because the Labor Commissioner initiated two prior actions
(Case No. 35-CM-693270-19) initiated on March 8, 2021, on behalf of Mario
Flores and other similarly situated individuals, against the same Defendants,
and raising the same legal issues and causes of action. The action is currently
pending. The Labor Commissioner is also pursuing this case administratively
(Case No. WC-CM-733833). That action is also pending.” (Notice of Demurrer,
page 1, lines -21.)
Defendants
fail to establish that the administrative Labor Code complaint attached as
Exhibit A to the RJN, constitutes an “action” to which the demurrer may be
sustained pursuant to CCP § 430.10(c) as a plea in abatement. “An action is an ordinary proceeding in a
court of justice by which one party prosecutes another for the declaration,
enforcement, or protection of a right, the redress or prevention of a wrong, or
the punishment of a public offense.” (Code
Civ. Proc., § 22.) “The word 'action' as
used in this Title [re: statutes of limitation] is to be construed, whenever it
is necessary so to do, as including a special proceeding of a civil nature.” (Id., § 363.) An administrative proceeding is neither a
“civil action” (id., §§ 22, 312) nor a “special proceeding of a civil
nature” (id., §§ 23, 363), “to the commencement of which the statute of
limitations relates. Such provision ... relates only to actions or special
proceedings in courts, and not hearings before boards.” City of Oakland v. Public Employees'
Retirement System (2002) 95 Cal.App.4th 29, 48. The employee
administrative complaint filed by Mario Saucedo Flores does not constitute an “action”
for purposes of CCP § 430.10(c). Therefore,
the demurrer based on this ground is overruled.
Plaintiff
concedes to the demurrer to the eighth cause of action. The demurrer to the eighth cause of action is
sustained without leave to amend.
Therefore,
for the foregoing reasons, Defendants’ demurrer is overruled, in part, and
sustained, without leave to amend, in part, as to the eighth cause of action
only.
Defendants
are ordered to file and serve an Answer within 10 days of this date.
Plaintiff
is ordered to give notice of this ruling.