OrderCal. Super. - 6th Dist.June 17, 201910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA CLARA ALYSHA JARAMILLO, Case N0.: 19CV349023 Plamtlff’ ORDER AFTER HEARING 0N OCTOBER 22, 2020 VS. Demurrer by Defendant SJMEC, Inc. MARRIOTT INTERNATIONAL, INC, et a1., t0 the First Amended Complaint Defendants. The above-entitled matter came 0n regularly for hearing 0n Thursday, October 22, 2020 at 1:30 pm. in Department 1 (Complex Civil Litigation), the Honorable Brian C. Walsh presiding. A tentative ruling was issued prior t0 the hearing, which n0 party challenged. The appearances are as stated in the record. Having reviewed and considered the written submissions 0f all parties and being fully advised, the Court adopts the tentative ruling as follows: This is an action under the Private Attorneys General Act (“PAGA”) 0n behalf 0f hotel employees, alleging failure t0 provide suitable seating. /// Jaramillo v. Marriott International, Ina, et al., Superior Court ofCalifomia, County ofSanta Clara, Case N0. 19CV349023 Order After Hearing 0n October 22, 2020 [Demurrer by Defendant SJMEC, Inc. t0 the First Amended Complaint] 1 Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/23/2020 8:29 AM Reviewed By: R. Walker Case #19CV349023 Envelope: 5165614 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is defendant SJMEC, Inc.’s demurrer t0 the operative First Amended Complaint (“FAC”) on the ground that plaintiff failed t0 timely exhaust her PAGA claims as t0 SJMEC. Plaintiff opposes the demurrer. I. Allegations 0f the Operative Complaint According t0 the FAC, defendants Marriott International, Inc. and SJMEC, Inc. own and operate a chain 0f hotels under various brands nationwide and throughout California, including approximately 52 Marriott hotel locations in California. (FAC, 1] 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 t0 employees throughout California. (161.,W 22-23.) Defendants are one another’s agents, employees, alter egos, and/or joint venturers, 0r work in concert with one another, ratify one another’s actions, and/or aid and abet one another with regard t0 the acts and omissions alleged by plaintiff. (Id,W 8-13.) They are joint employers of the aggrieved employees under California law and alter egos. (1d,, W 15-20.) Plaintiff worked for defendants at their hotel in San Jose as an hourly, non-exempt Front Desk Agent from approximately October 2016 t0 March 11, 2019. (FAC, 1] 7.) She typically worked 4 t0 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 t0 the hotel’s patrons. (Ibid) Plaintiff alleges that the front desk, registration desk, concierge desk, and concierge areas 0f defendants’ California hotels are generally similar in their layout and design and have adequate space for the presence and use 0f a seat 0r stool by defendants’ employees assigned t0 perform duties in these areas. (FAC, 1] 24.) Plaintiff and other aggrieved employees have spent a substantial portion 0f their days in these areas and their assignments can reasonably be accomplished from a seated position. (Id., 1] 25.) Defendants could have provided plaintiff and other aggrieved employees with a seat 0r stool with reasonable 0r n0 modification t0 these work areas, but instead denied them seating and forced them t0 stand throughout the day. (Id., 1] 24.) Jaramillo v. Marriott International, Ina, et al., Superior Court ofCalifomia, County ofSanta Clara, Case N0. 19CV349023 2 Order After Hearing 0n October 22, 2020 [Demurrer by Defendant SJMEC, Inc. t0 the First Amended Complaint] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Based 0n these allegations, plaintiff asserts two causes 0f action under PAGA: (1) failure t0 provide suitable seating in Violation 0f Labor Code section 1198 and California Code 0f Regulations, title 8, section 11050(14)(A) and (2) failure t0 provide suitable seating in Violation 0f Labor Code section 1198 and California Code 0f Regulations, title 8, section 11050(14)(B). Her original complaint, filed on June 17, 2019, named only Marriott as a defendant; the FAC, filed 0n June 25, 2020, names SJMEC, in addition t0 Marriott as a defendant t0 claims. II. Legal Standard The function 0f a demurrer is t0 test the legal sufficiency 0f a pleading. (Trs. OfCapital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621 .) Consequently, “[a] demurrer reaches only t0 the contents 0f the pleading and such matters as may be considered under the doctrine ofjudicial notice.” (South Shore Land C0. 