DEBRA HOLLIS VS DEVANAND SHARMA

Case Number: BC545606    Hearing Date: July 28, 2014    Dept: 34

Moving Party: Defendant Devanand Sharma dba Los Angeles Adventure All Suit Hotal a.k.a. Tradewinds Airport Hotel (“SHARMA”)

Resp. Party: Debra Hollis (“HOLLIS”)

SHARMA’s demurrer to the first, second, third and ninth Causes of Action is OVERRULED.

PRELIMINARY COMMENTS:

First, it is not clear who is demurring to the complaint. The demurrer indicates that it is filed by “Frank Martini, in pro per.” But the defendant is Devanand Sharma; in fact, Frank Martini is not a party to this action. The State Bar has no record of an attorney named Frank Martini. If Frank Martini is an individual, is he a pseudonym for Devanand Sharma? If not, who is he and why is he filing a demurrer “in pro per” on behalf of Defendant Devanand Sharma?

The court also notes that the address listed for “Frank Martini” on the first page of the demurrer is the address of Sharma’s dba, the Adventurer All Suite Hotel. However, Mr. Martini has not listed a phone number on the pleading.

Second, the Court recognizes that “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” (Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).) Nonetheless, the court would suggest that Mr. Martini proof-read his pleadings a bit more carefully next time. For instance, in his “Introduction and Statement of Relevant Facts,” is the following instruction: “<>” (Demurrer, p. 4:4.) The Court assumes that this was inserted as an instruction to Mr. Martini by whoever drafted the demurrer for him.

Lastly, the demurrer states “Despite including everything but the proverbial kitchen sink in her Complaint, Plaintiff cannot escape the obvious: Plaintiff’s allegations are woefully lacking in factual support and specificity.” (Demurrer, p. 4:11-12.) Such hyperbole is unneeded. As indicated below, the Court finds that Plaintiff’s complaint contains sufficient factual support for her allegations. More importantly – at least for purposes of these preliminary comments – the Court finds the 11-page complaint to be well-written and not to contain extraneous allegations, let alone “kitchen sink” type allegations.

BACKGROUND:

From March 2010 through May 2013, Defendant SHARMA employed Plaintiff HOLLIS as a housekeeper at a commercial hotel. (Compl. ¶6.)

On May 14, 2014, HOLLIS filed a complaint alleging nine Causes of Action arising out of her employment relationship with SHARMA including: (1) violation of Labor Code §1102.5; (2) retaliation for complaints of unfair labor practices in violation of Labor Code §§98.6 and 98.7; (3) wrongful termination in violation of public policy; (4) failure to pay overtime wages; (5) failure to provide rest breaks; (6) waiting time penalties; (7) failure to provide accurate itemized wage statements; (8) violation of Labor Code §1198.5; and (9) violation of Business and Professions Code §17200, et seq.

ANALYSIS:

SHARMA demurs to HOLLIS’ first, second, third, and ninth Causes of Action on grounds of uncertainty and on grounds that HOLLIS’ complaint fails to state sufficient facts to constitute these Causes of Action.

The Court rejects SHARMA’s argument that the first, second, third and ninth Causes of Action fail for uncertainty. Because the discovery process provides for clarification, demurrers for uncertainty are strictly construed and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2014) ¶ 7:85 [“Demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her”].) Here, the complaint is not such that defendant cannot reasonably respond. Any ambiguities can be resolved through discovery.

SHARMA also claims that all of HOLLIS’ Causes of Action fail because HOLLIS did not obtain a right to sue notice from the Department of Fair Employment and Housing (“DFEH”). (Demurrer p. 5:12- p. 6:8.) This argument is not well-taken. While a right to sue notice may be necessary to support causes of action arising under the Fair Employment and Housing Act (“FEHA”), HOLLIS has not alleged any FEHA claims. Thus, this argument also fails.

First Cause of Action for Violation of Labor Code § 110.25

Sharma agues that the first Cause of Action for violation of Labor Code section 1102.5 fails due to insufficient factual pleading. (Demurrer 6-7.) Labor Code section 1102.5 prohibits employers from retaliating against an employee out of belief that the employee may disclose the employer’s unlawful conduct or because the employee refused to participate in unlawful conduct. (Lab. Code, § 1102.5.)

In his demurrer, defendant Sharma states “plaintiff fails to allege any specific facts in her complaint about when and if she reported and/or complaied about alleged Labor Code violations, and to whom she did so.” (Demurrer, p. 6:19-20.) Not so. HOLLIS alleges that SHARMA retaliated against her by terminating her employment after she complained to SHARMA about his Labor Code violations including failure to pay overtime, provide rest breaks, and provide itemized wage statements. (Compl. ¶¶ 11, 13.) HOLLIS further alleges that she was terminated after refusing to engage in these unlawful acts. (Compl. ¶13.) These facts are sufficient to support her claim under section 1102.5.

SHARMA’S demurrer to the first Cause of Action is OVERRULED.

Second Cause of Action for Retali.tiona

Sharma argues that the Second Cause of Action for retaliation for complaints of unfair labor practices in violation of Labor Code sections 98.6 and 98.7 fails due to improper venue. (Demurrer p. 7:9 – p. 8:7.) SHARMA claims that HOLLIS needed to file her complaint with the Labor Commissioner before resorting to the courts. (Ibid.)

This is not the law. Labor Code section 244 states that “(a)n individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of (the Labor) (C)ode, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy.” (Lab. Code, § 244(a).)

Plaintiff claims her second Cause of Action arises under Labor Code sections 98.6 and 98.7. Section 98.6 does not expressly require exhaustion of an administrative remedy. Thus, Plaintiff’s Cause of Action under section 98.6 is properly before this Court.

