2017-00217749-CU-OE

Stacey Johnson vs. Center Point, Inc.

Nature of Proceeding: Motion to Strike Portions of 1st Amended Complaint

Filed By: Ullrich, Gabriel

Defendant Center Point, Inc.’s (“Defendant”) motion to strike portions of the First Amended Complaint (“FAC”) is ruled upon as follows.

The Court’s concurrent ruling on Defendant’s demurrer to the FAC, which was sustained with leave to amend, is incorporated herein.

Defendant moves to strike all references to Plaintiffs’ request for injunctive relief, criminal statutes (Labor Code sections 216 and 226.6), and allegations about an unstated “wage scale” pursuant to Code of Civil Procedure section 436.

Under section 436, the court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” as well as “all or part of any pleading not drawn or filed in conformity with the laws of this state.” (Code Civ. Proc. § 436, subds. (a) and (b).)

Motions to strike are disfavored. Courts considering such motions must presume the allegations contained therein are true and must consider those allegations in context. ( Clauson v Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The use of the motion to strike should be cautious and sparing. It should not be a procedural “line item veto” for the civil defendant. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)

Injunctive Relief

Defendant contends Plaintiffs, as former employees, lack standing to seek injunctive relief because they cannot show a likelihood they will be harmed in the future if the injunction is not granted. Defendants also contend the prayer for injunctive relief is uncertain and vague and should, therefore, be stricken. The Court agrees with both

grounds.

Plaintiffs allege they left the employment of Defendant in July of 2016. (FAC ¶ 2.) As former employees, they lack standing to seek injunctive relief on behalf of themselves. (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1004.)

An allegation that is not essential to the statement of a claim or defense is an immaterial allegation that is subject to be stricken as irrelevant matter (Code Civ. Proc. §§ 431.10(b)(1), (c), 436(a)).

While Plaintiffs allege they have standing to seek injunction relief on behalf of other employees, Plaintiffs are not bringing a putative class action, nor have they set forth any authority they would have standing to seek injunctive relief on behalf of a class if they are no longer current employees. (Wal-Mart Stores, Inc. v. Dukes (2014) 131 S.Ct. 2541, 2559-2560; Wang v. Chinese Daily News (9th Cir. 2013) 509 F.3d 1168, 1189 [“[I]t appears that none of the named plaintiffs has standing to pursue injunctive relief on behalf of the class, as none of them is a current CDC employee.”]; Nelson v. Dollar Tree Stores, Inc. (E.D.Cal. 2011) 2011 U.S.Dist.LEXIS 90531, *13 [‘Plaintiff’s request for injunctive relief is not available to him as a matter of law. Former employees lack standing to seek injunctive relief because they ‘would not stand to benefit from an injunction…at [their] former place of work.'”])

Lastly, Plaintiffs’ prayer for injunctive relief is uncertain and vague. Plaintiff’s prayer seeks “restitution and other equitable or injunctive relief … .” (FAC at Prayer.)

Defendant’s motion to strike claims regarding injunctive relief is GRANTED.

Citations to Criminal Statutes

Defendant moves to strike all references to Labor Code sections 216 and 226.6 on the grounds they are criminal statutes that do not give rise to any civil liability. Defendants set forth no legal authority in support of their argument that references to criminal statutes must be stricken simply because the action is civil rather than criminal. Further, Plaintiffs contend these allegations are relevant to their claim for violation of Business and Professions Code section 17200, which permits a plaintiff to “borrow” violations of other laws in support. (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 383.) Business and Professions Code section 17200, defines unfair competition as “any unlawful, unfair or fraudulent business act or practice ….” The

“unlawful” practices prohibited by section 17200 are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made. ( People v. McKale (1979) 25 Cal.3d 626, 632.)

Defendant’s motion to strike citations to Labor Code sections 216 and 226.6 is DENIED.

Wage Scale

Defendant moves to strike all allegations about an unstated “wage scale” on the grounds that the FAC does not identify where the “wage scale” comes from and Plaintiffs have mis-cited Labor Code section 222. Plaintiffs concede they have incorrectly cited to Labor Code section 222 instead of 223 and request leave to amend

to correct the error.

Based on the foregoing, it appears Plaintiffs have made a clerical error resulting in ambiguity. The Court is not persuaded that Plaintiffs’ references to a “wage scale” are improper.

Accordingly, Defendant’s motion to strike allegations about a “wage scale” is DENIED, but Plaintiffs are given leave to amend to fix the clerical error citing to the incorrect Labor Code section.

Conclusion

Defendant’s motion to strike claims regarding injunctive relief is GRANTED.

Defendant’s motion to strike citations to Labor Code sections 216 and 226.6 and allegations about a “wage scale” is DENIED, but Plaintiffs are given leave to amend to fix the clerical error citing to the incorrect Labor Code section.

Plaintiffs may file and serve a Second Amended Complaint no later than April 19, 2018

. (Although not required by statute or court rule, Plaintiffs are directed to present the clerk a copy of this ruling at the time of filing the first amended complaint.)

Defendant may file and serve a response within 30 days of service of the Second Amended Complaint, 35 days if served by mail.