Judge: Melvin D. Sandvig, Case: 23CHCV00244, Date: 2023-11-06 Tentative Ruling

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Case Number: 23CHCV00244    Hearing Date: November 6, 2023    Dept: F47

Dept. F47

Date: 11/6/23

Case #23CHCV00244

 

DEMURRER & MOTION  TO STRIKE

TO THE

ORIGINAL COMPLAINT

 

Demurrer & Motion to Strike filed on 9/6/23.

 

MOVING PARTY: Defendants Canoga Park Fitness, LLC; Alex Sotolango and Terry Ibarra

RESPONDING PARTY: Plaintiff Morteza Tahmasebi

NOTICE: ok

 

Demurrer is to the 6th, 7th, 8th and 9th causes of action:

            1.  Unpaid Overtime Wages

            2.  Failure to Provide Meal and Rest Periods

            3.  Failure to Provide Accurate Itemized Wage Statements

            4.  Failure to Pay Wages on Termination

            5.  Unfair Business Practices Under the Unfair Competition Act

            6.  Discrimination in Violation of the California Fair Employment and Housing Act

            7.  Retaliation

            8.  Wrongful Termination

            9.  Negligent Hiring and Supervision

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking allegations regarding and the prayer for punitive damages. 

 

RULING: The demurrer is sustained and the motion to strike is granted, both with leave to amend.  Defendants will have 30 days from this hearing date to respond to the First Amended Complaint filed by Plaintiff on 10/30/23.

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of Plaintiff Morteza Tahmasebi’s (Plaintiff) employment with Defendant Canoga Park Fitness LLC (Canoga).  Plaintiff alleges that during his employment Canoga and Defendants Alex Sotolango (Sotolango) and Terry Ibarra (Ibarra) (collectively, Defendants) subjected him to labor code violations, discrimination and retaliation.  Plaintiff also alleges that Defendants were negligent in their hiring and supervision and wrongfully terminated him. 

 

On 1/30/23, Plaintiff filed this action against Defendants for: (1) Unpaid Overtime Wages;

(2) Failure to Provide Meal and Rest Periods; (3) Failure to Provide Accurate Itemized Wage Statements; (4) Failure to Pay Wages on Termination; (5) Unfair Business Practices Under the Unfair Competition Act; (6) Discrimination in Violation of the California Fair Employment and Housing Act; (7) Retaliation; (8) Wrongful Termination and (9) Negligent Hiring and Supervision.  The 6th and 7th causes of action are alleged against all Defendants and the 1st-5th and 8th and 9th causes of action are alleged against Canoga and Sotolango. 

During meet and confer efforts, Plaintiff’s counsel agreed to send Defendants a proposed amended complaint; however, the amended pleading was never received.  (Gautam Decl.).  Therefore, on 9/6/23, Defendants filed and served the instant demurrer to the 6th, 7th, 8th and 9th causes of action and motion to strike seeking to strike allegations regarding and the prayer for punitive damages.

 

On 10/30/23, Plaintiff filed late oppositions to the demurrer and motion to strike and a First Amended Complaint.  On 10/31/23, Defendants filed a reply to the untimely oppositions.

 

ANALYSIS

 

CCP 472(a) provides:

 

“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.”  (emphasis added)

 

Oppositions to the demurrer and motion to strike were due on or before 10/24/23, nine court days before the 11/6/23 hearing date.  CCP 1005(b).  As noted above, the oppositions and First Amended Complaint were not filed and served until 10/30/23.  As such, leave is required for the First Amended Complaint. 

 

The reply concedes that the First Amended Complaint resolves most of the issues addressed in the demurrer and motion to strike.  However, it argues that the 7th cause of action in the First Amended Complaint remains defective and requests that the demurrer to the 7th cause of action be sustained.     

 

The Court finds that the proper procedure is for Defendants to meet and confer with Plaintiff regarding the claimed defect in the First Amended Complaint.  CCP 430.41(a).  If the issues cannot be resolved through the meet and confer process, Defendants should then file a demurrer to the First Amended Complaint.  Id.

 

CONCLUSION

 

The demurrer is sustained and the motion to strike is granted, both with leave to amend.  Since a First Amended Complaint has already been filed, Defendants have 30 days from today’s date (11/6/23) to respond to the First Amended Complaint.