Judge Theresa M. Traber, Case 22STCV19533 2023-05-04 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV19533, Date: 2023-05-04 Tentative Ruling

Case Number: 22STCV19533 Hearing Date: May 4, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: May 4, 2023 TRIAL DATE: NOT SET

CASE: Lilia Garcia-Brower, California State Labor Commissioner v. Max Inc., et al.

CASE NO.: 22STCV19533

DEMURRER TO CROSS-COMPLAINT

MOVING PARTY: Cross-Defendant Teresa Trotter

RESPONDING PARTY(S): No response on eCourt as of 4/27/23

CASE HISTORY:

· 06/15/22: Complaint filed

· 09/12/22: Cross-Complaint filed by Defendant Leon Turner as to Teresa Trotter

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment action that was filed on June 15, 2022. Plaintiff alleges that Defendants unlawfully withheld an employee’s back pay and wrongfully terminated her in retaliation for contacting the Labor Commission. Defendant Leon Turner filed a Cross-Complaint on September 12, 2022 against Cross-Defendant Teresa Trotter.

Cross-Defendant demurs to the Cross-Complaint in its entirety.

TENTATIVE RULING:

Cross-Defendant’s Demurrer to the Cross-Complaint is OVERRULED.

DISCUSSION:

Cross-Defendant demurs to the Cross-Complaint in its entirety for failure to state facts sufficient to constitute a cause of action.

Legal Standard

A demurrer tests whether the (cross-) complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the [cross-] complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

Cross-Defendant filed a declaration stating that she e-mailed Cross-Complainant concerning this demurrer on October 24, 2022. (Declaration of Teresa Trotter ISO Demurrer ¶ 4.) Cross-Defendant states that Cross-Complainant only responded by instructing her to e-mail the Labor Commissioner. (Id. ¶ 5.) While the Cross-Complainant’s response was not satisfactory, the Court concludes that Cross-Defendant has complied with her statutory meet and confer obligations.

Request for Judicial Notice

Cross-Defendant requests that the Court take judicial notice of (1) the Complaint in Turner v. Trotter, LASC Case No. 15K05026; and (2) the February 22, 2016 request for dismissal with prejudice of the entire case in that same action.

Cross-Defendant’s requests are GRANTED pursuant to Evidence Code section 452(d)(court records).

Defective Service

Cross-Defendant’s proof of service states only that she served Cross-Complainant with her demurrer, and not all interested parties as required by Code of Civil Procedure section 1014. As the only party to whom the demurrer pertains has been served, and no other party has objected that service was not properly made, the Court will address the motion on its merits.

Analysis

Cross-Defendant contends that the Cross-Complaint is without merit because the Cross-Complaint is identical to a 2015 complaint previously asserted against Cross-Defendant that was subsequently dismissed. Cross-Defendant argues that the Cross-Complaint is therefore barred by the doctrine of res judicata.

“‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res Judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them . . . Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit.” (Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1218-19 [internal citations omitted].) For claim preclusion to apply, there must be (1) a previous final decision on the merits; (2) concerning the same causes of action as in the present proceeding; and (3) concerning the same parties or parties in privity with the parties in the prior proceeding. (Id.)

Here, the Cross-Complaint in this action asserts many of the same causes of action and factual allegations as the 2015 complaint. (Compare Cross-Complaint, RJN Exh. A.) The Cross-Complaint also contains additional allegations and putative causes of action titled “Damages from Loss of Business” and “Damages for Pain and Suffering.” (Cross-Complaint ¶¶ 30-34.) Construed in the light most favorable to Cross-Complainant, the latter claim appears to be a claim for intentional infliction of emotional distress, which was not asserted in the previous action. (See RJN Exh. A.) As Cross-Defendant has only demurred to the Cross-Complaint in its entirety, and not to each cause of action individually, the Court cannot conclude that the Cross-Complaint, as a whole, is barred by the doctrine of res judicata.

Cross-Defendant’s statute of limitations argument is similarly unavailing, as Cross-Defendant’s moving papers make no reference to the last two causes of action addressed above. Thus, the Court cannot conclude that the entire Cross-Complaint is barred by applicable statutes of limitations.

CONCLUSION:

Accordingly, Cross-Defendant’s Demurrer to the Cross-Complaint is OVERRULED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: May 4, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.