17-CIV-02950 FRANCISCO CARRASCAL, ET AL. VS. AVI-BEN ABRAHAM, JR.

FRANCISCO CARRASCAL AVI-BEN ABRAHAM
JONATHAN D. MATTHEWS ANDREW F. PIERCE

AVI-BEN ABRAHAM, JR.’S DEMURRER TO FOURTH AMENDED COMPLAINT TENTATIVE RULING:

The Demurrer of Defendant Avi-Ben Abraham Jr. (“Defendant”) to the Fourth Amended Complaint of Plaintiffs Francisco Carrascal, Rhonda Burton and Thaweesap Uttho (“Plaintiffs”) is ruled on as follows:

(1) Although labeled as a Fourth Amended Complaint, it appears that this is actually the Second Amended Complaint. Nevertheless, since the parties refer to it as the Fourth Amended Complaint, the court likewise refers to this pleading as the Fourth Amended Complaint (“FOAC”).

(2) Defendant requests judicial notice of the following documents filed in this action: (a) the FOAC; (b) the Order on the Demurrer to Complaint; (c) the Order on the Demurrer to the First Amended Complaint; and (d) the First Amended Complaint. This request is GRANTED. (See Evid. Code § 452(d).)

(3) Additionally, the court also takes judicial notice of the following documents that are part of the court’s records: (a) Plaintiffs’ Complaint filed in the U.S. District Court, Case No. 16-cv03284-JCS on June 14, 2016 (Exhibit B to Defendant’s Request for Judicial Notice on December 7, 2017, previously filed in support of Defendant’s Demurrer to Complaint; (b) Plaintiffs’ Amended Complaint filed in the U.S. District Court, Case No. 16-cv-03284-JCS on February 7, 2017, (Exhibit F to Defendant’s Request for Judicial Notice filed on December 7, 2017, previously filed in support of Defendant’s Demurrer to Complaint); (c) the court’s August 2, 2019 Minute Order Granting-in-Part Plaintiffs’ Motion for Leave to File Amended Complaint (“August 2, 2019 Minute Order”); and (d) the court’s Order filed August 30, 2019 Granting Plaintiffs’ Motion for Leave to Amend Complaint (“August 30, 2019 Order”). (See Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752 [court may take judicial notice on its own volition].) These documents, of which the Court is taking judicial notice, are relevant based upon the August 2, 2019 Minute Order, which includes the following paragraph:

The Court acknowledges Defendants’ contention that Plaintiffs’ purported claims for (a) “wage theft” and (b) IIED are nearly identical to those same claims asserted in the FAC, to which the Court already sustained a Demurrer (with leave to amend) on grounds they appear to be time-barred. Defendants argue Plaintiffs previously admitted that their work for Defendants ended in June 2014, and did not file this case until 7-3-17, and thus the claims are barred by the three-year statute. Defendants concede, however, that Plaintiffs asserted virtually identical claims in their federal court complaint, filed 6-14-16, which appears to have been less than two years after the work ended in June 2014. Defendants have never addressed potential application of the “relations-back” or tolling doctrines to the federal court complaint. See Bjorndal v. Superior Court, 211 Cal.App.4th 1100, 1108 (1st Dist. 2012) (“the filing of a federal lawsuit equitably tolls the statute of limitations for filing state claims based on the same set of facts.”); Addison v. State of California, 21 Cal.3d 313, 319 (1978) (same). At the demurrer stage, the running of the statute of limitations must appear “clearly and affirmatively” from the face of the complaint, or from matters subject to judicial notice. It is not enough that the complaint might be time-barred. Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42. (emphasis added).

(See August 2, 2019 Minute Order.)

Accordingly, the Court rules as follows:

The Demurrer to the First Cause of Action for Wage Theft and Stolen Wages is OVERRULED. Defendant asserts that this claim is barred by the three-year statute of limitations under Code of Civil Procedure 338 because Plaintiffs ceased working for Defendant in June 2014, and did not file this action until July 3, 2017. After taking judicial notice of Plaintiffs’ federal Complaint and federal Amended Complaint though, the Court finds that although the federal Complaint did not include this specific claim, Plaintiffs sought to recover for lost wages based on the same set of facts. As such, “the filing of a federal lawsuit equitably tolls the statute of limitations for filing state claims based on the same set of facts.” (Bjorndal v. Superior Court (2012) 211 Cal.App.4th 1100, 1108.) Therefore, Defendant has not shown that this claim is time barred.

The Demurrer to the Second Cause of Action for Intentional Infliction of Emotional Distress (“IIED”) is also OVERRULED. Defendant asserts that this claim is also barred by the two-year statute of limitations under Code of Civil Procedure section 335.1 because Plaintiffs ceased working for Defendants in June 2014, and did not file this action until July 3, 2017. However, Plaintiffs’ federal Complaint included a claim for IIED, and the federal Complaint and federal Amended Complaint allege the same set of facts in support of the IIED claim alleged in this action. As such, Defendant has not addressed why the statute of limitations was not tolled, and therefore fails to show this claim is time barred.

(7) The Demurrer to the Third Cause of Action for Civil and Constitutional Rights Violations is SUSTAINED WITHOUT LEAVE TO AMEND based on failure to allege facts sufficient to support this claim and uncertainty. Plaintiffs appear to be alleging racial discrimination; however, the court previously sustained without leave to amend Plaintiff’s claim for racial discrimination based on failure to establish exhaustion of administrative remedies.

(8) Defendant is to file and serve an Answer to the FOAC by February 11, 2020.