Judge: Stephen P. Pfahler, Case: 23STCV10162, Date: 2025-01-16 Tentative Ruling

Case Number: 23STCV10162    Hearing Date: January 16, 2025    Dept: 68

Dept. 68

Date: 1-16-25

Case #23STCV10162

Trial Date: Not Set

DEMURRER/MOTION TO STRIKE

MOVING PARTY: Defendants, Eros Surla, et al.

RESPONDING PARTY: Plaintiff, Alexis Craney-Foster

RELIEF REQUESTED

Demurrer to the Third Amended Complaint

·         12^th Cause of Action: Failure to Provide Meal Breaks in Violation of Labor Code § 226.7

·         13^th Cause of Action: Failure to Provide Rest Breaks in Violation of Labor Code § 226.7

·         14^th Cause of Action: Failure to Provide Meal Breaks in Violation of Labor Code § 226.7

·         15^th Cause of Action: Waiting Time Penalties Pursuant to Labor Code §§ 201 and 203

SUMMARY OF ACTION

Plaintiff Alexis Craney-Foster was an employee of defendant SkyHop Global LLC from January 8, 2021, through September 27, 2022, as an airport shuttle driver for airport employees. During the course of employment, Plaintiff alleges defendant Timothy Boykin began a course of sexually inappropriate comments and touching. On June 5, 2021, Boykin visited her home, where he non-consensually engaged in sexual intercourse with Plaintiff while Plaintiff was intoxicated and incapacitated in her home after normal work hours.

Plaintiff complained about the conduct of Boykin, which led, at least in part to his dismissal. New supervisor defendant Eros Surla also allegedly engaged in sexually harassing conduct.

Plaintiff again complained, and was promised $50,000 in exchange for the execution for a settlement agreement. Plaintiff refused. Plaintiff continued to report the inappropriate conduct of Surla, but was told no relief was available. Plaintiff was subsequently terminated.

On May 5, 2023, Plaintiff filed a 17 cause of action complaint for Disability Discrimination in Violation of the FEHA; Quid Pro Quo – Sexual Harassment in Violation of the FEHA; Hostile Work Environment – Sexual Harassment in Violation of the FEHA; Retaliation in Violation of the FEHA; Failure to Prevent Discrimination, Harassment, and/or Retaliation in Violation of the FEHA; Negligent Hiring, Retention, and/or Supervision; Sexual Assault and Battery; Failure to Provide Reasonable Accommodations in Violation of the FEHA; Failure to Engage in the Interactive Process in Violation of the FEHA; Wrongful Termination in Violation of Public Policy; Retaliation in Violation of Labor Code §§ 1102.5; Failure to Provide Meal Breaks in Violation of Labor Code § 226.7; Failure to Provide Rest Breaks in Violation of Labor Code § 226.7; Failure to Provide Accurate Wage Statements in Violation of Labor Code § 226; Waiting Time Penalties Pursuant to Labor Code §§ 201 and 203; Failure to Permit Inspection of Personnel File and Payroll Records in Violation of Labor Code §§ 226(c), 226(f), 432, and 1198.5; and, Breach of Contract in Violation of Civil Code Section 1549. On September 5, 2023, the court sustained the demurrer to the seventeenth cause of action in the complaint with leave to amend.

On September 25, 2023, Plaintiff filed a 16 cause of action first amended complaint for Disability Discrimination in Violation of the FEHA; Quid Pro Quo – Sexual Harassment in Violation of the FEHA; Hostile Work Environment – Sexual Harassment in Violation of the FEHA; Retaliation in Violation of the FEHA; Failure to Prevent Discrimination, Harassment, and/or Retaliation in Violation of the FEHA; Negligent Hiring, Retention, and/or Supervision; Sexual Assualt and Battery; Failure to Provide Reasonable Accommodations in Violation of the FEHA; Failure to Engage in the Interactive Process in Violation of the FEHA; Wrongful Termination in Violation of Public Policy; Retaliation in Violation of Labor Code §§ 1102.5; Failure to Provide Meal Breaks in Violation of Labor Code § 226.7; 13; Failure to Provide Rest Breaks in Violation of Labor Code § 226.7; Failure to Provide Accurate Wage Statements in Violation of Labor Code § 226; 15. Waiting Time Penalties Pursuant to Labor Code §§ 201 and 203; and, Failure to Permit Inspection of Personnel File and Payroll Records in Violation of Labor Code §§ 226(c), 226(f), 432, and 1198.5. On December 14, 2023, the court sustained the demurrer to the seventh cause of action in the first amended complaint, and granted the motion to strike allegations in regard to the conduct of Boykin without leave to amend.

