Minute OrderCal. Super. - 6th Dist.December 2, 2019SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Vargas, et al. v. ZZ Noodles |nc., et al. Hearing Start Time: 1:30 PM 19CV359419 Hearing Type: Motfon: Demerrer and Motion to Strike Date of Hearing: 01/20/2022 Comments: Heard By: Kulkarni, Sunil R Location: Department 1 Courtroom Reporter: - No Record Transcribed Courtroom Clerk: Maggie Castellon Court Interpreter: Court Investigator: Parties Present: Future Hearings: Rusnak, Alexander S Attorney Sidebotham, EricJ Attorney Exhibits: - Alexander S. Rusnak for Plaintiff, Saul Eguia Varga and Miguel Rodriguez Ponce via video courtcall. Eric J. Sidebotham for: Defendant, Steve Kim; ZZ Noodles via courtcall. Tentative Ruling is not contested. THE COURT ADOPTS THE TENTATIVE RULING,‘ see below: This action is a putative wage and hour class action lawsuit filed by Plaintiffs Saul Eguia Vargas and Miguel Rodriguez Ponce against their employers ZZ Noodles, |nc.; Kyo-Po Deli, LLC; Steve Kim aka Steve Seong Kim; Green Earth Foods, dba Super Kyo-Po Plaza. Plaintiffs also assert a claim under the Private Attorney General Act of 2004 ( PAGA ). Currently before the Court are a demurrer to Plaintiffs third amended complaint ( 3AC) by Defendants ZZ Noodles, |nc., Green Earth Food, and Steve Kim ( Moving Defendants ) and Defendants motion to strike portions of Plaintiffs 3AC. |. BACKGROUND A. Factual Allegations Plaintiffs allege that they were non-exempt employees of Defendants and Defendants failed to pay them for all hours worked, failed to pay a legal minimum wage, failed to provide them with accurate itemized wage statements, and failed to provide them with meal and rest breaks that complied with state law. They contend that other non-exempt employees of Defendants were submitted to the same treatment. B. Current Procedural Posture Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 1 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Based on these allegations, Plaintiffs currently assert the following causes of action in their 3AC: (1) failure to pay for all hours worked and failure to pay legal minimum wage (violation of Wage Order and Lab. Code, 204, 204b, 226.2, 223, 1194); (2) failure to pay overtime wages (violation of Wage Order and Lab. Code, 510, 1194, 1198); (3) failure to provide accurate itemized wage statement (Lab. Code, 226); (4) failure to provide compliant meal period and rest breaks (Lab. Code, 205, 226, 226.7, 512); (5) failure to pay all wages due upon termination (Lab. Code, 203); (6) restitution for unfair business practices (Bus. & Prof. Code, 17200) ; and (7) representative action under PAGA (Lab. Code, 2698). ||. DEMURRER Moving Defendants demur to the 3AC on the grounds that each of its claims fail to state sufficient facts to constitute a cause of action and that each claim is uncertain, ambiguous, and unintelligible in that it relies almost exclusively on conclusory allegations lacking in factual support. (Code Civ. Proc., 430.10, subds. (e) & (f).) Plaintiffs oppose the demurrer and Moving Defendants have filed a reply. A. Timeliness A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint. ( 430.40, subd. (a).) Even if a demurrer is untimely filed, the Court has discretion to hear the demurrer so long as its action .. . does not affect the substantial rights of the parties. [Citations.] (See McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281-282.) Here, the 3AC was filed on June 24, 2021. On July 22, 2021, Moving Defendants filed a declaration pursuant to section 430.41, subdivision (a)(2) to extend the time to file their demurrer by 30 days. The instant demurrer was filed on August 23, 2021, within the extended 30-day timeframe. Plaintiffs do not contend that the demurrer is untimely. Accordingly, the Court will reach the merits of the demurrer. B. Meet and Confer Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. ( 430.41, subd. (a).) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. ( 430.41, subd. (a)(l).) Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. ( 430.41, subd. (a)(4).) Here, Moving Defendants have not provided a meet and confer declaration with their initial moving papers. Plaintiffs do not argue that the demurrer should be overruled for this reason but they do argue that Moving Defendants failed to meet and confer regarding the issue of which parties are involved with which claims. In Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 2 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER reply, Moving Defendants filed a declaration in which their counsel contends that that issue was the subject of Moving Defendants meet and confer efforts and providing copies of emails sent by their counsel. Because the court may not overrule a demurrer for insufficient meet and confer efforts and because neither party argues that further meet and confer efforts would be fruitful, the Court will reach the merits ofthe demurrer. C. Legal Standard A demurrer tests the legal sufficiency of the complaint. (Chen v. PayPaI, Inc. (2021) 61 Cal.App.5th 559, 568.) Consequently, it reaches only to the contents ofthe pleading and such matters as may be considered under the doctrine ofjudicial notice. (Weil v. Barthel (1955) 45 Ca|.2d 835, 837; see also 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. [T]he 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 Court must liberally construe the allegations of the complaint, 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 succeed where the allegations and matters subject to judicial notice clearly disclose a defense or bar to recovery. