Judge: Randall J. Sherman, Case: 2021-01233040, Date: 2022-11-04 Tentative Ruling

Defendant House Foods America Corporation’s Demurrer to Plaintiff’s First Amended Complaint is sustained with 14 days leave to amend, based on the failure to state a cause of action.

The First Amended Complaint is overbroad in alleging conduct that allegedly violates Labor Code §§432.7 and 432.8.  Asking about and using conviction history generally as part of employment decisions are not prohibited by the statutes.  Generally speaking, the prohibition applies only if the inquiry is as to convictions in juvenile court, that were dismissed, or that involve marijuana.  Plaintiff argues in opposition that the First Amended Complaint includes a simple statement that “Defendant obtained and considered arrests that did not result in a conviction and juvenile proceedings”, but that statement is not what is in the First Amended Complaint.  Plaintiff must amend to allege only actual statutory violations.

Defendant also argues that the allegations in ¶26 of the First Amended Complaint are simply a recitation of the statute and are not supported by factual allegations.  However, a complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts, and courts have consistently held that a plaintiff is required to set forth only the essential facts of their case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.  Doe v. City of Los Angeles (2007) 42 Cal. 4th 531, 550.  Plaintiff meets these tests.

Defendant also notes that Labor Code §2699.5 does not provide for PAGA penalties for violations of Labor Code §432.8, but only §432.7.  The court agrees that Labor Code §432.8 simply explains that a violation of Labor Code §432.7 includes certain marijuana convictions, and does not provide for penalties on its own.

Finally, plaintiff appears to seek civil penalties for defendant’s alleged violation of Labor Code §432.7, based on ¶27 of the First Amended Complaint and ¶2 of the Prayer for Relief.  The Second Amended Complaint should clarify, in the caption of the pleading and the naming of its cause(s) of action, if plaintiff seeks civil penalties in addition to PAGA penalties.

The Status Conference set for today is continued to March 16, 2023 at 9:00 a.m.  A Joint Status Report must be filed at least a week before the new hearing date.

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