Judge: Gregory Keosian, Case: 22STCV11431, Date: 2023-04-06 Tentative Ruling
Case Number: 22STCV11431 Hearing Date: April 6, 2023 Dept: 61
Defendants LA Organic Pharmacy, Inc., Mecca Mid City, Noelle
Byers-Fontz, and Steve Weber’s Demurrer and Motion to Strike Portions of the Second
Amended Complaint are SUSTAINED without leave to amend as to the first and second causes of action, and GRANTED as to the prayer
for punitive damages, without leave to amend. The motions are otherwise
OVERRULED and DENIED.
Defendants to give notice.
I.
DEMURRER
A demurrer should be sustained only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§
430.30, et seq.) In particular, as is
relevant here, a court should sustain a demurrer if a complaint does not allege
facts that are legally sufficient to constitute a cause of action. (See
id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We
treat the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. . . . Further, we give
the complaint a reasonable interpretation, reading it as a whole and its parts
in their context.” (Id. at p.
318; see also Hahn. v. Mirda (2007)
147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the
evidence or other extrinsic matters. Therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. [Citation.]”)
“In determining whether the complaint is sufficient as
against the demurrer … if on consideration of all the facts stated it appears
the plaintiff is entitled to any relief at the hands of the court against the
defendants the complaint will be held good although the facts may not be
clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer
for uncertainty is strictly construed, even where a complaint is in some respects
uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612,
616.) Such demurrers “are disfavored,
and are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” (Mahan v.
Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
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. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p.
1081.) The demurrer also may be sustained without leave to amend where the
nature of the defects and previous unsuccessful attempts to plead render it
probable plaintiff cannot state a cause of action. (Krawitz v. Rusch
(1989) 209 Cal.App.3d 957, 967.)
Defendants LA Organic Pharmacy, Inc., Mecca Mid City, Noelle
Byers-Fontz, and Steve Weber (Defendants) present demurrer is very similar to
the one they previously brought, and which was sustained in part on November 4,
2022. Defendants demurrer to each cause of action alleged against defendants
other than LA Organic Pharmacy on the grounds that no facts are alleged to
state the existence of an employment relationship between these other
defendants and Plaintiff Chelsea Flowers (Plaintiff). (Demurrer at pp. 7–8.)
Defendants argue that the first and second causes of action should be dismissed
without leave to amend, as they do not state that Plaintiff engaged in
protected activity to serve as a predicate for a retaliation claim, or that
Plaintiff actually suffered retaliation. (Demurrer at pp. 9–10.) Defendants
finally argue that Plaintiff cannot seek relief for unfair business practices
outside the limitations period, and further argue that the PAGA claim is
pleaded too broadly. (Demurrer at pp. 10–13.)
Unlike the FAC, the SAC adequately pleads claims against
Defendants Mecca, Byers-Fontz, and Weber, by virtue of the alter ego doctrine.
Plaintiff here alleges that the two companies — first LA Organic Pharmacy, then
Mecca — were both “a mere shell and conduit for Byers-Fontz and Weber’s
cannabis sales,” and that “a unity of interests and ownership existed between”
the individual defendants and these corporate entities. (Complaint ¶ 12.) The
SAC includes allegations of supporting details, including the absence of any
corporate formality, their direct payment of Plaintiff in bags of cash, (SAC ¶¶
13–14.) These allegations are sufficient to support application of liability to
Defendants via the alter ego doctrine. (See Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 235.)
Defendants, however,
remain correct in their characterization of the retaliation and constructive
wrongful termination claims as inadequately pleaded. Both claims, once again,
contain no allegations concerning what adverse employment actions Defendants
took against Plaintiff, beyond conclusory attestations that they “retaliated”
against her, or caused her to be constructively discharged. (SAC ¶¶ 36, 37,, 42–45)
The SAC pleads no additional facts not included in the FAC, which was
appropriately the target of a demurrer. As these claims are grounded in
statute, they must be pleaded with specificity. (See Zipperer v. County of
Santa Clara (2005) 133 Cal.App.4th 1013, 1020.)
The demurrer is
therefore SUSTAINED without leave to amend as to the first and second causes of
action.
The wage-and-hour
claims, however, are adequately pleaded, as this court noted in overruling
Defendant’s demurrer to the same claims in its prior order. The SAC alleges
that Plaintiff and other aggrieved employees were required to work off the
clock, were not compensated for overtime hours when called upon to work them,
were given only vague and haphazard wage statements when they received them at
all, and were reprimanded when they attempted to take legally required meal or
rest breaks. (SAC ¶¶ 15–18, 25–35.) These allegations suffice to state claims
for violations of the Labor Code.
