Judge Lynette Gridiron Winston, Case Number: 25PSCV00281, Date: 2025-05-06 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 25PSCV00281, Date: 2025-05-06 Tentative Ruling

2. Defendant New Providence Care, Inc.’s Motion to Strike Portions of the Complaint

The Court SUSTAINS the demurrer to the Eighth, Twelfth, and Fourteenth Causes of Action with 20 days’ leave to amend. The Court OVERRULES the demurrer to the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and Thirteenth Causes of Action. The Court OVERRULES the demurrer in all other respects.

The Court GRANTS the motion to strike as to the following portions of the complaint with 20 days’ leave to amend:

2. Page 27, lines 14-15, paragraph 184, but only as to the words, “and penalties pursuant to Labor Code § 226” on;

9. Page 31, prayer for relief, paragraph 8, but only as to the words, “including but not limited to all penalties authorized by the California Labor Code §§226(e), 226.3, and 2699,”; and

10. Page 32, prayer for relief, paragraph 10, but only as to the words, “California Civil Code § 1021.5”..

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

This is an employment dispute. On January 27, 2025, plaintiff Mayra De Dios (Plaintiff) filed this action against defendant New Providence Care, Inc. (Defendant) and Does 1 through 100, alleging causes of action for discrimination in violation of the Fair Employment and Housing Act, retaliation in violation of the Fair Employment and Housing Act, failure to prevent discrimination and retaliation in violation of the Fair Employment and Housing Act, whistleblower retaliation in violation of California Labor Code § 1102.5, whistleblower retaliation in violation of California Labor Code § 98.6, whistleblower retaliation in violation of California Labor Code § 6310, wrongful termination in violation of public policy, intentional infliction of emotional distress, failure to pay minimum wages, failure to compensate for all hours worked, failure to provide meal periods, failure to provide accurate wage statements, violation of California’s Unfair Competition law, and failure to maintain required records.

On March 21, 2025, Defendant demurred to and moved to strike portions of the complaint. On April 21, 2025, Plaintiff opposed both motions. On April 29, 2025, Defendant replied to both oppositions.

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 (Donabedian).) 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. at pp. 993-994.)

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 pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); 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, 1046-1047.)

The Court notes that Defendant’s demurrer combines each ground for demurrer into one paragraph in violation of Rule 3.1320, subdivision (a). (Cal. Rules of Court, rule 3.1320, subd. (a) [“Each ground of demurrer must be in a separate paragraph…”].) The Court will still consider the demurrer, but admonishes Defendant to comply with the requirements of the California Rules of Court going forward.

Per Code of Civil Procedure section 430.41, subdivision (a), Defendant 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 Defendant’s efforts to meet and confer insufficient, as Defendant’s counsel only sent a letter to Plaintiff’s counsel. (Vo Decl., Ex. 1.) Nevertheless, the Court may not overrule a demurrer for failure to adequately meet and confer. (Code Civ. Proc., § 430.41, subd. (a)(4).) The Court will still consider Defendant’s demurrer, but nevertheless admonishes Defendant to comply with the requirements of the Code of Civil Procedure going forward.

“[I]t is ‘plaintiff's burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with [DFEH] and obtaining a right-to-sue letter.’ [Citations.]” (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345.) This means that there are effectively two limitations periods that apply in FEHA actions, i.e., the limitations period for filing the administrative complaint and the limitations period for filing the lawsuit after the administrative process is over. Currently, the administrative filing must be made within three years of the act that causes the complaint. (Gov. Code, § 12960, subd. (e)(5) (“[a] complaint… shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred”). The lawsuit must then be filed within one year after the administrative process concludes. (Id., § 12965, subd. (c)(1)(C).)

Defendant contends the First, Second, and Third Causes of Action in the complaint are uncertain because no date is provided when Plaintiff allegedly made this claim to the Department of Fair Employment and Housing (DFEH). Defendant also contends no date is provided when Plaintiff allegedly received her right-to-sue letter, nor is the letter attached to the complaint. Defendant contends these claims may be time-barred without such facts pleaded.

In opposition, Plaintiff contends that she timely filed her complaint with the California Civil Rights Department and received a notice of her right to sue on January 21, 2025.

"[I]t is plaintiff's burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with DFEH and obtaining a right-to-sue letter." (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345) (quotation omitted).) “While a demurrer based on statute of limitations lies where the dates in question are shown on the face of the complaint, if those dates are missing, there is no ground for a general demurrer. [Citations.]” (United W. Med. Centers v. Superior Ct. (1996) 42 Cal.App.4th 500, 505.)

