Judge: John J. Kralik, Case: 24NNCV02759, Date: 2024-10-11 Tentative Ruling
Case Number: 24NNCV02759 Hearing Date: October 11, 2024 Dept: NCB
North
Central District
|
sandra
vigil, Plaintiff, v. sft
investment corp., et al., Defendants. |
Case
No.: 24NNCV02759 Hearing Date: October 11, 2024 [TENTATIVE] order RE: demurrer |
BACKGROUND
A.
Allegations
Plaintiff Sandra VIgil (“Plaintiff”)
alleges that she was a former employee of Defendant SFT Investment Corp.
(“SFT”) and Defendant Arman Sarkissian (“Sarkissian”), who is alleged to be the
owner, director, officer, or managing agent of SFT. Plaintiff alleges she started working for
Defendants on November 15, 2006 as an office manager. Plaintiff alleges that she made a good faith
complaint on January 20, 2023 about not being provided with holiday pay, which
SFT ignored. She also alleges that on
February 2, 2023, she requested sick leave due to back and arm pain sustained
at work and provided a doctor’s note to Sarkissian to be out from February 2 to
9, 2023. Plaintiff alleges that when she
went into the SFT office on February 3, 2023 to pick up her paycheck,
Sarkissian told her he needed her every single day and so he told her to gather
her belonging and terminated her. Plaintiff
alleges that she was not compensated for all due wages at the time of her
termination, she was not provided meal and rest periods, she was required to
use her own personal property to complect job duties, and that Defendants
engaged in other willful violations of the Labor Code and Industrial Welfare Commission
wages orders.
The complaint, filed July 8, 2024, alleges
causes of action for: (1) retaliation for use of sick leave; (2) retaliation in
violation of Labor Code § 98.6; (3) retaliation in violation of Labor Code §
1102.5; (4) wrongful termination in violation of public policy; (5) failure to
provide meal breaks; (6) failure to provide rest breaks; (7) failure to pay
wages due upon termination, waiting time penalties; (8) failure to indemnify;
(9) failure to issue accurate and itemized wage statements; and (10) unlawful business
practices in violation of Business & Professions Code § 17200.
B.
Motion
on Calendar
On September 3, 2024, Defendants SFT and
Sarkissian filed a demurrer to the complaint.
On September 30, 2024, Plaintiff filed an
opposition brief.
On October 4, 2024, Defendants filed a
reply brief.
DISCUSSION
Defendants
demur to each cause of action alleged in the complaint.
A.
1st
cause of action for retaliation for use of sick leave
Labor Code, §
246.5(c)(1) states: “An employer shall not deny an employee the right to use
accrued sick days, discharge, threaten to discharge, demote, suspend, or in any
manner discriminate against an employee for using accrued sick days, attempting
to exercise the right to use accrued sick days, filing a complaint with the
department or alleging a violation of this article, cooperating in an
investigation or prosecution of an alleged violation of this article, or
opposing any policy or practice or act that is prohibited by this article.” Labor Code, § 233(c) states: “An employer
shall not deny an employee the right to use sick leave or discharge, threaten
to discharge, demote, suspend, or in any manner discriminate against an
employee for using, or attempting to exercise the right to use, sick leave to
attend to an illness or the preventive care of a family member, or for any
other reason specified in subdivision (a) of Section 246.5.”
Defendants demur to the 1st
cause of action, arguing that the allegations are vague and barren. They argue that Plaintiff has not alleged
facts that she was actually denied sick leave or that her termination/adverse action
was causally linked to her sick leave.
In the 1st cause of action,
Plaintiff alleges that she accrued sick leave hours and that she requested sick
leave under the Labor Code on February 2, 2023.
(Compl., ¶26.) She alleges that
in response to her request for sick leave and use of sick leave, Defendants
retaliated against her by wrongfully terminating her employment on February 3,
2023. (Id., ¶27.) As such, Plaintiff has alleged that she was retaliated
against for requesting to use her sick leave and thus has alleged a causal link
for her termination. Although Plaintiff
has not explicitly alleged that she was denied the right to use her sick time,
this is implied in the facts of the complaint because she presented a doctor’s
note for sick leave in February 2023 and Defendants responded by stating she was
required to be at the office on a daily basis and, if she did not come in, then
he would terminate her. (Id.,
¶¶12-14.) As such, the 1st cause
of action is adequately pled.