Defendants argue,
again, that the ninth cause of action for violation of the Unfair Competition
Law (UCL) fails because it is subject to a four-year statute of limitations,
and because Plaintiff commenced her employment in 2016, more than four years
before the original complaint was filed. (Demurrer at p. 9, citing Bus. &
Prof. Code § 17208.) This argument is meritless, however, as Plaintiff alleges
that she was employed by Defendants as late as February 2021. (SAC ¶ 36.) She
therefore may still seek relief for violations that occurred within the
limitations period.
The demurrer is
therefore SUSTAINED without leave to amend as to the first and second causes of
action, and is otherwise OVERRULED.
II.
MOTION TO
STRIKE
Any
party, within the time allowed to respond to a pleading, may serve and file a
notice of motion to strike the whole or any part thereof. (Code Civ. Proc., §
435(b)(1)). The notice of motion to strike a portion of a pleading shall quote
in full the portions sought to be stricken except where the motion is to strike
an entire paragraph, cause of action, count or defense. (California Rules of
Court Rule 3.1322.)
The grounds for a motion to
strike shall appear on the face of the challenged pleading or form any matter
of which the court is required to take judicial notice. (Code Civ. Proc., §
437(a)). The court then may strike out any irrelevant, false, or improper
matter inserted in any pleading and strike out 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.) When the defect which
justifies striking a complaint is capable of cure, the court should allow leave
to amend. (Perlman v. Municipal Court
(1979) 99 Cal.App.3d 568, 575.)
As with their previous motion
to strike, Defendants move to strike the prayer for punitive damages as
inadequately pleaded, and further move to strike Plaintiff’s PAGA claim as
unmanageable. (Motion at pp. 8–12.)
The court reiterates to
Defendants that there is no basis for striking the PAGA claims as unmanageable.
The sole authority for their argument, Wesson v. Staples the Office
Superstore, LLC (2021) 68 Cal.App.5th 746, involved 346
aggrieved employees, where it was estimated that trial would encompass six days
per employee, for a total trial length of “roughly eight years.” (Wesson,
supra, 68 Cal.App.5th at p. 866.) Defendants here support
their argument only by reference to the fact that they have 101 employees
within the class of “aggrieved employees” identified by Plaintiff. There is no
reasoned explanation as to why trial for this class of persons should require
individualized testimony from each of them, or an inordinate amount of time.
Additionally, the authority that Defendants rely upon has been called into
question. (See Estrada v. Royalty Carpet Mills, Inc. (2022) 76 Cal.App.5th
685 [disagreeing with Wesson that PAGA claims are subject to strike for
being unmanageable]; see also Estrada v. Royalty Carpet Mills
(Cal. 2022) 294 Cal.Rptr.3d 460 [granting review of Estrada].)
Defendants’ punitive damages argument remains persuasive,
however. Punitive damages are allowed in non-contract cases when a defendant is
guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms
are defined as:
“Malice” means conduct which is intended by the defendant to cause
injury to the plaintiff or despicable conduct which is carried on by the
defendant with a willful and conscious disregard of the rights or safety of
others.
“Oppression” means despicable conduct that subjects a person to
cruel and unjust hardship in conscious disregard of that person's rights.
“Fraud”
means an intentional misrepresentation, deceit, or concealment of a material
fact known to the defendant with the intention on the part of the defendant of
thereby depriving a person of property or legal rights or otherwise causing
injury.
Something more than the mere commission of a
tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of
negligence, gross negligence, or recklessness is insufficient to warrant an
award of punitive damages. (Dawes v.
Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be
recovered in an action for negligence or other nonintentional torts if the
plaintiff pleads and proves that the defendant acted with the state of mind
described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious
disregard of Plaintiff’s rights, the conduct must be both despicable and
willful. (College Hospital v. Superior
Court (1994) 8 Cal.4th 794, 713 (“College
Hospital”).)
The defects in Plaintiff’s claim for
punitive damages are the same as those in her retaliation and wrongful
termination claims: Plaintiff pleads only the existence of malice and
oppression in broad conclusions, and the SAC contains no underlying facts
showing retaliation or wrongful discharge, let alone that any such discharge
was intended to cause injury to Plaintiff, or done in conscious disregard of
her rights.
The motion to strike is therefore GRANTED
without leave to amend, as to the prayer for punitive damages, and DENIED as to
the PAGA claims.