Order Submitted Matter

Cal. Super. - 6th Dist.November 8, 2018

Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/2/2019 2:51 PM Reviewed By: R. Walker Case #18CV337830 Envelope: 3082616 10 1} 12 l3 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA R. Ross, et a1., ' Case No.: ls-CV-337830 Plaintiffs, ORDER AFTER HEARING 0N JUNE 28, 2019 vs. (1) Demurrer by Defendant Hewlett HEWLETT PACKARD ENTERPRISE Packard Enterprise Company to -- the Complaint andCOMPANY: (2) Motion by Defendant Hewlett Packard Enterprise Company to Defendant. ' Strike Portions of the Complaint The above-entitled matter came 0n for hearing on Friday, June 28, 2019 at 9:00 am. in Department 1 (Complex Civil Litigation), the Honorable Brian C. Walsh presiding. A tentative ruling was issued prior to the hearing. The appearances are as stated in the record. Having reviewed and considered the written submissions 0f all parties and being fully advised, the Court orders as follows: This is a putative class action alleging gender-based pay discrimination under the Equal Pay Act (“EPA”) and related claims. Before the Court are defendant Hewlett Packard Enterprise Company’s (“HPE”) demurrer to and motion to strike portions ofthe complaint, Which plaintiffs oppose. Ross, et al. v. Hewlétt Packard Enterprise Company, Superior Court ofCalifomia, County ofSanta Clara, Case N0. 18-CV-337830 Order After Hearing on June 28, 2019 [Defendant ’s Demurrer to andMotion to Strike Portions ofthe Complaint] 10 II 12 13 14 15 16 17 l8 19 20 21 22 23 24 25 26 27 28 I. Allegations of the Operative Complaint HPE is a multinational corporation headquartered in Palo Alto and is one 0f the largest information technology companies in the world, selling products and services 0n an enterprise level. (Complaint, 11 1.) Women make up approximately 1/3 ofHPE’s employees, filling 81 percent 0f administratiVe support jobs, but only 17 percent 0f technician jobs, 22 percent of sales jobs, and 17 percent 0f executive/senior/official & manager positions. (Id. at 11 3.) HPE does not publish the measures it takes to address the gender pay gap among its workers, and instructs employees t0 keep their compensation t0 themselves and not to compare their compensation to coworkers’ during salary negotiations. (Complaint, 1| 5.) It also fails to make its pay grades available, leaving employees in the dark about what malelcounterparts may make. (11nd,) Plaintiffs allege that HPE’s policies, “however facially uniform,” do not result in equal pay and treatment for similarly situated male and female employees. (Id. at 1mm.) ' V A. General Allegations Regarding HPE’s Compensation Practices HPE’s Global Pay Policy applies t0 all 0f its employees worldwide (other than “Section 16 Officers”), and provides that “[s]alary ranges are assigned to each position in each country to define a range ofpay which is appropriate and market competitive.” (Complaint, 1m 18-19.) Plaintiffs allege on information and belief that HPE does not publicly disclose its pay-grade‘ or job-lcvel structure and pays wide ranges of salaries t0 employees at a particular job level. (Id. at 1H 21-22.) Plaintiffs allege that throughout the class period, HPE has paid and continues to pay its female employees systematically lower compensation than male employees perfonning substantially equal or similar work, both when they are in the same job position and salary band and When they are in the same job position but in a different salary band. (Complaint, 1m 35-40.) HPE has known 01' should have known of this pay disparity, but has taken no action to equalize pay, and its failure to pay equal compensation is willful. (Id. at 1[ 41 .) Plaintiffs allege 0n information on belief that HPE considers new hires’ prior compensation When determining their compensation and deciding which job level t0 place Ross, e! al. v. Hewlett Packard Enterprise Company, Superior Court ofCaIifomia, County qucmta Clam, Case No. 18-CV-337830 Order Afier Hearing 0n June 28, 2019 [Defendant ’s Demurrer lo and Motion to Strike Portions ofthe Complaint] mm-m-m--__:-_.m.__g-_g, --. -_ .. ‘ g. _.‘ 10 11 12 13 14 16 17 19 20 21 them in, perpetuating historical pay disparities between men and women. (Id. at 1i 43 .) They allege on information and belief that long-term employees remain at a job level 0f 1 0r 2, in contrast t0 116W hires Who start at 01‘ quickly rise t0 a level 3. (Id at 1] 42.) Plaintiffs fuflher allege on information and belief that HPE channels women into lower-paying positions, for example, in Operations instead 0f higher-paying Engineer jobs, due t0 its stereotypes about their capabilities; it also starts men in the same jobs at higher pay bands. (Id atW 45, 52.) HPE’S practices governing perfonnance reviews, raises, bonuses, and promotions perpetuate and Widen the gender pay gap. (Id. atW 54-57.) B. Allegations Regarding the Named Plaintiffs Plaintiff R. Ross was employed by HPE and its predecessor in sales operations for a total 0f 17 years. (Complaint, 1] 67.) She progressed from a business analyst to a Director 0f Sales Operations, with duties including overseeing sales operations and developing and supporting operational strategic models t0 suppofi success in worldwide channel sales 0fHPE products. (Id. atW 68-72.) In her capacity as Director 0f Sales Operations, Ross was privy to financial documents and, 0n at least one occasion, received