Alma Vargas v. SOS Water & Fire Restoration, Inc., et al.

(1) DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT

(2) MOTION TO STRIKE

 

MOVING PARTY: Defendants S.O.S. Water & Fire Restoration, Inc., Cesar Soto, and Alma Soto

RESPONDING PARTY(S): Plaintiff Alma Vargas

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Alma Vargas brings this action against her former employers, Defendants S.O.S. Water & Fire Restoration, Inc., Cesar Soto, and Alma Soto. Plaintiff alleges Defendants committed wage and hour violations and then retaliated against Plaintiff for complaining of same, resulting in her constructive termination. 

Defendants now demurrer to the First Amended Complaint and move to strike portions therein. Plaintiff opposed both motions.

TENTATIVE RULING

Defendants’ Demurrer to the FAC is OVERRULED in its entirety. 

Defendants’ Motion to Strike is DENIED.

Defendants are ordered to file an Answer to the FAC within 21-days of this Ruling.

Plaintiff is ordered to give notice, unless waived. 

DISCUSSION:

Demurrer to First Amended Complaint

I. Meet and Confer

The Declaration of attorney Benjamin N. Sternberg confirms that the meet and confer requirement was satisfied. 

II. 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.)  

III. Analysis

Defendants demurrer to each cause of action in the First Amended Complaint. Each is addressed in turn. 

A. First Cause of Action for Failure to Pay Minimum Wages

Defendants argue the first cause of action fails because Plaintiff “was indeed an exempt employee” and “abandoned” her job. (Dem. 8: 13-14; 8: 21.) 

Plaintiff Vargas alleges she worked for Defendant S.O.S. Water & Fire Restoration, Inc., as a marketer, which included “networking on behalf of Defendants, obtaining leads for company services, traveling to meet clients, and other activities associated with marketing job duties.” (FAC ¶¶ 19, 20.) Defendant Alma Soto is S.O.S.’s CEO and Secretary, and Defendant Cesar Soto is S.O.S.’s CFO. (Id. ¶ 18.) 

Plaintiff worked “well over 40 hours most weeks” and “remained on called 24/7.” (Id. ¶ 21.) Plaintiff alleges Defendants misclassified her as an exempt employee, failed to pay her for all hours worked, and failed to pay overtime. (Id. ¶¶ 23-24.) Plaintiff further alleges that Defendants “deprived Plaintiff of legally-compliant meal and rest breaks…” (Id. ¶ 29.) 

Around October 2023, “Plaintiff began complaining to Defendants about their unfair and illegal wage and hour practices.” (Id. ¶ 31.) In response to these complaints, “Defendants began an illegal campaign of retaliation against Plaintiff.” (Id. ¶ 32.) Specifically, Defendants “changed Plaintiff from working fully remote to working fully in-person,” and began “verbally abusing Plaintiff.” (Id. ¶ 35.) 

As a result, “Plaintiff began to experience extreme anxiety and insomnia,” which necessitated time away from work in November 2023. (Id. ¶ 36.) During this leave, Plaintiff continued to work without pay. (Id. ¶ 37.) In December 2023, Plaintiff alleges she was “constructively terminated” after conditions became “so intolerable that a reasonable person in Plaintiff’s position would have had no reasonable alternative except to resign.” (Id. ¶ 38.) 

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.) Considering the allegations alone, Plaintiff has alleged the requisite elements of this cause of action.

Defendants also argue without analysis that IWC 5 “pertains to jobs in the public housekeeping sector” and therefore does not apply. (Id. 9: 3-4.) Moreover, neither party made any effort whatsoever in their respective pleadings to discuss the applicability, if any, of IWC 5 to this case.

