Case Number: MC024461    Hearing Date: July 22, 2014    Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

MARLENE VASCONCELOS, )
) Case Number MC024461
Plaintiffs, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
H&J ENTERPRISES, INC. ) July 22, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The demurrer of Defendant H&J Enterprises, Inc. to the Complaint came on for hearing on July 22, 2014. Plaintiff Marlene Vasconcelos appeared through her counsel of record, ________________. Defendant H&J Enterprises, Inc. appeared through its counsel of record, ___________________________.

The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:

The demurrer of Defendant H&J Enterprises, Inc., to the second cause of action for intentional infliction of emotional distress is SUSTAINED without leave to amend. The demurrer of Defendant H&J Enterprises, Inc. to the fourth cause of action for failure to provide itemized wage statements and wages due thereunder is SUSTAINED to the extent that it seeks to recover statutory penalties, but OVERRULED to the extent that it seeks to recover corresponding lost wages and attorney’s fees, all without leave to amend.

SO ORDERED this the _____ day of July, 2014.

______________________
RANDOLPH ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

MARLENE VASCONCELOS, )
) Case Number MC024461
Plaintiffs, )
) STATEMENT OF DECISION
V )
) Date of Hearing:
H&J ENTERPRISES, INC. ) July 22, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present case arises out of an alleged wrongful discharge of Plaintiff Marlene Vasconcelos (“Plaintiff”), who was an employee of Defendant H&J Enterprises, Inc., doing business as Domino’s Pizza (“Defendant”). The alleged discharge occurred on June 18, 2012.

2. Plaintiff filed her Complaint on April 2, 2014, alleging causes of action for wrongful discharge in violation of public policy, intentional infliction of emotional distress (“IIED”), failure to pay overtime compensation, failure to provide meal and rest periods, failure to provide itemized wage statements, wrongful termination based on breach of implied in fact contract, and conversion.

3. Defendant filed its Demurrer on June 17, 2014, demurring to the second and fifth cause of action. Defendant filed its Answer on the same day.

4. Plaintiff filed her Opposition on July 9, 2014.

5. Standard for ruling on demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Cal. Code Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339.

6. A general demurrer admits the truth of all factual, material allegations properly pleaded in the challenged pleading, regardless of possible difficulties of proof. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.

7. An amended complaint that omits harmful factual allegations from a previous complaint, whether verified or unverified, without an adequate explanation for the discrepancy is regarded as a sham pleading. A court ruling on a demurrer may take judicial notice of facts alleged in a prior complaint that reveal a defect in an amended complaint, and may disregard any inconsistent allegations in the amended complaint. State ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412; see Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-26.

8. Pursuant to Cal. Code Civ. Proc. §§ 430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2001) 31 Cal.4th 1074, 1082. The burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. Id.

9. Defendant contends that the second cause of action for intentional infliction of emotional distress is vague and uncertain. Defendant also argues that the fourth cause of action for improper wage statements is time-barred by the statute of limitations.

10. Intentional Infliction of Emotional Distress – The elements for IIED are: (1) outrageous conduct by the defendant; (2) intentionally or recklessly causing emotional distress; (3) resulting in severe emotional distress. Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259. A common formulation for this is “conduct exceeding that which is usually tolerated by a decent society and of a nature which is expected to cause, and does cause, mental distress. Such outrageous behavior occurs where a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” Logan v. Southern Cal. Rapid Transit Dist., (1982) 136 Cal.App.3d 116, 130. “The only exception to [the rule that conduct be directed primarily at plaintiff is] when the defendant is aware, but acts with reckless disregard, of the plaintiff and the probability that his or her conduct will cause severe emotional distress to that plaintiff.” Christensen v. Superior Court (1991) 54 Cal.3d 868, 905.

11. Defendant argues that, except for listing the cause of action on the first page of the Complaint, a cause of action for IIED is never stated in the Complaint. Plaintiff appears to concede that this was a simple mislabeling, and does not present any argument that Plaintiff is claiming IIED. Opposition at 3:1-2.

12. Accordingly, Defendant’s demurrer is SUSTAINED without leave to amend as to the purported IIED cause of action.

13. Violation of Labor Code §226 – Defendant contends that the recovery Plaintiff seeks in her cause of action for failure to provide itemized statements is a penalty provided by statute, and therefore subject to a one year statute of limitations, which, if true, both parties apparently conceded would render Plaintiff unable to recover. Plaintiff counters that what she seeks is not, or not just, the penalty provided for under §226(e)(1). Instead, Plaintiff contends that she is seeking lost wages and attorney’s fees, which would fall under a three-year statute of limitations.