a file including salary information 0f her male colleagues. (Id, at 1] 73.) She noted that the base pay 0f male employees Who joined HPE during the class period exceeded the base pay 0f females Who joined around the same time, even where the female employees had more extensive work experience at HPE. ([bz'd.) Further, Ross was told by a fmmer supervisor who had access t0 the salaries 0f her subordinates that her salary was less than her male peers who were performing substantially equal 0r similar work under similar working conditions. (Id. at fl 74.) Ross received only a three percent increase in total annual compensation from 2014 t0 2017. (Id. at fl 75.) When she left HPE in January 0f 201 8, a superior told her that she was underpaid compared t0 male peers. (Id. atfl 76.) Plaintiff C. Rogus was hired by HPE’s predecessor in April 0f 2013 t0 work in its Veterans Affairs Integrated Services 21 proj ect based in Roseville, California as hnplementation Proj ect Manager (“1M”) for a project called the Real Time Location System. (Complaint; W 78-79.) HPE’s predecessor asked about and Rogus disclosed her pfior Ross, er (1/. v. Hewlett Packard Enterprise Company, Superior Court OfCa/g'fbrnia, County quanta Clara, Case N0. 18-CV-33 7830 Order After Hearing on. June 28, 2019 [Day’endmzt 'S Denmw'er £0 and A/Imion to Sm'ke Portions of the Complaint] 10 11 12 13 I4 15 l7 18 l9 20 22 23 24 25 26 27 28 compensation before she joined the organization. (Id. at 11 86.) IMS reported t0 Project Managers (“PM”S), who had more supervisory authority and were consequently paid more. (Id. at 1H] 84-54.) Plaintiffs allege 0n information and belief that more men than women were in PM positions, and male PMs were paid more than female PMS. (Id. at 1H] 92-93.) In March 0f 2014, Rogus obtained information showing that the male PM 0n her team was paid 14.27 percent more than her. (Id. at fl 87.) When her PM passed away in September of 2014, she was offered his position, but received only a two percent performance-related pay increase and n0 role change. (Id. at fl 90.) Although she excelled in the PM position, Rogus stopped working at HPE in April 0f 2018. (Id. at 1H] 91, 94.) C. Claims Alleged in the Complaint Based on these allegations, plaintiffs seek t0 represent a class of all women employed by HPE in California in a Covered Position, defined as positions in one ofthe following categories: “(1) Engineering, Information Technology, and Design (Software Engineer Positions; Engineer Positions; Software Manager Positions;); (2) Administration, Finance, and Legal; (3) Operations; (Sales Positions; Director of Operations Positions)[;] (4) Public Relations, Marketing, and Sales (Sales Positions; Director 0f Operations Positions); and (5) Human Relations and Development.” (Complaint, fl 6.) They assert claims for (1) Violations of the EPA, Labor Code sections 1197.5 and 1194.5; (2) failure t0 pay all wages due t0 discharged and quitting employees, Labor Code sections 201-202 and 1194.5; (3) Violation 0f the Unfair Competition Law (“UCL”); and (4) declaratory relief. II. Request for Judicial Notice HPE requests judicial notice of a Bloomberg.com Company Overview 0f Hewlett- Packard International Bank PLC, Which reflects that this entity is a subsidiary OFHPE and therefore a separate entity. Plaintiffs do not oppose HPE’S request, but contend that HPE’S corporate stmc’cure is not determinative 0f any 0f the issues before the Court, including those related t0 HPE’S Global Pay Policy. ROSS, et at. v. Hewlett Packard Enterprise Company, Superior Cour! ofCalifornia, County ofScmta Clara, Case N0. I 8-CV-33 7830 Order After Hearing 0n June 28, 2019 [Defendam‘ ’S Demurrer t0 and Motion t0 Strike Portions ofme Complaint] IO 11 l2 14 15 16 17 18 19 20 2[ 22 23 24 25 26 27 28 As an initial matter, while the Court could take judicial notice 0f official records establishing HPE’S corporate structure, it does not find that Bloomberg.com is a “source[] 0f reasonably indisputable accuracy” for purposes of Evidence Code section 452, subdivision (h), particularly where the Company Overview itself reflects that another entity, “S&P Global Market Intelligence,” creates the information displayed in the profile from unspecified sources. Moreover, plaintiffs allege that the Global Pay Policy attached to their complaint “applies t0 all regular HPE employees worldwide With the exception 0f Section 16 Officers,” Which is a direct quote fiom the‘ document itself. HPE would have the Court conclude that, because the Global Pay Policy was provided as an attachment to a filing by its subsidiary, it applies only to the subsidiary and not t0 all HPE employees. This argument raises a factual issue not appropriately resolved 0n demurrer, and is not supported by the document itself. At this juncture, the Court must accept plaintiffs” allegations regarding the applicability 0f the Global Pay Policy as true, notwithstanding HPE’S corporate Structure. HPE’S request for judicial notice is accordingly DENIED as improper under section 452, subdivision (h) and for lack 0f relevance. III. Allegations Made 0n Information and Belief In both its demurrer and its motion to strike, HPE argues that plaintiffs” allegations made 0n information and belief are improper. Plaintiffs make a total 0f fifteen such allegations, a1] of which defendant moves t0 stlrike as unsupported. Plaintiffs contend that the allegations are appropriate, particularly where the doctrine 0f less particularity applies. A pleading must conform t0 the general rule that a complaint must contain allegations 0f ultimate facts rather than legal conclusions. (Doe v. City ofLos Angeles, supra, 42 Cal.4th at p. 551, fn. 5.) However, “[a] ‘[p]1aintiffmay allege 0n information and belief any matters that are not within his personal knowledge, if he has information leading him t0 believe that the allegations are true.’ ” (Doe v. City ofLos Angeles (2007) 42 Ca1.4th 531, 550, quoting Pridonoflv. Balok'oviclz (195 1) 36 Ca1.2d 788, 792.) The court may infer the basis for allegations made on information 0n belief from the other allegations in the complaint and fiom Ross, er (11. v. Hewlett Packard Enterprise Company, Superior Court ofCalzfomz'a, County ofSarzta Clam, Case N0. 18-CV~337830 Order Afler Hearing 0n J1me .28, 2019 [Defendant ’s Demurrer t0 and Motion to Strike Portions oflhe Complaint] 10 ll 12 l3 14 15 16 17' 18 I9 20 2.1 22 23 24 25 26 27 28 general context. (See J. W. v. Watchtower Bible and Tract Society ofNew York, Inc. (2018) 29 Ca1.App.5th 1142, 1166 [“It can reasonably be inferred from J.W.’s allegations that her belief that Simental was an elder was based upon her participation in the same congregation as Simental.”] ; Pridonoffv. Balokovich, supra, 36 CaLZd at pp. 792-793 [“Plaintiffwould ordinarily learn that he lost employment because of the libel from the declarations of others. It is therefore appropriate for him to allege such matters on information and belief.”].)1 In addition to pleading 0n information and belief, less particulafity in pleading is required when it appears that defendant has superior knowledge of the facts, so long as the plgading gives notice ' of the issues sufficient to enable preparation of a defense. (Doe v. City ofLos Angeles, supra, 42 Ca1.4th at pp. 549-550.) Here, the Court agrees with plaintiffs that the doctrine 0f less particularity applies because HPE has superior knowledge of its own compensation practices. Plaintiffs can rely on this doctrine where they “plausibly allege” the ultimate facts supporting their claims. (Id. at p. 551 .) Here, plaintiffs allege that they were employed by defendant for a total of 17 and 5 years, respectively. They allege that they personally experienced or encountered most 10f the practices that they believe are employed more widely at HPE, including those alleged in paragraphs 43 (HPE considers new hires’ prior compensation), 45 and 65 (HPE channels women into lower-paying positions such as Operations), 52 (HPE has a practice 0f starting men at higher salary levels), 77 (plaintiff Ross was paid less than men for substantially equal or similar work performed under similar working conditions), and 85, 92, and 93- (PMS had more supervisory authority than IMs, more men than women were in PM positions, and male PMS were paid more than female PMS). This is an appropriate basis for these allegations on information and belief. 1 In dicta, Doe states that allegations 0n information and belief “that merely asserted the'facts so alleged without alleging such information that ‘lead[s] [the plaintiff] to believe that the allegations are true’ ” would be inadequate, quoting .Priclonofi". (Doe v. City ofLos Angeles, supra, 42 Cal.4th at p. 551, fn. 5.) However, Pridtmofl'neither imposes. nor suggests such a requirement. To the extent that the Doe dicta conflicts with Pridonofl; the Court does not apply it. Gomes v. Countrywide Home Loans, Inc. (201 1) 192 'Ca1.App.4th 1149, also cited by HPE, sheds no light on this issue where plaintiffs do not concede they lack information and belief to support their allegations. (See pp. 1158- 1159 [demurrer appropriately sustained without leave to amend Where phintif" “conceded that he has no specific information” leading him to believe a foreclosing trustee had assigned the promissory note associated with his mortgage to support an amendment on that theory].) Ross, et a1. v. Hewlett Packard Enterprise Company, 6 Superior Court‘ofCalifomia, County ofSanlct Clara, Case No. 18-CV-337830 Order After Hearing on J1me 28, 2019 [Defendant ’s Demurrer to and Motion t0 Strike Portions qfthe Complainfl ix) 10 11 13 I4 15 23 24 25 Plaintiffs also make allegations regarding information that they have 0r have not located by researching publicly available documents, including the Global Pay Policy. (See Complaint, W 34 [HPE has not published a pay-gap audit regarding California 0r United States employees] and 42 [citing the Global Pay P0110321) This is entirely permissible. Finally, the general allegations set forth at paragraphs 21-24 and 58 (HPE does not publicly disclose its pay structure, provides wide ranges 0f salaries at a palticular job level, publicly identifies its employees With specific job levels, and internally identifies them by common job codes and pay grades) are plausible, describe widespread corporate practices, and are practices that plaintiffs would be familiar with as 10ng~term HPE employees and from their research. These allegations are appropriate as well. In sum, plaintiffs’ allegations 0n information and belief are proper, and the Court will consider them accordingly in mling 0n HPE’S motions. IV. Demurrer to the Complaint HPE demurs t0 each cause 0f action in the complaint 0n the grounds that it fails t0 state a. claim. (Code CiV. Proc., § 430.10, subd. (8).) The demulrer is addressed t0 both the individual and class claims. A. Legal Standard The function 0f a demurrer is t0 test the legal sufficiency 0f a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman. Bros. (1990) 221 Cal.App.3d 617, 621 .) Consequently, “[21] demurrer reaches only t0 the contents 0f the pleading and such matters as may be considered under the doctrine ofjudicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Ca1.