Case Number: VC065226 Hearing Date: May 05, 2016 Dept: SEC

CHAVEZ v. ENTRO, INC.
CASE NO.: VC065226
HEARING: 05/05/16

#10
TENTATIVE ORDER

Defendants ENTRO, INC. and SUNG UM’s motion for judgment on the pleadings, directed at the complaint, is GRANTED WITH 30 DAYS LEAVE TO AMEND. C.C.P. § 438.

Plaintiff GLORIA CHAVEZ filed this action seeking to recover damages for defendant’s alleged violations of the Labor Code and section 17208 of the Business and Professions Code. Plaintiff alleges that she worked in defendant UM’s personal residence from sometime before March 2005 until March 2015. Comp., ¶¶7, 10. It appears (although it is not pled) that defendant Entro issued her paychecks. Opp., p.2. Plaintiff contends that she was not given overtime, meal breaks or rest periods, presumably over the course of her entire 10-year employment. She seeks damages in an unspecified amount.

Defendants challenge the sufficiency of the pleading. See Castaneda v. Dept. of Corrections 92013) 212 Cal.App.4th 1051 (noting that a motion for judgment on the pleadings is governed by the standards on a demurrer). The motion, like a demurrer, is properly directed at a cause of action. To that extent, defendant’s arguments regarding certain portions of the pleading (citation to Civil Code section 3287) would be more appropriate in a motion to strike. Plaintiff should, however, consider the purported deficiencies prior to amending the pleading.

Neither of plaintiff’s claims are pled with sufficient factual support. Plaintiff must allege enough facts for a determination to be made that the Labor Code actually applies to her employment as a live-in housekeeper. It appears her compensation may be governed by IWC wage orders (although that might ultimately be a question of fact). Second, to the extent she alleges she was not paid correctly, plaintiff must specify which time periods were affected and details regarding defendant’s alleged failure to provide breaks or meal periods. This requirement is consistent with the general rule requiring statutory claims to be pled with specificity. Lopez v. Southern Calif. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795. The rule applies to each of the alleged Labor Code violations.

The unfair business practices cause of action is not supported by any facts. Plaintiff only cites section 17208, which pertains to the statute of limitations. Comp., ¶16. Supportive facts, as well as the particular violation, must be asserted.

Although not raised by defendant, the Court also notes that plaintiff improperly seeks “damages,” which are not recoverable under the UCL statutory scheme. ¶17. Plaintiff may amend the pleading to allege restitution, which more accurately describes the recovery of unlawfully withheld wages. See Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163.

The motion is granted with leave to amend.