Judge: Peter A. Hernandez, Case: 22PSCV00124, Date: 2022-11-01 Tentative Ruling
Case Number: 22PSCV00124 Hearing Date: November 1, 2022 Dept: O
1. Defendant IDR Environmental Services’
Demurrer to the Complaint is OVERRULED.
2. Defendant IDR Environmental Services’ Motion to Strike the Complaint is DENIED as to the issue of manageability and otherwise DENIED as MOOT.
Background
Plaintiff Benjamin Corral (“Plaintiff”) alleges as follows:
On May 2, 2022, Plaintiff filed an “Amendment to Complaint,” wherein Plaintiff corrected Defendant’s name from “IDR Environmental Services, Inc.” to “I.D.R., Inc.”
On August 5, 2022, Plaintiff filed a First Amended Representative Complaint for Civil Penalties (“FAC”), asserting causes of action against Defendant and Does 1-50 for:
1.
Violation of the Private Attorneys General Act,
Labor Code § 2698 et seq. for Recovery of Unpaid Minimum Wage and Overtime;
2.
Violation of the Private Attorneys General Act,
Labor Code § 2698 et seq. for Failure to Provide Meal Periods;
3.
Violation of the Private Attorneys General Act,
Labor Code § 2698 et seq. for Failure to provide Rest Periods;
4.
Violation of the Private Attorneys General Act,
Labor Code § 2698 et seq. for Failure to Pay Wages Due upon Termination of
Employment
5.
Violation of the Private Attorneys General Act,
Labor Code § 2698 et seq. for Failure to Provide Accurate Itemized Wage
Statements; and
6.
Violation of the Private Attorneys General Act,
Labor Code § 2698 et seq. for Failure to Indemnify for Expenditures or Losses
in Discharge of Duties
A Case Management Conference is set for November 1, 2022.
1. Demurrer
Legal Standard
A demurrer may be made on grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)
When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)
Discussion
Defendant demurs, pursuant to Code of Civil Procedure § 430.10, to the first through sixth causes of action in Plaintiff’s FAC, on the basis that they each fail to state facts sufficient to constitute causes of action and are uncertain.
Plaintiff’s FAC is comprised of six causes of action, each consisting of a purported violation of the Private Attorneys General Act, Labor Code § 2698 et seq. (“PAGA”). The causes of action seek damages for (1) Recovery of Unpaid Minimum Wage and Overtime, (2) Failure to Provide Meal Periods, (3) Failure to Provide Rest Periods, (4) Failure to Pay Wages Due Upon Termination of Employment, (5) Failure to Provide Accurate Itemized Wage Statements and for (6) Failure to Indemnify for Expenditures or Losses in Discharge of Duties, respectively.
Plaintiff alleges that he worked as a yard technician for Defendant, a corporation that provides hazardous waste disposal to California citizens and whose facilities are located in Azusa, from on or about December 3, 2019 until December 4, 2020. (FAC, ¶¶ 9-10) Plaintiff brings this lawsuit on behalf of himself and “Aggrieved Employees,” which are defined as “all non-exempt, hourly-paid employees, currently and/or formerly employed by Defendant . . . in the State of California during the Liability Period.” (Id., ¶ 1.) The “Liability Period” is defined as “from September 28, 2020, to the present.” (Id.)
Defendant argues that Plaintiff has not pled sufficient facts to proceed on a representative basis.
In order to initiate a PAGA action to recover civil
penalties for Labor Code violations, an aggrieved employee plaintiff must “give
written notice . . . [to] the Labor and
Workforce Development Agency and . . . to the employer of the specific provisions of
this code alleged to have been violated, including the facts and theories to
support the alleged violation.” (Lab. Code § 2699.3, subd. (a)(1).) This “does
not require the facts and theories provided in support of alleged violations
[to] satisfy a particular threshold of weightiness, beyond the requirements of
nonfrivolousness generally applicable to any civil filing.” (Santos v.
El Guapos Tacos, LLC (2021) 72 Cal.App.5th 363, 371-372 [internal quotation
marks and citation omitted].) The PAGA notice must “allow the LWDA ‘to
intelligently assess the seriousness of the alleged violations’ or give the
employer enough information ‘to determine what policies or practices are being
complained of so as to know whether to fold or fight.’” (Brown v. Ralphs
Grocery Co. (2018) 28 Cal.App.5th 824, 837, quoting Alcantar
v. Hobart Service (9th Cir. 2015) 800 F.3d 1047.) The PAGA notice
requirements are on par with pleading requirements. (Rojas-Cifuentes v.
Superior Court of San Joaquin County (2020) 58 Cal.App.5th 1051, 1060
[“[W]e see nothing in section 2699.3 suggesting that factual allegations in
PAGA notices must exceed those normally found sufficient in complaints. Nor do
we find anything in PAGA as a whole supporting this proposition”].)
