Case Number: EC061858    Hearing Date: August 01, 2014    Dept: NCD

TENTATIVE RULING (8-1-14)
#2
EC 061858
WANG v. VIALOGY

Defendant Vialogy, LLC’s Demurrer to Second Amended Complaint

TENTATIVE:
Request for Judicial Notice is GRANTED.
Demurrer is SUSTAINED. The causes of action appear to be barred by applicable statutes of limitations, as the SAC again affirmatively alleges that plaintiff was terminated from her employment in December of 2007, when this action was filed on December 30, 2013, six years later. (In addition, to the extent the claims are based on an alleged failure by defendant to renew plaintiff’s visa, such application may only be pursued by a United States employer, when the SAC alleges that plaintiff is no longer an employee of defendant’s, and to extent the complaint is based on the conduct of Vialogy relating to its application for a work visa for plaintiff under federal statute, the pleading fails to plead that plaintiff has exhausted applicable administrative remedies.)

As plaintiff has failed to appropriately amend the pleading despite being permitted leave to do so with the detailed input of the court, and has failed to show how the pleading can be successfully amended to address the court’s previous concerns as well as those raised in the instant demurrer, the demurrer is sustained without further leave to amend.

Motion to strike is MOOT in light of the sustaining of the demurrer without leave to amend.

CAUSES OF ACTION: from Second Amended Complaint
1) Breach of Contract
2) Bad Faith
3) Intentional Misrepresentation
4) Intentional Interference with Business Relations
5) Failure to Pay Earned Wages and Overtime
6) Failure to Provide Meal and Rest Periods
7) Unlawful Business Practices
8) Violation of Fair Labor Standards Act
9) IIED

SUMMARY OF FACTS:
Plaintiff Na Wang, in pro per, alleges that defendant Vialogy hired her in May 2006, and agreed to sponsor plaintiff through the immigration process until plaintiff gained permanent residence status. Plaintiff alleges that defendants delayed and then finally in 2007 filed a petition without providing financial proof they could pay defendant, so that the petition was denied. Defendants appealed the decision of the USCIS in 2009. In 2012, the USCIS again requested the financial proof, and defendants denied that they had anything to do with the petition filed on behalf of plaintiff.

Plaintiff alleges that during her employment she was not paid for many hours she worked, and was denied overtime wages, and did not always receive the required break for lunch and rest periods. Plaintiff also alleges that plaintiff was terminated without good cause and despite her continued satisfactory job performance in or about December of 2007, in violation of her employment contract.

Defendant filed a demurrer to the First Amended Complaint, which was heard on May 2, 2014. Plaintiff failed to file opposition to the demurrer but appeared at the hearing. The demurrer was sustained for the reasons stated in the moving papers in a detailed minute order. The court noted,
“The FAC is one of the few pleadings which is so vague and ambiguous that a demurrer can properly be sustained to it on the ground of uncertainty.
In addition, as argued in the moving papers, the FAC fails to state any specific cause of action, or the elements of any such cause of action, and is sustained on this ground as well.”

Defendant now challenges the sufficiency of the Second Amended Complaint.

ANALYSIS:
Demurrer
Defendant argues that each of the nine new causes of action again appear to be barred by any applicable statute of limitations.

The demurrer was previously sustained as follows:
“In addition, to the extent the First Amended Complaint appears to be for some sort of wrongful conduct by defendant while plaintiff was employed, or for wrongful termination of the employment, it is alleged that the employment terminated by the end of in 2007, when this action was filed on December 30, 2013, six years later, so any claims appear to be barred by any applicable statute of limitations….

Defendant also argues that any claims sought to be asserted in the FAC appear to be barred by the applicable statute of limitations. The FAC alleges that plaintiff’s employment ended by the end of 2007. This action was filed on December 30, 2013, six years later. Whether plaintiff is claiming unpaid wages, breach of contract, fraud or wrongful termination, any of those claims would be time-barred.”

The SAC again alleges that plaintiff’s employment was terminated in December of 2007:
“Plaintiff was terminated without good cause and despite her continued satisfactory job performance on or about December 2007, in violation of the employment contract.”
[Para. 18, see also Para. 22].

This action was filed on December 30, 2013, six years later. The pleading confusingly refers to conduct to pursue the visa taken after plaintiff’s termination, but it is clear how this saves each claim. At best the pleading alleges:
“Nothwithstanding the Defendant’s action in 2012, Defendants nevertheless assured Plaintiff that Plaintiff’s [sic] will be compensated for her loss and these assurances continued until she filed claim against the Defendants.”
[Para. 19].

There is also a vague allegation that since the company moved forward with plaintiff’s case, she “believed she could come back to work for the company again.” [Para. 31].

These allegations appear to be an attempt to allege that defendant should be equitably estopped to assert the bar of the statute of limitations.

To establish the doctrine of equitable estoppel, the following elements must be pled:
1) The party to be estopped must know the facts,
2) he must intent that his conduct shall be acted upon or must so act that the party asserting estoppel had the right to believe that it was so intended,
3) the party asserting the estoppel must be ignorant of the true state of facts and
4) he must rely upon the conduct to his injury.
Leasequip, Inc. v. D. Dapeer (2002) 103 Cal.App.4th 394, 403-404. See also Evidence Code section 623.

The allegations fail to clearly allege that defendant knew any facts, intended that its conduct be acted upon, and that plaintiff was ignorant of the true facts and relied on the conduct to her detriment causing injury.

The demurrer is again sustained on this ground.

With respect to the claims concerning the alleged failure of defendant to appropriately pursue a work visa , defendant again argues that such claims are insufficient as a petition may only be pursued by a current employer, when it is conceded plaintiff was terminated in 2007, and that there is no allegation that plaintiff has exhausted her administrative remedies through the Department of Labor.

The demurrer to the FAC was previously sustained as follows:
“To the extent this is a claim to have defendant renew plaintiff’s visa, such application may only be pursued by a United States employer, when the FAC alleges that plaintiff is no longer an employee of defendant’s. Finally, to the extent this is a complaint concerning the conduct of Vialogy relating to its application for a work visa for plaintiff under federal statute, the pleading fails to plead that plaintiff has exhausted any applicable administrative remedies….
Defendant also argues that to the extent the claim appears to be to have Vialogy renew plaintiff’s visa, a petition for an H-IB visa may only be pursued by a “United States employer,” when the complaint concedes that Vialogy is no longer plaintiff’s employee. See 8 CFR 214.2(h)(i)(a).
Finally, defendant argues that to the extent plaintiff seeks to complain of the conduct of her employer relating to application for a work visa with the United States Department of Labor, plaintiff cannot pursue such a cause of action without first filing a charge with the Department of Labor’s Special Counsel for Immigration-Related Unfair Employment Practices. See Shah v. Wilco Systems, Inc. (S.D.N.Y. 2000) 126 F.Supp.2d 641, 646- 649.”

The SAC has failed to respond to these arguments, and the claims still appear to be barred.

Plaintiff has failed to correct the deficiencies in the previous pleading despite being permitted leave to do so, with the detailed input of the court.

The demurrer is therefore sustained without further leave to amend.

Motion to Strike
Since the demurrer is sustained to the entire complaint without leave to amend, the motion to strike is rendered moot.