Case Number: 20STCV44426    Hearing Date: September 30, 2022    Dept: 49

Tentative Ruling

Judge Randolph M. Hammock, Department 49

CASE:                         Vicky Silva v. Booftech, LLC, et al.

            DEFENDANT ALEXIS GONZALEZ’S DEMURRER TO THE FIRST AMENDED COMPLAINT

MOVING PARTY:               Defendant Alexis Gonzalez

RESPONDING PARTY(S): Plaintiff Vicky Silva

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Vicky Silva filed her complaint in this action alleging violations of the Labor Code and related causes of action against Defendant Booftech, LLC dba 2020HIEFFECT.  On October 13, 2021, Plaintiff added Ryan Derouchey and Sunshine Ways Inc. as doe defendants.

On December 14, 2021, Plaintiff filed a First Amended Complaint, adding Alexis Gonzalez as a new Defendant.

Defendant Alexis Gonzalez now demurs to each cause of action in the First Amended Complaint. Plaintiff opposed.

TENTATIVE RULING:

Defendant’s Demurrer to the Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Causes of Action is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)   Plaintiff must demonstrate at the hearing how she can amend to remedy the statute of limitations issues.  If she doesn’t, no leave to amend will be given.

Defendant’s Demurrer to the First, Second, Third, and Ninth Causes of Action is OVERRULED.

DISCUSSION:

Demurrer

Meet and Confer

            The Declaration of Attorney Thomas M. Lee, Counsel for Defendant, reflects that the meet and confer requirement was satisfied. (CCP § 430.41.)

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

Analysis

A.    Application of Relation-Back Doctrine

The original Complaint in this action, filed November 19, 2020, did not name Alexis Gonzalez as a Defendant.  Plaintiff later made doe amendments to add Defendants Ryan Derouchey and Sunshine Ways Inc.  However, it was not until Plaintiff filed her First Amended Complaint on December 14, 2021, that Defendant Gonzalez became a Defendant. 

Defendant Gonzalez now demurs to each cause of action in the First Amended Complaint. Defendant first argues that each cause of action is untimely under the respective statute of limitations.  As alleged in the FAC, Defendants terminated Plaintiff on or about November 21, 2018.  (FAC ¶ 20.) Thus, the limitations periods began running on this date. 

The operative issue is whether the First Amended Complaint—which names Defendant Gonzalez for the first time—“relates back” to the original Complaint. The relation-back doctrine typically applies where an amendment identifies a defendant previously named as a Doe defendant (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 935, 136 Cal.Rptr. 269, 559 P.2d 624) or adds a new cause of action asserted by the same plaintiff on the same general set of facts. (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 584–585, 86 Cal.Rptr. 465, 468 P.2d 825; Rowland v. Superior Court (1985) 171 Cal.App.3d 1214, 1218, 217 Cal.Rptr. 786.) An amended pleading will also relate back if it makes a mere technical change in the capacity in which the plaintiff sues on the same cause of action (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1008, 79 Cal.Rptr.2d 544; Pasadena Hospital Assn., Ltd. v. Superior Court (1988) 204 Cal.App.3d 1031, 1037, 251 Cal.Rptr. 686) or substitutes a plaintiff with standing in place of a plaintiff who lacks standing.  (Id. at 1549-50.)  “The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo v. Superior Ct. (1999) 75 Cal. App. 4th 169, 176.)

In opposition, Plaintiff argues that “[a]ll claims against Defendant Gonzalez relate back to the initial filing of the Complaint as Defendant is the alter ego of each other defendant in this matter…” (Opp. 4: 7-9.)  Plaintiff likens this scenario to one where a plaintiff “simply corrects a misnomer by which an ‘old’ defendant was sued,” (Hawkins v. Pacific Coast Bldg. Products, Inc. (2004) 124 Cal. App. 4th 1497, 1504), or where a plaintiff “correct[s] the name of a defendant who conducts business under a fictitious name.” (Walsh v. Decoto (1920) 49 Cal.App. 737, 739–740.)

“Whether a plaintiff may amend the complaint to change a party's description or characterization ‘after the statute of limitations has run depends on whether the misdescription or mischaracterization is merely a misnomer or defect in the description or characterization, or whether it is a substitution or entire change of parties. In the former case an amendment will be allowed; in the latter, it will not be allowed.’” (See Hawkins v. Pac. Coast Bldg. Prod., Inc. (2004) 124 Cal. App. 4th 1497, 1504 [where plaintiff misnamed defendant “Pacific Coast dba Basalite” as “Basalite Corporation,” relation-back doctrine applied to permit plaintiff to substitute defendant’s correct name; change did not add a “new” defendant.”].)

Here, despite Plaintiff’s best efforts to portray it as such, this is not the case of “misnaming” a Defendant.  There can be no argument that Plaintiff mistook the entity Defendant, Booftech LLC, with individual Defendant Gonzalez. Neither can Defendant Gonzalez be considered a “substitute” for another Defendant.  Every Defendant named in the original Complaint or added thereafter as a doe Defendant is still named a Defendant in the operative FAC.

Plaintiff further contends that Gonzalez is not a “new” defendant because he is an alter-ego of the Defendants named in the complaint.  Plaintiff cites no authority supporting this position.  In fact, case authority says the opposite. “When a defendant is first named in an amended complaint, and is alleged to be the alter ego of a defendant named in the original complaint, he is brought into the action as a new defendant and the action is commenced as to him at the time the amended complaint naming him is filed. It is necessary that the new defendant be named in the amended complaint and summons issued thereon, and that they be served upon him, in order for the court to acquire jurisdiction over him and he be afforded his due process rights to notice and the opportunity to be heard. This is true even though the alter ego defendant is considered to be identical with, i.e., the “other self” of, the defendant named in the original complaint.”  (Hennessey's Tavern, Inc. v. Am. Air Filter Co. (1988) 204 Cal. App. 3d 1351, 1359–60 [emphasis added.])  Accordingly, the relation-back doctrine does not apply to the facts here.  Thus, the date of filing for purposes of the statute of limitations is December 14, 2021—the date Plaintiff filed the FAC which first named Defendant Gonzalez.

