Judge Jill Feeney, Case Number: 21STCV17301, Date: 2023-10-23 Tentative Ruling

Plaintiff Alejandro Banuelos was employed by Hyundai until on or about July 21, 2020. (Compl. ¶¶ 1-2.) Plaintiff is owed approximately $25,652.00 in unpaid commissions for the months of May, June, ad July 202, which included $50.00 per new car sold for the months of June and July 2020. (Id., ¶ 11.)

On November 6, 2023, Defendant Sam Agha (Doe 1) filed this instant Demurrer with Motion to Strike. Plaintiff filed an opposition to the Demurrer and Motion to Strike on January 8, 2024. As of January 16, 2024, no reply has been filed.

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A¿demurrer¿tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Defendant contends the First, Second, and Third Causes of Action for Wage and Hour violations should be dismissed because Plaintiff Alejandro Banuelos fails to allege facts specifically against him to support individual liability. Defendant argues Plaintiff’s Complaint lacks any facts of any communications between Plaintiff and him. Defendant further argues the Complaint lacks any facts regarding acts or omissions by him that allegedly caused or contributed to the cause of Patriot’s alleged failure to pay Plaintiff’s commissions.

“Any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation.” (Lab. Code, § 558.1, subd. (a).)

Defendant cites to Usher v. White (2021) 64 Cal.App.5th 883 to support his contention. The court in Usher concluded “to be held personally liable as an ‘other person acting on behalf of any employer’ for certain wage-and-hour violations, an owner of the employer must have been personally involved in the purported violation or had sufficient participation in the activities of the employer such that the owner may be deemed to have contributed to the violation.” (Usher v. White (2021) 64 Cal.App.5th 883, 896-897.) However, Usher was a summary judgment case that held Plaintiff did not provide evidence raising a genuine issue of material fact as to whether the owner was personally involved in the day-to-day operations of the company to give rise to liability. A demurrer only test the sufficiency of the pleading not evidence.

In opposition, Plaintiff argues the Complaint alleges that Defendant as the one who approved and executed the addendum to Plaintiff’s employment agreement to increase his base salary, which is the same agreement that is currently the subject of the litigation. Furthermore, Plaintiff argues the Complaint also alleges he demanded payment of his unpaid wages while still employed by Defendant Hyundai and a copy of his personnel, payroll, and all other records he was entitled to under the Labor Code, but Defendant refused and never provided the requested documents.

Here, the Complaint alleges that on or about May 23, 2020, an Addendum to Plaintiff’s pay plan increased Plaintiff’s base salary and gave Plaintiff an additional flat rate bonus for each new vehicle retailed, sold, delivered, and funded. (Compl. ¶ 8.) Next, the Complaint alleges that Plaintiff and the owner of Hyundai, Defendant signed the Addendum, which was effective on June 1, 2020. (Id.) Furthermore, the Complaint alleges that Plaintiff did not receive his commission checks for the months of May through July of 2020. (Compl. ¶ 10.) Moreover, the Complaint alleges subsequent to having departed Hyundai, Plaintiff demanded that he be paid for his unpaid wages and Defendants refused. (Compl. ¶¶ 12, 15.) Lastly, the Complaint alleges on or about March 12, 2021, Plaintiff requested a copy of his personnel files, payroll records, and all documents signed by him during the course of his employment and to date has not been provided any of his employment file. (Compl. ¶ 12.)

Accordingly, the Complaint sufficiently alleges that Defendant signed the Addendum that gave rise to the subject agreement at issue in this case, Defendant has refused to pay Plaintiff wages allegedly earned under the Addendum, and Defendant has not provided Plaintiff with his employment file as required under the Labor Code.

Defendant contends the Fourth and Fifth Causes of Action for Emotional Distress (1) are preempted by the Workers Compensation Act; (2) Plaintiff failed to plead extreme and outrageous conduct; and (3) Plaintiff failed to plead severe or extreme emotional distress.

“‘[N]egligent causing of emotional distress is not an independent tort but the tort of negligence....’ [Citation.] ‘The traditional elements of duty, breach of duty, causation, and damages apply.’” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729.)

“The elements of a cause of action for IIED are as follows: (1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273.)

“Where the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer. The fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee’s industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer.” (Lab. Code, § 3602, subd. (a).)

Defendant cites to Corona v. Quad Graphics Printing Corp. (2016) 218 F. Supp. 3d 1068 to support his Worker’s Compensation Act preemption argument. While Corona does state that an action for intentional infliction of emotional distress is preempted by the Worker’s Compensation Act, this is only if the defendant’s misconduct did not exceed the normal risks of the employment such as discrimination. (Corona v. Quad Graphics Printing Corp. (2016) 218 F. Supp. 3d 1068, 1073.) As such, “a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer's illegal discriminatory practices.” (Id.)

In opposition, Plaintiff argues Defendant’s conduct did not exclusively take place while Plaintiff was employed and includes conduct after the employer/employee relationship had terminated. Further, Plaintiff contends Defendant’s alleged conduct also involved direct violations of express statutes, including those involving “unlawful, unfair, or fraudulent business act or practice” under Business and Professions Code section 17200. Moreover, Plaintiff argues he properly alleged intentional infliction of emotion distress against defendant. Specifically, Plaintiff asserts he alleges that Defendant, who was his boss, agreed and executed his employment addendum to increase his overall wages, violated those assurances in the addendum and intentionally withheld his wages, which resulted in Plaintiff’s emotional distress and embarrassment.

