Lawzilla Additional Information: Plaintiff’s attorney is Ernesto Sanchez

18-CIV-00839 JOSEE LUIS RAMIREZ FLORES VS. NEW DIM SUM KING INC., ET AL.

JOSEE LUIS RAMIREZ FLORES NEW DIM SUM KING INC.
ERNESTO SANCHEZ LEON E. JEW

DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINT TENTATIVE RULING:

Defendants New Dim Sum King, Inc.’s and Andy Chow’s Demurrer to Plaintiff Josee Luis Ramirez Flores’ 2-20-18 Complaint is ruled upon as follows:

As to the Fifth Cause of Action asserting a Private Attorney General Act (PAGA) claim under Labor Code § 2698 et. seq., the Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Before an employee can bring a civil suit for a violation of the Labor Code, a Plaintiff must give written notice to the Labor and Workforce Development Agency (LWDA) and the employer of the specific provisions of the Labor Code alleged to have been violated. Plaintiff sent two letters to the Labor Workforce Development Agency (LWDA) dated 10-1817 and 2-7-18, neither of which identify the position(s) Plaintiff held, nor the dates/time period Plaintiff allegedly worked for Defendants. The letters identify the statutes allegedly violated, and parrot the language of the statutes (“Defendants failed to pay all wages,” “denied Plaintiff rest breaks,” “failed to provide Plaintiffs with accurate itemized wage statements,” etc.). Mimicking the words of the statute, without alleging specific facts pertaining to Plaintiff, including identifying Plaintiff’s position and employment dates, does not comply with Labor Code § 2699.3. See Alcantar v. Hobart Serv., 800 F.3d 1047, 1057 (9th Cir. 2015) (characterizing LWDA letter as “a string of legal conclusions with no factual allegations or theories of liability to support them … [t]he only facts or theories that could be read into this letter are those implied by the claimed violations of specific sections of the California Labor Code.”). Plaintiff herein fails to explain how the LWDA letters differ in a significant way from the Alcantar letter, which the appellate court held was insufficient because it lacks any supporting facts and was just conclusory. The Court finds that leave to amend would be futile. If Plaintiff believes amendment would not be futile, Plaintiff should provide an explanation at the hearing.

As to the Sixth Cause of Action for “discrimination” and the Seventh Cause of Action for “retaliation,” the Demurrer is OVERRULED.

On Demurrer, the Court reads the allegations as a whole, and views them liberally, in a light favorable to the pleading party. Defendants primarily argue the Complaint alleges no facts that can reasonably support a claim of discrimination or retaliation, because Defendants’ alleged act of reducing Plaintiff’s hours after being informed of Plaintiff’s back injury is not discrimination or retaliation. Defendants cite statutes and case law stating that reducing an injured employee’s hours, in fact, can constitute a “reasonable accommodation.” It is not inconceivable, however, that an employer could cut an employee’s hours out of discriminatory and/or retaliatory motives. On Demurrer, the Court cannot determine/assess Defendants’ motive/reason for reducing Plaintiff’s hours. Plaintiff notes that, as alleged, he never requested that his hours be reduced. Thus, while the alleged facts may not form the basis for a particularly compelling discrimination and/or retaliation claim, the Court cannot conclude that these claims are not sufficiently stated at the pleading stage.

Defendants also dispute whether the Complaint alleges enough facts to establish whether Plaintiff is a “qualified” individual with a disability (meaning Plaintiff could perform, with or without reasonable accommodation, his essential job functions). The Complaint, however, alleges that Defendants continued to employ Plaintiff, including requiring him to lift heavy objects, even after the alleged back injury in 2017. Construing the allegations in Plaintiff’s favor, the Court finds the Complaint sufficiently alleges that Plaintiff was a qualified individual with a disability.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, DEMURRING PARTY is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312. The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.