Judge: Ralph C. Hofer, Case: 24NNCV00369, Date: 2024-08-30 Tentative Ruling
Case Number: 24NNCV00369 Hearing Date: August 30, 2024 Dept: D
TENTATIVE RULING
Calendar: 9
Date: 8/30/2024
Case
No: 24
NNCV00369 Trial Date: None Set
Case Name: Yao
v. Annavee, Inc., et al.
DEMURRERS (2)
MOTION TO STRIKE
Moving Party:
Defendant Annavee Wingy Wong Kim
Defendant
Annavee, Inc.
Responding Party: Plaintiff
Qing Yao
RELIEF REQUESTED:
Sustain demurrer to fifth, sixth, and thirteenth
causes of action of First Amended Complaint
Strike punitive damages
CAUSES OF ACTION: from
First Amended Complaint
1)
Unlawful Failure to Pay Overtime Compensation v.
All Defendants
2)
Failure to Provide Rest Breaks v. All Defendants
3)
Failure to Provide Meal Breaks v. All
Defendants
4)
Inaccurate Wage Statements v. All Defendants
5)
Unfair Business Practices v. All Defendants
6)
Violation of the Rules on Tips and Gratuities v.
All Defendants
7)
Split Shift v. All Defendants
8)
Age Discrimination v. All Defendants
9)
Constructive Wrongful Termination and Retaliation v. All
Defendants
10) Private
Attorney’s General Act Claims v. All Defendants
11) Violation
of Labor Code Section 558.1 v. Kim
12) Violation
of Labor Code Section 1198.5 v. All Defendants
13) Violation
of Labor Code Section 1174.5 v. All Defendants
SUMMARY OF FACTS:
Plaintiff Qing
Yao alleges that defendant Annavee Inc. is a California corporation doing
business as Chang’s Garden (Chang’s Garden), and that in 2006, defendant
Annavee Wingyi Wong Kim hired plaintiff as a server in Chang’s Garden.
Plaintiff
alleges that plaintiff devoted nearly 15 years of dedicated service as a server
at Chang’s Garden, but that as plaintiff continued in her role, management
began favoring younger servers, cutting plaintiff’s hours despite her
consistent performance. Plaintiff
alleges that this discriminatory behavior, especially noticeable when plaintiff
was over forty, significantly impacted plaintiff’s livelihood. Plaintiff alleges that when plaintiff raised
concerns, management responded with severe retaliation, further reducing plaintiff’s
hours, and effectively pushing her out of the job.
The FAC alleges that plaintiff also faced numerous
labor violations, including denied breaks, unpaid overtime, mishandled tip
distribution, retaliation, and disregard for fair labor practices. Plaintiff alleges that defendants’ failure to
provide accurate wage statements compounded plaintiff’s challenges, revealing a
pattern of discrimination, retaliation and disregard for disregard for fair
labor practices. Plaintiff alleges
that defendant Kim should be held accountable for specific labor violations, given
her roles in ownership, operations and/or management within Chang’s Garden, and
bears responsibility as the employer of plaintiff for the Labor Code
violations.
ANALYSIS:
Meet and Confer—Plaintiff failed to Meet and
Confer
The declaration of counsel submitted with the
moving papers indicates that plaintiff has failed to respond to defendants’
counsel’s efforts to meet and confer prior to the filing of the demurrer and
motion to strike.
Specifically, the declaration of counsel
indicates that plaintiff’s counsel has failed to respond to two written meet
and confer correspondences, each of which requested plaintiff’s counsel’s
availability for a telephonic meet and confer conference and provided a written
summary of grounds for the demurrers and motion to strike. [Perry Decl., paras. 3-10, Ex. A]
CCP § 430.41 requires that both parties meet and confer:
“(a) Before
filing a demurrer pursuant to this chapter, the demurring party shall meet and
confer in person or by telephone with the party who filed the pleading that is
subject to demurrer for the purpose of determining whether an agreement can be
reached that would resolve the objections to be raised in the demurrer. If an
amended complaint, cross-complaint, or answer is filed, the responding party
shall meet and confer again with the party who filed the amended pleading
before filing a demurrer to the amended pleading.
