Judge Michael P. Linfield, Case 22STCV01879 2022-12-05 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV01879, Date: 2022-12-05 Tentative Ruling

Case Number: 22STCV01879 Hearing Date: December 5, 2022 Dept: 34

SUBJECT: Demurrer and Motion to Strike

Moving Party: Defendants Haskell & Davis CPA, David Haskell, Gregory Davis, and Shannon Deck

Resp. Party: Plaintiff Janet Sikiyan

Defendants’ Demurrer is OVERRULED. Defendants’ Motion to Strike is DENIED.

PRELIMINARY COMMENTS:

The Court would urge counsel to avoid ad hominem arguments which do nothing to advance their respective positions. Whether or not Plaintiff has filed numerous previous lawsuits [see Defendants’ Demurrer, p. 1:4 and fn. 1] is irrelevant to the Court’s ruling on this demurrer. Further, arguing that a “nonequity partner” is as nonsensical as a “non-flying airplane” [see Opposition to Demurrer, p. 2:7-8] does not help Plaintiff’s argument; such a statement flies in the face of common practice at many large law firms.

BACKGROUND:

On January 14, 2022, Plaintiff Janet Sikiyan filed her Complaint against Defendants Haskell & Davis CPA, David Haskell, Gregory Davis, and Shannon Deck on the following causes of action:

(1) Wrongful Termination;

(2) Violation of California Labor Code §§ 510, 1194, and 1198;

(3) Violation of California Labor Code §§ 1182.12, 1194, 1197, and 1197.1;

(4) Violation of California Labor Code §§ 226.7 and 512, subdivision (a);

(5) Violation of California Labor Code § 226.7;

(6) Violation of California Labor Code §§ 226, subdivisions (a) and (e), and 226.3;

(7) Unlawful Withholding of Wages;

(8) Waiting Time Penalties, California Labor Code §§ 201, 202, and 203;

(9) Violation of California Labor Code §§ 2800 and 2802;

(10) Negligence;

(11) Breach of Contract;

(12) Fraud Pursuant to California Civil Code § 1710(4); and

(13) Violation of California Business and Professions Code § 17200 et seq.

On April 27, 2022, by Request of Plaintiff, the Clerk’s Office dismissed without prejudice the seventh cause of action for unlawful withholding of wages.

On May 9, 2022, the Court sustained with leave to amend Defendants’ Demurrer as to the first through sixth and the eighth through tenth causes of action. The Court overruled the Demurrer as to the eleventh through thirteenth causes of action.

On June 17, 2022, Plaintiff filed her First Amended Complaint.

On September 15, 2022, the Court granted Plaintiff leave to further amend her Complaint.

On September 22, 2022, Plaintiff filed her Second Amended Complaint against Defendants on the following causes of action:

(1) Wrongful Termination;

(2) Unpaid Overtime Wages;

(3) Failure to Pay Minimum Wage;

(4) Failure to Provide Meal Breaks;

(5) Failure to Provide Rest Breaks;

(6) Failure to Furnish Complete and Accurate Wage Statements;

(7) Penalties for Late Wage Payment;

(8) Failure to Reimburse Business Expenses;

(9) Negligence;

(10) Breach of Contract;

(11) Promissory Fraud;

(12) Unfair Competition;

(13) Breach of Fiduciary Duty;

(14) Conversion; and

(15) Constructive Fraud.

On October 21, 2022, Defendants filed their Demurrer and their Motion to Strike. Defendants concurrently filed a memorandum of points and authorities and a declaration with each of their filings.

On November 18, 2022, Plaintiff filed her Opposition to the Demurrer and her Opposition to the Motion to Strike.

On November 28, 2022, Defendants filed their Reply to the Demurrer and their Reply to the Motion to Strike. Defendants concurrently filed a declaration in support of the Demurrer.

ANALYSIS:

I. Demurrer

A. Legal Standard

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. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)

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.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within).

A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10, subdivision (f)), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

“The plaintiff is required only to set forth the essential facts of his case with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.” (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 382.) Even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

B. Discussion

Defendants demur as to the first through ninth and the thirteenth through fifteenth causes of action on the grounds that they do not state facts sufficient to constitute a cause of action.