Wage Order 5 applies to “all persons employed in the public housekeeping industry.” “Public housekeeping industry” is broadly defined as “any industry, business, or establishment which provides meals, housing, or maintenance services…” Plaintiff alleges Defendant S.O.S. is “a water and fire damage restoration service business.” (FAC ¶ 18.) Because this is arguably a “maintenance service,” this court will not conclude that wage order 5 does not apply at this stage.  [FN 1] 

Accordingly, Defendants’ Demurrer to the First Cause of Action is OVERRULED.

B. Second Cause of Action for Failure to Furnish Wage and Hour Statements 

Defendants argue this cause of action fails because civil penalties are only available in an action by the commissioner. 

Even assuming, without deciding, that civil penalties are only available in an action by the commissioner, this issue only goes to remedies—not the cause of action as a whole. “[A] demurrer cannot rightfully be sustained to part of a cause of action.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal. App. 4th 1028, 1047; Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 119 [“A demurrer must dispose of an entire cause of action to be sustained”].)  

Defendants also argue Plaintiff has not alleged an opportunity to cure or that this “was done knowingly and intentionally or inadvertently.” (Dem. 9: 11-12.) 

Labor Code section 226(a) requires an employer to provide employees with an accurate itemized wage statement including nine specified items. An employee suffering injury “as a result of a knowing and intentional failure” of the employer to provide a compliant wage statement may bring an action for damages, costs, and attorney’s fees. (Labor Code § 226(e)(1), emphasis added.) “To establish a ‘knowing and intentional’ violation of Labor Code section 226, subdivision (a), an employee must demonstrate that the employer was aware of the factual predicate underlying the violations.” (Furry v. E. Bay Publ'g, LLC (2018) 30 Cal. App. 5th 1072, 1085, internal quotations omitted.) 

Here, this issue presents a factual question that cannot be made on a demurrer. 

Accordingly, Defendants’ Demurrer to the Second Cause of Action is OVERRULED.

C. Third Cause of Action for Payroll Records

Defendants argue Plaintiff has failed to allege that she exhausted her administrative remedies, citing to Labor Code section 2699.3. Because this section appears under the Private Attorneys General Act, it is unclear why it has any bearing on this non-PAGA action. 

Accordingly, Defendants’ Demurrer to the Third Cause of Action is OVERRULED.

D. Fourth Cause of Action for Meal and Rest Periods

Next, Defendant argues this cause of action is “devoid of substantive facts” and only “generically allege[s] that meal and rest periods were not provided as required by law.” (Dem. 9: 26-27.) They argue this did not occur because “Plaintiff worked out of her own residence and controlled her own time.” (Id. 10: 3-4.) 

Plaintiff alleges:

[Defendants] deprived Plaintiff of legally-compliant meal and rest breaks, usually by requiring that Plaintiff work through meal and rest breaks. Defendants’ work demands were such that Plaintiff was required to work through her meal and rest breaks. Defendants interrupted Plaintiff’s meal or rest breaks, and regularly forced Plaintiff to skip them entirely. Additionally, Defendants periodically forced Plaintiff to take her first meal break well beyond her fifth straight hour of work.

[¶¶] For the entirety of Plaintiff’s employment with Defendants, Defendants routinely failed to provide Plaintiff with rest breaks after working the requisite number of hours, and routinely required Plaintiff to work more than the requisite number of hours without being given at least a 30- minute meal break. Further, Defendants routinely failed to compensate Plaintiff for these missed rest breaks and meal periods.

(FAC 29, 30.)

While the allegations are conclusory to an extent, Defendants have cited no authorities holding them insufficient to withstand a demurrer. And again, to the extent Defendants attempt to dispute these allegations, a demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms, supra, 153 Cal. App. 3d at 905.) 

Accordingly, Defendants’ Demurrer to the Fourth Cause of Action is OVERRULED.

E. Fifth Cause of Action for Overtime Compensation

Next, Defendants argue this cause of action fails because Plaintiff was “a properly classified exempt worker” and “made her own schedule.” (Dem. 10: 15-22.) 

This is an argument Defendants can make on a motion for summary judgment or at trial. It is not appropriate on a demurrer. (SKF Farms, supra, 153 Cal. App. 3d at 905.) 

