Judge: Michael P. Linfield, Case: 22STCV22420, Date: 2023-01-04 Tentative Ruling
Case Number: 22STCV22420 Hearing Date: January 4, 2023 Dept: 34
SUBJECT: Motion
to Strike
Moving Party: Defendant
Alta Public Schools
Resp. Party: Plaintiff Stephanie Romero
Defendant’s
Motion to Strike is GRANTED.
BACKGROUND:
On
July 12, 2022, Plaintiff Stephanie Romero filed her Complaint against Alta
Public Schools on causes of action relating to Plaintiff’s former employment
with Defendant.
On
September 21, 2022, Plaintiff filed her First Amended Complaint on the
following causes of action:
(1) Failure to pay
overtime wages in violation of Labor Code section 510;
(2) Unpaid wages and
failure to pay minimum wages;
(3) Failure to provide
rest periods or compensation in lieu thereof in violation of Labor Code section
226.7;
(4) Failure to provide
accurate itemized wage statements;
(5) Labor Code section
203 waiting time penalty;
(6) Violation of Unfair
Competition Law; and
(7) Private Attorneys
General Act (PAGA).
On
December 2, 2022, Defendant filed its Motion to Strike. Defendant concurrently
filed: (1) Memorandum of Points and Authorities; (2) Declaration of Ashley N.
Fasano; and (3) Proof of Service.
On
December 20, 2022, Plaintiff filed her Opposition.
Defendant
has not filed a reply or other response.
ANALYSIS:
I.
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, subd. (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, subd. (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.)¿¿
II.
Discussion
Defendant moves the Court to strike the following from Plaintiff’s
First Amended Complaint:
(1)
¶ 41:
“…and one hundred dollars ($100) per employee for each violation in a
subsequent pay period…”
(2)
¶ 67:
“…and $200 for each aggrieved employee per pay period for each subsequent
violation.”
(3)
¶ 70:
“…and $200 for each aggrieved employee per pay period for each subsequent
violation.”
(4)
¶ 73:
“…and $200 for each aggrieved employee per pay period for each subsequent
violation.”
(5)
¶ 75:
“…and $200 for each aggrieved employee per pay period for each subsequent
violation.”
(6)
¶ 79:
“…and $200 for each aggrieved employee per pay period for each subsequent
violation.”
(7)
¶ 80:
“…and $200 for each aggrieved employee per pay period for each subsequent
violation.”
(8)
¶ 83(2):
“For each subsequent violation, one hundred dollars ($100) for each underpaid
employee for each pay period for which the employee was underpaid…”
(9)
¶ 84:
“…and subsequent violations.”
(10)
¶ 85:
“…and one thousand dollars ($1,000) per employee for each violation in a
subsequent citation…”
(11)
¶ 88:
“…and $200 for each aggrieved employee per pay period for each subsequent
violation.”
(Motion, pp.
1:26–28, 2:1–19.)
Defendant argues that Plaintiff’s request for PAGA penalties based on
subsequent violations of the Labor Code should be stricken because Plaintiff
has not alleged that Defendant was previously notified it was violating a
provision of the Labor Code. (Memorandum, p. 3:2–26.)
Plaintiff opposes the Motion, arguing: (1) that Plaintiff’s citation of
Labor Code section 22 makes this case distinguishable from the cases Defendant
cites; (2) that Plaintiff’s filing of the lawsuit is sufficient notice of the
violations; and (3) that Plaintiff plans to obtain a notice from the Court prior
to Trial that Defendant violated some of the statutes. (Opposition, pp.
2:16–17, 4:3–4, 4:21–22.)
For the reasons explained below, Defendant has the better argument.
First, Labor Code section 22 merely supplements the word “violation” as
“includ[ing] a failure to comply with any requirement of the code.” (Lab. Code,
§ 22.) It does not itself provide additional remedies. More importantly,
Plaintiff has not sufficiently explained to the Court how exactly it would
supplement the relevant portions of the PAGA statute, nor has Plaintiff
sufficiently explained why the analysis under Labor Code section 22 would be
any different than the analysis the Court of Appeal previously conducted in
relation to the specific PAGA statutes cited in the First Amended Complaint. (Amaral
v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1201–03.) Upon reviewing
the relevant statutes, the Court does not have any reason to believe that Labor
Code section 22 adds anything to the PAGA statutes or that the analysis should
be any different than that conducted by the Court of Appeal in Amaral.
Second, Plaintiff’s filing of the lawsuit does not have any impact on
whether the alleged prior labor violations (i.e., the labor violations alleged
in the First Amended Complaint) were based on an “initial” or a “subsequent”
pay period, nor does it allege that these prior injuries were the result of “a
knowing and intentional failure by an employer”. (See, for example, Lab. Code,
§ 226.) Rather, the filing of the lawsuit would only have an impact on
violations that occur subsequent to Plaintiff’s filing of the First Amended
Complaint. Notably, the First Amended Complaint alleges that Plaintiff has not
worked for Defendant since July 15, 2021; this would indicate that no such violations
have occurred subsequent to the filing of the Complaint on July 12, 2022.
(First Amended Complaint, ¶ 11.)
Third, Plaintiff has not filed any request for notice from the Court,
and it is not clear what the legal effect such a notice would be.
Finally, Defendant correctly notes that Plaintiff has not alleged in
the First Amended Complaint that Defendant either knew and/or intended to
injure Plaintiff in the manners alleged, or that Defendant was previously cited
by the Labor Commissioner or the Court. (See, for example, Lab. Code § 226.3.)
Without such allegations, PAGA penalties cannot be imposed on Defendant as a
matter of law.
The Court GRANTS Defendant’s Motion to Strike, with leave for Plaintiff
to further amend her pleading.
III.
Conclusion
Defendant’s
Motion to Strike is GRANTED.