As to the FEHA causes of action, Plaintiff alleges that she exhausted administrative remedies by timely filing charges of discrimination and retaliation with the DFEH and received a notice of her right to sue (Case No. 202501-27818221). (Compl., ¶ 96.) At the demurrer stage, this allegation is sufficient and the Court must accept this allegation as true. (See Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1086 ("Ortega alleged that he timely filed a complaint with the DFEH, and this is sufficient to plead exhaustion."); Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 721 ("Williams alleged that he timely filed a complaint with the Department. This is sufficient to plead exhaustion.").) The fact that the complaint does not allege when the right-to-sue letter was received does not render these causes of action subject to demurrer. Since the complaint does not affirmatively demonstrate on its face that the FEHA claims are time-barred, Defendants' demurrer cannot be sustained based upon the FEHA limitations periods. "A demurrer is not the proper vehicle for determining the truth of disputed facts." (Fiorito v. Superior Court (1990) 226 Cal.App.3d 433, 438.)

Therefore, the Court OVERRULES the demurrer to the First, Second, and Third Causes of Action on the grounds that they are uncertain vis-à-vis the right-to-sue letter.

Defendant contends the complaint does not sufficiently allege facts to support alter ego liability. In opposition, Plaintiff contends to have sufficiently alleged alter ego liability.

"To recover on an alter ego theory, a plaintiff need not use the words 'alter ego,' but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated as the sole actor." (Leek v. Cooper (2011) 194 Cal.App.4th 399, 415.) However, "[a] claim against a defendant, based on the alter ego theory, is not itself a claim for substantive relief, e.g., breach of contract or to set aside a fraudulent conveyance, but rather, procedural, i.e., to disregard the corporate entity as a distinct defendant and to hold the alter ego individuals liable on the obligations of the corporation where the corporate form is being used by the individuals to escape personal liability, sanction a fraud, or promote injustice." (Hennessey's Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351, 1359.)

The complaint asserts liability based upon the moving Defendant’s individual conduct, such that Plaintiff need not rely upon the alter ego doctrine to impose liability upon Defendant New Providence. Accordingly, the Court addresses the claims without reliance upon the alter ego doctrine and Defendant’s arguments do not serve as a separate basis for a demurrer to any of the causes of action alleged.

The Court therefore declines to address the parties’ arguments here and OVERRULES the demurrer with respect to this argument.

To plead a case for discrimination under FEHA, the plaintiff must allege facts demonstrating that “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.)

Defendant demurs to the First Cause of Action for discrimination on the grounds that it fails to state a cause of action and is uncertain. Defendant contends the complaint only alleges that Defendant’s knowledge of Plaintiff’s sex/gender and sexual orientation was a motivating factor for the discriminatory conduct.

In opposition, Plaintiff contends the complaint alleges sufficient facts to establish a claim for gender and sex discrimination, such as Plaintiff being in a same-sex relationship, competently performed her position as caregiver in which she received praise for her work ethic, and Kimberly started treating Plaintiff differently after learning of Plaintiff’s same-sex relationship. Plaintiff also contends Kimberly dismissed Plaintiff’s multiple complaints about workplace safety, shouted in Plaintiff’s face, reduced her hours, reassigned her to different shifts, sought excuses to terminate Plaintiff’s employment, and ultimately Defendant terminated Plaintiff’s employment and refused to pay her a full final paycheck.

The Court finds the complaint has alleged sufficient facts to state a cause of action for discrimination. The complaint alleges that Plaintiff was a member of a protected class in terms of sex/gender and sexual orientation. (Compl., ¶¶ 33, 39.) The complaint alleges that Plaintiff was performing the job competently. (Compl., ¶ 26.) The complaint alleges Defendant terminated Plaintiff’s employment. (Compl., ¶¶ 84-85.) The complaint also alleges Plaintiff had been working for Defendant for many years and was not treated differently until Plaintiff’s supervisor Kimberly learned approximately eight months before Plaintiff’s termination that Plaintiff was in a same-sex relationship with her girlfriend. (Compl., ¶¶ 22-46, 84-85.)

Based on the foregoing, the Court OVERRULES the demurrer to the First Cause of Action.

To state a cause of action for retaliation under FEHA, Plaintiff must allege facts demonstrating that she: (1) engaged in activity protected by FEHA; (2) was subjected to an adverse employment action; and (3) there is some other circumstance which suggests a causal link between the two. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69-70.) Government Code section 12940, subdivision (h), provides that a person has engaged in protected activity wherever they have “opposed any practices forbidden under this part or…filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940, subd. (h).) The phrase “this part” refers to Government Code sections 12900-12999. (See ibid.) Plaintiff only has a FEHA retaliation claim if she can allege that she opposed a practice forbidden by one of those code sections, or that she previously participated in a legal proceeding authorized by one of those code sections.

