Case Number: BC533263    Hearing Date: August 05, 2014    Dept: 56

Case Name: Pamal v. East Coast Foods
Case No.: BC533263
Matter: Demurrer and Motion to Strike

Tentative Ruling: Demurrer is overruled. Motion to strike is denied.

Plaintiff Enma Pamal filed this employment action against East Coast Foods Inc. and David Davidson, alleging 15 causes of action. Defendants demur to the 4th through 15th COAs, which allege (4) FEHA retaliation, (5) wrongful termination, (6) intentional infliction of emotional distress, (7) failure to provide minimum wage, (8) liquidated damages for violation of minimum wage, (9) failure to provide overtime and double overtime, (10) conversion, (11) failure to provide accurate wage statements, (12) failure to allow rest periods, (13) failure to pay all wages upon separation, (14) waiting time penalties, and (15) unfair business practices. Defendants also move to strike.

Retaliation and Wrongful Termination –
Defendants demur to the 4th and 5th COAs, arguing that Plaintiff fails to allege facts to support a causal link between protected activity and Plaintiff’s termination. This ground has no merit. Plaintiff alleges that she made repeated complaints concerning sexual harassment and that she was terminated in part because of these complaints (¶¶ 16-17). This is sufficient at the pleading stage.

Defendants also argue that it is unclear what type of FEHA claim is asserted (race or national origin). This also has no merit. Plaintiff has asserted distinct claims and has alleged facts to support the claims. Notably, Defendants do not demur to any other FEHA claims except the 4th COA.

Intentional Infliction of Emotional Distress –
Defendants demur to the 6th COA on the ground that Plaintiff fails to allege facts to support intent or reckless disregard. Plaintiff alleges that Davidson made unwanted sexual comments, advances, touching, and other conduct (¶¶ 10-15). This is sufficient.

Davidson also argues that Plaintiff only asserts an underlying discrimination claim, which is insufficient to support supervisor liability. This mischaracterizes the 6th COA, which is based only on sexual harassment by Davidson (¶ 65).

Wage and Hour Claims –
Defendants argue that Plaintiff fails to allege the amount of wages owed, citing Oppenheimer v. Robinson (1957) 150 Cal.App.2d 420, 423. That case is inapposite; it concerned the determination of jurisdictional limits based upon the allegations of the complaint and does not establish general pleading requirements for wage cases. Plaintiff has alleged facts to support her wage and hour claims, and Defendants’ argument that a plaintiff must plead a specific amount of wages is contrary to modern pleading requirements. See Alch v. Superior Court (2004) 122 Cal.App.4th 339, 382.

As to the 11th COA, Defendants argue that Plaintiff fails to allege a knowing and intentional failure and injury by Plaintiff. Plaintiff alleges that her wage statements reflected fraudulent recording of tips and improper deduction of tips (¶ 23). At the pleading stage, this is sufficient.

As to the 10th COA, Defendants argue that LC §351 does not create a private cause of action. While this is a correct statement of the law, the 10th COA does not allege a statutory claim. It alleges a common law conversion claim, which is appropriate. See Lu v. Hawaiian Gardens Casino (2010) 50 Cal.4th 592, 603-4.

Motion to Strike –
Defendants move to strike Plaintiff’s claim for punitive damages on the ground that Plaintiff fails to allege facts to support malice or oppression.

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. In ruling on a motion to strike, courts do not read allegations in isolation.” Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.

Plaintiff’s allegations are sufficient at the pleading stage. Punitive damages are available in FEHA actions, and Plaintiff has sufficiently alleged facts to support malice or oppression.

Ruling –
The demurrer is overruled, and the motion to strike is denied. Defendants shall answer within 10 days.