Judge: Ronald F. Frank, Case: 21TRCV00462, Date: 2023-08-04 Tentative Ruling

Case Number: 21TRCV00462    Hearing Date: October 4, 2023    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 October 4, 2023¿¿ 

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CASE NUMBER:                   21TRCV00462

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CASE NAME:                           Ana Soto Trejo, et al. v. Air Fayre Ca, Inc., et al., et al.¿¿¿ 

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MOVING PARTY:                Defendant, Employbridge, LLC

 

RESPONDING PARTY:       Plaintiff, Ana Soto-Trejo

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TRIAL DATE:                       None Set.   

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MOTION:¿                              (1) Demurrer¿ to the 9th Cause of Action

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Tentative Rulings:                  (1) Sustained, with 30 days leave to amend. 

 

 

 

I. BACKGROUND¿¿ 

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A. Factual¿¿ 

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On June 25, 2021, Plaintiff, Ana Soto-Trejo, individually, and on behalf of aggrieved employees pursuant to PAGA (“Plaintiff”) filed a Complaint against Air Fayre CA, Inc., and DOES 1 through 100. On October 21, 2022, Plaintiff filed a First Amended Complaint (“FAC”) alleging causes of action against: (1) Violation of California Labor Code §§ 510 and 1198 (Unpaid Overtime); (2) Violation of California Labor Code §§ 226.7 and 512(a) (Meal Breaks); (3) Violation of California Labor Code § 226.7 (Unpaid Rest Breaks); (4) Violation of California Labor Code §§ 1194 and 1197 (Minimum Wages); (5) Violation of California Labor Code §§ 201 and 202 (Waiting Time Penalties); (6) Violation of California Labor Code § 226(a) (Wage Statements); (7) Violation of California Labor Code §§ 2800 and 2802 (Business Expenses); (8) Violation of California Business & Professions Code § 17200, et seq.; and (9) Penalties Pursuant to Labor Code § 2699, et seq..

 

On May 19, 2023, Plaintiff filed a Doe Amendment purporting to name, for the very first time, Employbridge as a Defendant.

 

Employbridge now files a demurrer to the FAC.

 

B. Procedural¿¿ 

 

On August 29, 2023, Employbridge filed a Demurrer to the 9th cause of action for statutory penalties. On September 20, 2023, Plaintiff filed an opposition. On September 27, 2023, Defendant filed a reply brief. 

 

¿II. MOVING PARTY’S GROUNDS

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Employbridge demurs to the FAC on the grounds that it argues:

 

1.     Plaintiff’s Ninth Cause of Action for “Penalties Pursuant to Labor Code § 2699, et seq.” fails as plaintiff lacks standing to pursue her PAGA claim against Defendant because she failed to timely exhaust administrative remedies, and there is no reasonable possibility that the defect can be cured by amendment.

 

III. REQUEST FOR JUDICIAL NOTICE

 

            Defendant requested this Court take judicial notice of the following documents:

 

1.     Letter from Plaintiff to the California Labor and Workforce Development Agency (“LWDA”) dated November 13, 2020.

2.     Letter from Plaintiff to the LWDA dated July 28, 2023.

 

The Court GRANTS Defendant Employbridge’s request and takes judicial notice of the above.

 

Additionally, along with Plaintiff’s opposition, she has filed a request for this Court to take judicial notice of the following:

 

1.     The Bakersfield Superior Court Order regarding Denial of Defendant Employbridge Holding Company’s Demurrer to Plaintiff’s First Amended PAGA Complaint, in Duran v Employbridge Holding Company (Case No. BCV-20-101583), before the Honorable Bernard C. Barmann, Jr.; and

2.     The Bakersfield Superior Court Ruling associated with the Denial of Defendant Employbridge Holding Company’s Demurrer to Plaintiff’s First Amended PAGA Complaint, in Duran v Employbridge Holding Company (Case No. BCV-20-101583), before the Honorable Bernard C. Barmann, Jr..

 

The Court DENIES judicial notice of the above documents because it appears to the Court they are being offered as if they were appellate authorities for the Court to consider as persuasive, bearing on the issues that this Court as an independent trial court must separately consider.  Trial court rulings are generally not a permissible subject of judicial notice.

