Order Submitted MatterCal. Super. - 6th Dist.June 17, 2019KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Electronically Filed by Superior Court of CA, County of Santa Clara, on 2/24/2021 8:51 AM Reviewed By: R. Walker Case #1 9CV349023 Envelope: 5901391 ORDER ON SUBMITTED MATTER SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ALYSHA JARAMILLO, Case N0.: 19CV349023 Plaintiff, ORDER CONCERNING DEFENDANT SJMEC INC.’S V. DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT MARRIOTT INTERNATIONAL, INC, et al., Defendants. In this Private Attorneys General Act (“PAGA”) case, PlaintiffAlysha Jaramillo named one of her 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. Plaintiff argues the relation back 0r alter ego doctrines (0r both) apply t0 save her PAGA claim against the second employer. Unsurprisingly, the second employer (Defendant SJMEC, Inc.) disagrees and has filed a demurrer t0 the operative First Amended Complaint (“FAC”), arguing that Plaintiff failed to timely exhaust her PAGA claims as t0 SJMEC. Plaintiff opposes the demurrer. As discussed below, the Court SUSTAINS SJMEC’S demurrer because the allegations in the FAC d0 not support the applicability 0f the relation back and alter ego doctrines. The Court will give Plaintiff 30 days’ leave t0 amend her complaint, however. KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO I. BACKGROUND A. Factual According t0 the FAC, Defendants Marriott International, Inc. and SJMEC 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. (Id.,W 22-23.) Defendants allegedly 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. (161.,W 8-13.) They are joint employers 0f the aggrieved employees under California law and alter egos. (Id,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 and providing customer service t0 the hotel’s patrons. (Ibid) 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 0f a seat 0r stool by employees assigned t0 perform duties in these areas. (FAC, 1] 24.) Plaintiff and other aggrieved employees spend a substantial portion 0f their days in these areas, and according t0 Plaintiff, 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. (1d,, 1] 24.) KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO B. Procedural 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). Plaintiffs original complaint, filed in June 2019, named only Marriott as a defendant and attached the PAGA notice she had sent t0 the Labor and Workforce Development Agency (“LWDA”) in April 2019. (Complaint, EX. 1.) Her FAC, filed in June 2020, adds SJMEC as a defendant, but otherwise makes n0 substantive change t0 her PAGA claims. The FAC attaches the PAGA notice naming SJMEC (and Marriott) sent to the LWDA in April 2020. (FAC, EX. 2.) SJMEC now demurs t0 the FAC; Plaintiff opposes this motion. The Court heard oral argument 0n February 18, 2021, and took the matter under submission. The Court now provides its final order. 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 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 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.) III. REQUESTS FOR JUDICIAL NOTICE SJMEC’S request for judicial notice 0f Plaintiff’s collective bargaining agreement is DENIED. Here, SJMEC asks the Court t0 rely 0n the agreement t0 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. 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. PAGA’S NOTICE REQUIREMENT “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 (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 (2017) 3 Cal.5th 531, 545-546 (Williams).) Consistent with these goals, the notice must identify “the specific provisions 0f [the Labor Code] alleged t0 have been violated,” including KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO the “facts and theories” t0 support the alleged Violation. (Id. at p. 545, internal quotation marks and citation omitted.) 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 (Brown).) Here, Plaintiff submitted an initial notice 0f her PAGA claims t0 the LWDA in April 2019, within the one year statute 0f limitations. (FAC, 1] 34.) The initial notice identified Marriott as Plaintiff’s employer. (Id., EX. 1.) Her complaint also was filed within the one-year limitations period. (SJMEC does not contend that this notice and the initial court complaint was untimely.) In April 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. (1d,, EX. 2.) She then amended her complaint in June 2020 t0 name SJMEC as a defendant. 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, which means her FAC also is untimely. 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, 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.) There is n0 dispute that Plaintiff” s 2020 amended notice is untimely. Thus, the Court must address whether the amended notice adding SJMEC as an employer relates back t0 the original notice naming only Marriott, albeit where the substantive claims are the same against Marriott and SJMEC.1 The Court also must address whether Plaintiff’s alter ego allegations in the FAC can save her claim against SJMEC. 