Minute Order

Cal. Super. - 6th Dist.June 17, 2019

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER LlNE 3 Hearing Start Time; 1:30 PM Jaramillo v. Marriott International, Inc. 19CV349023 Hearing Type: Hearing: Demurrer Date 0f Hearing: 10/22/2020 Comments: Heard By: Walsh, Brian C Location: Department 1 Courtroom Reporter: - N0 Court Reporter Courtroom Clerk: Ann Vizconde Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - Demurrer by Defendant SJMEC, Inc. t0 the First Amended Complaint. Stipulation & Order re Briefing Schedule entered 7/24/20. N0 one called t0 contest the Tentative Ruling. N0 appearance. Tentative Ruling is not contested. THE COURT ADOPTS THE TENTATIVE RULING; see below: This is an action under the Private Attorneys General Act ( PAGA ) on behalf of hotel employees, alleging failure to provide suitable seating. Before the Court is defendant SJMEC, Inc. s demurrer to the operative First Amended Complaint( FAC ) on the ground that plaintiff failed to timely exhaust her PAGA claims as to SJMEC. Plaintiff opposes the demurrer. l. Allegations of the Operative Complaint According to the FAC, defendants Marriott International, Inc. and SJMEC, Inc. own and operate a chain of hotels under various brands nationwide and throughout California, including approximately 52 Marriott hotel locations in California. (FAC, 21.) Defendants maintain their corporate headquarters in Bethesda, Maryland, with a centralized Human Resources department responsible for recruiting and hiring employees, as well as communicating and implementing defendants company-wide policies to employees throughout California. (|d., 22 23.) Defendants are one another s agents, employees, alter egos, and/or joint venturers, or work in concert with one another, ratify one another s actions, and/or aid and abet one Printed: 10/22/2020 10/22/2020 Hearing: Demurrer r 19CV349023 Page 1 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER another with regard to the acts and omissions alleged by plaintiff. (ld., 8 13.) They are joint employers of the aggrieved employees under California law and alter egos. (|d., 15 20.) Plaintiff worked for defendants at their hotel in San Jose as an hourly, non-exempt Front Desk Agent from approximately October 2016 to March 11, 2019. (FAC, 7.) She typically worked 4 to 8 hours per day, 6 days per week, with job duties that included greeting hotel guests as they entered and exited the concierge lounge, as well as providing customer service to the hotel s patrons. (|bid.) Plaintiff alleges that the front desk, registration desk, concierge desk, and concierge areas of defendants California hotels are generally similar in their layout and design and have adequate space for the presence and use of a seat or stool by defendants employees assigned to perform duties in these areas. (FAC, 24.) Plaintiff and other aggrieved employees have spent a substantial portion of their days in these areas and their assignments can reasonably be accomplished from a seated position. (ld., 25.) Defendants could have provided plaintiff and other aggrieved employees with a seat or stool with reasonable or no modification to these work areas, but instead denied them seating and forced them to stand throughout the day. (ld., 24.) Based on these allegations, plaintiff asserts two causes of action under PAGA: (1) failure to provide suitable seating in violation of Labor Code section 1198 and California Code of Regulations, title 8, section 11050(14)(A) and (2) failure to provide suitable seating in Violation of Labor Code section 1198 and California Code of Regulations, title 8, section 11050(14)(B). Her original complaint, filed on June 17, 2019, named only Marriott as a defendant; the FAC, filed on June 25, 2020, names SJMEC, in addition to Marriott as a defendant to claims. |l. 