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 0f a demurrer t0 test the truth 0f 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 Cal.App.4th 949, 958, internal citations and quotations omitted.) In ruling on a demurrer, the allegations 0f the complaint must be liberally construed, with a View t0 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 0r conclusions 0f law 0r fact.” (George v. Automobile Club ofSouthern California (201 1) 201 Cal.App.4th 1112, 1120.) A demurrer will lie where the allegations and matters subject t0 judicial notice clearly disclose a defense 0r bar t0 recovery. (Casterson v. Superior Court (Cardoso) (2002) 101 Cal.App.4th 177, 183.) / / / / / / / / / Jaramillo v. Marriott International, Ina, et al., Superior Court ofCalifomia, County ofSanta Clara, Case N0. 19CV349023 3 Order After Hearing 0n October 22, 2020 [Demurrer by Defendant SJMEC, Inc. t0 the First Amended Complaint] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. Requests for Judicial Notice SJMEC’S request for judicial notice 0f plaintiff’s collective bargaining agreement is DENIED. While courts take judicial notice 0f such agreements when their authenticity and operative terms are not in dispute, here, SJMEC asks the Court t0 rely 0n the agreement t0 conclude that it, and not Marriott, is plaintiffs true employer. This is a disputed issue between the parties, and is not a proper subject ofjudicial notice. (See Fremont Indem. C0. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114-1 15 [“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 t0 show”].) Plaintiffs request for judicial notice ofj oint 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 t0 the LWDA and allowing the employer an opportunity t0 cure” certain Violations. (Lopez v. Friant & Associates, LLC (2017) 15 Cal.App.5th 773, 785.) The notice requirement was added t0 PAGA t0 improve the statute “by allowing the [LWDA] t0 act first 0n more ‘serious’ Violations such as wage and hour Violations and give employers an opportunity t0 cure less serious Violations.” (Caliber Bodyworks, Inc. v. Superior Court (Herrera) (2005) 134 Cal.App.4th 365, 375.) “The evident purpose 0f the notice requirement is t0 afford the relevant state agency the opportunity t0 decide whether t0 allocate scarce resources t0 an investigation, a decision better made with knowledge 0f the allegations an aggrieved employee is making and any basis for those allegations,” while notice t0 the employer allows it t0 submit a response t0 the agency, “again thereby promoting an informed agency decision as t0 whether t0 allocate resources toward an investigation.” (Williams v. Superior Court (Marshalls ofCA, LLC) (2017) 3 Cal.5th 53 1, 545-546.) Consistent with these goals, the notice must identify “the specific provisions 0f [the Labor Code] alleged t0 have been violated,” Jaramillo v. Marriott International, Ina, et al., Superior Court ofCalifomia, County ofSanta Clara, Case N0. 19CV349023 4 Order After Hearing 0n October 22, 2020 [Demurrer by Defendant SJMEC, Inc. t0 the First Amended Complaint] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 including the “facts and theories” t0 support the alleged Violation. (Williams v. Superior Court, supra, 3 Cal.5th at p. 545, quoting Lab. Code, § 2699.3.) Because the statute 0f limitations for a PAGA claim is one year, a plaintiff must submit a PAGA notice within one year 0f the Violation at issue. (Brown v. Ralphs Grocery C0. (2018) 28 Cal.App.5th 824, 839.) Here, plaintiff submitted an initial notice 0f her PAGA claims t0 the LWDA 0n April 12, 2019, within the one year statute 0f limitations. (FAC, 1] 34.) The initial notice identified Marriott as plaintiff” s employer. (Id., EX. 1.) On April 13, 2020, plaintiff sent an amended notice t0 the