Case Number: 19STCV07231 Hearing Date: February 19, 2020 Dept: 58

Judge John P. Doyle
Department 58

Hearing Date: February 19, 2020

Case Name: Palma v. Cielito Lindo – Mi Pueblo, et al.

Case No.: 19STCV07231

Motion: Demurrer

Moving Party: Defendants 100 Mariscos Cielito Lindo and Carlos Figueroa

Responding Party: Plaintiff Sandra Palma

Tentative Ruling: The Demurrer is overruled.

On September 10, 2019, Plaintiff filed the operative First Amended Complaint (“FAC”) for (1) FEHA discrimination, (2) FEHA retaliation, (3) FEHA failure to prevent discrimination and retaliation, (4) declaratory judgment, (5) wrongful termination in violation of public policy, (6) failure to pay wages, (7) failure to pay minimum wages, (8) failure to pay overtime compensation, (9) failure to provide meal and rest periods, (10) failure to provide itemized wage statements, (11) waiting time penalties, (12) unfair competition, and (13) failure to permit inspection of personnel and payroll records.

Defendants 100 Mariscos Cielito Lindo and Carlos Figueroa demur to the first through fifth causes of action for failure to state sufficient facts. Defendants argue, “[s]ince the DFEH Complaints naming 100 Mariscos Cielito Lindo and Carlos Figueroa were both filed after the expiration of Plaintiffs one-year deadline to file an administrative complaint, Plaintiff failed to timely file the administrative complaint as to Defendants, and thus, cannot establish a required element for her first through fifth causes of action.” That is, Defendants argue a timely DFEH complaint was filed only as to Defendant Cielito Lindo – Mi Pueblo (Gov. Code § 12960), and that subsequent amendments to the subject DFEH complaint adding demurring Defendants were untimely.

On January 13, 2020, the Court tentatively ruled as follows,

As an initial matter, Defendants’ arguments as to FEHA exhaustion do not apply to Plaintiff’s Tameny claim. (Stevenson v. Superior Court (1997) 16 Cal. 4th 880, 904–06.)

Further, assuming Defendants’ exhaustion arguments have merit, to the extent demurring Defendants are properly alleged to be alter egos of Defendant Cielito Lindo – Mi Pueblo as to whom Plaintiff properly exhausted (FAC ¶¶ 14-17; Rutherford Holding, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 236), they too may be held liable for FEHA violations.

The Court also notes that, while there are currently no facts in the FAC supporting such, Gov. Code § 12960(e)(2) tolls the time to file a DFEH complaint “[f]or a period of time not to exceed one year following a rebutted presumption of the identity of the person’s employer under Section 12928, in order to allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of the actual employer.”

In sum, the Demurrer is overruled.

The Court ultimately overruled the Demurrer as to the fourth and fifth causes of action but continued the Demurrer as to the first three causes of action for supplemental briefing.

After having considered the supplemental briefing, the Court stands corrected with respect to its analysis, but not its conclusion.

Specifically, the alter ego doctrine does not apparently remedy any failure to exhaust. (Medix Ambulance Serv., Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116 [“None of these cases held that a harassment case may proceed against one not mentioned in the administrative complaint. Nor is there any authority for plaintiff’s unsupported argument that the doctrine of alter ego somehow obviates compliance with the statutory requirements.”].)

Further, Gov. Code § 12960(e)(2) does not apply because Defendant Figueroa is listed as Plaintiff’s employer in her W-2 tax form. (Request for Judicial Notice, Exhibit A[1]; see also Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 826–27 [“The second exception was recently enacted (see Stats. 1999, ch. 797, § 2) in response to concern that ‘the employee is not always able to determine the precise name or the identity of his or her employer. The problem occurs, for example, where there are parent and subsidiary corporations with similar names, but the employee is unaware of any distinction between the two entities. Very often these distinct entities are housed in the same facility which further complicate[s] identification of the proper party to be named. [¶] If the employee inadvertently misidentifies the employer in the original [Department of Fair Employment and Housing (Department)] complaint, the real employer may later claim that the employee has failed to exhaust his or her administrative remedies prior to suit within the time prescribed by law and is barred from proceeding with litigation.’ (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 211 (1999-2000 Reg. Sess.) as amended Sept. 1, 1999, p. 4.) Accordingly, the Legislature provided for ‘a rebuttable presumption that “employer,” as defined by [the FEHA,] includes any person or entity identified as the employer on the employee’s Federal Form W-2 (Wage and Tax Statement)’ (§ 12928; see Stats. 1999, ch. 797, § 1) and extended the one-year statute of limitations an additional year in the event that presumption is rebutted ‘to allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of the actual employer.’ (§ 12960.)”] (dissent).)

