Opposition Objections

Cal. Super. - 6th Dist.May 1, 2020

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ADAM REISNER, ESQ., (State Bar No. 204351) TESSA KING, ESQ., (State Bar No. 251408) ALYSSA ROMANINI, ESQ. (State Bar No. 325792) REISNER & KING LLP 15303 Ventura Blvd., Suite 1260 Slierinan Oaks, Califoriiia 91403 Pl'ioi'ie: (818) 981-0901 Fax: (818) 981-0902 Attori'ieys for PLAINTIFF JOEL SILVA-VASQUEZ SUPERIOR COURT OF THE ST ATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA CaseNo.: 20CV366438 JOEL SILV A-V ASQUEZ, Plaintiff, VS. B.T. MANCIINI co., INc.; ROGELIO REYNOSO; an individual; and DOES 1 THROUGH 100, inclusive, [Assigned for all purposes to Hon. Judge Maureen A. Folan, Dept. 24] PLAINTIFF'S OPPOSITION TO DEFENDANT'S B.T. MANCINI'S DEMURRER TO PLAINTIFF'S COMPLAINT [Filed concurrently witli Plaintiff' s Objections and [Proposed] Order to Objections] Defendants. Date: October 1, 2020 Time: 8:30 am Dept.: 24 23 24 25 26 27 28 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: Plaintiff Joel Silva-Vasquez ("Plaintiff' or "Silva-Vasquez") submits liis Opposition to Defendant B.T. Mancini Co., Inc.'s Demurrer to Plaintiffs Complaint as to tl'ie Seventh, Eiglith, and Nintli Causes of Action for (7) Failure to Pay Wages pursuant to Cal. Labor Code Sec. 201, (8) Failure to Provide Meal and Rest Periods in Violation of Cal. Labor Code Sec. 226.7 and 512, and (9) Violation of Cal. BusinesS and Professions Code Sec. 17200 et. seq. o PLAINTIFF'S OPPOSIT ION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/18/2020 11:23 AM Reviewed By: S. Vera Case #20CV366438 Envelope: 4957877 20CV366438 Santa Clara - Civil S. Vera MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant B.T. Mancini's attempts to demurtaer to Plaintiff"s Seventli, Eiglith, and Nintli Causes of Action for (7) Failure to Pay Wages pursuant to Cal. Labor Code Sec. 201, (8) Failure to Provide Meal and Rest Periods in Violation of Cal. Labor Code Sec. 226.7 and 512, and (9) Violation of Cal. Business and Professions Code Sec. 17200 et. seq. is without merit. First, Defendant fails to establisli any foundation in alleging tl'iat Plaintiff was part of tl'ie California Ironworker's Union or that tlie alleged Union Agreements are what Defendant purports tliem to be. See Plaintiff's Objections to Evidence, filed concurrently here'iiiith. There are no declarations by anyone establishing a foundation or autlienticating these documents nor is tliere any evidence or signature by Plaintiff that he was part of this pui'ported union while working for Defendants. Defendants have gone outside tl'ie four corners of tlie Complaint and attempt to demurrer on faulty logic and invalid law. Second, in regard to Plaintiff"s Seventh Cause of Action for Failure to Pay Minimum Wage, a collective bargaining agreement cannot waive an employee's right to the minimum wage. Gordon v. City of Oakland (9th Cir. 2010) 627 F3d 1092, 1095(e). Moreover, Defendant's entire legal argument that Plaintiff cannot recover for liis minimum wage claims is based upon v. Spectrum Security Services, Inc. (2019) 40 Cal.App.5tli 444, whicli is currently under review by the Califoriiia Supreme Court. Pursuant to California Rules of Court 8.115(e), has no binding or precedential effect and should be disregarded. Relevant case law, which is on point, holds that "wages" include tliose benefits to which an employee is entitled as a part of his or her compensatioti. Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 78a; Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4tli 1084, 1091. As our Califoriiia Supreme Court lias held in Morillion v. Royal . (2000) 22 Cal.4tli 575, an employee forced to forgo liis or lier meal period similarly loses a benefit to wl'iicli the law entitles liim or l'ier. While the employee is paid for tlie 30 minutes of work, tlie employee lias been deprived of tlie riglit to be free of tlie employer's control during tbe meal period. Morillion v. Royal Packing Co. (2000) 22 Cal.4tli 575, 586 [uncompensated time is time employees can effectively use " 