Judge: Stephen P. Pfahler, Case: 23STCV24294, Date: 2024-11-05 Tentative Ruling

Case Number: 23STCV24294    Hearing Date: November 5, 2024    Dept: 68

Dept. 68

Date: 11-5-24

Case # 23STCV24294

Trial Date: Not Set

 

DEMURRER TO THE SECOND AMENDED COMPLAINT

 

MOVING PARTY: Defendants, RHDM Oil, Inc., et al.

RESPONDING PARTY: Plaintiffs, Roshdy Abdelmonen, et al.

 

RELIEF REQUESTED

Demurrer to the Second Amended Complaint

·         1st Cause of Action: Violation of Labor Code section 510

·         2nd Cause of Action: Violation of Labor Code section 1197

·         3rd Cause of Action: Violation of Labor Code section 204

·         4th Cause of Action: Violation of Labor Code section 201 & 202

·         5th Cause of Action: Violation of Labor Code section 226

·         6th Cause of Action: Retaliation and Wrongful Termination in Violation of Labor Code section 1102.5

·         7th Cause of Action: Violation of Labor Code section 558.1

·         8th Cause of Action: Unfair Business Practices

 

Motion to Strike

 

SUMMARY OF ACTION

Plaintiff, Roshdy Abdelmonen and Doaa Elbarbry allege non-payment of wages and wrongful termination upon complaining about certain unlawful conduct occurring on the premises. On October 5, 2023, Plaintiffs field a complaint for wage and hour violations, Retaliation and Wrongful Termination, and Unfair Business Practices. On October 1, 2023, Plaintiff filed a 170.6 challenge, thereby leading to the reassignment of the case to Department 6 from Department 56. On October 13, 2023, Plaintiffs filed a first amended complaint. On October 27, 2024, the court entered the stipulation of the parties for the filing of a second amended complaint. On April 10, 2024, Plaintiffs filed their second amended complaint.

 

RULING

Demurrer: OVERRULED.

Defendants, RHDM Oil, Inc. and Mohammed Ansari submit a demurrer to the entire second amended complaint on grounds of failure to allege sufficient facts to each and every cause of action. Plaintiffs in opposition maintain the operative complaint is properly pled. Defendants in reply cites to the standard for review of a pleading in the demurrer state, and reiterates the failures to state factual bases for each and every cause of action.

 

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.]

 

1st Cause of Action: Violation of Labor Code section 510

2nd Cause of Action: Violation of Labor Code section 1197

Defendant challenges the subject causes of action on grounds of violation of the three year statute of limitations. The complaint alleges unpaid overtime wages from 2012 to November 2020. The complaint was not filed until “November 2023.” Plaintiff counters that the complaint was filed on October 5, 2023, thereby rendering the complaint timely under continuing accrual doctrine.

 

The action was timely filed. The court record shows a filing date of October 5, 2023, contrary to the representation of counsel in the demurrer. The court reminds counsel that appearances are made as an officer of the court, and the court expects truthful and accurate representations on objectively verifiable items.

 

The cause of action is otherwise properly pled. The challenge to the factual basis of the claim regarding insufficient exact identification of each and every pay period will not undermine the validity of the claim. Defendants may conduct discovery. The demurrer is OVERRULED.

 

3rd Cause of Action: Violation of Labor Code section 201 & 202

Defendants challenge the factual sufficiency of the claim on grounds that the operative complaint insufficiently articulates the facts supporting the nonpayment of wages within 72 hours of termination. Plaintiffs in opposition contend the demurrer relies on fabrications of allegations not actually pled anywhere in the operative complaint, and Plaintiffs properly plead their claims for nonpayment of wages.

 

Defendants improperly rely on qualitative extrinsic inference regarding the basis of the end of employment. The court finds the cause of action properly pled. Defendants may conduct discovery. The demurrer is OVERRULED.