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.) D. Analysis Despite contending in the notice of demurrer and the demurrer itself that they generally demur to each cause of action, they do not make any specific arguments as to each cause of action. Instead, they contend that the class action allegations are invalid on the face of the 3AC because the 3AC fails to allege sufficient facts to enable the class to be ascertainable and to demonstrate that the class meets the numerosity and community of interest requirements. Additionally, Moving Defendants contend that the class action allegations in the 3AC do not meet California s minimum pleading requirements and Plaintiffs cannot sustain their allegations based on information and belief. i. The Propriety of Disposing of Class Action Allegations On Demurrer Moving Defendants argue that the 3AC fails to allege sufficient facts to enable the class to be ascertainable and to demonstrate that the class meets the numerosity and community of interest requirements. Section 382 authorizes certification of a class when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . . Generally, a class suit is appropriate when numerous parties suffer injury of insufficient size to warrant individual action and when denial of class relief would result in unjust advantage to the wrongdoer. [Citation.] (Linder, supra, 23 Ca|.4th at p. 435.) Whether class action allegations should be disposed of at the pleading stage, prior to any motion to certify the class, has been the subject of much discussion in the Courts of Appeal. One line of cases holds that the court should not determine the propriety of class action status on demurrer unless the factual allegations make it clear that the complaint cannot be amended to properly plead a class action and, therefore, the court should defer making such a determination until a later stage of the proceedings. The other holds that class Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 3 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER action certification questions may be determined by demurrer and that the Court should sustain a demurrer to class action allegations where it concludes as a matter of law that, assuming the truth of the factual allegations in the complaint, there is no reasonable possibility that the requirements for class certification will be satisfied. [Citation.] (Schermer v. Tatum (2016) 245 Cal.App.4th 912, 923.) In Beckstead v. Superior Court (1971) 21 Cal. App. 3d 780, 783 (Beckstead), the Court of Appeal stated, the California Supreme Court has mandated that a candidate complaint for class action consideration, if at all possible, be allowed to survive the pleading stages of litigation. The wisdom of allowing survival is elementary. Class action litigation is proper whenever it may be determined that it is more beneficial to the litigants and to the judicial process to try a suit in one action rather than in several actions. To make this determination, it is necessary to balance the benefits of trying a particular suit as a class action, against the concomitant burdens. It is clear that the more intimate the judge becomes with the character of the action, the more intelligently he may make the determination. If the judicial machinery encourages the decision to be made at the pleading stages and the judge decides against class litigation, he divests the court of the power to later alter that decision. However, if the decision is allowed to be deferred past the pleading stage, and even well into the trial on the merits, the balancing will be more precise. Since it is both the litigants and the judicial process who are the beneficiaries of a wise decision, the overriding interest of all affected is to allow the judge as much insight into the case as possible in making his determination. Therefore, because the sustaining of demurrers without leave to amend represents the earliest possible determination of the propriety of class action litigation, it should be looked upon with disfavor. The Beckstead court left open the possibility that demurrers should be sustained to class action complaints when the factual allegations negate the possibility that the pleading may be amended to plead a class action. It is in such factual situations that sustaining demurrers without leave to amend is proper. However, absent such strong factual showings, all that is normally required for a complaint to survive demurrers to the propriety of class litigation is that the complaint allege facts that tend to show: (1) an ascertainable class of plaintiffs, and (2) questions of law and fact which are common to the class. If the complaint is allowed to survive the demurrer, then the judge may proceed with the suit, deferring his determination of the propriety of class action until a time when he may better make the decision. (Beckstead, supra, 21 Cal.App.3d at pp. 783-784.) In Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1325 (Prince), the Court of Appeal reaffirmed Beckstead, reviewed numerous other cases discussing the use of demurrers to determine the propriety of class