On January 3, 2024, Plaintiff filed a second amended complaint for Disability Discrimination in Violation of the FEHA; Quid Pro Quo – Sexual Harassment in Violation of the FEHA; Hostile Work Environment – Sexual Harassment in Violation of the FEHA; Retaliation in Violation of the FEHA; Failure to Prevent Discrimination, Harassment, and/or Retaliation in Violation of the FEHA; Negligent Hiring, Retention, and/or Supervision; Sexual Assault and Battery; Failure to Provide Reasonable Accommodations in Violation of the FEHA; Failure to Engage in the Interactive Process in Violation of the FEHA; Wrongful Termination in Violation of Public Policy; Retaliation in Violation of Labor Code §§ 1102.5; Failure to Provide Meal Breaks in Violation of Labor Code § 226.7; Failure to Provide Rest Breaks in Violation of Labor Code § 226.7; Failure to Provide Accurate Wage Statements in Violation of Labor Code § 226; Waiting Time Penalties Pursuant to Labor Code §§ 201 and 203; and, Failure to Permit Inspection of Personnel File and Payroll Records in Violation of Labor Code §§ 226(c), 226(f), 432, and 1198.5; Breach of Contract in Violation of Civil Code Section 1549. On April 10, 2024, the court sustained the demurrer of SkyHop Global, LLC to the seventh cause of action for sexual assault and battery. The court overruled the demurrer on the twelfth, thirteenth, fourteenth, fifteenth, and seventeenth causes of action for Failure to Provide Meal Breaks in Violation of Labor Code § 226.7, Failure to Provide Rest Breaks in Violation of Labor Code § 226.7, Failure to Provide Meal Breaks in Violation of Labor Code § 226.7, Waiting Time Penalties Pursuant to Labor Code §§ 201 and 203, and Breach of Contract in Violation of Civil Code Section 1549, as to individual defendants Boykin, Surla, Leviett, Murad, and Anderson. The court also granted the motion to strike the seventeenth cause of action without leave to amend, and denied the remainder of the motion.

On April 26, 2024, Plaintiff dismissed Timothy Boykin. On May 16, 2024, Plaintiff dismissed Cody Leviett.

On August 7, 2024, the court granted Plaintiff leave to file a third amended complaint in order to add a seventeenth cause of action for breach of contract. Plaintiff filed the third amended complaint on August 16, 2024. On September 10, 2024, SkyHop Golobal, LLC answered the third amended complaint.

RULING: Sustained with Leave to Amend.

Individual Defendants Eros Surla, Mohammed Murad, and Emily Anderson submit a demurrer to the twelfth, thirteenth, fourteenth, and fifteenth, causes of action for Failure to Provide Meal Breaks in Violation of Labor Code § 226.7, Failure to Provide Rest Breaks in Violation of Labor Code § 226.7, Failure to Provide Meal Breaks in Violation of Labor Code § 226.7, and Waiting Time Penalties Pursuant to Labor Code §§ 201 and 203 in the third amended complaint.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

Defendants challenge the basis of liability against them as lacking sufficient factual support to establish a basis of vicarious liability for the wage and hour violations. Plaintiff in opposition maintains all individual defendants qualify as managing agents for purposes of liability, and no legal bar prevents the action. Plaintiff alternatively moves for leave to amend. Defendants in reply reiterates the lack of factual support regarding establishing “managing agent” liability against the individuals.

The operative section establishing individual liability states in relevant part: “(a) Any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 03, 226, 226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation. (b) For purposes of this section, the term “other person acting on behalf of an employer” is limited to a natural person who is an owner, director, officer, or managing agent of the employer, and the term “managing agent” has the same meaning as in subdivision (b) of Section 3294 of the Civil Code.” (Lab. Code, § 558.1.)

Plaintiff cites to paragraphs 25, and 39-41. Paragraph 25 alleges unwelcome physical contact by Surla, and in no way apparently relates to the wage and hour claims. Paragraphs 39-41, as well as paragraph 42, allege the factual basis of the labor code violation claims, but otherwise lacks any facts regarding the basis of the individual defendants’ position to in any way direct said violations as part of SkyHop Global LLC company policies and practices. [See Third Amend. Comp., ¶¶ 39-42, 197-235.] See Usher v. White (2021) 64 Cal.App.5th 883, 896-898.) The demurrer is therefore sustained.

While Defendants push for no leave to amend, and the court has sustained demurrers more than twice now, this remains the first consideration of the subject allegations. The standard for uncertainty favors leave to amend under these circumstances. The court otherwise finds an inability to pled sufficient facts after initial consideration at this stage. (See Code Civ. Proc., § 430.41, subd. (e)(1); Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 245.) The demurrer is therefore sustained with 30 days leave to amend.

Plaintiff may ONLY address the subject individual defendants and subject causes of action. Plaintiff may NOT add any new causes of action. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) ANY new causes of actions or additional allegations beyond the scope of the vicarious liability claim will be subject to a motion to strike.

The court will concurrently conduct the Case Management Conference.

Defendants to provide notice.