Judge Holly J. Fujie, Case Number: 24STCV15033, Date: 2025-05-15 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 Fellow Barber LA LLC and FSC Barber – Buffa L.L.C. (collectively, “Defendants”)

On February 14, 2025, Defendants filed the instant demurrer (“Demurrer”) and motion to strike (the “Motion”). On May 2, 2025, Plaintiff filed oppositions to the Demurrer (the “Opposition to Demurrer”), the Motion and Defendants’ request for judicial notice. On May 8, 2025, Defendants filed a reply to the Opposition to Demurrer (the “Reply”) and to the opposition to the Motion. On May 9, 2025, Plaintiff filed a declaration in support of her opposition.

Pursuant to Evidence Code section 452, subdivision (d), the Court may take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States”.

The court, however, may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made such that the truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

Pursuant to Defendants’ request, the Court takes judicial notice of the following: (1) The original Complaint in Mai v. FSC Barber – Buffa L.LC. et al., filed on or around September 13, 2023, in San Francisco Superior Court, Case No. CGC23609045; (2) Declaration of Matthew A. Haulk in Support of Plaintiff’s Motion for Preliminary Approval of Class Action and PAGA Settlement, filed in Mai v. FSC Barber – Buffa L.LC. et al., San Francisco Superior Court, Case No. CGC23609045; (3) Declaration of Nathalie Hernandez of ILYM Group, Inc., in Support of Motion for Final Approval of Class Action, filed in Mai v. FSC Barber – Buffa L.LC. et al., San Francisco Superior Court, Case No. CGC23609045; (4) Order Granting Motion for Preliminary Approval of Class Action and PAGA Settlement issued in Mai v. FSC Barber – Buffa L.LC. et al., San Francisco Superior Court, Case No. CGC23609045; and (5) Final Judgment and Order issued in Mai v. FSC Barber – Buffa L.LC. et al., San Francisco Superior Court, Case No. CGC23609045.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code of Civil Procedure (“CCP”) § 430.10, subd. (e).)

To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) “[E]ach evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) Courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

First, Second, Third, Fourth and Fifth Causes of Action [Fair Employment and Housing Act (“FEHA”) Causes of Action]

Before filing an employment discrimination lawsuit under FEHA, a plaintiff must exhaust her administrative remedies before the Civil Rights Department (CRD) (formerly known as the Department of Fair Employment and Housing (DFEH)), e.g., filing a DFEH Complaint and securing a Right-to-Sue Letter. (Gov. Code §§ 12960, subds. (b), (d), 12965, subd. (b); see Rojo v. Kliger (1990) 52 Cal.3d 65, 88.) This requirement is jurisdictional. (Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 889-890.) To bring a lawsuit against a party under FEHA, the defendants must have been named in the caption or body of the charge filed with the CRD (i.e., DFEH Complaint). (See, e.g., Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116-118.)

Defendants demur to the first through fifth causes of action on the ground that Plaintiff did not exhaust her administrative remedies prior to filing this action. (Demurrer, pp. 8:15-9:17.) Plaintiff commenced this action on June 17, 2024. The original complaint included the FEHA claims. Plaintiff filed the FAC on November 27, 2024. Defendants assert that Plaintiff filed her complaint with the CRD on October 9, 2024 – approximately four months after commencing this action. (Bitzer Decl., ¶ 5.) In opposition, Plaintiff does not dispute this point but instead argues that the FAC supersedes the previous pleading. (Opp. to Demurrer, p. 3:20-26.) Filing a complaint with the CRD and obtaining a right-to-sue letter after the filing of a lawsuit is not sufficient to give the Court jurisdiction over the FEHA claims. Thus, Plaintiff has failed to allege facts sufficient to state a claim for her first through fifth causes of action. Given that Plaintiff’s claims are barred by the failure to exhaust administrative remedies, the Court need not and does not address Defendants’ remaining sufficiency arguments. Plaintiff is not granted leave to amend because to assert these claims, Plaintiff must file a new lawsuit.

The Demurrer to the first through fifth causes of action is SUSTAINED, without leave to amend.

Defendants demur to Plaintiff’s wage and hour causes of action (failure to pay minimum wage for all hours worked, failure to provide duty free rest periods, failure to provide duty free meal periods, failure to provide accurate wage statements, failure to pay wages upon termination, failure to reimburse employee for business expenses and unfair business practices) on the ground that they are barred by claim preclusion. Defendants assert that the causes of action are identical to those alleged and resolved in another action. (Demurrer, pp. 6:18-8:13.)

“‘Res judicata’ describes the preclusive effect of a final judgment on the merits.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) “The doctrine of res judicata has a double aspect.” (Todhunter v. Smith (1934) 219 Cal. 690, 695.) “‘In its primary aspect,’ commonly known as claim preclusion, it ‘operates as a bar to the maintenance of a second suit between the same parties on the same cause of action.’” (People v. Barragan (2004) 32 Cal.4th 236, 252 (quoting Clark v. Lesher (1956) 46 Cal.2d 874, 880).) “‘In its secondary aspect,’ commonly known as collateral estoppel, ‘[t]he prior judgment ... ‘operates' in ‘a second suit ... based on a different cause of action ... as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.’” (Id. at 252-253 (quoting Clark, supra, 46 Cal.2d at 880); see Mycogen Corp., supra, 28 Cal.4th at 896 (quoting Lucido v. Superior Court (1990) 51 Cal.3d 335, 341) [“Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action.”].)

