Case Number: EC060746    Hearing Date: April 25, 2014    Dept: A

Hernandez v Hydrex Termite & Pest Control

DEMURRER & MOTION TO STRIKE

Calendar: 6
Case No: EC060746
Date: 4/25/14

MP: Defendant, Hydrex Pest Control Co. Inc. (DOE Defendant 1)
RP: Plaintiff, Guillermo Hernandez

ALLEGATIONS IN COMPLAINT:
The Plaintiff was an employee of the Defendants. The Defendants breached applicable Labor Codes by failing to pay overtime, by failing to provide meal periods, by failing to provide meal breaks, and by failing to provide correct pay stubs. In addition, the Defendants breached a contract of employment and retaliated against the Plaintiff. Finally, the breach of the Labor Codes was also an unfair business practice.

CAUSES OF ACTION IN COMPLAINT:
1) Failure to Pay Overtime
2) Failure to Provide Meal Periods
3) Failure to Provide Rest Breaks
4) Failure to Provide Correct or Itemized Pay Stubs
5) Breach of Contract
6) Retaliation
7) Unfair Competition

RELIEF REQUESTED:
1. Demurrer to each cause of action.
2. Strike requests for punitive damages.

DISCUSSION:
This hearing concerns the demurrer and motion to strike of the Defendant, Hydrex Pest Control Co., Inc. The Plaintiff named the Defendant as DOE Defendant 1 in an amendment filed on December 3, 2013.

1. Demurrer Based on Misjoinder
The Defendant argues that the Plaintiff cannot bring any valid claim against the Defendant because it never employed the Plaintiff. The Defendant argues that it is the franchisor and that it has no involvement in the Plaintiff’s employment. CCP section 430.10(d) authorizes the Court to sustain a demurrer when there is a defect or misjoinder of parties.
However, the Defendant’s argument is based on facts that are not pleaded in the Complaint, e.g., that the Defendant is a franchisor who had no involvement in the Plaintiff’s employment. Instead, the Plaintiff alleged in paragraph 2 of his Complaint that he was employed by the Defendants. The Plaintiff’s allegations are assumed true and the Plaintiff’s ability to prove the allegation is of no concern for the purposes of ruling on the demurrer. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214. Accordingly, the Court assumes the truth of the Plaintiff’s allegation that the Defendant employed the Plaintiff.
Therefore, there are no grounds to sustain a demurrer to the Complaint based on the Defendant’s argument that relies on evidence extrinsic to the Complaint.

2. Demurrer Based on Uncertainty
The Defendant argues that the pleadings are uncertain because it lacks “factual” pleading. For example, the Defendant argues that the dates of events are not pleaded in the complaint.
Under CCP section 430.10(f), there are grounds for a demurrer when the pleadings are uncertain. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. Khoury v. Maly’s of California Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty will be sustained only when the complaint is so bad that the defendant cannot reasonably respond because the defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against the defendant. Id.
A review of the Complaint reveals that the Defendant can reasonably respond to it. The Plaintiff has identified each cause of action and identified the Defendants against whom each cause of action is directed. The causes of action are based on standard employment claims, e.g., failure to pay overtime. The Defendant can reasonably determine the nature of the claims and whether to admit or deny the issues, e.g., admit or deny that the Plaintiff was an employee.
Finally, dates are not essential to a cause of action. Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25. Accordingly, the Plaintiff need not plead the dates for any of the conduct at issue. If the Defendant seeks to raise the statute of limitations, it may raise this defense in its answer.
Therefore, the pleadings are not so bad that there are grounds to sustain a demurrer based on uncertainty.

3. Demurrer to First Cause of Action for Failure to Pay Overtime
The Defendant does not argues that the Plaintiff did not plead that the Defendant failed to pay him overtime or when the Plaintiff was required to work through lunch, more than 8 hours in a day, or more than 5 days in a week. A review of the Plaintiff’s first cause of action reveals that the Plaintiff alleges in paragraphs 15 and 16 that he was entitled to, but not paid for overtime compensation. As noted above, this is assumed true for the purposes of the demurrer and the Plaintiff’s ability to prove the allegation is of no concern on the demurrer. Since the Plaintiff has pleaded that the Defendant did not pay him for overtime to which he was entitled, the Defendant has failed to identify grounds for a demurrer.
Therefore, the Court will overrule the demurrer to the first cause of action.

4. Demurrers to Second Cause of Action for Failure to Provide or Enforce Meal Breaks and Third Cause of Action for Failure to Provide Rest Breaks
The Defendant argue that the Plaintiff does not plead any facts identifying when or how the Defendant failed to provide breaks, how many breaks, Plaintiff’s work schedule, or whether the Plaintiff worked sufficient hours to be entitled to meal or rest breaks. The Plaintiff alleges in paragraphs 21, 22, 27, and 28 that he was a non-exempt employee who was entitled to mandatory meal and rest periods. In paragraphs 23, 24, 29, and 30 the Plaintiff alleges that the Defendant had a policy and practice that denied the Plaintiff mandatory meal and rest periods to which he was entitled. These allegations are sufficient to demonstrate that the Defendant failed to provide meal and rest breaks to the Plaintiff.
Therefore, the Court will overrule the demurrers to the second and third causes of action.