 

4th Cause of Action: Violation of Labor Code section 204

Defendants maintain no claim under Labor Code section 204 can be pled outside of a PAGA action. Plaintiffs counter that Defendants cite to inapplicable statutory authority and reiterate the propriety of the cause of action.

 

The court finds no PAGA limitation under Labor Code section 204. Nothing in the subject causes of action references Labor Code section 210. The cause of action is otherwise properly pled. The challenge to the factual basis of the claim regarding insufficient exact identification of each and every pay period will not undermine the validity of the claim. Defendants may conduct discovery. The demurrer is OVERRULED.

 

5th Cause of Action: Violation of Labor Code section 226

The demurrer presents no apparent substantive challenge to this specific cause of action. The demurrer is OVERRULED.

 

6th Cause of Action: Retaliation and Wrongful Termination in Violation of Labor Code section 1102.5

Defendants challenge the lack of facts meeting the Labor Code section 1102.5, Whistleblower Protection, elements regarding the link between an adverse employment action and the purportedly unlawful conduct (e.g. gambling on the premises). Plaintiff cites to Labor Code section 1102.5, subdivision (c), regarding retaliatory conduct for Plaintiffs’ refusal to facilitate gambling practices on the premises. Plaintiffs were subsequently terminated.  

 

The cause of action is properly pled. The challenge to the factual basis of the claim regarding based on extrinsic qualitative distinctions will not undermine the validity of the claim. Defendants may conduct discovery. The demurrer is OVERRULED.

 

7th Cause of Action: Violation of Labor Code section 558.1

Defendant challenges the lack of any basis imputing liability to individual defendant Ansari. Plaintiffs counter with citation to Ansari’s involvement with business operations, thereby establishing a basis of liability.

 

Labor Code section 558.1 provides in 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 203, 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.”

 

Plaintiffs sufficiently allege involvement of Ansari. The demurrer is OVERRULED.

 

8th Cause of Action: Unfair Business Practices

Defendants challenge the factual sufficiency based on recitation of the code section without any factual description. Plaintiffs counter the claim is based on the preceding wage and hour violations.

 

The UCL does not proscribe specific acts, but broadly prohibits ‘any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising....’” [¶] “‘A private plaintiff must make a twofold showing: he or she must demonstrate injury in fact and a loss of money or property caused by unfair competition.’ (Citation.)” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1359.) Fact specific pleading is not required in order to allege an unfair business practice. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 46–47.

 

An “unlawful” practice “means any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made.… ‘Unfair’ simply means any practice whose harm to the victim outweighs its benefits. (Citation.) ‘Fraudulent,’ as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public ‘“are likely to be deceived.”’” (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 838–839.) “[A]n unfair business practice also means” the relied upon public policy provision is “tethered” to a specific regulatory provisions. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 81.) Fundamentally, recovery requires a direct harm to the consumer, and actual reliance. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 326–327.)

 

The operative complaint specifically relies on the incorporated wage and hour claims, even if not specifically repeated. The claims are therefore sufficiently linked. The demurrer is OVERRULED.

 

 

Motion to Strike: DENIED.

Defendants move to strike 18 separately identified items:

·         Page 5, Paragraph 20 in its entirety: “As a result of Defendants’ conduct in consistently paying Plaintiffs wages well below the minimum wages owed to employees in Los Angeles County throughout Plaintiffs’ employment with Defendants, to this day, Defendants still owe Plaintiffs a significant sum of unpaid minimum wages.”

·         2. Page 6, Paragraph 24, line 3: “liquidated damages” Grounds for Motion to Strike: Improper and not in conformity with California law.

·         3. Page 8, Paragraph 33 in its entirety: “During the relevant time period, ELBARBRY worked hours in excess of eight (8) hours a day and/or forty (40) hours per week and was subject to the overtime requirements of California law. Likewise, during the relevant time period, ELBARBRY worked for 7 consecutive days in her work weeks. However, Defendants failed to pay the proper wages to Plaintiffs.”