Defendant demurs to the Second Cause of Action for retaliation on the grounds that it fails to state a cause of action and is uncertain. Defendant contends Plaintiff has failed to allege any facts demonstrating a causal link between the protected activity and the employer’s action. More specifically, Defendant contends Plaintiff has not provided any facts showing a causal connection between her sexual orientation discovered by her superior, her alleged safety complaints to superiors, or her Labor Code violation complaints and subsequent termination.

In opposition, Plaintiff contends to have established causation by showing that as soon as Plaintiff revealed her same-sex relationship, she suffered adverse actions from Kimberly and Defendant as noted above. Plaintiff contends the complaint alleges facts demonstrating that she did not suffer adverse actions until Kimberly learned of Plaintiff’s sexuality in February 2024, i.e., not long before Plaintiff began suffering the above-mentioned actions and ultimate termination of her employment.

The Court finds the complaint alleges sufficient facts to state a cause of action for retaliation under the FEHA. The complaint alleges that Plaintiff complained of health and safety issues at Defendant’s care facility and that she was terminated within approximately eight months of making those complaints to her supervisory personnel. (Compl., ¶¶ 43-52, 84-85; see Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1110, fn. 6 [to establish a prima facie case for retaliation, the employer’s adverse action must occur within a relatively short period of time].)

Based on the foregoing, the Court OVERRULES the demurrer to the Second Cause of Action.

A cause of action for failure to prevent discrimination, retaliation, or harassment is viable only if there is a viable claim for discrimination, harassment, or retaliation. (See Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314-1315; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

Defendant demurs to the Third Cause of Action for failure to prevent discrimination and retaliation in violation of the Fair Employment and Housing Act on the grounds that it fails to state a cause of action and is uncertain. Defendant contends Plaintiff has not established causation or provided facts linking her termination to her same sex relationship, wage and hour complaints, or safety complaints.

In opposition, Plaintiff contends that Defendant was on notice of Plaintiff’s complaints about her hostile and unsafe working environment which were caused because of her supervisor’s discriminatory animus and did nothing to prevent it. Plaintiff contends Defendant terminated Plaintiff under pretext.

Given that the Court finds the complaint alleges sufficient facts to state causes of action for discrimination and retaliation, the Court also finds the complaint alleges sufficient facts for failure to prevent discrimination and retaliation.

Based on the foregoing, the Court OVERRULES the demurrer to the Third Cause of Action.

To state a cause of action for retaliation under Labor Code section 1102.5, the plaintiff employee must allege facts demonstrating that the defendant employer retaliated against the plaintiff because the plaintiff disclosed or might have disclosed information to a government or law enforcement agency, or to a person with authority over the employee or has authority to investigate, discover, or correct the violation. (Lab. Code, § 1102.5, subd. (b).) A cause of action under this code section may also be stated by alleging facts demonstrating the employer retaliated against the employee for the employee’s refusal to participate in illegal activity. (Id., § 1102.5, subd. (c).)

Defendant demurs to the Fourth Cause of Action for violation of Labor Code section 1102.5 on the grounds that it fails to state a cause of action and is uncertain. Defendants contends Plaintiff has not sufficiently indicated how the whistleblower statute applies and fails to plead any causal link between her superior’s alleged knowledge of her same sex status, Labor Code violation complaints, and safety complaints on the one hand and her adverse employment action of termination on the other. Defendant contends Plaintiff has not provided facts demonstrating refusal to participate in an illegal activity or reporting it to a public agency.

In opposition, Plaintiff contends she engaged in a protected activity by complaining numerous times to multiple supervisors about health and safety code violations, elder law violations, and wage and hour code violations.

The Court agrees with Plaintiff. The complaint alleges that Defendant terminated Plaintiff’s employment because Plaintiff made numerous complaints to multiple supervisors regarding alleged health and safety code violations, elder law violations, and wage and hour code violations. (See Compl., ¶¶ 43-51, 56, 59-78.) These allegations are sufficient to state a cause of action for violation of Labor Code section 1102.5.

Based on the foregoing, the Court OVERRULES the demurrer to the Fourth Cause of Action.

Labor Code section 98.6, subdivision (a) provides, in part: "A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter. . . or because the employee . . . made a written or oral complaint that he or she is owed unpaid wages, . . . or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her." (Lab. Code § 98.6, subd. (a).)

Defendant demurs to the Fifth Cause of Action for violation of Labor Code section 98.6 on the grounds that it fails to state a cause of action and is uncertain. Defendant’s arguments here are the same as those made above with respect to the Fourth Cause of Action.

In opposition, Plaintiff contends she repeatedly complained about unpaid wages and reimbursements, including her lack of receipt of full wages upon termination. Plaintiff contends that despite her complaints, Defendant did not address the issues and instead terminated Plaintiff in retaliation, which is evidenced by the close temporal proximity between Plaintiff’s complaints and Defendant’s adverse action.