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 demun‘er t0 test the truth of the plaintiff” s allegations 0r the accuracy with which he describes the defendant’s conduct. ... Thus, the facts alleged in the pleading are deemed t0 be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Ca1.App.4th 949, 958, internal citations and quotations omitted.) Ross. er al. v. Hewlett Packard Enterprise Company, Superior Court of California; County ofSanta Clam, Case N0, 18~CV-337830 Order Afier Hearing on June 28; 2019 [Defendant 's Denmrrer to and Motion t0 Strike Portiom (3/7116 Complainfl 10 11 12 13 14 IS 16 17 18 19 20 2] 22 23 24 25 26 27 28 In ruling 0n a demurrer, the allegations 0f the complaint must be liberally construed, with a View to substantial justice between the parties. (Glennen v. Allergan, Inc. (201 6) 247 Ca1.App.4th 1, 6.) Nevertheless, While “[a] demun‘et admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact.” (George v. Automobile Club ofSourhern California (201 1) 201 Cal.App.4th 1112, 1120.) As explained by the Court 0fAppeal for the Sixth Appellate District: Class certification is generally not decided at the pleading stage 0f a lawsuit. The preferred course is to defer decision on the propriety of the class action until an evidentiary hearing has been held on the appropriateness of class litigation. However, if the defects in the class action allegations appear on the face 0f the complaint or by matters subj ect to judicial notice, the putative class action may be defeated by a demurrer or motion to strike. (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Ca1.App.4th 1052, 1062, citing In re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293, 1298-1299, intemal citations and quotations omitted.) ‘ A court may decide the proprietyof class certification 011 the pleadings “ ‘only if it concludes as a matter of law that, assuming the truth 0f the factual allegations in the complaint, there is no reasonable possibility that the requirements for class certification will be fiatisfied.’ ” (Tucker v. Pacific Bell Mobile Services (2012) 208 Ca1.App.4th 201, 21 1, citing Bridgeford v. Pacific Health Corp. (2012) 202 Ca1.App.4th 1034, 1041-1042.) This is most commonly the case in circumstances where it is apparent that individual issues will predominate. (See ibid. [11o commonality regarding putative fraud claim where reliance and materiality varied among individuals and disclosures were provided that were likely seen by some putative class members]; Prince v. CLS Transportation, Inc. (2004) 118 Ca1.App.4th 1320, 1325 [“It is only in mass tort actions (0r other actions equally unsuited t0 class action treatment) that class suitability can and should be determined at the pleading stage. In other cases, particularly those involving wage and hour claims, class suitability should not be determined by demurrer.”]; Gutierrez v, California Commerce Club, Inc. (2010) 187 Ca1.App.4th 969, 976- 977 [“A review of the cases in which courts have approved the use of demurrers t0 determine Ross, at al. v. Hewlett Packard Enterprise Company, Superior Court ofCalifomia, County afSama Clara, Case No. 18-CV-33 7830 Order Afier Hearing on June 28, 2019 [Defendant's Demurrer to and Motion to Sm'ke Portions qfthe Complaint] 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 28 the propriety 0f class actions ... reveals that the 111aj ority ofthose actions involved mass torts 0r other actions in which individual issues predominate.”].) B. Analysis HPE argues that plaintiffs fail to plead individual claims under the EPA because they d0 not adequately describe their positions and responsibilities 0r identify a specific 0r adequate male “comparator.” It demurs t0 the second cause of action under the Labor Code, which is wholly derivative 0f plaintiffs’ EPA claim, and the third and fourth causes of action under the UCL and for declaratory relief, which are partially derivative 0fthe EPA claim, 0n the same grounds. Finally, defendant contends that, because and for the same reasons that their individual claims fail, plaintiffs fail to state putative class claims under these statutes. It also urges that there is n0 reasonably possibility plaintiffs can satisfy commonality and typicality as t0 their class claims. 