Judge Holly J. Fujie, Case Number: 23STCV15361, Date: 2023-10-18 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.

MOVING PARTY: Defendants Moss Management Services, Inc. and Cindy Gray (collectively, “Moving Defendants”)

This action arises out of an employment relationship. On July 5, 2023, Plaintiff filed a complaint (the “Complaint”) alleging: (1) violation of Labor Code sections 233 and 2698; (2) Violation of Labor Code sections 98.6 and 2698; (3) violation of Labor Code sections 226 and 2698; (4) Civil Penalties under the Private Attorneys General Act (“PAGA”); (5) failure to pay minimum wages and overtime wages; and (6) failure to pay wages due at time of termination.

On September 11, 2023, Moving Defendants filed a motion to strike portions of the Complaint (the “Motion”). The Motion seeks to strike the fourth cause of action, paragraphs 41 and 43, and all references to Labor Code section 2698 from the Complaint. The Motion argues that these portions of the Complaint are improper because Plaintiff’s PAGA claims are based on a legally insufficient pre-lawsuit notice letter to the Labor Workforce Development Agency (“LWDA”).

Under California Code of Civil Procedure (“CCP”) section 436, the court may, upon a motion made pursuant to CCP section 435, or at any time in its discretion, and upon terms it deems proper: (1) strike out any irrelevant, false or improper matter inserted in any pleading; or (2) strike out any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436, subds. (a)-(b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (CCP § 437, subd. (a).)

Before bringing a civil action for statutory penalties under PAGA, an employee must comply with Labor Code section 2699.3. (Arias v. Superior Court (2009) 46 Cal.4th 969, 981.) Labor Code section 2699.3, subdivision (a)(1)(A) provides that an aggrieved employee or representative shall give written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation. (Lab. Code § 2699.3, subd. (a)(1)(A).)

The Complaint alleges that Plaintiff notified the LWDA of his claims before initiating this action. (Complaint ¶ 15.) A copy of the LWDA notice is not included with the Complaint.

Moving Defendants’ argument concerns the legal sufficiency of the underlying LWDA notice, which is included as an exhibit offered in support of the Motion, rather than in the allegations stated within the Complaint itself. (See Exhibit 3.) Moving Defendants have not requested judicial notice of this document in compliance with California Rules of Court (“CRC”), rule 3.1113(l).[1] Nor does the Motion specifically request that the Court take judicial notice of this exhibit. The Court accordingly declines to take judicial notice of the exhibit, and because the Motion is based on extrinsic evidence, the Court DENIES the Motion.

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.

[1] Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with CRC, rule 3.1306(c). (CRC, r. 3.113(l).)