Judge: Upinder S. Kalra, Case: 22TRCV00334, Date: 2023-02-28 Tentative Ruling
Case Number: 22TRCV00334 Hearing Date: February 28, 2023 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: February
28, 2023
CASE NAME: Santosh Padki v. Tone It Up, Inc., et
al.
CASE NO.: 22TRCV00334
DEMURRER
WITH MOTION TO STRIKE
MOVING PARTY: Defendant Tengram Capital Partners,
L.P.
RESPONDING PARTY(S): Plaintiff Santosh Padki
REQUESTED RELIEF:
1. An
order sustaining the demurrer as to all seven causes of action.
2. An
order striking various portions of the FAC that request punitive or exemplary
damages.
TENTATIVE RULING:
1. Demurrer
as to all causes of action is SUSTAINED, with leave to amend.
2. Motion
to Strike is MOOT.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On May 2, 2022, Plaintiff Santosh Padki (“Plaintiff”) filed
a complaint against Defendants Tone It Up, Inc., and Tengram Capital Partners,
L.P. (“Defendants.”)
On August 30, 2022, Defendant Tone It Up, Inc., filed an
Answer.
On August 30, 2022, Defendant Tone It Up, Inc., filed a
Cross-Complaint.
On August 30, 20222, Defendant Tengram Capital Partners,
L.P. filed a Demurrer with a Motion to Strike.
On October 14, 2022, Cross-Defendant Padki filed an Answer
to the Cross-Complaint.
On November 28, 2022, filed the operative First Amended Complaint.
The FAC alleged seven causes of action for various labor code violations,
including retaliation, failure to pay wages and reimbursement of necessary
business expenses, as well as breach of contract. The FAC alleges that
Plaintiff was hired to be CEO for Defendant Tone It Up. While working as CEO,
Plaintiff disclosed various conduct that Plaintiff believed to be unlawful,
including, but not limited to, excessive executive or founder compensation;
actions by the founders and others that were inconsistent with their duties to
the shareholders and equity investors; actions by the founders and others that
were inconsistent with their duties as Board members, etc. Plaintiff then
alleges that after these disclosures were made, he was terminated in breach of
his employment contract.
On December 29, 2022, Defendant Tone It Up, Inc., filed an
Answer.
On December 30, 2022, the current Demurrer with Motion to
Strike was filed by Tengram Capital Partners, L.P. Plaintiff’s Opposition was
filed on February 14, 2023. Defendant’s Reply was filed on February 21, 2023.
LEGAL STANDARD
Demurrer
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. 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. …. 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 147
Cal.App.4th at 747.)
Motion to Strike
The court may, upon a motion, or at
any time in its discretion, and upon terms it deems proper, strike any
irrelevant, false, or improper matter inserted in any pleading. (Code Civ.
Proc., § 436(a).) The court may also strike all or any part of any pleading not
drawn or filed in conformity with the laws of this state, a court rule, or an
order of the court. (Id., § 436(b).)
The grounds for moving to strike must appear on the face of the pleading or by
way of judicial notice. (Id. § 437.) “When
the defect which justifies striking a complaint is capable of cure, the court
should allow leave to amend.” (Vaccaro v.
Kaiman (1998) 63 Cal.App.4th 761, 768.)
Meet and Confer:
Prior to filing a demurrer, the demurring party is required
to satisfy their meet and confer obligations pursuant to Code of Civ. Proc.
§430.41, and demonstrate that they so satisfied their meet and confer
obligation by submitting a declaration pursuant to Code of Civ. Proc.
§430.41(a)(2) & (3). The Declaration of Eulalio J.
Garcia indicates that on December 21, 2022, the parties met and conferred
telephonically about the FAC. The parties were unable to resolve the issues.
ANALYSIS:
Defendant Tengram
demurs on the grounds that all seven causes of action because Plaintiff fails
to allege sufficient facts establishing that Defendant Tengram was a joint
employer of Plaintiff along with Defendant Tone It Up, Inc. Without such facts,
Defendant contends there is no employment relationship between Plaintiff and
Defendant Tengram.
Vernon v. State of California (2004) 116
Cal.App.4th 114 (Vernon) is instructive. Vernon
sets forth factors courts consider in determining whether an employer-employee
relationship exists.
Factors to be
taken into account in assessing the relationship of the parties include payment
of salary or other employment benefits and Social Security taxes, the ownership
of the equipment necessary to performance of the job, the location where the
work is performed, the obligation of the defendant to train the employee, the
authority of the defendant to hire, transfer, promote, discipline or discharge
the employee, the authority to establish work schedules and assignments, the
defendant's discretion to determine the amount of compensation earned by the
employee, the skill required of the work performed and the extent to which it
is done under the direction of a supervisor, whether the work is part of the
defendant's regular business operations, the skill required in the particular
occupation, the duration of the relationship of the parties, and the duration
of the plaintiff's employment.
(Vernon v. State of California (2004) 116
Cal.App.4th 114, 125.)
No one Vernon factor is controlling, however,
“the extent the defendant’s right to control the means and manner of the
worker’s performance is the most important.” (Id. at p. 126.) Of particular significance is the level of control
an entity “asserts of an individual’s access to employment opportunities.” (Ibid.) In that regard, trial courts are
compelled to evaluate “ ‘ “the degree an entity or person significantly affects access to employment” ’ ” opportunities
in order to hold the alleged co-employer responsible for the acts of the
“immediate employer.” (Ibid.)
The FAC contains no
facts addressing the Vernon factors such
as payment of salary, authority to hire and discharge the employee, etc., have
been alleged. Instead, Plaintiff alleges a series of conclusions. For example, Plaintiff states that
Defendant Tone It Up, Inc. and Defendant Tengram were joint employers of Plaintiff,
but alleges no facts (FAC ¶ 8), Plaintiff’s allegation that Defendants,
including Tengram, recruited Plaintiff to become CEO is similarly conclusory. (FAC
¶ 16) Plaintiff’s allegation that “he took orders from both Defendant Tone It
Up and individuals and/or employees of Defendant Tengram,” (Complaint ¶ 20) likewise
is lacking in any specifics, such as who these employees were, their titles, or
the substance of these so-called orders. Plaintiff’s allegation that he sought
approval from “individuals who were employed or board members of” Defendant similarly
provides no factual particulars. (Complaint ¶ 21.) These bare allegations, without
more facts, do not satisfy the Vernon
standard even at the pleading stage. Accordingly, Plaintiff has
failed to sufficiently allege an employer/employee relationship with Defendant
Tengram.
CONCLUSION:
For the foregoing reasons, the
Court decides the pending motion as follows:
Demurrer is
SUSTAINED, with leave to amend within 20 days, as to all 7 causes of action.
Motion to Strike
is MOOT.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: February
28, 2023 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court