Judge: Maurice A. Leiter, Case: 22STCV02835, Date: 2022-09-30 Tentative Ruling

Case Number: 22STCV02835    Hearing Date: September 30, 2022    Dept: 54

Hearing Date: September 30, 2022

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint

Moving Party: Defendant MV Transportation, Inc.

Responding Party: Plaintiff Salvador Ozorio

T/R:    DEFENDANT’S DEMURRER IS OVERRULED. DEFENDANT’S MOTION TO STAY IS GRANTED.

            DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

            The Court considers the moving papers, opposition, and reply.

BACKGROUND

On January 24, 2022, Plaintiff filed a complaint against Defendant for PAGA penalties.

REQUEST FOR JUDICIAL NOTICE

            Defendant’s requests for judicial notice are GRANTED.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

            Defendant asserts that Plaintiff’s complaint is barred because Plaintiff failed to exhaust administrative remedies, and because an earlier action involving the same parties and same causes of action was filed first.

A. Exhaustion of Administrative Remedies

Labor Code § 2699.3 requires an aggrieved employee to provide the LWDA with notice of the PAGA claims before filing suit. The employee must identify the class of aggrieved employee and state the facts and theories supporting each Labor Code violation. Here, Plaintiff defines the class as “California-based hourly non-exempt employees” and identifies and describes the Labor Code violations. (RJN, Exh. C.) Though broad, this notice complies with Labor Code § 2699.3.

B. Abatement and/or Stay

“A plea in abatement pursuant to [Code of Civil Procedure] section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action.  [Citation.]  In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only where a judgment in the first action would be a complete bar to the second action.  [Citation.]  Where a demurrer is sustained on the ground of another action pending, the proper order is not a dismissal, but abatement of further proceedings pending termination of the first action.  [Citations.]”  (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787-788 (Plant Insulation), italics in original.)

Defendant argues this action should be abated (or stayed or dismissed) because an earlier filed action, the “Kussner action,” involves the same parties and the same causes of action. Both actions involve non-exempt hourly employees of Defendant and seek redress for (1) failure to timely pay wages, (2) failure to provide meal and rest periods (3) failure to provide accurate itemized wage statements, (4) failure to reimburse necessary business expenditures, and (5) failure to timely pay wages at time of discharge. (RJN, Exhs. A & B.)

In opposition, Plaintiff argues that this action involves different facts and includes a cause of action not included in the Kussner action. Plaintiff asserts a cause of action for failure to maintain and produce employee records and alleges Defendant failed to pay the meal period premium wages at the correct rate.

A stay is appropriate. Plaintiff does not dispute that the actions involve the same parties and the same causes of action. That there is one extra cause of action here, and a slight deviation of facts, does not justify allowing the two actions to proceed concurrently.