The real issue being litigated is whether Plaintiff was a partner or an employee when working with Defendant Haskell & Davis CPA.

1. Partner or Employee

a. Legal Standard

Partnerships in the State of California are defined and regulated by statute. (Corp. Code, §§ 16100, et seq., “Uniform Partnership Act of 1994”.) In addition, the State of California recognizes a distinction between limited partners and general partners. (Corp. Code, §§ 15800, et seq., “Uniform Limited Partnership Act of 2008”.)

“A person who receives a share of the profits of a business is presumed to be a partner in the business, unless the profits were received for any of the following reasons: . . . (B) In payment for services as an independent contractor or of wages or other compensation to an employee.” (Corp. Code, § 16202, subd. (c)(3)(B).)

“A person becomes a limited partner:

(a) “as provided in the partnership agreement;

(b) “as the result of a conversion or merger under Article 11 (commencing with Section 15911.01); or

(Corp. Code, § 15903.01, subds. (a)–(c).)

“A person becomes a general partner:

(a) “as provided in the partnership agreement:

(b) “under paragraph (2) of subdivision (c) of Section 15908.01 following the dissociation of a limited partnership’s last general partner;

(d) “with the consent of all the partners.”

(Corp. Code, § 15904.01, subds. (a)–(d).)

b. Analysis

It is well-established that the question of whether a partnership has been formed – whether by agreement or de facto – is a question of fact. (See Eng v. Brown (2018) 21 Cal.App.5th 675, 698; see also Billups v. Tiernan (1970) 11 Cal.App.3d 372, 379 and Spier v. Lang (1935) 4 Cal.2d 711, 716.) It is only when the evidence is undisputed that the question becomes one of law. (See S. G. Borello & Sons, Inc. v. Dep’t of Indus. Relations (1989) 48 Cal.3d 341, 349.)

Here, the allegations in the Second Amended Complaint as to whether Plaintiff was a partner or an employee of Defendant Haskell & Davis CPA are disputed. For example, on the one hand, Plaintiff alleges that “Defendants never presented Plaintiff with a written partnership agreement for Plaintiff’s execution.” (SAC, ¶ 36.) In addition, there is no allegation that the partners consented to Plaintiff becoming a partner in either a general or limited capacity. Those details would indicate that there was no partnership. Yet on the other hand, Plaintiff apparently received a partnership draw of $13,000.00 per month and paid her car lease payment through her “draw” account. (Id. at ¶¶ 83, 85.) Although Plaintiff herself disputes that this was an actual “draw” in that it allegedly did not involve any distribution of partnership profits, this remains an allegation that would indicate that there was a partnership. (Id. at ¶ 48; Corp. Code, § 16202, subd. (c)(3)(B).)

The Parties disagree as to whether Plaintiff was a partner. Plaintiff argues that she was an employee (although she argues in the alternative that she was a partner in order to preserve certain claims). Defendants argue she was a partner.

Plaintiff’s employment status as a partner or as an employee is a question of fact and the Court does not reach that question on this demurrer. After the facts are more fully developed, the parties will have another chance to address this issue – either in a Motion for Summary Adjudication or at trial. Thus, the Court will not sustain Defendants’ Demurrer as to elements of causes of action that hinge solely on whether Plaintiff was a partner or an employee.

2. Wrongful Termination in Violation of Public Policy

a. Legal Standard

“The elements of a claim for wrongful discharge in violation of public policy are (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. It is well established that a termination premised on an employee’s refusal to violate either a statute or an administrative regulation may support a claim for wrongful termination in violation of public policy.” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234, citation omitted.)

b. Analysis

Plaintiff alleges that she was an employee of Defendant Haskell & Davis CPA (Second Amended Complaint, ¶ 4).

Plaintiff further alleges “[a]s a result of Defendants’ egregious violations of law . . . Plaintiff was constructively discharged and ceased the employ of Defendants.” (Id. at ¶ 108.)

