Judge: Jon R. Takasugi, Case: 20STCV30024, Date: 2023-08-07 Tentative Ruling

Case Number: 20STCV30024    Hearing Date: August 7, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s MJOP is GRANTED as to the request for PAGA-based forms of recovery. Defendant’s MJOP is DENIED in all other regards.

On 8/7/2020, Plaintiff Mirae Kim (Plaintiff) filed suit against JC Trade, Inc. d/b/a JC Currency Exchange and Hanna You, alleging: (1) failure to pay overtime compensation; (2) failure to pay wages; (3) failure to pay wages in a timely manner; (4) failure to pay meal and rest period compensation; (5) failure to furnish complaint wage statements; (6) waiting time penalties; (7) failure to produce employment file; (8) failure to produce wage records; (9) wrongful discharge in violation of public policy; (10) defamation per se; (11) retaliation; (12) hostile work environment harassment; (13) religious creed discrimination; and (14) intentional infliction of emotional distress.

            On 10/6/2020, Cross-Complainants JC Trade, Inc. d/b/a JC Currency Exchange, Hanna You, and Jung Eun on aka Jung Eun Lee filed a cross-complaint (XC) against Mirae Kim, alleging: (1) breach of fiduciary duty; (2) conversion; (3) trespass to chattels; (4) invasion of privacy; (5) trespass to chattels; (6) invasion of privacy; and (7) intentional infliction of emotional distress.

            Now, Defendants JC Trade, Inc. and Hanna You (collectively, Defendants) move for a judgment on the pleadings as to the first, second, third, fourth, fifth, sixth, seventh, eighth, eleventh, twelfth, thirteenth, and fourteenth causes of action.

Discussion 

            Defendants argue that Plaintiff cannot state a claim for the first, second, third, fourth, fifth, sixth, seventh, and eighth causes of action because Plaintiff has failed to exhaust her administrative remedies under the Private Attorney General’s Act (PAGA). Defendants argue that Plaintiff cannot state a claim for the eleventh, twelfth, thirteenth, and fourteenth causes of action because Plaintiff has failed to exhaust her administrative remedies under FEHA.

            In opposition, Plaintiff indirectly concedes that she has not exhausted her administrative remedies as to PAGA. However, Plaintiff argues that her failure to provide the statutorily mandated notice to her employer or to the Labor and Workforce Development Agency (LWDA) only precludes her recovering civil penalties for Labor Code violations. It does not preclude her rom seeking other recovery authorized by the relevant Labor Code provisions. Indeed, Lab. Code section 2699(g)(1) provides, in relevant part:

 [A]n aggrieved employee may recover the civil penalty described in subdivision (f) in a civil action pursuant to the procedures specified in Section 2699.3 . . . against whom one or more of the alleged violations was committed. . . . Nothing in this part shall operate to limit an employee's right to pursue or recover other remedies available under state or federal law, either separately or concurrently with an action taken under this part.

            As for her FEHA claims, Plaintiff also admits that at the time of filing this action she had not filed a DFEH complaint or obtained a right-to-sue letter in order to pursue her FEHA claims. However, Plaintiff argues that “[a] plaintiff who prematurely files an action before receiving an RTS Letter may save her claim by filing an amended complaint, after receiving the RTS Letter, which will be deemed to relate back to the filing of the original complaint.” (Opp., 2:19-22.)

            In support, Plaintiff cites Goldman v. Wilsey Foods, Inc. (1989)

216 Cal. App. 3d 1085. There, the Court reversed a trial court determination that the Court lacked jurisdiction for failure to obtain a right to sue letter before filing suit, writing:

The plaintiff filed his original civil complaint on February 4, 1985, before the “right to sue” letter was sent. The original complaint set forth the facts which have remained unchanged throughout the various pleadings in this litigation. At no time have the defendants been unaware of or misled concerning the nature of plaintiff’s case, nor has plaintiff been remiss in seeking relief in the various potentially accessible forums.

                        …

[e]ven though the second amended complaint specifies three causes of action that the original complaint had not, its factual allegations pertaining to plaintiff's injuries and its parties match those of the initial complaint in every particular. The “relation back” doctrine focuses on factual similarity . . . and permits added causes of action to relate back to the initial complaint so long as they arise factually from the same injury. Thus, because the second amended complaint related back to the date the initial complaint was filed, the trial court erroneously ruled that the statute of limitations barred plaintiff's FEHA cause of action.

            (Goldman, supra, 216 Cal.App.3d at p. 1094-5.)

            Here, there is no dispute that Plaintiff has since obtained a right to sue letter. As such, Plaintiff could dismiss her FEHA claims, without prejudice, and file a new FEHA based action since (a) Plaintiff filed her DFEH Complaint within 3-years of the August 29, 2020 termination of her employment; (b) the DFEH/CRD issued its right to sue letter on May 6, 2023; and (c) Plaintiff, therefore, has one-year, or until May 26, 2024, to file a Superior Court action.

            Moreover, like in Goldman, Plaintiff represents that the FAC will be identical to the original complaint, except for the addition of allegations concerning the issuance of the May 26, 2023 RTS Notice.

            Thus, in the interest of judicial economy, the Court will grant leave to amend to file a first amended complaint.

            Based on the foregoing, Defendant’s MJOP is granted as to the request for PAGA-based forms of recovery. Defendant’s MJOP is denied in all other regards.

It is so ordered.

Dated:  August    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.