actions, and concluded that it is only in mass tort actions (or other actions equally unsuited to 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. (Italics added.) The Prince court concluded that the trial court s finding that individual issues predominated over class issues in that wage and hour action alleging employer paid its drivers only for the time they were on driving assignments, rather than for the full duration of their shifts, was simply wrong because the plaintiff alleged institutional practices by [the employer] that affected all of the members of the potential class in the same manner[.] (Id. at p. 1329.) In Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 57-58, the Court of Appeal explained the reasoning in Prince as follows: In the mass tort cases and in others found not suitable for class treatment, it is apparent from the complaint that each class member must adjudicate separately numerous issues affecting the defendant's liability, as well as damages. (See, e.g., Silva v. Block (1996) 49 Cal.App.4th 345, 352 [proposed class of persons wrongly and unjustifiably attacked by police dogs used by sheriff s department; Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 4 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER question of liability to individual class members would depend upon the particular conduct in which the suspect was engaged and the facts apparent to the handler before the police dog was employed ]; [Clausing v. San Francisco Unified School Dist. (1990) 221 Cal. App. 3d 1224,1233-1234] [proposed class of handicapped students who had allegedly been abused, beaten, and publicly humiliated by school district employees; each individual would have to prove overwhelmingly numerous separate issues, including the fact that he or she was a victim of abuse, the identity of the abuser, the capacity in which the abuser acted, and others; even if it could be determined that the district s policies and practices encouraged abuse of students, this determination could not resolve the lawsuit, which would still require a full trial on each and every alleged incident of abuse with respect to fault, causation, damages, and affirmative defenses ].) Other courts have agreed with Prince that only in mass tort actions (or other actions equally unsuited to class action treatment) [should] class suitability can and should be determined at the pleading stage. In other cases, particularly those involving wage and hour claims [such as the instant action], class suitability should not be determined by demurrer. (Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494, 1511 (Tarkington); Gutierrez v. California Commerce Club, Inc. (2010) 187 Cal.App.4th 969, 979-980; see also In re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293, 1298-1299 [ Class certification is generally not decided at the pleading stage of a lawsuit. [T]he 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. [Citation.] However, ifthe defects in the class action allegations appear on the face of the complaint or by matters subject to judicial notice, the putative class action may be defeated by a demurrer or motion to strike. [Citation.] ; Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1062 [same].) In Tarkington, supra, 172 Cal.App.4th at p. 1511, the Court of Appeal explained, wage and hour disputes (and others in the same general class) routinely proceed as class actions because they usually involve a single set of facts applicable to all members, and one question of law common to a|| class members. [Citation.] As long as a plaintiff alleges institutional practices that affected all of the members of the potential class in the same manner, and it appears from the complaint that all liability issues can be determined on a class-wide basis, we held that no more is required at the pleading stage. [Citation.] Beckstead, on which Prince relied, has been roundly criticized by Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201 (Tucker). Some courts have stated broadly that it is only in mass tort actions (or other actions equally unsuited to 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. [Citations.] These cases have concluded that there is a policy disfavoring the determination of class suitability issues at the pleading stage. [Citations.] We believe such statements are perhaps too broad. These decisions, directly or indirectly, rely on Beckstead v. Superior Court (1971) 21 Cal.App.3d 780 (Beckstead) for the proposition that our Supreme Court has expressed its disfavor with this practice as applied to class action suits and has mandated that a candidate complaint for class action consideration, if at all possible, be allowed to survive the pleading stages of litigation. (Beckstead, at pp. 782- 783.) Beckstead cited four Supreme Court decisions in support of this conclusion: [citations]. We are unable to find any such rule articulated in the cited cases. (Id. at pp. 212-213, fn. omitted.) The Court of Appeal provided a discussion of each of the four cases cited in Beckstead, concluding that, [c]ontrary to Beckstead s characterization, in none of these cases did the Supreme Court express disfavor with use of demurrer to challenge the sufficiency of class allegation, nor did the court mandate that a complaint for class action be allowed to survive the pleading stages of litigation if at all possible. In each instance, the court simply found the pleading allegations sufficient to survive demurrer. (Id. at 213-214.) Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 5 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER The Tucker court stated, Continued reliance on Beckstead s questionable conclusion that consideration of the sufficiency of class action allegations by demurrer is disfavored seems especially difficult to reconcile with the Supreme Court s far more recent statement that nothing prevents a court from weeding out legally meritless suits prior to certification via a defendant's demurrer or pretrial motion. In fact, it is settled that courts are authorized to do so. [Citations.] [] When the substantive theories and claims of a proposed class suit are alleged to be without legal or factual merit, the interests of fairness and efficiency are furthered when the contention is resolved in the context of a formal pleading (demurrer) or motion (judgment on the pleadings, summaryjudgment, or summary adjudication) that affords proper notice and employs clear standards. (Linder, supra, 23 Ca|.4th at p. 440, fn. omitted.) Instead, the Tucker court indicated that [c]ourts have routinely decided the issue of class certification on demurrer, sustaining demurrers without leave to amend where it is clear that there is no reasonable possibility that the plaintiffs could establish a community of interest among the potential class members and that individual issues predominate over common questions of law and fact. [Citations.] [Citations.] Demurrers may serve as a screening mechanism for improperly pleaded class action allegations. [Citations.] (Tucker, supra, 208 Cal.App.4th at p. 212.) The Tucker court explained, The ultimate question in every case of this type is whether, given an ascertainable class, the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. [Citations.] If the ability of each member of the class to recover clearly depends on a separate set of facts applicable only to him, then all of the policy considerations which justify class actions equally compel the dismissal of such inappropriate actions at the pleading stage. [Citation]. [Citations.] [Citation.] Where a complaint, on its face, fails to allege facts sufficient to establish a community of interest as to the elements of the class claims, it would be a waste of time and judicial resources to require a full evidentiary hearing when the matter can properly be disposed of by demurrer. [Citation.] (Tucker, supra, 208 Cal.App.4th at p. 215.) As discovery has not yet been conducted in the instant case and the information needed to support the class action allegations is likely in the hands of Moving Defendants rather than Plaintiffs, cases like Prince and Tarkington would appear to be more on point. However, even in Tucker, the Court of Appeal recognized, a court may decide the question [of whether a case may proceed as a class action] by sustaining a demurrer to the class action allegations of a complaint only if it concludes as a matter of law that, assuming the truth of the factual allegations in the complaint, there is no reasonable possibility that the requirements for class certification will be satisfied. [Citations.] [Citations.] (Tucker, supra, 208 Cal.App.4th at p. 211, italics added.) Here, the Court cannot conclude that there is no reasonable possibility that the requirements for class certification will be satisfied. Accordingly, the demurrer will be OVERRULED. 1. Ascertainability Moving Defendants claim that the 3AC fails to state sufficient facts from which the court can determine that the putative class is ascertainable. They contend that the 3AC is not clear as to who each named plaintiff worked for and, therefore, if cannot be determined if the named plaintiffs are members of their own defined Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 6 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER class. They also assert that the allegations in the 3AC are contradictory in that the class definition indicates that the class members were paid a per diem rate but other portions of the 3AC indicate that the class members were hourly employees who should have been paid an hourly wage. Finally, they contend that the unlawful pay practices Plaintiffs allege occurred are vague, generic, and contradictory. A class is ascertainable when it is defined in terms of objective characteristics and common transactional facts that make the ultimate identification of class members possible when that identification becomes necessary. [Citation.] This standard includ[es] class definitions that are sufficient to allow a member of [the class] to identify himself or herself as having a right to recover based on the [class] description. [Citation.] (Noel v. Thrifty Payless, Inc. (2019) 7 Ca|.5th 955, 980.) Whether a class is ascertainable is determined by examining (1) the class definition, (2) the size of the class, and (3) the means available for identifying class members. [Citation.] (Kendall v. Scripps Health (2017) 16 Cal.App.5th 553, 574.) The 3AC defines the putative Kyo-Po Plaintiff Class as [a]|| individuals who have been employed by Defendants as non-exempt employees within the State of California and who were compensated at a per- diem rate at any time from four years preceding the initial