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.) In 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.) A demurrer will lie where the allegations and matters subject tojudicial notice clearly disclose a defense or bar to recovery. (Casterson v. Superior Court (Cardoso) (2002) 101 Cal.App.4th 177, 183.) Printed: 10/22/2020 10/22/2020 Hearing: Demurrer r 19CV349023 Page 2 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Ill. Requests forJudicial Notice SJMEC s request forjudicial notice of plaintiff s collective bargaining agreement is DENIED. While courts take judicial notice of such agreements when their authenticity and operative terms are not in dispute, here, SJMEC asks the Court to rely on the agreement to conclude that it, and not Marriott, is plaintiff s true employer. This is a disputed issue between the parties, and is not a proper subject ofjudicial notice. (See Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114 115 [ a court cannot by means ofjudicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show ].) Plaintiff s request forjudicial notice of joint case management statements filed by the parties in this action is GRANTED. (Evid. Code, 452, subd. (d).) IV. Analysis Before bringing a PAGA claim, a plaintiff must comply with administrative procedures outlined in section 2699.3, requiring notice to the LWDA and allowing the employer an opportunity to cure certain violations. (Lopez v. Friant & Associates, LLC (2017) 15 Cal.App.5th 773, 785.) The notice requirement was added to PAGA to improve the statute by allowing the [LWDA] to act first on more serious violations such as wage and hour violations and give employers an opportunity to cure less serious violations. (Caliber Bodyworks, Inc. v. Superior Court (Herrera) (2005) 134 Cal.App.4th 365, 375.) The evident purpose of the notice requirement is to afford the relevant state agency the opportunity to decide whether to allocate scarce resources to an investigation, a decision better made with knowledge ofthe allegations an aggrieved employee is making and any basis for those allegations, while notice to the employer allows it to submit a response to the agency, again thereby promoting an informed agency decision as to whetherto allocate resources toward an investigation. (Williams v. Superior Court (Marshalls of CA, LLC) (2017) 3 Ca|.5th 531, 545-546.) Consistent with these goals, the notice must identify the specific provisions of [the Labor Code] alleged to have been violated, including the facts and theories to support the alleged Violation. (Williams v. Superior Court, supra, 3 Cal.5th at p. 545, quoting Lab. Code, 2699.3.) Because the statute of limitations for a PAGA claim is one year, a plaintiff must submit a PAGA notice within one year of the violation at issue. (Brown V. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 839.) Here, plaintiff submitted an initial notice of her PAGA claims to the LWDA on April 12, 2019, within the one year statute of limitations. (FAC, 34.) The initial notice identified Marriott as plaintiff s employer. (ld., Ex. 1.) 0n April 13, 2020, plaintiff sent an amended notice to the LWDA, identifying the same seating policies as the basis for her claims, but now identifying both Marriott and SJMEC as her employers. (ld., Ex. 2.) She then amended her complaint to name SJMEC as a defendant on June 25, 2020. SJMEC contends that because plaintiff s amended PAGA notice was submitted more than a year after her employment terminated, it is untimely as to SJMEC, and so is her FAC. As an initial matter, while a plaintiff may submit an amended PAGA notice, where such notice is untimely, it cannot expand the plaintiff s claims beyond those properly raised in the original notice. (See Brown v. Ralphs Grocery Co., supra, 28 Cal.App.5th at p. 839.) Claims raised for the first time in an untimely notice Printed: 10/22/2020 10/22/2020 Hearing: Demurrer r 19CV349023 Page 3 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER are thus barred except to the extent the later-added claims may relate back to [a timely noticed] PAGA claim. (Id. at p. 829.) Thus, the Court must address whether the amended notice and complaint adding SJMEC as an employer relate back to the original notice naming only Marriott. The Court is unaware of any authority addressing whether an amended PAGA notice and complaint naming a new defendant as the plaintiff s employer relate back to an original PAGA notice that names a different defendant as the employer; however, this issue has been addressed in the context ofthe similar administrative exhaustion requirement under California s Fair Employment and Housing Act( FEHA ). Notably, Brown cited a FEHA case, Soldinger v. Northwest Airlines (1996) 51 Cal.App.4th 345, in support of its holding that later-added claims may relate back to a timely PAGA notice. (Brown V. Ralphs Grocery Co., supra, 28 Cal.App.5th at p. 842 [citing Soldinger for the proposition that [i]ncidents not described in a DFEH charge can be included