Case Number: BC675574 Hearing Date: March 26, 2018 Dept: 32

mariano martinez,

Plaintiff,

v.

tri-star dyeing & finishing, inc., et al.,

Defendants.

Case No.: BC675574

Hearing Date: March 26, 2018

[TENTATIVE] order RE:

(1) defendant’s demurrer to plaintiff’s first amended complaint

(2) defendant’s request for judicial notice

(3) defendant’s motion to strike

BACKGROUND

The complaint in this action was filed by Plaintiff Mariano Martinez on September 12, 2017. Defendant Tri-Star Dyeing & Finishing (“Defendant”) demurred to the initial complaint on February 6, 2018. Plaintiff alleges he was hired to work as a machine operator for Defendants and was wrongfully terminated on August 25, 2016. The causes of action alleged are (1) failure to pay wages; (2) failure to pay minimum wages; (3) failure to pay overtime; (4) failure to provide meal and rest periods; (5) failure to provide itemized wage and hour statements; (6) waiting time penalties; (7) private attorney general act; (8) unfair competition; and (9) conversion.

DISCUSSION

A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true all of the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732–33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

A. Request for Judicial Notice

Defendant’s request for judicial notice is GRANTED pursuant to Cal. Evid. Code §452. Plaintiff’s objections to the request for judicial notice are waived because Plaintiff uses the same documents objected to as Exhibits in their Opposition.

B. Seventh Cause of Action

A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) In order for the bar to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. (Geneva Towers Ltd. partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781.)

Defendant contends the PAGA claim is barred by the applicable one-year statute of limitations because Plaintiff claims that he was terminated from his employment on August 25, 2016 (Complaint ¶15), but did not file his Complaint until September 12, 2017. Though not bound by the Federal Court, in this instance the Court finds the reasoning of Crosby v. Wells Fargo Bank, N.A. (C.D. Cal. 2014) 42 F.Supp.3d 1343 to be persuasive. The civil penalties recoverable under PAGA are penalties within the meaning of CCP §340(a), thus PAGA claims are subject to a one-year statute of limitations. (Id. at 1346.) However, the statute of limitations may be tolled for up to 33 days to account for the period between when LWDA receives a PAGA complaint letter and when it provides notice to the aggrieved employee whether it grants permission for the aggrieved employee to initiate a civil action. (Ibid.) S.B. 836 increased the 30-33 day period to 60-65 days. (Labor Code §2699.3(a)(1)(A).)

Plaintiff alleges that as of the filing of the Complaint, he did not receive any response from the Labor and Workforce Development Agency. (Complaint ¶76.) Thus, based on the facts alleged in the Complaint, Plaintiff’s claim is not barred by the applicable statute of limitations and the cause of action was timely.

Defendant contends Plaintiff did not comply with Labor Code §2699.3 because Plaintiff did not provide notice of the facts and legal theories supporting the claimed Labor Code violations. However, Plaintiff pleads facts sufficient to allege compliance with Labor Code 2699.3 in the Complaint ¶75, which is substantiated by Exhibit B of Defendant’s Supplemental Brief and Request to Take Judicial Notice. Further, Defendant’s contention that the LWDA Notice was defective because it was not submitted on-line was withdrawn. Plaintiff’s request for statutory penalties was scrivener’s error, which the Court accepts and substitutes “civil penalties” by interlineation in the Prayer for Relief (Complaint page 18-19) for claims arising out of allegations in Complaint ¶77 and ¶78. (Reply 7:8-11).

For the foregoing reason, the demurrer to the seventh cause of action is DENIED.

D. Ninth Cause of Action

The Labor Code statutes regulating pay stubs, meal breaks, rest breaks and minimum wages create new rights and obligations not previously existing in the common law. (Brewer v. Premier Gold Properties (2008) 168 Cal.App.4th 1243, 1252-1254.) Thus, the remedy provided in the statute is exclusive of all others unless the statutory remedy is inadequate. (Ibid.) Plaintiff alleges that Defendants wrongfully withheld, and failed and refused to pay Plaintiff the full amount of compensation to which he was entitled and that Defendants converted said compensation. (Complaint ¶87-88.) As a matter of law, Plaintiff cannot state a tort claim for conversion based on the allegedly unpaid wages, for which the Labor Code provides the exclusive remedy.

For the foregoing reason, the demurrer to the ninth cause of action is SUSTAINED.

E. Motion to Strike

The Court may grant a motion to strike any irrelevant, false or improper matter inserted in any pleading or strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP §436.) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (CCP§437(a).) “[T]he stricken language must be read not in isolation, but in the context of the facts alleged in the rest of petitioner’s complaint.” (Perkins v. Superior Court (1981) 117 Cal. App. 3d 1, 6.)

Labor Code provisions governing meal and rest breaks, minimum wages, and accurate pay stubs constitute statutory obligations imposed only when the parties have entered into an employment contract are obligations arising from the employment contract. Since these claims are based on the breach of an obligation arising out of an employment contract, Civil Code § 3294 does not authorize an award of punitive damages. (Brewer v. Premier Golf Properties, LP (2008) 168 Cal.App.4th 1243, 1256.)

Thus, when the prayer/allegations for punitive damages are read in the context of the facts alleged in the Complaint, Plaintiff’s allegations are insufficient to support a claim for punitive damages at the pleading stage.

Plaintiff alleges in his complaint that he is entitled to recover penalties under Lab. Code §226.3 (Complaint ¶60; 65). Plaintiff alleges the Defendant failed to keep records required in subdivision (a) of Section 226. (Complaint ¶61.)

Based on the foregoing, the Defendant’s motion to strike Complaint ¶94 and Complaint page 19:24-25 is GRANTED. The Defendant’s motion to strike all other paragraphs of the Complaint is DENIED.

F. Conclusion

The demurrer to the seventh cause of action is DENIED.

The Defendant’s motion to strike Complaint ¶94 and Complaint page 19:24-25 is GRANTED.

The Defendant’s motion to strike all other paragraphs of the Complaint is DENIED.