18-CIV-00715 SEAN BUGAYONG VS. CALCARE HOME HEALTH CARE & HOSPICE, INC., ET AL.

SEAN BUGAYONG CALCARE HOME HEALTH CARE & HOSPICE, INC.
RHONDA D. KRAEBER JEFFERY M. HUBINS

DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT BY CALCARE HOME HEALTH CARE & HOSPICE, INC. AND TABASUM DURANI TENTATIVE RULING:

The Demurrer of Defendants CalCare Home Health Care & Hospice, Inc. (“CalCare”) and Tabasum Durrani (“Durrani”) (also collectively “Defendants”) to the First Amended Complaint (“FAC”) of Plaintiff Sean Bugayong (“Plaintiff”) is ruled on as follows:

Demurrer to the First Cause of Action for Fraud by CalCare is SUSTAINED WITH LEAVE TO AMEND for Plaintiff to allege facts sufficient to support this claim. Fraud against a corporation requires pleading facts that allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614.) There are however, “certain exceptions which mitigate the rigor of the rule requiring specific pleading of fraud.” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 838, citing Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216-217.) Less specificity is required when it appears from the nature of the allegations that defendant must necessarily possess full information concerning the facts of the controversy. (Id.)

Plaintiff’s fraud claim is premised on allegations that: (1) Defendants knowingly and purposefully collected employee wage withholdings and did not remit them to the state and federal authorities, and (2) Defendants knowingly and purposefully issued to Plaintiff a false Form 1099.

CalCare argues that issuance of a Form 1099 is privileged under Civil Code section 47(b), and thus Plaintiff’s claim fails. However, regardless of whether this argument has merit, CalCare fails to establish that the remainder of Plaintiff’s allegations concerning withholding taxes from Plaintiff’s paycheck and failing to remit them is privileged as well. “A demurrer does not lie to a portion of a cause of action.” (PH, II, Inc. v. Sup. Ct. (1995) 33 Cal.App.4th 1680, 1682.) Therefore, the demurrer on this ground is overruled.

Nevertheless, Plaintiff fails to allege facts sufficient to support this claim. While less specificity may be required since CalCare would appear to possess full information concerning the facts surrounding the withholding taxes from the payroll check and issuance of the Form 1099, Plaintiff must at least allege facts to furnish CalCare with notice of certain definite charges which can be intelligently met. (See Tenet Healthsystem Desert, Inc., supra, 245 Cal.App.4th at 838.) For instance, Plaintiff has not even alleged facts as to when or what paychecks withheld payroll taxes that CalCare failed to remit to state and federal authorities.

Demurrer to the First Cause of Action for Fraud by Durrani is SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this cause of action against Durrani. Plaintiff claims that Durrani is liable for this claim as an agent of CalCare, but has not provided any authority in opposition to support this argument.

Demurrer to the Second Cause of Action for Wrongful Termination in Violation of Public Policy and to the Third Cause of Action for Retaliation by CalCare is SUSTAINED WITH LEAVE TO AMEND for Plaintiff to identify the state or federal statute, rule or regulation that the claimed irregular accounting practices violated, or that Plaintiff believed to be violated. (See Love v. Motion Industries, Inc. (N.D. Cal. 2004) 309 F.Supp.2d 1128, 1134; Carter v. Escondido Union High School Dist. (2007) 148 Cal.App.4th 922, 933-935.) The remaining arguments to these causes of action that Plaintiff fails to allege the specific government agency, that Plaintiff has not alleged facts that CalCare knew of the irregular accounting practices, that Plaintiff has not alleged an adverse employment action, and that the alleged retaliatory acts are privileged, are OVERRULED.

Demurrer to the Second Cause of Action for Wrongful Termination in Violation of Public Policy and to the Third Cause of Action for Retaliation by Durrani is SUSTAINED WITHOUT LEAVE TO AMEND. An individual cannot be held personally liable for a retaliation claim under Labor Code section 1102.5. (See United States ex rel. Lupo v. Quality Assur. Servs. (S.D. Cal. 2017) 242 F.Supp.3d 1020, 1030.) Since Plaintiff’s claim for wrongful termination in violation of public policy is based on the alleged retaliation, this claim against Durrani also fails.

Demurrer to the Fourth Cause of Action for Failure to Pay Wages Earned against Defendants is SUSTAINED WITH LEAVE TO AMEND based on failure to allege facts sufficient to support this claim. In a statutory action for unpaid wages, a complaint does not state a cause of action against the employer unless it alleges the amount of wages accrued and unpaid at the time the employment relationship was terminated. (Oppenheimer v. Moebius (1957) 151 Cal.App.2d 818, 819–820, citing Oppenheimer v. Robinson, 150 Cal.App.2d 420.) In the FAC, Plaintiff fails to allege the amount of wages accrued and unpaid.

To the extent Defendants raise a separate argument as to Durrani’s individual liability for the Fourth Cause of Action the court does not reach this argument because Defendants did not raise this ground for demurrer in their moving papers, but only in reply.

Plaintiff is to file and serve a Second Amended Complaint on or before February 21, 2019.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.