Judge James A. Mangione, Case 37-2020-00009429-CU-OE-CTL 2023-09-01 Tentative Ruling

Judge: James A. Mangione, Case: 37-2020-00009429-CU-OE-CTL, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - August 31, 2023

09/01/2023 09:00:00 AM C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Other employment Motion Hearing (Civil) 37-2020-00009429-CU-OE-CTL SALCEDO VS JACKSON & BLANC [EFILE] CAUSAL DOCUMENT/DATE FILED:

Defendant Jackson & Blanc's Motion for Judgment on the Pleadings is granted in part and denied in part.

'In considering whether a defendant is entitled to judgment on the pleadings, we look only to the face of the pleading under attack' and matters subject to judicial notice. (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440.) 'A pleading which on its face is barred by the statute of limitations does not state a viable cause of action and is subject to judgment on the pleadings.' (Id.) Twelfth Cause of Action (PAGA Claim) The statute of limitations for this claim is one year. (See CCP § 340.) As Plaintiff was terminated on November 13, 2018, the statute of limitations expired on November 13, 2019. 'When a complaint shows on its face or on the basis of judicially noticeable facts that the cause of action is barred by the applicable statute of limitations, the plaintiff must plead facts which show an excuse, tolling, or some other basis for avoiding the statutory bar.' (Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1768.) Plaintiff affirmatively pled that the statute of limitations had been tolled for his PAGA claim but did not include '(1) when Plaintiff notified the LWDA about the violations, (2) what, if any, response []he received from the LWDA, or (3) how long []he waited before commencing this action.' (Varsam v. Laboratory Corp. of America (S.D. Cal. 2015) 120 F.Supp.3d 1173, 1182–1183 (alterations and quotation marks omitted); Compl. ¶ 39.) However, Plaintiff filed a belated request for judicial notice containing the LWDA filing, and the Court exercises its discretion to grant his request. As the original hearing on this motion was continued to allow for supplemental briefing, Defendant had ample time to review Plaintiff's request for judicial notice.

Upon filing written notice with the LWDA, PAGA claims are tolled until the LWDA notifies the aggrieved employee that it does not intent to investigate the alleged violations or within 65 calendar days, whichever occurs first. (Lab. Code, § 2699.3(a)(2)(A), (d).) Plaintiff's notice letter was filed on November 6, 2019. Since the LWDA did not respond, Plaintiff's PAGA claim was tolled for 65 days, and the statute of limitations expired on January 17, 2020. As the instant lawsuit was not filed until February 19, 2020, Plaintiff's PAGA claim is barred by the statute of limitations. Judgment on the pleadings is granted as to this cause of action, and leave to amend is denied.

Sixth Cause of Action (Failure to Provide Sick Pay) and Eighth Cause of Action (Failure to Provide Requisite Writings) Calendar No.: Event ID: TENTATIVE RULINGS

2999524 11 CASE NUMBER: CASE TITLE: SALCEDO VS JACKSON & BLANC [EFILE] 37-2020-00009429-CU-OE-CTL There is no private right of action for a claim for failure to provide paid sick leave or failure to provide notice relating to paid sick leave under Healthy Workplaces, Healthy Families Act of 2014. (Seviour-Iloff v. LaPaille (2022) 80 Cal.App.5th 427, 450, as modified on denial of reh'g (July 21, 2022).) Furthermore, as Plaintiff's PAGA claim is untimely, it is not possible for him to assert violations of these statutes via PAGA. Therefore, judgment on the pleadings is granted on these causes of action. Leave to amend is denied as no amendment can cure this deficiency.

Seventh Cause of Action (Failure to Provide Accurate Wage Statements) Defendant demurs to this cause of action as barred by the statute of limitations. The statute of limitations is one year for a cause of action for statutory penalties, (CCP § 340), and three years for non-penalty liability created by statute, (CCP § 338). While Plaintiff may be barred from collecting civil penalties by the statute of limitations-a matter the Court does not decide-the seventh cause of action seeks more than just penalties. The complaint specifically seeks 'all remedies including damages, unpaid wages, penalties, attorney's fees and costs, and injunctive relief to the fullest extent permissible including those permitted pursuant to Labor Code §§ 226(e) and (h), 558, 558.1, and Code of Civil Procedure § 1021.5.' (Compl. ¶ 113.) Consequently, this claim is not necessarily barred by the statute of limitations and judgment on the pleadings is denied.

Tenth Cause of Action (Failure to Provide Lockers and Changing Rooms) The statute of limitations for this claim is one year. (See CCP § 340.) As Plaintiff was terminated on November 13, 2018, the statute of limitations expired on November 13, 2019. 'When a complaint shows on its face or on the basis of judicially noticeable facts that the cause of action is barred by the applicable statute of limitations, the plaintiff must plead facts which show an excuse, tolling, or some other basis for avoiding the statutory bar.' (Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1768.) Although Plaintiff's opposition argues that his tenth cause of action is subject to equitable tolling based on his formal letter to the LWDA, equitable tolling is not raised in the Complaint. While this is sufficient grounds to grant the motion for judgment on the pleadings, the Court notes that equitable tolling would not save this claim. Equitable tolling of the statute of limitations 'applies when an injured person has several legal remedies and, reasonably and in good faith, pursues one.' (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100.) As noted above, the statute of limitations for Plaintiff's PAGA claim expired on January 17, 2020. Therefore, even with equitable tolling, this cause of action is barred by the statute of limitations. Judgment on the pleadings is granted as to this cause of action, and leave to amend is denied.

In sum, Defendant's Motion for Judgment on the Pleadings is granted without leave to amend as to the sixth, eighth, tenth and twelfth causes of action and denied as to the seventh cause of action.

The Court has considered the supplemental briefing and finds Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 inapplicable to the instant motion.

Defendant's request for judicial notice is granted.

The minute order is the order of the Court.

Calendar No.: Event ID: TENTATIVE RULINGS

2999524 11