Judge Frank M. Tavelman, Case Number: 22BBCV00678, Date: 2023-05-26 Tentative Ruling

The Court tries to post tentative rulings prior to any
hearing on many matters, but not all. If
the parties wish to submit on the tentative ruling and avoid a court
appearance, all counsel must confer and agree to do so. Each counsel must contact the court and
advise they are submitting on the matter, that they have spoken to opposing
counsel who has indicated they too are submitting and will be calling the
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hearing and state that all parties will submit on the tentative ruling or in lieu
may indicate the party is submitting during calendar check-in and notice of the
ruling must be served as indicated in the tentative. If any party declines to
submit on the tentative ruling, then no telephone call is necessary, and all
parties should appear at the hearing in person or remotely.

TENTATIVE RULING

MAY 26, 2023

Rescheduled from February 24, 2023

Los Angeles Superior Court Case # 22BBCV00678

Jose Santos Flores (“Plaintiff”) filed suit against M&J Management Group, Inc. dba Shiki Sushi (“Defendant”) on September 26, 2022, alleging several causes of action arising from his employment with Defendant. Plaintiff filed a First Amended Complaint (“FAC”) on December 7, 2022 containing eight causes of action:

(3) Failure to Provide Accurate, Itemized Wage Statements (California Labor Code §226);

Defendant filed a demurrer and motion to strike portions of the FAC on January 10, 2023. Plaintiff filed an opposition on February 9, 2023. Reply is pending.

With the exception to the sixth cause of action, Defendant demurs to every other cause of action in the FAC arguing they fail to state a cause of action against Defendant and that the allegations are uncertain vague, and unintelligible.

Defendant moves to strike the following portions of the FAC relating to punitive damages: References in paragraphs 84 and 95; Requests for punitive damages in paragraph 4 of the Seventh and Eighth causes of action.

Defendant also request Plaintiff’s prayer for attorney’s fees be struck from paragraphs, 55, 60, 62, 76, and 85.

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and, or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.) The court may also “[s]trike out 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.” (C.C.P. § 436 (b).)

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.)

CCP § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least five days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer or grant or deny a motion to strike. (CCP §§ 430.41(a)(4); CCP 435.5(a)(4).)

Upon review of the record the Court is satisfied the meet and confer requirements have been met. (Choi Decl. ¶ 2.)

Defendant argues that Plaintiff fails to allege facts sufficient to state a cause of action for the failure to provide meal periods. Defendant argues that because Plaintiff did not allege the actual worked hours each day. Defendant references a DLSE Opinion letter which defined meal periods as a 30-minute uninterrupted break and then says that the first 30 minutes of Plaintiff’s two-hour break period qualifies as such. Defendant points to no other legal authority which supports their position

Plaintiff argues that they did specify which days were worked. Plaintiff argues that when he worked split shifts on Thursday through Sunday, he was not allowed to take a meal break during his second shift as is mandate by Cal. Labor Code § 226.7(c). Plaintiff also alleges that when he worked ten hours shifts on Tuesday and Wednesday, he was not allowed to take his meal break as per Cal. Labor Code §512(a).

The Court finds that Plaintiff has alleged facts supporting his cause of action under the labor code. Defendant’s argument does not speak to the standard of a demurrer, which evaluated the sufficiency of Plaintiff’ pleadings. Defendant may disagree that Plaintiff was not allowed to take his meal breaks, but they do not point to any deficiencies in the facts alleged. As such, the demurrer is OVERRULED as to this cause of action.

Defendant argues that Plaintiff fails to state a cause of action for failure to provide rest breaks. Defendant makes an argument with respect to the statues “cooldown period” claiming that because Plaintiff was not working in a heat illness inducing environment his claim fails. The Court fails to see the relevance of this argument. Defendant then cites to Brinker Rest. Corp. v. Superior Court (2012) 53 Cal.4th 1004 for the assertion that an employer does not need to ensure an employee does not work on their rest break. The Court fails to see the relevance of this legal authority. Defendant argues that Plaintiff failed to allege the quantity and type of rest breaks he was denied, pointing to no legal authority that such specification is necessary.