The Court finds the complaint states a cause of action for violation of Labor Code section 98.6. The complaint allege facts demonstrating that Plaintiff made written or oral complaints that she was owed unpaid wages and that Defendant took adverse action because of her complaints.

Based on the foregoing, the Court OVERRULES the demurrer to the Fifth Cause of Action.

CACI 4605 provides that in order to establish a claim under Labor Code § 6310, a plaintiff must allege the following: (1) plaintiff was an employee of defendant; (2) plaintiff, on his own behalf or on behalf of others, made an oral complaint to Defendant regarding unsafe working conditions or exercised his rights to workplace health and safety; (3) defendant discharged plaintiff; (4) plaintiff's complaint was a substantial motivating reason for defendant's decision to discharge plaintiff; (5) plaintiff was harmed; and (6) defendant's conduct was a substantial factor in causing plaintiff's harm. (See CACI 4605.)

With regard to element 2, the complaint must have been made to (1) the Division of Occupational Safety and Health, (2) to another governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, (3) to the employer, or (4) to the employee's representative. (CACI 4605; Lab. Code § 6310(a)(1).)

Defendant demurs to the Sixth Cause of Action for violation of Labor Code section 6310 on the grounds that it fails to state a cause of action and is uncertain. Defendant contends Plaintiff failed to sufficiently and causally link that she was retaliated against for complaining about employee safety or health.

In opposition, Plaintiff contends that Defendant reduced Plaintiff’s hours, made Plaintiff continue working in poor conditions, and ultimately terminated Plaintiff. Plaintiff also contends the close temporal proximity between Plaintiff’s complaints and Defendant’s adverse action sufficiently establishes a causal link.

The Court finds the complaint alleges sufficient facts to support a claim for violation of Labor Code section 6310. The complaint alleges facts demonstrating that Plaintiff filed a complaint with Defendant before Defendant terminated her employment. (See Compl., ¶¶ 16-96.)

Based on the foregoing, the Court OVERRULES the demurrer to the Sixth Cause of Action.

Seventh Cause of Action – Wrongful Termination in Violation of Public Policy

To state a cause of action for wrongful termination in violation of public policy, the plaintiff must allege facts demonstrating, “(1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm. [Citation.]” (Garcia-Brower v. Premier Auto. Imports of CA, LLC (2020) 55 Cal.App.5th 961, 973.)

Defendant demurs to the Seventh Cause of Action for wrongful termination in violation of public policy on the grounds that it fails to state a cause of action and is uncertain. Defendant contends Plaintiff has provided insufficient facts to support the requisite nexus between the protected activity and her employment with Defendant.

In opposition, Plaintiff contends the complaint clearly demonstrates that there is close proximity between Plaintiff’s numerous complaints and Defendant’s termination of Plaintiff.

The Court finds the complaint alleges sufficient facts to state a cause of action for wrongful termination in violation of public policy. The complaint alleges that Defendant employed Plaintiff, Defendant terminated Plaintiff’s employment, Defendant was substantially motivated by a violation of public policy due to Plaintiff having made various complaints about health and safety conditions in the workplace, and the violation caused Plaintiff harm in terms of lost income. (Compl., ¶¶ 16-96, 166; Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 300 [plaintiff had common law claim for retaliatory dismissal for reporting workplace health and safety issues].)

Based on the foregoing, the Court OVERRULES the demurrer to the Seventh Cause of Action.

To state a cause of action for intentional infliction of emotional distress (IIED), the plaintiff must allege facts demonstrating, “(1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273 (Berry).) “Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous. [Citation.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534; but see Berry, supra, 90 Cal.App.5th at p. 1273 [“’[W]hether conduct is ‘outrageous’ is usually a question of fact.’ [Citation]”.)

Defendant demurs to the Eighth Cause of Action for IIED on the grounds that it fails to state a cause of action and is uncertain. Defendant contends the complaint’s allegations focus primarily on alleged inaction and dismissive behavior not extreme and outrageous behavior.

In opposition, Plaintiff references Kimberly’s statement about her being a Christian and opposed to same-sex relationship, and that Kimberly discriminated against Plaintiff by engaging in vindictive and outrageous behavior by scrutinizing Plaintiff, dismissing her workplace safety complaints, shouting in Plaintiff’s face, reducing her hours, reassigning her to different shifts, and seeking excuses to terminate Plaintiff’s employment. Plaintiff contends she has suffered humiliation, mental anguish, and severe emotional distress.

The Court finds that the complaint does not allege sufficient facts to state a cause of action for IIED. While the complaint alleges facts demonstrating improper conduct, at least for purposes of the discrimination claim, the Court does not find these same allegations necessarily rise to the level of extreme and outrageous conduct necessary for an IIED claim. (See Compl., ¶¶ 16-96.)

Based on the foregoing, the Court SUSTAINS the demurrer to the Eighth Cause of Action with 20 days’ leave to amend.

