Case Name: Khordians v. Salman, Inc., et al.
Case No.: 1-14-CV-259814

Defendants Salman, Inc. dba Chevron Auto Services and Youbert Salman Nazlou (collectively, “Defendants”) demur to the complaint (“Complaint”) filed by plaintiff Ararat Khordians (“Plaintiff”).

This is an action for various Labor Code violations and wrongful termination. According to the allegations of the Complaint, Plaintiff was formerly employed as a mechanic by Defendants from April 16, 2010 to February 11, 2013. (Complaint at ¶¶ 13, 23.) During that time, he received a flat monthly salary of $2,000 no matter how many hours he worked. Plaintiff regularly worked hours which entitled him to overtime wages under the applicable provisions of the Labor Code, however, he was not paid these amounts. (Id. at ¶¶ 24, 25.) Additionally, this salary arrangement resulted in Plaintiff not earning the minimum wage owed to him under California law. (Id. at ¶ 26.) Plaintiff was also not provided with all meal breaks he was entitled to, nor did he receive accurate wage statements. (Id. at ¶¶ 29, 31.) Finally, Plaintiff alleges that he sustained multiple job-related injuries that Defendants refused to accommodate, instead terminating his employment. (Id. at ¶¶ 33-35.)

On January 30, 2014, Plaintiff filed the Complaint asserting the following causes of action: (1) failure to pay wages (violation of Labor Code §§ 201, 202, 203); (2) failure to pay overtime wages (violation of Labor Code §§ 510 and 1194 and IWC Wage Orders); (3) waiting time penalties (Labor Code §§ 201, 202, 203); (4) failure to provide meal and rest periods (Labor Code §§ 226.7 and 512 and IWC Wage Orders); (5) failure to provide itemized wage statement (violation of Labor Code § 226(e)); (6) civil penalties under Labor Code § 558; (7) unlawful, unfair and fraudulent business practices (violation of Bus. & Prof. §§ 17200, 17203); (8) violation of the Labor Code Private Attorney General Act of 2004 (Labor Code § 2698); (9) wrongful termination in violation of public policy; (10) breach of the covenant of good faith and fair dealing; (11) liquidated damages pursuant to Labor Code § 1194.2; (12) intentional infliction of emotional distress; and (13) negligent infliction of emotional distress.

On March 28, 2014, Defendants filed the instant demurrer to the Complaint and each of the thirteen causes of action asserted therein on various grounds.

As an initial matter, to the extent that Defendants are demurring to particular paragraphs in the general allegations portion of the Complaint, the demurrer is overruled. These paragraphs are not part of individual causes of action. If Defendants believe that the allegations contained in these paragraphs are somehow deficient, a motion to strike, and not a demurrer, is the appropriate instrument to challenge them. (See Code Civ. Proc., §§ 435, 436.)

Defendants’ request for judicial notice is DENIED. With their request, Defendants improperly seek to transform the instant motion, which is limited to testing the sufficiency of the pleadings, into an evidentiary proceeding.

Defendants’ demurrer to the Complaint on the ground of uncertainty is OVERRULED. A demurrer for uncertainty is disfavored and will be sustained only where the allegations of the complaint are so unintelligible that the defendant cannot reasonably respond to them. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) The allegations of Plaintiff’s Complaint do not qualify as such.

Defendants’ demurrer to the Complaint on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

Defendants’ demurrer to the first (failure to pay wages), second (failure to pay overtime wages), third (waiting time penalties), fourth (failure to provide meal and rest periods), fifth (failure to provide itemized wage statement) and sixth (civil penalties) causes of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED. Contrary to Defendants’ assertions, there is no authority which provides that Plaintiff must state the amount of damages that he sustained in order to properly a claim for violations of Labor Code sections 201, 202 and 203.

Defendants’ demurrer to the seventh cause of action (unlawful, unfair and fraudulent business practices) on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED. California’s Unfair Competition Law (“UCL”), Business and Professions Code section 17200, prohibits unlawful, unfair or fraudulent business practices and acts. It “borrows violations of federal, state, or local law and treats them as unlawful practices that are independently actionable.” (Pastoria v. Nationwide Ins. (2003) 112 Cal.App.4th 1490, 1496.) The UCL applies to conduct which violates state employment laws. (See e.g., Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.) Here, Plaintiff has identified various provisions of the Labor Code that have allegedly been violated by Defendants’ conduct and pleaded sufficient facts in support of these purported violations.

To the extent that there is any inconsistency with the period of employment referenced in this particular cause of action and that stated earlier in the general allegations of the Complaint which are incorporated into this cause of action by reference, a motion to strike is the proper instrument to attack these allegations as a demurrer does not lie to only part of a cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.)

Defendants’ demurrer to the eighth cause of action (violation of PAGA) on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

Defendants’ demurrer to the ninth cause of action (wrongful termination) on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED. Defendants cite no authority for the proposition that this claim must be pleaded with heightened specificity.

Defendants’ demurrer to the tenth cause of action (breach of the covenant of good faith and fair dealing) on the ground that is cannot be ascertained from the pleading whether the subject contract is written, oral, or implied by conduct is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. “The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract.” (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49.) Thus, the instant claim is founded upon a contract. Consequently, Plaintiff must plead whether the subject contract is written, oral, or implied by conduct. (See Code Civ. Proc., § 430.10, subd. (g).) He has not done so here.

Defendants’ demurrer to the tenth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. Plaintiff fails to articulate how Defendants’ conduct frustrated his rights to the benefits of the employment contract. (See Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032.)

Defendants’ demurrer to the eleventh cause of action (liquidated damages) on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

Defendants’ demurrer to the twelfth cause of action (intentional infliction of emotional distress) on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. A claim for intentional infliction of emotional distress requires that a plaintiff plead and prove “extreme and outrageous” conduct by the defendant. (See Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) To qualify as outrageous, the conduct at issue must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id.) In simply pleading that he was subject to “verbal abuse and demeaning conduct,” Plaintiff fails to plead extreme and outrageous conduct.

Defendants’ demurrer to the thirteenth cause of action (negligent infliction of emotional distress) on the ground of failure to state facts sufficient to constitute a cause of action SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.