Order Submitted MatterCal. Super. - 6th Dist.June 17, 2019KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ALYSHA JARAMILLO, Case N0.: 19CV349023 Plaintiff, ORDER CONCERNING DEFENDANT SJMEC INC.’S MOTION VS. TO STRIKE THIRD AMENDED COMPLAINT OR, ALTERNATIVELY, MARRIOTT INTERNATIONAL, INC., et al., ITS DEMURRER TO PLAINTIFF’S THIRD AMENDED COMPLAINT Defendants. In this Private Attorneys General Act (PAGA) case, Plaintiff Alysha Jaramillo named one of her alleged employers in a timely PAGA administrative notice, but did not name her other alleged employer in a PAGA notice until after the limitations period had run. Ms. Jaramillo argues that the original notice encompassed her claims against both employers-or else the relation back 0r alter ego/single enterprise doctrines (0r both) apply t0 save her claims against the second employer. The second employer, Defendant SJMEC, Inc., filed a demurrer t0 the First Amended Complaint (FAC) based 0n the untimely PAGA notice. The Court sustained the demurrer with leave t0 amend. Ms. Jaramillo filed a Second Amended Complaint (SAC), t0 which SJMEC again demurred, and then a Third Amended Complaint (TAC), which mooted the demurrer t0 the SAC. ORDER ON SUBMITTED MATTER Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/1/2021 8:37 AM Reviewed By: R. Walker Case #19CV349023 Envelope: 7573290 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Now before the Court is SJMEC and Defendant Marriott International, Inc.’s motion t0 strike the TAC as unauthorized, along with SJMEC’S demurrer t0 the TAC based 0n Ms. Jaramillo’s failure to name it in a timely PAGA notice. The Court issued a tentative ruling 0n October 27, 2021 and heard oral argument 0n October 28. It now issues its final ruling, which DENIES Defendants’ motion t0 strike and SUSTAINS SJMEC’S demurrer, this time without leave t0 amend. I. BACKGROUND A. Factual According t0 the TAC, Marriott and SJMEC own and operate a chain 0f hotels under various brands nationwide and throughout California, including approximately 52 Marriott hotel locations in California. (TAC, 1] 26.) 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. (Id.,w 27-28.) Ms. Jaramillo 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. (TAC, 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 and providing customer service t0 the hotel’s patrons. (Ibid) Ms. Jaramillo 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 space for the presence and use 0f a seat 0r stool by employees assigned t0 perform duties in these areas. (TAC, 1] 29.) Ms. Jaramillo and other aggrieved employees spend a substantial portion 0f their days in these areas, and according t0 Ms. Jaramillo, their assignments can reasonably be accomplished from a seated position. (Id., 1] 30.) Defendants could have provided Ms. Jaramillo 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., In 29.) KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO B. Procedural Based 0n these allegations, Ms. Jaramillo 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 in June 2019, named only Marriott as a defendant and attached her original PAGA notice, which she sent t0 the Labor and Workforce Development Agency (LWDA) in April 2019. (Complaint, EX. 1.) The FAC, filed in June 2020, added SJMEC as a defendant, but otherwise made n0 substantive change t0 the PAGA claims. It attached a PAGA notice naming SJMEC (and Marriott) sent to the LWDA in April 2020. The TAC attaches both the April 2019 and April 2020 PAGA notices. (TAC, EX. 1.) After the Court sustained SJMEC’S demurrer t0 the FAC, Ms. Jaramillo filed the SAC and then the operative TAC, which includes new allegations supporting her theories that Marriott and SJMEC are joint employers and alter egos, along with new allegations that the Defendants are a “single enterprise.” And as discussed further below, the TAC also newly alleges that Defendants actively concealed that SJMEC was Ms. Jaramillo’s employer. Defendants move t0 strike the TAC 0n the ground that Ms. Jaramillo did not have leave t0 file it. In addition, SJMEC demurs t0 the TAC 0n the ground that its allegations and other matters subj ect t0 judicial notice establish that the claims against SJMEC are untimely based 0n Ms. Jaramillo’s failure t0 name it in a timely PAGA notice. II. MOTION TO STRIKE Ms. Jaramillo contends that she