Plaintiff further alleges that the termination was based on Defendant’s failure to compensate Plaintiff for her work and on Plaintiff’s insistence on adequate remuneration. (Second Amended Complaint, ¶¶ 120, 121.)

Plaintiff further alleges that she was harmed by Defendants’ constructive discharge of her, including by loss of wages and other employment benefits, as well as noneconomic damages such as pain, suffering, and emotional and mental distress. (Id. at ¶ 123.)

There is no question that “a constructive discharge is legally regarded as a firing rather than a resignation.” (Galvan v. Dameron Hosp. Ass’n (2019) 37 Cal.App.5th 549, 560, quoting Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244–45.)

Assuming as true these allegations for the purposes of the Demurrer, Plaintiff’s first cause of action for wrongful termination in violation of public policy is sufficiently pled.

3. Unpaid Overtime Wages in Violation of California Labor Code §§ 510, 1194, and 1198

a. Legal Standard

“Eight hours of labor constitutes a day’s work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. Nothing in this section requires an employer to combine more than one rate of overtime compensation in order to calculate the amount to be paid to an employee for any hour of overtime work.” (Lab. Code, § 510.)

“Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” (Lab. Code, § 1194, subd. (a).)

“The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful.” (Lab. Code, § 1198.)

b. Analysis

Plaintiff alleges that “Defendants failed to pay proper overtime compensation to Plaintiff for all overtime hours worked.” (Second Amended Complaint, ¶ 99.)

Assuming as true this allegation for the purposes of the Demurrer, Plaintiff’s second cause of action for unpaid overtime wages in violation of the Labor Code is sufficiently pled.

4. Failure to Pay Applicable Minimum Wage in Violation of California Labor Code §§ 1182.12, 1194, 1197, and 1197.1

a. Legal Standard

The Labor Code sets the minimum wage for employees in California. (Lab. Code, § 1182.12, subds. (1)–(2).)

“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. This section does not change the applicability of local minimum wage laws to any entity.” (Lab. Code, § 1197.)

“Any employer or other person acting either individually or as an officer, agent, or employee of another person, who pays or causes to be paid to any employee a wage less than the minimum fixed by an applicable state or local law, or by an order of the commission, shall be subject to a civil penalty, restitution of wages, liquidated damages payable to the employee, and any applicable penalties imposed pursuant to Section 203 as follows [rest of statute omitted].” (Lab. Code, §§ 1197.1, subd. (a).)

b. Analysis

Plaintiff alleges that “Defendants failed to pay Plaintiff at least the applicable legal minimum wage for all hours worked.” (Second Amended Complaint, ¶ 98.)

Assuming as true this allegation for the purposes of the Demurrer, Plaintiff’s third cause of action for failure to pay applicable minimum wage in violation of the Labor Code is sufficiently pled.

5. Failure to Provide Meal Breaks in Violation of California Labor Code §§ 226.7 and 512, Subdivision (a)

a. Legal Standard

“An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.” (Lab. Code, § 226.7, subd. (b).)

“If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.” (Lab. Code, § 226.7, subd. (c).)

“An employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer shall not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.” (Lab. Code, § 512, subd. (a).)

b. Analysis

Plaintiff alleges that “Defendants failed to provide Plaintiff with lawful meal breaks and failed to pay her one additional hour of pay at her regular pay rate for each workday she was entitled to, but not provided a meal break.” (Second Amended Complaint, ¶ 100.)

Assuming as true this allegation for the purposes of the Demurrer, Plaintiff’s fourth cause of action for failure to provide meal breaks in violation of the Labor Code is sufficiently pled.

6. Failure to Provide Rest Breaks in Violation of California Labor Code § 226.7

a. Legal Standard

b. Analysis

Plaintiff alleges that “Defendants failed to authorize and permit lawful rest breaks to Plaintiff and failed to pay her one additional hour of pay at her regular pay rate for each workday she was entitled to, but not authorized or permitted a rest break.” (Second Amended Complaint, ¶ 101.)