The demurrer to the 1st cause
of action is overruled.
B.
2nd
cause of action for retaliation in violation of Labor Code § 98.6 and 3rd
cause of action for retaliation in retaliation in violation of Labor Code §
1102.5
Labor Code, §
98.6(a) states: “(a) A person shall not discharge an employee or in any manner
discriminate, retaliate, or take any adverse action against any employee or
applicant for employment because the employee or applicant engaged in any
conduct delineated in this chapter, including the conduct described in
subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of
Part 3 of Division 2, or because the employee or applicant for employment has
filed a bona fide complaint or claim or instituted or caused to be instituted
any proceeding under or relating to their rights that are under the
jurisdiction of the Labor Commissioner, made a written or oral complaint that
they are owed unpaid wages, or because the employee has initiated any action or
notice pursuant to Section 2699, or has testified or is about to testify in a
proceeding pursuant to that section, or because of the exercise by the employee
or applicant for employment on behalf of themselves or others of any rights
afforded them.”
Labor Code, §
1102.5(b) states: “(b) An employer, or any person acting on behalf of the
employer, shall not retaliate against an employee for disclosing information,
or because the employer believes that the employee disclosed or may disclose
information, to a government or law enforcement agency, to a person with
authority over the employee or another employee who has the authority to
investigate, discover, or correct the violation or noncompliance, or for
providing information to, or testifying before, any public body conducting an
investigation, hearing, or inquiry, if the employee has reasonable cause to
believe that the information discloses a violation of state or federal statute,
or a violation of or noncompliance with a local, state, or federal rule or
regulation, regardless of whether disclosing the information is part of the
employee's job duties.”
In the 2nd
cause of action, Plaintiff alleges that Defendants terminated Plaintiff by
retaliating against her and terminating her because she exercised her right to
complain about unpaid wages. (Compl.,
¶34.) In the 3rd cause of
action, Plaintiff alleges that Defendant retaliated against her by terminating
her for her good faith complaints pertaining to the non-payment of her holiday
pay. (Id., ¶41.)
The allegations of
the 2nd and 3rd causes of action fail to allege
sufficient facts that Plaintiff made a complaint about her rights under
sections 98.6 and 1102.5. At most, the
allegations are conclusory that she complained about unpaid wages or nonpayment
of holiday pay, but she has not alleged any further facts in support of these
causes of action.
The demurrer to
the 2nd and 3rd causes of action is sustained with leave
to amend.
C.
5th
and 6th causes of action for failure to provide meal and rest breaks
Labor Code, §
512(a) states: “An employer shall not employ an employee for a work period of
more than five hours per day without providing the employee with a meal period
of not less than 30 minutes, except that if the total work period per day of
the employee is no more than six hours, the meal period may be waived by mutual
consent of both the employer and employee. An employer shall not employ an
employee for a work period of more than 10 hours per day without providing the
employee with a second meal period of not less than 30 minutes, except that if
the total hours worked is no more than 12 hours, the second meal period may be
waived by mutual consent of the employer and the employee only if the first
meal period was not waived.”
Labor Code, §
226.7(b) states: “An employer shall not require an employee to work during a
meal or rest or recovery period mandated pursuant to an applicable statute, or
applicable regulation, standard, or order of the Industrial Welfare Commission,
the Occupational Safety and Health Standards Board, or the Division of
Occupational Safety and Health.”
Defendants demur
to the 5th and 6th causes of action, arguing that
Plaintiff has not alleged any facts to support her claims, has not alleged a
policy or practice of denying unlawful meal periods, or specified any meal or
rest periods that were missed.