properly filed the TAC without leave t0 amend pursuant t0 Code 0f Civil Procedure section 472, subdivision (a), which provides: A party may amend its pleading once without leave 0f the court at any time before the answer, demurrer, 0r motion t0 strike is filed, 0r after a demurrer 0r motion t0 strike is filed but before the demurrer 0r motion t0 strike is heard if the amended KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO pleading is filed and served n0 later than the date for filing an opposition t0 the demurrer 0r motion t0 strike. But “the section 472 right t0 amend has long been regarded as confined t0 the original complaint ....” (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 573-574 (Hedwall).) Section 472 did not authorize Ms. Jaramillo t0 file the TAC, and neither did the Court’s prior order granting Ms. Jaramillo leave t0 amend the FAC. So it might be appropriate for the Court t0 grant Defendants’ motion t0 strike the TAC. (See Hedwall, supra, 22 Cal.App.5th at pp. 572-579 [trial court properly granted motion t0 strike amended pleading improperly filed under section 472].) Still, the decision t0 grant a motion t0 strike is within the Court’s discretion. (See id. at pp. 572-573, citing Code CiV. Proc., § 436 [court “may” grant a motion t0 strike “upon terms it deems proper”].) Here, SJMEC has filed a demurrer t0 the TAC, which the parties have fully briefed. It would only delay the case t0 strike the TAC, require Ms. Jaramillo t0 file a motion for leave t0 re-file the TAC, and require the parties t0 brief yet another demurrer by SJMEC. For efficiency’s sake, the Court DENIES the motion t0 strike. But it admonishes Ms. Jaramillo not t0 file any further amended pleadings without leave 0f court. III. DEMURRER As discussed in the Court’s February 24, 2021 order sustaining SJMEC’S prior demurrer, Ms. Jaramillo’s amended PAGA notice naming SJMEC as her employer, and the PAGA claims against SJMEC in this case, are untimely except t0 the extent they were encompassed by 0r relate back t0 her original PAGA notice. (See Brown v. Ralphs Grocery C0. (2018) 28 Cal.App.5th 824, 829 (Brown); Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 62.) SJMEC again demurs t0 the TAC 0n the ground that they d0 not. A. Legal Standard A demurrer tests the legal sufficiency 0f the complaint. (Chen v. PayPal, Inc. (2021) 61 Cal.App.5th 559, 568.) Consequently, it “reaches only t0 the contents 0f the pleading and such matters as may be considered under the doctrine ofjudicial notice.” (Weil v. Barthel (1955) 45 Cal.2d 835, 837; see also Code CiV. Proc., § 430.30, subd. (a).) “It is not the ordinary function KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 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 succeed where the allegations and matters subject t0 judicial notice clearly disclose a defense 0r bar t0 recovery. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.) B. Discussion In its prior order, the Court looked t0 authorities addressing administrative exhaustion in the context 0f the Fair Employment and Housing Act (FEHA) for guidance in this PAGA case, in particular the decision in Alexander v. Community Hospital ofLong Beach (2020) 46 Cal.App.5th 238 (Alexander). While Ms. Jaramillo again takes issue with that approach, the Court stands by the reasoning in its prior order, which is not repeated here.1 The Court will focus 0n whether the new allegations in the TAC change the result under Alexander. But first, the Court notes that its prior order assumed without deciding that the alter ego doctrine could be used t0 satisfy an administrative exhaustion requirement, and that the unity 0f interest portion 0f that doctrine had been sufficiently alleged here? This order assumes the same, so there is n0 need t0 address the adequacy 0f Ms. Jaramillo’s new alter ego allegations with regard t0 unity 0f interest. And the Court agrees with SJMEC that Ms. Jaramillo’s new “single enterprise” allegations d0 not change the analysis-which Ms. Jaramillo does not 1 The Court agrees with SJMEC that a new FEHA case that was published after the Court’s prior order, Clark v. Superior Court (2021) 62 Cal.App.5th 289, does not change the analysis here. 2 SJMEC does not challenge the adequacy 0f the unity 0f interest allegations in its demurrer t0 the TAC. KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO dispute. (See Gopal v. Kaiser Foundation Health Plan, Inc. (2016) 248 Cal.App.4th 425, 431 [under California law, if entities are “a single enterprise, they are each liable for all 0f the acts and omissions 0f the other components 0f the enterprise,” applying “[t]he doctrine ofjoint enterprise, 0r alter ego liability”], Citing Toho-Towa C0., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1108 [“[i]n California, common principles apply regardless 0f whether the alleged alter ego is based 0n piercing the corporate veil t0 attach liability t0 a shareholder 0r t0 hold a corporation liable as part 0f a single enterprise”].) Returning t0 Alexander, the Court 0f Appeal held that where two separate contractors ran the behavioral health unit at a hospital, a FEHA complaint that named one entity (MCA) but not the other (MPHS) did not satisfy the administrative exhaustion requirement as t0 the unnamed entity, so a FEHA action against that entity was precluded. Moreover, MCA could not be held liable in the FEHA action as the alter ego 0fMPHS: even assuming unity 0f interest had been proved, “[t]he only possible inequity” supporting application 0f the alter ego doctrine “would be ifMCA’S concealed unity with MPHS caused plaintiffs to fail to name MPHS in their administrative complaints,” which plaintiffs had not established. (Alexander, supra, 46 Cal.App.5th at pp. 255-256.) Addressing administrative exhaustion, Alexander discussed the plaintiffs’ argument that “MPHS was neither known t0 them nor reasonably discoverable within a year after their terminations,” because “evidence at trial revealed that MPHS employees mistakenly referred t0 themselves as MCA employees;” several hospital employees, including one whose actions gave rise to plaintiffs’ claims (Kohl), “believed [Kohl] was an MCA employee;” and the hospital’s human resources director “mistakenly believed that MCA rather than MPHS had contracted with the hospital t0 manage the Behavioral Health Unit.” (Alexander, supra, 46 Cal.App.5th at p. 252.) Alexander found that this was not enough t0 excuse naming MPHS in a timely administrative complaint: [T]his merely demonstrates a widespread misconception about the identity 0f Kohl’s employer; it fails t0 demonstrate plaintiffs could not have cleared up the misconception-as eventually it was cleared up-through reasonable efforts KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO exercised in a timely fashion, for example by obtaining the management services contract from the hospital 0r Kohl’s employment contract from MPHS. ... (Alexander, supra, 46 Cal.App.5th at p. 252.) In its subsequent discussion 0f the plaintiffs’ alter ego theory, Alexander reiterated: The only possible inequity would be if MCA’S concealed unity with MPHS caused plaintiffs t0 fail t0 name MPHS in their administrative complaints. Plaintiffs argue this is indeed the case, because “MPHS and MCA did their best t0 obfuscate their relationship with each other and Kohl’s employer.” But as discussed above, the issue is not whether the identity 0f MPHS as Kohl ’s employer was unknown t0 plaintiffs-due t0 artifice 0r otherwise-but whether it was reasonably discoverable. Even if everything plaintiff? say is true, they have failed t0 establish, and d0 not claim, that MPHS’S identity as Kohl’s employer was unascertainable through Civil discovery. (Alexander, supra, 46 Cal.App.5th 238, 255-256, italics added.) Here, the TAC’S new allegations 0f concealment are very similar t0 the facts rejected by Alexander. Specifically, Ms. Jaramillo alleges that documents including Labor Code section 2810.5 wage theft notices, W-2 forms, paychecks, payroll records, and an employee handbook listed Marriott as her employer. (TAC,w 17, 21, 23.) In addition, Ms. Jaramillo was interviewed t0 work at the “San Jose Marriott” hotel location, with the branding and trademarks 0f Marriott and not SJMEC, and was required t0 attend “brand training” presented by Marriott; she does not recall receiving any information that SJMEC employed her 0r that her employment was governed by a collective bargaining agreement; Marriott responded t0 Ms. Jaramillo’s request for her personnel file by producing documents identifying only Marriott and not SJMEC as her employer; Marriott did not tell Ms. Jaramillo 0r the LWDA that SJMEC