Case Number: VC067006 Hearing Date: January 03, 2019 Dept: SEC

PHILIPBHAI v. HUNDAL

CASE NO.: VC067006

HEARING: 01/03/19

JUDGE: LORI ANN FOURNIER

#10

TENTATIVE ORDER

Defendants MOHAN SINGH HUNDAL and PREETMOH, INC’s demurrer to Plaintiff’s First Amended Complaint is SUSTAINED without leave to amend in part, and SUSTAINED with 15 days leave to amend. CCP §430.10(e).

Defendants MOHAN SINGH HUNDAL and PREETMOH, INC’s motion to strike portions of Plaintiff’s Complaint is GRANTED with 15 days leave to amend in part, and MOOT in part.

Moving Party to give notice.

This employment action was filed by Plaintiff VINOCHANDRA PHILIPBHAI on March 16, 2018. Plaintiff alleges, in pertinent part: from August 2012 through October 2017, Defendants employed Plaintiff as a retail clerk at Defendants’ convenience store in Whittier, CA. (FAC, ¶13.) “Plaintiff’s employment was pursuant to an oral employment agreement…. The terms…were that Plaintiff would be employed as an at will employee, earning $12.00 per hour.” (FAC, ¶14.) “On or about October 2017, Plaintiff was terminated without receiving a final paycheck. Plaintiff repeatedly requested final payment but was repeatedly ignored. To date, Plaintiff has not received the wages still due to him.” (FAC, ¶16.)

Plaintiff’s FAC asserts the following causes of action: (1) Nonpayment of Wages; (2) Failure to Provide Meal and Rest Periods; (3) Failure to Pay Timely Wages; (4) Nonpayment of Overtime Compensation; (5) Failure to Provide Paystubs; (6) Failure to Permit Inspection; (7) Violation of California Labor Code Section 2802; (8) Intentional Misrepresentation; (9) Negligent Misrepresentation; (10) Breach of Employment Contract; (11) Breach of Implied Covenant of Good Faith and Fair Dealing; and (12) Violation of Business and Professions Code §17200 et seq.

Defendants demur to Plaintiff’s third, eighth, and ninth causes of action pursuant to CCP §430.10(e).

Third Cause of Action – Failure to Pay Timely Wages

Defendants argue that no private right of action exists with respect to Labor Code §204.

To determine whether a private right of action may be based on a statutory violation, the applicable rule is as follows: “If the Legislature intended a private right of action, that usually ends the inquiry. If the Legislature intended there be no private right of action, that usually ends the inquiry. If we determine the Legislature expressed no intent on the matter either way, directly or impliedly, there is no private right of action [citations], with the possible exception that compelling reasons of public policy might require judicial recognition of such a right. [Citations.].” (Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 142.)

Here, the Legislature intended that there be no private right of action for a violation of Labor Code §204. Further, Plaintiff has not presented this Court with any legislative history or legislative intent which would support a private cause of action for a violation of Labor Code §204. The purpose of Labor Code §204 does not clearly and unmistakably reveal the legislative intent to allow a private right of action. Nor does the statutory scheme of which Labor Code §204 is a part of indicate a legislative intent to confer a private right of enforcement. The Labor Code Private Attorneys General Act, section 2698 et seq., (PAGA) supports the view that these Labor Code sections confer no right of action on private parties. PAGA contemplates that employees may bring actions under PAGA to enforce rights granted by other provisions of the Labor Code. PAGA created a vehicle for private employees to seek redress for an employer’s violation of specified Labor Code provisions where there is otherwise no private cause of action. (Dunlap v. Superior Court (2006) 142 Cal.App.4th 330, 337.)

The demurrer to the third cause of action is sustained without leave to amend.

Eighth and Ninth Causes of Action – Intentional Misrepresentation and Negligent Misrepresentation

Whether intentional or negligent in nature, Plaintiff must allege sufficient facts to maintain a fraud claim. Moreover, Plaintiff must plead allegations that meet the heightened pleading requirements for fraud claims. Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said, or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Defendants’ demurrer to Plaintiff’s misrepresentation causes of action is sustained with 15 days leave to amend. Plaintiff must allege facts to support these causes of action. Mere recitations of law are insufficient.

Motion to Strike

Defendants’ motion to strike damages pursuant to Labor Code §§204, 210, and 226.3 is granted with 15 days leave to amend. As currently alleged, Plaintiff lacks standing to seek such damages.

Defendants’ motion to strike Plaintiff’s intentional misrepresentation and negligent misrepresentation damages is moot given the Court’s ruling above.

Defendants’ motion to strike attorney’s fees sought under Labor Code 2699 is granted with 15 days leave to amend. Plaintiff alleges in pertinent part, “Defendants’ refusal to authorize or permit Plaintiff and other employees to take a duty-free meal period after five hours of work violated Labor Code sections 226.7 and 512.” (Complaint ¶27.) However, “[i]n [Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244], the California Supreme Court held that attorney fees for section 226.7 missed meal periods claims are not recoverable under section 1194 or section 218.5.” (Ling v. P.F. Chang’s China Bistro, Inc. (2016) 245 Cal.App.4th 1242, 1253.)