2013-00155613-CU-OE
Marina Espinoza vs. J&M Sales Inc
Nature of Proceeding: Hearing on Demurrer
Filed By: Kelson, Anne S.
Defendant J&M Sales’ (“J&M”) Demurrer to the complaint is SUSTAINED with leave to
amend as follows:
st
Plaintiff’s original complaint sets forth 10 causes of action: the 1 for harassment-
hostile work environment; 2nd for retaliation in violation of Gov. Code sec. 12940(h)
rd
and Labor Code sec. 1102.5; the 3 for wrongful termination in violation of public
th th
policy;the 4 for failure to prevent harassment or retaliation; the 5 for failure to pay
th
meal and rest period compensation (Labor Code § 226.7); the 6 for failure to furnish
wage and hour statements (Labor Code§§ 226 and 226.3); the 7th for failure to maintain payroll records (Labor Code §§ 1174 and 1174.5); the 8 for waiting time
th
penalties (Labor Code §§ 201, 202 and 203); the 9 for conversion (Civil Code, sec.
th
3336 and 3294); and the 10 for unfair competition (Bus. & Prof. Code, sec. 17200, et
seq.) Defendant contends plaintiff fails to state facts sufficient to constitute a cause of
action a cause of action for any of the claims. Plaintiff alleges she was employed by
Defendant as a Key Carrier. Plaintiff alleges that she was denied rest and lunch breaks
which gives rise to ten causes of action.
The notice of motion does not provide notice of the Court’s tentative ruling system as
required with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the
Sacramento Superior Court are available on the Court’s website at
ordered to notify opposing party immediately of the tentative ruling system to be
available at the hearing, in person or by telephone, in the event the opposing party
appears without following the procedures set forth in Local rule 1.06(B).
1st Cause of Action
Harassment-Hostile Work Environment
SUSTAINED with leave to amend.
Plaintiff alleges she was subjected to a hostile work environment. However, the
complaint alleges that plaintiff complained of missed meal breaks and rest breaks,
which resulted in a hostile work environment claim based on the same missed breaks.
Mere allegations of missing meal breaks and rest breaks alone categorically do not
rise to the level of conduct so objectively offensive as to alter the conditions of Plaintiff
s employment so as give rise to a hostile work environment. GC sec. 12940(h).
As this is the initial pleading, Plaintiff may have leave to amend.
2nd Cause of Action
Retaliation in Violation of Government Code Sec. 12940(h) and Labor Code Sec.
1102.5(c)
SUSTAINED with leave to amend.
Plaintiff alleges that Defendant retaliated against her for refusing to engage in illegal
activities in violation of state or federal law. Plaintiff alleges that she was subjected to
“on-duty” lunches and denied relief for breaks or lunches following the implementation
of a meal and rest break policy by Defendant.
Defendant contends that the complaint is devoid of any facts to establish any causal
link between any adverse action in response to Plaintiff’s protected complaint
concerning denial of meal breaks and rest breaks. “The claimant establishes a prima
facie case by showing that the employee ‘engaged in a protected activity, his employer
subjected him to adverse employment action, and there is a causal link between the
protected activity and the employer’s action.’” California Fair Employment and
Housing Com’n v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1018. There
must be evidence of an adverse action that occurred as a result of the protected
activity but there are no alleged facts to support this finding.
As this is the initial pleading, Plaintiff may have leave to amend.
3rd Cause of Action
Wrongful Termination
SUSTAINED with leave to amend.
Plaintiff alleges that she was compelled to quit due to harassment and a failure to
correct a hostile work environment. Defendant contends that constructive discharge
requires that the employee plead “that a reasonable person in the employee’s position
would be compelled to resign.” Furthermore, the plaintiff must allege extraordinary and
egregious conditions. The Plaintiff must plead with particularity facts leading to the
resignation. Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222
Cal.App.4th 819, 827. See also Tameny v. Atlantic Richfield Co. (1980) 27 Cal. 3d
167.
As this is the initial pleading, Plaintiff may have leave to amend.
4th Cause of Action
Failure to Prevent Harassment or Retaliation under Government Code Sec.
12940(k) and (j)
SUSTAINED with leave to amend.
Plaintiff alleges that employers failed to take affirmative, preventative action to prevent
harassment in the work place.