'for [tlieir] own purposes' "]. Tliird, Plaintift's Eightli Cause of Action for Meal and Rest Violations also succeeds. It is firi'nly establisl'ied law tliat collective bargaining agreements may not waive tl'ie riglit to meal I PLAINTIFF'S OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT periods. The rigl'it to meal periods applies to workers covered by a CBA. Tlie rigl'it to meal periods is a nonnegotiable riglit and federal law (LMRA f§ 301) "does not permit paities to waive, in a collective bargaining agreement, nonnegotiable state rights." Valles v. Ivy Hill Corp. (9th Cir. 2005) 410 F3d 1071, 1080 (interiial quotes omitted); see also Bearden v. U.S. Borax, Inc, (2006) 138 Cal.App.4tli 429, 432 [invalidating section of Wage Order tliat purported to allow waiver in CBA]. Tlie riglit to rest periods is a generally applicable labor standard that is not subject to waiver by agreement. Franco v. Atliens Disposal Co., Inc. (2009) 171 Cal.App.4tli 1277, 1294 (abrogation on otlier grounds recognized by Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.App.4th 348). Fourth, Plaintiff's Ninth Cause of Action for Cal. Business and Professions Code Sec. 17200 also succeeds. A practice of not paying premium wages for employees' missed meal periods can violate tlie Unfair Competition Law (UCL), i.e., Cal. Bus. & Prof. Code §17200 et seq. The Unfair Competition Law (UCL) prohibits, as an unfair business practice, a practice of not paying premium wages for missed, shortened, or delayed meal breaks attributable to tl'ie employer's instructions or undue pressure. Cal. Bus. & Prof. Code FS, 17200 et seq. and also applies to conduct violating state or federal employment laws. An employer who violates antidiscrimination laws "implicates unfair competition" because it may gain an unfair competitive edge over employers who comply with such laws. Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.App.4th 163, 173. These are all claims which Plaintiffhas pled. For tlie foregoing reasons, Defendant's Demurrer to Plaintiff's Complaint should be overniled in its entirety. However, if the Couit is inclined to grant tlie demurrer in any part, leave to amend is respectfully requested as Plaintiff lias not amended his complaint before. II. ST ATEMENT OF FACTS Plaintiff began liis employi'nent witli Defendant in or around 2016, and worked as a day laborer until l'iis wrongful teiinination in or around July 2019. (Complaint ?7). While en'iployed, Plaintiff was subjected to severe sexual liarassment and assault in addition to Defendant's failure to provide l'iim witli liis meal/rest peiiods and failure to provide liim with tliis last payclieck in a timely mai'uier. Defendant Reynoso AKA Rodriguez would openly talk about penises in front o Plaintiff and told Plaintiff, 'Tm craving cock," and would ask "do you like me?" in a sexual mai'uier. (Complaint 78(a), $29(a), 744(a-b)). In or around July 2019, Plaintiff was subjected to 2 PLAINTIFF'S OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT assault and battery by Defendants Reynoso AI(A Rodriguez, wlio pliysically grabbed Plaintiff's penis in front of two otlier supervisor foremen. (Complaint $8(e), $29(e), 'j44(e), $65, $94(c)). Plaintiff complained of tlie assault and battery to Defendant B.T. Mancini, but nothing was done to aSsist Plaintiff and instead Defendants ratified and condoned the unlawful beliavior, including by teri'ninating Plaintiff s employi'nent. (Complaint '[8(f), $29(f)(g), $44(e)(g)). In addition to Plaintiffs assault, battery, and sexual liarassment, discrimination, and retaliation claims, Plaintiff was denied liis meal and rest periods. (Complaint $268 (a), (b), (c)). Plaintiff was not paid and/or was not fully compensated for all of his meal and/or rest periods. (Complaint $109). Plaintiff was also not given liis last payclieck in a timely manner upon liis discl'iarge in violation of Cal. Labor Code §201. Although stated nowliere within Plaintiff"s FAC, Defendant alleges in its Demurrer that Plaintiff was subject to two collective bargaining agreements ("CBA"): (l) in 2016 through June of 2017, wliich Plaintiff was subject to the 2014 to 2017 Iron Workers Agreement and (2) betweeii July 1, 2017 and June 30, 2020, which Plaintiff was subject to the District Council of Iron Workers Agreement. III. LEGAL ARGUMENT A. All Material Facts Are Deemed Admitted For The Purpose Of A Demurrer. A demurrer tests only the sufficiency of the causes of action of the complaint. Tlie demurrer admits tlie truth of all material facts properly pleaded. See Serrano v. Priest, (1971) 5 Cal.3rd 156, 160. No matter how unlikely or improbable, plaintiff's allegations must be accepted as true for tlie purpose of ruling 011 the demurrer. See Meyer v. Graphic Arts, (1979) 88 Cal.App.3rd 176. Unless tlie complaint sl'iows on its face tliat it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of wlietlier leave to amend is requested or not. See McDonald v. Sup. ct., (1986) 180 Cal.App.3d 297, 303-304. It is an abuse of discretion for tl'ie couit to deny leave to amend where tliere is any reasonable possibility that plaintiff can state a good cause of action. See Goodman v. Kei'inedy, (1976) 18 Cal.3d 335, 349. 3 PLAINTIFF'S OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT B. Defendant's Demurrer Is Improper as It Attempts to Argue Facts and It Looks Outside the Four Corners of the Complaint, Including in Attaching Purported CBA Documents That Lack Foundation and Contain Hearsay. Defendant's demurrer is improper as it attempts to argue unsubstantiated contentions as "facts." As the Supreme Couit of California lias lield, "[w]e treat tlie demunaer as adn'iitting all material facts properly pleaded... ." Serrano v. Priest, (1971) 5 Cal. 3d 584, 591. In fact, "[t]he only issue involved in a demurrer lieaiing is wlietlier tlie complaint, as it stands, unconnected with extraneous matters, states a cause of action." Id. Here, Defendant's demurrer attempts to argue facts within its moving papers, including purporting that Plaintiff was part of a union and tliat a union agreement, wliich lacks foundation and wliich is hearsay, someliow controls. Defendant argues tliat CBA's may be judicially noticed. Yet Defendant seeks judicial notice of the collective bargaining agreements not just as to their existence, but as to the truth of their contents. This isnotproper on demurrer. Fremont Indeinnity Co. v. Fremont General C5gp, (2007) 148 Cal. App. 4tli 97, 114. (Tlie liearing on demurrer may not be tunned into a contested evidentiary liearing tl'irougli tlie guise of liaving tlie couit take judicial notice of documents wliose trutlifulness or proper interpretation are disputable). Tliere is no declaration or any evidence tl'iat even if tliis was a CBA agreement, tliat it applied to Plaintiff or tliat it was controlling. Tlie documents Defendant attacl'ies to its Demurrer lacks foundation and are liearsay. See also Plainti.ff's Objections to Evidence,,filed concurrerttly therewith. C. Plaintiff's Eighth Cause Of Action For Failure To Provide Meal And Rest Periods Is Properly Pleaded. Plaintiffs Eightli Cause of Action for meal and rest period violations under Cal. Labor Code Sec. 226.7, 512 and IXVC 4 also succeeds. It is firi'nly establislied law tliat collective bargaining agreements may not waive tlie right to meal periods. The right to meal periods applies to workers covered by a CBA. The right to meal periods is a nonnegotiable right and federal law (LMRA § 301) G'does not permit parties to waive, in a collective bargaining agreement, nonnegotiable state rights." Valles v. Ivy Hill Cotap. (9tl'i Cir. 2005) 410 F3d 1071, 1080 (interi'ial quotes omitted); see also Bearden v. u.s. Borax, Inc. (2006) 138 Cal.App.4tli 429, 432 [invalidating section of Wage Order that purported to allow waiver in CBA]. Fuitlier, tlie riglit to rest periods is a generally applicable labor standard that is not subject to waiver by agreement. Franco v. Atliens Disposal Co., Inc. (2009) 171 Cal.App.4tl'il277, 1294 4 PLAINTIFF'S OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINT IFF'S COMPLAINT (abrogation on otlier