5. Demurrer to Fourth Cause of Action for Failure to Provide Pay Stubs
The Defendant argues that it had no duty to provide pay stubs because it had no responsibility to provide pay stubs.
Under Labor Code section 226, every employer shall provide an accurate itemized statement in writing regarding gross wages, total hours worked, deductions, net wages, dates of the time period for which the wages are paid, semimonthly or at the time of each
payment of wages, furnish each of his or her employees, the hourly rate, and the name and address of the employer when wages are paid or semimonthly. The Plaintiff alleges in paragraph 34 that the Defendant, as the employer, had a duty to comply with the requirements of Labor Code section 226. In paragraph 38, the Plaintiff alleges that the Defendants are subject to the statutory penalty of $50 for the first violation and $100 for subsequent violations to the maximum amount of $4,000. These allegations are sufficient to plead that the Defendant had a duty under Labor Code section 226 to provide pay stubs to the Plaintiff and that the damages will be the amount authorized under the statute for the violation of the statutory requirement to provide the pay stubs.
Therefore, the Court will overrule the demurrer to the fourth cause of action.

6. Demurrer to Fifth Cause of Action for Breach of Contract
The Defendant argues that the Plaintiff did not allege the terms of the contract or that the Defendant was a party. The essential elements of a cause of action for breach of contract are the following:

1) the contract,
2) plaintiff’s performance or excuse for nonperformance,
3) defendant’s breach, and
4) the resulting damages to plaintiff.
Reichert v. General Ins. Co. (1968) 68 Cal. 2d 822, 830.

In an action based on a contract, a plaintiff may plead the legal effect of the contract rather than its precise language. Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal. 4th 189, 198-199.
The Plaintiff alleges in paragraph 41 that the Plaintiff accepted the Defendant’s offer to pay wages during the Plaintiff’s employment. In paragraph 43, the Plaintiff alleges that the Defendants breached the contract by not paying the Plaintiff the monetary and non-monetary compensation that he was entitled under the contract. The Plaintiff used the plural term “Defendants” to indicate that all the Defendants were parties to the employment contract with the Plaintiff.
These allegations identify the contract as an agreement under which the Plaintiff provided services as an employee in return for wages. Further, these allegations identify the parties as including the Plaintiff and the Defendant. These allegations are sufficient to plead the legal effect of the contract of employment between the Plaintiff and the Defendant.
Therefore, the Court will overrule the demurrer to the fifth cause of action.

7. Demurrer to Sixth Cause of Action for Retaliation
The Defendant argues that the Plaintiff has not identified the retaliatory or adverse employment conduct. To plead a claim for retaliation, the plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer’s action. Flait v. North American Watch Corp. (1992) 3 Cal. App. 4th 467, 476.
A review of the Plaintiff’s sixth cause of action reveals no allegation that identifies the protected activity for which he was allegedly subject to adverse employment action. The Plaintiff alleges in paragraph 47 that he was denied basic rights and benefits. However, there are no allegations that the Defendant denied this rights and benefits in order to retaliate against the Plaintiff after the Plaintiff had engaged in a protected activity. This is insufficient to plead the cause of action.
In his opposition papers, the Plaintiff argues that case law authorizes a claim for retaliation when an employer terminates an employee who asserts a right protected by public policy. However, the Plaintiff does not direct the Court to any paragraph in which the Plaintiff alleges that he asserted any right protected by public policy.

Therefore, the Court will sustain the demurrer to the sixth cause of action. Since it is reasonably possible for the Plaintiff to correct this defect by adding allegations that identify the protected activity, the Court will grant leave to amend.

8. Demurrer to Seventh Cause of Action for Unfair Competition
The Defendant argues that the Plaintiff has not pleaded any claim for unfair competition. However, California law holds that any business act or practice that violates the Labor Code through failure to pay wages is, by definition, an unfair business
practice. Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178-
79. As noted above, the Plaintiff has pleaded in his first, second, and third causes of action that the Defendant violated the Labor Code by failing to pay him overtime wages, by failing to provide rest breaks, by failing to provide meal breaks, and by failing to provide pay stubs. These claims are sufficient to plead an unfair business practice because they are business practices that violate the Labor Code through the failure to provide wages or benefits.
Further, the Plaintiff has suffered injury in fact as a result of this unfair business practice. The Court in Cortez found that when an employer violates Labor laws by failing to pay wages, the employer has acquired the money to be paid by means of an unlawful practice that constitutes unfair competition as defined by section 17200. Id. The employee is a “person in interest” to whom that money may be restored. Id. Further, orders for payment of wages unlawfully withheld from an employee are also a restitutionary remedy authorized by section 17203. Id. This indicates that the Plaintiff has pleaded facts demonstrating that he suffered an injury and fact because he lost money as a result of the Defendant’s alleged unfair competition.
Therefore, the Court will overrule the demurrer to the seventh cause of action.

9. Motion to Strike
The Defendant requested that the Court strike allegations that support a claim for punitive damages against the Defendant. On April 14, 2014, the Plaintiff filed a notice of non-opposition to the Defendant’s motion to strike.
Therefore, the Court will grant the Defendant’s motion to strike without leave to amend.

RULING:
Overrule demurrers to first, second, third, fourth, fifth, and seventh causes of action.
Sustain demurrer to sixth cause of action with leave to amend.
Grant motion to strike without leave to amend.