As the Court has concluded that Plaintiff failed to allege sufficient facts to establish a
harassment claim, and Plaintiffs failure to prevent harassment and discrimination is
cause of action is a derivative claim, Plaintiff has failed to allege sufficient facts to
support this cause of action.
5th Cause of Action
Failure to Pay Meal and Rest Period Compensation (Labor Code Sec. 226.7)
SUSTAINED with leave to amend.
Plaintiff alleges that she was routinely denied meal and rest periods during her work
shifts after the employee of Defendant became Plaintiff’s supervisor. (See Complaint
p. 4 ¶ 16.)
Defendant contends that Plaintiff must plead with particularity the amount of wages
owed for the time period. Defendant also points out possible discrepancies between
the time periods in which Plaintiff contends Defendant failed to provide meal breaks,
rest breaks, and the appropriate compensation.
Defendant also contends that the Demurrer should be sustained without leave to
amend because Plaintiff seeks penalties beyond a one year statute of limitations.
Defendant also argues that Labor Code Sec. 226.7 is a penalty statute. The California
Supreme Court disagrees. “We hold that section 226.7 ‘s plain language, the
administrative and legislative history, and the compensatory purpose of the remedy
compel the conclusion that the “additional hour of pay” is a premium wage, not a
penalty. “ Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1120.
The Court agrees with defendant to the extent that Plaintiff fails to provide facts
sufficient to show a liability of J&M by failing to provide appropriate compensation
amounts.
6th Cause of Action
Failure to Furnish Wage and Hour Statements (Labor Code Sections 226 and
226.3)
SUSTAINED with leave to amend.
Plaintiff alleges that Defendants failed to provide Plaintiff with timely and accurate
wage and hour statements in violation of Labor Code §§ 226, 226.3 and 558.
Defendant contends that plaintiff does not allege any specific facts concerning how
Defendant failed to provide accurate wage statements. No specific facts regarding
discrepancies between wage statements provided and a lack thereof are alleged. The
court agrees.
7th Cause of Action
Failure to Maintain Payroll Records (Labor Code Sections 1174 and 1174.5)
SUSTAINED with leave to amend.
Plaintiff alleges that Defendant failed to maintain complete and accurate payroll
records.
Defendant asserts that because Plaintiff did not provide specific facts regarding the
alleged inaccuracies, Defendant did not receive adequate notice of the grounds for
which Plaintiff seeks relief. Again, the court agrees.
8th Cause of Action
Waiting Time Penalties (Labor Code Sections 201, 202, and 203)
SUSTAINED with leave to amend.
Plaintiff alleges Defendant willfully failed to pay wages and other compensation due to
her 72 hours after her resignation.
Defendant contends Plaintiff fails to state sufficient facts to give rise to her claim. A
complaint in a statutory action for unpaid wages does not state a cause of action
against the employer unless it alleges the amount of wages accrued and unpaid at the
time the employment relationship terminated. Oppenheimer v. Moebius, 151 Cal. App.
2d 818, 819 (1957) Here, Plaintiff does not state with specificity the required amount of
penalties for her alleged unpaid wait time penalties.
9th Cause of Action
Conversion (Civil Code Sections 333 and 3294)
SUSTAINED with leave to amend.
Plaintiff alleges that Defendant converted Plaintiff’s wages by not paying Plaintiff.
Defendant argues that Plaintiff must state a specific sum for a conversion claim for
money. Plaintiff has not provided a specific sum identifiable to an account. “Money
cannot be the subject of a cause of action for conversion unless there is a specific,
identifiable sum involved, such as where an agent accepts a sum of money to be paid
to another and fails to make the payment.” PCO, Inc. v. Christensen, Miller, Fink,
Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395. The court is
persuaded by defendant’s reasoning.
10th Cause of Action
Unfair Competition (Bus & Prof. Code Section 17200)
SUSTAINED with leave to amend.
Plaintiff alleges that Defendant misappropriated and converted her unpaid wages and
other monies owed to her in violation of California’s Unfair Competition laws.
Defendant contends that Plaintiff has not pleaded with reasonable particularity the
facts supporting the elements of the violation of Unfair Competition Law. “A plaintiff
alleging unfair business practices under these statutes must state with reasonable
particularity the facts supporting the statutory elements of the violation.” Khoury v.
Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.
Plaintiff shall file and serve her First Amended Complaint not later than Monday, June
23, 2014. The responsive pleading shall be due filed and served 10 days later (15
days if service is by mail).
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Link to this page