B.     Demurrer to First, Second, and Third Causes of Action

The next issue is to determine the applicable statute of limitations periods for each respective cause of action.  The parties disagree on the limitations period for the First, Second, and Third causes of action, all brought under the Labor Code.  Defendant argues the applicable period is three-years; Plaintiff contends that each has a four-year statute of limitations. That is because Plaintiff argues that “California’s Unfair Competition Law (“UCL”) extends the recovery period to four years for claims seeking restitution, including claims for unpaid wages, unpaid overtime, meal and rest break premiums, and reimbursement of necessary business expenses.” (Opp. 5: 13-19.) Plaintiff has alleged a violation of Business and Professions Code section 17200 as her ninth cause of action to the FAC.

The statute of limitations for actions brought under § 17200 is four years after the cause of action accrues. (Bus. & Prof. Code § 17208.) The UCL's four-year statute of limitations “admits of no exceptions” and thus applies even where the UCL action is based on violation of a statute with a shorter limitations period: “Any action on any UCL cause of action is subject to the four-year period of limitations created by that section.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178-179.) UCL remedies are limited, however, to restitutionary and injunctive relief.  Defendant does not address the impact of the UCL’s extension on the limitations periods, either in his motion or reply brief.

Applying a four-year statute of limitations, the First, Second, and Third causes of action are timely.  Thus, to the extent that Plaintiff seeks restitution or injunctive relief under the UCL, the four-year statute of limitations applies, and the claims are not time-barred. Because “a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy,” the demurrer fails as to these causes of action. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal. App. 4th 1028, 1047.) Similarly, to the extent that Plaintiff seeks statutory penalties that might invoke the one-year limitations period of CCP 340(a), the demurrer to those claims also fails.

Accordingly, Defendant’s Demurrer as to the First, Second, and Third Causes of Action is OVERRULED.

C.     Demurrer to Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action

Next, the parties agree on the following limitations periods: Fourth Cause of Action (3 years); Sixth Cause of Action (3 years); Seventh Cause of Action (3 years); and Eighth Cause of Action (2 years.)  Although the parties disagree on the exact limitations period on the Fifth Cause of Action, they agree that it is no more than 3 years.

As alleged in the FAC, Defendants terminated Plaintiff on or about November 21, 2018.  (FAC ¶ 20.) Thus, the limitations periods began running on this date.  Under even the longest limitations period (e.g. 3 years), Plaintiff’s filing of the FAC on December 14, 2021, was untimely.  As noted above, the relation-back doctrine cannot save the claims.  Thus, the Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action are barred under the applicable statutes of limitations. 

Accordingly, Plaintiff’s Demurrer as to the Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action is SUSTAINED.

D.    Demurrer to Ninth Cause of Action

Defendant argues the UCL claim (Ninth Cause of Action) fails because it seeks remedies that are not available under the UCL.  Despite its broad applicability, “[i]njunctive relief and restitution are the only remedies available under the UCL.”  (Esparza v. Safeway, Inc. (2019) 36 Cal. App. 5th 42, 53.)  Thus, “[a] UCL claim must be based on the existence of harm supporting injunctive relief or restitution.”  (Id.)

The FAC alleges that “Defendants’ unfair business practices entitle Plaintiff to seek preliminary and permanent injunctive relief, including but not limited to orders that the Defendants account for, disgorge, and restore to the Plaintiff the overtime compensation and other monies and benefits unlawfully withheld from Plaintiff.” (FAC ¶ 84.)  Defendant relies on the California Supreme Court in Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, which held that “nonrestitutionary disgorgement is not an available remedy in an individual action under the UCL.” (Id. at p. 1149.)  In that case, a business representing manufacturers of military equipment brought an action asserting claims under the UCL, alleging that defendants illegally induced a foreign government to award a contract of sale to a company other than the one represented by plaintiff. 

Here, Plaintiff seeks not just disgorgement, but also injunctive relief and/or restitution. Because “a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy,” the demurrer fails. (Kong, supra, 108 Cal. App. 4th at 1047.)

Accordingly, the Demurrer to the Ninth Cause of Action is OVERRULED.

E.     Demurrer to Tenth Cause of Action

Defendant contends the Tenth Cause of Action carries a one-year limitations period under CCP section 340(a), because Plaintiff seeks statutory penalties.  Plaintiff counters that her Tenth cause of action “does not only seek civil penalties,” but also seeks the recovery of attorney’s fees and costs. Although Plaintiff argues the one-year period does not apply, she does not address what period does apply, and does not cite any authority for her position that seeking attorney’s fees extends the limitations period for purposes of section 1198.5. Nonetheless, Plaintiff never contends that the period is any longer than the three-year period governed by CCP section 338(a).  The Tenth Cause of Action is therefore untimely. 

Accordingly, Defendant’s Demurrer to the Tenth Cause of Action is SUSTAINED.

Conclusion

Defendant’s Demurrer to the Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Causes of Action is SUSTAINED.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)   Plaintiff must demonstrate at the hearing how she can amend the First Amended Complaint to remedy the statute of limitations issues.  If she doesn’t, no leave to amend will be given.

Defendant’s Demurrer to the First, Second, Third, and Ninth Causes of Action is OVERRULED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated:   September 30, 2022                          ___________________________________

                                                                        Randolph M. Hammock

                                                                        Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.