(1) As part of the meet and confer process, the demurring
party shall identify all of the specific causes of action that it believes are
subject to demurrer and identify with legal support the basis of the
deficiencies. The party who filed
the complaint, cross-complaint, or answer shall provide legal support for its
position that the pleading is legally sufficient or, in the alternative, how
the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.”
(Emphasis added).
A similar provision applies to
motions to strike. CCP § 435.5
The
court views this obligation to meet and confer in good faith to extend to both
sides in connection with a demurrer, as well as with a motion to strike.
The
court would be within its discretion to continue the motions and require the
parties to meet and confer. The court
will instead require the parties to meet and confer by telephone prior to the
matter being called for hearing and for plaintiff to prepare and submit by
filing on eCourt the required meet and confer declaration under CCP § 430.41(a)(3) for review by the court
prior to the motions being called for hearing.
Substantive
Fifth Cause of
Action—Unfair Business Practices—Demurrer by Kim and
Demurrer by Annavee, Inc.
Defendants Kim and Annavee, Inc. have brought largely identical
demurrers to plaintiff’s FAC.
Defendants first argue that plaintiff’s fifth cause of action for
unfair business practices is insufficient and ambiguous.
To state a cause of action for
Unfair Business Practices, a plaintiff must allege the following elements:
1) Defendant has engaged in more
than one unlawful, unfair, or fraudulent transaction, including unfair,
deceptive, untrue or misleading advertising
2) Plaintiff’s right to
restitution, if any. Damages are not
recoverable.
3) Plaintiff’s right to injunctive
relief, if any.
Bus. & Prof. Code § 17200 et seq.; Dean Witter Reynolds,
Inc. v. Superior Court (1989) 211 Cal.App.3d 758.
It is held that the Unfair Business
Practices Act is not confined to anticompetitive business practices but is also
directed toward the public’s right to protection for fraud, deceit, and
unlawful conduct, and courts have thus “consistently interpreted the language
of section 17200 broadly.” Community
Assisting Recovery, Inc. v. Aegis Security Ins. Co. (2001 2nd
Dist.) 92 Cal.App.4th 886, 891, quoting South Bay Chevrolet v. General
Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 877.
Defendants argue that to the extent this cause of action is based on
allegations that defendants unlawfully deducted tips, providing defendants with
an unfair competitive advantage, plaintiff does not explain what she means by
the allegations that defendants deducted tips, and does not allege that
defendants retained any portion of any tips or gratuities for themselves, so it
is not clear how defendant gains a competitive advantage. [See FAC, para. 42]. It
does not appear that it is required that facts showing the gaining of an unfair
competitive advantage must be alleged to satisfy the pleading elements.
In any case, as pointed out in the opposition, the cause of action also
alleges that defendants, “have engaged in unfair
business practices in California by consistently failing to properly compensate
employees. These violations include, but are not limited to, failure to pay
overtime, inadequate provision of meal and rest periods, and non-compliance
with Labor Code Sections 226 and 226.7.”
[FAC, para. 41]. The
demurrer does not address these allegations, which involve alleged unlawful
practices, in violation of statutory law.
The demurrers are accordingly only addressed to part of the cause of
action. As
plaintiff argues in the opposition, defendants improperly fail to take into
account the entirety of plaintiff’s cause of action. A
demurrer does not lie to only part of a cause of action, and a cause will
survive demurrer if there are sufficient allegations that might entitle the
pleader to relief. Kong v. City of
Hawaiian Gardens Redevelop. Agency (2003, 2nd Dist.) 108
Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (1995) 33
Cal.App.4th 1680, 1682. The demurrers do
not address the various other theories alleged to support unfair business practices
as a cause of action. The motion to strike does not seek to strike these
particular tip deduction allegations from the pleading. The demurrer accordingly is overruled to this
cause of action.
