Judge: Kenneth R. Freeman, Case: 24STCV12265, Date: 2025-02-18 Tentative Ruling


Case Number: 24STCV12265    Hearing Date: February 18, 2025    Dept: 14

RAMIREZ V. FACILITY SERVICES INTEGRATED, LLC

 

Case No.: 24STCV12265

Hearing Date: 2/18/25

Department 14

 

DEMURRERS TO COMPLAINT

 

TENTATIVE RULING

 

            Sustain, with twenty (20) days’ leave to amend, Defendant Win.It’s demurrer to the 7th cause of action, to clarify whether this claim is being brought as a direct claim seeking statutory penalties or as a representative claim seeking civil penalties pursuant to PAGA; overrule the remainder of Win.It’s demurrer, and the entirety of FSI’s demurrer; upon receipt of the amended Complaint, deem the pleading at issue, and Defendants will have thirty (30) days to answer

 

DISCUSSION

 

I. Background

This is a putative wage-and-hour class action. Plaintiff Jackie Marie Ramirez alleges that she was employed by Defendants Facility Services Integrated, LLC (“FSI”) and Win.ItAmerica, Inc. (“Win.It”) as a non-exempt employee, with duties that included, but were not limited to, opening and closing ages for truck drivers, and monitoring employees. [Complaint, ¶2.] Plaintiff alleges that she worked from Defendants from approximately August 2023 to the present. [Id.]

 

Plaintiff alleges that Defendants have engaged in myriad wage-and-hour violations, including failing to pay overtime wages to Plaintiff and Class Members; failing to pay minimum wages to Plaintiff and the Class Members; failure to provide Plaintiff and the Class timely thirty (30) minute uninterrupted meal periods; failure to authorize and permit rest periods of at least ten (10) minutes per four (4) hours worked or major fraction thereof; failure to pay Plaintiff and the Class Members the full amount of their wages owed to them up on termination and/or resignation as required by Labor Code §§201 and 201; failure to provide accurate itemized wage statements; failure to pay the full amount of wages for labor; failure to reimburse mileage and/or gas costs incurred in driving personal vehicles for work-related purposes and failure to use cellular phones for work-related purposes; failure to provide Plaintiffs and the class members with compensation at their final rate of pay; and failure to provide rights under the Healthy Workplace Healthy Families Act of 2014. [Complaint, ¶¶15-24.]

 

Based on these allegations and the other allegations set forth in the Complaint, Plaintiff brings putative class claims for: 1. Failure To Pay Overtime Wages; 2. Failure To Pay Minimum Wages; 3. Failure To Provide Meal Periods; 4. Failure To Provide Rest Periods; 5. Waiting Time Penalties; 6. Wage Statement Violations; 7. Failure To Timely Pay Wages; 8. Failure To Indemnify; 9. Violation Of Labor Code § 227.3; And 10. Unfair Competition. Plaintiff brings these claims on behalf of the following putative class:

 

[A]ll current and former non-exempt employees of Defendants within the State of California at any time commencing four (4) years preceding the filing of Plaintiff’s complaint up until the time that notice of the class action is provided to the class. [Complaint, ¶27.]

 

Defendants FSI and Win.It have separately demurred to the Complaint pursuant to CCP §§430.10(e) and (f).

 

II. Demurrer

 

Defendant FSI has demurred to each of the substantive causes of action in the Complaint. Both FSI and Win.It have demurred to the class allegations. Defendant Win.It has also demurred to the allegations of joint liability and, specifically, to the 7th cause of action.

