Case Name: Khordians v. Salman, Inc. dba Chevron Auto Services, et al.
Case No.: 1-14-CV-259814
Defendants Salman, Inc. dba Chevron Auto Services and Youbert Salman Nazlou (collectively, “Defendants”) demur to the first amended complaint (“FAC”) filed by plaintiff Ararat Khordians (“Plaintiff”) and move to strike portions therein.
This is an action for various Labor Code violations and wrongful termination. According to the allegations of the FAC, Plaintiff was formerly employed as a mechanic by Defendants from April 16, 2010 to February 11, 2013. (FAC at ¶¶ 13, 23.) During that time, he received a flat monthly salary of $2,000 no matter how many hours he worked. (Id. at ¶ 25.) This salary arrangement resulted in Plaintiff not earning the minimum wage owed to him under California law. (Id. at ¶ 26.) Additionally, Plaintiff regularly worked hours which entitled to him to overtime wages under the applicable provisions of the Labor Code; however, he was not paid these amounts. (Id. at ¶¶ 27, 28.) 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 June 18, 2014, Plaintiff filed the FAC asserting the following causes of action:
(1) failure to pay wages (violation of Labor Code §§ 201, 202 and 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 and 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 and 17203);
(8) violation of Labor Code Private Attorney General Act of 2004 (Labor Code § 2698);
(9) wrongful termination in violation of public policy;
(10) breach of 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 July 18, 2014, Defendants filed the instant demurrer to the tenth, twelfth and thirteenth causes of action on the ground of failure to state facts sufficient to constitute a cause of action and motion to strike the same. (Code Civ. Proc., §§ 430.10, subd. (e), 436 and 436.)
Defendants’ request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).)
Defendants’ motion to strike is DENIED. A pleading challenge to an entire cause of action is by demurrer rather than a motion to strike. (See Code Civ. Proc., § 436; Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281.)
Defendants’ demurrer to the tenth cause of action (breach of covenant of good faith and fair dealing) on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiff fails to articulate how Defendants’ conduct frustrated his rights to the benefits of the existing oral employment contract between the parties. (See Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032.)
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 WITHOUT 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. (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.) Plaintiff fails to plead specific facts demonstrating extreme and outrageous conduct by Defendants.
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 is SUSTAINED WITHOUT LEAVE TO AMEND.