filing of the initial Complaint to the present and suffered the following unlawful pay practices: [] (a) Not being paid for all hours worked; [] (b) Not being paid overtime premiums for overtime work performed; [](c) Not receiving compliant meal and rest breaks; [](d) Not receiving complaint wage stubs. (3AC at 18.) It also defines a sub-class, the Waiting Time Plaintiff Sub- Class as [a]|| individuals who have been employed by Defendants as non-exempt employees within the State of California and who were compensated at a per-diem rate at any time from four years preceding the initial filing of the initial Complaint to the present and suffered the following unlawful pay practices: [] (a) Not being paid for all hours worked; [] (b) Not being paid overtime premiums for overtime work performed; [] (c) Not receiving compliant meal and rest breaks; [] (d) Not receiving complaint wage stubs; [] (e) Not being paid all wages upon termination. (3AC at 19.) Moving Defendants argue that the 3AC fails to indicate which Defendants took which actions rendering it impossible to determine each Defendants liability. Plaintiffs counter that they contend in the 3AC that each Defendant is the agent or alter ego of each other Defendant. While it has been recognized that, ultimately, each Defendants liability must be determined, (see McCleery v. Allstate Ins. Co. (2019) 37 Cal.App.5th 434, 451), the 3AC alleges each cause of action all Defendants. Thus, it is not clear from the 3AC that there is no possibility that the requirements to maintain a class action will be met. As Moving Defendants point out, throughout the 3AC, Plaintiffs allege that they and the Class Members were paid a fixed salary (see, e.g., 3AC at 2), a per-diem rate (see, e.g., 3AC at 18 & 19), and at an hourly rate (see, e.g., 3AC at 2). However, in later portions of the 3AC it becomes clear that Plaintiffs are alleging that they were paid a set amount per day (3AC at 33) but that, in the case of non-exempt employees, a fixed salary is deemed to provide compensation only for the employee s regular, nonovertime hours, notwithstanding any private agreement to the contrary under Labor Code section 512, (3AC at 35), and that Plaintiffs claim that they did not receive overtime pay in addition to that fixed salary when they worked more than eight hours in a day or 40 hours in a week. Plaintiffs do not state the size of the class either in the 3AC or in their opposition to the demurrer but the 3AC indicates that the class is so numerous thatjoinder would be impractical, if not impossible. (3AC at 21(a).) The 3AC does not indicate how many employees total worked for Defendants during the relevant time period. However, as discussed in further detail with respect to the numerosity requirement, there is no set Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 7 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER number of class members needed to maintain a class action lawsuit. Accordingly, the Court cannot conclude that there are too few class members as a matter of law. With respect to how members of the class and subclass will be identified, the 3AC provides only that [m]embership in the Waiting Time Plaintiff Class and affiliated subclasses will be determined upon analysis of employee and payroll records, among other documents, maintained by Defendants. The Court notes that the class identified by Plaintiffs is the Kyo-Po Plaintiff Class and the Waiting Time Plaintiff Sub-Class is a sub- class. Nonetheless, the court concludes that the same method of determination of class members can be used for the named Kyo-Po Plaintiff Class. With respect to Moving Defendants argument that the alleged unlawful pay practices are vague, generic, and contradictory, the 3AC alleges that practice of paying a fixed daily rate rather than an hourly rate resulted in failure to pay overtime. (3AC at 33, 35.) It also alleges that Defendants engaged in a practice of paying part of Plaintiffs and Class Members wages via payroll check and part in cash, in an effort to not pay the full amount of wages earned including overtime pay. (3AC at 2.) A class may establish liability by proving a uniform policy or practice by the employer that has the effect on the group of making it likely that group members will work overtime hours without overtime pay, or to miss rest/meal breaks. [Citation.] (McCleery v. Allstate Ins. Co. (2019) 37 Cal.App.5th 434, 453.) Plaintiffs argue in the PARTIES section of the 3AC that Defendants are each the agents or alter egos of each other. (See 3AC at 12.) They indicate that Defendants engaged in a pattern of failing to provide breaks as appropriate (See 3AC at 26 & 27.), failing to pay overtime pay owed (See 3AC at 28), and providing wage stubs that fail to comply with the law (See 3AC at 29) and that the way Defendants issued their pay was designed to deprive Plaintiffs and other potential class members of the wages owed (See 3AC at 2.) Here, despite the deficiencies mentioned by Moving Defendants, the Court concludes that it cannot determine that Plaintiffs will be unable to meet the class action certification requirements as a matter of law. 2. Numerosity Moving Defendants argue that the 3AC fails to state sufficient facts to establish the numerosity requirement to sustain a class action lawsuit. In support ofthis contention, Moving Defendants