To state a cause of action for failure to pay minimum wages, the plaintiff must allege facts demonstrating that the plaintiff received less than the legal minimum wage or legal overtime compensation from the defendant employer. (Lab. Code, § 1194, subd. (a).) “The minimum wage for employees fixed by the commission or by any applicable state or local law, is the minimum wage to be paid to employees, and the payment of a lower wage than the minimum so fixed is unlawful.” (Lab. Code, § 1197.)

Defendant demurs to the Ninth Cause of Action for failure to pay minimum wages on the grounds that it fails to state a cause of action and is uncertain. Defendant contends the complaint alleges in a conclusory fashion that Plaintiff was not paid properly underly Labor Code sections 1194 and 1197.

In opposition, Plaintiff contends that the complaint alleges she did not receive reimbursement for purchasing work items throughout her employment, that she was not paid for performing tasks outside of her job description throughout her employment, and that she was not paid her final paycheck in full.

The Court finds the complaint alleges sufficient facts to state a cause of action for failure to pay minimum wages. The complaint alleges that Defendant did not pay Plaintiff overtime compensation during her employment. (Compl., ¶¶ 68-69, 91; Lab. Code, § 1194, subd. (a).) Also, while statutory causes of action require pleading with more specificity, the Court notes the inherent difficulty of alleging sufficient facts based on the absence of something happening, especially over a period of many years during which Plaintiff allegedly worked for Defendant. (See Compl., ¶¶ 19-96; Code Civ. Proc., § 452; Covenant Care, supra, 32 Cal.4th at p. 790.) The specifics regarding amounts and dates can be clarified through discovery. (Cf. Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [demurrers for uncertainty are disfavored because ambiguities can be clarified through discovery].)

Based on the foregoing, the Court OVERRULES the demurrer to the Ninth Cause of Action.

Defendant demurs to the Tenth Cause of Action for failure to pay all hours worked on the grounds that it fails to state a cause of action and is uncertain. Defendant contends Plaintiff does not allege anything other than conclusory claims that she was not paid for all hours she allegedly worked, and does not allege anything specific regarding hours, amounts, or dates she was not allegedly paid properly under Labor Code section 1198.

In opposition, Plaintiff contends the complaint alleges that Plaintiff did not receive overtime pay while she worked weekend shifts with Kimberly from approximately 2020 to 2024, and that Plaintiff’s final paycheck did not include the holiday pay that she was entitled to as a full-time employee.

The Court finds the complaint alleges sufficient facts to support this cause of action. The complaint alleges that Plaintiff did not receive compensation for holidays or vacations, which are recoverable as unpaid wages. (Compl., ¶¶ 72, 89-91; see Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 779.) Also, while statutory causes of action require pleading with more specificity, the Court notes the inherent difficulty of alleging sufficient facts based on the absence of something happening, especially over a period of many years during which Plaintiff allegedly worked for Defendant. (See Compl., ¶¶ 19-96; Code Civ. Proc., § 452; Covenant Care, supra, 32 Cal.4th at p. 790.) The specifics regarding amounts and dates can be clarified through discovery. (Cf. Chen v. Berenjian, 33 Cal.App.5th at p. 822 [demurrers for uncertainty are disfavored because ambiguities can be clarified through discovery].)

Based on the foregoing, the Court OVERRULES the demurrer to the Tenth Cause of Action.

To state a cause of action for failure to provide meal periods, the plaintiff must allege facts demonstrating that the plaintiff did not receive meal periods while working for the defendant. (See Lab. Code, §§ 226.7, subd. (b), 512, subd. (a).)

Defendant demurs to the Eleventh Cause of Action for failure to provide meal periods on the grounds that it fails to state a cause of action and is uncertain. Defendant contends the allegations for this claim are conclusory and nothing specific is alleged as to hours, amounts, or dates when Plaintiff was not allegedly provided meal periods.

In opposition, Plaintiff contends the complaint alleges that she did not receive uninterrupted meal and rest breaks while she was working twelve-hour shifts between 2020 to 2024.

The Court finds the complaint alleges sufficient facts to state a cause of action for failure to provide meal periods. The complaint alleges that Plaintiff was not offered uninterrupted rest and meal breaks during her 12-hours shifts. (Compl., ¶ 68.) Also, while statutory causes of action require pleading with more specificity, the Court notes the inherent difficulty of alleging sufficient facts based on the absence of something happening, especially over a period of many years during which Plaintiff allegedly worked for Defendant. (See Compl., ¶¶ 19-96; Code Civ. Proc., § 452; Covenant Care, supra, 32 Cal.4th at p. 790.) The specifics regarding amounts and dates can be clarified through discovery. (Cf. Chen v. Berenjian, 33 Cal.App.5th at p. 822 [demurrers for uncertainty are disfavored because ambiguities can be clarified through discovery].)

