Judge: Randall J. Sherman, Case: 2021-01228182, Date: 2022-08-12 Tentative Ruling

Defendant Hoag Memorial Hospital Presbyterian’s Demurrer to Second Amended Complaint is withdrawn as to the fourth cause of action and is overruled as to the fifth cause of action.  Defendant Hoag Memorial Hospital Presbyterian’s Motion to Strike Portions of Plaintiff’s Second Amended Class Action Complaint is withdrawn.  Defendant must file an Answer within 10 days.

Plaintiff’s fifth cause of action is for Failure to Pay Wages Twice Monthly, as required by Labor Code §204.  Plaintiff’s allegations are somewhat weak, because plaintiff never actually alleges she wasn’t paid twice monthly.  But in her fifth cause of action, she does allege that defendant systematically refused to pay wages due under Labor Code §§226.7 and 1194, which means those wages weren’t paid at all, and thus weren’t paid twice monthly, thereby violating the requirement of Labor Code §204(a) that all wages earned by any person in any employment are due and payable twice during each calendar month.  This interpretation is consistent with the ruling of the California Supreme Court in Peabody v. Time Warner Cable, Inc. (2014) 59 Cal. 4th 662, that defendant violated Labor Code §204 by using a monthly pay period when calculating commissions, because under that statute, “all earned wages, including commissions, must be paid no less frequently than semimonthly”.  59 Cal. 4th at 668.  Additionally, §204(a) “requires that semimonthly paychecks include the wages earned during that pay period”.  Id. at 669.  Accordingly, a violation of §204 occurs if an employee is not paid all wages earned during a pay period, just as plaintiff alleges.  Thus, plaintiff’s allegations are sufficient, and will survive the pleading stage.

Defendant is ordered to give notice of the ruling unless notice is waived.