Judge Lynette Gridiron Winston, Case Number: 23PSCV00696, Date: 2023-09-27 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV00696, Date: 2023-09-27 Tentative Ruling

Case Number: 23PSCV00696 Hearing Date: September 27, 2023 Dept: 6

CASE NAME: Rafael Cuellar v. Heniff Transportation Systems, LLC

Defendant’s Motion to Strike Certain Allegations in Plaintiff’s Complaint

TENTATIVE RULING
The Court GRANTS the motion to strike without leave to amend as follows:

Paragraph 8(vi);
Paragraph 8(vii);
and Paragraphs 42 through 45.

The Court DENIES the motion to strike in all other respects.

Defendant is ordered to file and serve an answer to the Complaint within 10 calendar days.

Defendant is ordered to give notice and provide proof of service of same within five calendar days.

BACKGROUND
This is a PAGA case. On March 9, 2023, Plaintiff Rafael Cuellar (Plaintiff) filed this action against Defendant Heniff Transportation Systems, LLC (Defendant) and Does 1 through 50, alleging one cause of action for violation of Labor Code section 2698 et seq., comprised of claims for failure to provide employment records, failure to pay overtime/double time, failure to provide meal and rest periods, failure to pay minimum wages, failure to keep accurate payroll records and provide itemized wage statements, failure to pay reporting time wages, failure to pay “split shift” premiums, failure to timely pay wages during employment, failure to timely pay wages upon termination, failure to reimburse necessary business-related expenses and costs, failure to provide notice of paid sick time and accrual, and civil penalties.

On August 11, 2023, Defendant filed the instant motion to strike certain allegations in Plaintiff’s complaint. On September 13, 2023, Plaintiff opposed the motion. On September 20, 2023, Defendant replied.

LEGAL STANDARD
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Id., § 436.)

REQUEST FOR JUDICIAL NOTICE
The Court GRANTS Defendant’s request for judicial notice as to Exhibit A under Evidence Code section 452, subdivisions (c) and (h), as Plaintiff did not oppose the request regarding this exhibit. The Court also GRANTS Defendant’s request for judicial notice as to Exhibit B under Evidence Code section 452, subdivision (c). However, the Court takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.)

PRELIMINARY ISSUES
Plaintiff’s opposition contains numerous issues with respect to the California Rules of Court. First, the opposition is more than ten pages but contains no table of contents or table of authorities. (Cal. Rules of Court, rule 3.1113, subd. (f) [“A memorandum that exceeds 10 pages must include a table of contents and a table of authorities. A memorandum that exceeds 15 pages must also include an opening summary of argument.”])

Second, the opposition is 21 pages long, which well exceeds the 15-page limit for such memorandums. (Id., rule 3.1113, subd. (d) [“Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages. No reply or closing memorandum may exceed 10 pages.”])

Third, since the opposition is an oversized memorandum, it is treated as having been filed late. (Id., rule 3.1113., subd. (g) [“A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.”]) Nevertheless, the Court exercises its discretion to still consider Plaintiff’s opposition. (Cal. Rules of Court, rule 3.1300(d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) The Court admonishes Plaintiff to comply with the California Rules of Court going forward.[1]

DISCUSSION
Meet and Confer
The Court finds Defendant’s meet and confer efforts to be sufficient. (Code Civ. Proc., § 435.5, subd. (a); Smedstad Decl., ¶¶ 2-5.)

Analysis – Sufficiency of Letter to Labor and Workforce Development Agency
“(a) A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met: (1)(A) The aggrieved employee or representative shall give written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.” (Lab. Code § 2699.3, subd. (a)(1)(A).)

Defendant seeks to strike subparagraphs 8(ii) through 8(ix), 8(xi), 17, 25-50, 53-55, 64-71, 73, and 74(b)-(c) from the Complaint, plus the following language from paragraph 57 of the Complaint: “sections 203, 226, 226.7, 1194.” Defendant seeks to strike these parts from the Complaint on the grounds that Plaintiff failed to exhaust the administrative requirements for bringing a PAGA claim per Labor Code section 2699.3. More specifically, Defendant contends Plaintiff’s PAGA pre-suit letter to the California Labor and Workforce Development Agency (LWDA) fails to allege sufficient facts to support Plaintiff’s PAGA claims as required under Labor Code section 2699.3. (Motion, Ex. A.) The Court disagrees.