 

IV. ANALYSIS¿ 

 

A. Demurrer

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A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿ 

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Exhaustion of Administrative Remedies

 

            Defendant Employbridge argues that Plaintiff failed to exhaust her administrative remedy. Pursuant to Labor Code § 2699(a), an aggrieved employee may bring a civil action to recover a civil penalty pursuant to the procedures specified in § 2699.3. Section 2699.3, subdivision (a), provides the administrative procedures that must be followed before an aggrieved employee may file a civil action to recover civil penalties under section 2699 for violations of any of the Labor Code provisions identified in section 2699.5.” (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 376, overruled on other grounds in ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 195.) Under section 2699.3(a) the administrative procedures include the following:

 

(a) A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met: 

(1) 

(A) The aggrieved employee or representative shall give written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation. 

(B) A notice filed with the Labor and Workforce Development Agency pursuant to subparagraph (A) and any employer response to that notice shall be accompanied by a filing fee of seventy-five dollars ($75). The fees required by this subparagraph are subject to waiver in accordance with the requirements of Sections 68632 and 68633 of the Government Code. 

(C) The fees paid pursuant to subparagraph (B) shall be paid into the Labor and Workforce Development Fund and used for the purposes specified in subdivision (j) of Section 2699. 

(2) 

(A) The agency shall notify the employer and the aggrieved employee or representative by certified mail that it does not intend to investigate the alleged violation within 60 calendar days of the postmark date of the notice received pursuant to paragraph (1). Upon receipt of that notice or if no notice is provided within 65 calendar days of the postmark date of the notice given pursuant to paragraph (1), the aggrieved employee may commence a civil action pursuant to Section 2699. 

 

(Labor Code § 2699.3(a).)

 

Further, a demurrer may properly be sustained based on the failure to adequately plead exhaustion of administrative remedies. (Shuer v. County of San Diego (2004) 117 Cal.App.4th 476, 482.) In order to withstand a demurrer for failure to allege exhaustion of available administrative remedies, the plaintiff must allege facts showing that [s]he did exhaust administrative remedies or facts showing that [s]he was not required to do so. (Ibid.; Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 333.) 

 

            Here, Employbridge argues that Plaintiff has failed to establish she complied, much less timely complied with Labor Code § 2699.3(a)(1)(A) as to Defendant, Employbridge because Plaintiff’s original PAGA notice did not include Employbridge, and Plaintiff did not file her amended PAGA notice identifying Employbridge until July 28, 2023 – approximately three (3) years and four (4) months after her employment allegedly ended, over one year and none months after the statutory deadline to submit the PAGA notice, and over two (2) months after Plaintiff filed the Doe Amendment. Based on this, Employbridge argues that Plaintiff lacks standing to pursue, and this Court lacks jurisdiction to adjudicate, Plaintiff’s PAGA claims. Further, Employbridge contends that like the PAGA Complaint, the FAC only contains the following statement as to exhaustion: “[O]n November 13, 2020, plaintiff Ana Soto-Trejo provided written notice to the LWDA and Defendant AIR FRAYE CA, INC., on the specific Labor Code she contends were violated, and the theories supporting her contentions.” (FAC, ¶ 102.) Defendant Employbridge contends that despite the FAC being filed nearly two and one-half years after Plaintiff’s alleged separation of employment, and nearly one and one-half years not the litigation, there is no mention whatsoever of Employbridge or the timely (mandatory) exhaustion of administrative remedies as to Employbridge. Employbridge argues that Plaintiff cannot allege timely exhaustion because the original PAGA notice, submitted to the LWDA on November 13, 2020, makes no mention of Employbridge and was never sent, much less sent by certified mail, to Employbridge. Lastly, Employbridge notes that although Plaintiff purports to have submitted an “amended” PAGA notice to the LWDA and Employbridge identifying Employbridge as an employer, this amended PAGA notice was submitted after Plaintiff filed the FAC and after Plaintiff filed the Doe Amendment adding Employbridge as a defendant. As such, Employbridge argues that it is impossible for Plaintiff to allege compliance with PAGA’s pre-filing exhaustion requirements as to Employbridge.

 

            In opposition, Plaintiff first asserts that pursuant to Code of Civil procedure § 583.210(a), a defendant must be served with a summons and complaint within three-years of the action’s commencement, and that Defendant Employbridge was successfully served two years and 12 days after this case was originally filed. Although Plaintiff discusses numerous statutes involving the statutes of limitations issue, the statute of limitation issue in this case does not seem to bear on Code of Civil Procedure §§ 538.210(a) and 474. Instead, as noted above, and further discussed below, Defendant Employbridge’s demurrer is based on the mandatory requirements set forth in Labor Code § 2699(a)(1)(A).