Defendant is correct that Labor Code section 98.7 requires plaintiff to pursue an administrative remedy through the Labor Commissioner and there is no allegation in the Complaint that plaintiff has done so. However, this defect does not render Plaintiff’s entire second Cause of Action subject to demurrer as the Court can disregard errors in the pleadings that do not affect the substantive rights of the parties. (Code Civ. Proc., § 475.) Thus, the Court disregards Plaintiff’s reference to section 98.7 in the second Cause of Action and rejects SHARMA’s claim of improper venue as it pertains to Plaintiff’s second Cause of Action arising under Labor Code section 98.6.

SHARMA further argues that the second Cause of Action fails because the six-month statute of limitation under Labor Code section 98.7 has run on HOLLIS’ claim. (Demurrer pp. 7-8.) The six-month limitation period referenced in section 98.7 applies only to claims filed with the Labor Commissioner. As noted above, Plaintiff has not pursued an administrative remedy under section 98.7. The statute of limitations is applicable to a private plaintiff’s claims for violations of section 98.6 is three years. (Code Civ. Proc., § 338). As SHARMA acknowledges, “Plaintiff’s complaint was filed one day short of one year from the alleged wrongful conduct.” (Demurrer p. 8:3-4.) Thus, Plaintiff’s complaint is not barred by the applicable three-year limitation period.

As to insufficient pleading of the second Cause of Action, HOLLIS clearly alleges that SHARMA unlawfully retaliated against her by terminating her employment after she complained to SHARMA about failure to pay overtime, provide rest breaks, and provide itemized wage statements. (Compl. ¶¶ 11, 13.) These factual allegations are sufficient to support her claim.

SHARMA’S demurrer to the second Cause of Action is OVERRULED.

Third Cause of Action for Wrongful Termination in Violation of Public Policy

SHARMA argues that the third Cause of Action for wrongful termination in violation of public policy fails because of insufficient factual pleadings. (Demurrer p. 8.) To establish a claim for wrongful discharge in violation of public policy, a plaintiff must show each of the following: (1) an employer-employee relationship; (2) the employer terminated plaintiff’s employment; (3) a nexus between the termination and the employee’s protected activity; and (4) that the termination caused harm to the Plaintiff. (CACI No. 2430.) Further, to establish that the policy violated was in fact a “public policy,” plaintiff must show that the policy:(1) is supported by either constitutional or statutory provisions; (2) is ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) was articulated at the time of the discharge; and (4) is fundamental and substantial. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890.)
Here, HOLLIS alleges that SHARMA retaliated against her by terminating her employment after she complained to SHARMA about his failure to pay overtime, provide rest breaks, and provide itemized wage statements. (Compl. ¶¶ 11, 13.) HOLLIS further alleges that she was terminated after refusing to engage in these unlawful acts and that the termination resulted in damages. (Compl. ¶¶13, 23.) Further, case law makes clear that alleged violations of Labor Code section 1102.5, such as those alleged here, constitute a valid Cause of Action for wrongful termination in violation of public policy. (See Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178; General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1180; Petermann v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 396 (1959) 174 Cal.App.2d 184, 344.)

SHARMA’S demurrer to the third Cause of Action is OVERRULED.

Ninth Cause of Action for Violation of the UCL

SHARMA next argues that the ninth Cause of Action for violation of Business and Professions Code §17200, et seq. fails because of insufficient factual pleadings and because employees do not have standing to bring such claims. (Demurrer 9.)

The UCL provides only for equitable remedies, and prevailing plaintiffs are generally limited to injunctive relief and restitution. (People ex rel. City of Santa Monica v. Gabriel (2010) 186 Cal.App.4th 882, 889.) Damages are not available. (Ibid.) Unlawfully withheld wages are recoverable as a restitutionary remedy in a UCL action. (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178.) As such, employees routinely base UCL claims on an employer’s alleged failure to pay wages. (See, e.g., Sims v. AT & T Mobility Services LLC (2013) 955 F.Supp.2d 1110, 1120 [“A claim can be brought under California’s Unfair Competition Law (UCL) to recover unpaid wages”]; Hodge v. Superior Court (2006) 145 Cal.App.4th 278, 283 [“An employer’s alleged unlawful failure to pay wages can be the subject of an Unfair Competition Law (UCL) claim”].)

Here, employee HOLLIS sufficiently alleges that employer SHARMA failed to pay wages in violation of Business and Professions Code section 17200, et seq. (Compl. ¶¶7, 10.) Thus, SHARMA’s arguments fail.

Finally, SHARMA claims the ninth Cause of Action fails because a claim under Business and Professions Code section17200, et seq. cannot be based on past conduct. (Demurrer p. 9:23-24.)

The Supreme Court of California addressed this issue in Stop Youth Addiction Inc. v. Lucky Stores Inc. (1998) 17 Cal.4th 553, 570 [superseded by statute on other grounds as stated in Arias v. Superior Court (2009) 46 Cal.4th 969].) In that case, the Court noted the Legislature’s 1992 amendment to Business and Profession section 17200 and 17203. Those amendments expanded the definition of unfair competition to include “any unlawful, unfair, or fraudulent business act or practice.” (See Stats. 1992, ch. 430, § 2, p. 1707.) The amendments also expanded the statute’s scope to encompass past activity. (See Stats. 1992, ch. 430, § 3, p. 1707 [replacing “person performing or proposing to perform an act of unfair competition within this state” with “person who engages, has engaged, or proposes to engage in unfair competition”].) Thus, HOLLIS has properly based her UCL claim on past conduct.

SHARMA’S demurrer to the ninth Cause of Action is OVERRULED.

Defendant to answer within 10 days.

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