Case Number: BC538194    Hearing Date: August 12, 2014    Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
________________________________________
Hearing Date: Tuesday, August 12, 2014
Calendar No: 7
Case Name: Cortez v. California Capital Venture, Inc., et al.
Case No.: BC538194
Motion: Demurrers
Moving Party: (1) Defendant Moris Sakhai
(2) Defendant California Capital Venture, Inc.
Responding Party: Plaintiff John Cortez
Notice: OK

Tentative Ruling: Demurrers are overruled. Defendants to answer within 10 days.
________________________________________

On 3/5/14, Plaintiff John Cortez filed this action against Defendants California Capital Venture, Inc. (“CCV”); A Trip to New York; and Moris Sakhai arising out of his employment. Plaintiff asserts causes of action for (1) sexual harassment, (2) sexual battery, (3) common law assault, (4) common law battery, (5) failure to prevent harassment, (6) failure to correct and remedy harassment, (7) failure to pay wages owed, (8) failure to pay overtime wages, (9) failure to provide meal periods, (10) failure to provide rest periods, (11) failure to furnish accurate itemized wage statements, (12) failure to pay wages due at time of termination, (13) violation of Bus. & Prof. Code § 17200, (14) Labor Code §§ 98.6 and 8.7 retaliation, (15) wrongful termination in violation of public policy, (16) negligent infliction of emotional distress, and (17) intentional infliction of emotional distress.

On 4/9/14, Sakhai, in propria persona, filed a demurrer to the Complaint set for hearing on 11/19/14. On 6/6/14, the Court advanced the hearing on Sakhai’s demurrer, indicated the Court’s intent to overrule the demurrer because it was a “non-starter,” but permitted Sakhai to file supplemental or amended papers. On 6/16/14, Sakhai filed a supplement to the demurrer. On 6/18/14, CCV filed a demurrer to the Complaint.

Demurrers –
1. Statute of Limitations
Sakhai argues that Plaintiff fails to allege facts that relate to whether the statute of limitations applies. However, the issue of statute of limitations is an affirmative defense (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396): Plaintiff is not required to “plead around” the defense unless revealed by the allegations or judicially noticeable facts (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824). This ground is overruled.

2. Administrative Exhaustion Requirement
CCV argues that Plaintiff fails to allege facts that he exhausted his administrative remedies for the FEHA claims. See, e.g., Holland v. Union Pacific Railroad Co. (2007) 154 Cal.App.4th 940, 945-46. This argument is without merit. Plaintiff alleges that he timely exhausted his administrative remedies. Complaint ¶ 23; see also Opp’n RJN Ex. 1. At the pleading stage, this is sufficient to allege timely compliance with the administrative exhaustion requirement. This ground is overruled.

3. Sufficiency of Allegations
Plaintiff’s Complaint alleges the following facts.

Plaintiff was employed by Defendants as an errand runner and laborer in a clothing store located in the downtown Los Angeles garment district. ¶ 13. Plaintiff’s duties required moving hundreds of pounds of store merchandise; Plaintiff often complained to Sakhai that the weight was so heavy that he required assistance; but Plaintiff was ignored resulting in Plaintiff sustaining back, neck, and shoulder pain. ¶ 14. Additionally, Plaintiff was a non-exempt employee who was required to work more than 8 hours per day, 7 days per week (¶ 15): Plaintiff was not paid for most hours worked or overtime (id.) and instead Sakhai told Plaintiff that he was saving Plaintiff’s money for him (¶ 16). Plaintiff also was not provided meal periods and rest periods or paid compensation thereof (¶ 17), was not provided accurate itemized wage statements (¶ 19), and was not paid all wages due at the time of his termination (¶ 20).

Within a few weeks of beginning Plaintiff’s employment in 2011 and continuing throughout November 2013, Sakhai repeatedly brushed and rubbed against Plaintiff by toughing Plaintiff’s groin, chest, and buttocks, and repeatedly asked Plaintiff to undress in front of him. ¶ 21. When Plaintiff complained about Plaintiff’s practices, Defendants retaliated against Plaintiff by terminating Plaintiff. ¶ 22.

Sakhai and CCV argue that Plaintiff fails to allege sufficient facts to support the claims in the Complaint. The Court disagrees. As summarized above, Plaintiff has alleged sufficient facts to support the claims in the Complaint.

4. A Trip to New York
Sakhai submits that A Trip to New York is a fictitious business name. Sakhai RJN Ex. A. However, this only responds to the allegations of the Complaint, which alleges that A Trip to New York is an unknown business entity qualified to do business in the County of Los Angeles and which Sakha is the managing agent, owner, operator, supervisor, and/or partner. Complaint ¶ 5. This does not render the naming of A Trip to New York as a defendant improper.

5. Ruling
The demurrers by Sakha and CCV are overruled. Defendants to answer within 10 days.