Judge: Malcolm Mackey, Case: 22STCV04921, Date: 2022-08-08 Tentative Ruling

Case Number: 22STCV04921    Hearing Date: August 8, 2022    Dept: 55

AVALOS v. PBF ENERGY LIMITED                                         22STCV04921

Hearing Date:  8/8/22,  Dept. 55

#2:   DEMURRER TO PLAINTIFF’S COMPLAINT.

 

Notice:  Okay

Opposition

 

MP:  Defendants PBF ENERGY LIMITED and TORRANCE LOGISTICS COMPANY, LLC.

RP:  Plaintiff

 

 

Summary

 

On 2/9/22, Plaintiff LESLIE AVALOS filed a Complaint alleging that, while Plaintiff was employed as a Lab Technician, until wrongful employment termination, a supervisor verbally, sexually harassed her, and retaliated with pretexts and adverse working conditions, after Plaintiff reported a safety issue, and gender discrimination involving worse treatment of females as compared to males.

The causes of action are:

1. DISCRIMINATION IN VIOLATION OF GOV’T CODE §§12940 ET SEQ.;

2. HARASSMENT IN VIOLATION OF GOV’T CODE §§12940 ET SEQ.;

3. RETALIATION IN VIOLATION OF GOV’T CODE §§12940 ET SEQ.;

4. FAILURE TO PREVENT DISCRIMINATION, HARASSMENT AND RETALIATION IN VIOLATION OF GOV’T CODE §12940(k);

5. FOR DECLARATORY JUDGMENT;

6. RETALIATION (LAB. CODE §§1102.5, 1102.6);

7. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY;

8. UNFAIR COMPETITION (BUS. & PROF. CODE §17200 ET SEQ.).

 

 

MP Positions

 

Moving parties request an order sustaining the demurrer to the Cause of Action for Unfair Business Practices, on grounds including the following:

 

·         The Complaint fails to plead sufficient facts to establish any injury-in-fact or loss of money or property.

·         Alleging lost past and future wages does not support standing. See, e.g., Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1151 (2003).

·         Alleging that defendants are requested to “account for, disgorge, and restore to the Plaintiff overtime compensation and other monies and benefits unlawfully withheld from Plaintiff” (Complaint, ¶ 122) does not make clear that Defendants withheld overtime or other wages owed for time worked.

·         Because Plaintiff fully obtained the benefit of her bargain regarding her employment, she has not sustained an injury in fact that provides her standing under the UCL.

·         Injunctive relief is not proper for the past employment termination, absent allegations of future repetition.

 

 

RP Positions

 

Opposing party advocates overruling, for reasons including the following:

 

·         Discrimination on the alleged bases implicates unfair competition.

·         The UCL claim is proper and sufficient facts have been alleged.

·         Plaintiff alleges sufficient facts to establish an economic injury to qualify as an injury in fact, and thus meets the standing requirement.

           

 

Tentative Ruling

 

The demurrer is overruled.

Twenty days to answer.

Plaintiff sufficiently alleges employment discrimination, and lost wages and benefits  (e.g., First Amended Complaint, ¶¶ 26-45).

As for standing, allegations allege or infer Plaintiff’s economic losses, and further defendants’ holding funds for restitution to Plaintiff  (e.g., First Amended Complaint, ¶¶ 45  (“past and future lost wages….), 122  (“restore to the Plaintiff the overtime compensation and other monies and benefits unlawfully withheld from Plaintiff.”)). 

There is no requirement to make such allegations clearer in this context, or to anticipate the demurrer’s extrinsic assertion that Plaintiff has been fully compensated.

When considering demurrers, courts read the allegations in context.  MKB Management, Inc. v. Melikian (2010) 184 Cal.App.4th 796, 802;  McKenney v. Purepac Pharmaceutical Co.  (2008) 167 Cal.App.4th 72, 77;  Taylor v. City of Los Angeles Dept. of Water and Power  (2006) 144 Cal.App.4th 1216, 1228, disapproved of on other grounds by  Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173.  In ruling upon demurrers, courts treat as being true “not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged.”  Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12.  Accord  Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal. App. 4th 949, 953.

“‘[D]efendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint.’”  Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144.  “No matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer.”  Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.

Employment-related claims, such as discrimination, support causes of action for unfair competition.  Alch v. Sup. Ct. (2004) 122 Cal. App. 4th 339, 400;  Herr v. Nestle U.S.A., Inc. (2003) 109 Cal. App. 4th 779, 790.

Analogously, “An employer's policy or practice that violates the Labor Code may also be held an ‘unlawful business practice’….”  Steinhebel v. Los Angeles Times Communications  (2005) 126 Cal.App.4th 696, 712.  A restitutionary remedy for unfair business practices is available as to individual, non-employer defendants, if they appropriated for themselves employer funds that would have been used to pay wages.   Bradstreet v. Wong (2008) 161 Cal.App.4th 1440, 1460-63, disapproved on other grounds by  ZB, N.A. v. Sup.Ct. (2019) 8 Cal. 5th 175, 195 n.8.

Required elements to allege in a complaint for Unfair Business Practices are:

  1. A business practice;
  2. that is unfair, unlawful or fraudulent;  and
  3. authorized remedy.

 

Bus. & Prof. Code § 17200;  Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676.  See also  Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal. 4th 26, 46 (holding claims for unfair business practices need not be pled specifically, and impliedly disapproving Khoury v. Maly's of Cal. (1993) 14 Cal. App. 4th 612, 619 ("A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation."));  Gregory v. Albertson's, Inc. (2002) 104 Cal. App. 4th 845, 857 (“the demurrer was properly sustained because the complaint ‘identifies no particular section of the statutory scheme [of antitrust laws] which was violated and fails to describe with any reasonable particularity the facts supporting violation.’”);  Morgan v. AT & T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1253 (“In addition to pleading facts sufficient to show that the defendant's acts constituted an unlawful, unfair, or fraudulent business practice, a plaintiff alleging a UCL cause of action must also plead facts sufficient to establish he or she has standing to bring an action under the UCL, as amended by Proposition 64.”);  Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 254 (regarding the requirement to allege standing, including injury, and lost money or property, alleging an economic injury suffices);  Kwikset Corp. v. Sup. Ct. (2011) 51 Cal. 4th 310, 337  (although losses are required for standing, “ineligibility for restitution is not a basis for denying standing under section 17204….”).