2012-00131531-CU-WT

Cindy Powell vs. Sierra View Eldercare Inc

Nature of Proceeding: Hearing on Demurrer to First Amended Complaint (Angels Sunrise Villa)

Filed By: Ochrach, Jeffrey H.

The demurrer of Defendants Alpesh Kumar and Angels Sunrise Villa-Sacramento, LLC
(collectively “Defendants”) to Plaintiff’s first amended complaint (“FAC”) is
OVERRULED. This is an action arising out of Plaintiff Cindy Powell’s (“Plaintiff”) employment. Plaintiff
alleges that Defendant Elder Creek Residential Care (“Elder Creek”) was her
employer. She also alleges that Defendants were her joint employers. Plaintiff alleges
several causes of action against Defendants.

Previously, the court sustained Defendants’ demurrer to the original complaint
because Plaintiff had not sufficiently alleged that Defendants jointly employed her by
virtue of a “joint enterprise” with Elder Creek. (See Compl., ¶ 10.) The court
concluded that, although Plaintiff relied on the notion of a joint enterprise, she had
failed to allege the elements of a joint enterprise. The court granted leave to amend.

In the FAC, Plaintiff has omitted any reference to a joint enterprise and instead alleges
that Defendants are her joint employers. She alleges facts to support the joint-
employer allegation. Defendants, however, appear to have misread the FAC and
argue in their moving papers that the FAC is predicated upon conclusory allegations of
a joint enterprise. Defendants thus demur to all causes of action on the grounds that
Plaintiff has failed to allege a joint enterprise and, therefore, has failed to state any
cause of action against them.

Because Defendants’ demurrer is based exclusively on the asserted insufficiency of
Plaintiff’s allegation of a joint enterprise, and because the FAC does not actually
advance a theory of joint enterprise, Defendants’ arguments do not persuade the
court, and the demurrer is overruled.

In overruling the demurrer, the court does not consider Defendants’ arguments, raised
for the first time in the reply, that (1) Plaintiff’s allegations do not state Defendants’ joint
employment with Elder Creek and (2) Plaintiff’s current allegations impermissibly
contradict allegations in the original complaint. Defendants were required to raise
these arguments in the moving papers but failed to do so because they misread the
FAC. Plaintiff has not had a fair opportunity to respond to the new arguments in the
reply, and thus the court disregards them.

Defendants are directed to file their answer(s) no later than November 25, 2013.

Counsel are advised that the Sacramento County Superior Court’s Local Rules were
revised and renumbered as of 01/01/13. When giving notice of the court’s tentative
ruling system, counsel should cite Local Rule 1.06, not former Local Rule 3.04.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.
2012-00131531-CU-WT

Cindy Powell vs. Sierra View Eldercare Inc

Nature of Proceeding: Hearing on Demurrer to First Amended Complaint (Mandeep Cheema)

Filed By: Rymek, Robert C.

Defendants Mandeep Cheema and Chandan Cheema’s (“Defendants”) demurrer to
Plaintiff’s first amended complaint is ruled upon as follows. This is an action arising out of Plaintiff’s employment and eventual termination with
defendant Elder Creek Residential Care. Plaintiff alleges that following causes of
action against Defendants: (1)failure to pay wages, (2) failure to reimburse employee,
(3) failure to pay overtime, (4) retaliation in violation of labor code, (5) retaliation in
violation of health and safety code, (6) failure to provide reasonable accommodation,
(7) retaliation in violation of FEHA, (8) wrongful termination, (9) and IIED.

Defendants demur to all causes of action on the grounds that under California law,
individual non-employer defendants are not generally liable for employment
discrimination or retaliation as a matter of law and that Plaintiff’s alter-ego allegations
are insufficient to overcome this preclusion.

Here, Plaintiff does not dispute that individual non-employer defendants are not
generally liable for employment discrimination or retaliation. Plaintiff argues, however,
that her alter ego allegations are sufficient.

Plaintiff alleges that Defendants are the sole shareholders of Elder Creek. (FAC, para
3.) She alleges that there is “such a unity of interest between [Defendants] and Elder
Creek that the individuality and separateness of the individuals from the corporation
has ceased to exist.” (Id. para. 7.) She further alleges that the Defendants’ business
affairs are “so mixed and intermingled” with Elder Creek that they cannot be
reasonably segregated. (Id.) She alleges that the recognition of the separate
existence of these defendants “would not promote justice, in that it would permit
Defendants to insulate themselves from liability to Plaintiff.” (Id.) She further alleges
that Elder Creek is a mere shell or conduit for the personal or business affairs of
Defendants and was Defendants’ alter ego. (Id. para. 8.) She alleges that disregard
for the corporate entity is necessary to “avoid fraud and injustice” to her. (Id. para. 8.)

“In California, two conditions must be met before the alter ego doctrine will be invoked.
First, there must be such a unity of interest and ownership between the corporation
and its equitable owner that the separate personalities of the corporation and the
shareholder do not in reality exist. Second, there must be an inequitable result if the
acts in question are treated as those of the corporation alone.” (Sonora Diamond
Corp. v. Superior Court (2000) 83 Cal. App. 4th 523, 538.)

The Court disagrees with Defendants that Plaintiff’s allegations are insufficient to
satisfy the second prong of the alter ego doctrine (inequitable result). At this stage of
the proceedings, Plaintiff’s allegations are sufficient.

Accordingly, the demurrer is OVERRULED.

Defendants are directed to file their answer(s) no later than November 25, 2013.

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

Although the notice of motion provided notice of the Court’s tentative ruling system as
required by Local Rule 1.06, the notice does not comply with the current rule. Moving
counsel is directed to review the Local Rules, effective January 1, 2013.