·         4. Page 8, Paragraph 34 in its entirety: “Defendants’ failure to pay Plaintiffs overtime wages, as required by California law, violates the provisions of the California Labor Code § 510 and is therefore unlawful.”

·         5. Page 9, Paragraph 35 in its entirety: “Pursuant to Labor Code § 1194, Plaintiffs are each entitled to recover their unpaid overtime compensation as well as interest, costs, and attorneys’ fees.”

·         6. Page 9, Paragraph 38, lines 7-10: “Defendants regularly failed to pay Plaintiffs the applicable minimum wage for all hours Plaintiffs worked for Defendants’ sole benefit, if any wages at all. Consequently, Defendants have failed to pay Plaintiffs the required minimum wages for all of their hours worked for Defendants’ benefit.”

·         7. Page 9, Paragraph 40, lines 15-16: “costs, and attorney’s fees, and liquidated damages in an amount equal to the wages unlawfully paid and interest thereon.”

·         8. Page 10, Paragraph 43, lines 5-6: “Defendant failed to pay Plaintiff their wages earned and unpaid as of the day they were terminated and/or within 72 hours of their last day of work.”

·         9. Page 10, Paragraph 46, lines 19-20: “an award of costs and reasonable attorneys’ fees pursuant to California Labor Code § 218.5.”

·         10. Page 11, Paragraph 49, lines 6-7: “Defendant failed to pay Plaintiffs all of Plaintiffs’ wages earned throughout Plaintiffs’ employment at the time they were due.”

·         11. Page 11, Paragraph 50, line 11: “attorneys’ fees”. Grounds for Motion to Strike: Improper and not in conformity with California law. 12. Page 12, Paragraph 54, line 4: “reasonable attorney’s fees pursuant to California Labor Code § 226(e)”. Grounds for Motion to Strike: Improper and not in conformity with California law. 13. Page 13, Paragraph 63, lines 27-28, Page 14, lines 1-3: “Moreover, the malicious, fraudulent and/or oppressive conduct was engaged in, authorized or ratified by officers, directors or managing agents of the company and/or was the result of the application of unlawful, malicious or oppressive policies. As a consequence of the aforesaid oppressive, malicious, and despicable conduct, Plaintiffs are entitled to an award of punitive damages…”

·         14. Page 13, Paragraph 64 in its entirety: “As a proximate result of the wrongful acts of Defendants, Plaintiffs have been forced to hire attorneys to prosecute their claims herein, and have incurred and are expected to continue to incur attorneys’ fees and costs in connection therewith. As a result, pursuant to Labor Code § 1102.5(j), Plaintiffs are entitled to recover attorneys’ fees and costs.”

·         15. Page 17, Prayer for Relief, Paragraph 6: “For liquidated damages.”

·         16. Page 17, Prayer for Relief, Paragraph 9: “For punitive and exemplary damages, according to proof.”

·         17, Prayer for Relief, Paragraph 11: “For reasonable attorneys’ fees and costs.”

·         18. Page 17, Prayer for Relief, Paragraph 13: “For experts’ costs and fees incurred herein”

 

The motion to strike any and all wage and hour references is DENIED. Plaintiffs present a sufficient basis for the subject items, as established in the demurrer.

 

The operative complaint sufficiently articulates the statutory basis for recovery of attorney fees and liquidated damages. The motion is DENIED. Any challenge to expert fees is premature. The motion is DENIED to this as well.

 

On the punitive damages claim, the court refers to the statute. Civil Code section 3294, subdivision (c) authorizes punitive damages upon a showing of malice, oppression, or fraud, which are defined as follows:

 

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

 

Plaintiffs rely on the whistleblower statute. For purposes of the motion to strike, the whistleblower liability claim sufficiently supports the claim for punitive damages. (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 267-268.) The motion is DENIED.

 

Defendants to answer the second amended complaint within 10 days.

 

Moving parties to give notice.