2018-00233717-CU-OE

Rachael Joaquin vs. MMC Transportation, Inc.

Nature of Proceeding: Hearing on Demurrer

Filed By: Bowen, William L.

Defendant MMC Transportation, Inc.’s Demurrer is ruled on as follows:

Plaintiff alleges she had an oral employment agreement with defendants under which she would be employed as a truck driver. She alleges that she was to be paid “by the piece” for each load she transported, and she would be paid by the hour for “non-drive and rest time.” Plaintiff alleges she was not paid for all hours worked. “Specifically, she was not paid for all non-drive time. Defendants deducted an hour of non-drive time in calculating Plaintiff’s non-drive time.” (Complaint ¶ 8) Plaintiff also alleges she was not afforded “lawful meal and rest breaks free from duty. She alleges “Plaintiff’s wage statements do not evidence that Plaintiff was paid a separate hourly rate for rest break time and only account for a portion of the non-drive time.” (Complaint ¶ 9) Plaintiff alleges that after she gave her 72 hours notice, she was not paid for all wages owed to her on her last day of work or within 33 days of her last work day. (Complaint ¶ 11)

Defendant alleges that each of the causes of action fail to state facts sufficient to constitute a cause of action (CCP 430.10(e)) and that the first cause of action is also barred under “pre-emption under federal and state law” because the claims involve interstate commerce. Defendant contends that the Complaint fails to allege the necessary elements of each claim and that it fails to provide even a rudimentary background of factual allegations sufficient to support the causes of action.

Pleadings in California are construed liberally. The only issue that can be raised by a general demurrer is whether the facts, as pled, state a valid cause of action — not whether the allegations are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (Code Civ. Proc, §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (McKenney v. Purepac Pharm. Co. (2008) 162 Cal.App.4th 72, 79; Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) For the purpose of ruling on demurrers, courts read the allegations liberally and in context. (McKenney, supra,167 Cal.App.4th at 77; Taylor v. City of L.A. Dep’t of Water and Power (2006) 144 Cal.App.4th 1216,1228.) A judge must overrule a demurrer if the allegations of the complaint adequately state a cause of action under any legal theory. (Cellular Plus v. Superior Court (1979) 14 Cal.App.4th 1224,1231.) Thus, a complaint survives a demurrer if it states facts disclosing some right to relief. (Longshore v. County of Ventura (1979) 25 Cal.3d 14,22; Parada v. City of Colton (1994) 24 Cal.App.4th 356,

362.)

1st cause of action Failure to Pay Wages Labor Code section 510 etc.

The demurrer to the 1st cause of action is overruled.

Plaintiff has adequately alleged that she was not paid for all of her “non-drive” hours because the employer deducted one hour of non-drive time in each instance where she worked “non-drive time.” Although plaintiff also refers to “failure to pay overtime,” without any supporting facts, the defendant did not demur on the ground of uncertainty. A cause of action for failure to pay wages is stated based on the non-payment for one hour of non-drive time each time that it was deducted from her time. The Court rejects defendant’s preemption argument as it does not appear on the face of the Complaint that plaintiff was involved in interstate movement of goods.

2nd cause of action Waiting Time Penalties Labor Code section 203

The demurrer to the 2nd cause of action is overruled.

Defendant contends that this cause of action fails because plaintiff has not alleged any facts to support a failure to pay wages claim. The court finds that plaintiff sufficiently alleged that defendant did not pay her the wages owed for the one hour of non-drive time that was deducted from her non-drive time hours.

3rd cause of action Unfair Business Practices

The demurrer to the 3rd cause of action is overruled.

Plaintiff contends that defendant regularly, and as a matter of policy, underpaid employees. Defendant contends that the cause of action is “vague” and that it does not allege that plaintiff lost wages. However, plaintiff sufficiently alleges that the unfair business practice was to underpay employees, which she has alleged in the 1st cause of action, which is incorporated into this cause of action, as the practice of deducting one hour of “non-drive” time. Plaintiff has adequately pleaded that she lost the one hour of wages for each hour deducted, thereby satisfying the requirement of alleging that she lost money or property as a result of defendant’s conduct. Kwikset v Superior Court (2011) 51 Cal.App.4th 310, 317.

4th cause of action Violation of Labor Code section 226(a)

The demurrer to the 4th cause of action is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action.

Defendant contends that plaintiff has not alleged any facts to support her claim that the wage statements did not comply with Labor Code section 226(a). That section requires the wage statement to set forth the gross wages earned, hours worked, number of piece-rate unites earned, all deductions, and all applicable hourly rates.

Plaintiff alleges, with regard to her wage statement claim: “Plaintiff’s wage statements do not evidence that Plaintiff was paid a separate hourly rate for rest break time and only account for a portion of the non-drive time.”(Complaint ¶ 9)

This allegation is insufficiently specific because it does not explain how the wage statement failed to comply with Labor Code 226(a). The plaintiff does not allege what portion of the non-drive time was or was not accounted for. She has not alleged a factual basis for her allegation that was to be paid “a separate hourly rate for rest break time” compared to her rate for non-drive time. Plaintiff is required to allege specifically what sections of ¶ 226(a) were violated and how.

5th cause of action Failure to Provide Lawful Meal and Rest Breaks, Labor Code section 226.7, Wage Orders

The demurrer to the 5th cause of action is overruled.

Plaintiff alleges that she was not provided the 30 minute meal periods or 10 minute break periods in which she should be relieved of her duties. The allegations are sufficient for pleading purposes. (Complaint ¶¶ 33 and 34.)

Defendant contends that an employer is not required to schedule meal periods or to guarantee or ensure that the employee take a 30 minute off duty meal period, only that the employer’s duty is to provide a 30 minute off duty lunch period that is free from an employer’s control. Brinker Restaurant Corp v Superior Court (2012) 53 Cal.4th 1004, 1040-41. This argument raises factual issues that go outside of the pleadings, and the court must assume the truth of plaintiff’s allegations for purposes of ruling on the demurrer. She alleges that the employer did not provide a 30 minute off-duty lunch period that was free from the employer’s control.

Therefore, Plaintiff is given leave to amend to allege more specifically the violations of Labor Code section 226a. Plaintiff shall file and serve an Amended Complaint on or before October 8, 2018. Response to be filed and served within 30 days of service of the Amended Complaint, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.