Defendant does not argue that Plaintiff’s PAGA notice was deficient.
Defendant additionally argues, with respect to the second and third causes of action, that Plaintiff must plead meal and rest period that were not “made available.” The requirement, however, is that the employer must “relieve[] its employees of all duty, relinquish[] control over their activities and permit[] them a reasonable opportunity to take an uninterrupted 30-minute break,” and must not “impede or discourage them from doing so.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040.) Employers are further prohibited from “undermin[ing] a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.” (Id.) Here, Plaintiff has alleged that he and other aggrieved employees were denied duty-free meal periods and had their meal periods interrupted 2-3 times a week. (FAC, ¶ 50.) Plaintiff has also alleged that approximately twice a week Defendant would not provide meal periods within the first 5 hours of work as required by Labor Code § 512, instead providing the meal periods close to 9 hours after their shifts began. (Id.)
Defendant also argues that the second and third causes of action are “duplicative” and that Plaintiff can only recover a civil penalty for either a meal break violation or a rest break violation. Labor Code § 226.7, subdivision (b), however, provides that “[a]n employer shall not require an employee to work during a meal or rest or recovery period . . .” (Emphasis added). Section 226.7 has been construed “as permitting up to two premium payments per workday—one for failure to provide one or more meal periods, and another for failure to provide one or more rest periods.” (United Parcel Service Wage & Hour Cases (2011) 196 Cal.App.4th 57, 69.) Plaintiff, then, is permitted to seek civil penalties for both a failure to provide meal breaks and rest breaks. Defendant’s citation to § 2699, subdivision (e)(2) in support of its position (i.e., “[i]n any action by an aggrieved employee seeking recovery of a civil penalty available under subdivision (a) or (f), a court may award a lesser amount than the maximum civil penalty amount specified by this part if, based on the facts and circumstances of the particular case, to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory”) is not relevant on demurrer. Plaintiff has separately alleged that Defendant denied and failed to provide Plaintiff and other aggrieved employees duty-free rest periods twice a week and that they were often forced to forego rest periods and/or work during their rest periods. (FAC, ¶ 62.)
Defendant argues that the fourth cause of action improperly seeks Labor Code § 203 statutory penalties. Plaintiff’s FAC, however, is clear that civil penalties under PAGA are being sought. (Id., ¶¶ 73 and 74.)
Defendant argues that the fifth cause of action is duplicative and that Plaintiff cannot “recover double/multiple” civil penalties. Labor Code § 226, however is a free-standing, separate violation of the Labor Code. Again, Defendant’s reliance on § 2699, subdivision (e)(2) in support of its position is rejected as stated above.
Finally, Defendant argues that the sixth cause of action fails to allege reimbursement of necessary business expenses. Plaintiff, however, has alleged that he and other aggrieved employees were required to use their personal cell phones and personal vehicles, as well as to purchase masks. (FAC, ¶¶ 86 and 88.)
Defendant’s demurrer is overruled.
2. Motion to Strike
Legal Standard
Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)
Discussion
Defendant moves the court for an order striking out certain portions of Plaintiff’s FAC.
Defendant’s motion to strike is denied as moot in part, based upon the ruling on Defendant’s demurrer. It is evident that Plaintiff is seeking civil penalties and attorney fees only pursuant to Labor Code § 2698 et seq. (See FAC ¶¶ 20, 21, 43, 45, 46, 55, 57, 58, 66-68, 73-75, 79, 81-83 and 90-92.)
Defendant’s motion as it pertains to the issue of unmanageability is denied. Defendant cites to Wesson v. Staples The Office Superstore, LLC (2021) 68 Cal.App.5th 746 for the proposition that a court may determine that a proposed PAGA class is unmanageable. Indeed, Wesson concluded that “courts have inherent authority to ensure that a PAGA claim will be manageable at trial -- including the power to strike the claim, if necessary -- and that this authority is not inconsistent with PAGA's procedures and objectives, or with applicable precedent.” (Id. at 762-763.)
Plaintiff’s claims in Wesso, however, involved the theory that Defendant had misclassified its California general managers as exempt when they should have been classified as non-exempt, hourly employees. Defendant, in that case, moved to strike Plaintiff’s PAGA claim following the court’s denial of class certification. The trial court in Wesson, before ruling on the merits of Defendant’s motion, invited Plaintiff to submit a trial plan showing that his claim would be manageable and permitted him to file a supplemental brief in opposition to Defendant’s motion. The instant case is readily distinguishable from Wesson, in that no misclassification claims have been asserted, it is not a putative class action, and no trial plan has been submitted. At a minimum, Defendant’s manageability argument is premature.