Case Number: BC720286 Hearing Date: February 05, 2019 Dept: 26

Superior Court of California
County of Los Angeles
Department 26

AMANDA ALFARO DE ARRIOLA;

Plaintiff,

vs.

Workforce Enterprises WFE, inc.., et al;

Defendants.

Case No.: BC720286

Hearing Date: February 5, 2019

[TENTATIVE] order RE:

DEFENDANT EMployers HR LLC’S Demurrer TO THE complaint;

MOVING PARTY: Defendant Employers HR LLC (“EHR”)

RESPONDING PARTY: Plaintiff Amanda Alfaro De Arriola (“Plaintiff”)

The Court has considered the moving and opposing papers.

Background

On August 31, 2018, plaintiff Amanda Alfaro de Arriola (“Plaintiff”) filed the instant action against various defendants, including Employers HR LLC (“EHR”), alleging causes of action related to workplace discrimination, harassment and retaliation under Government Code sections 12940 et seq as well as various Labor Code violations.

The complaint alleges the following: Plaintiff was employed as a general laborer for the defendants from October 12, 2017 until February 17, 2018, when she was wrongfully terminated. (Complaint ¶ 23.) During her employment, Plaintiff was discriminated against, harassed by, and retaliated against by the defendants on the basis of her age and physical disability. (Id. ¶¶ 29-38.) In particular, while at work, Plaintiff suffered an injury to her arm. Plaintiff reported this injury to her supervisor, but the defendants failed to provide sufficient accommodations to Plaintiff and eventually terminated Plaintiff for exercising her right to request an accommodation. (Id.)

As to Labor Code violations, the complaint alleges that the defendants (i) failed to provide Plaintiff with proper paystubs, (ii) unilaterally expired Plaintiff’s unused vested vacation hours, (iii) failed to provide Plaintiff with paid sick leave and (iv) failed to provide Plaintiff wages when Plaintiff took time off from work that would have qualified as sick leave. (Id. ¶¶ 24-28.)

On January 4, 2019, EHR filed the instant demurrer. On January 23, 2019, Plaintiff filed an opposition.

LEGAL STANDARD

Meet and Confer Requirement

CCP Section 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (C.C.P. § 430.41, subd. (a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id. at subd. (a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (Id. at subd. (a).) A similar meet and confer process and declaration is required for motions to strike. (See CCP § 435.5.)

Demurrer Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “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.” (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at 747.)

A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

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DISCUSSION

Meet and Confer Requirement

The Court finds that EHR has complied with the meet and confer requirement. (See Decl. Elias.)

Employer-Employee Relationship

EHR contends that all of Plaintiff’s causes of action fail to state facts sufficient because EHR was not Plaintiff’s employer. Rather, EHR argues that it is a PEO, and only provided workers’ compensation insurance for the other defendants. As such, EHR argues that it has no control over employee staffing, supervising, hiring and firing. Nor is EHR responsible for the acts attributable to the other defendants.

In opposition, Plaintiff first contends that the demurrer should be overruled on the grounds that (1) the moving papers violate CRC Rule 3.1113(d), which requires that any brief which is more than 10 pages include a table of contents, and (2) the moving papers fail to provide sufficient citation to the authority used to support their arguments. Next, the opposition argues that not only does the complaint sufficiently allege that EHR was Plaintiff’s employer, but also the allegations in the complaint are sufficient to support each cause of action.

The Court notes that while the demurrer papers may be in violation of CRC Rule 3.1113(d) by failing to include a table of contents, the Court exercises its discretion to determine the demurrer on the merits.

The premise of EHR’s contention is that it cannot be liable to Plaintiff because it is not Plaintiff’s employer. Notably, “[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.” (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) EHR’s argument that it is a PEO and not Plaintiff’s employer is based solely on extrinsic matter that the Court may not consider in ruling on this demurrer. To the contrary, the complaint specifically alleges that EHR was Plaintiff’s employer. (Complaint ¶¶ 8. 11.) For demurrer purposes, the Court must assume such an allegation to be true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Therefore, EHR’s contention that it was not Plaintiff’s employer is without basis for the instant demurrer. EHR does not challenge the pleadings on any other ground.

Therefore, the demurrer is overruled in entirety.

Conclusion and ORDER

EHR’s demurrer is overruled in entirety. EHR is ordered to file an answer within ten days of this order.

The Moving party is to give notice of this order and file proof of service of such.

DATED: February 5, 2019 ___________________________

Elaine Lu

Judge of the Superior Court