indicate that ZZ Noodles employs only four non-exempt employees. To be certified, a class must be numerous in size such that it is impracticable to bring them all before the court . (Code Civ. Proc., 382.) The requirement of Code of Civil Procedure section 382 that there be many parties to a class action suit is indefinite and has been construed liberally. No set number is required as a matter of law for the maintenance of a class action. [Citation.] Thus, our Supreme Court has upheld a class representing the 10 beneficiaries of a trust in an action for removal of the trustees. [Citation.] [Citation.] (Hendershot v. Ready to Roll Transportation, Inc. (2014) 228 Cal.App.4th 1213, 1222.) The statutory test is whether a class is so numerous that it is impracticable to bring them a|| before the court . (Code Civ. Proc., 382.) (Id. at p. 1223.) While four plaintiffs is likely too few to maintain a class action, as discussed above, there is no set number Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 8 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER needed to do so. Plaintiffs do not name the number of potential class members. But, they include in the class the qualifying employees of all Defendants for the four year period prior to the filing of the action. (3AC at 18 & 19.) As discussed above, the 3AC alleges that Defendants engaged in a practice of failing to timely provide meal and rest breaks, paying Plaintiffs and Class Members a rate below minimum wage, and failing to pay overtime pay. Therefore, the court cannot conclude as a matter of law that there are insufficient potential class members to maintain a class action lawsuit. 3. Community of Interest The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a weII-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. [Citation.] The community of interest requirement involves three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. [Citation.] Regarding the first ofthese factors, we have recognized [a]s a general rule that if the defendant s liability can be determined by facts common to all members ofthe class, a class will be certified even if the members must individually prove their damages. [Citation.] Relatedly, In certifying a class action, the court must also conclude that litigation of individual issues, including those arising from affirmative defenses, can be managed fairly and efficiently. [Citation.] Finally, other considerations relevant to certification include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing. [Citation.] (Noel v. Thrifty Payless, Inc. (2019) 7 Ca|.5th 955, 968-969.) We have observed that the ultimate question for predominance is whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. [Citations.] The answer hinges on whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment. [Citation.] As a general rule ifthe defendant s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages. [Citations.] [Citations.] However, we have cautioned that class treatment is not appropriate if every member of the alleged class would be required to litigate numerous and substantial questions determining his individual right to recover following the class judgment on common issues. [Citation.] (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 28.) Moving Defendants contend that Plaintiffs have failed to provide basic facts regarding their own employment with Defendants such that it cannot be determined whether Plaintiffs are appropriate class representatives. However, the 3AC alleges that STEVE KIM employed Representative Plaintiffs. (3AC at 10.) They also indicate that in the prepared foods area and that the same time keeping system was used to track hours worked regardless of whether employees worked in the grocery store or the prepared foods area. (3AC at 24.) Moving Defendants also allege that there are three different scenarios for how the meal time violations could have occurred but it does not indicate which one was common to the class. The Court interprets the 3AC to indicate that employees will fall into the class if they have suffered any or all of the alleged meal time violations. While this may become an issue with respect to commonality when Plaintiffs ultimately move for class certification, it does not appear that Plaintiffs will be unable to meet the community of interest Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 9 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER requirement as a matter of law. Finally, Moving Defendants contend that certain key facts are missing from the 3Ac such as what was the named Plaintiffs rate of pay and on what dates did Defendants fail to provide them with meal breaks? But, these are not ultimate facts that must be alleged at the pleading stage. The Court concludes that the 3AC sufficiently alleges ultimate facts such that it may survive a demurrer. 