Assuming as true this allegation for the purposes of the Demurrer, Plaintiff’s fifth cause of action for failure to provide rest breaks in violation of the Labor Code is sufficiently pled.

7. Failure to Furnish Complete and Accurate Wage Statements in Violation of California Labor Code §§ 226, Subdivisions (a) and (e), and 226.3

a. Legal Standard

“An employer, semimonthly or at the time of each payment of wages, shall furnish to his or her employee, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately if wages are paid by personal check or cash, an accurate itemized statement in writing showing [listed items omitted].” (Lab. Code, § 226, subd. (a).)

“An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney’s fees.” (Lab. Code, § 226, subd. (e).)

“Any employer who violates subdivision (a) of Section 226 shall be subject to a civil penalty in the amount of two hundred fifty dollars ($250) per employee per violation in an initial citation and one thousand dollars ($1,000) per employee for each violation in a subsequent citation, for which the employer fails to provide the employee a wage deduction statement or fails to keep the records required in subdivision (a) of Section 226. The civil penalties provided for in this section are in addition to any other penalty provided by law. In enforcing this section, the Labor Commissioner shall take into consideration whether the violation was inadvertent, and in his or her discretion, may decide not to penalize an employer for a first violation when that violation was due to a clerical error or inadvertent mistake.” (Lab. Code, § 226.3.)

b. Analysis

Plaintiff alleges that “Defendants failed to provide complete and accurate wage statements to Plaintiff.” (Second Amended Complaint, ¶ 103.)

Assuming as true this allegation for the purposes of the Demurrer, Plaintiff’s sixth cause of action for failure to furnish complete and accurate wage statements in violation of the Labor Code is sufficiently pled.

8. Waiting Time Penalties for Final Wages Not Timely Paid in Violation of California Labor Code §§ 201, 202, and 203

a. Legal Standard

“If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” (Lab. Code, § 201, subd. (a).)

“If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting.” (Lab. Code, § 202, subd. (a).)

“If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.6, 201.8, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days.” (Lab. Code, § 203, subd. (a).)

b. Analysis

Plaintiff alleges that “Defendants failed to timely pay Plaintiff all wages owed to her upon separation of employment.” (Second Amended Complaint, ¶ 105.)

Assuming as true this allegation for the purposes of the Demurrer, Plaintiff’s seventh cause of action for waiting time penalties for final wages not timely paid in violation of the Labor Code is sufficiently pled.

9. Failure to Reimburse Business Expenses in Violation of California Labor Code §§ 2800 and 2802

a. Legal Standard

“An employer shall in all cases indemnify his employee for losses caused by the employer’s want of ordinary care.” (Lab. Code, § 2800.)

“An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.” (Lab. Code, § 2802, subd. (a).)

b. Analysis

Plaintiff alleges that “Defendants failed to reimburse Plaintiff for necessary business-related expensive [sic] expenses.” (Second Amended Complaint, ¶ 105.)

Assuming as true this allegation for the purposes of the Demurrer, Plaintiff’s eighth cause of action for failure to reimburse business expenses in violation of the Labor Code is sufficiently pled.

10. Negligence

a. Legal Standard

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

b. Analysis

Plaintiff alleges: (1) that Defendants owed a duty to refrain from wrongfully causing a constructive discharge of Plaintiff and interfering in her economic relations with her next firm; (2) that Defendants breached this duty through their actions; (3) that Defendants’ negligence was the proximate and legal cause of damages to Plaintiff; and (4) that as a result of Defendants’ negligence, Plaintiff has been harmed. (Second Amended Complaint, ¶¶ 178–181.)

Assuming as true these allegations for the purposes of the Demurrer, Plaintiff’s ninth cause of action for negligence is sufficiently pled.

(The Court notes that this is a redundant cause of action; plaintiff gains nothing by keeping this cause of action. Nonetheless, “Superfluity does not vitiate”. (Civ.Code, § 3537.)

