OrderCal. Super. - 6th Dist.December 2, 2019KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA SAUL EGUIA VARGAS, et al., Case N0.: 19CV359419 Plaintiffs, ORDER CONCERNING DEFENDANTS’: (1) DEMURRER VS. TO PLAINTIFF’S THIRD AMENDED COMPLAINT AND (2) ZZ NOODLES, INC., et al., MOTION TO STRIKE THIRD AMENDED COMPLAINT Defendants. This action is a putative wage and hour class action lawsuitl filed by Plaintiffs Saul Eguia Vargas and Miguel Rodriguez Ponce against their employers ZZ Noodles, Inc.; 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 0f 2004 (“PAGA”). Currently before the Court are: a) a demurrer t0 Plaintiffs’ third amended complaint (“3AC”) by Defendants ZZ Noodles, Inc., Green Earth Food, and Steve Kim (“Moving Defendants”); and b) Moving Defendants’ motion t0 strike portions 0f Plaintiffs’ 3AC. The 1 Class action certification has not yet been granted 0r denied. 2 Plaintiffs also initially sued Luke Seong Kim, but Plaintiffs filed a request for dismissal as t0 this defendant in December 2021. Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/25/2022 12:10 PM Reviewed By: R. Walker Case #19CV359419 Envelope: 8132447 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Court issued a tentative ruling 0n January 19, 2022 and n0 one contested the ruling at the January 20 hearing. The Court now issues its final order, which DENIES both motions. I. BACKGROUND A. Factual Allegations Plaintiffs allege that they were non-exempt employees 0f Defendants and Defendants failed t0 pay them for all hours worked, failed t0 pay a legal minimum wage, failed t0 provide them with accurate itemized wage statements, and failed t0 provide them with meal and rest breaks that complied with state law. They contend that other non-exempt employees 0f Defendants were submitted t0 the same treatment. B. Current Procedural Posture Based 0n these allegations, Plaintiffs currently assert the following causes 0f action in their 3AC: (1) failure t0 pay for all hours worked and failure t0 pay legal minimum wage (Violation 0fWage Order and Lab. Code, §§ 204, 204b, 226.2, 223, 1194); (2) failure to pay overtime wages (Violation 0fWage Order and Lab. Code, §§ 5 10, 1194, 1198); (3) failure t0 provide accurate itemized wage statement (Lab. Code, § 226); (4) failure t0 provide compliant meal period and rest breaks (Lab. Code, §§ 205, 226, 226.7, 5 12); (5) failure t0 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). II. DEMURRER Moving Defendants demur t0 the 3AC 0n the grounds that each 0f its claims fail t0 state sufficient facts t0 constitute a cause 0f action and that each claim is uncertain, ambiguous, and unintelligible in that it relies almost exclusively 0n conclusory allegations lacking in factual support. (Code CiV. Proc., § 430.10, subds. (e) & (f).)3 A. Timeliness “A person against whom a complaint 0r cross-complaint has been filed may, within 30 days after service 0f the complaint 0r cross-complaint, demur t0 the complaint 0r cross- 3 A11 further undesignated statutory references are t0 the Code 0f Civil Procedure. KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO complaint.” (§ 430.40, subd. (a).) Even if a demurrer is untimely filed, the Court has discretion t0 hear the demurrer so long as its action “. . . ‘does not affect the substantial rights 0f the parties.’ [Citations.]” (See McAllister v. County ofMonterey (2007) 147 Cal.App.4th 253, 281- 282.) Here, the 3AC was filed 0n June 24, 2021. On July 22, Moving Defendants filed a declaration pursuant t0 section 430.41, subdivision (a)(2) t0 extend the time t0 file their demurrer by 30 days. This demurrer was filed 0n August 23, which is within the extended 30-day timeframe. Accordingly, the Court will reach the merits 0f the demurrer. B. Meet and Confer “Before filing a demurrer pursuant t0 this chapter, the demurring party shall meet and confer in person 0r by telephone with the party who filed the pleading that is subject t0 demurrer for the purpose 0f determining whether an agreement can be reached that would resolve the objections t0 be raised in the demurrer.” (§ 430.41, subd. (a).) “As part 0f the meet and confer process, the demurring party shall identify all 0f the specific causes 0f action that it believes are subject t0 demurrer and identify with legal support the basis 0f the deficiencies.” (§ 430.41, subd. (a)(l).) “Any determination by the court that the meet and confer process was insufficient shall not be grounds t0 overrule 0r 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 d0 not argue that the demurrer should be overruled for this reason but d0 argue that Moving Defendants failed t0 meet and confer regarding the issue 0f which parties are involved with which claims. In reply, Moving Defendants filed a declaration in which their counsel contends that that issue was the subj ect 0f Moving Defendants’ meet and confer efforts and providing copies 0f 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 0f the demurrer. C. 