2019-00251989-CU-OE

Nakita Clark vs. Wittman Enterprises, LLC

Nature of Proceeding: Hearing on Demurrer to Second Amended Complaint

Filed By: Bradbury, Kent L.

Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding

Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov.

Defendant Wittman Enterprises, LLC’s (“Defendant”) demurrer to plaintiffs Nakita Clark and Dawn Stephenson’s (collectively, “Plaintiffs”) Second Amended Complaint (“SAC”) is ruled upon as follows.

Plaintiff has filed this wage and hour putative class action on behalf of “[a]ll current and former hourly-paid or non-exempt employees who worked for any of the Defendants within the state of California at any time during the period from March 6, 2015 to final judgment.” (SAC ¶ 14.) Plaintiff alleges the following nine causes of action: (1) failure to pay overtime; (2) failure to pay meal period premiums; (3) failure to pay rest period premiums; (4) failure to pay minimum wages; (5) failure to timely pay final wages; (6) failure to pay timely wages; (7) failure to provide accurate itemized wage statements;

(8) failure to keep requisite payroll records; and (9) violation of Business & Professions Code §§ 17200 et seq.

Defendant has filed a general and special demurrer to each of the nine causes of action. Defendant moves on the ground that each cause of action fails to state facts sufficient to state a cause of action on both an individual basis and on a class basis, and/or [special demurrer] the SAC is uncertain.

Legal Standard

A demurrer tests the legal sufficiency of the factual allegations in a complaint. ( Windham at Carmel Mountain Ranch Assn. v. Sup. Ct (2003) 109 Cal.App.4th 1162,1168.) In bringing a demurrer, the moving party must admit the truth of all material facts properly pled in the complaint. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 966-67.) It does not matter how unlikely or improbable the moving party believes the contentions are; they must be accepted as true for purposes of ruling on a demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Gal.App.3d 593, 604.) Furthermore, alleged problems regarding ability or difficulty of proof are of no concern in ruling on a demurrer. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

Uncertainty

The demurrer for uncertainty is OVERRULED. The allegations are not so uncertain that Defendant cannot frame a response. Demurrers for uncertainty are disfavored and are only granted where the complaint is so muddled that the defendant cannot reasonably respond. The favored approach is to clarify theories in the complaint through discovery. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; 1 Weil & Brown, Civil Procedure Before Trial (Rutter 2014), sec. 7:85, p. 7(l)-39.)

Failure to State Facts – 1st through 9th Causes of Action

At the outset, the Court notes Defendant’s argument that other class action complaints filed by Plaintiffs’ counsel have been held deficient at the demurrer stage is irrelevant to this Court’s independent determination as to whether Plaintiffs have stated causes of action in this action.

In support of the demurrer, Defendant contends the SAC consists solely of boilerplate

allegations and sweeping generalizations. (Memorandum at 2:21-22.) Defendant argues Plaintiffs have failed to properly allege a wage and hour putative class action because the SAC lacks allegations of facts showing a company-wide policy or practice that violated California’s wage and hour laws. Defendant also contends Plaintiffs’ class definition is generic and there are no facts alleged to support the class definition. Defendant argues the SAC simply “parrots” the Labor Code sections alleged to have been violated without alleging specific facts, such as “any instance in which” Plaintiffs allegedly worked off the clock or overtime was not paid, why meal and rest breaks were not provided, how often they were not provided, or when or how minimum wages were not paid. In short, Defendant alleges the SAC consists only of legal conclusions. The Court disagrees, as set forth below.

In opposition, Plaintiffs argue they are not required to allege details and evidentiary facts, as opposed to ultimate facts. Under applicable California law, a plaintiff need only allege “a statement of the facts constituting the cause[s] of action, in ordinary and concise language.” (CCP § 425.10.) The complaint need only allege ultimate facts, and “each evidentiary fact that might eventually form part of plaintiff s proof need not be alleged.” (CA. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872.) Moreover, “[t]he distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree . . . . [C]ourts have permitted allegations which obviously included conclusions of law and have termed them ‘ultimate facts’ or ‘conclusions of fact.'” (Perkins v. Sup. Ct., 117 Cal.App.3d 1, 6 (1981) (quoting Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463,473.) It is well established that a plaintiff should plead ultimate facts, rather than evidentiary facts or conclusions of law. (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, §§ 332, 346-347, pp. 382-383, 398-400; Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 719.)

Plaintiffs have set forth the essential facts within reasonable precision and sufficient particularity to acquaint Defendant with the nature and basis of the claims.