Sixth Cause of
Action—Violation of the Rule on Tips and Gratuities—Demurrer by Kim and
Demurrer by Annavee, Inc.
Defendants
argue that plaintiff’s sixth cause of action is based on Labor Code section
351, which provides no private right of action, so that plaintiff lacks
capacity to sue under that statute.
Labor Code
section 351 provides:
“No employer or agent shall collect, take, or receive any gratuity or a
part thereof that is paid, given to, or left for an employee by a patron, or
deduct any amount from wages due an employee on account of a gratuity, or
require an employee to credit the amount, or any part thereof, of a gratuity
against and as a part of the wages due the employee from the employer. Every
gratuity is hereby declared to be the sole property of the employee or
employees to whom it was paid, given, or left for. An employer that permits
patrons to pay gratuities by credit card shall pay the employees the full
amount of the gratuity that the patron indicated on the credit card slip,
without any deductions for any credit card payment processing fees or costs
that may be charged to the employer by the credit card company. Payment of
gratuities made by patrons using credit cards shall be made to the employees
not later than the next regular payday following the date the patron authorized
the credit card payment.”
Defendants rely on Lu v. Hawaiian Gardens Casino, Inc. (2010) 50
Cal.4th 592, in which the California Supreme Court expressly
concluded that “section 351 does not contain a private right to sue.” Lu, at 595.
The Court in Lu reviewed the
statutory language, the penalties provided in the statutory scheme, including
that the employer is guilty of a “misdemeanor,” and is subject to a fine or
imprisonment, and the identification in the statutory scheme of an agency
charged with enforcing the tipping practices provisions, and also reviewed the
legislative history of Labor Code section 351 and related provisions, and
concluded that “there is no clear indication that the Legislature intended to
create a private cause of action under the statute.” Lu, at 600.
The Court in Lu noted that employees were not completely without
remedy where an employer fails to properly pay gratuities but could bring a
claim against the employer not based on Labor Code section 351, such as pursuant
to a cause of action for conversion. Lu,
at 603-604.
The Court noted that the statute expressly provides that “Every
gratuity is hereby declared to be the sole property of the employee or
employees to whom it was paid, given, or left for,” which language, “suggests
that employees may bring an action to recover any misappropriated tips to which
they are entitled, just as with other property rights.” Lu, at 598. The Court cited to CCP section 28, which
provides, “An injury to property consists in depriving its owner of the benefit
of it.” Lu, at 598.
The Court more specifically noted:
“Contrary to plaintiff's suggestion, our holding that section 351 does
not provide a private cause of action does not necessarily foreclose the
availability of other remedies. To the extent that an employee may be entitled
to certain misappropriated gratuities, we see no apparent reason why other
remedies, such as a common law action for conversion, may not be available
under appropriate circumstances. (See Moradi–Shalal, supra, 46
Cal.3d at pp. 304–305, 250 Cal.Rptr. 116, 758 P.2d 58 [even without private cause
of action under statute, “courts retain jurisdiction to impose civil damages or
other remedies ... in appropriate common law actions”]; see also Civ.Code, §
3523 [“For every wrong there is a remedy”].)”
Lu, at 603-604, footnote omitted.
In any case, a more recent California
Supreme Court case cited in the moving papers, Kim v. Reins
International California, Inc. (2020) 9 Cal.5th 73, has
expressly recognized, citing Lu, that Labor Code section 351 is among
the “numerous” Labor Code statutes which “impose civil penalties without
affording a private right of action.” Kim,
at 89 (“Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 601,
113 Cal.Rptr.3d 498, 236 P.3d 346, for example, held there is no private right
of action under section 351, which prohibits employers from taking employees’
tips.”)
This
court accordingly finds that plaintiff here has failed to establish the
existence of a private right of action under Labor Code section 351.
Plaintiff
also argues that if the court should find that section 351 is only available to
the Labor Commissioner, plaintiff can amend the cause of action to assert
claims based on conversion, or other applicable common law or statutory
theories. This apporach is what the
Court appeared to suggest would be appropriate in Lu.