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 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO matters as may be considered under the doctrine ofjudicial notice.” (Weil v. Barthel (1955) 45 Cal.2d 835, 837; see also § 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. [T]he 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 0n a demurrer, the Court must liberally construe the allegations 0f the complaint, 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.) D. Discussion Despite contending in the notice 0f demurrer and the demurrer itself that they generally demur t0 each cause 0f action, they d0 not make any specific arguments as t0 each cause 0f action.4 Instead, they contend that the class action allegations are invalid 0n the face 0f the 3AC because the 3AC fails t0 allege sufficient facts t0 enable the class t0 be ascertainable and t0 demonstrate that the class meets the numerosity and community 0f interest requirements. Additionally, Moving Defendants contend that the class action allegations in the 3AC d0 not meet California’s minimum pleading requirements and Plaintiffs cannot sustain their allegations based 0n information and belief. 4 In the demurrer and the notice 0f demurrer, Moving Defendants argue that each cause 0f action is uncertain. But uncertainty is a disfavored ground for demurrer, and a demurrer 0n this ground is typically sustained only where the pleading is so unintelligible that the defendant cannot reasonably respond. (See Khoury v. Maly ’s ofCalz'fornia, Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the claims against Moving Defendants are certain enough t0 merit a response. The Court OVERRULES the demurrer based 0n uncertainty. 4 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 1. The Propriely ofDisposing 0fClass Action Allegations 0n Demurrer Moving Defendants argue that the 3AC fails t0 allege sufficient facts t0 enable the class t0 be ascertainable and t0 demonstrate that the class meets the numerosity and community 0f interest requirements. Section 382 authorizes certification 0f a class “when the question is one 0f a common 0r general interest, 0fmany persons, 0r when the parties are numerous, and it is impracticable t0 bring them all before the court . . . .” “Generally, a class suit is appropriate ‘when numerous parties suffer injury 0f insufficient size t0 warrant individual action and when denial 0f class reliefwould result in unjust advantage t0 the wrongdoer.’ [Citation.]” (Linder, supra, 23 Cal.4th at p. 435.) Whether class action allegations should be disposed 0f at the pleading stage, before any motion t0 certify the class, has been the subject 0f much discussion in the Courts 0f Appeal.5 One line 0f cases holds that the court should not determine the propriety 0f class action status 0n demurrer unless the factual allegations make it clear that the complaint cannot be amended t0 properly plead a class action and, therefore, the court should defer making such a determination until a later stage 0f the proceedings. The other holds that class action certification questions may be determined by demurrer and that the Court should “sustain a demurrer t0 class action allegations where ‘ “it concludes as a matter 0f law that, assuming the truth 0f the factual allegations in the complaint, there is n0 reasonable possibility that the requirements for class certification will be satisfied.”’ [Citation.]” (Schermer v. Tatum (2016) 245 Cal.App.4th 912, 923.) Here, even under the latter line 0f cases, a court may decide the question [0f whether a case may proceed as a class action] by ‘sustaining a demurrer t0 the class action allegations 0f a 5 The Supreme Court has made it clear that a demurrer is available t0 challenge class action allegations: “We agree that the important interests 0f fairness and efficiency sometimes may be served better when class causes 0f action are screened for legal sufficiency before the matter 0f certification is decided. But nothing prevents a court from weeding out legally meritless suits prior t0 certification Via a defendant’s demurrer 0r pretrial motion. In fact, it is settled that courts are authorized t0 d0 so. [Citations.]” (Linder v. Thrifty Oil C0. (2000) 23 Cal.4th 429, 440 (Linder).) KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO complaint only ifit concludes as a matter oflaw that, assuming the truth offhefactual allegations in the complaint, there is n0 reasonable possibility that the requirementsfor class certification will be satisfied. [Citations.]’ [Citations.]” (Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 21 1, italics added.) Here, the Court cannot conclude that “there is n0 reasonable possibility that the requirements for class certification will be satisfied.” Accordingly, the Court OVERRULES the demurrer, as explained further below. 2. Ascertainabilily Moving Defendants claim that the 3AC fails t0 state sufficient facts from which the court can determine that the putative class is ascertainable. They contend that the 3AC is not clear as t0 who each named plaintiff worked for and, therefore, if cannot be determined if the named plaintiffs are members 0f their own defined 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 0f 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 0f obj ective characteristics and common transactional facts’ that make ‘the ultimate identification 0f class members possible when that identification becomes necessary.’ [Citation] This standard includ[es] “class definitions that are ‘sufficient t0 allow a member 0f [the class] t0 identify himself 0r herself as having a right t0 recover based 0n the [class] description.’ [Citation] (Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 980.) “ ‘Whether a class is ascertainable is determined by examining (1) the class definition, (2) the size 0f 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]ll individuals who have been employed by Defendants as non-exempt employees within the State 0f California and who were compensated at a per-diem rate at any time from four years preceding the initial filing of the initial Complaint t0 the present and suffered the following unlawful pay practices: [1]] (a) Not KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO being paid for all hours worked; [1]] (b) Not being paid overtime premiums for overtime work performed; [1]] (c) Not receiving compliant meal and rest breaks; [1]] (d) Not receiving complaint wage stubs.” (3AC, 1] 18.) It also defines a sub-class, the “Waiting Time Plaintiff Sub-Class” as “[a]ll individuals who have been employed by Defendants as non-exempt employees within the State 0f California and who were compensated at a per-diem rate at any time from four years preceding the initial filing of the initial Complaint t0 the present and suffered the following unlawful pay practices: [1]] (a) Not being paid for all hours worked; [1]] (b) Not being paid overtime premiums for overtime work performed; [1]] (c) Not receiving compliant meal and rest breaks; [1]] (d) Not receiving complaint wage stubs; [1]] (e) Not being paid all wages upon termination.” (3AC, 1] 19.) Moving Defendants argue that the 3AC fails t0 indicate which Defendants took which actions rendering it impossible t0 determine each Defendants’ liability. But in the 3AC, Plaintiffs allege that each Defendant is the agent 0r alter ego 0f each other Defendant. While it has been recognized that, ultimately, each Defendants’ liability must be determined (see McCleery v. Allstate Ins. C0. (2019) 37 Cal.App.5th 434, 451), the 3AC alleges each cause 0f action against all Defendants. Thus, it is not clear from the 3AC that there is n0 possibility that the requirements t0 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, 1] 2), a “per-diem rate” (see, e.g., 3AC, W 18 & 19), and at an “hourly rate” (see, e.g., 3AC, 1] 2). However, in later portions 0f the 3AC it becomes clear that Plaintiffs are alleging that they were paid a “set amount per day” (3AC, 1] 33) but that, in the case 0f non-exempt employees, a fixed salary is “deemed t0 provide compensation only for the employee’s