First, Plaintiffs have pled the two requirements under the pleading standard for a class action: an ascertainable class and common questions of law and fact. (Prince v. CIS Transportation, Inc. (2004) 118 Cal. App. 4th 1320, 1325.) Plaintiffs have alleged the class is comprised of all hourly-paid or non-exempt employees who worked for Defendant during the statutory period in California, that such class includes approximately 50 people, and that putative class members can be identified readily from Defendant’s employment records. (SAC ¶¶ 14, 16a.) The SAC also alleges common questions of law and fact exists as to Plaintiffs and the putative class members, including whether Defendant had a corporate policy and practice of failing to pay for all hours worked, whether Defendant failed to pay overtime, whether Defendant failed to pay meal period premiums, etc. (SAC ¶ 16(a)-(m). The SAC also alleges Plaintiffs and the putative class were required to work without being compensated for all hours worked and for all missed meal and rest periods. (SAC ¶¶ 31, 33, 35, 40.) The SAC further alleges Defendant engaged in a pattern and practice of wage abuse in failing to pay overtime and meal and rest period premiums. (SAC ¶ 27.) At this stage, these allegations must be accepted as true.

It is improper and premature to request the court, at the pleading stage, to make a determination as to whether this action is certifiable as a class action. The pleader is not required to provide “minute detail or to allege evidentiary as opposed to ultimate facts.” (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218,1244, fn. 16.) Disposing of class allegations at the pleading stage is disfavored by California courts.

See In re BCBG Overtime Cases, (2008) 163 Cal. App. 4th 1293 [“class certification is generally not decided at the pleading stage of a lawsuit.”]; Rose v. Medtronics, Inc., (1980) 107 Cal.App.3d 150, 154. Of course, a proposed class that is carelessly or improperly defined will likely be uncertifiable, but under California law, class definitions and class suitability are properly determined upon a motion for class certification, not at the pleadings stage by way of a demurrer. (See Gutierrez v. California Commerce Club, Inc.(2010) 187 Cal.App.4th 969, 976 (“Judicial policy in California has long discouraged trial courts from determining class sufficiency at the pleading stage and directed that this issue be determined by a motion for class certification.”). In putative class actions alleging “wage and hour claims, class suitability should not be determined by demurrer.” (Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494, 1511-1512 (emphasis added) citing Prince, supra. 118 Cal. App. 4th 1320; see also Atari, Inc. v. Superior Court (1985) 166 Cal.App.3d 867, 870.) Further, a demurrer to class allegations should only be sustained if it is so blatantly obvious from the face of the complaint that a plaintiff has not alleged, and cannot allege by amendment, a prima facie community of interest. (Tucker v. Pacific Bell Mobile Servs. (2012) 208 Cal.App.4th 201, 215; Bozaich v. State of California (1973) 32 CaI.App.3d 688, 692, 694.) The Court does not find that such a determination can be made at this stage from the face of the SAC.

The SAC also alleges Plaintiffs and the other class members worked in excess of 8 hours in a day and/or in excess of forty hours in a week during their employment with Defendants and were required to perform work off-the-clock resulting in unpaid minimum and overtime wages. (SAC ¶ 26, 39, 53.) Plaintiffs have alleged the off-the-clock work that resulted in unpaid overtime and minimum wages included “researching and reviewing records, managing client accounts, entering data, receiving business-related calls and messages, responding to business-related inquires, and preparing business-related documents.” (SAC ¶¶ 53, 84, 94.) Plaintiffs allege they were not paid for performing such off-the-clock work. (SAC ¶¶ 33, 39, 53, 84, 91.) The SAC alleges Defendant failed to relieve Plaintiffs and other putative class members of all duties during meal and rest periods by requiring them to perform work during such periods. (SAC ¶¶63-66, 74-77.) The SAC alleges Defendant required Plaintiffs and the other class members to work during meal and rest periods. (SAC ¶¶64, 66, 75.) The SAC alleges Defendant required Plaintiffs and the putative class to work during meal and rest periods and failed to relieve them of all duties and control, resulting in short, late, interrupted, and missed meal and rest periods, and failing to pay the required premium pay. (SAC ¶¶ 29-35, 64-66, 74-77.)

Despite Defendant’s argument that more “specific” facts are required to support the claims (such as why meal and rest breaks were not provided, how often they were not provided, or when or how minimum wages were not paid), the Court finds the foregoing allegations are sufficient at this stage of the pleading to survive demurrer. The ultimate facts which have been pleaded are sufficient to establish the claims asserted. In turn, Plaintiff’s derivative claims that are based on the failure to timely and accurately pay for all hours worked at the correct rate of pay due to off-the-clock work (SAC ¶¶ 92, 94-96) are also sufficiently pled. Plaintiffs alleges they and the putative class were unable to determine the amount they were owed because they were unable to “engage in discovery and mathematical computations” required to reconstruct Defendant’s missing information required to maintain accurate wage statements and payroll records. (SAC ¶¶36-37, 110, 118.) For pleading purposes, this is sufficient.

The demurrer is OVERRULED in its entirety.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.