 

Based on Labor Code  § 2699(a)(1)(A), an employee or representative shall give written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation prior to the filing of a civil action.  Here, it does not appear that Plaintiff provided notice to the LWDA nor to Employbridge prior to the Doe Amendment adding them to the case.

 

 

Here, the Court finds that Plaintiff failed to follow the procedures required by Labor Code § 2699.3(a)(1)(A), and thus has not exhausted its administrative remedies as to Defendant Emloybridge. Because the Court finds that the procedural requirements found in Labor Code § 2699.3(a)(1)(A) are administrative procedures in which the legislature intended to be abided by, the Court SUSTAINS the demurrer on these grounds, but allows for Plaintiff to amend.

 

 

Relation-Back Doctrine

 

            Here, Defendant Employbridge argues that as a result of Plaintiff’s unreasonably belated notice, the LWDA was deprived of the opportunity to investigate the allegations and to act accordingly. Likewise, Employbridge argues it was deprived of the opportunity to timely investigate the allegations, submit a response, and remediate any curable violations. At this point, now over three years since Plaintiff’s alleged separation of employment, Employbridge argues that key witnesses may be gone or memories faded, evidence lost or destroyed, the ability ti timely cure and/or resolve any of the alleged violations destroyed, and any alleged penalties have continued to accrue to the extreme detriment of Employbridge. As a result, Employbridge argues that Plaintiff’s failure to exhaust is incurable, but has also resulted in untold prejudice to Employbridge should it be forced to defend against this claim. The Court notes that although there are no published cases that are directly on point in this case, it will use the published cases as guideposts to determine whether Plaintiff can maintain this cause of action against Defendant Employbridge.

 

 

The Second District in Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, found that a plaintiff’s notice was partially adequate when it timely served an adequate PAGA notice for violation of Labor Code § 226(a), and later served an untimely notice alleging violations of additional statutes. In Brown the plaintiff asserted that the time for her to give adequate notice to add PAGA claims to the second and third amended complaints was equitably tolled. However, the Court found that equitable tolling to preserve PAGA claims where a plaintiff failed to file an adequate section 2699.3 notice for years is inconsistent with the text and purpose of section 2699.3(a), and would defeat the entire purpose of PAGA. (28 Cal.App.5th at 840-41.) The Court in Brown noted that the legislative purpose of section 2699.3 was for workplace violations to be address expeditiously by setting a tight timeline for the LWDA to respond to the notice of alleged violations and the plaintiff to thereafter file or amend a complaint. (Id. at 841.) The Brown Court further indicated that the concomitant one-year statute of limitations emphasizes the Legislature’s desire for quick action on workplace violations. (Ibid.) Brown also cited to the California Supreme Court decision in Williams v. Superior Court (2017) 3 Cal.5th 531, where the Williams Court described the legislative intent in passing PAGA and addressed the purpose of the notice requirement: “to afford the [LWDA] the opportunity to decide whether to allocate scarce resources to an investigation” and “allow the employer to submit a response.” (3 Cal.5th at 545-46.) Finally, the Brown Court indicated that the relation back doctrine could not be used to frustrate the intent of the Legislature to require compliance with administrative procedures as a condition to filing an action. (Brown, 28 Cal.App.5th at 841.)

 

Based on the above discussion, the Court is not persuaded that the legislature intended for all of these procedural requirements to not allow a Doe Defendant to be later added. In fact, the Court in Hargrove v. Legacy Healthcare, Inc. (2022) 80 Cal.App.5th 782, in dicta, noted that the PAGA action was initiated in October 2016, and that the Plaintiff later amended the complaint to identify a Doe Defendant in both March 2017 and August 2018. Although this issue was not in front of or decided by the Court in Hargrove, it certainly indicates that other PAGA cases have Doe’d in a Defendant past the one-year statute of limitations. As such, the Court notes that if Plaintiff were to amend after the compliance with Labor Code § 2699.3, the Court believes that Plaintiff would be able to add Defendant Employbridge in accordance with the relation back doctrine.

 

IV. CONCLUSION¿¿ 

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For the foregoing reasons, Defendant Employbridge’s Demurrer is SUSTAINED with Leave to Amend.  

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Defendant is ordered to give notice.