grounds recognized by Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal. App.4tb 348. Defendant does not cite to any legal autliority to support is argument tliat someliow Plaintiff's rest period claims under Cal. Labor Code Sec. 226.7 is deficient. Plaintif:f's eiglitli cause of pled as to IWC Wage Order No. 4 is also proper. Wage Order No. 4 is applicable to tliis action because it applies to tliose engaged in machine operating, meclianics, vehicle operators, and kindred occupations. As pait of Plaintiffs employment witl'i Defendant, Plaintiff operated several machines including but not limited to a scissor lift, [neck] boom li'ft, and a fork lift. While employed with Defendant, Plaintiff also maintained a special license to be able to operate tlie abovementioned machines. If necessary, Plaintiff can amend his complaint to include tliese facts. Defendant's argument that somehow Plaintiff is precluded from the protections of Cal. Labor Code Sec. 512 because he is allegedly part a CBA and tlie "construction" industry is witliout merit. Defendant again attempts to argue facts outside of tlie complaint and its reliance on liearsay and unsubstantiated CBAs sliould be disregarded. Defendant argues tliat the CBAs and tlie infori'nation within them controls, yet tliere is no evidence establisliing where tliese documents came from, if these were valid and/or final CBA agreements, including whether these agreements or its tenns applied to Plaintiff. Defendant is improperly seeking Suinmary Judgement on a demurrer which is entirely inappropriate with documents that lack foundation and are hearsay. See Plaintijff's Objections, filed concurrently herewith. Moreover, assuming arguendo that somehow tliere was a CBA agreement tliat applied, wliich Plaintiff contests, Defendant cites a two-part text to deterinine whether a claim is preempted by tlie Labor Management Relation Act (""LMRA"). See Burnside v. Kiewit Pacific COIT)., 491 F.3d 1053, 1059-60 (9tli Cir. 2007). First, tlie court will consider wlietlier "the asseited cause of action involved a aright [that] exists solely as a result of the CBA. The Court must first deten'nine "wl'ietlier tlie asserted cause of action involves a riglit conferred upon an employee by virtue of state law, not by a CBA." In determining if tlie first prong is met (wlietlier a right is independent of a CBA), a court must evaluate wlietlier tlie "legal cliaracter of a claim" is "independent of riglits under tlie CBA. In Plaintiff"s 7u'-8"' causes of action, Plaintiff asseits tl'iat l'ie lias a riglit to meal and rest periods. Plaintiff"s riglit to meal and rest periods and penalties establislied under California law are nonnegotiable and cani'iot be waived in a CBA. Valles v. Ivy Hill Corp., C.A.9 (Cal.)2005, 410 F.3d 1071. Tlierefore, tliis riglit does not exist solely as a result of tlie CBA. 5 PLAINTIFF'S OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT Tlie second prong wlietlier tlie claim is "substantially dependent" on a CBA and tl'ie Court must evaluate wlietlier tlie claim can be resolved by "look[ing] to' versus iiiterpreting tlie CBA. If tlie couit is interpreting tl'ie CBA, tlie claim is preempted, but if Couit is looking to tl'ie CBA, tlie claim is not preempted. , 491 F.3d at 1060. Under state-law preemption by the LMRA, state-law claims that only require a reference to aCBA are not preempted. Balcoita v. Twentietli Century-Fox Film Cot-p., 208 F.3d 1102, 1108 (9th Cir.2000). "[I]n the context of [the LMRA's] complete preemption, tlie term 'interpret' is defined nartaowly-it means something more than 'consider," refer to,' or 'apply."' Toid. Tlie CBA is not being intei7reted in Plaintiff's causes of action, as Plaintiff does not need to inteiliret any teri'ns of any puipoited CBA. See Bonilla v. Starwood Hotels & Resorts Worldwide, Inc., C.D.Cal.2005, 407 F.Supp.2d 1107 [Employees' claims of noncompliance with noi'uiegotiable state wage laws requiring meal and rest breaks could require reference to collective bargaining agreements (CBA) for calculation of damages, but did not