Here, the Complaint alleges the State law prohibits persons from negligently causing another’s emotion distress, Defendants negligently caused Plaintiff severe emotional distress, Plaintiff suffered harm as a result of Defendants’ conduct, and Defendants’ negligence was a substantial factor in causing Plaintiff emotion distress. (Compl. ¶¶ 31-34.) Next, the Complaint alleges the State law prohibits persons from intentionally inflicting or recklessly causing another’s emotional distress, Defendants intentionally or recklessly caused Plaintiff emotional distress, Defendants’ conduct was outrageous, and Plaintiff suffered harm as a result of Defendants’ conduct. (Compl. ¶¶ 36-39.) The Complaint also realleged all the preceding paragraphs. (Compl. ¶ 35.)

Accordingly, the Complaint sufficiently alleges that Defendant owed Plaintiff a statutory duty to pay his unpaid wages and not doing so exceeded the normal risks of the employment relationship. Furthermore, the Complaint sufficiently alleges that Defendant owed Plaintiff a statutory duty not to cause him emotional distress, Defendant caused Plaintiff severe emotional distress negligently and/or intentionally or recklessly, Defendant’s conduct was extreme and outrageous, and Defendant’s conduct cause Plaintiff to suffer harm.

Defendant contends the Sixth Cause of Action for Labor Code violation fails because Plaintiff does not identify to whom he made the demand for copies of his employment records to. Defendant further argues that Plaintiff fails to allege any facts concerning his connection with Patriot’s alleged failure to provide access to employment records. Lastly, Defendant contends that since he is not Plaintiff’s employer he cannot be held liable in his individual capacity for Patriot’s alleged failure to provide access to employment records.

“The employer shall make the contents of those personnel records available for inspection to the current or former employee, or his or her representative, at reasonable intervals and at reasonable times, but not later than 30 calendar days from the date the employer receives a written request…a request to inspect or receive a copy of personnel records shall be made in either of the following ways: (i) written and submitted by the current or former employee or his or her representative [or] (ii) written and submitted by the current or former employee or his or her representative by completing an employer-provided form.” (Lab. Code, § 1198.5, subd. (b)(1)(2)(A).)

Defendant cites to unpublished case law (Cordell v. PICC Lines Plus LLC (N.D. Cal., Sept. 8, 2016, No. 16-CV-01814-TEH) (2016 WL 4702654) to support this contention. However, there is no binding legal authority supporting Defendant’s argument. Thus Defendant’s argument is unavailing.

In opposition, Plaintiff argues he alleges in the Complaint that he was not paid for wages earned and made a request to his employer including Defendant for his personnel and payroll records to confirm his wages were being wrongfully withheld. Plaintiff further contends that he alleges that he did everything during and after to his employment to procure the employment records but each request was refused.

Here, the Complaint alleges the State law requires every employer to disclose to every current or former employee, or his or her representative, a copy of the personnel records that the employer maintains related to the employer's performance or any grievance concerning the employee, within thirty (30) calendar days from the date the employer receives a written request. (Compl. ¶ 42.) Next, the Complaint alleges Plaintiff requested a copy of his complete employment records and to this date Defendants failed to provide plaintiff with any of his employment records within the proscribed time. (Compl. ¶ 43.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.¿(Code Civ. Proc., § 435(b)(1).)¿The court may, upon a motion 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 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. (Code Civ. Proc., § 436;¿Stafford v. Shultz¿(1954) 42 Cal.2d 767, 782.)¿

Defendant moves to strike Plaintiff’s prayer for punitive damages. Defendant contends Plaintiff’s prayer for punitive damages is not supported by a factual showing of malice, oppression, or fraud.

To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the¿defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.) A motion to strike may lie where the facts alleged, if proven, would not support a finding that the defendant acted with malice, fraud or oppression. (Turman v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.)¿¿

¿“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)¿¿“Fraud” is defined in section 3294(c)(3) as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

¿To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others.” (Id. at 90). Further, the allegations must be sufficient for a reasonable jury to conclude that Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)¿

In opposition, Plaintiff argues Defendant’s motion to strike is without merit because he has sufficiently plead his causes of action for intentional infliction of emotional distress against Defendant. Plaintiff also argues that there is an intentional, causal connection between Defendant’s conduct and Plaintiff’s claimed damages including the request for punitive damages.

Here, the Complaint alleges Plaintiff and Defendant entered into an agreement, the Addendum to increase Plaintiff’s base salary to $5,000.00 per month with an additional flat rate bonus of $50.00 for each new vehicle retailed, sold, delivered, and funded. (Compl. ¶ 8.) Next, the Complaint alleges Plaintiff did not receive his commission checks for the months of May through July of 2020 where he sold 98 new cars and 245 used cars, respectively. (Compl. ¶¶ 9-10.) The Complaint also alleges Plaintiff demanded payment of the unpaid wages earned and requested a copy of his employment records but Defendant refused. (Compl. ¶¶ 12, 16, 21, and 28.) A jury could this alleged conduct to be malice and/or oppressive conduct intended to deprive Plaintiff of his legal right to be paid earned wages and granted access to his employment records.