Judge Thomas D. Long, Case Number: 23STCV21034, Date: 2024-08-20 Tentative Ruling

On December 5, 2024, Plaintiff Malia Sine filed a first amended complaint (“FAC”) against Defendants Sahara Ray Swim LLC, Advance Apparel of Los Angeles Inc., Ryan Horne, Eamonn Courtney, and others.

The FAC alleges (1) sexual harassment in violation of the Fair Employment and Housing Act (“FEHA”); (2) sexual harassment in violation of the Civil Code; (3) violation of the Ralph Civil Rights Act; (4) sex discrimination in violation of FEHA; (5) retaliation in violation of FEHA; (6) failure to prevent discrimination, harassment, and retaliation in violation of FEHA; (7) assault; (8) battery; (9) intentional infliction of emotional distress (“IIED”); (10) failure to provide meal and rest periods; (11) failure to pay unpaid wages; (12) failure to pay overtime; (13) unlawful wage deductions; (14) failure to provide accurate, itemized wage statements; (15) failure to reimburse necessary expenses; (16) failure to pay timely wages; (17) failure to timely pay final wages; (18) retaliation (Labor Code section 98.6); (19) retaliation (Labor Code section 6310); (20) retaliation (Labor Code section 6311); (21) whistleblower retaliation; (22) wrongful termination in violation of public policy; and (23) failure to produce records.

With her August 7, 2024 Opposition, Plaintiff also filed a second amended complaint (“SAC”).

According to Plaintiff, she has a right to amend the complaint in response to the demurrer without a stipulation or court order. (Demurrer at p. 4.) Plaintiff cites Code of Civil Procedure section 430.41 as authority for her ability to “amend her complaint as much as three times in response to pending Demurrers.” (Ibid.) “[W]hile Plaintiff contends that her complaint for damages is sufficient and alleges the necessary elements of her claims against Defendants, Plaintiff has decided to amend her complaint,” so she “filed and served her Second Amended Complaint.” (Ibid.) Plaintiff therefore contends that the demurrer is moot and must be taken off calendar. (Ibid.)

Plaintiff is incorrect. A plaintiff may amend the complaint once without leave of court before an answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the hearing. (Code Civ. Proc., § 472, subd. (a).) Plaintiff already amended her complaint with the filing of the FAC on December 5, 2023. Nothing in section 430.41 authorizes the filing of a subsequent amended complaint without leave of court. Instead, section 430.41 merely limits a party to a total of three amendments after demurrers, and it excludes from the limit “an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” (Code Civ. Proc., § 430.41, subd. (e)(1).) In other words, if a plaintiff filed a first amended complaint without leave of court in response to the first demurrer (as authorized by section 472), the plaintiff could still amend three more times (up to a fourth amended complaint) in response to subsequent demurrers, if the court sustained the demurrers with leave to amend. If section 430.41 were intended to authorize up to three amendments following demurrers without leave of court, that would completely contradict section 472, which permits only one amendment without leave of court.

The Court may, in its discretion, strike any pleading not filed in conformity with the law or an order of the court. (Code Civ. Proc., § 436, subd. (b).) Additionally, “[a] court may, by virtue of its inherent power to prevent abuse of its processes, strike an amended complaint which is filed in disregard of established procedural processes.” (Loser v. E. R. Bacon Co. (1962) 201 Cal.App.2d 387, 390.)

Accordingly, the Court STRIKES the SAC received on August 7, 2024 and ORDERS that it not be filed. The operative pleading is the FAC.

A demurrer for sufficiency 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, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

A. Plaintiff Does Not Sufficiently Allege Sexual Harassment, Discrimination, and Retaliation (First, Second, Fourth, Fifth Causes of Action).

Defendants argue that the alleged statements do not rise to the level of sexual harassment or discrimination. (Demurrer at pp. 2-4.)

“[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.” (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80.)

Plaintiff alleges that she “was repeatedly subjected to offensive comments, criticism, derogatory suggestions, and remarks based on her sex (described supra), including being called ‘pussy,’ ‘fucking cunt,’ and ‘bitch.’ [Non-demurring] Defendant Sahara Ray coupled the perverse sexual language with physical violence and threats of physical violence, assaulting Plaintiff at one point while shouting sexual epithets at her.” (FAC ¶ 61; see FAC ¶¶ 74, 97.) This sufficiently alleges sexually harassing and discriminatory conduct. The demurrer is overruled on this ground.