The demurrers accordingly are sustained to
the cause of action as based on Labor Code section 351, but with leave to amend
to state a claim based on the alleged failure to properly pay gratuities under
some other legal theory, if possible.
Defendants argue that plaintiff’s thirteenth
cause of action, premised on an alleged violation of Labor Code section 1174.5,
also fails as there is no private right of action to enforce that section of
the Labor Code.
Labor Code section 1174.5 provides:
“Any person employing labor who
willfully fails to maintain the records required by subdivision (c) of Section
1174 or accurate and complete records required by subdivision (d) of Section
1174, or to allow any member of the commission or employees of the division to
inspect records pursuant to subdivision (b) of Section 1174, shall be subject
to a civil penalty of five hundred dollars ($500).”
Defendants argue that the only remedy
for a violation of Labor Code § 1174.5 is a civil penalty in the amount of
$500, which is recoverable by the Labor Commissioner.
Defendants
rely on a discussion in that case which does not mention Labor Code section
1174.5, but which observes that “numerous” Labor Code statutes “impose civil
penalties without affording a private right of action,” including Labor Code
sections 351 (citing Lu, as discussed above), 226.8, and 558.
Defendants rely on the discussion
in Kim in which the Court observes:
“ ‘[W]hen regulatory statutes
provide a comprehensive scheme for enforcement by an administrative agency,’ ”
as with the Labor Code, “ ‘courts ordinarily conclude that the Legislature
intended the administrative remedy to be exclusive unless the statutory
language or legislative history clearly indicates an intent to create a private
right of action.’ ” (Thurman v. Bayshore Transit Management, Inc. (2012)
203 Cal.App.4th 1112, 1132, 138 Cal.Rptr.3d 130, disapproved on another ground
in ZB, N.A. v. Superior Court, supra, 8 Cal.5th at p. 196, fn. 8, 252
Cal.Rptr.3d 228, 448 P.3d 239.)
Kim, at 89.
Defendants
then argue that there is no statutory language or legislative history that
suggests the legislature intended to create a private right of action to
enforce Labor Code section 1174.5.
Plaintiff
in opposition does not address this argument on its merits, but indicates in
the Introduction to the opposition that “Plaintiff the Thirteenth cause of
action [sic] and thus Defendants’ Demurrer as to this cause of action is moot.” It is not clear what plaintiff intends. There is no request for dismissal of this cause
of action, or any causes of action, in the file. If plaintiff intends to withdraw this cause
of action, plaintiff should have clearly so stated. The court construes plaintiff’s argument with
respect to the thirteenth cause of action, and the failure to oppose the
demurrer to the cause of action on its merits, as a concession that the
thirteenth cause of action is insufficient.
Hence, the court sustains the demurrer to the cause of action without
leave to amend.
Motion to Strike—Motion by Annavee, Inc.
The motion
to strike is brought only by the corporate defendant, Annavee, Inc., which
argues that the FAC improperly seeks punitive damages.
Under CCP §
435, a party may serve and file a motion to strike a part of a
pleading.
Under CCP § 436:
“The court may, upon a motion made pursuant to CCP § 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.”
Under CCP § 431.10(c), an
“immaterial allegation,” as defined in that section, “means ‘irrelevant matter’
as that term is used in Section 436.”
CCP §
431.10(b) defines an immaterial allegation as follows:
“(b)
An immaterial allegation in a pleading is any of the following:
(1)
An allegation that is not essential to the statement of a claim or defense.
(2)
An allegation that is neither pertinent to nor supported by an otherwise
sufficient claim or defense.
(3)
A demand for judgment requesting relief not supported by the allegations of the
complaint or cross-complaint.”
For
purposes of ruling on a motion to strike, the allegations of the pleading are
assumed to be true. Clauson v.
Superior Court (1998 2nd Dist.) 67 Cal.App.4th 1253,
1255.
Civil Code § 3294 authorizes recovery of punitive damages “in an
action for breach of an obligation not arising from contract…” on the basis of findings that “the defendant
has been guilty of oppression, fraud or malice.”
