Judge: Ronald F. Frazier, Case: 37-2021-00005732-CU-PO-CTL, Date: 2023-08-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 17, 2023

08/18/2023  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Ronald F. Frazier

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2021-00005732-CU-PO-CTL HYDE VS MCDERMOTT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 12/23/2022

Defendant Hybrid Payroll, LLC's Demurrer to Plaintiff's First Amended Complaint ('FAC') is SUSTAINED. (ROA 194.) Plaintiff's Request to Seal At the outset, the court notes Plaintiff filed a 'request' to seal portions of his opposition and supporting declaration. This request is denied.

A request to seal court records must be made in the form of a noticed motion or application. (Cal. R.

Court, rule 2.551(b)(1); see also rules 3.1112(a) and 3.1201.) Here, no timely noticed motion or application was filed.

'Failure to reserve a date for hearing will result in the demurrer, motion, ex parte application, or order to show cause hearing not being heard.' (San Diego Superior Court Local Rules, Rule 2.1.19(A).) Plaintiff did not reserve a regular hearing for a motion to seal or an ex parte hearing for an application to seal.

Accordingly, no motion to seal will be heard.

'The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.' (Cal. R. Court, rule 2.551(b)(1).) Plaintiff failed to support his request with a memorandum and declaration and offers no facts in his request which might support sealing. In the absence of such facts, the court cannot make the required express factual findings needed to support a sealing order. (Cal. R. Court, rule 2.550(d), (e)(1)(A).) Finally, Plaintiff simultaneously filed both redacted and unredacted versions of his memorandum and declaration instead of lodging the unredacted versions with the court as required by court rules. (Cal. R.

Court, rule 2.551(b)(4).) As a result, the unredacted versions of the papers are already in the court file and available to the public. Accordingly, any right by Plaintiff to assert that any of the material contained in these papers is confidential is waived and the request to seal the records is moot.

The court has considered the unredacted versions of Plaintiff's papers at ROA 298 and 300.

Plaintiff's Factual Allegations Against Hybrid According to the FAC, Hybrid provided 'professional employee services' to Defendant, The Grove La Mesa, Inc. ('The Grove'). (FAC ¶ 20.) Hybrid's website describes Hybrid as a 'professional employer Calendar No.: Event ID:  TENTATIVE RULINGS

2920291  5 CASE NUMBER: CASE TITLE:  HYDE VS MCDERMOTT [IMAGED]  37-2021-00005732-CU-PO-CTL organization, or PEO' and 'co-employer' that will 'handle the financial and HR aspects of employee management' as well as 'compliance concerns' and '[becomes] the employer of record.' (Id. ¶ 21.) Based only on the statements on Hybrid's website, Plaintiff alleges he, Defendant Sean McDermott, and Defendant Sandra Ledesma were employed by Hybrid as well as by The Grove. (FAC ¶¶ 23-25, 266.) Plaintiff contends Hybrid is liable for a range of intentional torts, civil rights violations, employment claims, and negligence allegedly committed not by Hybrid, but by the other Defendants. Plaintiff does not allege any intentional conduct or negligence on the part of Hybrid. Plaintiff also does not allege facts which might support a theory of vicarious liability against Hybrid.

As Hybrid points out, the court has granted the anti-SLAPP motions filed by The Grove, McDermott, and Ledesma as to Plaintiff's fifth through thirteenth causes of action after concluding Plaintiff would be unable to prevail against any of these Defendants on those claims.

Hybrid's Demurrer Plaintiff does not allege any intentional or negligent conduct on the part of Hybrid in any of these causes of action. Accordingly, the court concludes Plaintiff does not contend Hybrid is directly liable for any of these claims.

Plaintiff does not allege facts sufficient to constitute a joint employment relationship between Hybrid and The Grove sufficient for any of his causes of action to survive demurrer.

Even assuming Hybrid was an employer of Plaintiff and/or any of the other Defendants, such allegations alone would not be sufficient to state a cause of action against Hybrid. '[U]nder the doctrine of respondeat superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment.' (John Y. v. Chaparral Treatment Center, Inc. (2002) 101 Cal.App.4th 565, 574.) Plaintiff has not sufficiently alleged facts to constitute any of these causes of action based on vicarious liability.

Further, Plaintiff has not sufficiently demonstrated how these defects could be cured by amendment.

Based on the facts already pled, the court is inclined to conclude these defects cannot be cured by amendment.

The court will hear from counsel as to whether leave to amend should be granted.

Plaintiff's Requests for Judicial Notice As to Exhibit 1, Plaintiff's request for judicial notice is denied. The exhibit is an unsigned contract and the court concludes it is not proper subject of judicial notice. The court has, however, considered the contract to the extent Plaintiff has attempted to make an offer of proof on the issue of whether leave to amend should be granted.

As to Exhibits 2 and 3, judicial notice is granted. (Evid. Code § 452(c).) As to Exhibit 4, judicial notice is denied. Defendant The Grove's responses to requests for production are not a proper subject of judicial notice.

As to Exhibits 5 and 6, judicial notice is granted. (Evid. Code § 452(d)(1).) Defendant's Untimely Reply The court notes Defendant filed its reply papers late. The court has discretion to refuse to consider late-filed papers. (Cal. R. Court, 3.1300(d).) The court has exercised its discretion on this occasion to Calendar No.: Event ID:  TENTATIVE RULINGS

2920291  5 CASE NUMBER: CASE TITLE:  HYDE VS MCDERMOTT [IMAGED]  37-2021-00005732-CU-PO-CTL consider the late-filed reply papers. However, Defendant's counsel is to timely file all papers in the future.

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