2017-00217749-CU-OE

Stacey Johnson vs. Center Point, Inc.

Nature of Proceeding: Hearing on Demurrer to 1st Amended Complaint

Filed By: Ullrich, Gabriel

Defendant Center Point, Inc.’s (“Defendant”) demurrer to First Amended Complaint (“FAC”) is SUSTAINED with leave to amend in part and OVERRULED in part.

This is a wage-and-hour action filed on August 21, 2017, by two plaintiffs who previously worked at Defendant’s rehabilitation facility. Plaintiffs’ FAC was filed on February 1, 2018. Plaintiffs Stacey Johnson and Tracie Lee Cohen (collectively, “Plaintiffs”) generally allege Defendants failed to pay them overtime, provide rest periods, maintain accurate records of hours worked and provide accurate wage statements, and failed to timely pay wages upon separation. Plaintiffs also allege causes of action for conversion (6th COA), unjust enrichment (8th COA), and illegal deduction from wages (9th COA).

Defendant now demurs to the sixth, eighth, and ninth causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action.

The parties engaged in meet and confer efforts, but were unable to resolve these

issues and this instant motion followed. The Court finds the parties meet and confer efforts substantially complied with the requirements of Code of Civil Procedure section 430.41.

Legal Standard

The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

The pleading rules applicable to demurrers are now familiar and well established. Pleadings are to be liberally construed. (Code Civ. Proc. § 452) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. ( Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . , we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726.)

Sixth Cause of Action for Conversion

Defendant demurs to the sixth cause of action on the grounds that money is not personal property capable of conversion.

Plaintiffs’ sixth cause of action alleges Defendant wrongfully withheld from Plaintiffs and similarly aggrieved employees and “failed to pay them wages and other compensation that was due to them as required … .” (FAC ¶ 61.)

Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.) While money may be the subject of a claim for conversion, if the subject of a claim for conversion is money, a specific identifiable sum is required. (Vu v. California Commerce Club (1997) 58 Cal.App.4th 229, 235; PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.) Indeed, “Money may be the subject of conversion if the claim involves a specific, identifiable sum; it is not necessary that each coin or bill be earmarked.” (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 209 [quoting Hagler v. Donnelly (1941) 18 Cal.2d 674, 681.) Plaintiffs have not provided a specific sum identifiable to an account.

Accordingly, Defendant’s demurrer to the sixth cause of action is SUSTAINED with leave to amend.

Eighth Cause of Action for Unjust Enrichment

Defendant demurs to the eighth cause of action on the grounds that unjust enrichment is not a separate cause of action in California. The demurrer is OVERRULED.

Courts have observed “a split of authority in California as to whether a claim for unjust enrichment is recognized as an independent cause of action.” (Concorde Equity II, LLC v. Miller (N.D. Cal. 2010) 732 F.Supp.2d 990, 1001.) California courts agree that ‘unjust enrichment’ is in effect, ‘the result of a failure to make restitution under circumstances where it is equitable to do so.’” (Concorde Equity II, LLC v. Miller (N.D. Cal. 2010) 732 F. Supp. 2d 990, 1001, quoting Melchior v. New Line Prods., Inc., (2003) 106 Cal.App.4th 779, 793.) Unjust enrichment is synonymous with the term “restitution.” (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1314.) However, even the cases indicating that there is such a cause of action recognize that it must be premised on an underlying wrong. (Lectrodryer v. Seoul Bank (2000) 77 Cal.App.4th 723.)

The Court declines to sustain a demurrer to this cause of action based upon the label attached to it. Plaintiff has alleged sufficient facts to state a claim for restitution.

Ninth Cause of action for Illegal Deduction from Wages (Labor Code § [sic] and 222)

Defendant demurs to the ninth cause of action on the grounds that there are no allegations that there was a collective bargaining agreement. Labor Code section 222 provides “It shall be unlawful, in case of any wage agreement arrived at through collective bargaining, either wilfully or unlawfully or with intent to defraud an employee, a competitor, or any other person, to withhold from said employee any part of the wage agreed upon.”

Plaintiffs do not allege the existence of a collective bargaining agreement, nor do they oppose Defendant’s demurrer with any substantive arguments or legal authority. Plaintiffs oppose only with the following sentence “The wording of the allegations in the operative complaint is adequate to support Plaintiff’s claim pursuant to Labor Code § 222.” This is essentially a non-opposition as it fails to address the argument defendant makes.

Defendant’s demurrer to the ninth cause of action is SUSTAINED with leave to amend.

Conclusion

Defendant’s demurrer as to the sixth and ninth causes of action is SUSTAINED with leave to amend.

Defendant’s demurrer as to the eighth cause of action is OVERRULED.

Plaintiffs may file and serve a Second Amended Complaint no later than April 19, 2018

. (Although not required by statute or court rule, Plaintiffs are directed to present the clerk a copy of this ruling at the time of filing the first amended complaint.)

Defendant may file and serve a response within 30 days of service of the Second Amended Complaint, 35 days if served by mail.