Defendants also argue that only the harasser and the employer (not a supervisor) are liable for sexual harassment, and “[t]he alleged harasser here is Defendant Sahara Ray, not the Demurring Defendants.” (Demurrer at p. 3.) Similarly, they argue that only employers (not non-employer individuals) can be liable for retaliation. (Id. at p. 4.) Plaintiff alleges that non-demurring Defendant Sahara Ray and Defendant Advance Apparel of Los Angeles Inc. own, operate, manage, and/or control Sahara Ray Swim LLC. (FAC ¶¶ 21-22.) Defendants Ryan Horne and Eamonn Courtney own, operate, manage, and/or control Advance Apparel of Los Angeles Inc. (FAC ¶ 22.) Each Defendant was “involved in hiring, managing, controlling the means of payment, and terminating Plaintiff during her employment with Defendants.” (FAC ¶¶ 3-8.) It is unclear which Defendant(s) actually employed Plaintiff and which Defendants were supervisors rather than employers. The demurrer to the first, second, fourth, and fifth causes of action is sustained on this ground.

B. Plaintiff Does Not Allege a Basis for Defendants’ Liability Under the Ralph Act (Third Cause of Action).

Defendants argue that employers cannot be liable under the Ralph Act. (Demurrer at p. 3.)

The Ralph Act provides, “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of [Cvil Code] Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics.” (Civ. Code, § 51.7, subd. (b)(1).) Notwithstanding any other laws that may establish the liability of an employer for the acts of an employee, the Ralph Act “does not establish any civil liability of a person because of his or her status as an employer, unless the employer personally committed an act of gender violence.” (Civ. Code, § 52.4, subd. (e).)

Only Sahara Ray is alleged to have committed any specific actions. Accordingly, the demurrer to the third cause of action is sustained.

C. Plaintiff Does Not Allege a Basis for Failure to Prevent (Sixth Cause of Action).

Failure to prevent discrimination, harassment, or retaliation in violation of FEHA requires that (1) the plaintiff was an employee of defendant; (2) the plaintiff was subjected to discrimination, harassment, or retaliation in the course of employment; (3) the defendant failed to take all reasonable steps to prevent the discrimination, harassment, or retaliation; (4) the plaintiff was harmed, and (5) the defendant’s failure to take all reasonable steps to prevent discrimination, harassment, or retaliation was a substantial factor in causing plaintiff’s harm. (CACI 2527; see Gov. Code, § 12940, subd. (k).)

Because the Court sustains the demurrer to the underlying causes of action for discrimination, harassment, or retaliation, the demurrer to the fourth cause of action is also sustained. (See Demurrer at p. 4; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

D. Plaintiff Does Not Allege a Basis for Defendants’ Liability for Assault, Battery, or IIED (Seventh, Eighth, Ninth Causes of Action).

Defendants argue that only Sahara Ray is alleged to have assaulted and battered Plaintiff, and it is unclear whether they would be liable as her employers because Plaintiff does not allege who were the employers and that her employment was the type of work where physical assault was foreseeable. (Demurrer at pp. 4-5; see FAC ¶¶ 125, 132.) Similarly, it is unclear what conduct was extreme and outrageous, and Plaintiff does not clearly allege respondeat superior liability for IIED. (Demurrer at pp. 5-6.)

An employer is vicariously liable for the torts of its employees committed within the scope of the employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) An employee’s willful, malicious, and even criminal torts may fall within the scope of his or her employment for the purposes of respondeat superior, even if such crimes or intentional torts were not authorized by the employer. (Id. at pp. 296-297.)

For the reasons discussed above, it is unclear who Plaintiff’s and Sahara Ray’s employers were and the basis for vicarious liability. The demurrer to the seventh, eighth, and ninth causes of action is sustained.

E. Plaintiff Does Not Sufficiently Allege Facts for Labor Code Violations (Tenth, Eleventh, Twelfth, Fourteenth, Fifteenth, Seventeenth, Twenty-Third Causes of Action).