require interpretation of any CBA sucli as would tiigger preemption by tlie Labor Management Relations Actl: Meyer v. Irwin Industries, Inc., C.D.Cal.20lO, 723 F.Supp.2d 1237 [California employee's claims for waiting time penalties and improper weekly pay practices were derivative of time travel, second meal period, and tliird rest break claims that fell under state law and required no interpretation of collective bargaining agreement (CBA); tlius, claims were not preempted by LMRA]. See Densmore v. Mission Linen Supply, (E.D.Cal.20l6), 164 F.Supp.3d 1180, [Employee's Califotnia-law class action claim against employer for failure to provide rest periods at the rate of ten minutes per four hours of work would not require interpretation of collective bargaining agreement (CBA), and tlius claim was not preempted by LMRA; rest-period claim was independently rooted in state law, and tlie CBA did not mention rest periods]. For all of tl'iese reasons, Plaintiff lias demonstrated liis eiglitli cause of action is properly pled. D. Plaintiff's Seventh Cause Of Action For Failure To Pay Wages Is Properly Pleaded. Plaintiff also lias properly pled liis 7"1 COA for Failure to Pay Wages under Cal. Labor Code Sec. 201. A collective bargaining agreement cai'uiot waive an employee's riglit to tlie minimum wage. Gordon v. City of Oakland (9tli Cir. 2010) 627 F3d 1092, 1095(e). Moreover, Defendant's entire legal argument that Plaintiff cannot recover for liis minimum wage claims is based upon Naran,io v. Spectrum Security Services, Inc. (2019) 40 Cal.App.5th 444, wliicli is currently under review by tlie Califoriiia Supreme Couit. Pursuant to California Rules of 6 PLAINTIFF'S OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT 1 2 5 6 Court 8.115(e), has no binding or precedential effect and should be disregarded.' Cal. Rules of Court, 8.115(e) specifically states that wlien review of a publislied opinion lias been granted, "a publislied opinion of a Couit of Appeal in tlie matter lias no binding or precedential effect, and may be cited for potentially persuasive value only." Defendant liides tlie fact tliat is under review by the Cal. Supreme Court in a small footnote wliile spending pages discussing the case, wliicli is improper and not controlling autliority. Relevant case law, whicli is on point, holds tliat "wages" include those benefits to which 9 10 11 12 19 20 21 an employee is entitled as a pait of liis or her compensatioii. Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 780: Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, 1091. As our Califotnia Supreme Court lias lield in Morillion v. Royal . (2000) 22 Cal.4th 575, an employee forced to forgo his or her meal period similarly loses a bei'iefit to wliicli the law entitles him or lier. While the employee is paid for the 30 minutes of work, the employee has been deprived of the right to be free of tlie employer's control during tlie meal period. Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 586 [uncompensated time is time employees can effectively use " 'for [their] own putaposes' "]. Tlierefore, as seen, Plaintiff lias properly pled his failure to pay minimum wage claim for having to work througli and/or being denied meal and rest peiiods. (Complaint $109). Additionally, Plaintiff was not given his last paycheck at time of discliarges, wl'iich is also a violation of Cal. Labor Code Sec. 201. Plaintiff can amend his Complaint to add in tliis violation as well, as under Sec. 201, tlie employer must pay tlie employee all wages earned at time of 22 25 discliarge. Cal. Labor Code Sec. 201(a). E. Plaintiff Properly Pled His Ninth Cause Of Action For Unfair Business Practices. Plaintiff also properly pled liis Nintli Cause of Action for Unfair Business Practices under Cal. Business and Professions Code §17200 for violations of meal and rest peiiods among otlier unfair practices. (Complaint Par. 115-117). Business and Professions Code §17200, known as the26 27 28 ' Kaanaana v. Barrett Business Services, Inc. (2018) 29 Cal.App.5th 778, is also under review by the Califoi'nia Supreme Court. Tlie Couit of Appeal lield wliat lias been held, before, tliat a failure to pay minimum wage existed as to Defendants' failure to provide the Plaintiff liis meal periods, and discussed tlie amount/time tliat sliould be awarded as a result. 