1. Demurrer to Plaintiffs ’ Individual Claims Labor Code section 1197.5, subdivision (a) provides in relevant part that “[a]n employer shall not pay any of its employees at wage rates less than the rates paid to employees 0f the opposite sex for substantially similar work, when Viewed as a composite 0f skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates” that the wage differential is based upon one 0r more 0f the following factors: “(A) A seniority system[;] (B) A merit system[;] (C) A system that measures earnings by quantity 0r quality 0f production[;] (D) A bona fide factor other than sex, such as education, training, 0r experience. ...” As the statute originally mirrored the Federal Equal Pay Act of 1963 (see 29 U.S.C. § 206, subd. (d)(1)), California courts rely 0n federal authorities construing the federal statute in interpreting the EPA. (See Green v. Par Tools, Inc. (2003) 111 Ca1.App.4th 620, 62392 Few California cases address the EPA: “The apparent reason is 2 The EPA has been amended several times over the past few years, including through changes known as the “Fair Pay Act” that went into effect in 2016. (See Complaint, 1] 29.) Prior to 2016, the statute more narrowly prohibited lower pay “in the same establishment for equal work on jobs the performance 0f which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where the payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based 0n any bona fide factor other than sex.” (Former Lab. Code, § 1197.5, subd. (a), Ross, et a1. v. Hmvlelt Packard Enterprise Company, V Superior Court of California, County QfSanta Clam, Case N0. 18-CV-337830 Order Afier Hearing 0n June 28, 201 9 [Defendant 's Demurrer t0 and Motion to Strike Portions ofthe Complaint] 10 ll 12 13 l4 15 l6 17 18 19 20 2‘1 22 '23 24 25 26 27 28 that an aggrieved employee generally brings suit under both the California statute and the federal Equal Pay Act ..., 0r under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (21)) 0r its federal counterpart, Title VII ofthe Civil Rights Act 0f 1964 (4'2 U.S.C. § 20006 et seq.).” (Ibid) The three-stage burden shifting analysis used t0 establish sex discrimination under the federal Equal Pay Act is applied to a claim under Labor Code section 1197.5. (See Green v. Par Tools, Ina, supra, 111 Ca1.App.4th at pp. 623-626 [Ianalogizing to the “McDonnell Douglas” burden shifting. analysis applied in Title VII and FEHA cases].) Under this standard, once the plaintiffmakes a prima facie showing in support ofher claim, “the employer then has the burden of showing that one of the exceptions listed in section 1197.5 is applicable.” (Ibid) The employee may then show that the employer’s stated reasons are pretextual. (Ibid) The elements of a prima facie case under the EPA are (1) the employer paid a male employee more than a female employee (2) for equal (or, since 201 6, substantially similar) work on jobs the performance 0f which requires equal skill, effort, and responsibility, and (3) which are performed under similar working conditions. (Green v. Par Pools, Inc. , supra, 111 Cal.AppAth at p. 628, citing Corning Glass Works v. Brennan (1974) 417 U.S. 188, 195; CACI N0. 2740 (201 9).) To make this prima facie showing, a plaintiffmust ultimately demonstrate that she 1's paid lower wages than an appropriate “mfile comparator” for equal work. (Hall v. County ofLos Angeles (2007) 148 Cal.App.4th 318, 324-325.) An EPA plaintif “need only establish that she was paid less than a single male employee for equal work on the basis of sex to prevail on her claim” and “need not establish a pattern and practice of sex discrimination.” (Dubowsky v. Stem, Lavinthal, Norgaard & Da-Iy (D.N.J. 1996) 922 F.Supp. 985, 990-99] .) While no California case has addressed this issue, some federal courts have held that a specific, appropriate comparator must be identified and described in some detail even at the added by Stats.1949, c. 804, p. 1541,§ 1; amended by Stats.1957, c. 2384, p. 4130, § 1, Stats.1965, c. 825, p. 2417, § 1, Stats.1963, c. 325, p. 705,§ 1, Stats.1976, c. 1184, p. 5288, § 3, Stats.1982, c. 11 16, p. 4034, § 1, Stats.1985, c. 1479, § 4.) The federal Equal Pay Act continues to employ this narrower language. (See 29 U.S.C. § 206, subd. (d)(1).) Ross, et a1. v. Hewlett Packard Enterprise Company, 10 Superior Court of'CalQ’ornia, County ofSam‘a Clam, Case No. 18-CV-33 7830 Order After Hearing on June 28, 2019 [Defendant ’s Demurrer to andMoiion t0 Strike Portions ofthe Complaint] 10 ll 13 14 15 16 26 27 28 pleading stage.3 In the Court’s View, such a requirement would conflict with the pfinoiple that “[t]he prima facie case under McDonnell Douglas is an evidentiary standard, not a pleading requirement.” (Swierkiewicz v. Sorema N. A. (2002) 534 U.S. 506, 510 [applying former federal notice pleading standard in a Title VII employment discrimination case]; see also Alclz v. Superior Court (Time Warner Entertainment) (2004) 122 Cal.App.4th 339, 381-382 [citing Swierkz'ewz‘cz and noting that “[W]hile the pleading standard is stricter in California” than the former federal standard, “the plaintiff is required only t0 set forth the essential facts of his case with particularity sufficient to acquaint a defendant With the nature, source and extent 0f his cause of action”], internal citations and quotations omitted.) ‘ Here, plaintiff Ross does not identify a specific male comparator in support 0f her claim, but she does allege that she was told 0n multiple occasions ofmale comparators who were performing substantially equal 0r similar work under similar working conditions. (Complaint, 1W 74, 76.) PlaintiffRogus alleges that her former male supervisor was paid substantially more than her, even after “she was offered his position” When he passed away. (1d. at 1| 90.) While she acknowledges that she received 110 formal role change after her supewisor’s passing and does not detail precisely how her job duties changed, she alleges clearly enough that she performed the duties