On the other hand, the relation-back doctrine applies such that Plaintiff did not fail to timely exhaust. (See Rodriguez v. Airborne Express 898 (9th Cir. 2001) 265 F.3d 890, 898 [“The relation-back doctrine is available in appropriate circumstances to render timely an otherwise untimely amendment to a charge under FEHA.”].)

Indeed,

As a general rule, “an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176, 89 Cal.Rptr.2d 20, italics added.) But where an amendment does not add a “new” defendant, but simply corrects a misnomer by which an “old” defendant was sued, case law recognizes an exception to the general rule of no relation back. (E.g., Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468, 1470–1471, 6 Cal.Rptr.2d 563; Kerr–McGee Chemical Corp. v. Superior Court (1984) 160 Cal.App.3d 594, 599 & fn. 3, 206 Cal.Rptr. 654; Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 491, 159 Cal.Rptr. 557; Stephens v. Berry (1967) 249 Cal.App.2d 474, 479, 57 Cal.Rptr. 505.)

. . .

Whether a plaintiff may amend the complaint to change a party’s description or characterization “after the statute of limitations has run depends on whether the misdescription or mischaracterization is merely a misnomer or defect in the description or characterization, or whether it is a substitution or entire change of parties. In the former case an amendment will be allowed; in the latter, it will not be allowed.” (Thompson v. Palmer Corporation (1956) 138 Cal.App.2d 387, 390, 291 P.2d 995; accord Diliberti v. Stage Call Corp., supra, 4 Cal.App.4th 1468, 6 Cal.Rptr.2d 563; 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 1151, p. 609.) Further, as “Witkin has observed, ‘the allowance of amendment and relation back to avoid the statute of limitations does not depend on whether the parties are technically or substantially changed; rather the inquiry is as to whether the nature of the action is substantially changed.’ ” (Diliberti v. Stage Call Corp., supra, at p. 1470, 6 Cal.Rptr.2d 563; 5 Witkin, supra, § 1151, p. 609.)

For this reason, courts have long allowed a plaintiff to correct the name of a defendant who conducts business under a fictitious name after the statute of limitations has run, even when no deceit was intended. (Walsh v. Decoto (1920) 49 Cal.App. 737, 739–740, 194 P. 298 [amendment after statute of limitations expired properly allowed to permit plaintiff to substitute Decoto “doing business under the name and style” of Blue Taxicab Corporation in place of named defendant Blue Taxicab Corporation]; but see Kerr–McGee Chemical Corp. v. Superior Court, supra, 160 Cal.App.3d 594, 599, 206 Cal.Rptr. 654.)

(Hawkins v. Pac. Coast Bldg. Prod., Inc. (2004) 124 Cal.App.4th 1497, 1503–04 (“Hawkins”).)

Per Hawkins, the amended DFEH complaints relate back to the filing date of the original DFEH complaint because Cielito Lindo – Mi Pueblo and 100 Mariscos Cielito Lindo are alleged to be dbas for Defendant Figueroa. (FAC ¶ 3.)

Defendants argue Hawkins does not apply because Hawkins came to its conclusions by incorporating the doe amendment analysis relating to Code Civ. Proc. § 474, which does not here aid Plaintiff.

However, the Hawkins court did not rely on Code Civ. Proc. § 474 but instead merely mentioned Code Civ. Proc. § 474 in the procedural history for the case—specifically, that a defendant had brought a motion to quash service of process for failure to comply with the service requirements for fictitious entities. (Hawkins, supra, 124 Cal.App.4th at p. 1501 fn. 2-3.)

Here, “[i]n our view, [Plaintiff] ‘committed an excusable mistake[2] attributable to … the use of fictitious names’ (see Mayberry v. Coca Cola Bottling Co., supra, 244 Cal.App.2d 350, 353, 53 Cal.Rptr. 317).” (Id. at p. 1505.) In sum, Plaintiff did not fail to timely exhaust such that the Demurrer is overruled.

[1] The Request for Judicial Notice is granted.

[2] Plaintiff’s W-2 does not necessarily render her mistake inexcusable.