Judge William D. Claster, Case 22-01270808 2022-12-16 Tentative Ruling

Judge: William D. Claster, Case: 22-01270808, Date: 2022-12-16 Tentative Ruling

1. Defendants Garden Grove Community Care Facility Inc.; ABN Resident Care, Inc.; Anaheim Community Care Facility, Inc.; CJJ Residential Care Facility, Inc.; Fullerton Community Care Facility inc.; Santa Ana Community Care Facility, Inc.; V&V Community Care Facility, Inc.; Claudia Olteanu; Christine Alfaro; and Illarion Alfaro's Notice of Demurrer and Demurrer to Plaintiff's Complaint ROA 55

2. Defendant JA & Sons Community Care's Joinder to Defendant's Demurrer to Plaintiff's Complaint ROA 59

Defendants’ demurrer to Plaintiff Jeissy Avila Ferreira’s complaint is OVERRULED. Defendants shall file an answer to the complaint on or before January 4, 2023.

REQUEST FOR JUDICIAL NOTICE

Defendants’ request for judicial notice is DENIED. Defendants seek notice of the articles of incorporation of Defendant ABN Resident Care, Inc. under Evid. Code § 452, subdivisions (g) (notice may be taken of “[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute”) and (h) (notice may be taken of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy”).

But Defendants do not seek notice of the fact that this document exists in the Secretary of State’s files, or the fact that it was filed with the Secretary of State on March 8, 2022. Instead, they seek notice of the fact that ABN was incorporated on March 8, 2022. The date of incorporation is stated nowhere on the face of the document, only the date of filing. Even if it were stated, “[w]hile courts take judicial notice of public records, they do not take notice of the truth of matters stated therein.” (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) The date of ABN’s incorporation is not a proper subject of judicial notice.

GROUNDS FOR RULING

I. Background

This is an individual wage-and-hour/wrongful termination/FEHA matter with a PAGA component based on the individual wage-and-hour claims. Plaintiff alleges she was employed by Defendants Garden Grove Community Care Facility, Inc. (“GGCCF”) and ABN (collectively, the “Employers”) to work as a live-in caretaker at two separate senior care facilities in Garden Grove. She alleges she was scheduled to work 12 hours a day, 7 days a week, for $120 per day, which resulted in numerous wage-and-hour violations. Plaintiff also brings a PAGA claim based on these alleged violations. Defendants Claudia Olteanu (owner of the Employers) and Christine and Illarion Alfaro (supervisors for the Employers) allegedly discriminated against Plaintiff, retaliated against her, etc., giving rise to the wrongful termination and FEHA-style claims.

In addition to these Defendants, the complaint alleges that Does 1-20 (the “Non-Employers”) are alter egos, joint venturers, joint employers, successors, etc. to the Employers. Plaintiff has since filed a number of Doe amendments identifying particular Non-Employers. It appears that all Defendants named in either the original complaint or a Doe amendment join in this demurrer, which is based on (1) failure to state facts sufficient to constitute a cause of action and (2) uncertainty.

II. Discussion

A. Failure to State Facts Sufficient to Constitute a Cause of Action

Initially, the Court notes that none of the arguments regarding failure to state facts sufficient to constitute a cause of action involves Olteanu or the Alfaros. As a result, the demurrer on this ground is overruled as to them.

1. Failure to Plead Employer Status

Defendants argue the complaint fails adequately to allege employer status against anyone other than GGCCF. The Court disagrees. ABN is expressly alleged to be Plaintiff’s employer. For the reasons set forth above, the date of ABN’s incorporation is not subject to judicial notice and therefore cannot be considered on demurrer. Plaintiff has adequately pled that GGCCF and ABN are her direct employers.

The Court agrees that Plaintiff has not adequately alleged the Non-Employers are her employers. But this does not end the inquiry, because they could still be liable on other theories.

2. Failure to Allege Alter Ego

Defendants argue the complaint fails adequately to allege alter ego status for the Non-Employers who have been named in Doe amendments. The Court disagrees.

Plaintiff relies principally on Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221. In that case, Rutherford alleged that Caswell (an officer of PDR) and PDR were alter egos. “Rutherford alleged that Caswell dominated and controlled PDR; that a unity of interest and ownership existed between Caswell and PDR; that PDR was a mere shell and conduit for Caswell's affairs; that PDR was inadequately capitalized; that PDR failed to abide by the formalities of corporate existence; that Caswell used PDR assets as her own; and that recognizing the separate existence of PDR would promote injustice.” (Id., at p. 235.) Caswell and PDR argued these allegations were insufficient, and Rutherford needed to allege specific facts to support an alter ego theory. The Court of Appeal rejected this argument: “We conclude that Rutherford made sufficient allegations of alter ego to avoid a demurrer.” (Ibid.)

Here, Plaintiff alleges at ¶ 22(a)-(e):

· The Employers are dominated and controlled by the Non-Employers.

· The Employers and the Non-Employers use each other’s funds for their own purposes.

· The Employers and the Non-Employers fail to comply with the formalities of separate corporate existence.

· The Employers and the Non-Employers act as a mere shell and conduit for one another.

· Recognizing the separate corporate existence of the Employers and Non-Employers would promote injustice.

These allegations mirror what passed muster in Rutherford. In reply, Defendants complain Plaintiff has merely parroted the elements of alter ego. But if it these allegations were sufficient in Rutherford, they are sufficient here. Defendants rely on a federal case, Neilson v. Union Bank of California, N.A. (C.D.Cal. 2003) 290 F.Supp.2d 1101, which applied California alter ego law in the Rule 12(b)(6) context to find the plaintiff had not stated an alter ego claim. This Court applies California pleading standards as set forth in cases like Rutherford, not federal pleading standards. Plaintiff’s alter ego allegations are sufficient to withstand demurrer.

3. Other Liability Theories

Because Plaintiff’s alter ego allegations are sufficient, the Court has no reason to consider Plaintiff’s other theories of liability for the Non-Employers (joint employer, joint venture/single enterprise, successor, etc.).

B. Uncertainty

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

For the reasons set forth above, Plaintiff’s alter ego allegations are sufficient to withstand demurrer. As a result, Plaintiff’s repeated allegations against “Defendants” as a group are sufficient to withstand a demurrer for uncertainty. Any uncertainty about how a particular Defendant is allegedly liable to Plaintiff can be cleared up in discovery.