           

                        1. Demurrer to substantive causes of action

 

            As set forth above, there are ten (10) causes of action alleged in the Complaint. These ten causes of action are the standard types of wage-and-hour causes of action in many other cases before the Court. Plaintiff alleges the following conduct as a basis for the claims:

 

· Failing to pay overtime wages to Plaintiff and putative class members, or some of them, working over eight (8) hours per day, forty (40) hours per week and seven (7) consecutive days in a workweek, by “failing to accurately track and/or pay for all minutes actually worked at the proper overtime rate of pay; engaging, suffering, or permitting employees to work off the clock, including, without limitation, by requiring Plaintiff and Class Members: to come early to work and leave late work without being able to clock in for all that time, to complete pre-shift tasks before clocking in and post-shift tasks after clocking out, to clock out for meal periods and continue working, to clock out for rest periods, to make phone calls off the clock; failing to include all forms of remuneration, including non-discretionary bonuses, incentive pay, meal allowances, mask allowances, gift cards and other forms of remuneration into the regular rate of pay for the pay periods where overtime was worked and the additional compensation was earned for the purpose of calculating the overtime rate of pay; and detrimental rounding of employee time entries, editing and/or manipulation of time entries.”

 

· Failing to pay minimum wages to Plaintiff and Class Members, or some of them, by “failing to accurately track and/or pay for all hours actually worked at their regular rate of pay that is above the minimum wage; engaging, suffering, or permitting employees to work off the clock, including, without limitation, by requiring Plaintiff and Class Members: to come early to work and leave late work without being able to clock in for all that time, to complete pre-shift tasks before clocking in and post-shift tasks after clocking out, to clock out for meal periods and continue working, to clock out for rest periods, to make phone calls off the clock; detrimental rounding of employee time entries; editing and/or manipulation of time entries to show less hours than actually worked; failing to pay split shift premiums; and failing to pay reporting time pay.”

 

· Failing to provide Plaintiff and Class Members, or some of them, “full, timely thirty (30) minute uninterrupted meal period for days on which they worked more than five (5) hours in a work day and a second thirty (30) minute uninterrupted meal period for days on which they worked in excess of ten (10) hours in a work day, and failing to provide compensation for such unprovided meal periods”

 

· Failing to provide Plaintiff and Class Members, or some of them, “to take rest periods of at least ten (10) minutes per four (4) hours worked or major fraction thereof and failed to provide compensation for such unprovided rest periods.”

 

· Failing to pay Plaintiff and Class Members, or some of them, “the full amount of their wages owed to them upon termination and/or resignation as required by Labor Code sections 201 and 202, including for, without limitation, failing to pay overtime wages, minimum wages, premium wages, and vacation pay pursuant to Labor Code section 227.3.”

 

· Failing to furnish Plaintiff and Class Members, or some of them, “with itemized wage statements that accurately reflect gross wages earned; total hours worked; net wages earned; all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate” and failing “to furnish employees with an accurate calculation of gross and gross wages earned, as well as gross and net wages paid.”

 

· Failing to pay Plaintiff and Class Members, or some of them, “the full amount of their wages for labor performed in a timely fashion as required under Labor Code section 204.”

 

· Failing to reimburse Plaintiff and Class Members, or some of them, “for the costs incurred in mileage and/or gas costs incurred in driving personal vehicles for work-related purposes; and using cellular phones for work-related purposes.”

 

· Maintaining and enforcing a consistent policy of failing to provide Plaintiff and Class Members, or some of them, “with compensation at their final rate of pay for unused vested paid vacation days pursuant to Labor Code section 227.3.”

 

· Maintaining and enforcing a consistent policy of failing to provide Plaintiff and Class Members, or some of them, “with the rights provided to them under the Healthy Workplace Heathy Families Act of 2014, codified at Labor Code section 245, et seq.” See Complaint, at ¶¶ 15-24.

 

            While the Complaint is not the model of clarity, there is sufficient information in the Complaint for the Defendants to answer. The extent of any policy or practice resulting in these alleged violations would be revealed during the subsequent discovery phase of this case. Defendants essentially would have the Court require Plaintiff set forth specific evidentiary instances of alleged violations. However, this is not the standard, and Defendants’ position amounts to a “speaking” demurrer.