Plaintiff in opposition argues that he has alleged that he worked shifts which qualify for rest breaks under the statute and that such rest breaks were denied to him.

The Court finds that Defendant argument does not speak to the standard of a demurrer. Plaintiff has appropriately pled his cause of action under the statute. As such, the Court OVERRULES the demurrer as to this cause of action.

Defendant argues that Plaintiff has failed to allege facts to sustain a cause of action for failure to provide accurate wage statements. Defendant argues that Plaintiff has not alleged any facts as to whether the failure to provide accurate statements was knowing and intentional as required by Cal. Labor Code §226(e) which states:

An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney's fees.

Plaintiff provides no reply to this argument in their opposition, instead focusing on Defendant’s contention that Plaintiff failed to allege how the wage statements violated the statute. The Court finds that Plaintiff has not pled any facts as to whether the failure to provide accurate wage statements was knowing or intentional, a necessary element of the statutory violation. It is possible that Plaintiff could allege such facts, but they have not done so here. As such, the Court SUSTAINS the demurrer as to this cause of action with leave to amend.

Defendant argues that Plaintiff has not pled sufficient facts to sustain a cause of action for waiting time penalties. Both parties agree that Labor Code § 226(a) requires the payment of any wages due at time of termination, but they disagree as to whether the alleged unpaid wages from uncompensated meal/rest breaks qualifies for this purpose. Defendant argues that meal/rest breaks do not qualify as wages under that statute. Plaintiff argues the opposite, citing to Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93. The California Supreme Court in Naranjo explicitly states that an employee is entitle to the additional amount of pay immediately upon being forced to miss a meal/rest break, and thus the duty to pay attaches at time of the violation and not after a court determination.

The Court finds that Plaintiff has pled sufficient facts as to this cause of action. Plaintiff has pled that they were denied meal/rest breaks and that they were never compensated for them at the time. Plaintiff alleges that he never received payment pursuant to these alleged violations within the period required by Labor Code § 226(a). As such, the demurrer as to this cause of action is OVERRULED.

To assert a claim under the Unfair Business Practice/ Unfair Competition Law, Bus. & Prof. Code sections 17200 et seq. (“UCL”), a party must (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310.)

Defendant argues that Plaintiff pleads no facts which support a violation of the UCL and which allege causation between that violation and the injury suffered. Defendant argues that paragraphs 66 and 67 represent boilerplate allegations insufficient to establish a UCL violation. Plaintiff responds that the allegations of failure to provide meal/rest breaks stand as the basis for this claim.

Both parties cite to Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th 1138. Defendant relies on Safeway for their claim that, to recover, Plaintiff must produce evidence which show the actual value of the wages received. The Court finds that this argument does not speak to the standard of demurrer, as on demurrer facts pled are assumed to be true.

Plaintiff cites to Safeway in contending that generally, the UCL permits employees to obtain restitution for unpaid wages. (Id. at 1154.) Plaintiff also notes that the Safeway court found that the failure to pay premium wages for missed rest/meal breaks was a violation of the UCL’s prohibition of unfair business practices. (Id. at 1155.) “We therefore conclude that a UCL claim may be predicated on a practice of not paying premium wages for missed, shortened, or delayed meal breaks attributable to the employer's instructions or undue pressure, and unaccompanied by a suitable employee waiver or agreement.” (Id. at 1155-1156.)

Here Plaintiff has alleged that he was denied meal/rest breaks at the behest of Defendant’s instruction or undue pressure. Plaintiff specifically alleges that he was told to clock back in on his rest periods and that he was routinely pressured into not taking these breaks by virtue of being the only employee handling the dishes. (FAC ¶¶ 15, 17, 21.) The Court finds that Plaintiff has alleged sufficient facts to support a UCL violation. Additionally, Plaintiff alleges that the refusal of these meal/break periods Plaintiff has suffered damages of unpaid wages to which he is entitled. As such, the demurrer with respect to this cause of action is OVERRULED.

