Judge: Randall J. Sherman, Case: 2022-01255495, Date: 2022-12-16 Tentative Ruling

Defendant Home Mortgage Alliance Corporation (HMAC) d/b/a Net Lending Home Loans’ Demurrer to Plaintiff’s First Amended Complaint is sustained with 14 days’ leave to amend.  Both sides’ Requests for Judicial Notice are denied.

The main issue on this demurrer is whether plaintiff is a non-exempt employee who may bring these labor law violation claims.  Plaintiff argues in her opposition that she was misclassified as exempt and is in fact non-exempt, but the First Amended Complaint does not make these allegations.  Defendant’s burden of proving that plaintiff was an exempt employee does not arise until and unless plaintiff alleges that she was a non-exempt employee.  Thus, the demurrer will be sustained with leave to amend.  Defendant also argues that plaintiff failed to allege facts showing that she was properly licensed during her dates of employment.  Plaintiff argues that she was licensed during the relevant time period.  These arguments rely on factual disputes, go outside the pleadings, and thus will not be reached on demurrer.  Both sides’ Requests for Judicial Notice improperly invoke Evidence Code §452(g) and (h) and ask the court to consider extraneous facts at the pleading stage, but this court will not do so.

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