Judge: Maurice A. Leiter, Case: 23STCV18441, Date: 2024-01-26 Tentative Ruling

Case Number: 23STCV18441    Hearing Date: January 26, 2024    Dept: 54

Hearing Date: January 26, 2024

Department 54, Judge Maurice Leiter

Demurrer to First Amended Complaint and Motion to Strike

Moving Party: Defendant County of Los Angeles

Responding Party: Plaintiff Timothy Ryan

T/R:     DEFENDANT’S DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND.

THE MOTION TO STRIKE IS MOOT.

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 November 8, 2023, Plaintiff Timothy Ryan filed the operative first amended complaint against Defendant County of Los Angeles for Labor Code violations under PAGA.

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 demurs to the FAC on the ground that it is barred by the one-year statute of limitations for PAGA actions. A demurrer lies where the dates alleged in the complaint show “clearly and affirmatively” that the action is barred by a statute of limitations.  It is not enough that the complaint shows that the action may be barred.  (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.)

Plaintiff’s employment with Defendant was terminated on October 12, 2018. Plaintiff alleges he appealed his termination through the Los Angeles County Civil Service Commission, which issued a final order upholding the termination on January 8, 2020. Plaintiff served written notice of this PAGA action to the LWDA on September 20, 2021. Plaintiff has not received notice from the LWDA that they intend to pursue his claims. Plaintiff filed this action on August 3, 2023.

The parties argue extensively over any tolling that may have occurred after Plaintiff was fired. Regardless of whether the statute was tolled while Plaintiff pursued other remedies or while COVID-19 emergency orders were in effect, Plaintiff’s action is barred.

Plaintiff filed notice to the LWDA on September 20, 2021. Under Labor Code § 2699.3(a)(2)(A), the LWDA has 60 days to notify an employee that it does not intend to investigate their claims. “Upon receipt of that notice or if no notice is provided within 65 calendar days of the postmark date of the notice given pursuant to paragraph (1), the aggrieved employee may commence a civil action pursuant to Section 2699.” (Id.) Plaintiff did not receive notice from the LWDA within 65 days, starting the clock again to file suit on November 24, 2021. (See Arce v. Ensign Group, Inc. (2023) 314 Cal.Rptr.3d 493, 500 [“But because a would-be PAGA plaintiff can only bring her claim to court 65 days after submitting a prefiling notice to the LWDA, the statute of limitations is tolled for 65 days from the time the notice is submitted.”]) Plaintiff then waited 1 year and 8 months to file suit. Even assuming Plaintiff’s LWDA notice was timely filed, this suit remains barred.

Defendant’s demurrer is SUSTAINED without leave to amend.