“‘The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding.’” (Barragan, supra, 32 Cal.4th at 253 (quoting Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556).)

On September 13, 2023, Lily Mai filed a class action complaint against FSC Barber – Buffa L.L.C., entitled Mai v. FSC Barber – Buffa L.LC. et al., Case No. CGC23609045 (the “Mai Class Action”) in the Superior Court of California, County of San Francisco. (RJN, Ex. A.) On January 13, 2025, the Court in the Mai Class Action issued a final judgment approving the class action settlement. (RJN, Ex. E.) The settlement applies to “[a]ll individuals who performed barber services for Fellow Barber in the State of California” between September 13, 2019 and May 13, 2024 including those who did “not submit a valid and timely Request for Exclusion from the Settlement”. (RJN, Ex. E, ¶¶ 1-3.) The settlement releases all claims that “were or reasonably could have been brought based on the facts alleged in the Operative Complaint and in the PAGA Notice, regardless of theory of recovery, including: claims under California Labor Code section 201, 202, 203, 204, 206, 210, 218, 218.5, 221, 226, 226.7, 227, 510, 511, 512, 558, 1182.12, 1194, 1194.2, 1197, 1197.1, 1198, 1199, 2802, and the California IWC Wage Orders.” (RJN, Ex. E, ¶ 5.2.)

Plaintiff worked as a barber for Fellow Barber between June 17, 2021 and June 17, 2022. (FAC, ¶ 5.) Plaintiff’s sixth, seventh, eighth, ninth, tenth, eleventh and fourteenth causes of action relate to wage and hour violations under Labor Code §§ 201, 203, 226, 226.7, 2802, 1197 and IWC Wage Order 5. Thus, Plaintiff is bound by the settlement agreement because she was a barber for Fellow Barber during the relevant period, is bringing causes of action that arose during that period and is bringing wage and hour claims that have been released under the settlement agreement.

Plaintiff argues that she is not part of the settlement because she never received a class notice and did not agree to be part of the class settlement. (Opp. to Demurer, p. 4:4-18.) The granting of a final approval of a class action settlement, however, establishes that the notice procedure agreed upon by the parties complied with the requirements of due process. (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 695 [“When the trial court granted final approval of the settlement in the Sekly [class] action, it necessarily found that the notice procedure agreed upon by the parties complied with the requirements of due process and that the settlement itself was fair, adequate, and reasonable. To the extent that [the plaintiff] had any objection to either the settlement or the notice procedure, he had an opportunity to file a written objection with the trial court and to appear at the fairness hearing.”].) The Court finds that it is apparent from Defendants’ judicially noticed exhibits that Plaintiff was a member of the Mai Class Action and did not opt out of the class action settlement. (RJN, Exs. C-E.)

Plaintiff also argues that her Labor Code violations are based on “individualized circumstances that were not addressed” in the Mai Class Action. (Opp. to Demurer, p. 5:9-13.) “Whenever a judgment in one action is raised as a bar to a later action under the doctrine of res judicata, the key issue is whether the same cause of action is involved in both suits. California law approaches the issue by focusing on the “primary right” at stake: if two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery.” (Eichman v. Fotomat Corp. (1983) 147 Cal.App.3d 1170, 1175.) From the face of the pleadings and judicially noticeable matters, Plaintiff’s primary rights asserted in her wage and hour causes of action are the same as those asserted in the Mai Class Action. The primary right at stake in both actions, as it pertains to the relevant wage and hour violations, is Defendants’ failure to pay overtime compensation and reimburse business-related expenses. (Compare RJN, Ex. A, with FAC.)

Thus, the Court finds that it is apparent from the face of the FAC and matters judicially noticed that Plaintiff’s sixth, seventh, eighth, ninth, tenth, eleventh and fourteenth causes of action are barred by res judicata. Given that Plaintiff’s claims are barred by res judicata, the Court need not and does not address Defendants’ remaining sufficiency arguments.

The Demurrer to the sixth, seventh, eighth, ninth, tenth, eleventh and fourteenth causes of action is SUSTAINED, without leave to amend.

Thirteenth Cause of Action, Violation of Whistleblower Protection [Labor Code §1102.5(b)]

Defendants demur to Plaintiff’s thirteenth cause of action on the ground that it is barred by the statute of limitations. (Demurrer, p. 12:7-12.) Claims for civil penalties under Labor Code section 1102.5, subdivision (f) are subject to the one-year statute of limitations under CCP section 340 subdivision (a.). Plaintiff argues that the “claim is not time-barred to the extent that the Court finds any gap in the timeline” and is a proper predicate violation for Plaintiff’s unfair competition law (“UCL”) claim. (Opp. to Demurrer, p. 11:1-28.) Plaintiff fails to elaborate on her argument that equitable tolling should apply to the whistleblower protection cause of action. In addition, as Defendants assert in the Reply, the UCL does not extend the statute of limitations for Plaintiff’s whistleblower protection claim because the UCL does not allow for recovery of statutory penalties. (Reply, pp. 6:17-7:2.)

The Demurrer to the thirteenth cause of action is SUSTAINED, with leave to amend.

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436, subds. (a), (b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

As the Court has sustained the Demurrer in its entirety, the Motion to Strike is MOOT.

The Demurrer is SUSTAINED, with 20 days leave to amend, as to the thirteenth cause of action. The Demurrer is SUSTAINED, without leave to amend, as to the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and fourteenth causes of action.

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.

Hon. Holly J. Fujie

Judge of the Superior Court