1 T0 the extent that unpublished federal authorities cited by SJMEC suggested that the relation back doctrine does not apply in this context, the Court believes they are incorrect, and instead follows Brown. Notably, Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42 (Esparza) recently confirmed Brown’s holding “that untimely PAGA claims could not relate back t0 an earlier complaint except t0 the extent the earlier complaint was preceded by an adequate LWDA notice 5 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO V. DISCUSSION A. FEHA is Analogous t0 PAGA. The Court is unaware 0f any authority specifically addressing whether an amended PAGA notice naming a new defendant as the plaintiff” s employer relates back t0 an original PAGA notice that names a different defendant as the employer. Nor have the parties cited any such authority. But we can discern some clues from Brown. That case cited a Fair Employment and Housing Act (“FEHA”) case, Soldinger v. NorthwestAirlines (1996) 5 1 Cal.App.4th 345 (Soldinger), in support 0f its holding that later-added claims may relate back t0 a timely PAGA notice. (Brown, 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”].) Brown provides essentially n0 guidance 0n the application 0f the administrative “relation back” doctrine it discusses, other than the citation t0 FEHA authority. The Court will accordingly follow the FEHA authorities 0n this issue. This makes sense because PAGA’S administrative notice requirement generally serves the same purposes as FEHA’S requirement. In particular, a timely, sufficient administrative notice permits a designated agency t0 decide whether t0 investigate and/or pursue an employee’s Claim. (Compare Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 15 1 3-15 1 5 [FEHA] With Iskanian v. CLS Transportation Los Angeles, LLC (20 14) 59 Cal.4th 348, 380 [PAGA].) It also allows potentially liable parties t0 respond at the investigative stage. (Compare Valdez, supra, 231 Cal.App.3d at pp. 1060-1061 [FEHA] With Williams, supra, 3 Cal.5th at p. 545 [PAGA].) At oral argument, Plaintiff focused 0n differences between PAGA and FEHA, but in the Court’s View, the administrative notice requirements in the two statutory for those claims.” (Esparza, supra, 36 Cal.App.5th at p. 62, emphasis added.) Esparza confirmed that Brown directed the trial court “t0 consider the extent t0 which any 0f the untimely PAGA claims could relate back t0 the original PAGA claim premised 0n the ‘adequately noticed’ Violation” at issue in that case. (Ibid.) KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO schemes are very similar. Therefore, the Court will take guidance from cases interpreting FEHA’S administrative notice requirement. B. Alexander A recent FEHA case, Alexander v. Community Hospital OfLong Beach (2020) 46 Cal.App.5th 238 (Alexander), has facts very similar t0 those 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 0f the corporations (MCA) in their administrative complaints, but failed t0 name the other corporation (MPHS), although they did name in their administrative complaints the other corporation’s director as an individual. The Court 0f Appeal held that because “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 [the director 0f human resourcesD 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, supra, 46 Cal.App.5th at pp. 25 1-252.) Alexander went 0n t0 reject plaintiffs’ theory that MCA, which had been named in a KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO timely administrative complaint, could be liable as the alter ego 0fMPHS, explaining that, even assuming MCA and MPHS had a unity 0f interest and ownership, “[t]he only possible inequity” supporting application 0f the alter ego doctrine “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, supra, 46 Cal.App.5th at pp. 255-256.) Even before Alexander, federal courts have provided similar reasoning t0 that in Alexander. (See Polk v. OSI Elecs., Inc. (CD. Cal. Feb. 24, 2014, N0. CV-14-292-MWF (ASX)) 2014 U.S.Dist.LEXIS 199943, at *8 [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 C0. (E.D. Cal. June 24, 2019, N0. 1:19- CV-00565-LJO-BAM) 2019 U.S.Dist.LEXIS 106381, at *1 1-12 [“The California Courts of 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 0f the DFEH complaint.”].) The Court therefore will apply Alexander’s reasoning t0 our PAGA case. C. Application 0fAlexander t0 our Case Here, as in Alexander, Plaintiff only named one corporate employer (Marriott) in her original administrative notice. She named SJMEC only in her amended administrative notice, which occurred after the limitations period has run. Plaintiff also cannot rely upon alter ego 0r like allegations t0 relate back, since Plaintiff does not allege 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. That means Plaintiff cannot rely at all 0n the earlier PAGA notice t0 support naming SJMEC as a defendant. And she can’t rely 0n the later notice because that notice was untimely. Plaintiff” s claim against SJMEC accordingly thus fails. Plaintiff contends that