Accordingly, Defendants’ Demurrer to the Fifth Cause of Action is OVERRULED.

F. Sixth Cause of Action for Failure to Pay Wages in a Timely Manner

Next, Defendants argue Plaintiff has pled only legal conclusions. Plaintiff has alleged that Defendants “routinely failed, without justification, and refused to provide Plaintiff with timely wages or pay as required Labor Code Section 204 et seq. and other applicable laws and regulations.” (FAC ¶ 86.) This is sufficient at the pleading stage to state this cause of action.

Accordingly, Defendants’ Demurrer to the Sixth Cause of Action is OVERRULED.

G. Seventh Cause of Action for Waiting Time Penalties

Defendants argue this cause of action fails because Plaintiff has not alleged when she resigned. 

Plaintiff alleges she was “constructively terminated” in December 2023. (FAC ¶ 38.) Plaintiff further alleges Defendants “willfully failed to pay Plaintiff accrued wages and other compensation due to her at the time of her pre-scheduled termination or within seventy-two (72) hours of her resignation.” (Id. ¶ 90.) At this stage, no more is required to state this claim.

Accordingly, Defendants’ Demurrer to the Seventh Cause of Action is OVERRULED.

H. Eighth Cause of Action for Unfair Business Practices

Next, Defendants contend the Eighth cause of action is deficient because Plaintiff “must identify the particular provision or provisions of Section 17200 that were allegedly violated.” (Dem. 12: 5-6.) Defendants also argue Plaintiff has not alleged any unlawful or unfair conduct, or the right to restitution as a remedy. Finally, Defendants argue the cause of action is uncertain. 

Plaintiff alleges various Labor Code violations by Defendants, including “failing to pay wages, overtime, provide meal periods, etc…,” and asserts this conduct was “unfair, unlawful, and harmful to Employees and the general public.” (FAC ¶ 93.) 

Business and Professions Code section 17200 defines “unfair competition” to include “any unlawful, unfair or fraudulent business act or practice....” “The scope of section 17200 is broad, encompassing ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’ ... It governs ‘anti-competitive business practices’ as well as injuries to consumers, and has as a major purpose ‘the preservation of fair business competition.’” [Citations.] (Linear Tech. Corp. v. Applied Materials, Inc., (2007) 152 Cal. App. 4th 115, 133).  Whether a practice violates the section “is generally a question of fact which requires ‘consideration and weighing of evidence from both sides’ and which usually cannot be made on demurrer.” [Citation].  (Id.) 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.)

Here, given the broad applicability of section 17200 and the requirement that a court “weigh[] evidence from both sides,” the demurrer is improper.  Plaintiff has properly alleged facts, that if proven true, could violate section 17200, et seq. For pleadings purposes, Plaintiff has also alleged facts to support restitution and/or injunctive relief. Finally, the FAC is no uncertain. Generally, “demurrers for uncertainty are disfavored,” and are strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.”  (Lickiss v. Fin. Indus. Regul. Auth., (2012) 208 Cal. App. 4th 1125, 1135.)

Of course, perhaps Plaintiff (and her attorneys) should be careful for what they ask.  This Court has the authority at this time to bifurcate this cause of action (including any request for injunctive relief) and hear this matter in a few weeks and/or months.  The adjudication of this cause of action and/or request for injunctive relief could arguably moot many of the other causes of action in this case.  If Plaintiffs still want to pursue this UCL cause of action, this Court intends to have this discussion at the upcoming CMC.  Plaintiff should frankly ask herself the following question:  What additional remedies and/or damages can she received under the UCL cause of action, to which are not available by means of the other causes of action?  The answer is rather simple:  None.

In any case, Defendants’ Demurrer to the Eighth Cause of Action is OVERRULED.