in the subsequently filed lawsuit ifthey would necessarily have been discovered by investigation ofthe charged incidents, i.e., ifthe allegations in the civil complaint were like or related to those specified in the DFEH charge ].) SJMEC relies on two FEHA cases, Medix Ambulance Service, Inc. v. Superior Court (Collado) (2002) 97 Cal.App.4th 109 and Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, abrogated on other grounds by Richards V. CHZM Hill, Inc. (2001) 26 Cal.4th 798, 813, to support its argument that a plaintiff cannot file suit against defendants not named in a timely administrative notice, even where the defendants are alleged alter egos. (See Medix Ambulance Service, Inc. v. Superior Court, supra, 97 Cal.App.4th at p. 116 [stating there is no authority for plaintiff s unsupported argument that the doctrine of alter ego somehow obviates compliance with the statutory requirements in this context].) These cases are not squarely on point, given that they pertain to individual defendants not named anywhere in the notice: the involvement of such individuals with the incidents at issue would have been less obvious than SJMEC s involvement here, where SJMEC itself maintains that it is plaintiff s true employer, and plaintiff alleges that SJMEC and Marriott are alter egos with corporate headquarters in the same location and a centralized Human Resources department. However, a more recent FEHA case, Alexander V. Community Hospital of Long Beach (2020) 46 Cal.App.5th 238, applies SJMEC s authorities to facts very similar to those at issue here. In Alexander, nurses submitted FEHA complaints against a hospital that contracted with two corporations to run its behavioral health unit. The nurses named one corporation, MCA, in their administrative complaints, but failed to name the other, MPHS (although they did name MPHS s director as an individual). Citing Valdez, the Court of Appeal held that where plaintiffs mentioned MPHS nowhere in their FEHA complaint, this constitutes a failure to exhaust their administrative remedies against MPHS and precludes their bringing a civil FEHA action against it. (Id. at p. 251.) This was true even where plaintiffs argued that MPHS had actual notice oftheir FEHA complaints because the DFEH served them on MCA by way of MCA s director of human resources, who also functions as the human resources director for MPHS. (|bid.) The Court of Appeal reasoned that even were we empowered and inclined to carve an equitable exception out of mandatory statutory language where an unnamed defendant receives actual notice of a FEHA complaint, we would not do so here because the DFEH, for one, had no notice that plaintiffs intended to accuse MPHS, and thus had no opportunity to contact MPHS, investigate its involvement in the alleged unlawful practice, or seek to resolve the matter by conference, conciliation, and persuasion. Further, even though MPHS may have known (by way of Mesina) that plaintiffs could have named it in their administrative complaint, it was entitled to rely on their failure to do so as evidence that they did not intend to pursue a civil complaint against it, at least not until they had filed new administrative complaints. Printed: 10/22/2020 10/22/2020 Hearing: Demurrer r 19CV349023 Page 4 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER (Alexanderv. Community Hospital of Long Beach, supra, 46 Cal.App.5th at pp. 251 252.) Alexander went on to reject plaintiffs alter ego theory, explaining that, even assuming MCA and MPHS were alter egos, [t]he only possible inequity supporting application of the alter ego doctrine in the context of administrative exhaustion would be if MCA s concealed unity with MPHS caused plaintiffs to fail to name MPHS in their administrative complaints, which plaintiffs had not established. (Alexanderv. Community Hospital of Long Beach, supra, 46 Cal.App.5th at pp. 255 256.) Here, plaintiff contends that defendants failed to alert her to their position that SJMEC and not Marriott was her employer, and that payroll records reflect that Marriott was, in fact, her employer she does not contend that SJMEC s alleged unity with Marriott was concealed from her, or that she was prevented from investigating whether other entities related to Marriott could be deemed her employer. Thus, applying Alexander, it appears that plaintiff has failed to allege administrative exhaustion as to SJMEC. Even