was her employer when she submitted her original PAGA notice; and Marriott did not disclose the existence 0f KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO SJMEC 0r its contention that SJMEC was Ms. Jaramillo’s employer until the January 3 1 , 2020 case management conference in this case. (Id, 1] 23.) Based 0n these facts, Ms. Jaramillo alleges that Marriott intentionally and deceptively failed t0 disclose SJMEC’S identity and asserted status as her employer despite multiple opportunities t0 d0 so. (Id., 1] 24.) Ms. Jaramillo would have named SJMEC in her original PAGA notice and complaint had she known these facts. (Ibid.) These allegations suffice t0 show that Ms. Jaramillo did not know about SJMEC 0r its status as her potential employer when she submitted her original PAGA notice. But Alexander says this is not enough: “the issue is not whether the identity 0f [a particular entity] as [the] employer was unknown t0 [the] plaintiffl]-due t0 artifice 0r otherwise-but whether it was reasonably discoverable.” (Alexander, supra, 46 Cal.App.5th at p. 256, italics added.) In other words, even “a widespread misconception about the identity 0f [the] employer” caused by the employer’s artifice “fails t0 demonstrate [the] plaintiffl] could not have cleared up the misconception through reasonable efforts exercised in a timely fashion. . . .” (Id. at p. 252.) The TAC does not allege that Ms. Jaramillo could not have identified SJMEC as a potential employer in a timely fashion. Indeed, while Ms. Jaramillo alleges that Marriott failed t0 disclose SJMEC’S identity and asserted status as Ms. Jaramillo’s employer until months after she filed this case} she admits that Marriott ultimately made this disclosure at a January 3 1 , 2020 case management conference. (TAC, 1] 23.) The TAC specifically alleges that Ms. Jaramillo “could not have discovered” SJMEC’S identity and potential status as her employer “prior t0 3 The TAC alleges that under PAGA, the LWDA shall notify the employer and aggrieved employee that it does not intend t0 investigate the alleged Violation within 60 calendar days 0f the PAGA notice’s postmark date. (TAC, 1] 37.) The employee may bring suit if the LWDA does not respond within 65 days, which is what happened here. (161.,W 37, 40.) These circumstances are also indistinguishable from Alexander, where the plaintiffs requested and received immediate right-to-sue notices from the Department 0f Fair Employment and Housing upon filing their administrative complaints naming only MCA as a potential defendant. (See Alexander, supra, 46 Cal.App.5th at pp. 246-247.) KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO January 3 1 , 2020.”4 (161., 1] 24.) But this was well within a year 0f the end 0f Ms. Jaramillo’s employment. (Id, 1] 7.) So Ms. Jaramillo could have submitted a timely PAGA notice naming SJMEC as her potential employer. (See Brown, supra, 28 Cal.App.5th at p. 839 [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].) While she urges that discovery in this case was stayed at the time, she does not explain why discovery was required when Marriott specifically identified SJMEC as her employer. In conclusion, the TAC does not change the result here under Alexander. The Court accordingly will sustain SJMEC’S demurrer. And given Ms. Jaramillo’s admission that she learned 0f SJMEC’S identity and potential status as her employer 0n January 3 1, 2020, the Court will not grant leave t0 amend this time. C. Conclusion SJMEC’S demurrer t0 the TAC is SUSTAINED WITHOUT LEAVE TO AMEND. SJMEC shall prepare and lodge a proposed judgment with Ms. Jaramillo’s input as t0 form. IT IS SO ORDERED. Date: The Honorable Sunil R. Kulkarni Judge 0f the Superior Court 4 The parties hotly dispute whether Ms. Jaramillo was 0n notice 0f SJMEC’S identity and status even earlier, and whether the Court may take judicial notice 0f facts that SJMEC contends establish this. The Court deems this issue and these asserted facts irrelevant in light 0f the analysis above, so it DENIES SJMEC’S request for judicial notice. (See People ex rel. Lockyer v. Shamrock Foods C0. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject t0 judicial notice].) It similarly DENIES Ms. Jaramillo’s request for judicial notice 0f case management conference statements bearing 0n the same issue. October 30, 2021