Based on the foregoing, the Court OVERRULES the demurrer to the Eleventh Cause of Action.

To state a cause of action for failure to provide accurate wage statements, the plaintiff must allege facts demonstrating that the defendant failed to comply with the requirements set forth in Labor Code section 226, subdivision (a). (Lab. Code, § 226, subd. (a).)

Defendant demurs to the Twelfth Cause of Action for failure to provide accurate wage statements on the grounds that it fails to state a cause of action and is uncertain. Defendant contends the complaint’s allegations here are conclusory and that nothing specific is alleged as to hours, amounts or dates.

In opposition, Plaintiff contends the complaint alleges that Plaintiff was not accurately compensated for the 12-hour shifts she recorded between 2020 and 2024, and that she as paid by Venmo at least six times during her employment, failing to receive a wage statement on those occasions.

The Court agrees with Defendant and finds the complaint fails to allege sufficient facts to state a cause of action for failure to provide accurate wage statements. As noted above, statutory causes of action must be pleaded with specificity. (See Covenant Care, supra, 32 Cal.4th at p. 790.) The complaint provides few allegations regarding what was supposedly wrong with Plaintiff’s wage statements, other than apparently not getting paid what she was purportedly owed. (See Compl., ¶¶ 19-96, 197-198.) Plaintiff also may be claiming that she received no wage statements at all, but it is not clear from the allegations. (See Compl., ¶¶ 72, 74, 198.) While the complaint may allege Plaintiff received some payments via Venmo, it does not clearly allege that she was not provided wage statements with those payments. (See Compl., ¶¶ 72, 74, 198.)

Based on the foregoing, the Court SUSTAINS the demurrer to the Twelfth Cause of Action with 20 days’ leave to amend.

Thirteenth Cause of Action – Violation of California’s Unfair Competition Law

Defendant demurs to the Thirteenth Cause of Action for violation of California’s Unfair Competition law on the grounds that it fails to state a cause of action and is uncertain. Defendant contends the complaint does not allege the requisite underlying violation of a specific statute or law to support a claim under the unlawful prong, and contends that the complaint does not allege any action taken by Defendant that qualifies as unfair. Defendant also contends Plaintiff is not a consumer.

In opposition, Plaintiff contends she has pleaded sufficient facts for an unfair competition law claim, and that Defendant has violated numerous wage and hour codes. Plaintiff contends she suffered lost wages, and that there is no requirement that Plaintiff be a consumer to bring this claim.

The Court finds the complaint alleges sufficient facts to state a cause of action for violation of California’s Unfair Competition law. The Court has found that the complaint has stated some causes of action based on violations of other laws, such as discrimination or failure to pay overtime wages. These causes of action are sufficient to support Plaintiff’s unfair competition claim. (See Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779, 782 [“[a]n employer which practices [sexual orientation] discrimination has an unfair competitive advantage over employers who comply with the FEHA…”]; Cortez v. Purolator Air Filtration Prods. Co. (2000) 23 Cal.4th 163, 172-173 [employer’s failure to pay overtime wages provides unfair competitive advantage over employers who pay overtime wages].)

Based on the foregoing, the Court OVERRULES the demurrer to the Thirteenth Cause of Action.

To state a cause of action for violation of failure to maintain required records under Labor Code section 1174, the plaintiff must allege facts demonstrating that the defendant employer willfully failed to maintain records containing the names and addresses of all employees and the ages of all minors, or that the defendant employer prohibited the Division of Labor Standards enforcement from inspecting records. (Lab. Code, § 1174.5.)

Defendant demurs to the Fourteenth Cause of Action for failure to maintain required records on the grounds that it fails to state a cause of action and is uncertain. Defendant contends the complaint’s allegations for this cause of action are conclusory.

In opposition, Plaintiff contends the complaint alleges Defendant did not have an official timekeeping system and Plaintiff was required to record her own hours and report them to her supervisor Kimberly. Plaintiff also contends Defendant failed to maintain accurate records when it paid Plaintiff via Venmo and denied Plaintiff her full paycheck because she was not deemed a full-time employee, despite the fact that she was hired as a full-time employee and worked over 50 hours a week for most of her employment with Defendant.

The Court finds the complaint fails to allege sufficient facts for failure to maintain required records. First, the Court already addressed Plaintiff’s Labor Code section 226 claim above and found that claim deficient, so raising it again here is duplicative and subjects it to demurrer. (Compl., ¶ 209; (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [duplicative causes of action subject to demurrer].)

Second, with respect to Labor Code section 1174, the complaint does not allege any facts regarding Defendant failing to maintain records containing the names and addresses of employees, or that Defendant prohibited someone from the Division of Labor Standards to inspect Defendant’s records. (See Compl., ¶¶ 19-96, 208-210.) Additionally, statutory causes of action must be pleaded with specificity. (Covenant Care, supra, 32 Cal.4th at p. 790.)