In the 5th
cause of action, Plaintiff alleges that Defendants failed to provide her with
all legally mandated respite periods and that she missed meal breaks or had
interrupted meal breaks at least one to five times per week given the
voluminous nature of her work, understaffing, and pressure from
management. (Compl., ¶57.) In the 6th cause of action,
Plaintiff alleges that she was prevented from taking her statutorily mandated
rest breaks during her shifts and was instructed not to leave her desk during work
hours nor was provided coverage to take breaks.
(Id., ¶62.) The complaint
sufficiently alleges facts that Plaintiff missed meal periods and that she was
not given rest periods as she was instructed not to leave her desk and did not
have coverage in order to take breaks.
The allegations also sufficiently allege a policy or practice that
Defendants did not allow Plaintiffs to take mandated breaks by giving her
voluminous work, understaffing the office, and pressuring her to complete her
work.
At the demurrer
stage, the Court finds the allegations of the 5th and 6th
causes of action sufficient. The
demurrer to the 5th and 6th causes of action is
overruled.
D.
7th
cause of action for failure to pay wages due upon termination, waiting time
penalties
Labor Code, § 201(a) states: “If an
employer discharges an employee, the wages earned and unpaid at the time of
discharge are due and payable immediately.”
Labor Code, § 202(a) states: “If an
employee not having a written contract for a definite period quits his or her
employment, his or her wages shall become due and payable not later than 72
hours thereafter, unless the employee has given 72 hours previous notice of his
or her intention to quit, in which case the employee is entitled to his or her
wages at the time of quitting.”
Labor Code, § 203(a) states: “If an
employer willfully fails to pay, without abatement or reduction, in accordance
with Sections 201…, any wages of an employee who is discharged or who quits,
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.”
In the 7th cause of action,
Plaintiff alleges that Defendants willfully failed to pay Plaintiff all wages
due to her at the time of her separation and that Defendants failed to
compensate her for unpaid overtime and meal and rest break premiums upon
separation. (Compl., ¶¶68, 70.) She alleges that Defendants’ actions were
willful and intentional. (Id.,
¶71.)
Defendants argue that this cause of action
fails to allege facts showing that she was entitled to meal and rest break
premiums or that their failure to pay wages was willful. As discussed above, Plaintiff has alleged
sufficient facts that she was denied rest and meal breaks and that she was not
compensated for those missed break times.
However, the allegations fail to allege facts showing that Defendants
willfully failed to pay her wages due upon separation. The allegations regarding the willful failure
to pay wages are conclusory and are not supported by factual allegations.
As such, the demurrer to the 7th
cause of action is sustained with leave to amend.
E.
8th
cause of action for failure to indemnify
Labor Code, §
2802(a) states: “An employer shall indemnify his or her employee for all
necessary expenditures or losses incurred by the employee in direct consequence
of the discharge of his or her duties, or of his or her obedience to the
directions of the employer, even though unlawful, unless the employee, at the
time of obeying the directions, believed them to be unlawful.”
In the 8th
cause of action, Plaintiff alleges that she was required to use her personal
cell phone to complete her assigned job duties and she was not reimbursed for
its use. (Compl., ¶74.) She alleges Defendants knew that she was
required to use her own personal cellphone, but they never reimbursed her
expenses. (Id., ¶75.)
The allegations of
the 8th cause of action fail to allege facts showing that Plaintiff
incurred unreimbursed expenses for using her cellphone to complete work
duties. She has not alleged facts that
regarding what expenditures she made or losses incurred by the use of her
cellphone.
The demurrer to
the 8th cause of action is sustained with leave to amend.
F.
9th
cause of action for failure to issue accurate and itemized wage statements
Labor Code § 226 states that an employer,
semimonthly or at the time of each payment of wages, shall furnish to their
employee an accurate itemized statement in writing showing: “(1) gross wages
earned, (2) total hours worked by the employee, except as provided in
subdivision (j), (3) the number of piece-rate units earned and any applicable
piece rate if the employee is paid on a piece-rate basis, (4) all deductions,
provided that all deductions made on written orders of the employee may be
aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates
of the period for which the employee is paid, (7) the name of the employee and
only the last four digits of their social security number or an employee
identification number other than a social security number, (8) the name and
address of the legal entity that is the employer …, and (9) all applicable
hourly rates in effect during the pay period and the corresponding number of
hours worked at each hourly rate by the employee ….” (Lab. Code, § 226(a).) An employee is deemed to suffer injury if the
employer fails to provide a wage statement or fails to provide accurate and
complete information under subsection (a).