The LWDA letter makes the following contentions:
1. Plaintiff worked for Defendant as a truck-driver beginning on approximately February 4, 2021;
2. Plaintiff requested Defendant to provide Plaintiff with copies of Plaintiff’s wage and payroll history, all documents signed by Plaintiff, and Plaintiff’s personnel records;
3. Plaintiff and other aggrieved employees regularly worked over eight to twelve hours in a day or 40 hours in a week and that the employers required them to do this work before or after shifts, during off-the-clock meal breaks, and during rest breaks;
4. Defendant failed to provide Plaintiff and other aggrieved employees with meal and rest periods;
5. Defendant failed to pay Plaintiff and other aggrieved employees minimum wage and falsified timekeeping records to hide this fact;
6. Defendant failed to accurately document Plaintiff’s and other aggrieved employees’ off-the-clock work, and that the records failed to list the total hours worked, applicable hourly rates and the numbers of hours worked at each rate, piece-rate units earned and the applicable piece-rate, deductions, track sick leave, list the employee and SSN/EID properly, the full legal name and address of the employer, inclusive dates for which employees are paid, failing to provide employees with the ability to easily access wage statements and get hard copies at no expense to the employee, and failure to state all hours worked as a result of off-the-clock work;
7. Defendant failed to pay Plaintiff and other aggrieved employees for half-days for times they reported to work but were not put to work;
8. Defendant scheduled Plaintiff and other aggrieved employees for multiple shifts, i.e., “split shifts”, throughout the day separated by periods other than bona fide rest or meal breaks and failed to pay them one hour’s pay at minimum wage;
9. Defendant failed to pay Plaintiff and other aggrieved employees on time;
10. Defendant failed to pay Plaintiff and other aggrieved employees timely upon their discharge or resignation from employment; and
11. Defendant failed to reimburse Plaintiff and other aggrieved employees for expenses incurred on Defendant’s behalf, such as use of personal cell phone, travel expenses, and parking expenses, and for which they would not have been able to complete their respective job duties without having incurred such expenses on Defendant’s behalf.

(Motion, Ex. A.)

While the Court agrees that Plaintiff’s LWDA letter is largely conclusory and comprised primarily of discussions regarding the various statutes that Defendant allegedly violated here, the Court nevertheless finds the Complaint does contain sufficient factual contentions to adequately apprise Defendant and the LWDA of what Plaintiff’s claims are. (See Uribe v. Crown Building Maintenance Co. (2021) 70 Cal. App. 5th 986, 1003, citing Williams v. Superior Court (2017) 3 Cal.5th 531, 545-546.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; see also Home Depot U.S.A., Inc. v. Superior Court (2010) 191 Cal.App.4th 210, 224 [“Statutes of this kind [i.e., Labor Code section 2699, subdivision (f)] fall under ‘the general rule that civil statutes for the protection of the public are ... broadly construed in favor of that protective purpose,’ absent exceptional circumstances.”])

Defendant cites multiple cases in support of its motion, but none of them are dispositive of the outcome here. If anything, they support the Court’s decision here. In Uribe, the Court of Appeal held that, “’something more than bare allegations of a Labor Code violation’ is necessary to constitute adequate notice.” (Uribe, supra, 70 Cal.App.5th at p. 1004, quoting Brown v. Superior Court (2018) 28 Cal.App.5th 824, 836.) Plaintiff’s LWDA letter made clear he worked for Defendant as a truck driver starting around February 4, 2021, and that while he worked for Defendant, he was not fully paid for the work he performed, such as overtime or double time, and that he was not given proper breaks and forced to work off-the-clock and/or during rest or meal breaks. The LWDA also stated that Defendant routinely clocked out and/or altered time sheets to reflect rest and/or meal periods that were never taken.(Motion, Ex. A.) The Court finds the LWDA notice sufficient.

Moreover, in another case cited by Defendant, i.e., Brown, the Court of Appeal held that, “[i]n the context of deciding whether a PAGA plaintiff must have ‘some modicum of substantial proof before proceeding with discovery,’ the Supreme Court addressed the PAGA notice requirement: ‘Nothing in ... section 2699.3, subdivision (a)(1)(A), indicates the ‘facts and theories’ provided in support of ‘alleged’ violations must satisfy a particular threshold of weightiness, beyond the requirements of nonfrivolousness generally applicable to any civil filing. [Citing Code Civ. Proc., § 128.7.]” (Brown, supra, 28 Cal.App.5th at p. 836, citing Williams, supra, 3 Cal.5th at pp. 545-546.) Again, while the Court agrees Plaintiff’s allegations are minimal, they do not suggest that Plaintiff’s claims are frivolous as a whole.