of the PM positionwin fact, she excelled in that role. (Id. at fl 91 .) These allegations are sufficient to state an EPA claim under California law. In opposition to defendant’s demurrer, plaintiffs d0 not address Whether they are required t0 identify a comparator at the pleading stage, but take the position that they d0 not seek t0 pursue individual claims under the EPA-or as to any 0f the causes 0f action set fofih 3 See Rem‘don v. Herring (ED. Va. 2016) 191 F.Supp.3d 529, 547 (at the pleading stage, the court must evaluate whether the plaintiff has adequately alleged that her male comparators held jobs requiring equal skill, effort, and responsibility); Bailey v. SC Department ofCorrections (D.S.C., Feb. 23, 2018, N0. CV 3 : 17-3SOO-TLW-KDW) 2018 WL 2 144548, at *7 (“conclusory allegations 0f largely unidentified comparators with no detail as t0 relative salaries, time-frames, 0r the skill, effort, and responsibilities of the employees is not sufficient to permit a reasonable inference that Defendant is liable for an EPA Violation”), report and recommendation adopted sub nom. Bailey v. South Carolina Department ofCorrectz'ons (D.S .C., May 9, 201 8, N0. 3:17-CV-3500-TLW-KDW) 2O 18 WL 2135168; Kaimm v. West Side GI, LLC (S.D.N.Y., NOV. 9, 2018, N0. IlBCVOlOOSATSDA) 2018 WL 6717280, at *5, report and recommendation adopted (S.D.N.Y., Jan. 31, 2019, N0, 18CIV1005ATSDA) 2019 WL 396573 (facts regarding comparator’s “common duties 0r job content” are required t0 state an EPA claim); but see Kassman v. KPMG LLP (S.D.N,Y. 2013) 925 F.Supp.2d 453, 471 (the Second Circuit has reserved judgment 0n the issue of “[w]hether or not a female plaintiff must identify a specific male comparator” to state a claim under the federal EPA). ROSS, et a1. v. Hewlett Packard Enterprise Company, 11 Superior Court ofCalifbrnia, County ofSanm Clam, Case N0. 18-CV-33 7830 Order Afler Hearing on June .28, 2019 [Defendant ’s Denmrrer m and Motion to Strike Portions ofme Complaint] 10 ll 12 13 l4 23 24 25 '26 27 28 in the complaint-at all. Rather, they contend that the complaint sets fonh only “pattern and practice” putative class claims. In light 0f this position, the Court Will sustain the demun‘er t0 plaintiffs’ individual claims. However, the comparator issue remains relevant t0 the Court’s analysis 0f the putative class claims. 2. Demurrer to the Class Claims HPE contends that, because they fail t0 adequately allege individual claims under the EPA, plaintiffs cannot allege class claims under that statute and are atypical 0f the putative class.4 For the reasons discussed above, the Coufi finds that plaintiffs do state individual claims. As urged by plaintiffs, Alch v. Superior Court, supra, 122 Cal.App.4th 339 holds that plaintiffs need not pursue individual claims t0 state a classwide claim for discrimination. (At pp. 380-388.) Finally, there is n0 indication that plaintiffs’ claims are atypical 0f those of the putative class#Whether plaintiffs can present sufficient evidence to demonstrate that a larger group of employees shared théir experiences is an issue for a motion addressed to class certification. In its reply brief, HPE urges that ‘jjattern and practice” claims differ from EPA claims because they require allegations ofintentional discrimination, and “as a substantive matter, a ‘pattern and practice’ claim does not exist under the EPA/FPA.” HPE cites n0 authority in suppofi 0f the latter proposition; by the same token, plaintiffs d0 not cite, and the Court has not located in its own research, any authority expressly approving such a theory. However, defendant does not appear t0 dispute the basic proposition that it is possible to bring some type ofEPA class action in California.5 (See Reply, pp. 4-5 [stating defendant is not aware 0f any such Class action “that did not include individual claims 0f unequal pay”]; see also Hall v. 4 As I-IPE did not demur to the complaint on the ground that plaintiffs lack standing, the Court will not address this issue, which was raised for the first time in HPE’s reply brief. (See Reichardt v. Hofihzan (1997) 52 Cal.App.4th 754, 764 [points raised for the first time in reply brief will not ordinarily be considered, because such consideration would deprive respondent of an opportunity t0 counter the argument] ) 5 Under the federal statute, opt-in, collective actions are expressly authorized by the statute and “true” class actions are accordingly not permitted. (See 29 U.S.C.A. § 216(b) [“No employee shall be a pafiy plaintiff to any such action unless he gives his consent in writing t0 become such a party and such consent is filed in the court in which such action is b1'0ught.”]; Bitmer v. Combustion Engineering, Inc. (ND. C211,, May 1 l, 1979, N0. C 79-0327 SC) 1979 WL 210, at *3 [“‘rhe spurious class action under section 216(b) differs markedly from the true Class action based 0n Rule 23”] .) Federal authorities may consequently provide less guidance 0n this particular issue. Ross, ct (2L v. Hewlett Packarc‘l Entemrise Company, Superior Court ofCa/zjbrnia. Comm) ofSanfa Clara, Case N0. 