Superior Court of California

County of Los Angeles

Department 50

GABRIEL GOMEZ,

Plaintiff,

vs.

SHAMMAS INVESTMENT COMPANY LLC, et al.,

Defendants.

Case No.:

22STCV39524

Hearing Date:

May 10, 2023

Hearing Time: 2:00 p.m.

[TENTATIVE] ORDER RE:

DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT;

DEFENDANTS’ MOTION TO STRIKE

Background

On December 20, 2022, Plaintiff Gabriel Gomez (“Plaintiff”) filed this action against Defendants Shammas Investment Company LLC and Shammas Investment LLC dba Felix Chevrolet. The Complaint asserts causes of action for (1) failure to pay minimum wage, (2) failure to pay overtime, (3) failure to provide meal periods, (4) failure to provide paid rest breaks, (5) failure to reimburse business expenses, (6) failure to pay all wages at termination, (7) failure to provide accurate wage statements, (8) reporting time pay, (9) unfair business practices (Business & Practices Section 17200), and (10) violation of Labor Code Section 2699 (PAGA).

On April 24, 2023, Plaintiff filed a request for dismissal of “Cause of Action No. 10 (PAGA- Plaintiff Gomez’s individual-only claim).” Dismissal was entered on the same date.

On April 25, 2023, Plaintiff filed a request for dismissal of “Causes of Action Nos. 1 through 9 (i.e. all non-PAGA causes of action).” Dismissal was entered on the same date.

Shammas Investment Company LLC and Felix Chevrolet LP (erroneously sued as Shammas Investment LLC dba Felix Chevrolet) (jointly, “Defendants”) now demur to the tenth cause of action of the Complaint. Defendants also move to strike portions of the Complaint. No opposition to the demurrer or motion to strike was filed.

Demurrer

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.)

In the demurrer, Defendants assert that Plaintiff’s tenth cause of action is time-barred.

Plaintiff’s tenth cause of action is for violation of the Private Attorneys General Act (“PAGA”). In support of the tenth cause of action, Plaintiff alleges that he “bring [sic] this Private Attorney General Act (PAGA) cause of action on behalf of himself alone for individual damages under PAGA.” (Compl., ¶ 137.)

As an initial matter, as set forth above, on April 24, 2023, Plaintiff filed a request for dismissal as to “Cause of Action No. 10 (PAGA- Plaintiff Gomez’s individual-only claim).” Dismissal was entered on the same date. Thus, the Court finds that Defendants’ demurrer to the tenth cause of action is moot.

The Court notes that Plaintiff does not allege that he is bringing the tenth cause of action on behalf of other aggrieved employees under PAGA. Nor does Plaintiff assert that he is alleging “non-individual” PAGA claims. To the contrary, Plaintiff alleges that he “bring [sic] this Private Attorney General Act (PAGA) cause of action on behalf of himself alone for individual damages under PAGA.” (Compl., ¶ 137.)

Motion to Strike

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or all or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Defendants move to strike Paragraphs 136-148 of the Complaint, which is Plaintiff’s tenth cause of action. As set forth above, on April 24, 2023, Plaintiff filed a request for dismissal as to “Cause of Action No. 10 (PAGA- Plaintiff Gomez’s individual-only claim).” Thus, the Court denies Defendants’ motion to strike as moot.

Conclusion

Based on the foregoing, Defendants’ demurrer to the tenth cause of action of the Complaint is denied as moot. Defendants’ motion to strike is also denied as moot.

Defendants are ordered to give notice of this order.

DATED: May 10, 2023 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court