(Lab. Code, § 226(e).)
In the 9th cause of action,
Plaintiff alleges that Defendants failed to provide Plaintiff with accurate
wage statements and records showing “all hours worked, paychecks representing
all wages earned, wage statements or itemized stubs showing hourly wage, (or
piece meal rate), tips, overtime, bonus, vacation, as well as any employment
deductions for all hours worked. Defendants’ failure to provide or maintain an accurate
record of overtime hours worked and minimum wages earned specifically injured
Plaintiff by depriving Plaintiff of all wages and earnings earned.” (Compl., ¶79.) Plaintiff alleges that Defendants willfully
and intentionally violated the code by failing to show the total hours worked, failing
to show the applicable overtime rates paid or owed, failing to record overtime
hours worked, and failing to pay overtime rates. (Id., ¶80.)
Defendants argue that the 9th
cause of action fails to allege facts that the wage statements were deficient
or had missing/inaccurate information that resulted in Plaintiff’s injury. However, Plaintiff has alleged facts that the
wage statements were inaccurate as they failed to provide the information
listed in paragraph 79 in her complaint.
She alleges that as a result of the missing information, she was
deprived of all wages and earnings earned—particularly with respect to overtime
hours worked and minimum wages. This is
sufficient at the demurrer stage.
The demurrer to the 9th cause
of action is overruled.
G.
4th
cause of action for wrongful termination in violation of public policy and 10th
cause of action for unlawful business practices in violation of Business &
Professions Code § 17200
Defendants demur
to the 4th and 10th causes of action, arguing that they
are derivative of Plaintiff’s statutory claims and, thus, are unsupported by
facts.
In the 4th
cause of action, Plaintiff alleges that she was wrongfully terminated when she
complained of unpaid wages and requested sick leave. (Compl., ¶¶47-48.) As discussed above, the Court has sustained
the demurrer as to the 2nd, 3rd, and 7th
causes of action, which relate to her claims for unpaid wages and retaliation for
complaining about unpaid wages. However,
there are still sufficient allegations that Plaintiff was retaliated against
and, thereby, wrongfully terminated based on her request for use of sick
leave. As there is some basis for the 4th
cause of action to go forward, the Court will overrule the demurrer to the 4th
cause of action based on the sick leave allegations. A demurrer cannot rightfully be sustained to
part of a cause of action or to a particular type of damage or remedy. (Kong
v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal. App. 4th
1028, 1047.)
“The elements of a claim for wrongful discharge in violation
of public policy are (1) an employer-employee relationship, (2) the employer
terminated the plaintiff's employment, (3) the termination was substantially
motivated by a violation of public policy, and (4) the discharge caused the
plaintiff harm.” (Yau
v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th
144, 154; see also CACI 2430.)
In order to plead
a claim under Business and Professions Code section 17200, there must be
allegations demonstrating that the Defendants engaged in an unlawful, unfair,
or fraudulent business act or practice.
(Paulus v. Bob Lynch Ford, Inc.
(2006) 139 Cal.App.4th 659, 676-77.) A
violation of the unlawful prong includes anything that can properly be called a
business practice and that at the same time is forbidden by law. (Id.) As discussed above, Plaintiff has alleged
sufficient facts regarding Labor Code violations, which may be a basis for a
UCL claim. As such, the demurrer to the
10th cause of action is overruled.
CONCLUSION AND ORDER
Defendants SFT Investment Corp. and
Arman Sarkissian’s demurrer to the complaint is overruled as to the 1st,
4th, 5th, 6th, 9th, and 10th
causes of action. The demurrer is
sustained with 20 days leave to amend as to the 2nd, 3rd,
7th, and 8th causes of action.
Defendants shall provide
notice of this order.
DATED: October 11, 2024 ___________________________
John
J. Kralik
Judge
of the Superior Court