Judge: Timothy B. Taylor, Case: 37-2023-00005351-CU-OE-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited  Other employment Demurrer / Motion to Strike 37-2023-00005351-CU-OE-CTL HERNANDEZ VENEGAS VS NEXT LEVEL RESOURCES INC [E-FILE] CAUSAL DOCUMENT/DATE FILED: Demurrer, 07/11/2023

Tentative Ruling on Demurrer to FAC; OSC Regarding Transfer to Vista Branch Venegas v. Next Level Resources, Case No. 2023-05351 Oct. 13, 2023, 1:30 p.m., Dept 72 1. Overview and Procedural Posture.

This is a putative class action challenging the wage and hour practices of the defendants. Plaintiff alleges she was employed by defendant Next Level Resources Inc. (Next Level), which 'provides staffing solutions for various companies.' Apparently Next Level sent her to defendant SenDx Medical, Inc. (SenDx), which is 'a medical equipment manufacturer ... with its main office in Carlsbad.' She alleges SenDx was her 'joint employer.' The complaint was filed in February, 2023. It was superseded by the FAC in June. ROA 9.

Next Level has answered. ROA 31. Presently, SenDx generally demurs to the FAC. SenDx attacks only the fifth and eighth counts. Plaintiff filed opposition. ROA 35. SenDx filed reply. ROA 36. The court has reviewed the papers, and no further submissions are permitted in connection with this demurrer.

The case is also set for a continued CMC. ROA 28-30.

2. Applicable Law.

A. A general demurrer may only be sustained if the complaint fails to state a cause of action under any possible legal theory. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810. Properly pleaded facts must be accepted as true, but not contentions or conclusions of law or fact. Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173. The court's function is limited to testing the legal sufficiency of the complaint, which must be construed with a view to substantial justice between the parties. Fremont Indemnity Co. v. Fremont General Crop. (2007) 148 Cal.App.4th 97, 113; Code Civ.

Proc. § 452.

B. The prompt payment provisions of the Labor Code impose certain timing requirements on the payment of final wages to employees who are discharged (Lab. Code § 201) and to those who quit their employment (Lab. Code § 202). An 'employer' that 'willfully fails to pay' in accordance with sections Calendar No.: Event ID:  TENTATIVE RULINGS

2994807  50 CASE NUMBER: CASE TITLE:  HERNANDEZ VENEGAS VS NEXT LEVEL RESOURCES INC [E-FILE]  37-2023-00005351-CU-OE-CTL 201 and 202 'any wages of an employee who is discharged or who quits' is subject to so-called waiting-time penalties of up to 30 days' wages. Lab. Code § 203(a).

C. Before suing under PAGA, an aggrieved employee must provide written notice of the alleged Labor Code violations to both the employer and the LWDA. Lab. Code § 2699.3(a)(1)(A). The notice provision requires 'something more than bare allegations of a Labor Code violation' – i.e., the notice must state facts and theories showing how the defendant violated the challenged Labor Code provisions. Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 836-837. The employee must also plead compliance with this requirement. Caliber Bordyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 382-83, disapproved on other grounds by ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 196 fn. 8.

3. Discussion and Rulings.

The demurrer to the FAC is overruled.

A. The demurrer to count 5 is overruled.

Reading the FAC as a whole and liberally construing the allegations, the court finds that sufficient facts have been pled to state a claim for failure to pay all wages owed against SenDx. (See FAC at ¶¶ 24, 63-64.) '[A]gainst a general demurrer the only requirement is that upon a consideration of all the facts stated it must appear plaintiff is entitled to some relief, notwithstanding that the facts may be inartfully stated, or may be intermingled with a statement of other facts irrelevant to the cause of action, or plaintiff may demand relief to which he is not entitled under the facts alleged.' Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 123.

SenDx argues that plaintiff cannot assert claims under both Labor Code sections 201 and 202.

However, the only authorities cited in support of this proposition are federal district court cases, which are not binding on this court. Moreover, while discovery may ultimately reveal that one of these statutes is inapplicable, it is well-settled that 'a party may plead in the alternative and may make inconsistent allegations.' Adams v. Paul (1995) 11 Cal.4th 583, 593.

B. The demurrer to count 8 is overruled. Sufficient facts have been pled showing that plaintiff complied with PAGA's pre-filing notice requirement. (FAC at ¶ 89.) Whether the LWDA notice letter – which is not attached to the FAC – is sufficient under section 2699.3 remains to be determined.

C. SenDx must file and serve an answer to the FAC by October 23, 2023.

4. CMC.

The parties are ordered to show cause why the case should not be transferred to the Vista branch of the Court pursuant to Local Rule 1.2.2O. The case appears to have been improvidently filed in the Central division in light of plaintiff's allegation the defendant SenDx is in Carlsbad. Carlsbad is in the North County division for venue purposes.

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