prior to Alexander, courts have interpreted Medix and related cases as establishing California s more restrictive approach to FEHA exhaustion than those adopted by some federal courts, including in the Ninth Circuit. (See Polk V. OSI Electronics, Inc. (C.D. Ca|., Feb. 24, 2014, No. CV-14-292-MWF (ASX)) 2014 WL 12787639, at *3 4 [despite adequate alter ego allegations, plaintiff s failure to name defendant in the caption or body of his administrative complaints was fatal to his FEHA claim against that defendant]; Hall v. Kraft Heinz Food Company (LLC) (E.D. Cal., June 25, 2019, No. 119CV00565UOBAM) 2019 WL 2598764, at *4 [The California Courts of Appeal have held that while a plaintiff can exhaust administrative remedies for claims against defendants not named in the caption of the administrative charge if those defendants are identified in the body of the charge, a harassment claim may not proceed against a defendant that is not named in eitherthe caption or the body of the DFEH complaint. ].) Plaintiff provides no argument or authority suggesting that California would take a different approach to PAGA s exhaustion requirement, which serves essentially identical purposes as FEHA s: allowing a designated agency to decide whether to investigate and/or pursue an employee s claim and allowing potentially liable parties to respond at the investigative stage. (See Valdez v. City of Los Angeles, supra, 231 Cal.App.3d at pp. 1060 1061 [while the function of a FEHA complaint is to provide the basis for an investigation into an employee s claim and not as a limiting device, we draw a distinction between failing to specify all charges of discrimination and failing to name all allegedly liable individuals; [f]or a claimant to withhold naming of known or reasonably obtainable defendants at the administrative complaint level is neither fair under the act in its purpose of advancing speedy resolutions of claims nor fair to known, but unnamed individuals, who at a later date are called upon to personally account in a civil lawsuit without having been afforded a right to participate at the administrative level ].) Given these circumstances, and because Brown relied on FEHA authority to hold that an otherwise untimely complaint may relate back to a timely PAGA notice letter in appropriate circumstances, the Court is inclined to follow the FEHA authorities in this regard. Still, neither party addressed Alexander in the initial briefing on this matter, and the Court wishes them to do so before it issues its ruling. Accordingly, within 30 calendar days of the filing of this order, each party shall submit a supplemental brief of up to five pages addressing the impact of Alexander on the outcome here. V. Conclusion and Order The hearing on SJMEC s demurrer is CONTINUED T0 FEBRUARY 4, 2021, at 1:30 p.m. in Department 1. Printed: 10/22/2020 10/22/2020 Hearing: Demurrer r 19CV349023 Page 5 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Within 30 calendar days of the filing of this order, plaintiff and SJMEC shall each submit a supplemental brief of up to five pages addressing the impact of Alexander on the resolution of SJMEC s demurrer. The Court will prepare the order. COVlD-19 LAW AND MOTION HEARING PROCEDURES Pursuant to the Judicial Council s Emergency Rule 3(a)(1) and (3), all law and motion hearings will be conducted remotely through CourtCall until further notice. Please see the General Order re: COVlD-19 Emergency Order Regarding Complex Civil Actions, and in particular sections 7 and 10, available at http://www.scscourt.org/genera|_info/news_media/ newspde/GEN ERALORDER_RECOVID-19_EMERGENCY_ORDER_REGARD|NG_ COMPLEXCIVILACTION.pdf. If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing should contact CourtCall. Public access to remote hearings is available on a listen-only line by calling 888-808-6929 (access code 2752612). State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a remote hearing or listening in on a public access line. No court order has been issued which would allow recording of any portion ofthis motion calendar. The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporterto report a hearing may do so in compliance with this Court s October 19, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter will participate remotely and will not be present in the courtroom. Printed: 10/22/2020 10/22/2020 Hearing: Demurrer r 19CV349023 Page 6 0f 6