Judge: Michael P. Linfield, Case: 23STCV08815, Date: 2023-11-15 Tentative Ruling

Case Number: 23STCV08815    Hearing Date: November 15, 2023    Dept: 34

SUBJECT:        Demurrer to First Amended Complaint

Moving Party: Defendants N. Francowitz, Inc., and Nancy Franco

Resp. Party:    Plaintiff Crystal Gomez

SUBJECT:        Motion to Strike First Amended Complaint

Moving Party: Defendants N. Francowitz, Inc., and Nancy Franco

Resp. Party:    Plaintiff Crystal Gomez

The Demurrer is OVERRULED.

The Motion to Strike is DENIED.

BACKGROUND:

On April 20, 2023, Plaintiff Crystal Gomez filed her Complaint against Defendants N. Francowitz, Inc. and Nancy Frankel on causes of action arising from Plaintiff’s employment by Defendants.

On April 21, 2023, Plaintiff filed her First Amended Complaint (FAC).

On June 16, 2023, Defendants filed: (1) Demurrer to the FAC; and (2) Motion to Strike the FAC. In support of their Demurrer and Motion to Strike, Defendants concurrently filed: (1) Request for Judicial Notice (only in support of the Motion to Strike); (2) Declarations (separate for the Demurrer and the Motion to Strike); and (3) Proposed Order.

On October 23, 2023, Plaintiff filed her Oppositions to the Demurrer and the Motion to Strike. In support of her oppositions, Plaintiff concurrently filed: (1) Declaration of Jonathan LaCour (separate for each opposition); and (2) Proof of Service.

On October 26, 2023, Defendants filed their Replies regarding the Demurrer and the Motion to Strike.

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.)¿

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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).¿¿

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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 Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)¿¿¿

B.      Discussion

Defendants demur to the entire FAC on the grounds that the FAC does not adequately allege joint employer liability or conspirator liability. (Demurrer, pp. 16:15, 21:17.)

1.      Joint Employer Liability

a.       Legal Standard

“A joint-employer relationship exists when two or more employers exert significant control over the same employees—where from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment. A joint-employer relationship is established if an entity retains the right to control both what shall be done and how it shall be done, such that it retains the right to control and direct the activities of the person rendering service, or the manner and method in which the work is performed. Whether a joint-employer relationship exists is a factual determination that we will uphold if supported by substantial evidence.” (Cnty. of Ventura v. Pub. Emp’t Rel. Bd. (2019) 42 Cal.App.5th 443, 450–451, cleaned up.)

“There is no magic formula for determining whether an organization is a joint employer. Rather, the court must analyze ‘myriad facts surrounding the employment relationship in question. No one factor is decisive. The precise contours of an employment relationship can only be established by a careful factual inquiry.” (Vernon v. State of Cal. (2004) 116 Cal.App.4th 114, 124–125, cleaned up.)

“Factors to be taken into account in assessing the relationship of the parties include payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant’s discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant’s regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff’s employment.” (Vernon, supra, at p. 125, citations omitted.)

“‘Of these factors, the extent of the defendant’s right to control the means and manner of the workers’ performance is the most important.’ In all cases, an ‘employer must be an individual or entity who extends a certain degree of control over the plaintiff.’” (Vernon, supra, at p. 126, citations omitted.)

“The common and prevailing principle espoused in all of the tests directs us to consider the ‘totality of circumstances’ that reflect upon the nature of the work relationship of the parties, with emphasis upon the extent to which the defendant controls the plaintiff’s performance of employment duties.” (Vernon, supra, at p. 124, citation omitted.)

b.       Discussion

Defendants demur to the FAC regarding joint employer liability, arguing: (1) that the FAC fails to state facts sufficient to support any claim for joint employer liability against Defendants because the FAC also alleges that the individual Defendant was the corporate agent of the corporate Defendant; and (2) that the allegations seeking to hold Defendants liable as joint employers are uncertain, vague, and ambiguous because the Doe defendants are also alleges to be joint employers. (Demurrer, pp. 19:10–13, 20:12–17.)