7 PLAINTIFF'S OPPOS]TION TO DEFENDANT'S DEIMURRER TO PLA}NTIFF'S COMPLAINT Unfair Competition Law (UCL), defines unfair competition as including "any unlawful, unfair or fraudulent business act or practice ..." (empliasis added). Tliis includes violations of any other state or federal law. See Barquis v. Mercliants Collection Ass'n (1972) 7 C3d 94, 113. As supported by Murphy v. Kennetli Cole Productions, IIIC., (2007) 155 P.3d 284, 297, meal and rest break premiums are wages and, tlierefore, are subject to §17200. See, e.g., Holliman v. Kaiser Found. Healtli Plan, (N.D. Cal. Mar. 14, 2006) No. C-06-0755 SC, 2006 WL 662430, at 3-4 [Fair Labor Standards Act does not preempt UCL claims because statutory language grants jurisdiction to botli federal and state courts]. An order that earned wages be paid is a restitutionary remedy under § 17203: "The employer lias acquired tlie money to be paid by means of an unlawful practice that constitutes unfair competition." Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.App.4th 163. Tlie UCL also applies to conduct violating state or federal employi'nent laws. An employer wlio violates antidiscrimination laws "implicates unfair competition" because it may gain an unfair competitive edge over employers wlio comply with such laws. Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.App.4tli 163, 173 [employer's failure to pay statutorily mandated overtime wages constitutes unfair competition because it gains an unfair advantage over its competitors who pay overtime; see also Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779, 789 [employer engaging in age discrimination in violation of FEHA may have advantage over competitors who do not discriminate]. Plaintiff can also amend 9f" COA to include Defendants' violations of state employinent laws, i.e. the FEHA, if the Court believes it is not already incorporated within tlie complaint. (See Complaint, 9"I COA, "Plaintiff incorporates by reference and re-alleges eacli and every paragrapli in tliis Compliant..." Compl. Par. 114). F. Although Silva-Vasquez Believes He Properly Pled The 7-9f" COA; If This Court Is }nclined to Grant Defendant's Demurrer, Leave to Amend is Requested. The court should freely give leave wlien justice so required. Where a demurrer is sustained as to the original complaint, denial of leave to amend constitutes an abuse of discretion if the pleading does not sliow on its face tliat it is incapable of amendment. Virzinia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4tli 1848, 1852: Maclsaac v. Pozzo (1945) 26 Cal.2d 8 PLAIN'nFF'S OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT 809, 815 [Where no previous demurrer liad been interposed, it was an abuse of discretion to deny leave to amend]. If tliis Court believes tlie complaint is defective in aiiyway, Plaintiff respectfully requests leave to amend especially as Plaintiff has not amended his Complaint before. A complaint will be liberally construed with a view to substantial justice between the parties. See Hayter Trucking, Inc. v. Shell Westeri'i E&D, Inc. (1993) 18 Cal.App.4th 1, 13. "If the complaint, liberally construed, can state a cause of action, or if it is reasonably possible tliat the plaintiffs can cure tlie complaint by amendment, tl'ie trial court should not sustain a demurrer without leave to amend." Dalton v. East Bay Mun. Utility Dist. (1993) 18 Cal.App.4tli 1566, 1570. IV. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests tliat Defendant's Demurrer to Plaintiffs Complaint be denied in its entirety. In tlie alternative, Plaintiff respectfully requests leave to amend his complaint. Dated: September 11, 2020 REISNER & KING LLP B7: A KING Attoriieys for Plaintiff JOEL SILV A-V ASQUEZ 9 PLAINTIFF'S OPPOSITION TO DEFENDANI'S DEMURRER TO PLAJNTIFF'S COMPLAINT