4. The PAGA claim With respect to the PAGA claim (seventh cause of action), the Supreme Court held in Arias v. Sup. Ct. (2009) 46 Cal 4th 969, 975, that an employee who, on behalf of himself and other employees, sues an employer under the unfair competition law (Bus. & Prof. Code, 17200 et seq.) for Labor Code violations must satisfy class action requirements, but that those requirements need not be met when an employee's representative action against an employer is seeking civil penalties under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, 2698 et seq.). Thus, the demurrer must be overruled as it relates to the PAGA claim (seventh cause of action). ii. Failure to Meet California s Pleading Standards Moving Defendants make several arguments in support of the contention that the 3AC fails to appropriately apprise them of the allegations against them. These arguments must be rejected for the reasons discussed in the preceding section. While the 3AC is not a model pleading by any means, the core allegations are sufficiently clear in the context of the entire pleading. iii. Allegations Made on Information and Belief Moving Defendants contend that Plaintiffs allegations made on information and belief are improper because they do not indicate the information that leads Plaintiffs to believe the allegation are true. The court interprets this argument as an assertion that the court should not consider the allegations made on information and belief in determining whether the 3AC alleges sufficient facts to support the class action allegations. A pleading must conform to the general rule that a complaint must contain only allegations of ultimate facts as opposed to allegations of legal conclusions . [Citation.] (Doe v. City of Los Angeles (2007) 42 Ca|.4th 531, 551, fn. 5 (Doe).) A plaintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true. [Ctations.] (Pridonoff v. Balokovich (1951) 36 Ca|.2d 788, 792.) But, the California Supreme Court has stated that allegations made on information must allege such information that lead[s] [the plaintiff] to believe that the allegations are true. [Citation.] (Doe, supra, 42 Ca|.4th at p. 551, fn. 5; accord Brown v. USA Taekwondo (2019) 4o Cal.App.5th 1077, 1106.) In the introduction to the 3AC, Plaintiffs state, Representative Plaintiffs make the allegations hereon on Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 10 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER personal knowledge and on information and belief. (3AC at 1.) But, ultimately, Plaintiffs make only two sets of factual allegations made on information and belief. The first is one allegation stating that it is made on information and belief under the heading, COMMON FACTUAL ALLEGATIONS[.] Plaintiffs state, Representative Plaintiffs and based on information and belief, his co-workers, would be paid bi-weekly salaries. (3AC at 25.) While the 3AC does not specifically indicate how Plaintiffs were informed and believed their coworkers would be paid bi-weekly salaries, the court may infer the basis for allegations made on information on belief from the other allegations in the complaint and from general context. (See J.W. v. Watchtower Bible and Tract Society of New York, Inc. (2018) 29 Cal.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. ].) Here, Plaintiffs allegedly worked for the same companies as the class members they seek to represent and it would be reasonable for the court to infer that they may have knowledge of the payment schedule for other employees. The second set of allegations made on information and belief are in the PARTIES section of the 3AC where Plaintiffs indicate that each Defendant is a California corporation and that each Defendant is an agent or alter ego of each other Defendant. (3AC at 7-13.) However, the information regarding the Defendants corporate status and the relationships between Defendants are uniquely within the knowledge of Defendants themselves. (See Pridonoff v. Balokovich, supra, 36 Cal.2d at pp. 792-793 [ Plaintiff would 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. ].) Additionally, the doctrine of less particularity provides that [|]ess particularity [in pleading] is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense. [Citation.] (Doe v. City of Los Angeles, supra, 42 Cal.4th at pp. 549-550.) Accordingly, this argument is without merit. E. Conclusion Moving Defendants demurrer is OVERRULED. |||. MOTION TO STRIKE Moving Defendants move to strike portions of the 3AC on the grounds that Plaintiffs cannot meet the requirements to maintain a class action lawsuit. A. Timeliness Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. ( 435, subd. (b)(l); see also Cal. Rules of Court, rule 3.1322, subd. (b).) The term pleading means a demurrer, answer, complaint, or cross-complaint. ( 435, subd. (a)(2).) Unless extended by stipulation or court order, a defendant s answer is due within 30 days after service of the complaint. (See 412.20, subd. (a)(3).) Here, the 3AC was filed on June 24, 2021. On July 22, 2021, Moving Defendants filed a declaration pursuant Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 11 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER to section 430.41, subdivision (a)(2) to extend the time to file a responsive pleading by 30 days. The instant motion to strike was filed on August 23, 2021, within the extended 30-day timeframe. Plaintiffs do not contend that the motion to strike is untimely. Accordingly, the Court will reach the merits of the motion to strike. B. Meet and Confer The moving party is required to engage in meet and confer efforts prior to the filing of a motion to strike. ( 435.5, subd. (a).) But, [a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike. ( 435.5, subd. (a)(4).) Here, Moving Defendants provided a meet and confer declaration with their moving papers but the