Judge: Joseph Lipner, Case: 24STCV02333, Date: 2024-07-02 Tentative Ruling
Case Number: 24STCV02333 Hearing Date: July 2, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
ANTHONY HELENA, Plaintiff, v. ADY’S PREMIUM SEWING, INC., et al., Defendants. |
Case No:
24STCV02333 Hearing Date: July 2, 2024 Calendar Number: 11 |
Plaintiff and Cross-Defendant Anthony Helena (“Plaintiff”)
moves to strike the second and twelfth of the Cross-Complaint filed by
Defendants Ady’s Premium Sewing, Inc. (“APS”) and Faiq Ady (collectively,
“Defendants”) under California’s anti-SLAPP statute, Code of Civil Procedure,
section 425.16. Plaintiff also demurs to the second claim in the
Cross-Complaint
The Court DENIES Plaintiff’s special motion to strike.
The Court declines Defendants’ request that the court
declare the motion frivolous and DENIES Defendants’ request for attorney’s fees.
The Court OVERRULES Plaintiff’s demurrer.
This
is a Private Attorneys General Act (“PAGA”) case.
Defendants
own and operate a clothing manufacturing business. Plaintiff was employed by
Defendants as a data entry specialist. Plaintiff’s duties included entry of
payroll data.
Plaintiff
alleges that Defendant systemically failed to provide meal and rest breaks and
to compensate employees for all hours worked.
Plaintiff filed this action on January 30, 2024, raising one
claim for violation of PAGA.
On March 27, 2024, Defendants filed a combined Answer and
Cross-Complaint raising claims for (1) civil theft; (2) indemnity; (3)
intentional misrepresentation; (11) [sic] negligent misrepresentation; and (12)
[sic] negligence.
Defendants allege in the second claim that Plaintiff is
obligated to indemnify them for any wage and hour liability because any such
violations allegedly resulted from Plaintiff’s failure to use reasonable care
in performing his work of entering payroll data. Defendants similarly allege in
their twelfth claim that any wage and hour liability Defendants incur resulted
from negligence by Plaintiff.
Plaintiff filed the anti-SLAPP motion on May 24, 2024 and
demurred to the Cross-Complaint on May 31, 2024.
Code of Civil Procedure section 425.16 requires the court to
strike causes of action arising from an act in furtherance of the defendant’s
right of free speech or petition unless the plaintiff establishes that there is
a probability that the plaintiff will prevail on the claim.
In assessing a defendant’s Code of Civil Procedure section
425.16 special motion to strike, the court must engage in a two-step process. (Shekhter
v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150.) First, the court
must decide whether the defendant has met the threshold burden of showing that
the plaintiff’s cause of action arises from the defendant’s constitutional
rights of free speech or petition for redress of grievances. (Ibid.)
This burden may be met by showing the act which forms the basis for the
plaintiff’s cause of action was an act that falls within one of the four
categories of conduct set forth in Code of Civil Procedure section 425.16,
subdivision (e).
Once a defendant has met its initial burden and established
that the anti-SLAPP statute applies, the burden shifts to the plaintiff to
demonstrate a “probability” of success on the merits. (Code Civ. Proc., §
425.16, subd. (b); Equilon Enters. LLC v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67.) “[T]he plaintiff must demonstrate that the complaint is both
legally sufficient and supported by a sufficient prima facie showing of facts
to sustain a favorable judgment if the evidence submitted by the plaintiff is
credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, internal
quotations omitted.)
As a general matter, in a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins.
Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading
alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth
of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be
amended successfully. (Ibid.;
Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f
there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
To determine the gravamen of an alleged SLAPP, courts look
to the factual basis for liability. (Wallace v. McCubbin (2011) 196
Cal.App.4th 1169, 1190, as modified on denial of reh'g (July 26, 2011)
disapproved of on other grounds by Baral v. Schnitt (2016) 1 Cal.5th
376.)
The
anti-SLAPP statute applies to a “cause of action against a person arising from
any act of that person in furtherance of the person’s right of petition or free
speech under the United States Constitution or the California Constitution in
connection with a public issue.” (Civ.
