(1) Demurrer to Complaint (2) CMC

Ruling: (1-2) Off Calendar – no hearing will be held. Defendant’s demurrer to the 7th COA in Plaintiff’s complaint is overruled. Defendant is to answer the complaint within 10 days of the date of this Order.
Defendant’s RFJN of the complaint filed in this action is granted, although unnecessary.

Plaintiff’s allegations that Defendant’s owner “expressed disapproval” after Plaintiff paid employees their wages from another bank account to which Plaintiff had access after Plaintiff realized the payroll account lacked sufficient funds are insufficient and too vague to state a cause of action under the retaliation/whistleblower statutes set forth in Labor Code sections 98.6 and 1102.5. However, in Paragraphs 9 and 10 of the Complaint, which are incorporated by reference into the Seventh COA, Plaintiff alleges he protested the termination of a female employee based on Plaintiff’s suspicion the termination was motivated by the employee’s gender, and that Defendant retaliated against Plaintiff as a result of that complaint by reducing his pay and failing to reinstate him following his paternity leave. (Compl., ¶¶ 9-10.) These allegations are sufficient to state a claim for retaliation, and Defendant fails to address them at all in the demurrer.

Defendant’s argument that the one-year statute of limitations in Code of Civil Procedure section 340(a) applicable to penalty statutes fails. As Defendant apparently concedes by focusing exclusively on Labor Code section 1102.5, Labor Code section 98.6 is not limited to a penalty or forfeiture, but also allows for reimbursement for lost wages and benefits caused by the employer’s actions. Code of Civil Procedure section 338(a) provides a three-year statute of limitations for “[a]n action upon a liability created by statute, other than a penalty or forfeiture.” Plaintiff alleges the last conduct of retaliation occurred on November 12, 2012, when he was terminated, and this action was filed on February 13, 2014, well within the three year statute of limitations.

The Court need not, and will not, decide the issue of whether the one-year statute of limitations applies to Labor Code section 1102.5 on demurrer, because it would not dispose of the entire cause of action. A general demurrer does not lie to only part of a cause of action. If there are sufficient allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer. (Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1046-47; PH II, Inc. v. Sup.Ct. (1995) 33 Cal.App.4th 1680, 1682 [motion to strike, not demurrer, proper procedure to attack portion of cause of action].)

Finally, defendant fails to cite any authority in support of the argument that Labor Code section 98.6 does not create a private right of action. “Every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” (People v. Stanley (1995) 10 Cal.4th 764, 793). The Court assumes Defendant abandoned this argument by failing to address it again in the reply after Plaintiff cited multiple federal authorities in support of Plaintiff’s contention that a private right of action does exist. (In the future, the parties should provide the Court with an appendix containing copies of federal and other out of state authorities cited in their briefs.)

(2) CMC is continued to 7-1-14, Dept. C13, at 8:45 am. Moving Party is to give notice.