LWDA, identifying the same seating policies as the basis for her claims, but now identifying both Marriott and SJMEC as her employers. (Id, EX. 2.) She then amended her complaint t0 name SJMEC as a defendant 0n 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 t0 SJMEC, and so is her FAC. As an initial matter, while a plaintiffmay submit an amended PAGA notice, where such notice is untimely, it cannot expand the plaintiffs claims beyond those properly raised in the original notice. (See Brown v. Ralphs Grocery C0., supra, 28 Cal.App.5th at p. 839.) Claims raised for the first time in an untimely notice are thus barred “except t0 the extent the later-added claims may relate back t0 [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 t0 the original notice naming only Marriott.1 1 To the extent that the unpublished federal authorities cited by SJMEC suggested that the relation back doctrine does not apply in this context, the Court must disregard them and follow Brown. Notably, Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42 recently confirmed Brown’s holding “that untimely PAGA claims could not relate back to an earlier complaint except to the extent the earlier complaint was preceded by an adequate LWDA notice for those claims.” (At p. 62, emphasis added.) Esparza confirmed that Brown directed the trial court “to consider the extent to Which any of the untimely PAGA claims could relate back to the original PAGA claim premised on the ‘adequately noticed’ Violation” at issue in that case. (Ibid.) Esparza itself held that Where a plaintiff did not submit any PAGA notice to the LWDA until after the one-year limitations period had expired, her PAGA claim could not be deemed timely based on relation back to an earlier complaint filed in court. (See id. at p. 60, fn. 10 [“We need not decide whether Vezaldenos’s PAGA claim could relate back to the date of her LWDA notice. [Citation] The PAGA claim would be time-barred even if it related back to the LWDA notice because appellants provided the notice in July 2008 -- after the limitations period had expired.”].) Many of the federal cases cited by the parties address similar facts and are thus inapposite to the issue before the Court here. (See Harris v. Vector Marketing Corp. (ND. Cal., Jan. 5, 2010, N0. C-08-5 198 EMC) 2010 WL 56179; Soto v. Castlerock Farming and Transport Inc. (ED. Cal., Apr. 16, 2012, N0. CIV-F-09-0701 AWI) Jaramillo v. Marriott International, Ina, et al., Superior Court ofCalifomia, County ofSanta Clara, Case N0. 19CV349023 5 Order After Hearing 0n October 22, 2020 [Demurrer by Defendant SJMEC, Inc. t0 the First Amended Complaint] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court is unaware 0f 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 0f the 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 0f its holding that later-added claims may relate back t0 a timely PAGA notice. (Brown v. Ralphs Grocery C0., 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 if they would necessarily have been discovered by investigation 0f the charged incidents, i.e., if the allegations in the civil complaint were ‘like 0r related’ t0 those specified in the DFEH charge”].) SJMEC relies 0n two FEHA cases, Medix Ambulance Service, Inc. v. Superior Court (Collado) (2002) 97 Cal.App.4th 109 and Valdez v. City ofLos Angeles (1991) 231 Cal.App.3d 1043, abrogated 0n other grounds by Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 813, t0 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 n0 authority “for plaintiff’s unsupported argument that the doctrine 0f alter ego somehow obviates compliance with the statutory requirements” in this context].) These cases are not squarely 0n point, given that they pertain t0 individual defendants not named anywhere in the notice: the involvement 0f 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 ofLong Beach (2020) 46 Cal.App.5th 238, applies SJMEC’S authorities t0 facts very similar t0 those at 2012 WL 1292519; Baas v. Dollar Tree Stores, Inc. (ND. Cal., June 18, 2009, N0. C 07-03108 JSW) 2009 WL 1765759; Moreno v. Autozone, Inc. (ND. Cal., June 5, 2007, N0. C05-04432 MJD 2007 WL 1650942).) Jaramillo v. Marriott International, Ina, et al., Superior Court ofCalifomia, County ofSanta Clara, Case N0. 