Judge: H. Jay Ford, III, Case: 24SMCV02395, Date: 2024-11-19 Tentative Ruling

Case Number: 24SMCV02395    Hearing Date: November 19, 2024    Dept: O

 Case Name:  Marello v. Second Street Corporation, et al.

SUBJECT:                 MOTION TO STRIKE COMPLAINT

MOVING PARTY:   Defendant Second Street Corporation, dba The Huntley Hotel

RESP. PARTY:         Plaintiff Jason Marello

TENTATIVE RULING

            Defendant Second Street Corporation, dba The Huntley Hotel’s Motion to Strike the Complaint is DENIED. Plaintiff’s LWDA Notice sufficiently pleads the requisite facts to put Defendant on notice of the PAGA complaint.

            Plaintiff’s request to amend the complaint to fix typographical errors is GRANTED.

            Plaintiff’s RJN is GRANTED as to the existence of articles, court documents, and the administrative ruling documents, but not to the “truth of the hearsay statements in the documents.” (In re Vicks (2013) 56 Cal.4th 274, 314.)

            Defendant’s RJN is immaterial to the motion, and thus the Court will not rule on the RJN.  

REASONING

“[A] motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer.” (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342.) A motion to strike may be directed to all or a portion of a complaint, cross-complaint, answer, or demurrer. (See Code Civ Proc., § 435, subdiv., (a).) On a motion to strike, a judge must read the complaint as a whole, considering all parts in their context, and must assume the truth of all well-pleaded allegations. (See Atwell Island Water Dist. v. Atwell Island Water Dist. (2020) 45 Cal.App.5th 624, 628, as modified (Feb. 27, 2020).)

As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.” (Code Civ. Proc., § 435.5, subdiv., (a)(1).) “The parties shall meet and confer at least five days before the date a motion to strike must be filed.” (Code Civ. Proc., § 435.5, subdiv., (a)(2).)

A judge may, on a motion to strike made under CCP § 435 or at any time at the judge's discretion, “strike out any irrelevant, false, or improper matter in a pleading,” on terms the judge “deems proper.” (Code Civ. Proc., § 436(a).).  “[I]rrelevant . . . matter” means an immaterial allegation in a pleading and includes an allegation that is not essential to the statement of a claim or defense. (Code Civ. Proc. § 431.10(b)(1) and (c).)

Defendant Second Street Corporation, dba The Huntley Hotel (“Defendant”) moves to strike Plaintiff Jason Marello’s (“Plaintiff”) Private Attorneys General Act (“PAGA”) claim arguing the Plaintiff’s Labor Workforce Development Agency (“LWDA”) Prelitigation Notice, a PAGA claim requirement, is based on boilerplate charges without including specific facts necessary to bring the claim.

Responding to a shortage of State funds and staffing to enforce State labor laws, the Legislature adopted the [PAGA] Act in 2003, effective January 1, 2004, to prescribe a civil penalty for existing Labor Code sections for which no civil penalty has otherwise been established and to allow aggrieved employees, defined as “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed,” to bring a civil action to collect civil penalties for Labor Code violations previously only available in enforcement actions initiated by the State's labor law enforcement agencies.”

(Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 374, disapproved of on separate grounds by ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175.)

Section 2699.3, subdivision (a), provides the administrative procedures that must be followed before an aggrieved employee may file a civil action to recover civil penalties under section 2699 for violations of any of the Labor Code provisions identified in section 2699.5:⁹ “A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met: [¶] (1) The aggrieved employee or representative shall give written notice by certified mail to the [LWDA] and the employer of the specific provision of this code alleged to have been violated, including the facts and theories to support the alleged violation.” (§ 2699.3, subd. (a)(1).) Within 30 calendar days of that notice, the LWDA must notify the employer and the aggrieved employee or representative whether it intends to investigate the alleged violation. (§ 2699.3, subd. (a)(2)(A).) If the LWDA notifies the aggrieved employee it does not intend to investigate, or fails to give notice within the prescribed time period, the aggrieved employee may commence a civil action under section 2699. (Ibid.) If the LWDA chooses to investigate, it has an additional 120 days to do so and issue any appropriate citation; if, after investigation, the LWDA provides notice that no citation will issue or fails to give timely or any notification, the aggrieved employee may then file suit. (§ 2699.3, subd. (a)(2)(B).)

(Id., at p. 376.)

Before bringing a PAGA lawsuit, “an employee must comply with Labor Code section 2699.3. [citation] That statute requires an aggrieved employee to give written notice to the LWDA and the employer of “the specific provisions of [the Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation.” [citation] If the LWDA elects not to investigate, or investigates without issuing a citation, the employee may file a civil action. (§ 2699.3, subd. (a)(2).) If the LWDA does not notify the employee that it intends to investigate within 65 calendar days of the employee's notice to the LWDA, the employee may commence a civil action. (§ 2699.3, subd. (a)(2)(A).)

(Ibarra v. Chuy & Sons Labor, Inc. (2024) 102 Cal.App.5th 874, 881.)

Defendant argues that PAGA claims, and the Pre-litigation LWDA Notices, are held to a high specificity pleading standard, citing to multiple Federal District Court cases, and one Federal Ninth Circuit case. These cited cases are persuasive authority at best, and not binding authority on the Court when dealing with an issue of California State Law, here PAGA. The California Supreme Court and California Appellate courts are the only binding authority on the issues of California law. (See Balderas v. Fresh Start Harvesting, Inc. (2024) 101 Cal.App.5th 533, 538 [“Because ‘[t]he highest court of each State ... remains “the final arbiter of what is state law, we are not bound by the high court's interpretation of California law”].)

