Judge Kerry Bensinger, Case Number: 23STCV07752, Date: 2024-01-09 Tentative Ruling

On April 10, 2023, Plaintiff, Olivia Cecilia Hernandez, initiated this action for events that took place during her employment with MDRN Staffing Inc. (“MDRN”). On May 31, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants, MDRN and David Mota, for the following causes of action:

(10) Violation of Whistle Blower Protection Pursuant to California Labor Code § 1102.5

On August 8, 2023, MDRN filed a Notice of Taking Defendant’s Motion to Compel Arbitration Off Calendar.

On August 16, 2023, MDRN filed a Demurrer to the Sixth, Seventh, Eighth, Tenth, Eleventh, Twelfth, Thirteenth, and Fourteenth Causes of Action in the FAC. MDRN filed this Amended Demurrer on August 24, 2023. The hearing was set for December 8, 2023 and continued on the Court’s motion to January 9, 2024.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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 complainant to show the Court that a pleading can be amended successfully. (Ibid.)

The Demurrer is untimely. “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (Code Civ. Proc. § 430.40, subd. (a).) Here, MDRN filed its initial Demurrer to the FAC more than 30 days after being served with the FAC.

MDRN argues the Demurrer is timely because an objection that the pleading does not state facts sufficient to constitute a cause of action is never waived. MDRN is correct that such an objection is never waived. (See Code Civ. Proc. § 430.080, subd. (a).) But Section 430.080 concerns only the grounds for an objection to the pleadings. It does not set forth the time limit within which a party must file a demurrer to the pleading. As Plaintiff correctly points out, a demurrer is not the only way for MDRN to state its objections to the pleadings. MDRN may bring a motion for judgment on the pleadings on the basis that the FAC does not state facts sufficient to constitute a cause of action. “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.¿ [Citations.]”¿ (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057 1064; Code Civ. Proc. § 438.)¿

MDRN further argues that the 30-day time limit to bring a demurrer is discretionary. A court has broad discretion “to increase the time for filing a demurrer in furtherance of justice and on any terms that may be proper.” (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) Here, the Court exercises its discretion not to consider MDRN’s Demurrer. MDRN chose to bring a motion to compel arbitration as its responsive pleading, then withdrew that motion after meeting and conferring with Plaintiff. In all, 70 days passed before MDRN eventually filed a Demurrer to the FAC. By contrast, Jackson concerned the filing of a demurrer 38 days after the plaintiff served the complaint.

Discovery is underway. MDRN will have another opportunity to test its objections, if it so chooses, through a motion for judgment on the pleadings.

Defendant MDRN Staffing Inc. is ordered to file and serve its Answer within 20 days of this order.

Kerry Bensinger

Judge of the Superior Court