regular, nonovertime hours, notwithstanding any private agreement t0 the contrary” under Labor Code section 512, (3AC, 1] 35), and that Plaintiffs claim that they did not receive overtime pay in addition t0 that fixed salary when they worked more than eight hours in a day 0r 40 hours in a week. Plaintiffs d0 not state the size 0f the class either in the 3AC 0r in their opposition t0 the demurrer but the 3AC indicates that the class is “so numerous that joinder would be impractical, KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO if not impossible.” (3AC, 1] 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 t0 the numerosity requirement, there is n0 set number 0f class members needed t0 maintain a class action lawsuit. Accordingly, the Court cannot conclude that there are too few class members as a matter 0f law. With respect t0 how members 0f 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 0f 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 0f determination 0f class members can be used for the named Kyo-Po Plaintiff Class. With respect t0 Moving Defendants’ argument that the alleged unlawful pay practices are vague, generic, and contradictory, the 3AC alleges that practice 0f paying a fixed daily rate rather than an hourly rate resulted in failure t0 pay overtime. (3AC,W 33, 35.) It also alleges that Defendants engaged in a practice 0f paying part 0f Plaintiffs’ and Class Members’ wages Via payroll check and part in cash, in an effort t0 not pay the full amount 0f wages earned including overtime pay. (3AC, 1] 2.) “ ‘A class ... may establish liability by proving a uniform policy 0r practice by the employer that has the effect 0n the group 0f making it likely that group members will work overtime hours without overtime pay, 0r t0 miss rest/meal breaks.’ [Citation.]” (McCleery v. Allstate Ins. C0. (2019) 37 Cal.App.5th 434, 453.) Plaintiffs argue in the “PARTIES” section of the 3AC that Defendants are each the agents 0r alter egos 0f each other. (See 3AC, 1] 12.) They indicate that Defendants engaged in a pattern 0f failing t0 provide breaks as appropriate (see 3AC,w 26 & 27), failing t0 pay overtime pay owed (see 3AC, 1] 28), providing wage stubs that fail t0 comply with the law (see 3AC, 1] 29), and that the way Defendants issued their pay was designed t0 deprive Plaintiffs and other potential class members 0f the wages owed (see 3AC, 1] 2). KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Here, despite the deficiencies mentioned by Moving Defendants, the Court concludes that it cannot determine that Plaintiffs will be unable t0 meet the class action certification requirements as a matter 0f law. 3. Numerosily Moving Defendants argue that the 3AC fails t0 state sufficient facts t0 establish the numerosity requirement t0 sustain a class action lawsuit. In support 0f this contention, Moving Defendants indicate that ZZ Noodles employs only four non-exempt employees. “T0 be certified, a class must be ‘numerous’ in size such that ‘it is impracticable t0 bring them all before the court .’ (Code CiV. Proc., § 382.) ‘The requirement 0f Code 0f Civil Procedure section 382 that there be “many” parties t0 a class action suit is indefinite and has been construed liberally. N0 set number is required as a matter 0f law for the maintenance 0f a class action. [Citation] Thus, our Supreme Court has upheld a class representing the 10 beneficiaries 0f a trust in an action for removal 0f the trustees. [Citation.]’ [Citation.]” (Hendershot v. Ready t0 Roll Transportation, Inc. (2014) 228 Cal.App.4th 1213, 1222.) “ ‘The statutory test is whether a class is so numerous that “it is impracticable t0 bring them all before the court .’ (Code CiV. Proc., § 382.)” (Id. at p. 1223.) While four plaintiffs is likely too few t0 maintain a class action, as discussed above, there is n0 set number needed t0 d0 so. Plaintiffs d0 not name the number 0f potential class members. But they include in the class the qualifying employees 0f all Defendants for thefour-year period prior t0 the filing 0f the action. (3AC,W 18 & 19.) That number 0f employees may be high enough t0 warrant class action treatment. Therefore, the Court cannot conclude as a matter 0f law that there are insufficient potential class members t0 maintain a class action lawsuit. 