Judge: Theresa M. Traber, Case: 24STCV11811, Date: 2025-01-22 Tentative Ruling
Case Number: 24STCV11811 Hearing Date: January 22, 2025 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: January 22, 2025 TRIAL
DATE: NOT SET
CASE: Roberto Rivas v. Ultra Solution, Inc.
CASE NO.: 24STCV11895 
DEMURRER
TO COMPLAINT
MOVING PARTY: Defendant Ultra Solution, Inc.
RESPONDING PARTY(S): Plaintiff Roberto
Rivas
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a wage and hour and whistleblower retaliation action that was
filed on May 10, 2024. Plaintiff alleges that he was retaliated against and
constructively terminated for complaining about unsafe and unlawful working
practices.
Defendant demurs to the first,
second, third, eighth, and ninth causes of action in the Complaint.
TENTATIVE RULING:
Defendant’s Demurrer to the
Complaint is SUSTAINED without leave to amend as to the eighth
and ninth causes of action and otherwise OVERRULED.
DISCUSSION:
Defendant demurs to the first,
second, third, eighth, and ninth causes of action in the Complaint.
Legal Standard
A demurrer tests whether the
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 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).)
The
Declaration of Defendant’s counsel states that counsel for the parties met and
conferred telephonically on June 24, 2024, but were not able to reach an
agreement regarding the issues presented in this Demurrer. (Declaration of Ray
Hsu ISO Dem. ¶ 4.) Defendant has therefore satisfied its statutory meet-and-confer
obligations.
First Cause of Action: Whistleblower Retaliation (Labor
Code § 1102.5)
Defendant
demurs to the first cause of action for whistleblower retaliation for failure
to state facts sufficient to constitute a cause of action.
Labor Code section 1102.5(b)
states:
An employer, or any person acting on
behalf of the employer, shall not retaliate against an employee for disclosing
information, or because the employer believes that the employee disclosed or
may disclose information, to a government or law enforcement agency, to a
person with authority over the employee or another employee who has the
authority to investigate, discover, or correct the violation or noncompliance,
or for providing information to, or testifying before, any public body
conducting an investigation, hearing, or inquiry, if the employee has
reasonable cause to believe that the information discloses a violation of state
or federal statute, or a violation of or noncompliance with a local, state, or
federal rule or regulation, regardless of whether disclosing the information is
part of the employee’s job duties.
(Labor Code § 1102.5(b).)
Defendant first
contends that this cause of action is inadequately pled because the Complaint
does not allege that Plaintiff complained of any unlawful activity. A cursory
review of the Complaint belies that contention. Plaintiff alleges that (1) he
complained of not receiving rest or meal breaks (Complaint ¶ 18); (2) he
complained of not receiving full pay for all hours worked (Complaint ¶ 22); and
(3) he protested against instructions to carry overweight cargo, which
Plaintiff contended was “illegal and dangerous” (¶ 23.) Failure to pay wages
and to provide meal and rest periods are expressly unlawful. (Labor Code §§
510; 512; 226.7.) Moreover, the Complaint alleges that Plaintiff openly
protested an instruction which he contended was unlawful. (Complaint ¶ 23.) The
Complaint is not deficient in this respect.
Defendant
also argues that Plaintiff has failed to allege an adverse employment action
because he voluntarily resigned from his position. Not so. Plaintiff alleges
that he was instructed to leave and that Defendant’s owner “no longer had any
work for him,” and, in response, Plaintiff requested his termination paperwork
and final check. (Complaint ¶ 25.) Construed in the light most favorable to
Plaintiff, as required on a demurrer, this is an allegation of termination, not
of resignation. The Complaint is not deficient in this respect.
Accordingly,
Defendant’s demurrer to the first cause of action is OVERRULED.
Second Cause of Action: Violation of Labor Code § 6310
Defendant
demurs to the second cause of action for violation of Labor Code section 6310
for failure to state facts sufficient to constitute a cause of action. This
statute provides:
(b) Any employee who is discharged,
threatened with discharge, demoted, suspended, or in any other manner
discriminated against in the terms and conditions of employment by their
employer because the employee has made a bona fide oral or written complaint to
the division, other governmental agencies having statutory responsibility for
or assisting the division with reference to employee safety or health, their
employer, or their representative, of unsafe working conditions, or work
practices, in their employment or place of employment, or has participated in
an employer-employee occupational health and safety committee, shall be
entitled to reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the employer. Any employer who willfully refuses to rehire,
promote, or otherwise restore an employee or former employee who has been
determined to be eligible for rehiring or promotion by a grievance procedure,
arbitration, or hearing authorized by law, is guilty of a misdemeanor.