Therefore, the Court DENIES Defendant’s motion to strike on these grounds.

Meal and Rest Period Claims
While the Court does agree with Defendant that Plaintiff’s meal and rest period claims may be preempted by federal law, as set forth in Garcia v. Superior Court of Los Angeles County (2022) 80 Cal.App.5th 63, 68), the Court cannot make such determination from the face of the Complaint. In Garcia, the Court held that “California may no longer enforce the [meal and rest break rules] with respect to drivers of property-carrying [commercial motor vehicles] subject to FMCSA's [hours of service] rules.” (Garcia, supra, 80 Cal.App.5th at 68, citing California's Meal and Rest Break Rules for Commercial Motor Vehicle Drivers, 83 Fed.Reg. 67470, 67473, 67480 (Dec. 28, 2018).) There are no allegations in the Complaint showing that Plaintiff and the Aggrieved Employees are drivers of property-carrying [commercial motor vehicles] subject to the Federal Motor Carier Safety Administration’s rules. While Defendant may later be able to prove that Plaintiff is such a driver subject to these rules, the Court is limited to the four corners of the Complaint, which do not contain such allegations.

Therefore, the Court DENIES the motion to strike as to paragraph 8(iii) and paragraphs 28 through 32 of the Complaint, which cover Plaintiff’s meal and rest period claims.

Reporting Time and Split Shift Claims
The Court agrees with Defendant that Plaintiff’s reporting time and split shift claims do not apply to Plaintiff because 8 Cal. Code Regs section 11050 applies to the public housekeeping industry. (See 8 Cal. Code Regs., § 11050 [“This order shall apply to all persons employed in the public housekeeping industry…”]) Plaintiff alleges he is a truck driver, (Compl., ¶ 16), not a member of the public housekeeping industry. The Court further construes Plaintiff’s silence on this issue in Plaintiff’s opposition as evidence that Defendant’s argument is meritorious on this point. (See Holden v. City of San Diego (2019) 43 Cal.App.5th 504, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.)

Therefore, the Court GRANTS the motion to strike as to paragraph 8(vi)-(vii) and paragraphs 42 through 45 of the Complaint, which cover Plaintiff’s reporting time and split shift claims.

Wages Due at Termination Claims
The Court disagrees with Defendant that Plaintiff’s claims regarding wages due at termination must be stricken. This issue was raised in Plaintiff’s LWDA letter. (Compl., Ex. A, p. 9, first three paragraphs.) The allegation of Plaintiff’s job having ended on September 23, 2022 after his LWDA letter was served does not defeat Plaintiff’s claim. So long as Plaintiff was affected by at least one of the Labor Code violations alleged in the Complaint, he has standing to bring claims on behalf of aggrieved employees, and he can recover penalties for all the violations he proves. (See Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745, 761.)

Therefore, the Court DENIES the motion to strike as to wages due at termination.

Sick Leave Claims
The Court also disagrees with Defendant’s contention regarding Plaintiff’s alleged failure to include the issue of sick leave in the LWDA letter. Plaintiff specifically mentioned the alleged failure to account for sick leave. (Compl., Ex. A, p. 7, second paragraph [“failure to track sick leave”].) While this allegation is rather light, the Court finds this sufficient to support Plaintiff’s contentions at the pleading stage.

Therefore, the Court DENIES the motion to strike in all other respects. The Court further notes that the defects of the Complaint discussed herein cannot be cured by amendment, so to the extent the Court grants the motion to strike, it does so without leave to amend.

CONCLUSION
The Court GRANTS the motion to strike without leave to amend as follows:

Paragraph 8(vi);
Paragraph 8(vii); and
Paragraphs 42 through 45.

The Court DENIES the motion to strike in all other respects.

Defendant is ordered to file and serve an answer to the Complaint within 10 calendar days.

Defendant is ordered to give notice and provide proof of service of same within five calendar days.

[1] The Court disagrees with Defendant’s argument regarding Rule 2.108 regarding the spacing, as the California Style Manual prescribes that block quotes are supposed to be single-spaced. (California Style Manual, § 4:20.)