The motion first argues that punitive damages may not be awarded based on
a cause of action for failure to pay overtime wages. Defendant argues that punitive damages
sought in connection with the first cause of action is therefore improper.
The first cause of action alleges that plaintiff often worked more than
eight hours per day or forty hours per week, but defendants failed to provide
plaintiff with appropriate overtime compensation. [FAC, para. 22]. The cause of action alleges that this conduct
is in violation of certain Labor Code sections and that defendants’ unlawful
practices, “caused Plaintiff damages, including loss of earnings for overtime
hours worked….” [FAC, paras. 21-24]. Plaintiff seeks damages for “loss of earnings
for overtime hours worked, to be determined at trial, along with interest,
attorneys’ fees, costs and an injunction mandating future compliance with
overtime payment.” [FAC, para. 24]. There is no request in the cause of action
for punitive damages which the court may strike. Punitive damages are sought generally in the
prayer, which seeks, “exemplary and punitive damages in an amount to be
determined by the Court.” [FAC, Prayer,
para. D]. The prayer is directed to
“all causes of action,” but the motion to strike is directed only to the first
cause of action for failure to pay overtime and the ninth cause of action for
constructive wrongful termination and retaliation. Therefore, defendant has failed to show that
the punitive damages are not stated properly as to at least one of the numerous
causes of action.
In any case, punitive damages are not sought directly in the first cause
of action. At best, the cause of action
alleges that defendants’ conduct was knowing and willful, in breach of the
Labor Code and applicable Wage Order, “demonstrating bad faith and
malice.” [FAC, para. 25]. This allegation must be taken as true for
purposes of a motion to strike. It is
clear that this allegation, unaccompanied by a direct claim for punitive
damages, cannot be appropriately stricken from the pleading. The overall claim for punitive damages cannot
be stricken in light of its application to all causes of action. The motion to strike on this ground
accordingly is denied.
However, plaintiff has failed to file timely opposition to the motion to
strike. The court at the hearing will
hear oral argument with respect to whether on amendment, plaintiff would like
leave to eliminate the allegations of malicious intent from the first cause of
action.
Defendant also argues that punitive damages are improperly sought in
connection with plaintiff’s ninth cause of action for constructive wrongful
termination and retaliation in violation of public policy.
The cause of action itself alleges that defendants’ conduct justifies
“punitive damages to deter similar behavior in the future.” [FAC, para. 63].
The cause of action alleges that defendants engaged in discriminatory
practices and retaliatory actions, and that defendant’s retaliation against
plaintiff for speaking out against discrimination and unfair labor practices is
a direct violation of public policy, disregards labor laws and undermines basic
principles of fairness and equity.
[FAC, paras. 57-61].
The motion
to strike concedes that it would be possible to obtain an award of punitive
damages on a wrongful termination or retaliation claim. Defendant argues, however, that plaintiff
fails to plead facts sufficient to support an award of punitive damages, as the
allegations of the FAC related to retaliation are that when plaintiff raised
concerns about age-based discrimination, defendants responded by further
cutting her hours, ultimately pushing her out of her job, without any details
concerning the content of any alleged complaint, to whom it was made, in what
form, or the date on which it was communicated, and without specifying the
extent to which plaintiff’s hours were allegedly cut. [FAC, para. 14]. There is no legal authority cited under which
this level of detail is a pleading requirement for seeking punitive damages in
an age discrimination/retaliation claim.
This motion is more in the nature of a demurrer to the sufficiency of
the cause of action, not a motion to strike a claim for punitive damages where
age discrimination and retaliation are at issue. The motion to strike on this ground is
denied.
The motion
also argues that the FAC fails to plead facts sufficient to support an award of
punitive damages against Annavee, Inc., a corporate defendant, because there
are insufficient allegations that the act of oppression, fraud or malice was on
the part of an officer, director, or managing agent of defendant.