11. Breach of Fiduciary Duty

a. Legal Standard

“The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner, & Smith, Inc. (1998) 68 Cal.App.4th 445, 483.)

b. Analysis

“There are two kinds of fiduciary duties – those imposed by law and those undertaken by agreement.” (Gab Bus. Servs. v. Lindsey & Newsom Claim Servs. (2000) 83 Cal.App.4th 409, 416 (emphasis omitted) (overruled in part on other grounds by Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1154).)

“Fiduciary duties are imposed by law in certain technical, legal relationships such as those between partners or joint venturers, husbands and wives, guardians and wards, trustees and beneficiaries, principals and agents, and attorneys and clients.” (Id. (citations omitted).)

Here, Plaintiff argues in the alternative: (1) that she was a partner; (2) that Defendants thus owed her a fiduciary duty; (3) that Defendants breached that duty through their actions, including among other things their actions of impounding and seizing for themselves partnership profits and other assets without providing Plaintiff her fair share; and (4) that Plaintiff was damaged by that breach. (Second Amended Complaint, ¶¶ 203–204.)

Assuming as true these allegations in the alternative for the purposes of the Demurrer, Plaintiff’s thirteenth cause of action for breach of fiduciary duty is sufficiently pled.

12. Conversion

a. Legal Standard

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

b. Analysis

Here, Plaintiff argues in the alternative: (1) that she was a partner; (2) that without Plaintiff’s consent or permission, and without the legal right to do so, Defendants transferred funds drawn from the assets of the partnership to unrelated businesses controlled by one or more of the Defendants; (3) that the foregoing acts of Defendants constituted actual and substantial interference with Plaintiff’s ownership interest in the partnership and a conversion of her property for their own use; and (4) that Plaintiff suffered damages as a proximate result of this. (Second Amended Complaint, ¶¶ 207–210.)

Assuming as true these allegations in the alternative for the purposes of the Demurrer, Plaintiff’s fourteenth cause of action for conversion is sufficiently pled.

13. Constructive Fraud

a. Legal Standard

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

b. Analysis

Here, Plaintiff argues in the alternative: (1) that Defendants made false representations to Plaintiff regarding her becoming a partner at their firm; (2) that Defendants knew these representations to be false at the time they were made; (3) that they were made with the intent to and effect of deceiving Plaintiff and inducing her to act as alleged; (4) that Plaintiff relied on these representations by coming to work with Defendants and investing her time, money, and effort into their business; and (5) that Plaintiff suffered damages as a direct and proximate result of the allegedly fraudulent conduct. (Second Amended Complaint, ¶¶ 189–193.)

Assuming as true these allegations in the alternative for the purposes of the Demurrer, Plaintiff’s fifteenth cause of action for constructive fraud is sufficiently pled. The fact that Plaintiff has not opposed the demurrer to this cause of action [see Reply, p. 7:11-14] is not dispositive.

C. Conclusion

Plaintiff has sufficiently pleaded the elements of each of the causes of action to which Defendants have demurred. The Court OVERRULES the Demurrer.

II. Motion to Strike

A. Legal Standard

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. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)¿¿

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)¿¿

B. Analysis

Defendants request that the Court strike the following items from Plaintiff’s Second Amended Complaint:

(1) Paragraphs 1 through 9, 22 through 73, 90 through 93, and 95 through 116;

(2) Punitive damages claims set forth in paragraphs 124, 196, 205, 211, 216, and item 2 in the prayer for relief; and

(3) Attorneys’ fees claims set forth in paragraphs 134, 144, 165, 171, 176, and item 6 in the prayer for relief.

(Notice of Motion and Motion to Strike, p. 1:11–16.)

As to the first set of items, these paragraphs are not simply argument, nor are they irrelevant or improper matter. Rather, Plaintiff is alleging various facts, albeit in a way that often does come close to the line of being argumentative.

As to the second set of items, the allegations that underly the wrongful termination, fraud and breach of fiduciary duty causes of action are sufficient to maintain Plaintiff’s requests for punitive damages.

As to the third set of items, because the Court has not yet reached the question of whether Plaintiff was a partner or an employee, her employee-based causes of action survive, and thus so do her requests for attorneys’ fees.

C. Conclusion

The Motion to Strike is DENIED.