Proc. Code § 425.16, subd. (b)(1).) The statute defines such acts to include
the following:
(1)
any written or oral statement or writing made before a legislative, executive,
or judicial proceeding, or any other official proceeding authorized by law,
(2)
any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law,
(3)
any written or oral statement or writing made in a place open to the public or
a public forum in connection with an issue of public interest, or
(4)
any other conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection with a public
issue or an issue of public interest.
(Code Civ. Proc., §425.16, subd. (e).)
The anti-SLAPP statute protects statements and writings made
before a legislative, executive, or judicial proceeding. (Code Civ. Proc., §425.16,
subd. (e)(1).) “The constitutional right to petition ... includes the basic act
of filing litigation....” (Birkner v. Lam (2007) 156 Cal.App.4th 275,
281.) “It is beyond question that the initiation and prosecution of [... a
lawsuit is] protected under the anti-SLAPP statute.” (Paiva v. Nichols
(2008) 168 Cal.App.4th 1007, 1017-1018).
“A cause of action arising from defendant's litigation
activity may appropriately be the subject of a section 425.16 special motion to
strike. Any act includes communicative conduct such as the filing, funding, and
prosecution of a civil action.” (Thayer v. Kabateck Brown Kellner LLP
(2012) 207 Cal.App.4th 141, 154 [internal citations and quotation marks
omitted; cleaned up].) All communicative acts performed by attorneys as part of
their representation of a client in a judicial proceeding or other petitioning
context are per se protected as petitioning activity by the anti-SLAPP statute.
(Cabral v. Martins (2009) 177 Cal.App.4th 471; Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1056.) Further, “communications preparatory to or in
anticipation of the bringing of an action or other official proceeding … are
equally entitled to the benefits of section 425.16.” (Briggs v. Eden Council
for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) California courts
have held that pre-litigation communications such as letters threatening to sue
are protected activity. (Neville v. Chudacoff (2008) 160 Cal.App.4th
1255, 1266 [letter to employer's customers accusing ex-employee of
misappropriation of trade secrets and threatening to file litigation was
protected]; CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262,
271 [statements made in 60–day notice of intent to sue required by Prop. 65].)
“Counseling others in anticipation of litigation or encouraging others to sue
is considered protected prelitigation activity.” (Pech v. Doniger (2022)
75 Cal.App.5th 443, 462.)
“[A] statement is ‘in connection with’ litigation under
section 425.16, subdivision (e)(2) if it relates to the substantive issues in
the litigation and is directed to persons having some interest in the
litigation.” (Neville v. Chudacoff, supra, 160 Cal.App.4th at p.
1266; see also Fremont Reorganizing Corp. v. Faigin (2011) 198
Cal.App.4th 1153, 1167 [statements made by the defendant, who was a
court-appointed liquidator in an insolvency proceeding, to the Insurance
Commissioner concerning the assets of the insolvent company were protected].)
The audience to the statements need not be a party to the proceeding, or even a
potential party, but the audience must have some level of specific interest in
the litigation. (Contemporary Services Corp. v. Staff Pro Inc. (2007)
152 CA4th 1043, 1055 [email to customers accusing competitor of
litigation-related misconduct was protected].)
Plaintiff cites two cases to argue that cross-claims for
indemnity and negligence are SLAPP suits. (Motion at p. 1:19-22.) As an initial
matter, this argument misapprehends the standard – protected conduct does not
key off of the type of claim raised against it, but the type of conduct giving
rise to the claim.
Further, Plaintiff’s cases are distinguishable. In Long
Beach Unified School Dist. v. Margaret Williams, LLC (2019) 43 Cal.App.5th
87, the plaintiff signed an indemnity agreement and sued the defendant for
retaliation. (Long Beach Unified School Dist. v. Margaret Williams, LLC
(2019) 43 Cal.App.5th 87, 94.) The defendant demanded that the plaintiff
indemnify the defendant against the plaintiff’s own lawsuit by pure reason of
the indemnity contract, and cross-claimed for breach of contract when the
plaintiff refused to indemnify or defend the defendant against plaintiff’s own
lawsuit. (Id. at p. 95.) The court concluded that the indemnity claim
arose out of protected activity because the allegedly wrongful activity was the
plaintiff’s refusal to sabotage its own lawsuit – not an independent allegedly
negligent act. (Id. at pp. 91, 99.)