I. Ninth Cause of Action for Retaliation

Next, Defendants argue Plaintiff has not alleged facts sufficient to constitute a cause of action. They contend the allegations, if anything, support a FEHA retaliation claim, but not a Labor Code retaliation claim. 

Labor Code section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities. It prohibits an employer from retaliating against an employee for sharing information the employee “has reasonable cause to believe ... discloses a violation of state or federal statute” or of “a local, state, or federal rule or regulation” with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation. (§ 1102.5, subd. (b).) “This provision,” the Supreme Court of California has explained, “reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.)

Here, Plaintiff alleges she raised concerns about Labor Code violations with Defendants and then suffered from working conditions that caused a constructive termination. Considering the allegations and liberal pleading standards, Plaintiff has adequately plead this cause of action. 

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

J. Tenth Cause of Action for Wrongful Termination

Defendants again argue Plaintiff was not terminated, but rather, “abandoned her job.” Defendants also argue this cause of action fails with the underlying statutory causes of action.

Again, Defendants’ attempt to argue the evidence is improper at this stage. And because all other causes of action survive this demurrer, so too does this one. 

K. Eleventh Cause of Action for Failure to Indemnify/Reimburse Necessary Expenditures

Finally, Defendants argue Plaintiff has not identified any actual expenditures. 

Plaintiff alleges “Defendants regularly required Plaintiff to incur out-of-pocket costs for necessary expenditures during the discharge of Plaintiff's work duties” and “failed to indemnify Plaintiff, as their employee, for all necessary expenditures or losses incurred by Plaintiff in direct consequence of the discharge of Plaintiff's work-related duties.” (FAC ¶¶ 123-24.) Considering the allegations and liberal pleading standards, Plaintiff has stated this cause of action. 

Accordingly, Defendants’ Demurrer to the Eleventh Cause of Action is OVERRULED.

Defendants’ Demurrer to the FAC is OVERRULED in its entirety. 

Motion to Strike

I. Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

II. Analysis

Defendants move to strike Plaintiff’s alter ego allegations and allegations that Defendants were Plaintiff’s “joint employer.” 

First, alter ego allegations may be pled generally, and the principal factors for piercing the corporate veil—individual dominated the affairs of the corporation, unity of interest and ownership, corporation is a mere shell, diversion of income, inadequate capitalization, failure to issue stock and observe corporate formalities, adherence to fiction of separate corporate existence would work an injustice—may be alleged in conclusory terms. (First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 914-916.)

As to joint employer, “[t]he various designated tests adopted by the courts to determine the existence of an employer/employee relationship have articulated many of the same or similar governing standards, and have ‘little discernible difference’ between them. [Citations.] The common and prevailing principle espoused in all of the tests directs us to consider the ‘totality of circumstances’ that reflect upon the nature of the work relationship of the parties, with emphasis upon the extent to which the defendant controls the plaintiff's performance of employment duties. [Citations.] ‘There is no magic formula for determining whether an organization is a joint employer. Rather, the court must analyze ‘myriad facts surrounding the employment relationship in question.’ [Citation.] No one factor is decisive. [Citation.]’ [Citations.] ‘[T]he precise contours of an employment relationship can only be established by a careful factual inquiry.’ [Citation.]” (St. Myers v. Dignity Health (2019) 44 Cal. App. 5th 301, 311–12.)

Here, because the analysis of a joint-employer relationship is fact-intensive, the issue cannot be resolved on this motion to strike. 

Accordingly, Defendants’ Motion to Strike is DENIED.

IT IS SO ORDERED.

Dated:  June 3, 2025 ___________________________________

FN 1 - It seems logical, though, that the “employee” must be physically engaged in such services, rather than be a “marketer” for such services.  Be that as it may, even if ICW 5 does not apply in this case, it would not eliminate the entire first cause of action for failure to pay the minimum wage, per the cited Labor Code sections in that cause of action.  A demurrer must eliminate the entire cause of action, not just a portion thereof.  See Tentative Ruling, infra, Section III B.