(Labor Code § 6310(b).)
Defendant
contends that the Complaint is defective with respect to this cause of action
because, first, Plaintiff has not alleged that he complained of unsafe working
conditions. Again, Defendant is incorrect. Plaintiff alleges that he was
instructed to load and carry overweight cargo, which he complained of as being
both unlawful and unsafe. (Complaint ¶ 23.) Defendant’s conclusory assertion
that this allegation is “vague” is not persuasive.
Defendant
also argues that Plaintiff has not alleged an adverse employment action because
he voluntarily resigned from his position. For the reasons stated above, that
argument is unpersuasive.
Accordingly,
Defendant’s Demurrer to the second cause of action is OVERRULED.
Third Cause of Action: Wrongful Termination
Defendant
demurs to the third cause of action for wrongful termination as derivative of
the first two causes of action. As the Court has overruled the demurrer to the
above claims, Defendant’s Demurrer to the third cause of action is OVERRULED.
Eighth Cause of Action: Failure to Provide Wage
Statements (Labor Code § 226)
Defendant
demurs to the eighth cause of action for failure to provide wage statements as
barred by the one-year statute of limitations.
Defendant
contends that this cause of action is barred by the statute of limitations
because the Complaint admits that Plaintiff requested wage statements on
December 2, 2022 and April 7, 2023, but delayed filing this action until May
10, 2024. (See Complaint ¶ 91.) Plaintiff, in response, concedes the timing of
these events, but argues that claims under this provision are governed by a
three-year statute of limitations. Not so. Claims for statutory penalties under
Labor Code section 226 are governed by the one-year statute of limitations in
Code of Civil Procedure section 340. (E.g. Falk v. Children’s Hospital Los
Angeles (2015) 237 Cal.App.4th 1454, 1469.) The admissions in Plaintiff’s
Complaint regarding the timing of these requests is therefore fatal to this
cause of action.
Accordingly,
Defendant’s Demurrer to the eighth cause of action is SUSTAINED.
Ninth Cause of Action: Failure to Provide Personnel
Records (Labor Code § 1198.5)
Defendant
demurs to the ninth cause of action for failure to provide personnel records as
barred by the one-year statute of limitations. As the parties offer identical
arguments with respect to this claim as with the eighth cause of action, the
ninth cause of action is likewise fatally defective. Defendant’s Demurrer to
the ninth cause of action is SUSTAINED.
Uncertainty
Defendant
also demurs to the first three causes of action as uncertain.
Demurrers¿for uncertainty are disfavored,
because discovery can be used for clarification, and they apply only where
defendants cannot reasonably determine what issues or claims are stated.¿(Chen
v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal.,
Inc.¿(1993) 14 Cal.App.4th 612, 616.) If the complaint is sufficiently
comprehensible that Defendant can reasonably respond, the complaint is not uncertain.
(Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841,
848 n.3.)
As should
be apparent from the Court’s discussion of each cause of action above, the
first three causes of action are not so defective that Defendant could not
reasonably respond to the claims.
Leave to Amend
When a demurrer is sustained, the
Court determines whether there is a reasonable possibility that the defect can
be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318). When a plaintiff “has pleaded the general set of facts upon
which his cause of action is based,” the court should give the plaintiff an
opportunity to amend his complaint, since plaintiff should not “be deprived of his
right to maintain his action on the ground that his pleadings were defective
for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892,
900.) Accordingly, California law imposes the burden on the plaintiffs to
demonstrate the manner in which they can amend their pleadings to state their
claims against a defendant. (Goodman v. Kennedy (1976) 18
Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion
unless the complaint shows on its face it is incapable of amendment.
[Citation.] Liberality in permitting amendment is the rule, if a fair
opportunity to correct any defect has not been given." (Angie M. v.
Superior Court (1995) 37 Cal.App.4th 1217, 1227.)
As
Plaintiff’s Complaint expressly admits facts which establish that the one-year
statute of limitations has run with respect to the eighth and ninth causes of
action, the Complaint is incapable of amendment with respect to those claims.
The Court therefore does not grant leave to amend as to those causes of action.
CONCLUSION:
Accordingly, Defendant’s Demurrer to the
Complaint is SUSTAINED without leave to amend as to the eighth
and ninth causes of action and otherwise OVERRULED.
Moving Party to give notice.
//
//
IT IS SO ORDERED.
Dated: January 22,
2025 ___________________________________
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
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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.