 

With respect to the UCL claim specifically, “[u]nlike other states’ Acts, the UCL permits a cause of action to be brought if a practice violates some other law.  In effect, the ‘unlawful’ prong of §17200 makes a violation of the underlying law a per se violation of §17200.”  California Practice Guide, Bus. & Prof. C. §17200 Practice, ¶3:53 (The Rutter Group 2024) (referencing Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 950; Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180; and Farmers Ins. Exch. v. Sup.Ct. (1992) 2 Cal.4th 377, 383). Significantly, §17200 allows a remedy even if the underlying statute confers no private right of action.  Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 561-567; Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 210-211; California Med. Ass’n. v. Aetna U.S. Healthcare of Cal., Inc. (2001) 94 Cal.App.4th 151, 169. 

 

Plaintiff alleges an “unlawful” violation of the UCL only, premised on alleged violations of the underlying statutes upon which the first through ninth causes of action are based. Plaintiff further alleges a violation of the Healthy Workplace Healthy Families Act of 2014 (Labor Code §§245, et seq.). [Complaint, ¶103.] These allegations are sufficient at the pleading stage to allege a UCL violation.

 

            For these reasons, the demurrer to the substantive claims is generally overruled (with the exception of the 7th cause of action, as discussed further below).

 

            Demurrer to joint employer liability

 

            Defendant Win.It demurs to the allegations of joint employer liability. As with the standards set forth above, the Court must view the allegations liberally and in context. Plaintiff alleges “that all the times mentioned herein, each of the Defendants was the agent, principal, employee, employer, representative, joint venture or co-conspirator of each of the other defendants, either actually or ostensibly, and in doing the things alleged herein acted within the course and scope of such agency, employment, joint venture, and conspiracy.” [Complaint, ¶6.] At ¶9, Plaintiff alleges “there exists such a unity of interest and ownership between Defendants, and each of them, that their individuality and separateness have ceased to exist.” [Complaint, ¶9.]

 

Once again, while not the model of clarity, there is sufficient information for Defendant Win.It to admit, deny, or otherwise assert affirmative defenses to the joint employer allegations. The precise nature of Win.It’s relationship to FSI, and to Plaintiff and the class (as well as any control Win.It has, or had, over Plaintiff and the class’s employment), will be the subject of discovery at subsequent phases of this litigation. However, it is premature to dispose of these allegations. The demurrer to the joint employer liability allegations is overruled.

 

                        3. Demurrer to class allegations

 

            Defendants’ demurrer to the class allegations is based on their argument that Plaintiff has pled no community of interest. The class is defined as “all current and former non-exempt employees of Defendants within the State of California at any time commencing four (4) years preceding the filing of Plaintiff’s complaint up until the time that notice of the class action is provided to the class.” [Complaint, ¶27.]

 

            At the pleading stage, this is sufficient. There is nothing which indicates that “there is no reasonable possibility” that Plaintiff could establish a community of interest among the potential class members or that individual issues predominate over common questions of law and fact. Silva v. Block, supra, 49 Cal.App.4th at 349-350. As discussed, this is a wage-and-hour case, and the class, as defined, is comprised of Defendants’ current and former non-exempt employees during the statutory period. While the claims in this case may ultimately prove unamenable to class treatment for a variety of reasons, the Court cannot make this determination. Defendants will have the full opportunity to challenge any motion for class certification following the class discovery phase of this case.

 

            Therefore, the demurrer to the class allegations is overruled.

 

             7th cause of action

 

With some exceptions, California Labor Code §204 requires an employer to pay all wages earned by any person in employment “twice during each calendar month, on days designated in advance by the employer as the regular paydays.” Labor Code §204. Under Labor Code §210, and as is applicable to the 7th cause of action:

 

(a) In addition to, and entirely independent and apart from, any other penalty provided in this article, every person who fails to pay the wages of each employee as provided in …204, … shall be subject to a penalty as follows:

 

(1) For any initial violation, one hundred dollars ($100) for each failure to pay each employee.