Defendant argues that Plaintiff has not alleged facts sufficient to sustain a claim of violation of Labor Code § 1102.5. Labor Code § 1102.5, commonly referred to as the whistleblower statute, provides protection for employees in reporting unlawful activities of their employers. To make prima facie showing of a violation of 1102.5 a plaintiff must show they (1) engaged in a protected activity, (2) their employer subjected them to an adverse employment action, and (3) there is a causal link between the two. McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443.

Defendant argues that Plaintiff did not exhaust his administrative remedies regarding the labor code violation and as such is barred from bringing claim in litigation. Plaintiff argues in opposition that case law indicates that a plaintiff need not exhaust the Labor Code administrative remedy process before proceeding with a claim of statutory violation.

Plaintiff argues in return that the Labor Code does not require the exhaustion of administrative remedies before bringing a statutory claim.)

In Sheridan v. Touchstone Television Productions, LLC (2015) 241 Cal.App.4th 508, plaintiff brough an action under labor code § 6310 claiming that she was terminated as a result of reporting an assault. The plaintiff in Sheridan had only reported the assault to her employer, leading the defendant to claim that plaintiff had not exhausted her administrative remedies prior to bringing suit. (Id. at 511.) The court also found that as per the 2013 enactment of Labor Code § 244, administrative remedy exhaustion was no longer necessary unless the section under which relief is sought explicitly requires it. (Id.) Labor Code §244(a) provides that “An individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy.” The Sheridan court ruled that the plain language of the labor codes under which relief was sought did not require administrative exhaustion. In Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, the Court of Appeals determined that the language of Labor Code § 1102.5 did not require the exhaustion of administrative remedies before pursuing a statutory claim. (See also Satyadi v. West Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022.)

Here, much like in Sheridan, plaintiff only complained to his employer. Also like the plaintiff in Sheridan, plaintiff has not alleged any facts that he logged a complaint with a governmental authority. The case law makes clear that plaintiff is not required to exhaust his administrative remedies in order to bring a claim under Labor Code §1102.5. The Court finds that Plaintiff need not have exhausted his administrative remedies to appropriately allege his cause of action.

However, the Court finds that neither party addresses the issue of whether Plaintiff engaged in a protected activity under the statute. An employee engages in protected activity under Labor Code section 1102.5, subdivision (b) when the employee discloses to a governmental agency “reasonably based suspicions” of illegal activity. (Mokler v. County of Orange (2007) 157 Cal.App.4th 12.) An employee who reports allegedly illegal activity to his employer, rather than a government agency, is not afforded protection under Labor Code § 1102.5. (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.) Plaintiff alleges that he complained to his supervisor, Mrs. Cho, who had the authority to investigate, discover, or correct the alleged violations herein. None of Plaintiff’s allegations speak to whether he disclosed to a governmental agency any suspicion of illegal activity. Plaintiff points to no legal authority under which complaints registered with an employer are considered protected activity under Labor Code §1102.5. It is possible Plaintiff could allege facts that he reported illegal activity to a relevant government agency, but he has not done so here. As such, the demurrer with respect to this cause of action is SUSTAINED with leave to amend.

“In order to establish a constructive discharge, an employee must plead and prove . . . that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) As a general matter, there must be a “continuous pattern” of “unusually aggravated” “adverse working conditions,” as “isolated acts of misconduct are insufficient to support a constructive discharge claim.” (Id. at p. 1247.)

Defendant argues that Plaintiff fails to state a claim for his cause of action for constructive discharge in violation of public policy. Defendant cites to Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, arguing that Plaintiff must prove, by a preponderance of the evidence, that a causal connection between employees protected status and the adverse employment decision. The Court finds that this argument does not speak to the standard of demurrer and as such is irrelevant for the purposes of this motion.

Plaintiff argues that he alleges several intolerable work conditions including working without appropriate break, never being given a split shift premium, and being forced to perform duties outside the scope of his employment. Plaintiff alleged that he complained of these conditions to Mrs. Cho and was afterword subjected to the same or worsening conditions. The Court finds that Plaintiff has alleged sufficient facts as to the intolerable work conditions and that such conditions were knowingly permitted by Defendant. As such, the demurrer with respect to this cause of action is OVERRULED.

