Judge: Kenneth J. Medel, Case: 37-2021-00046392-CU-WT-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Wrongful Termination Motion Hearing (Civil) 37-2021-00046392-CU-WT-CTL DOE VS WANG [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Judgment on the Pleadings, 08/23/2023

- Defendant's Motion for Judgment on the Pleadings is DENIED. A motion for judgment on the pleadings raised on the court's own motion is limited to the same two specific grounds. CCP 438(c)(3)(B)(1)-(2) – either lack of jurisdiction or failure to state a cause of action. A common law motion for judgment on the pleadings is likewise strictly limited to the objection that a complaint fails to state sufficient facts to constitute a cause of action. See Korchemney v. Piterman (2021) 68 Cal.App.5th 1032, 1055. Defendant's argument is that this complaint is barred by the compulsory cross-complaint.

Even if this was a proper motion for judgment on the pleadings, a compulsory cross-claim is one that must arise out of the same 'transaction' as that which produced the plaintiff's original action. Ranchers Bank v. Pressman (1971) 19 Cal.App.3d 612,619.

The Complaint brought by Solomon Bagels & Donuts, Inc. was against plaintiff. The complaint was not brought by Jeffrey Wang (owner). As such, any cross-complaint could arguably only have been compulsory against Solomon Bagels - the compulsory cross-complaint statute could have no application to claims Plaintiff could also have brought in her cross-complaint against Jeffrey Wang, as he was a non-party. That Plaintiff did cross-complain against Wang in the first action does not defeat the language of the statute, her claims against him were permissive only, not compulsory. As a result, the causes of action in this case which are stated against both Solomon Bagels and Jeffrey Wang - the First through Eighth causes of action -- categorically could not be disposed of by way of Solomon Bagel's motion.

As to other claims, the original complaint filed by Solomon Bagels involved allegations against plaintiff in her capacity as shareholder and officer that she converted company funds. The crux of Solon-ron's Complaint was that Plaintiff supposedly engaged in 'improper and unauthorized transactions involving Solomon's bank accounts and finances' in her capacity as an officer and director. Solornon claimed conversion, replevin, breach of fiduciary duty, and interference with the company's prospective business dealings based specifically upon Plaintifls status as 'an officer, director and shareholder of Solomon,' not as an employee, and based upon her supposed misuse of her position to divert funds and physical property.

Plaintiff cross-complained in that case with claims likewise financial in nature, arising from her position as a shareholder, officer and director in the shop, and alleging Solomon and Wang's breaches of fiduciary duty, in his capacity as an officer and director, by virtue of their failure and refusal to repay several promissory notes given to Defendants by Plaintiff s father Guang Xian Lu, and by Plaintiff herself as a 'shareholder,' for the formation and operation of the business.

This case involves different allegations related to plaintiff's allegations of sexual misconduct. She alleges causes of action related to employment discrimination as well as sexual assault, rape, battery and harassment against Wang personally, for the unconsented physical touchings, and violence he threatened against her when she sought to end their intimate, sexual relationship.

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3004406  43 CASE NUMBER: CASE TITLE:  DOE VS WANG [IMAGED]  37-2021-00046392-CU-WT-CTL Plaintiff's Fifth Cause of Action for constructive termination is predicated upon the tortious misconduct of Wang, including the sexual abuse perpetrated in violation of the FEHA, which made the work environment intolerable. Plaintiff s Eighth Cause of Action for Wage and Hour Violations involves the primary right under the Labor Code to receive the wages due and owing related to employment.

The claims are not compulsory.

- Defendant's Motion to Revoke Plaintiff's Jane Doe Designation will be heard.

The Court sets an Order to Show Cause for plaintiff to appear and show why she should proceed with a pseudo name in this litigation.

Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party's request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access. Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal. App. 5th 105, 111-112.

There does not appear to be a hearing allowing plaintiff to proceed as a 'Doe' in this case.

There is no opposition to this motion. However, the Court sets this matter for an O.S.C. to afford an opportunity for plaintiff to make a showing required for anonymity if plaintiff so chooses.

If plaintiff fails to make a showing (or chooses not to proceed anonymously), the Court with require plaintiff to file an Amended Complaint with her identity specified in the caption. The Caption to the Amended Complaint should identify plaintiff: 'Jane Doe, correctly named as ______, with plaintiff's name specified. (Logistically, the Court cannot change the name of plaintiff for the actual identity of the case.) Calendar No.: Event ID:  TENTATIVE RULINGS

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