Case Number: NC059426 Hearing Date: August 04, 2015 Dept: S27
SUMMARY OF FACTS
On March 20, 2014, Plaintiff, Mike Zavialov (“Plaintiff”) commenced an action against Defendant, Albert Jewelry & Loan, Inc. (“Defendant”), alleging that Defendant failed to pay Plaintiff earned wages for hours and days worked, failed to provide Plaintiff with meal and rest breaks, failed to maintain accurate time records, and failed to provide Plaintiff with accurate wage statements.

COMPLAINT
The Complaint alleges causes of action for: (1) failure to pay earned wages, Labor Code sections 204, 206, 216, 218.5, 218.6; (2) failure to pay overtime compensation, Labor Code sections 510 and 1194; (3) failure to pay meal and rest period compensation, Labor Code section 226.7; (4) failure to furnish wage and hour statements, Labor Code sections 226, 226.3; and (5) unfair competition, Cal. Bus. & Prof. Code sections 17200, et seq.

DEMURRER
On October 15, 2014, Defendant demurred to all the causes of action of the Complaint on the grounds that they fail to state facts sufficient to constitute causes of action and are uncertain, under Code of Civil Procedure section 403.10(e), (f). On October 16, 2014, Defendant moved to strike civil penalties from the Complaint.

CAUSE OF ACTION 1: FAILURE TO PAY EARNED WAGES
To state a claim for failure to pay wages, Plaintiff must plead the following: (1) Plaintiff performed work for the Defendant; (2) Defendant owes wages under the terms of the employment; and (3) the amount of unpaid wages. (CACI 2700)

Plaintiff’s Complaint is devoid of facts. Plaintiff has failed to plead the amount of unpaid wages. Plaintiff has failed to plead the specific period for which his wages were unpaid. Plaintiff pleads only that “Defendants failed and refused to pay Plaintiff all wages earned.” (Complaint, Paragraph 24)

CAUSE OF ACTION 2: FAILURE TO PAY OVERTIME COMPENSATION
To state a cause of action for failure to pay overtime compensation, Plaintiff must plead facts showing the following elements: (1) plaintiff performed work for defendant; (2) plaintiff worked overtime hours; (3) defendant knew or should have known that plaintiff worked overtime hours; (4) plaintiff was not paid, or was paid less than the overtime rate, for some or all of the overtime hours worked; and (5) the amount of overtime pay owed. (Labor Code section 1194)

Plaintiff’s Complaint is devoid of facts. Plaintiff alleges only that “Defendants routinely required Plaintiff to work more than eight hours per day” and “Defendants routinely required Plaintiff to work more than forty hours per week.” (Complaint, Paragraphs 14, 28) This unsupported conclusion lacks specific facts.

CAUSE OF ACTION 3: FAILURE TO PAY MEAL AND REST BREAK
To plead a cause of action for failure to pay meal and rest breaks, Plaintiff must plead facts showing the following elements: (1) Plaintiff worked the requisite hours to be entitled to meal periods; (2) the number of work days that Plaintiff was not provided meal periods; (3) his hourly rate of pay; and (4) the total amount of penalties owed. (Oppenheimer v. Moebuis (1957) 151 Cal.App.2d 818, 819)

Plaintiff alleges only that “Defendants failed and refused to provide Plaintiff with meal and rest periods during his work shifts, and failed and refused to compensate Plaintiff when he did work during said meal and rest periods.” (Complaint, Paragraph 32) This generality is devoid of any facts and insufficient to plead this cause of action.

CAUSE OF ACTION 4: FAILURE TO FURNISH WAGE AND HOUR STATEMENTS
“To recover damages under section 226, subdivision (e), an employee must suffer injury as a result of knowing and intentional failure by an employer to comply with the statute.” (Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1143)

Plaintiff has not alleged what information was missing from his wage statements or any injury arising from the missing information from his wage statements.

CAUSE OF ACTION 5: UNFAIR COMPETITION
An action under the Unfair Competition Law is “equitable in nature; damages cannot be recovered.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144) Under the Unfair Competition Law prevailing plaintiffs are generally limited to injunctive relief and restitution. (Id.)

Plaintiff seeks remedies that are not available under the Unfair Competition Law: Labor Code penalties, accounting, and disgorgement of profits. These remedies are not recoverable under the Unfair Competition Law.

UNCERTAINTY
Defendant demurs to the entire First Amended Complaint for uncertainty.

Pursuant to Code of Civil Procedure section 430.10(f), Uncertainty is a proper demurrer ground where the pleading is ambiguous and unintelligible. Demurrers for uncertainty will only be sustained where the complaint is so bad that the defendant cannot reasonably respond – i.e., determine what issues must be admitted or denied or what counts or claims are directed against him or her. (Khoury v. Maly’s Calif., Inc. (1993) 14 Cal.App.4th 612, 616)

The Complaint is not so badly pled so that Defendant would not be able to reasonably respond to it. All of the causes of action are individually listed and are specifically directed at Defendant. The gravamen of the Complaint is that Defendant committed various violations of the Labor Code pertaining to payment of Plaintiff’s wages and compensation for meal and rest periods. Defendant has been given proper notice of the claims against it and may obtain additional documentation through discovery.

RULING
The Demurrer is sustained with 20 days leave to amend as to the first, second, third and fourth causes of action, and sustained without leave to amend as to the fifth cause of action. Defendant’s special demurrer for uncertainty is overruled.

MOTION TO STRIKE
Defendant moves to strike civil penalties from the Complaint. In light of the Court’s ruling on Defendant’s demurrer, the motion to strike is rendered moot.