19CV349023 6 Order After Hearing 0n October 22, 2020 [Demurrer by Defendant SJMEC, Inc. t0 the First Amended Complaint] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 issue here. In Alexander, nurses submitted FEHA complaints against a hospital that contracted with two corporations t0 run its behavioral health unit. The nurses named one corporation, MCA, in their administrative complaints, but failed t0 name the other, MPHS (although they did name MPHS’S director as an individual). Citing Valdez, the Court 0fAppeal held that where “plaintiffs mentioned MPHS nowhere in their FEHA complaint,” this “constitutes a failure t0 exhaust their administrative remedies against MPHS and precludes their bringing a civil FEHA action against it.” (Id. at p. 25 1 .) This was true even where plaintiffs argued that “MPHS had actual notice 0f their FEHA complaints because the DFEH served them 0n MCA by way 0f . .. MCA’S director 0fhuman resources, who also functions as the human resources director for MPHS.” (Ibid.) The Court 0f Appeal reasoned that even were we empowered and inclined t0 carve an equitable exception out 0f mandatory statutory language where an unnamed defendant receives actual notice 0f a FEHA complaint, we would not d0 so here because the DFEH, for one, had n0 notice that plaintiffs intended t0 accuse MPHS, and thus had n0 opportunity t0 contact MPHS, investigate its involvement in the alleged unlawful practice, 0r seek t0 resolve the matter by conference, conciliation, and persuasion. Further, even though MPHS may have known (by way 0f Mesina) that plaintiffs could have named it in their administrative complaint, it was entitled t0 rely 0n their failure t0 d0 so as evidence that they did not intend t0 pursue a civil complaint against it, at least not until they had filed new administrative complaints. (Alexander v. Community Hospital ofLong Beach, supra, 46 Cal.App.5th at pp. 25 1-252.)2 Alexander went 0n t0 reject plaintiffs’ alter ego theory, explaining that, even assuming MCA and MPHS were alter egos, “[t]he only possible inequity” supporting application 0f the alter ego doctrine in the context 0f administrative exhaustion “would be ifMCA’S concealed unity with MPHS caused plaintiffs t0 fail t0 name MPHS in their administrative complaints,” Which plaintiffs had not established. (Alexander v. Community Hospital ofLong Beach, supra, 2 Alexander also rej ected the plaintiffs’ argument that MPHS was not reasonably discoverable by them based on “evidence at trial that MPHS employees mistakenly referred to themselves as MCA employees; Kohl himself . .. believed he was an MCA employee; and Martin, the hospital’s human resources director, mistakenly believed that MCA rather than MPHS had contracted with the hospital to manage the Behavioral Health Unit.” (Alexander v. Community Hospital ofLong Beach, supra, 46 Cal.App.5th at p. 252.) The Court of Appeal found that “this merely demonstrates a Widespread misconception about the identity of Kohl’s employer; it fails to demonstrate plaintiffs could not have cleared up the misconception-as eventually it was cleared up-through reasonable efforts exercised in a timely fashion. ...” (Ibid) Jaramillo v. Marriott International, Ina, et al., Superior Court ofCalifomia, County ofSanta Clara, Case N0. 19CV349023 7 Order After Hearing 0n October 22, 2020 [Demurrer by Defendant SJMEC, Inc. t0 the First Amended Complaint] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 46 Cal.App.5th at pp. 255-256.) Here, plaintiff contends that defendants failed t0 alert her t0 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, 0r that she was prevented from investigating whether other entities related t0 Marriott could be deemed her employer. Thus, applying Alexander, it appears that plaintiff has failed t0 allege administrative exhaustion as t0 SJMEC. Even prior t0 Alexander, courts have interpreted Medix and related cases as establishing California’s more restrictive approach t0 FEHA exhaustion than those adopted by some federal courts, including in the Ninth Circuit. (See Polk v. OSI Electronics, Inc. (C.D. Cal., Feb. 24, 2014, No. CV-14-292-MWF (ASX)) 2014 WL 12787639, at *3-4 [despite adequate alter ego allegations, plaintiff” s failure t0 name defendant in the caption 0r body 0f his administrative complaints was fatal t0 his FEHA claim against that defendant]; Hall v. Kraft Heinz Food Company (LLC) (E.D. Cal., June 25, 2019, N0. 