Judge: Robert B. Broadbelt, Case: 21STCV47406, Date: 2023-04-17 Tentative Ruling

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Case Number: 21STCV47406    Hearing Date: April 17, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Ports Alliance Transport, Inc., and Daniel Esparza

RESPONDING PARTY:       Plaintiff Erik Gonzalez

Demurrer to First Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with this motion.

BACKGROUND

Plaintiff Erik Gonzalez (“Plaintiff”) filed the operative First Amended Complaint in this discrimination and wage and hour action on May 13, 2022, against defendants Ports Alliance Transport, Inc. (“Ports Alliance”) and Daniel Esparza (“Esparza”) (collectively, “Defendants”). 

Plaintiff alleges 14 causes of action for (1) discrimination in violation of FEHA against defendant Ports Alliance; (2) retaliation in violation of FEHA against defendant Ports Alliance; (3) failure to prevent discrimination and retaliation in violation of FEHA against defendant Ports Alliance; (4) failure to provide reasonable accommodations in violation of FEHA against defendant Ports Alliance; (5) failure to engage in the good faith interactive process in violation of FEHA against defendant Ports Alliance; (6) declaratory judgment against defendant Ports Alliance; (7) wrongful termination in violation of public policy against defendant Ports Alliance; (8) failure to pay wages due against Defendants; (9) failure to pay minimum wages against Defendants; (10) failure to pay overtime compensation against Defendants; (11) failure to provide meal and rest periods against Defendants; (12) failure to furnish wage and hour statements against Defendants; (13) waiting time penalties against Defendants; and (14) failure to permit inspection of personnel and payroll records against Ports Alliance.

Defendants move the court for an order sustaining their demurrer to Plaintiff’s 1st through 13th causes of action.

DISCUSSION

The court overrules Defendants’ demurrer to the First Amended Complaint on the ground that it is preempted by federal law.  (Code Civ. Proc., § 430.10, subd. (e).)

Although Defendants contend that Plaintiff was a short haul driver engaged in interstate commerce and therefore this action is governed by federal law, Defendants have not identified any allegations in the First Amended Complaint establishing Plaintiff’s status as a short haul driver.  Instead, Defendants reference facts not alleged in the complaint.  (Demurrer, p. 2:15-24.)  However, in ruling on a demurrer, the court (1) assumes the truth of all well-pleaded factual allegations to the complaint, and (2) considers only the facts alleged in the complaint and matters that may be judicially noticed.  (Code Civ. Proc., § 430.30, subd. (a); McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78.)  Plaintiff has not alleged that he was employed as a short haul driver, nor has Plaintiff alleged facts showing that his work qualified him as such.  (FAC ¶ 18 [Plaintiff was hired “as a full-time non-exempt Delivery Driver”].)  The court finds that Defendants have not met their burden to establish that the facts alleged in the First Amended Complaint, or matters that may be judicially noticed, demonstrate that Plaintiff’s action is preempted by federal law.

The court overrules Defendants’ demurrer to the First Amended Complaint on the ground that Plaintiff was not an employee since (1) Plaintiff alleges that (i) defendant Ports Alliance was Plaintiff’s employer, and defendant Esparza is an owner, officer, director, or managing agent of Ports Alliance, and (ii) he was an “employee” of defendant Ports Alliance, and (2) Defendants rely on facts not alleged in the First Amended Complaint to argue that Plaintiff was an independent contractor, which is improper on demurrer.  (Code Civ. Proc., § 430.10, subd. (e); FAC ¶¶ 4-6, 17-19; Demurrer, p. 3:23-4:8.)

The court overrules Defendants’ demurrer to the First Amended Complaint on the ground of uncertainty because it is not ambiguous or unintelligible.  (Code Civ. Proc., § 430.10, subd. (f).)

The court overrules Ports Alliance’s demurrer to the first cause of action for discrimination because it states facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)

First, the court notes that Defendants contend that Plaintiff has not alleged facts to support the allegation that Plaintiff suffered from a medical condition.  (Demurrer, pp. 5:16-21, 6:4-7.)  However, Plaintiff alleges that he was discriminated against because of “his perceived disabilities and/or disabilities, medical condition, and/or some combination of these protected characteristics….”  (FAC ¶ 43.)  Thus, Defendants have challenged only a portion of the cause of action, which is improper.  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [“A demurrer does not lie to a portion of a cause of action”].)  Second, Plaintiff has alleged sufficient facts establishing that he was discriminated against because of his disability or perceived disability following his workplace injury.  (FAC ¶¶ 24, 26, 40, 43; Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 584 [“FEHA protects individuals not only from discrimination based on an existing physical disability, but also from discrimination based on a potential disability or the employer’s perception that the individual has an existing or potential disability”].)

The court overrules Ports Alliance’s demurrer to the first through fifth causes of action because they state facts sufficient to constitute a cause of action since the allegations in the First Amended Complaint do not establish that Plaintiff was an independent contractor, as set forth above.  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules Ports Alliance’s demurrer to the sixth cause of action because it states facts sufficient to constitute a cause of action since the First Amended Complaint does not allege facts establishing that this cause of action is preempted by federal law, as set forth above.  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules Defendants’ demurrer to the seventh through 13th causes of action because they state facts sufficient to constitute a cause of action since (1) Plaintiff has sufficiently alleged an employment relationship, as set forth above; (2) the First Amended Complaint does not establish, on its face, that it is preempted by federal law; and (3) Plaintiff has alleged sufficient facts supporting each cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)

ORDER

            The court overrules defendants Port Alliance Transport, Inc., and Daniel Esparza’s demurrer to plaintiff Erik Gonzalez’s First Amended Complaint.

The court orders defendants Port Alliance Transport, Inc., and Daniel Esparza to file an answer to plaintiff Erik Gonzalez’s First Amended Complaint within 10 days of the date of service of this order.

The court orders plaintiff Erik Gonzalez to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 17, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court