2018-00242566-CU-OE

Iras Cortes vs. Live Well Medical Center, Inc.

Nature of Proceeding: Motion to Strike Portions of First Amended Complaint

Filed By: Brodnax, Daniel A.

The motion of Defendants Live Well Medical Center, Inc. (Live Well), Michael P. Bass, M.D., Aing Xian and Kristine Manukova (collectively “Defendants”) to strike from the first amended complaint (FAC) the punitive damages allegations and corresponding prayer is DENIED in part and DROPPED in part as moot.

Overview

This case presents an employment dispute. Irais Cortes (Cortes) is the plaintiff. She contends that she served the Defendants as an hourly, non-exempt referral coordinator. The FAC contains several wage and hour causes of action. It also contains causes of action for discrimination, retaliation, and failure to prevent discrimination and retaliation under the FEHA. Cortes seeks punitive damages pursuant to her FEHA causes of action. The Defendants move to strike the punitive damages allegations and related prayer. Cortes opposes.

Discussion

The Individual Defendants’ Motion to Strike

The motion is DROPPED as moot.

In a concurrent ruling on demurrer, the court has eliminated the FEHA causes of action against the three individual defendants. Consequently, the punitive damages allegations against them are no longer operative, and there is nothing to strike at this point.

Live Well’s Motion to Strike

The motion is DENIED.

Cortes alleges that, after she informed Live Well that she was pregnant and needed leave time, Live Well reduced her hours and demoted her. (See FAC, ¶¶ 26, 27, 29, 101.) She also alleges that Live Well took these actions with an intent to injure her. ( Id., ¶ 103.) Live Well argues that the allegations are too conclusory to establish malice, but the court disagrees. (See CC § 3294(c) [malice denotes intent to injure or despicable conduct carried on with a willful disregard of others’ rights or safety].)

Disposition

The motion is denied in part and dropped in part as moot.

No later than 2/21/19, Live Well shall file and serve its answer.

The notice of motion does not provide notice of the court’s tentative ruling system, as required by Local Rule 1.06(D). Counsel for moving party is directed to contact counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the court’s tentative ruling procedure. If counsel for moving party is unable to contact counsel for opposing party prior to hearing, counsel for moving party shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(B).

The parties are advised that this law and motion division of the court is located at 813 6th Street, not 720 9th Street, as indicated in the notice of motion.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 is required.

Item 18 2018-00242566-CU-OE

Iras Cortes vs. Live Well Medical Center, Inc.

Nature of Proceeding: Hearing on Demurrer to First Amended Complaint

Filed By: Brodnax, Daniel A.

The demurrer of Defendants Michael P. Bass, M.D. (Dr. Bass), Aing Xian (Xian) and Kristine Manukova (Manukova) (collectively the “Individual Defendants”) is OVERRULED in part and SUSTAINED in part without leave to amend.

Overview

This case presents an employment dispute. Irais Cortes (Cortes) is the plaintiff. She contends that she served the Individual Defendants and Co-Defendant Live Well Medical Center, Inc. (Live Well) as an hourly, non-exempt referral coordinator. Cortes’ first amended complaint (FAC) contains causes of action against the Individual Defendants for failure to provide rest periods, failure to provide meal periods, failure to pay minimum wages, failure to pay overtime wages, failure to furnish accurate wage statements, failure timely to provide wages, violation of Labor Code § 233, failure to provide reporting time pay, failure to pay wages owed upon termination, “Civil Penalties” under PAGA, discrimination based on sex [FEHA], retaliation [FEHA], and failure to prevent discrimination and retaliation [FEHA]. The Individual Defendants demur to each of these causes of action on the ground that the allegations fail to state facts sufficient to state a valid cause of action.

Cortes opposes in part and concedes the merits in part.

Discussion

The First through Sixth and Eighth Through Tenth Causes of Action

The demurrers are OVERRULED.

Labor Code § 558.1, which was added to the Labor Code in 2016, reads:

(a) Any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation.

(b) For purposes of this section, the term “other person acting on behalf of an employer” is limited to a natural person who is an owner, director, officer, or managing agent of the employer, and the term “managing agent” has the same meaning as in subdivision (b) of Section 3294 of the Civil Code. [¶] (Emphasis added.)

To bring the Individual Defendants within the scope of these provisions, Cortes has alleged that (1) Dr. Bass is “an owner, principal, officer and director” of Live Well (FAC,

¶ 9), and (2) Xian and Manukova are “managing agent[s]” of Live Well “tasked with implementing and enforcing the company’s employment policies[.]” (Id., ¶¶ 10, 11, 16). In addition, she alleges that all the defendants committed the unlawful acts supporting her causes of action. (See, e.g., id., ¶ 33 [“Defendants committed the following violations… .”]; id., ¶ 14 [“[T]he acts and omissions of each of the defendants concurrently contributed to the various acts and omissions of each and every one of the

other defendants in proximately causing the wrongful conduct, harm, and damages alleged herein”]; see also Moving Memo. at 8:1-15.)

The Individual Defendants argue that Cortes’ allegations are conclusory and otherwise insufficient, but the court disagrees. The allegations support a conclusion that each Individual Defendant violated wage and hour statutes/rules and caused harm. That Cortes alleges the Individual Defendants acted collectively does not alter the conclusion. As a result, the first through sixth and eighth through tenth causes of action survive demurrer.

The Seventh and Eleventh through Thirteenth Causes of Action

The demurrers are SUSTAINED without leave to amend.

Cortes concedes that the subject causes of action do not support individual liability.

Disposition

The demurrers are overruled in part and sustained in part without leave to amend.

No later than 2/21/19, the Individual Defendants shall file and serve their answer(s) to the causes of action remaining against them.

The notice of motion does not provide notice of the court’s tentative ruling system, as required by Local Rule 1.06(D). Counsel for moving party is directed to contact counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the court’s tentative ruling procedure. If counsel for moving party is unable to contact counsel for opposing party prior to hearing, counsel for moving party shall be available at the hearing, in person or by telephone, in the event opposing party appears without

following the procedures set forth in Local Rule 1.06(B).

The parties are advised that this law and motion division of the court is located at 813 6th Street, not 720 9th Street, as indicated in the notice of motion.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 is required.