Alexander is distinguishable because it did not involve a failure t0 exhaust administrative remedies against the plaintififv ’ employer-in Alexander, it was the KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO employer 0f an individual alleged t0 have committed FEHA Violations who was not named in the administrative complaints. But this is not a meaningful distinction-either way, an actual alleged wrongdoer was not named in the only timely administrative notice. Plaintiff also notes that Alexander does not discuss the concept 0f “relation back” as such. True, but Alexander addressed the underlying issue 0fwhether an administrative complaint was adequate with regard t0 a party not named in that complaint, which is enough. Plaintiff also suggests Alexander is somehow inconsistent with Brown. The Court disagrees. The main thrust 0f both cases when it comes t0 administrative exhaustion is that there is n0 equitable exception, as a matter 0f law, t0 that requirement where the plaintiff failed to file an adequate administrative notice 0r complaint. (See Brown, supra, 28 Cal.App.5th at p. 840 [“Allowing equitable tolling t0 preserve PAGA claims where a plaintiff failed t0 file an adequate section 2699.3 notice for years is inconsistent with the text and purpose 0f section 2699.3, subdivision (a) and would defeat the entire purpose 0f PAGA.”].)2 Plaintiff then contends that since Alexander was decided after a trial, “[i]t provides n0 guidance as t0 whether Plaintiff has adequately pleaded that SJMEC is an alter-ego 0f Marriott in this case, for the purposes 0f a demurrer.” But Alexander held that even assuming unity 0f interest had been proved, “[t]he only possible inequity” potentially supporting application 0f the alter ego doctrine “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, supra, 46 Cal.App.5th at pp. 255-256.) Plaintiff has not alleged in its FAC that Marriott concealed its connection with SJMEC, 0r that Marriott 0r SJMEC somehow prevented Plaintiff from finding out the “truth.” 2 Plaintiff argued at the February 21, 2021 hearing that Brown didn’t eliminate equitable tolling of the PAGA limitations period as a matter 0f law; rather, Brown just found that insufficient facts were pled t0 support that equitable doctrine. With respect, the Court disagrees with Plaintiff” s characterization 0fBrown. The above-quoted portion 0fBrown is not a fact-based argument, but rather a law-based argument. The Court hence finds that equitable tolling is not available as a matter 0f law t0 Plaintiff so as t0 rescue her PAGA claim against SJMEC. 3 In addition, it may be that the alter ego doctrine does not excuse exhaustion 0f administrative remedies. (See Medix Ambulance Serv., Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116.) The Court takes n0 position 0n that issue at this time. 9 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Plaintiff also cites a recent, unpublished federal opinion for the proposition that “courts may excuse a failure t0 name a defendant in the DFEH charge where the defendant is the plaintiff‘s former employer, the defendant is otherwise identifiable from the DFEH charge, and plaintiff’s failure to correctly name his employer is the result 0f a mistake.” (Bishop v. St. Jude Med. S.C., Inc. (D. Minn. July 29, 2020, N0. 19-CV-420 (NEB/ECW)) 2020 U.S.Dist.LEXIS 134404, at *10-11 (Bishop).) But the authorities relied 0n by Bishop address circumstances where the plaintiffnamed the defendant in his 0r her administrative complaint by its fictitious business name. The Court disagrees with Bishop that those authorities are appropriately applied t0 a plaintiffwho mistakenly names the wrong entity in an administrative complaint. After all, in Bishop, the right party was named in a timely administrative notice, albeit under the wrong name by mistake. That is not the situation here. Finally, Plaintiff urges that California courts would not apply Alexander in the PAGA context, due t0 “the statute’s purpose t0 ensure effective [Labor Code] enforcement.” (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 87.) In other words, PAGA’S protections are interpreted broadly. (Id. at p. 83.) But FEHA is similarly “construed broadly t0 effectuate its purposes.” (Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1213.) Accordingly, since PAGA and FEHA are remedial statutes with similar administrative notice requirements, it makes sense t0 construe the relation back and alter ego doctrines applicable t0 these notice requirements in the same way. This means the Court should follow Alexander. V. CONCLUSION Plaintiff failed to name SJMEC in a timely PAGA notice, and neither the relation back nor alter ego doctrines save Plaintiff’s claim. SJMEC’S demurrer is SUSTAINED. The Court is not convinced that Plaintiff can state a Viable non-time-barred claim against SJMEC, but will give her one last chance t0 try. Any amended complaint is due within 30 days 0f the date 0f service 0f this order. IT IS SO ORDERED. Date; February 24, 2021 ( The Honorable Sunil R. Kulkarni Judge 0f the Superior Court 10