Judge: Teresa A. Beaudet, Case: 23STCV08288, Date: 2023-10-04 Tentative Ruling

Case Number: 23STCV08288    Hearing Date: October 4, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Michelle Parrella (“Plaintiff”) filed this action on April 14, 2023 against Defendants Special X, Inc. d/b/a Undivided, Special X, LLC, Jason Lehmbeck, Seth Besse, and Stephen John Zimmerman (collectively, “Defendants”). The Complaint alleges causes of action for (1) violation of Labor Code section 230(a), (2) violation of Labor Code section 1102.5(c), (3) wrongful termination in violation of public policy, and (4) breach of implied covenant of good faith and fair dealing.

Defendants now demur to the second cause of action of the Complaint. Plaintiff opposes.

Discussion

A.    Legal Standard

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.)

A pleading is uncertain if it is ambiguous or unintelligible. (¿Code Civ. Proc., § 430.10, subd. (f)¿.) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2¿.) However, “¿[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¿.)¿¿ 

B.     Allegations of the Complaint

In the Complaint, Plaintiff alleges that she was hired by Defendants on January 23, 2020 to serve as Director of Navigator Operations. (Compl., ¶ 14.)

Plaintiff alleges that “[o]n or around July 20, 2021, Plaintiff received a jury duty summons from the Superior Court of California ordering her to call into the Court, starting August 6, 2021, after 6:00 p.m., for information regarding whether or not she would need to report for jury duty service.” (Compl., ¶ 18.) “On or around August 10, 2021, Plaintiff was notified by the Superior Court of California that she was required to appear the following day, August 11, 2021, for mandatory jury duty service.” (Compl., ¶ 24.)

“Plaintiff immediately notified Defendants Lehmbeck and Besse that she had been summoned to jury duty. Defendant Besse feigned disbelief, stating: ‘What? I thought they released you.’” (Compl., ¶ 25.) “On Monday, August 16, 2021, Plaintiff was selected to serve as a juror. Between August 11, 2021 and September 3, 2021, (the dates of Plaintiff’s jury duty service), Plaintiff continued to attend meetings virtually and perform work for Defendant SPECIALX.” (Compl., ¶ 28.) Plaintiff alleges that “[c]ontinuing its pressure to dissuade her from serving at all, Defendant SPECIALX was unrelenting in its demands of Plaintiff, pressuring Plaintiff on deliverables such as lead generation, gaining new leads for potential staff, and completing interviews of candidates at times when Plaintiff had specifically informed Defendant SPECIALX she was in Court, serving on a jury.” (Compl., ¶ 28.)

Plaintiff alleges that “[o]n Friday, September 3, 2021, Plaintiff was released from jury duty. Plaintiff notified Defendants that she would be returning to work the following week on Tuesday, after the Labor Day holiday.” (Compl., ¶ 29.) “On or around Wednesday, September 8, 2021, Plaintiff’s second day back to work following the completion of her jury duty service, Defendant Besse met with Plaintiff. Plaintiff informed Defendant Besse that she had a stressful and emotionally draining experience serving jury duty and that she was happy to be back in the office. Defendant Besse, coldly responded: ‘serves you right’ and ‘you wanted jury duty.’ Defendant Besse then abruptly ended the meeting.” (Compl., ¶ 30.) “Later that same day, on or around September 8, 2021, Defendant Lehmbeck met with Plaintiff via Zoom. Immediately upon entering the Zoom call, Defendant Lehmbeck abruptly fired Plaintiff. Plaintiff was shocked and asked Defendant Lehmbeck why Defendants were firing her. Without giving any explanation Defendant Lehmbeck stated: ‘it’s just not working out.’” (Compl., ¶ 31.)

C.     Second Cause of Action for Violation of Labor Code Section 1102.5(c)

Labor Code section 1102.5, subdivision (c) provides that “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” Plaintiff alleges in the Complaint that “[a]s alleged herein and in violation of California Labor Code Section 1102.5(c), Defendants, and each of them, retaliated against Plaintiff for refusing to participate in an activity that would have resulted in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” (Compl., ¶ 43.)

Plaintiff’s second cause of action is alleged against all Defendants. In the demurrer, Defendants assert that the second cause of action may not be brought against the “individual, non-employer” defendants. As Plaintiff notes, Defendants cite to non-binding federal cases in support of this assertion. (See Demurrer at p. 4:8-24.) As further noted by Plaintiff, Defendants do not cite to any binding California authority to support Defendants’ assertion that “[t]here is no individual liability for retaliation under Labor Code Section 1102.5.” (Demurrer at p. 4:3.) Defendants acknowledge in the reply that “there is no published California decision addressing the issue of personal liability under California Labor Code Section 1102.5…” (Reply at p. 5:1-2.)

In the opposition, Plaintiff emphasizes that Labor Code section 1102.5, subdivision (c) provides that “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” (Emphasis added.) Plaintiff also cites to Assembly Bill No. 263, effective January 1, 2014, which amended Labor Code section 1102.5 by, inter alia, adding the following underlined language to Labor Code section 1102.5, subdivision (c): “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee…”

In the demurrer, Defendants also assert that “Plaintiff’s claim of retaliation is uncertain, ambiguous and unintelligible as she fails to identify what specific protected activity she was retaliated against for refusing to engage in.” (Demurrer at p. 4:27-28.) Defendants assert that Plaintiff “does not allege that she was prohibited from performing jury duty by the individual defendants or otherwise. Quite to the contrary, Plaintiff admits that she performed the entirety of her jury duty service.” (Demurrer at p. 5:12-14.) Indeed, Plaintiff does not appear to allege that she refused to participate in an unlawful activity and that Defendants retaliated against her as a result. Rather, Plaintiff alleges that she was selected to serve as a juror on Monday, August 16, 2021, and that Plaintiff’s jury duty service took place between August 11, 2021 and September 3, 2021. (Compl., ¶ 28.) Plaintiff does not respond to this point in the opposition.

Based on the foregoing, the Court sustains Defendants’ demurrer to the second cause of action, with leave to amend.

Conclusion

Based on the foregoing, the Court sustains Defendants’ demurrer to the second cause of action of the Complaint, with leave to amend. The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days of this Order, Defendants are ordered to file and serve their answer within 30 days of the date of this Order. 

Defendants are ordered to give notice of this Order. 

DATED:  October 4, 2023                              ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court