CIV527399 DENIS GLAZER VS. SUNNYVALE MASSAGE LLC, ET AL.

DENIS GLAZER STAN MALLISON

SUNNYVALE MASSAGE LLC BENJAMIN A. EMMERT

7. SUNNYVALE MASSAGE, LLC AND LISA METEYER’S MOTION to strike portions of plaintiff’s complaint

TENTATIVE RULING:

Defendant Lisa Meteyer’s (“Meteyer”) Motion to Strike Portions of Plaintiff’s Complaint is DROPPED as moot in light of the court granting Meteyer’s motion for judgment on the pleadings as to all claims.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312. The proposed order is to be submitted directly to Judge Susan L. Greenberg, Department 3.

8. SUNNYVALE MASSAGE, LLC AND LISA METEYER’S MOTION FOR JUDGMENT ON THE PLEADINGS

TENTATIVE RULING:

Defendant Lisa Meteyer’s (“Meteyer”) Motion for Judgment on the Pleadings is ruled on as follows:

Plaintiff brings this action as a private attorney general (“PAGA”) against Defendants Sunnyvale Massage, LLC, and Meteyer for wage and hour violations.

Meteyer moves for judgment on the pleading on the ground that she cannot be held personally liable as Plaintiff’s “employer” as a matter of law. In opposition, Plaintiff asserts that these claims are not brought against Defendant as an “employer,” but rather individually under a “causation” theory of liability under Labor Code sections 558 and 1197.1. (See Plaintiff’s Opposition, 1:9-13, 10:14-16.)

Thus, since Plaintiff concedes that these claims are not brought against Meteyer as Plaintiff’s employer, the court looks at whether these claims may be brought against Meteyer based on a “causation” theory under Labor Code sections 558 and 1197.1.

1. Plaintiff fails to allege facts sufficient to support these claims based on Labor Code section 558.

Section 558(a) states:

(a) Any employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the Industrial Welfare Commission shall be subject to a civil penalty as follows….

(Labor Code § 558(a).) Thus, the express language of section 558(a) provides for liability not only of any “employer,” but also any “other person acting on behalf of an employer….” On its face, the statute supports that liability is not limited solely to an employer, and may also be alleged against Meteyer. (See Belasco v. Wells (2015) 234 Cal.App.4th 409, 419 [in construing statutes, the court looks first to the words of the statute in determining the Legislature’s intent because statutory language is generally the most reliable indicator].)

Nevertheless, in order to allege such liability against Meteyer, Plaintiff must allege facts to support that Meteyer cause to be violated “a section of this chapter or any provision regulating hours and days of work in any order of the Industrial Welfare Commission….” Here, Plaintiff has not alleged any facts to support that Meteyer caused any of the claimed violations. Plaintiff alleges only “[o]n information and belief, LISA METEYER (“METEYER”) is the owner, supervisor, and primary executive of SUNNYVALE and METEYER caused the violations at issue in this complaint.” (Comp. ¶ 7.) This allegation regarding causation is conclusory, and therefore insufficient to support these claims.

Reynolds v. Bement (2005) 36 Cal.4th 1075, is consistent with this interpretation. In Reynolds, the court examined whether individual directors, officers and shareholders could be held liable for violation of Labor Code section 1194. The IWC’s definition of “employer” set forth in Wage Order No. 9, included an individual “who exercises control over the wages, hours or working conditions of any person.” (Id. at 1085.) The California Supreme Court found that “[h]ad the Legislature meant in section 1194 to expose to personal civil liability any corporate agent who “exercises control” over an employee’s wages, hours or working conditions, it would have manifested its intent more clearly than by mere silence after the IWC’s promulgation of Wage Order No. 9.” (Id. at 1088.) Further, in response to the DLSE’s concern that failure to adopt corporate agent liability would pose an obstacle to the Labor Commissioner’s ability to recover some wages owed to California employees, the court found that there are other means by which an employee can seek recovery against a corporate agent, including Labor Code section 558(a). (Id. at 1088-1089.) Thus, the court finds that Reynolds supports that a claim may be brought against Meteyer under section 558(a).

Meteyer also argues that liability cannot be imposed under section 558 because then the subsequent passage of Labor Code section 558.1, would be duplicative. The court finds this argument unpersuasive. First, section 558.1 provides for liability for a broader range of claims than section 558. Second, it provides that “[a]ny employer or other person acting on behalf of the employer” may be held liable as the employer for such violation. “Other person acting on behalf of employer” is “limited to a natural person who is an owner, director, officer, or managing agent of the employer, and the term “managing agent” has the same meaning as in subdivision (b) of Section 3294 of the Civil Code.” (C.C.P. § 558.1(b).) Subdivision (c) states that “[n]othing in this section shall be construed to limit the definition of employer under existing law.” (C.C.P. § 558.1(c).) Thus, the Legislature’s intent under section 558.1 appears to be to broaden an employer’s liability, whereas section 558 provides for civil penalties for an employer and other person acting on behalf of the employer, but limits such liability to the civil penalties set forth in section 558.

Meteyer’s motion is GRANTED WITH LEAVE TO AMEND as to all four claims for Plaintiff to allege, if possible, facts sufficient to support Meteyer’s liability based on section 558.

2. Plaintiff fails to allege facts sufficient to support claims under Labor Code section 1197.1.

Section 1197.1(a) states:

Labor Code § 1197.1. Payment of less than minimum wage; penalties; citation; procedure; judgment

(a) Any employer or other person acting either individually or as an officer, agent, or employee of another person, who pays or causes to be paid to any employee a wage less than the minimum fixed by an applicable state or local law, or by an order of the commission shall be subject to a civil penalty, restitution of wages, liquidated damages payable to the employee, and any applicable penalties imposed pursuant to Section 203 as follows….

(Labor Code § 1197.1(a).) Similar to section 558(a), this section contains language providing not only that an employer is liable, but also any “other person acting either individually or as an officer, agent or employee of another person.” Thus, the court finds that this claim may be brought against Meteyer. Plaintiff fails to allege sufficient facts though, to support that Meteyer acted either individually or as an officer, agent employee of another person to cause payment of less than minimum wage to Plaintiff.

Furthermore, section 1197.1 only provides for liability involving payment of less than minimum wage, which is Plaintiff’s second cause of action. Plaintiff fails to explain how Meteyer may be held liable for Plaintiff’s first, third and fourth causes of action under section 1197.1. Nevertheless, in light of the liberal policy allowing amendment, the court GRANTS the motion WITH LEAVE TO AMEND as to all four claims for Plaintiff to allege, if possible, facts to support these claims based on Labor Code section 1197.1.

3. Meteyer’s Request for Judicial Notice

Meteyer requests judicial notice of a Statement of Decision interpreting Labor Code section 558, in Thomas Ramos v. AC Square, Inc., San Mateo Superior Court Case No. CIV499692. (See Meteyer’s Request for Judicial Notice, Exh. A.) However, even if the Ramos case involved the same issue, a written trial court ruling has no precedential value. (See Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 830-831 [Court of Appeal rejected appellant’s request for judicial notice of a trial court opinion in an unrelated case].) Meteyer’s request is DENIED.

4. Conclusion

Meteyer’s Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND for Plaintiff to allege facts sufficient to support these claims against Meteyer.

Plaintiff shall have thirty days from the date of the order to file and serve a First Amended Complaint. (See Code of Civ. Proc. § 438.10(h)(2).)