declaration does not show that the parties met and conferred regarding the issues raised in the motion to strike. However, Moving Defendants provided an additional declaration containing emails with their reply to Plaintiffs oppositions to the demurrer and the motion to strike. Because the court may not deny a motion to strike for insufficient meet and confer efforts and because neither party argues that further meet and confer efforts would be fruitful, the Court will reach the merits of the motion to strike. C. Moving Defendants Request forJudicial Notice Moving Defendants request judicial notice under Evidence Code section 452, subdivisions (g) and (h) of (1) The Articles of Organization of Kyo-Po Deli LLC, filed with the California Secretary of State on July 15, 2013; (2) The Statement of Information of Kyo-Po Deli LLC, filed with California Secretary of State on October 26, 2017; and (3) The Certificate of Cancellation of Kyo-Po Deli LLC, filed with California Secretary of State on November 25, 2019. The reasons for the request for judicial notice are not entirely clear as none of these documents are mentioned in the memorandum of points and authorities in support of the motion to strike. As Moving Defendants have made no attempt to argue the relevance of these documents, the Court concludes that they are irrelevant and the request forjudicial notice is denied. D. Legal Standard Under section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.( 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. ( 437, subd. (a); see also City and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913.) In ruling on a motion to strike, the court reads the complaint as a whole, a|| parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 12 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER A motion to strike portions of a complaint or petition may be brought on the ground that the allegations at issue are irrelevant or improper. ( 436, subd. (a).) Irrelevant matter includes (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, and (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (See 431.10, subds. (b), (c).) Generally speaking, motions to strike are disfavored and cannot be used as a vehicle to accomplish a line item veto of allegations in a pleading. (PH ||, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) However, where irrelevant allegations are scandalous, abusive, disrespectful and contemptuous, they should be stricken from the pleading. (In re Estate of Randall (1924) 194 Cal. 725, 731.) While under section 436, a court at any time may, in its discretion, strike portions of a complaint that are irrelevant, improper, or not drawn in conformity with the law, matter that is essential to a cause of action should not be struck and it is error to do so. [Citation.] Where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike. [Citation.] (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.) E. Analysis Moving Defendants argue that the 3AC fails to allege facts that enable the class to be ascertainable, to meet the numerosity requirement, and to demonstrate a community of interest. They also assert that the 3AC falls below California s minimum pleading standard in that it fails to state sufficient facts to apprise them of the allegations against them. Moving Defendants also again contends that the allegations made on information and belief are improper. As with the demurrer, there is authority for the Court to strike the class action allegations at the pleading stage. It may be proper at the pleading stage to strike class allegations if the face of the complaint and other matters subject to judicial notice reveal the invalidity of the class allegations. [Citation.] An evidentiary hearing on the appropriateness of class litigation is not necessary unless there is a reasonable possibility that the plaintiff can establish a community of interest and ascertainable class. [Citation.] (Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1231-1232.) Here, however, the motion may be procedurally deficient. A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. (Cal. Rules of Ct., rule 3.1322.) The notice of motion indicates that Moving Defendants seek to strike portions of the 3AC. The memorandum of points and authorities states, in the event the Court does not sustain [Moving] Defendants concurrentIy-filed demurrer, it should strike from the 3AC: (i) class allegations (including the class definition, all statements that the action is brought on behalf of all others similarly situated or similarly situated employees, all references to the class, class members, the class period, and all Class Allegations in their entirety;) (ii) PAGA allegations and cause of action; and (iii) allegations made on information and belief. But, it does not quote these portions in full, nor does it point out where these items are located in the 3AC. In any event, the motion to strike raises the same arguments that the Court rejected with respect to the demurrer. Accordingly, the motion to strike is DENIED in its entirety. Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 13 of 14 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER F. Conclusion The motion to strike is DENIED. The Court will prepare the order. Printed: 1/20/2022 01/20/2022 Motion: Demurrer and Motion to Strike - 19CV359419 Page 14 of 14