Judge: Holly J. Fujie, Case: 21STCV27498, Date: 2022-11-01 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 21STCV27498    Hearing Date: November 1, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants 91 Enterprise, LLC; Asher Elimelech; and Gilad Erlich (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers.

BACKGROUND

            This action arises out of an employment relationship.  The currently operative first amended complaint (the “FAC”) alleges: (1) failure to pay minimum wage; (2) failure to pay overtime compensation; (3) failure to pay wages for missed rest periods; (4) failure to pay wages when due; (5) failure to provide accurate and itemized wage statements; and (6) violation of the Unfair Competition Law. 

            In relevant part, the FAC alleges: Moving Defendants employed Plaintiff from 2016 through 2019.  (FAC ¶ 18.)  During various periods of his employment, Plaintiff would be scheduled to work 11-hour days, six days a week.  (See id.)  Additionally, throughout Plaintiff’s employment, Moving Defendants regularly required him to work over eight and 12 hours per day, 40 hours per week, and/or work on a seventh consecutive day without ever paying him overtime or double time wages; denied him rest periods; only paid him commissions; denied minimum, regular, overtime wages; and denied terminal wages owed both at the time of his termination and within 72 hours of his termination.  (See FAC ¶¶ 19-24.)  Plaintiff’s employment relationship with Moving Defendants ended in September 2019.  (FAC ¶ 72.)

Moving Defendants filed a demurrer (the “Demurrer”) to the fourth and fifth causes of action in the FAC on the grounds that the FAC fails to allege sufficient facts to state a cause of action and the pleading is uncertain with respect to both causes of action. 

DEMURRER

Meet and Confer

The meet and confer requirement has been met.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Demurrers for uncertainty are disfavored.  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)  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.  (Id.)  A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant's knowledge.  (Id.)  Demurrers for uncertainty 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.) 

Fourth Cause of Action: Failure to Pay Wages When Due

When an employee is terminated or resigns from his or her employment, final wages are generally due and payable immediately.  (See Lab. Code §§ 201, 202.)  Labor Code section 203 provides that, if an employer willfully fails to timely pay final wages, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days.  (Lab. Code § 203, subd. (a).)

Moving Defendants argue that the first cause of action is insufficiently alleged because it is unclear whether Plaintiff resigned voluntarily or was terminated by his employers.  The Court is not persuaded by this argument.  First, a party may plead in the alternative and may make inconsistent allegations, and the FAC adequately alleges both Labor Code sections 201 and 202.  (See Third Eye Blind, Inc. v. Near North Entertainment Ins. Services, LLC (2005) 127 Cal.App.4th 1311, 1323.)  Second, the allegations are not so uncertain that Moving Defendants are unable to either respond or clarify any ambiguities in discovery. 

The Court therefore OVERRULES the Demurrer to the fourth cause of action. 

Fifth Cause of Action: Failure to Provide Accurate and Itemized Wage Statements

Labor Code section 226 obliges employers to provide their employees with records of their earnings and deductions and imposes penalties upon employers who knowingly and intentionally fail to supply the records.  (Naranjo v. Spectrum Security Services, Inc. (2009) 172 Cal.App.4th 654, 668.)  Wage statement claims are subject to a one-year statute of limitations.  (Falk v. Children’s Hospital Los Angeles (2015) 237 Cal.App.4th 1454, 1469.)

A complaint disclosing on its face that the limitations period has expired in connection with one or more counts is subject to demurrer.  (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)  Plaintiff initiated this action on July 27, 2021.  The FAC alleges that Plaintiff stopped working for Moving Defendants in September 2019.  Therefore, the claim is barred on its face by the statute of limitations.  Plaintiff has not presented facts to indicate that this defect may be cured by amendment.  The Court therefore SUSTAINS the Demurrer to the fifth cause of action without leave to amend.

Moving Defendants are to file an answer within 20 days of this order. 

Moving party is ordered to give notice of this ruling. 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 1st day of November 2022