18-CV~337830 OrderAfler Hearing on June 28, 201 9 [Defendant 's Demurrer t0 and Motion to Strike Portions qfthe Complaint] 10 11 12 13 14 15 [6 l7 18 20 21 22 23 24 25 26 27 28 County ofLos Angeles, supra, 148 Ca1.App.4th 3 1 8 [trial court certified an EPA class, but the issue was not addressed 011 appeal].) In Alch, the court rej ected the defendants’ similar argument that FEHA did not authorize a “pattem or practice” claim. It explained that a class action is, by definition, a pattern 0r practice claim. “Pattem-or-practice suits, by their very nature, involve claims 0f classwide discrimination. Such claims involve an allegation that the defendant’s actions constitute a pattern of conduct in which the defendant intentionally has discriminated against the plaintiff‘s protected class.” (1 Lindemann & Grossman, Employment Discrimination Law (3d ed.1996) p. 44, fn. 168.) (Alch v. Superior Court, supra, 122 Cal.App.4th at p. 379.) Alch noted that courts 100k t0 authority from the Title VII context-whel‘e pattern 0r practice claims are well-established-to guide their analysis in FEHA cases. (Alch v. Superior Court, supra, 122 Ca1.App.4th at pp. 379-380.) Courts 100k to such authority in the EPA context as well. (See Green v. Par Tools, Ina, supra, 111 Ca1.App.4th at pp. 623-626.) Alch explained that the following “weII-settled” principles long established in the Title VII context were equally applicable t0 class actions under FEHA: 1. A claim 0f discrimination against a class requires the plaintiffs to establish by a preponderance 0f the evidence that discrimination was the company’s standard operating procedure-the regular rather than the unusual practice. 2. The class plaintiff is not required t0 offer evidence that each person for whom it will ultimately seek relief was a Victim 0f the employer’s discriminatory policy. The plaintiff‘s burden is to establish a prima facie case that such a policy existed. 3. Plaintiffs normally seek t0 establish a pattern 01‘ practice 0f discriminatory intent by combining statistical and nonstatistical evidence, the latter most commonly consisting 0f anecdotal evidence 0f individual instances 0f discriminatory treatment. 4. A finding 0f a pattern 0r practice 0f discrimination itself justifies an award 0f prospective relief to the class. Further proceedings usually are required t0 determine the scope 0f individual relief for class members. (Alch v. Superior Court, supra, 122 Cal.App.4th at pp. 380-381, internal quotation marks and citations omitted.) Ross, er at. v. HewlettPackard Enterprise Company, Superior Court Qf'Calg'fbmia, County ofSanm Clara, Case N0. 18~CV~33 7830 Order Afier Hearing 0n June 28, 2019 [Defendant ’s Demurrer t0 and Motion t0 Strike Portions of'the Complaint] 10 11 12 l3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is not immediately obvious that these principles could not be applied to an EPA claim. “Generally, a Title VII claim 0f wage discrimination parallels that 0f an EPA violation.” (Kovacevich v. Kent State University (6th Cir. 2000) 224 F.3d 806, 828; see also Lavin-McEleney v. Maris: College (2d Cir. 2001) 239 F.3d 476, 483 [“The Equal Pay Act and Title VII must be construed in harmony, particularly where claims made under the two statutes arise out of the same discriminatory pay policies.”].) While HPE is correct that Title V11 disparate treatment pattern and practice claims require a showing of intent and EPA claims d0 not (Lavin-McEleney v. Marist College, supra, 239 F.3d at p. 483), intent may still be relevant under the EPA, which extends the statute of limitations in cases arising from willful violations. (Lab. Code, § 1197.5, subd. (i).) In any event, HPE’s argument that Title VII Claims are more difficult t0 prove in this regard fails t0 demonstrate that EPA claims should be ineligible for class treatment permitted under Title VII. EPA claims are subj ect t0 the unique requirement that a plaintiff identify an appropriate male comparator or comparators in order t0 prove a prima facie case. (Hall v. County bfLos Angeles, supra, 148 Ca1.App.4th at pp. 324-325; see also Kovacevich v. Kent State Universily, supra, 224 F.3d at p. 828 [EPA claims are “more demanding” than Title VII claims in this Sense].) Whether appropriate comparators can be identified 0n a class-wide basis will impact commonality, typicality, and other requirements for class certification. Still, the Court is not prepared to conclude at this juncture that there is “n0 reasonable possibility” certification can be accomplished as t0 any portion of'the class plaintiffs propose. The cases cited by defendant in support of its argument that plaintiffs cannot identify adequate comparators were virtually all decided 0n summary judgment; for the reasons already discussed, the Court finds that plaintiffs are not required to identify specific comparators at the pleading stage, with regard to either their individual 0r their class claims. It Will, however, expect this issue t0 be thoroughly addressed at class certification. Whether appropriately characterized as “pattern and practice” claims 0r simply as class claims under the EPA, plaintiffs’ class claims survive demurrer. Ross, e! al. v. Hewlett Packard Enterprise Company, 14 Superior Court ofCalifomia, County quanta Clara, Case N0. 