By contrast, this case involves a straightforward claim for indemnity
based on the Plaintiff’s own negligence.
Sheley v. Harrop (2017) 9 Cal.App.5th 1147, also
cited by Plaintiff, is similarly distinguishable. There, the defendant
cross-claimed for negligence on the basis that the plaintiff was wrongfully
wasting corporate assets by filing and funding that same lawsuit. (Sheley v.
Harrop (2017) 9 Cal.App.5th 1147, 1167.) The underlying conduct was the
filing and funding of the lawsuit – not an independent negligent act. Here, by contrast, the claim is based on an
independent negligent act.
The Court therefore finds that Plaintiff’s conduct is not
protected, and denies the anti-SLAPP motion.
“If the court finds that a special motion to strike is
frivolous . . . the court shall award costs and reasonable attorney’s fees to a
plaintiff prevailing on the motion.”
(Civ. Proc. Code § 425.16, subd. (c)(1).) Defendants ask that the Court find that Plaintiff’s
motion was frivolous.
The Court declines to do so.
The law governing anti-SLAPP motions is complex, and Plaintiff cited two
cases discussed and distinguished immediately above that could have reasonably (though
mistakenly) been read by Plaintiff to support the motion. Notably, Defendants failed to mention or
distinguish those cases in their opposition.
The Court does not find the motion frivolous and therefore denies
Defendants’ request for attorney’s fees and costs.
Plaintiff demurs to Defendants’ second cross-claim for
indemnity.
“An indemnitee seeking to recover on an agreement for
indemnification must allege the parties’ contractual relationship, the
indemnitee’s performance of that portion of the contract which gives rise to
the indemnification claim, the facts showing a loss within the meaning of the
parties’ indemnification agreement, and the amount of damages sustained.” (Four Star Electric, Inc. v. F & H
Construction (1992) 7 Cal.App.4th 1375, 1380.)
The elements for equitable indemnity are (1) a showing of
fault on the part of the indemnitor and (2) resulting damages to the indemnitee
for which the indemnitor is contractually or equitably responsible. (Gouvis
Engineering v. Superior Court (1995) 37 Cal.App.4th 642, 646.) “To state a
claim for equitable indemnity, a defendant must allege the same harm for which
he may be held liable is properly attributable—at least in part—to the
cross-defendant.” (Platt v. Coldwell
Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445,
fn.7.)
Defendants do not allege a basis for contractual indemnity.
However, Defendants do allege a basis for equitable indemnity by alleging that
Plaintiff negligently entered payroll data incorrectly, resulting in the
alleged wage and hour violations at issue here.
Plaintiff argues that Labor Code sections 558 and 1197.1 do
not create a private right of action for indemnity. This is beside the point,
since Defendants have adequately alleged equitable indemnity.
Plaintiff argues that indemnity in a PAGA action is improper
because it is against public policy to allow an employee to waive the right to
bring a PAGA action, citing Iskanian v. CLS Transportation Los Angeles LLC
(2014) 59 Cal. 4th 348 and Adolph v. Uber Technologies, Inc. (2023) 14
Cal.5th 1104, 1117. However, each of these cases pertained to the waiver, via
an arbitration clause, of the right to bring PAGA actions in court at all.
The ability of a defendant to litigate the substantive issue of indemnity in
court does take away the procedural right of a plaintiff to bring the PAGA
action in court in the first place.
Plaintiff argues that indemnification would violate Labor
Code, section 2802, which provides that “[a]n 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.” (Lab. Code,
§ 2802, subd. (a).) Here, however, Defendants argue that the violations were
not a necessary loss, but rather the result of the improper performance of
Plaintiff’s job. Plaintiff argues that he had no discretion in his job
performance, and was only permitted to follow the instructions of his
supervisors when entering payroll data. This may in fact be true, but it is a
factual issue not appropriate for resolution at the pleading stage.
The Court therefore overrules the demurrer.