 

(2) For each subsequent violation, or any willful or intentional violation, two hundred dollars ($200) for each failure to pay each employee, plus 25 percent of the amount unlawfully withheld.

 

(b) The penalty shall either be recovered by the employee as a statutory penalty pursuant to Section 98 or by the Labor Commissioner as a civil penalty through the issuance of a citation or pursuant to Section 98.3. The procedures for issuing, contesting, and enforcing judgments for citations issued by the Labor Commissioner under this section shall be the same as those set forth in subdivisions (b) through (k), inclusive, of Section 1197.1.

 

(c) An employee is only entitled to either recover the statutory penalty provided for in this section or to enforce a civil penalty as set forth in subdivision (a) of Section 2699, but not both, for the same violation. Labor Code §210 (emphasis added).

 

Enforcement of section 204 is typically pursued through administrative mechanisms or under the Private Attorneys General Act (PAGA). PAGA allows aggrieved employees to act as private attorneys general to recover civil penalties for  Labor Code violations, including those under section 204, on behalf of themselves and other employees. See Turrieta v. Lyft, Inc. (2024) 16 Cal.5th 664.  This means that while employees cannot directly sue for violations of section 204, they can bring a representative action under PAGA to seek civil penalties for such violations. ZB, N.A. v. Sup. Ct. (2019) 8 Cal.5th 175.

 

The PAGA process requires employees to first notify the Labor and Workforce Development Agency (LWDA) of the alleged violations and allow the agency the opportunity to investigate and pursue the claims. If the LWDA declines to act, the employee may then proceed with a PAGA action. Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745.

 

Here, Plaintiff alleges a direct cause of action, on behalf of herself and the putative class, for violation of Labor Code §204. At ¶87, Plaintiff alleges that “[p]ursuant to Labor Code section 210, Plaintiff and Class Members are entitled to recover penalties for Defendants’ violations of Labor Code section 204, in the amount of one hundred dollars ($100) for each initial violation per Class Member, and two hundred dollars ($200) for each subsequent violation in connection with each payment that was made in violation of Labor Code section 204 per Class Member, plus 25 percent of the amount unlawfully withheld.” Further, at ¶88, Plaintiff alleges that “[p]ursuant to Labor Code section 218.6, Code of Civil Procedure sections 1021.5 and 1032, and Civil Code section 3287, Plaintiff and Class Members are entitled to recovery of penalties, interest, and their costs of suit, as well.” [Complaint, ¶88.]

 

However, the 7th cause of action is not limited in the manner Defendant Win.It argues. As §210 makes clear, an employee bringing a claim under §204 may seek to either recover the statutory penalty under §210, or may seek to a civil penalty as a private attorney general under PAGA.

 

It is unclear, though, whether Plaintiff is seeking the statutory penalties contemplated under §210, or the civil penalties provided for under PAGA. The claim itself is not brought as a representative PAGA claim, but the nature of the penalties sought must be clarified. Therefore, the demurrer is sustained. However, the Court will grant leave to amend to allege whether Plaintiff is bringing this claim as a claim seeking statutory penalties or as a claim seeking civil penalties consistent with PAGA.

 

Conclusion

 

            For these reasons, Defendant Win.It’s demurrer to the 7th cause of action is sustained, with leave to amend, to clarify whether this claim is being brought as a direct claim seeking statutory penalties or as a representative claim seeking civil penalties pursuant to PAGA. Plaintiff shall have twenty (20) days leave to amend. The remainder of Win.It’s demurrer, and the entirety of FSI’s demurrer, are overruled. Upon receipt of the amended Complaint, the Court will deem the pleading at issue, and Defendants will have thirty (30) days to answer.

 

            Given the Court’s order on the demurrers, it need not address at this time whether the meet-and-confer requirements were satisfied.