Based on the foregoing, the Court SUSTAINS the demurrer to the Fourteenth Cause of Action with 20 days’ leave to amend.

The Court notes that the demurrer also includes a demurrer to the entire complaint. (Demurrer, p. 5, ¶ 15.) Given that the Court has overruled the demurrer as to some causes of action in the complaint, the Court also OVERRULES Defendant’s demurrer to the entire complaint.

“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.)

Per Code of Civil Procedure section 435.5, subdivision (a), Defendant was required to meet and confer in person, by telephone, or by video conference before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Defendant’s efforts to meet and confer insufficient, as Defendant’s counsel only sent a letter to Plaintiff’s counsel. (Vo Decl., Ex. 1.) Nevertheless, the Court may not overrule a demurrer for failure to adequately meet and confer. (Code Civ. Proc., § 435.5, subd. (a)(4).) The Court will still consider Defendant’s demurrer, but nevertheless admonishes Defendant to comply with the requirements of the Code of Civil Procedure going forward.

A claim for punitive damages is subject to a motion to strike when the allegations fail to rise to the level of malice, oppression, or fraud necessary under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.)

Defendant moves to strike the punitive damages requests in the complaint on the grounds that they are not drawn in conformity with the laws of this statute and are irrelevant, false, or improper. Defendant contends these allegations are unsupported by the conclusory allegations in the complaint.

In opposition, Plaintiff contends there is no basis to strike the punitive damage claims. Plaintiff contends the complaint establishes that Defendant acted in blatant violation of FEHA, the Labor Code, and tort law. Plaintiff contends the punitive damage claims are well-supported by the allegations in the complaint.

Given the Court’s overruling of the demurrer to various causes of action in the complaint, the Court finds the complaint states sufficient facts to support punitive damage requests based on those causes of action. However, since the Court sustained the demurrer to the eighth cause of action, the Court will GRANT the motion as to the following portions of the complaint with leave to amend:

Attorney fees are recoverable by law, contract, or statute. (Code Civ. Proc., § 1033.5, subd. (a)(10).)

Defendant seeks to strike the attorney fee requests for paragraphs 107, 120, and 133, on pages 16, 18, and 19 of the complaint, respectively, based on Defendant’s argument that the corresponding causes of action are barred by the one-year statute of limitations. Defendant contends there are questionable facts in the complaint regarding whether Plaintiff exhausted her administrative remedies because the complaint contains no date when Plaintiff allegedly received her right-to-sue letter from the Department of Fair Employment and Housing, nor was any such letter attached to the complaint. Defendant contends this means Plaintiff’s claims here might be time barred for failure to file within the one year statute of limitations under Government Code section 12965 et seq.

In opposition, Plaintiff contends she timely filed charges of discrimination and retaliation against Defendant with the California Civil Rights Department and received a notice of her right to sue on January 21, 2025.

Given that the Court overruled the demurrer with respect to Defendant’s arguments that the first three causes of action are time barred, and also overruled the demurrer as to the First, Second, and Third Causes of Action, the Court also DENIES the motion as to paragraphs 107, 120, and 133, on pages 16, 18, and 19 of the complaint, respectively.

Defendant seeks to strike portions of the complaint that purportedly make improper damage claims. Defendant contends Plaintiff’s claims for treble damages and enhanced damages are unwarranted because the case law does not support the recovery of those damages.

In opposition, Plaintiff contends the allegations support Plaintiff’s enhanced damages claims.

The Court disagrees with Defendant regarding paragraph 181 of the complaint. As stated above, the Court found Plaintiff alleged sufficient facts to state a cause of action for failure to pay minimum wages. The corresponding damage requests are proper under Labor Code sections 1194 and 1194.2. (Lab. Code, §§ 1194, subd. (a), 1194.2, subd. (a).) The Court therefore DENIES the motion as to paragraph 181 of the complaint.

The Court also finds paragraph 184 of the complaint is proper since the Court overruled the demurrer to the Tenth Cause of Action, except for the portion that seeks penalties under Labor Code section 226, since the Court sustained the demurrer to Plaintiff’s Twelfth Cause of Action based on Labor Code section 226. Thus, the Court will GRANT the motion to strike only as to the words, “and penalties pursuant to Labor Code § 226” on page 27, lines 14-15, paragraph 184 of the complaint. The Court otherwise DENIES the motion as to paragraph 184 of the complaint.

The Court DENIES the motion as to paragraph 185 of the complaint since the Court, as noted above, overruled the demurrer to the Tenth Cause of Action. The Court GRANTS the motion as to “226” on page 27, line 27, paragraph 186 of the complaint, but DENIES the motion as to all other parts of paragraph 186 of the complaint.