Additionally, Defendant’s argument regarding heightened pleading standards for PAGA claims is without merit, as California Courts have recently expressly found there is no heightened pleading standard with PAGA complaints. In fact, the PAGA statute “section 2699.3 does not impose a heightened requirement of defining aggrieved employees in the prelitigation notice. So long as the PAGA plaintiff provides facts and theories to support that alleged wage and hour violations were committed against them, and includes nonfrivolous allegations that other employees were similarly subjected to such practices, the notice is sufficient.” (Ibarra v. Chuy & Sons Labor, Inc. (2024) 102 Cal.App.5th 874, 883; see also Gunther v. Alaska Airlines, Inc. (2021) 72 Cal.App.5th 334, 350 [PAGA Claims “need not set forth ‘every potential fact or every future theory.’ [Citations.] ‘Under California's Labor Code, a written notice is sufficient so long as it contains some basic facts about the violations, such as which provision was allegedly violated and who was allegedly harmed”].)

Plaintiff has successfully alleged sufficient detail to meet the standard required for a PAGA LWDA Notice. Within both the LWDA Notice and the Complaint filed with the Court, the Plaintiff alleges the following:

1.     Meal period violations in violation of Labor Code §§ 226.7 and 512 (Plaintiff’s RJN, Ex. 1, PAGA Notice attached as Ex. 1 to Complaint a pp. 25–64, ¶¶ 15–16, 36, 54; Compl., ¶¶ 18–20)

2.     Rest period violations (Plaintiff’s RJN, Ex. 1, PAGA Notice attached as Ex. 1 to Complaint a pp. 25–64, ¶ 17; Compl., ¶¶ 18, 21)

3.     Failure to reimburse for required expense in violation of labor code § 2802 (Plaintiff’s RJN, Ex. 1, PAGA Notice attached as Ex. 1 to Complaint a pp. 25–64, ¶¶ 56, 58, 123; Compl., ¶¶ 3h.),

4.     Wage statement violations of Labor Code § 226 (Plaintiff’s RJN, Ex. 1, PAGA Notice attached as Ex. 1 to Complaint a pp. 25–64, ¶¶ 20–21; Compl., ¶¶ 18, 24–27.)

5.     Defendant failed to pay all minimum and overtime hours in violation of Labor Code §§ 1194, 1197, 1198.7, 510. (Plaintiff’s RJN, Ex. 1, PAGA Notice attached as Ex. 1 to Complaint a pp. 25–64, ¶¶ 24–37, 42–47; Compl., ¶¶ 18, 28–41, 46–51.)

6.     Defendant failed to timely pay wages in violation of Labor Code Section 204 because from time to time, Plaintiff did not receive payment of all wages including overtime, minimum wages, meal and rest period premiums within the permissible time period. (Plaintiff’s RJN, Ex. 1, PAGA Notice attached as Ex. 1 to Complaint a pp. 25–64, ¶¶ 38–40; Compl., ¶¶ 42–44.)

7.     Defendant failed to pay all minimum and overtime hours in violation of Labor Code Section 246 because it did not include the amount of paid sick leave available on the wage statements that it furnished to Plaintiff and other employees. (Plaintiff’s RJN, Ex. 1, PAGA Notice attached as Ex. 1 to Complaint a pp. 25–64, ¶¶ 48–49; Compl., ¶¶ 52–53.)

8.     Defendant violated Labor Code Section 351 because Plaintiff and other employees were who in the “chain of service” earned gratuities based on their service for customers, and these gratuities were pooled and distributed to employees who were not in the “chain of service” which violates the legal requires for handling pooled tips. (Plaintiff’s RJN, Ex. 1, PAGA Notice attached as Ex. 1 to Complaint a pp. 25–64, ¶¶ 50–52; Compl., ¶¶ 54–57.)

Thus, Plaintiff has alleged enough specific facts to meet the pleading standards of the prelitigation LWDA Notice, and therefore has placed Defendant on proper notice of the PAGA complaint.

Defendant argues that PAGA penalties are not available for an employers failure to provide meal or rest periods, and that Plaintiff may not recover PAGA penalties for violations of California Paid Sick Leave, Labor Code § 246. (Motion, pp. 6–7.) The Court does not find this argument persuasive, as both an employer’s failure to provide meal or rest periods and violations of California Paid Sick Leave are recoverable under PAGA. (See Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5th 746, 760 disapproved of on separate grounds by Estrada v. Royalty Carpet Mills, Inc. (2024) 15 Cal.5th 582 [“Among the Labor Code provisions a PAGA plaintiff may seek to enforce are those imposing overtime and rest and meal period requirements”]; Wood v. Kaiser Foundation Hospitals (2023) 88 Cal.App.5th 742, 763–764, as modified (Mar. 23, 2023) [Holding that claims for violations of California Paid Sick Leave under Section 226 are recoverable under PAGA].)

            Defendant argues that Plaintiffs complaint is a sham pleading because the alleged boilerplate complaint conflicts with the LWDA Notice, but this argument is without merit. Defendant points out clear typos within the Complaint which are easily amendable and not a cause for a sham pleading finding. "The purpose of the [sham pleading] doctrine is to enable the courts to prevent an abuse of process." (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751.) The doctrine is not intended to prevent honest complainants from correcting erroneous allegations or to prevent the correction of ambiguous facts. (Ibid.) Plaintiffs request for leave to amend to fix the typographical errors within the Complaint is GRANTED.

            Defendant’s Motion to Strike the Complaint is DENIED.