4. Community oflm‘erest “ ‘The party advocating class treatment must demonstrate the existence 0f an ascertainable and sufficiently numerous class, a well-defined community 0f interest, and substantial benefits from certification that render proceeding as a class superior t0 the alternatives.’ [Citation] ‘The community 0f interest requirement involves three factors: “(1) predominant common questions 0f law 0r fact; (2) class representatives with claims 0r defenses KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO typical 0f the class; and (3) class representatives who can adequately represent the class.” ’ [Citation] Regarding the first 0f these factors, we have recognized “[a]s a general rule” ’ that ‘ “if the defendant’s liability can be determined by facts common t0 all members 0f the 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 0f individual issues, including those arising from affirmative defenses, can be managed fairly and efficiently.’ [Citation] Finally, other considerations relevant t0 certification ‘include the probability that each class member will come forward ultimately t0 prove his 0r her separate claim t0 a portion 0f the total recovery and whether the class approach would actually serve t0 deter and redress alleged wrongdoing.’ [Citati0n.]” (Noel v. Thrifty Payless, Inc. (2019) 7 Cal.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 0r substantial that the maintenance 0f a class action would be advantageous t0 the judicial process and t0 the litigants.’ [Citations.] ‘The answer hinges 0n “whether the theory 0f recovery advanced by the proponents 0f certification is, as an analytical matter, likely t0 prove amenable t0 class treatment.” [Citation] “As a general rule if the defendant’s liability can be determined by facts common t0 all members 0f 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 0f the alleged class would be required t0 litigate numerous and substantial questions determining his individual right to ,9, recover following the “class judgment 0n common issues. [Citation.]” (Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 28.) Moving Defendants contend that Plaintiffs have failed t0 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, 1] 10.) They also indicate that in the “prepared foods area” and that the same time keeping system was used t0 track hours worked regardless 0f whether employees worked in the “grocery store” 0r the “prepared foods area.” (3AC, 1] 24.) 10 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 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 t0 the class. The Court interprets the 3AC t0 indicate that employees will fall into the class if they have suffered any 0r all 0f the alleged meal time Violations. While this may become an issue with respect t0 commonality when Plaintiffs ultimately move for class certification, it does not appear that Plaintiffs will be unable t0 meet the community 0f interest requirement as a matter 0f law. Finally, Moving Defendants contend that certain key facts are missing from the 3AC such the named Plaintiffs’ rate 0f pay and the exact dates that Defendants supposedly failed t0 provide 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. 5. PAGA Claim With respect t0 the PAGA claim (seventh cause 0f action), the Supreme Court held in Arias v. Sup. Ct. (2009) 46 Cal 4th 969, 975, “that an employee who, 0n behalf 0f 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 0f 2004 (Lab. Code, § 2698 et seq.).” Thus, the demurrer must be overruled as it relates t0 the PAGA claim (seventh cause 0f action). 6. Failure t0 Meet California ’s Pleading Standards Moving Defendants make several arguments in support 0f the contention that the 3AC fails t0 appropriately apprise them 0f 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 0f the entire pleading. 11 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 7. Allegations Made 0n Information and Belief Moving Defendants contend that Plaintiffs’ allegations made 0n information and belief are improper because they d0 not indicate the information that leads Plaintiffs t0 believe the allegation are true. The Court interprets this argument as an assertion that the court should not consider the allegations made 0n information and belief in determining whether the 3AC alleges sufficient facts t0 support the class action allegations. A “pleading must conform t0 ‘the general rule that a complaint must contain only allegations 0f ultimate facts as opposed t0 allegations 0f . .. legal conclusions .’ [Citation.]” (Doe v. City ofLos Angeles (2007) 42 Cal.4th 531, 551, fn. 5 (Doe).) A plaintiff “may allege 0n information and belief any matters that are not within his personal knowledge, if he has information leading him t0 believe that the allegations are true. [Citations.]” (Pridonoflv. Balokovich (195 1) 36 Cal.2d 788, 792 (Pridonofi).) But the Supreme Court has stated that allegations made 0n information must allege “such information that ‘lead[s] [the plaintiff] t0 believe that the allegations are true.’ [Citation.]” (Doe, supra, 42 Cal.4th at p. 55 1, fn. 5; accord Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1106.) In the introduction t0 the 3AC, Plaintiffs state, “Representative Plaintiffs make the allegations hereon 0n personal knowledge and 0n information and belief.” (3AC, 1] 1.) But ultimately, Plaintiffs make only two sets 0f factual allegations made 0n information and belief.6 The first is one allegation stating that it is made 0n information and belief under the heading, “COMMON FACTUAL ALLEGATIONS[.]” Plaintiffs state, “Representative Plaintiffs and based 0n information and belief, his co-workers, would be paid bi-weekly salaries.” (3AC, 1] 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 ofNew 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 6 Plaintiffs also state, 0n information and belief, that they think the class will meet the numerosity requirements t0 maintain a class action. (3AC, 1] 21(a).) But this is a conclusion 0f law, not a factual allegation. 12 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 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 t0 represent and it would be reasonable for the court t0 infer that they may have knowledge 0f the payment schedule for other employees. The second set 0f allegations made 0n information and belief are in the “PARTIES” section 0f the 3AC where Plaintiffs indicate that each Defendant is a California corporation and that each Defendant is an agent 0r alter ego 0f each other Defendant. (3AC,W 7-13.) However, the information regarding the Defendants’ corporate status and the relationships between Defendants are uniquely within the knowledge 0f Defendants themselves. (See Pridonofl, supra, 36 Cal.2d at pp. 792-793 [“Plaintiff would ordinarily learn that he lost employment because 0f the libel from the declarations 0f others. It is therefore appropriate for him t0 allege such matters 0n information and belief.”].) Additionally, the doctrine 0f less “C particularity provides that [l]ess particularity [in pleading] is required when it appears that defendant has superior knowledge 0f the facts, so long as the pleading gives notice 0f the issues sufficient t0 enable preparation 0f a defense.’ [Citation.]” (Doe v. City ofLos Angeles, supra, 42 Cal.4th at pp. 549-550.) Accordingly, this argument is without merit. E. Conclusion The Court OVERRULES Moving Defendants’ demurrer in its entirety. III. MOTION TO STRIKE Moving Defendants move t0 strike portions 0f the 3AC 0n the grounds that Plaintiffs cannot meet the requirements t0 maintain a class action lawsuit. A. Timeliness and Meet and Confer For the same reasons discussed above for the demurrer, the Court finds this motion t0 strike t0 be timely. Also, because the Court may not deny a motion t0 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 0f the motion t0 strike. 13 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO B. Moving Defendants’ Request for Judicial Notice Moving Defendants request judicial notice under Evidence Code section 452, subdivisions (g) and (h) 0f (1) The Articles 0f Organization of Kyo-Po Deli LLC, filed with the California Secretary 0f State 0n July 15, 2013; (2) The Statement of Information of Kyo-Po Deli LLC, filed with California Secretary 0f State 0n October 26, 2017; and (3) The Certificate 0f Cancellation of Kyo-Po Deli LLC, filed with California Secretary 0f State 0n November 25, 20 1 9. The reasons for the request for judicial notice are not entirely clear as none 0f these documents are mentioned in the memorandum 0f points and authorities in support 0f the motion t0 strike. As Moving Defendants have made n0 attempt t0 argue the relevance 0f these documents, the Court concludes that they are irrelevant and therefore DENIES the request for judicial