Defendants argue that Plaintiff’s claims for meal and rest breaks, unpaid wages, overtime, final wages, and failure to produce records lack sufficient facts. (Demurrer at pp. 6-8, 10-11.) Defendants argue that a wage statement is required when the employee is paid, and because Plaintiff alleges that she was not paid, they could not have violated Labor Code section 226. (Id. at p. 7.) Defendants also argue that “Plaintiff does not allege who was personally involved in not furnishing her statements or had sufficient participation in that alleged act or omission,” nor does she allege who was responsible for reimbursements. (Id. at pp. 7-8.)

“[F]acts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604; see also Baskin v. Hughes Realty, Inc. (2018) 25 Cal.App.5th 184, 207 [“Generally, ‘[w]he[n] a party relies for recovery upon a purely statutory liability it is indispensable that he plead facts demonstrating his right to recover under the statute. The complaint must plead every fact which is essential to the cause of action under the statute.’”]; Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 478 [“[S]imply parroting the language of [a statute] in the complaint is insufficient to state a cause of action under the statute.”].)

Plaintiff does not allege specific facts about the denial of breaks, unpaid wages, unpaid overtime, wage statements, reimbursements, or failure to produce records. (See FAC ¶¶ 149, 160, 166, 179, 184-185, 198, 262-263.) Additionally, for the reasons discussed above, it is unclear who was Plaintiff’s actual employer and Defendant’s involvement in the alleged wrongdoing.

The demurrer to the tenth, eleventh, twelfth, fourteenth, fifteenth, and seventeenth causes of action is sustained.

F. There is No Private Right of Action for Unlawful Wage Deductions (Thirteenth Cause of Action).

Defendants argue that Plaintiff cannot bring her own claims under Labor Code sections 221 and 223. (Demurrer at p. 7.)

Sections 221 and 223 are not subject to section 210’s penalty. (See Lab. Code § 210, subd. (a).) “Section 221 prohibits an employer from collecting or receiving from an employee any part of wages that employer has paid to the employee. Section 223 makes it unlawful for an employer to “secretly pay a lower wage while purporting to pay the wage designated by statute or contract.” Neither section, on its face, provides an express private remedy to enforce its provisions. Rather, section 225 makes violations of either provision a misdemeanor, and section 225.5 provides the same statutory penalty scheme as applies to section 212 and 213. Like those sections then, there is nothing to indicate that the legislature intended to create a private right of action to remedy violations of sections 221 and 223.” (Gunawan v. Howroyd-Wright Employment Agency (C.D. Cal. 2014) 997 F.Supp.2d 1058, 1068.)

G. Plaintiff Does Not Sufficiently Allege a Basis for Defendants’ Liability for Failure to Pay Wages (Sixteenth Cause of Action).

Defendants argue that “[t]here is no private right of action” under Labor Code section 204. (Demurrer at p. 8.) But as Defendants acknowledge, “Section 204 of the Labor Code is enforceable by an action by the State of California under Labor Code § 210.” Plaintiff alleges that she is entitled to a penalty under section 210 for Defendants’ violation of section 204. (FAC ¶¶ 189-190.) The demurrer is overruled on this ground.

However, for the reasons discussed above, it is unclear who Plaintiff’s employers were and the basis for their liability. (See Demurrer at p. 8.) The demurrer to the sixteenth cause of action is sustained on this ground.

H. Plaintiff Does Not Sufficiently Allege a Basis for Defendants’ Liability for Retaliation or Wrongful Termination (Eighteenth, Nineteenth, Twentieth, Twenty-First, Twenty-Second Causes of Action).

Plaintiff alleges retaliation under Labor Code sections 98.6, 6310, 6311, and 1102.5. Defendants argue that Plaintiff fails to allege facts showing causation, violation of a safety standard, violation of another statute or regulation, or who was her actual employer. (Demurrer at pp. 8-10.)

Plaintiff also alleges wrongful termination in violation of public policy. Defendants argue that Plaintiff “merely pleads in a general, conclusory fashion that all the allegations of the FAC show violations of such policies,” and she does not clearly allege her employer. (Demurrer at p. 10.)

Plaintiff’s allegations lack specific facts and do not clearly identify her employer. The demurrer to the eighteenth, nineteenth, twentieth, twenty-first, and twenty-second causes of action is sustained.

The demurrer to the thirteenth cause of action is SUSTAINED without leave to amend.

The demurrer to all other causes of action is SUSTAINED with 30 days’ leave to amend.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court