Civil Code § 3294(b) requires that
a plaintiff seeking punitive damages against a corporation must show such
wrongful conduct by managing personnel of the corporation:
“An employer shall not be liable
for [exemplary]...damages based upon acts of an employee of the employer,
unless the employer...ratified the wrongful conduct for which the damages are
awarded or was personally guilty of oppression, fraud or malice. With respect to a corporate employer, the
advance knowledge and conscious disregard, authorization, or ratification of an
act of oppression, fraud or malice must be on the part of an officer, director
or managing agent of the corporation. “
Civil Code §
3294(b).
The FAC includes general allegations
concerning the conduct of defendant Kim as a managing agent of the corporate
defendant:
“Plaintiff asserts that KIM should
be held accountable for specific labor violations given her roles in ownership,
operations, and/or management within CHANG’S GARDEN. In her capacity as an owner, director,
officer, or managing agent of CHANG’S GARDEN, KIM is implicated in breaches of
minimum wage regulations, hours of work provisions set by the Industrial
Welfare Commission, and violations of Labor Code Sections § 510, § 226, §
226.7, § 512, § 558, § 1174, and § 1198.”
[FAC, para. 17].
It is also alleged that:
“74. Defendant KIM, in her capacity
as an owner, director, officer, or managing agent, had direct control and
authority over the operations and management of CHANG’S GARDEN, including but
not limited to employment practices, wage policies, and compliance with labor
laws.
75. Despite being aware or having
the obligation to be aware of the labor violations occurring at CHANG’S GARDEN,
Defendant KIM failed to take appropriate corrective actions to ensure
compliance with the provisions of the Labor Code.
76. As a result of Defendant KIM’s
neglect or active participation in the labor violations, Plaintiff and other
employees suffered financial harm, emotional distress, and infringement of
their statutory rights under the Labor Code.”
[FAC paras. 74-76].
There is authority under which
allegations may be sufficient where they involve a director, officer, or
managing agent who exercises substantial discretionary authority over
significant aspects of a corporation’s business and policy. See CRST, Inc. v. Superior Court
(2017, 2nd Dist.) 11 Cal.App. 5th 1255, 1273, citing White
v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576-577. This scenario is what is alleged here, as the
FAC refers to Annavee, Inc.’s officer, director or manager engaging in the
conduct of adopting or ratifying policies which implicate violation of public
policy, such as discriminatory practices.
The demurrer on this ground
accordingly is overruled.
The motion also appears to briefly
argue that the FAC does not allege any conduct on the part of defendant Annavee
Kim at all. The motion to strike is not
brought by defendant Kim, but only by defendant Annavee, Inc. There is no separate motion to strike brought
by Kim. In addition, as quoted above,
there are sufficient allegations of Kim’s participation in wrongful conduct
here in her position as an owner, operator, and manager of Chang’s Garden. The motion to strike is denied on this
ground.
RULING:
Demurrer to Plaintiff’s First Amended Complaint by Defendant
Annavee Wingyi Wong Kim:
The parties are
ordered to meet and confer in good faith by telephone prior to the hearing on
the demurrer, and plaintiff’s counsel is ordered to efile with the Court the
required declaration indicating the outcome of those efforts, and clearly
indicating which issues remain for the Court to resolve on the demurrer. The Court will not hear the demurrer, and
plaintiff will not be assigned a trial date, until plaintiff has appropriately
met and conferred on the status of the pleadings.
Demurrer to the fifth cause of action for unfair business
practices is OVERRULED. The demurrer is
addressed only to the allegations that defendants unlawfully deducted tips but
does not address or challenge the allegations that defendants engaged in unfair
business practices by failing to properly compensate employees under numerous
unrelated specified Labor Code sections. [FAC, para. 41]. Because a demurrer does not lie to only part
of a cause of action, and a cause will survive demurrer if there are sufficient
allegations that might entitle the pleader to relief, the demurrer is
overruled. Kong v. City of Hawaiian
Gardens Redevelop. Agency (2003, 2nd Dist.) 108 Cal.App.4th 1028,
1046; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680,
1682.