14. Labor Code §226(e)(1) sets forth alternative remedies for an employee or former employee to pursue. The employee may recover either all his actual damages, or a penalty of $50 for the initial violation and further penalties of $100 per subsequent violation, for up to $4,000. Code of Civil Procedure §338 provides a three year statute of limitations on actions based on liability created by statute, excepting penalties and forfeiture. CCP §338(a). Section 340 governs penalties and forfeitures, providing a one-year limitations period. CCP §340(a).

15. In support of its argument on demur, Defendant cites to Blackwell v. SkyWest Airlines, Inc. (S.D. Cal. 2007) 245 FRD 453. In that case, the Federal District Court confronted a class action suit where the class representative presented a claim under Labor Code §226(a). In that case, the Plaintiffs were seeking “$50 per employee for the initial pay period in which [defendant] failed to provide accurate wage statements and $100 per employee for each subsequent violation, for a maximum of $4,000 per employee.” Id. at 466. The Federal Court held against the plaintiff, noting that the claim “constitutes a penalty and is therefore governed by a one-year statute of limitations under California Code of Civil Procedure §340(a).” Id. at 462. As such, the plaintiff had no standing. Defendant argues that the reasoning in Blackwell is applicable here because Plaintiff is suing under the same provisions, and therefore the one-year period under CCP §340 is applicable.

16. Plaintiff, on the other hand, contends that it is CCP §338 that controls because she seeks her actual damages, as well as injunctive relief, rather than simply for the penalty provided under §226. In support, Plaintiff cites to the unpublished Federal Court case Singer v. Becton, Dickinson & Co. (S.D. Cal. 2008) 2008 WL 2899825. In that case, the plaintiff also brought suit against defendant for Labor Code §226 violations. The defendant brought a motion to dismiss pursuant to Federal Rules of Civil Procedure rule 12(b)(6) for failure to state a claim. The defendant in Singer relied heavily on the Blackwell opinion to suggest that plaintiff’s complaint should be dismissed. In finding for the plaintiff, the Federal Court noted that the Blackwell case “did not discuss whether a plaintiff’s claim for actual damages or injunctive relief under 226(a) would be properly characterized as penalty seeking.” Id. at 5. As such, the Federal Court held that the plaintiff’s claims for actual damages were timely because they fell within the ambit of CCP §338(a)’s three-year statute of limitation.

17. Although our own courts have not specifically encountered the question, other cases interpreting §340 and the distinction between a statutory penalty and statutory liability suggest that Plaintiff’s claim should proceed. For example, in People ex rel. Dept. of Conservation v. Triplett (1996) 48 Cal.App.4th 233, the Court of Appeal for the Fifth District noted that a statutory penalty is generally a law “compelling a defendant to pay a plaintiff other than what is necessary to compensate him for a legal damage done him by the former.” Id. at 252. Similarly, the Court of Appeal for the Fourth District has stated that §340 applies in “situations where an individual is allowed to recover against a wrongdoer as a satisfaction for the wrong or injury suffered, and without reference to the actual damage sustained.” Low v. Lan (2002) 96 Cal.App.4th 1371, 1381 (internal citations omitted)(emphasis added). In the same vein, the Court of Appeal for the Second District noted that a statutory imposition “which provide for damages that are in addition to actual losses incurred, or not based upon actual injury, are generally considered penal in nature and thus governed by the one-year period of limitations.” Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805, 842 (internal citations omitted). See Also Ashland Oil Co. of California v. Union Oil Co. of California (Temp. Emer. Ct. App. 1977) 567 F.2d 984, 991 (“An action for compensation logically is not an action upon a statute for a penalty or forfeiture).

18. As Plaintiff notes in Opposition, the Complaint is not seeking recovery pursuant to the penalty provisions of §226(e); rather, Plaintiff seeks to recover her actual damages, as well as her attorney’s fees as provided for by statute. Therefore, the recovery sought here is directly related to the alleged actual injury to the Plaintiff. As such, it cannot be said that the recovery sought is “without reference” to actual damage. Because Plaintiff is not seeking the penalties provided under §226(e)(1), the opinion stated in Singer v. Becton, Dickinson & Co., supra, is persuasive.

19. Accordingly, the demurrer to the fourth cause of action is SUSTAINED to the extent that it seeks to recover statutory penalties, but OVERRULED to the extent that it seeks to recover corresponding lost wages and attorney’s fees.

SO ORDERED AND ADJUDGED this the ______ day of July, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE