Judge: Lynette Gridiron Winston, Case: 24PSCV00778, Date: 2024-09-23 Tentative Ruling

Case Number: 24PSCV00778    Hearing Date: September 23, 2024    Dept: 6

CASE NAME:  Wanbin Yan v. Futong Container Transportation Co. Ltd., et al. 

Defendant Futong Container Transportation Co. Ltd.’s Demurrer to Complaint 

TENTATIVE RULING 

The Court SUSTAINS the demurrer to the First Cause of Action and Second Cause of Action with 20 days’ leave to amend. The Court SUSTAINS the demurrer to the Third Cause of Action without leave to amend. 

            Defendant Futong is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is an employment case. On March 13, 2024, plaintiff Wanbin Yan (Plaintiff) filed this action against defendants Futong Container Transportation Co. Ltd. (Futong), Soho Logistic Inc. (Soho), Yaoyun Li, Emma Chen, Jian Chen, Hope Huo (collectively, Defendants) and Does 1 through 20, alleging causes of action for hostile work environment and harrassment [sic], wrongful constructive termination, willful misclassification of employees as independent contractors, failure to pay earned wages, non-payment of overtime time/and or [sic] or double time wages, failure to pay wages timely, pay stub violations, failure to provide rest breaks and/or meal periods, failure to reimburse all necessary expenditures, and unfair business practices. 

On May 15, 2024, Futong demurred to the complaint. On August 27, 2024, Plaintiff opposed the demurrer. On September 16, 2024, Futong replied. 

LEGAL STANDARD – Demurrer 

            A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]) 

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)  

DISCUSSION 

Meet and Confer 

Per Code of Civil Procedure section 430.41, subdivision (a), Futong was required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Futong’s efforts to meet and confer sufficient. (Phan Decl., ¶¶ 2-3.) 

First Cause of Action – Hostile Work Environment and Harrassment [sic] 

To state a cause of action for harassment under the FEHA, the plaintiff must allege facts demonstrating that he was a member of a protected class who was subjected to unwelcome harassment, the harassment was based on the plaintiff’s membership in the protected class, the harassment unreasonably interfered with the plaintiff’s work performance by creating a hostile work environment, and the defendant is liable for the harassment. (Martin v. Bd. of Trustees of California State Univ. (2023) 97 Cal.App.5th 149, 170.) 

Futong demurs to the First Cause of Action for hostile work environment and harassment on the grounds that it fails to state a cause of action. Futong contends the complaint fails to identify what allegedly protected class Plaintiff falls under and lacks factual allegations whether Plaintiff was subject to harassment because of a protected characteristic. Futong also contends Plaintiff fails to allege any facts demonstrating he was subjected to any severe or pervasive conduct. 

In opposition, Plaintiff contends he has clearly alleged that he was subjected to offensive comments, abusive conduct, and a threat based on a false accusation of a crime in the work environment which altered the conditions of Plaintiff’s employment. Plaintiff then contends he alleged that Defendants failed to address his complaints for this accusation, threat and unfair treatment, and that he was subjected to further harassment and punishment for having complained of the harassment. Plaintiff further contends that he alleged Defendants engaged in or threatened an act of violence or intimidation directed at him, and that Defendants failed to defend him against the harassment. 

The Court agrees with Futong that Plaintiff fails to allege he is a member of a protected class and that he was harassed because he was a member of a protected class. A protected class includes race, religion, physical and mental disability, sex, gender, or sexual orientation, among other things. (See Gov. Code, § 12940, subd. (a).) The complaint contains no allegations demonstrating that Plaintiff was a member of a protected class. (See Compl., ¶¶ 16-29.) The complaint also fails to allege any facts, as opposed to conclusions, showing that Plaintiff was subjected to harassment. The Court also does not find persuasive Plaintiff’s argument that Defendants failed to address his complaints regarding a false accusation or for having complained about the accusation. (See Gov. Code, § 12940., subd. (h).) The complaint contains no allegations demonstrating Plaintiff made any complaints to Defendants about the alleged false accusation. (See Compl., ¶¶ 16-29.) 

Based on the foregoing, the Court SUSTAINS the demurrer to the First Cause of Action with leave to amend. 

Second Cause of Action – Wrongful Constructive Termination 

To state a cause of action for wrongful constructive termination, the plaintiff must plead facts demonstrating that the defendant coerced the plaintiff’s resignation either by creating objectively intolerable working conditions or by failing to remedy objectively intolerable working conditions that are known to the defendant. (Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.4th 731, 737.) “Constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal. 4th 1238, 1244-1245.) 

Futong demurs to the Second Cause of Action for wrongful constructive termination on the grounds that it fails to state a cause of action. Futong contends the complaint fails to allege any facts to show that Futong created or permitted working conditions that were so intolerable that Plaintiff was compelled to resign. Futong contends the complaint merely contains a series of conclusory allegations. 

In opposition, Plaintiff contends he has alleged that Defendants created intolerable working conditions by falsely accusing him of being responsible for the stolen cart and then threatening him, in addition to other labor code violations alleged in the complaint, and to being subjected to further hostilities. 

The Court agrees with Defendants. The complaint largely alleges in a conclusory fashion that Defendants harassed Plaintiff without setting forth any specific facts. The Court finds the complaint fails to allege sufficient facts to demonstrate an objectively intolerable working condition for purposes of a wrongful constructive termination claim. 

Accordingly, the Court SUSTAINS the demurrer to the Second Cause of Action with leave to amend. 

Third Cause of Action – Willful Misclassification of Employees as Independent Contractors 

“It is unlawful for any person or employer to engage in any of the following activities: (1) Willful misclassification of an individual as an independent contractor.” (Lab. Code, § 226.8, subd. (a)(1).) Labor Code section 226.8 does not provide a private right of action. (Noe v. Superior Ct. (2015) 237 Cal.App.4th 316, 341 (Noe).) 

Futong demurs to the Third Cause of Action for willful misclassification of employees as independent contractors on the grounds that it fails to state a cause of action. Futong contends that there is no private right of action for a Labor Code section 226.8 violation, citing Noe. In opposition, Plaintiff contends he is not seeking to enforce section 226.8 directly, but is instead alleging misclassification to support his other claims for damages and penalties, particularly the Tenth Cause of Action for unfair business practices. 

The Court agrees with Futong. The law makes clear that Labor Code section 226.8, which governs misclassification of employees as independent contractors, does not provide a private right of action. (Noe, supra, 237 Cal.App.4th at p. 341 [“section 226.8 does not provide a private right of action…”]) Plaintiff’s argument about not seeking to enforce Labor Code section 226.8 directly is unavailing. 

Based on the foregoing, the Court SUSTAINS the demurrer to the Third Cause of Action without leave to amend. 

CONCLUSION 

The Court SUSTAINS the demurrer to the First Cause of Action and Second Cause of Action with 20 days’ leave to amend. The Court SUSTAINS the demurrer to the Third Cause of Action without leave to amend. 

            Defendant Futong is ordered to give notice of the Court’s ruling within five calendar days of this order.