notice. C. Legal Standard Under section 436, a court may strike out any irrelevant, false, 0r improper matter inserted into any pleading 0r strike out all 0r part 0f any pleading not drawn or filed in conformity with the laws 0f this state, a court rule, 0r an order 0f the court. The grounds for a motion t0 strike must appear 0n the face 0f the challenged pleading 0r from matters 0f which the court may take judicial notice. (§ 437, subd. (a); see also City and County ofSan Francisco v. Strahlendorf(1992) 7 Cal.App.4th 191 1, 1913.) In ruling 0n a motion t0 strike, the court reads the complaint as a whole, all parts in their context, and assuming the truth 0f all well-pleaded allegations. (See Turman v. Turning Point ofCentral California, Inc. (2010) 191 Cal.App.4th 53, 63.) A motion t0 strike portions 0f a complaint 0r petition may be brought 0n the ground that the allegations at issue are “irrelevant” 0r “improper.” (§ 436, subd. (a).) Irrelevant matter includes: (1) an allegation that is not essential t0 the statement 0f a claim 0r defense, (2) an allegation that is neither pertinent t0 nor supported by an otherwise sufficient claim 0r defense, and (3) a demand for judgment requesting relief not supported by the allegations 0f the complaint 0r cross-complaint. (See § 43 1.10, subds. (b), (0).) Generally speaking, motions t0 14 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO strike are disfavored and cannot be used as a vehicle t0 accomplish a “line item veto” 0f allegations in a pleading. (PHII, 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 ofRandall (1924) 194 Cal. 725, 731.) “While under section 436, a court at any time may, in its discretion, strike portions 0f a complaint that are irrelevant, improper, 0r not drawn in conformity with the law, matter that is essential t0 a cause 0f action should not be struck and it is error t0 d0 so. [Citation] Where a whole cause 0f action is the proper subject 0f a pleading challenge, the court should sustain a demurrer t0 the cause 0f action rather than grant a motion t0 strike. [Citation.]” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.) D. Discussion Moving Defendants argue that the 3AC fails t0 allege facts that enable the class t0 be ascertainable, t0 meet the numerosity requirement, and t0 demonstrate a community 0f interest. They also assert that the 3AC falls below California’s minimum pleading standard in that it fails t0 state sufficient facts t0 apprise them 0f the allegations against them. Moving Defendants also again contends that the allegations made 0n information and belief are improper. As with the demurrer, there is authority for the Court t0 strike the class action allegations at the pleading stage. “It may be proper at the pleading stage t0 strike class allegations if the face 0f the complaint and other matters subject t0 judicial notice reveal the invalidity 0f the class allegations. [Citation] An evidentiary hearing 0n the appropriateness 0f class litigation is not necessary unless there is a ‘ “reasonable possibility” ’ that the plaintiff can establish a community 0f interest and ascertainable class. [Citation.]” (Alvarez v. May Dept. Stores C0. (2006) 143 Cal.App.4th 1223, 1231-1232.) Here, however, the motion is procedurally deficient. “A notice 0f motion t0 strike a portion 0f a pleading must quote in full the portions sought t0 be stricken except where the motion is t0 strike an entire paragraph, cause 0f action, count, 0r defense.” (Cal. Rules 0f Ct., rule 3.1322.) The notice 0f motion indicates that Moving Defendants seek t0 strike portions 0f 15 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO the 3AC. The memorandum 0f points and authorities states, “in the event the Court does not sustain [Moving] Defendants’ concurrently-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’ 0r ‘similarly situated employees,’ all references t0 the ‘class,’ ‘class members,’ the ‘class period,’ and all ‘Class Allegations’ in their entirety;) (ii) PAGA allegations and cause 0f action; and (iii) allegations made “0n 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 t0 strike raises the same arguments that the Court rejected with respect t0 the demurrer. Accordingly, the Court DENIES the motion t0 strike in its entirety. IT IS SO ORDERED. Date: The Honorable Sunil R. Kulkarni Judge 0f the Superior Court 16 January 25, 2022