The Court disagrees with these arguments.

        Among other things, Plaintiff alleges that Defendants were joint employers of Plaintiff. (FAC, ¶ 11.) For the purposes of a demurrer, the Court must assume that this allegation is true. This issue, which involves both questions of fact and law, will ultimately have to be resolved by the trier of fact. It is inappropriate for the Court to resolve this issue on demurrer.

        Further, Defendants arguments regarding corporate agency and the Doe defendants can be dismissed out of hand. It is completely irrelevant to the issue at hand whether one of the named Defendants was actually a corporate agent of (and not a joint employer with) the other named Defendant; it is also completely irrelevant whether the Doe defendants were joint employers. These are simply allegations made in a pleading, some in the alternative. The slightly vague and, at times, mutually-exclusive nature of some of these allegations is entirely normal at this stage of the proceedings. At bottom, none of these arguments successfully counter the allegation that the two named Defendants are joint employers.

        The Court OVERRULES the Demurrer to the FAC on the grounds of joint employer liability.

2.      Conspirator Liability

a.       Legal Standard

“The elements of a civil conspiracy are (1) the formation of a group of two or more persons who agreed to a common plan or design to commit a tortious act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages.” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 212.)

“Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy.¿In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors. Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort.” (Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511, citations omitted.)

b.       Discussion

Defendants demur to the FAC regarding conspirator liability (otherwise known as civil conspiracy), arguing: (1) that the FAC fails to state facts sufficient to support Plaintiff’s claim for conspirator liability against Defendants because the allegations are that the individual Defendant was a corporate agent of the corporate Defendant; and (2) that the allegations regarding conspirator liability are uncertain, vague, and ambiguous because the FAC both alleges Defendants were co-conspirators and that the agent-immunity rule bars such liability. (Demurrer, pp. 23:22–25, 24:15–18.)

The Court disagrees with these arguments.

Defendants’ arguments are spurious. The most that Plaintiff has done is alleged, among other things, that Defendants are co-conspirators. But there is no separate cause of action in the FAC for civil conspiracy, and there is no argument in the FAC about agent immunity. Put simply, Defendants are not actually demurring to anything that is actually in the FAC.

The Court OVERRULES the Demurrer to the FAC on the grounds of conspirator liability.

C.      Conclusion

The Demurrer is OVERRULED.

II.       Motion to Strike

A.      Request for Judicial Notice

Defendants request that the Court take judicial notice of seven items filed with the California Secretary of State (items one through seven) and two items filed in this matter (items eight and nine).

The Court DENIES as irrelevant judicial notice to items one through seven. “Although a court may judicially notice a variety of matters (Evid. Code, § 450 et seq.), only relevant material may be noticed.” (Am. Cemwood Corp. v. Am. Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7, quotation omitted, italics in original.)

The Court DENIES as superfluous judicial notice as to items eight and nine. Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).) Furthermore, any party that wishes to draw the Court’s attention to a statute may simply cite that statute.

B.      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. (Cal. 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. Mun. Ct. (1979) 99 Cal.App.3d 568, 575.)

C.      Discussion

Defendants move the Court to strike various paragraphs in the FAC that regard employment, joint employment, conspiracy, and control of Plaintiff’s employment. (Motion to Strike, pp. 2–3.) Defendants argue that these allegations are irrelevant and false. (Id. at pp. 12:8–10, 13:3–5, 16:3–5, 16:21–23.)

The Court disagrees with these arguments.

It is not appropriate to strike the allegations regarding employment, joint employment, conspiracy, and control of Plaintiff’s employment. Plaintiff is entitled to make these allegations. It will ultimately be Plaintiff’s burden to prove these allegations in order to obtain the relief she seeks.

        The Court DENIES the Motion to Strike.

D.      Conclusion

The Motion to Strike is DENIED.