Hearing DemurrerCal. Super. - 6th Dist.September 28, 2017SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Soriano v. Flagship Facility Services, Inc. Hearing Start Time: 9:00 AM 17CV316438 Hearing Type: Hearing: Demurrer Date of Hearing: 12/22/2017 Comments: Heard By: Walsh, Brian C Location: Department 1 Courtroom Reporter: - No Record Transcribed Courtroom Clerk: Lorna Delacruz Court Interpreter: Court Investigator: Parties Present: Future Hearings: Lee, Larry W Attorney Exhibits: - Plaintiff's counsel submits on the tentative ruling. Tentative Ruling: (x) Not Contested (x) Adopted (x ) See Below This is a putative wage and hour class action on behalf of employees of defendant Flagship Facility Services, Inc. Before the Court is defendants demurrer to plaintiffs third cause of action. I. Allegations of the Complaint Flagship provides janitorial services to clients throughout California. (Complaint, 9.) Plaintiff alleges that on or about September 1, 2016, she was hired to work for defendant as a non-exempt janitor and was assigned to Defendants client proprieties to perform janitorial services. (Id. at 8.) Plaintiff last worked for Defendant on or about February 8, 2017. (Ibid.) Plaintiff alleges that she and other class members were not paid for mandatory on-board training, which lasted a number of hours. (Complaint, 20.) In addition, plaintiffand other class members were temporary service employee[s], as defined by California Labor Code 201.3, but were paid on a biweekly basis rather than the weekly basis required by that section. (Ibid.) Finally, class members received wage statements that inaccurately failed to reflect their on-board training. (Ibid.) Based on these allegations, plaintiff asserts claims for (1) violation of Labor Code section 226 by failing to provide accurate itemized wage statements; (2) violation of Labor Code sections 1194, 1197, and 1197.1 by failing to pay minimum wages for all hours worked; (3) violation of Labor Code sections 201.3 and 203 by failing to pay temporary service employees on a weekly basis; (4) violation of Labor Code section 2698 et seq. (the Private Attorney General Act or PAGA ); and (5) violations of Business & Professions Code section 17200 et seq. (the UCL ). Primed: 12/26/2017 12/22/2017 Hearing: Demurrer - 17CV316438 Page 1 of3 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER IL Legal Standard The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, [a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine ofjudicial notice. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., 430.30, subd. (a).) It is not the ordinary function of a demurrer to test the truth of the plaintiff s allegations or the accuracy with which he describes the defendant s conduct. Thus, the facts alleged in the pleading are deemed to be true, however improbable they may be. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) |n ruling on a demurrer, the allegations of the complaint must be liberally construed, with a view to substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while [a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact. (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120) III. Analysis Flagship demurs to the third cause of action under Labor Code section 201.3 for failure to state a claim. (Code Civ. Proc., 430.10, subd. (e).) Flagship s request forjudicial notice of legislative history materials related to that section is GRANTED. (Evid. Code, 452, subd. (c).) Defendant argues that, because the allegations of the complaint show that plaintiff worked for a single client during her employment with Flagship, an exception to section 201.3 s weekly pay requirement applies. Consequently, Flagship urges, plaintiff does not plead a violation of section 201.3 and lacks standing to bring a claim under that section on behalf of the putative class. Subdivision (b)(1)(A) of section 201.3 provides: if an employee of a temporary services employer is assigned to work for a client, that employee s wages are due and payable no less frequently than weekly, regardless of when the assignment ends, and wages for work performed during any calendar week shall be due and payable not later than the regular payday of the following calendar week. A temporary services employer shall be deemed to have timely paid wages upon completion of an assignment if wages are paid in compliance with this subdivision. Subdivision (b)(6) provides that [i]f an employee of a temporary services employer is assigned to work for a client for over 90 consecutive calendar days, this section shall not apply unless the temporary services employer pays the employee weekly in compliance with paragraph (1) of subdivision (b). Here, plaintiff alleges that she was paid on a biweekly basis, so she would fall within subdivision (b)(6) if she was assigned to a single client for her entire term of employment as Flagship contends. Primed: 12/26/2017 12/22/2017 Hearing: Demuner - 17CV316438 Page 2 of3 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Contrary to Flagship s argument, however, plaintiff does not allege that she was assigned to only one client during her employment. While Flagship focuses on plaintiffs use of the term client in her allegation that she was assigned to Defendants client properties, the term is not necessarily singular in that context. Although it is often stated that statutory claims must be alleged with specificity, Flagship does not contend that plaintiff must plead around subdivision (b)(6) by providing the details of each of her assignments in order to state a claim under section 201.3, and rightly so. As urged by plaintiff, this issue is appropriately resolved through discovery. Along those lines, Flagship states that plaintiffs counsel did not dispute that Plaintiff was assigned to work for one client for over 90 consecutive calendar days, citing an email. (Mot. at p. 3, fn. 2.) Having reviewed the email in question, the Court does not find any admission on this point and notes that plaintiffs counsel offered to continue meeting and conferring on the issue if Flagship would produce plaintiffs records for his review. Since the issue does appear to be a straightforward one, the Court expects that the parties will be able to resolve it without unnecessary motion practice as discovery proceeds. |||. Conclusion and Order The demurrer is OVERRULED. The Court will prepare the order. Primed: 12/26/2017 12/22/2017 Hearing: Demuner - 17CV316438 Page 3 of3