Case Number: KC063973 Hearing Date: June 10, 2014 Dept: J

Re: Francisco A. Villatoro v. Chris Casamassa, et al. (KC063973)

(1) MOTION FOR RELIEF FROM DISMISSAL; (2) MOTION FOR LEAVE TO AMEND PLEADING

Moving Party: Plaintiff Francisco A. Villatoro

Respondent: Defendant Red Dragon Karate, Inc.

Plaintiff alleges that Defendants failed to pay required overtime and wages. Plaintiff commenced the action on 6/1/12. Plaintiff’s Fourth Amended Complaint was filed on 12/26/13 and asserted causes of action for:

1. Failure to Pay Overtime
2. Failure to Pay Minimum Wage
3. Meal and Rest Break Violations
4. Violation of Bus & Prof C § 17200

On March 4, 2014 a hearing was held on Defendant’s demurrer and motion to strike portions of the Fourth Amended Complaint. No opposition was filed to either the demurrer or the motion to strike. Nonetheless, on February 26, 2014 the court posted a tentative ruling on the court’s public website, which addressed the demurrer and motion to strike on the merits, as follows:

“(1) MOTION TO STRIKE:

Defendant Red Dragon Karate, Inc. (“Red Dragon” or “Defendant”) moves to strike the following portions of the Fourth Amended Complaint (“FAC”) by Plaintiff Francisco Villatoro (“Plaintiff”): (1) the third and fourth causes of action; (2) allegations referencing California Code of Regulations Title 8, 11090; and (3) portions of Exhibit “A” which refer to the time period prior to June 1, 2009.

THIRD AND FOURTH CAUSES OF ACTION:

Generally, where a court grants leave to amend after sustaining a demurrer, the scope of permissible amendment is limited to the cause[s] of action to which the demurrer has been sustained: “[S]uch granting of leave to amend must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained.” (People v. Clausen (1967) 248 Cal.App.2d 770, 785-786; see Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023—plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so.)

On December 16, 2013, the court sustained Defendant’s demurrer to Plaintiff’s Third Amended Complaint (“TAC”) with leave to amend. (See December 16, 2013 Minute Order.) However, the TAC did not assert causes of action for Meal and Rest Break Violations and Violation of Bus & Prof C § 17200, and Plaintiff did not seek leave before adding these new causes of action to the TAC. Thus, the motion to strike the third and fourth causes of action is granted.

OTHER PORTIONS OF THE FAC:

As discussed below, the court’s tentative decision is to sustain Defendant’s demurrer to the remaining first and second causes of action. Thus, motion to strike other portions of the FAC is deemed moot.

(2) DEMURRER:

Defendant demurs to the FAC on the grounds it fails to state claim for relief and that it is uncertain.

FIRST CAUSE OF ACTION FOR FAILURE TO PAY OVERTIME COMPENSATION AND SECOND CAUSE OF ACTION FOR FAILURE TO PAY MINIMUM WAGE:

An employee receiving less than the legal minimum wage or legal overtime compensation “is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” (Lab.C. § 1194.) If an employer “willfully” fails to pay wages when due to an employee who is discharged or quits, the employee’s wages continue at the same rate until paid or until suit is filed, but not for more than 30 days. (Lab.C. § 203; Mamika v. Barca (1998) 68 Cal.App.4th 487, 492.)

A complaint in a statutory action for unpaid wages 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 terminated and unless it alleges facts from which the amount of the claimed penalty can be ascertained. (Oppenheimer v. Moebius (1957) 151 Cal.App.2d 818, 819.)

The first and second causes of action for failure to pay overtime and minimum wage and for waiting time penalties fail to state facts from which the amount of the claimed penalty can be ascertained. Specifically, they fail to state the amount of wages accrued and unpaid at the time the employment relationship terminated or facts from which the amount of claimed penalty may be ascertained. While the FAC alleges that “Plaintiff has been damaged in an amount as stated in Exhibit A,” (FAC ¶ 9), the amount of wages accrued and unpaid is not specified and cannot be ascertained from Exhibit A. Thus, the demurrers to the first and causes of action are sustained.

THIRD CAUSE OF ACTION FOR MEAL AND REST BREAK VIOLATIONS AND FOURTH CAUSE OF ACTION FOR VIOLATION OF BUS & PROF C § 17200:

As discussed above, the court’s tentative decision is to grant Defendant’s motion to strike the third and fourth causes of action. Thus, the demurrers to the third and fourth causes of action are deemed moot.

The grounds for sustaining the demurrer to the First and Second Causes of Action are the same that the court found to be defective in ruling on the demurrer to the Third Amended Complaint. The court’s tentative decision, therefore, is to deny leave to amend at this point.”

Despite the posting of the tentative ruling six days prior to the hearing, counsel for Plaintiff failed to appear at the hearing and instead sent in an “appearance attorney” who was unfamiliar with the facts or procedural background of the case. At the conclusion of the hearing, the court adopted the tentative ruling as its order, denied leave to file a fifth amended complaint, and dismissed the action with prejudice.

(1) MOTION FOR RELIEF FROM DISMISSAL:

Plaintiff Francisco A. Villatoro now moves for relief from the dismissal pursuant to CCP §473(b). Plaintiff asserts that his attorney, John F. Wolcott, did not file an opposition to the demurrer to the Fourth Amended Complaint because, “I felt that in the Fourth Amended Complaint the amount of wages accrued and unpaid stated facts from which the amount could be ascertained, and hence I thought the Fourth Amended Complaint would stand judicial muster, and I did not file an Opposition. I was mistaken.” (Decl. of John F. Wolcott, ¶ 3.) Attorney Wolcott further explains that he sent in a contract attorney on his behalf because he had another appearance in another court.

Where the court finds that a default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect, the court may deny a motion for relief. (CCP § 473(b).) Here, the court finds that the dismissal did not result from the attorney’s mistake inadvertence, surprise or neglect, but rather from a decision not to oppose the demurrer and motion to strike after considering whether it would be necessary. Further, the grounds for the court sustaining the demurrer were the exact same grounds expressed when the demurrer to the Third Amended Complaint was sustained. Including the original Complaint, Plaintiff was afforded five opportunities to plead an adequate cause of action and failed to do so. As the court addressed the demurrer on the merits, and it was addressed to the Fourth Amended Complaint, there would not have been a different result even if a timely opposition had been filed and counsel for Plaintiff personally appeared to argue the matters.

The motion is denied.

(2) MOTION FOR LEAVE TO AMEND PLEADING:

In light of the foregoing ruling, the motion for leave to amend is also denied.