119CV00565LJOBAM) 2019 WL 2598764, at *4 [“The California Courts 0f Appeal have held that while a plaintiff can exhaust administrative remedies for claims against defendants not named in the caption 0f the administrative charge if those defendants are identified in the body 0f the charge, a harassment claim may not proceed against a defendant that is not named in either the caption 0r the body of the DFEH complaint.”].) Plaintiff provides n0 argument 0r authority suggesting that California would take a different approach t0 PAGA’S exhaustion requirement, which serves essentially identical purposes as FEHA’s: allowing a designated agency t0 decide whether t0 investigate and/or pursue an employee’s claim and allowing potentially liable parties t0 respond at the investigative stage.3 (See Valdez v. City ofLos Angeles, supra, 231 Cal.App.3d at pp. 1060-1061 [While the function of a FEHA complaint is “t0 provide the basis for an investigation into an employee’s claim” and not as a limiting device, “we draw a distinction” between failing t0 specify all 3 Lopez v. Lassen Dairy, Inc. (ED. Cal., Oct. 20, 2008, N0. 08 CV 00121 LJO GSA) 2008 WL 4657740 simply granted the plaintiff leave to file an amended complaint. The court concluded that because the plaintiff had submitted amended PAGA notices naming all of the defendants, defendants’ argument that administrative remedies had not been exhausted as to certain defendants “appears to be moot,” but stated that “Defendants may file a motion to dismiss for failure to exhaust administrative remedies if it is determined that this issue is still a Viable defense after being served with the SAC.” (Id. at *5.) Jaramillo v. Marriott International, Ina, et al., Superior Court ofCalifomia, County ofSanta Clara, Case N0. 19CV349023 8 Order After Hearing 0n October 22, 2020 [Demurrer by Defendant SJMEC, Inc. t0 the First Amended Complaint] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 charges of discrimination and failing t0 name all allegedly liable individuals; “[f] 0r a claimant t0 withhold naming 0fknown 0r reasonably obtainable defendants at the administrative complaint level is neither fair under the act in its purpose 0f advancing speedy resolutions 0f claims nor fair t0 known, but unnamed individuals, who at a later date are called upon t0 ‘personally’ account in a civil lawsuit without having been afforded a right t0 participate at the administrative level”].) Given these circumstances, and because Brown relied 0n FEHA authority t0 hold that an otherwise untimely complaint may relate back t0 a timely PAGA notice letter in appropriate circumstances, the Court is inclined t0 follow the FEHA authorities in this regard. Still, neither party addressed Alexander in the initial briefing 0n this matter, and the Court wishes them t0 d0 so before it issues its ruling. Accordingly, within 30 calendar days 0f the filing of this order, each party shall submit a supplemental brief 0f up t0 five pages addressing the impact ofAlexander 0n the outcome here. V. Conclusion and Order The hearing 0n SJMEC’S demurrer is CONTINUED TO FEBRUARY 4, 2021, at 1:30 pm. in Department 1. Within 30 calendar days 0f the filing of this order, plaintiff and SJMEC shall each submit a supplemental brief 0f up t0 five pages addressing the impact ofAlexander 0n the resolution 0f SJMEC’S demurrer. IT IS SO ORDERED. Dated: Honorable Brian C. Walsh Judge 0f the Superior Court Jaramillo v. Marriott International, Ina, et al., Superior Court ofCalifomia, County ofSanta Clara, Case N0. 19CV349023 9 Order After Hearing 0n October 22, 2020 [Demurrer by Defendant SJMEC, Inc. t0 the First Amended Complaint] October 22, 2020