The Court notes that the motion to strike punitive damages in the seventh cause of action is mooted by virtue of the Court sustaining demurrer to that cause of action with leave to amend.

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294(a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Id.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Id.) Despicable conduct, that is conduct which is so vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people. (Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Defendant argues that the allegations in the FAC do not show Defendant acted with malice, oppression, or fraud. Defendant argues that the allegations speaking to punitive damages are simple legal conclusions. Plaintiff argues in opposition that courts have held that punitive damages claims may be available in actions for termination in violation of public policy. While this is true, it is still the case that plaintiff must allege facts speaking to the malice, fraud, or oppression from Defendant. For example, Plaintiff cites to Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, where the plaintiff specifically alleged that he was terminated because of his refusal to engage in illegal business activity. Here, the Court finds no specific allegations which speak to Defendant’s malice, fraud, or oppression. While the facts pled by Plaintiff certainly are sufficient to support an allegation of wrongdoing, they are not of the type which speak to the punitive damage standard.

Plaintiff also argue that they have alleged despicable conduct. Plaintiff compares Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, where the court ruled wiretapping of an employee to be despicable conduct. The Court does not find that the allegations here rise to level of conduct which was contemplated in Clauson. As such, the Court GRANTS the motion to strike, with leave to amend as to the request for punitive damages in the Eighth cause of action. The Court also GRANTS the motion as to the reference of punitive damages in paragraphs 84 and 95.

An award of attorney’s fees is proper when authorized by contract, statute, or law. (Code Civ. Proc., §§ 1032(b), 1033.5(a)(10).) Plaintiff argues that his request for attorneys fees with respect to his causes of action for waiting time penalties and failure to pay split shift penalties is authorized by Labor Code §§ 218.5 and 1194. Plaintiff argues that his request for attorney’s fees with respect to his cause of action for failure to furnish accurate wage statements is proper under Labor Code § 226(e). Lastly, Plaintiff argues that his request for attorneys fees with respect to his causes of action for retaliation is authorized under Labor Code §1102.5(j).

Defendant does not brief the matter of attorney’s fees, despite their bringing of the motion to strike. Plaintiff argues that such a failure constitutes a waiver of the right to assert that plaintiff is not entitled to attorney’s fees. Plaintiff cites to Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1 where the court found that an insurer does not impliedly waive coverage defenses if it fails to mention when it denies the claim. Waller is factually inapposite to the instant case in that it does not concern an instance where a motion was filed but not briefed. However, Waller does appropriately advise that claim of wavier requires the claiming party to prove intent. (Id. at 31.) Here it appears to the Court that omission of briefing as to the striking of attorney’s fees was more attributable to accident than intentional act.

It appears to the court that Plaintiff’s requests for attorneys fees are authorized by statute. As Defendant does not brief the matter to the contrary the Court is unaware of any basis for striking the requests. As such, the motion is DENIED.

The demurrer as to causes of action one, two, four, five, and eight is overruled. The demurrer as to causes of action three and seven are sustained with leave to amend. The motion to strike as to the seventh cause of action is moot. The motion to strike as to paragraphs 85 and 95 and the eighth cause of action is granted. The motion to strike as to requests for attorney’s fees is denied.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

M&J Management Group, Inc. dba Shiki Sushi’s Demurrer and Motion to Strike came on regularly for hearing on May 26, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER AS TO CAUSES OF ACTION ONE, TWO, FOUR, FIVE, AND EIGHT IS OVERRULED.

THE DEMURRER AS TO CAUSES OF ACTION THREE AND SEVEN ARE SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE MOTION TO STRIKE AS TO PARAGRAPHS 85 AND 95 AND THE EIGHTH CAUSE OF ACTION IS GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

MP:	M&J Management Group, Inc. dba Shiki Sushi (Defendant)
RP:	Jose Santos Flores (Plaintiff)