The Court DENIES the motion as to paragraph 193[2] of the complaint since the Court overruled the demurrer to the Eleventh Cause of Action. Prejudgment interest is generally recoverable as a matter of law for tort claims. (See Civ. Code, §§ 3287-3288.)

The Court GRANTS the motion as to paragraph 202 of the complaint since the Court sustained the demurrer to the Twelfth Cause of Action.

The Court GRANTS the motion as to paragraph 207 of the complaint since Plaintiff is not proceeding as a private attorney general, in a representative capacity, or for the benefit of a passive beneficiary in this action for purposes of the substantial benefit doctrine or common fund doctrine. (See Code Civ. Proc., § 1021.5; Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1179 [unfair competition law generally does not provide for recovery of attorney fees, but a prevailing plaintiff may recover attorney fees as a private attorney general under Code Civ. Proc., § 1021.5]; Smith v. Szeyller (2019) 31 Cal.App.5th 450, 460 [substantial benefit doctrine permits recovery of attorney fees when the litigant proceeds in a representative capacity and obtains a substantial benefit in a pecuniary or nonpecuniary nature]; Walsh v. Woods (1986) 187 Cal.App.3d 1273, 1276 [common fund doctrine permits recovery of attorney fees against a passive beneficiary who derives a benefit from the litigation].)

The Court GRANTS the motion as to paragraph 210[3] of the complaint since the Court sustained the demurrer to the Fourteenth Cause of Action.

1. Page 27, lines 14-15, paragraph 184, but only as to the words, “and penalties pursuant to Labor Code § 226” on;

The Court DENIES the motion as to page 31, prayer for relief, paragraph 3 since the Court overruled the demurrer as to some causes of action which provide for the recovery of costs and attorney fees.

The Court GRANTS the motion as to page 31, prayer for relief, paragraph 6. While the complaint does allege Plaintiff incurred expenses in the discharge of her duties, this would be a separate cause of action which Plaintiff has not otherwise pleaded. (See Compl., ¶ 70; Lab. Code, § 2802.) There is no cause of action alleged in the complaint for failure to reimburse under Labor Code section 2802. (See generally, Compl.)

The Court GRANTS the motion as to page 31, prayer for relief, paragraph 7 in its entirety, as the complaint does not allege any facts to support a request for waiting time penalties under Labor Code section 203. (Lab. Code, § 203.)

The Court GRANTS the motion as to page 31, prayer for relief, paragraph 8, but only as to the words, “including but not limited to all penalties authorized by the California Labor Code §§226(e), 226.3, and 2699,” as the Court sustained the demurrer to the Twelfth Cause of Action regarding Labor Code section 226, and Plaintiff is not proceeding as a private attorney general under Labor Code section 2699. (See Lab. Code, §§ 226, 226.3, 2699.)

The Court DENIES the motion as to page 32, prayer for relief, paragraph 9 since the Court overruled the demurrer as to Plaintiff’s claims for nonpayment of wages. (Lab. Code, §§ 218.6, 1194, 2802.) Also, prejudgment interest is generally recoverable as a matter of law. (Civ. Code, §§ 3287-3288.)

The Court GRANTS the motion as to page 32, prayer for relief, paragraph 10, but only as to the words, “California Civil Code § 1021.5”, as Plaintiff is not proceeding as a private attorney general in this action. (See Code Civ. Proc., § 1021.5; Walker v. Countrywide Home Loans, Inc., supra, 98 Cal.App.4th at p. 1179.)

3. Page 31, prayer for relief, paragraph 8, but only as to the words, “including but not limited to all penalties authorized by the California Labor Code §§226(e), 226.3, and 2699,”;

4. Page 32, prayer for relief, paragraph 10, but only as to the words, “California Civil Code § 1021.5”.

The Court GRANTS the motion to strike as to the following portions of the complaint with 20 days’ leave to amend:

2. Page 27, lines 14-15, paragraph 184, but only as to the words, “and penalties pursuant to Labor Code § 226” on;

9. Page 31, prayer for relief, paragraph 8, but only as to the words, “including but not limited to all penalties authorized by the California Labor Code §§226(e), 226.3, and 2699,”; and

10. Page 32, prayer for relief, paragraph 10, but only as to the words, “California Civil Code § 1021.5”.

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

[1] Defendant’s notice specified paragraph 159, but there is no such paragraph on page 26 of the complaint, but the Court infers Defendant intended paragraph 175 given that this paragraph requests punitive damages.

[2] The Court assumes the reference to paragraph 192 in the motion was in error, as paragraph 193 contains the language Defendant seeks to strike. (Compl., ¶¶ 192-193.)

[3] The Court assumes the reference to paragraph 201 on page 31 of the complaint was in error and that Defendant meant paragraph 210 on page 31 of the complaint. (See Compl., ¶ 210.)