Demurrer to the sixth cause of action for violation of the
rule on tips and gratuities is SUSTAINED WITH LEAVE TO AMEND on the ground the
cause of action is based on Labor Code § 351, and the California Supreme Court
has held that there is no private right of action to enforce Labor Code § 351. Lu
v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 595, 600. The demurrer is
sustained with leave to amend to permit plaintiff to amend the pleading, if
possible, to seek recovery of the alleged withheld tips on some other viable theory.
See Lu, at 598, 603-604.
Demurrer to the thirteenth cause of action for violation of
Labor Code 1174.5 is SUSTAINED WITHOUT LEAVE TO AMEND
based on the apparent concession in
the opposition that the cause of action is withdrawn, and the lack of
substantive opposition to the motion, on the ground the cause of action is
based on a statute which does not provide a private right of action.
Ten days leave to amend the sixth cause of action only, if
possible.
Demurrer to Plaintiff’s First Amended Complaint by Defendant
Annavee, Inc.:
The Court notes that the meet and confer declaration
submitted with the demurrers and motion to strike indicates that plaintiff’s
counsel failed to respond to meet and confer efforts, including two written
correspondences. The Court views the
obligation to meet and confer to extend to both plaintiff and defendants. See CCP § 430.41(a)(1) (“The party who filed
the complaint, cross-complaint, or answer shall provide legal support for its
position that the pleading is legally sufficient or, in the alternative, how
the complaint, cross-complaint, or answer could be amended to cure any legal
insufficiency.”). See also CCP § 435.5,
applying to motions to strike.
The parties are ordered to meet and confer in good faith by
telephone prior to the hearing on the demurrer and motion to strike, and
plaintiff’s counsel is ordered to efile with the Court the required declaration
indicating the outcome of those efforts, and clearly indicating which issues
remain for the Court to resolve on the demurrer and motion to strike. The Court will not hear the demurrer or
motion to strike, and plaintiff will not be assigned a trial date, until
plaintiff has appropriately met and conferred on the status of the pleadings.
Demurrer to the fifth cause of action for unfair business
practices is OVERRULED. The demurrer is
addressed only to the allegations that defendants unlawfully deducted tips but
does not address or challenge the allegations that defendants engaged in unfair
business practices by failing to properly compensate employees under numerous
unrelated specified Labor Code sections. [FAC, para. 41]. Because a demurrer does not lie to only part
of a cause of action, and a cause will survive demurrer if there are sufficient
allegations that might entitle the pleader to relief, the demurrer is
overruled. Kong v. City of Hawaiian
Gardens Redevelop. Agency (2003, 2nd Dist.) 108 Cal.App.4th
1028, 1046; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680,
1682.
Demurrer to the sixth cause of action for violation of the
rule on tips and gratuities is SUSTAINED WITH LEAVE TO AMEND on the ground the
cause of action is based on Labor Code § 351, and the California Supreme Court
has held that there is no private right of action to enforce Labor Code § 351. Lu
v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 595, 600. The demurrer is sustained with leave to
amend to permit plaintiff to amend the pleading, if possible, to seek recovery
of the alleged withheld tips on some other viable theory. See Lu, at 598, 603-604.
Demurrer to the thirteenth cause of action for violation of
Labor Code 1174.5 is SUSTAINED WITHOUT LEAVE TO AMEND based on the apparent
concession in the opposition that the cause of action is withdrawn, and the
lack of substantive opposition to the motion, on the ground the cause of action
is based on a statute which does not provide a private right of action.
Ten days leave to amend the sixth cause of action only, if
possible.
Defendant Annavee, Inc.’s Motion to Strike Portions of
Plaintiff’s First Amended Complaint is DENIED.
DEPARTMENT D IS CONTINUING
TO CONDUCT AND ENCOURAGE
AUDIO OR VIDEO APPEARANCES
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If no appearance is set up through LACourtConnect, or no appearance is
otherwise made, then the Court will assume the parties are submitting on the
tentative.