18-CV-33 7830 Order After Hearing 0n June 28, 20/9 [Defendant 's Demurrer t0 and Motion lo Strike Portions 0fthe Complaint] 10 11 12 13 14 16 l7 l8 l9 20 22 23 24 25 26 27 C. Conclusion and Order HPE’s demufler is SUSTAINED IN PART as t0 plaintiffs’ individual claims. At the hearing 0n this matter, plaintiffs confinned that, as they state in their opposition, they n0 longer intend t0 pursue individual claims. The demurrer is accordingly sustained without leave t0 amend in this regard. The demurrer is OVERRULED as to the putative class claims. V. Motion t0 Stlkg Defendant moves t0 strike from the complaint allegations in the following categories: (1) class allegations, (2) allegations made 0n information and belief, (3) allegations regarding the UCL claim, and (4) allegations regarding the Global Compensation Policy. With regard t0 items 1, 2, and 4, its motion relies 0n arguments already rej ected by the Court above, and its motion Will be denied in these respects for the reasons already stated. The Court Will focus its analysis 0n the allegations regarding the UCL claim. A. Le gal Standard A motion t0 strike may be employed t0 remove “irrelevant, false 01‘ improper” matters from a complaint. (See Code CiV. Proc, § 436, subd. (21).) Irrelevant matter includes (1) an allegation that is not essential t0 the statement 0f a claim or defense, (2) an allegation that is neither pertinent t0 nor supportad by an otherwise sufficient claim 0r defense, 21nd (3) a demand for judgment requesting relief not supported by the allegations of the complaint 01' crosswomplaint. (See id, § 43 1 .10, subds. (b), (0).) As With a demurrer, the policy of the law is t0 construe the pleadings liberally with a View t0 substantial justice. (See Code Civ. Pros, § 452.) The allegations in the complaint are considered in context and presumed to be tme. (See Clauson v. Superior Court (Pedus Service, Ina, er al.) (1998) 67 Ca1.App.4t11 1253, 1255.) B. Analysis Plaintiffs’ claim under the UCL is predicated on HPE’s alleged Violations 0f the EPA and Labor Code sections 201-203, as well as its alleged Violation 0fFEHA, a theory assefied only in the context offhe UCL claim. Ross, et a]. v. HewlettPackard Enterprise Company; 15 Superior Court ofCahfomia, County ofSanta Clam, Case N0. 18~CV~33 7830 Order'AflerHearing on June 28, 2019 [Defendanr ’3 Demurrer t0 and Motion to Strike Portions ofthe Complaint] 10 11 13 14 15 24 25 26 27 28 HPE urges that the FEHA theory is improper where plaintiffs fail t0 allege that they have satisfied FEHA’S administrative exhaustion requirements. In support 0f this argument, it Cites In re Vaccine Cases (2005) 134 Ca1.App.4th 438, which held that a plaintiffmay not bring a UCL claim predicated 0n a 121W containing an exhaustion requirement that has not been satisfied: in that case, the requirement that a Proposition 65 plaintiffprovide 6O days’ notice to the Attorney General and local prosecutors before filing suit. (At pp. 458-459.) 111 opposition t0 HPE’S motion, plaintiffs cite an inapposite case, Hodge v. Superior Court (Aon Insurance Services) (200.6) 14S Ca1.App.4th 278, Which rej ected the argument that there is a right t0 a jury trial in a UCL action. While Hodge was decided after In re Vaccine, it in n0 way contradicts the latter case, which controls 0n this issue. The motion t0 strike the FEHA~related allegations will accordingly be gamed. (See also Asencio v. Miller Brewing C0. (9th Cir. 2008) 283 Fed. App’X. 55.9, 561-562, Sarkizz' v. Graham Packaging C0. (ED. (3211., NOV. 13, 2014, N0. 1:13~CV-1435 AWI SKO) 20] 4 WL 6090417, at *9, and Vasconcellos v. Sam Lee Bakery (ND. Cal, Nov. 21, 2013, N0. C 13-2685 SI) 2013 WL 6139781, at *4 [all applying Zn. re Vaccine t0 UCL claims predicated 0n FEHA and the Labor 00:16].) While plaintiffs contend that allegations 0f comhzct that violates FEHA should not be stricken, HPE does not move t0 strike any substantive allegations regarding its conduct, only legal conclusions related t0 FEHA. Finally, HPE contends that Labor Code section 203 penalties are not aVailable as restitution under the UCL, an argument t0 Which plaintiffs do not respond in their opposition papers. HPE’s argument is directly supported by Pineda v, Bank ofAmerica, NA. (2010) 50 Cal.4th 1389, 1401 -1402, and other authorities cited in its briefing. Its motion t0 strike the Labor Code allegations from the UCL claim will be granted. C. Conclusion and Order HPE’S motion t0 strike is GRANTED IN PART. The following portions Ofthe complaint are hereby struck Without leave t0 amend: -“HPE’S Violations 0f the Fair Employment and Housing Act Support the UCL Claim” (p. 13, 11. 12-13); -paragraphs 61, 62, 66, and 128 in their entireties; Ross, el a]. v. Hewletl Packard Enterprise Company, Superior Court Qf‘Cczlz‘fbrnz'a, County oszmla Clam, Case N0. l8-CV-33 7830 Order After Hearing 0n June 28, 20] 9 [Defiandanr’s Denmrrer t0 and M’ofion lo Strike Portions O_fthe Complaint] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -“including FEHA” (p. 18, 11. 22-23); -“the California Fair Employment and Housing Act, (‘FEHA’)” (p. 23, 11., 17-1 8); -“and 203” (p. 23, 11. 18, 26); and -“HPE’s conduct is also immoral, unethical, oppressive, unscrupulous, and offensive t0 the established public policy of ensun'ng women are not discriminated against in the workplace, policy reflected in FEHA.” (p. 24, 11.18~ 21). The motion t0 strike is otherwise DENIED. IT IS SO ORDERED. ' (T Dated: ‘23:! :2”) 9‘0]! I Honorable Bfian C. Walsh Judge 0f the Superior Court 63%; g; cm ROSS, et al. v. HewlettPackardEmerprise Company, Superior Court QfCalifimia, County afScmt'a Clam, Case 1V0. 18-CV-337830 Order After Hearing on June 28, 2019 [Defendant ’s Demurrer to and. Motion t0 Strike Portions ofthe Complaint] 17 - ”Mm,..m._.... .4. _