Minute OrderCal. Super. - 6th Dist.July 20, 2021SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Line 1 Hearing Start Time: 1:30 PM Sanchez v. Green Messengers, |nc., et al. Hearing Type: Motion: Demurrer and 210884531 Motion to Strike Date of Hearing: 03/17/2022 Comments: Heard By: Kulkarni, Sunil R Location: Department 1 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Ann Vizconde Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: (1) Demurrer by AMAZON to the Complaint; (2) Motion by AMAZON to Strike Portions of the Complaint. Per Stipulation & Order entered 12/13/21: moving papers due 1/28/22; opposition due 2/18/22; reply due 3/4/22. No one called to contest the Tentative Ruling. No appearance. Tentative Ruling is not contested. THE COURT ADOPTS THE TENTATIVE RULING; see below: This is a putative class action alleging violations of the Fair Credit Reporting Act (FCRA) by Amazon.com Services, LLC, Amazon Logistics, Inc. (collectively with Amazon.com Services, LLC, Amazon ), and Green Messengers, Inc. (which is apparently Amazon s subcontractor). Before the Court are Amazon s (1) demurrer for failure to state a claim and uncertainty, and (2) motion to strike the class allegations from the complaint. Plaintiff opposes both motions. As discussed below, the Court OVERRULES the demurrer and DENIES the motion to strike. Printed: 3/17/2022 03/17/2022 Motion: Demurrer and Motion to Strike - 21CV384531 Page 1 of 8 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER I. BACKGROUND Plaintiff alleges that when he applied for employment with Defendants, they provided a disclosure and authorization form to perform a background investigation. (Complaint, 22.) But the disclosure contained extraneous and superfluous language beyond the disclosure itself and/or was not clear and conspicuous, in violation of the FCRA. (ld., 23.) Specifically, extraneous information was reflected in [m]isce|laneous provisions concerning Plaintiff s employment including, but not limited to, Time Clock Policy, Uniform Policy, Time Card Authorization, and Paid Sick Leave. (ld., 24.) And the disclosure was not clear and conspicuous because (1) it was not in all capital letters; (2) it was not in boldface to set off the required disclosure; and (3) the disclosure provisions are set out in a dense, small font that reduces clarity. (ld., 25.) Based on these allegations, Plaintiff brings a single putative class claim for failure to make proper disclosure in violation of the FRCA, title 15 United States Code section 1681b(b)(2)(A). |I. AMAZON S DEMURRER Amazon demurs to the complaint on the grounds that it is barred by the statute of limitations, otherwise fails to state a cause of action, and is uncertain. (Code Civ. Proc., 430.10, subds. (e) & (f).) A. Legal Standard A demurrer tests the legal sufficiency of the complaint. (Chen v. PayPal, Inc. (2021) 61 Cal.App.5th 559, 568.) Consequently, it reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice. (Weil v. Barthel (1955) 45 Cal.2d 835, 837; see also Code Civ. Proc., 430.30, subd. (a).) It is not the ordinary function of a demurrer to test the truth of the plaintiff s allegations or the accuracy with which he describes the defendant s conduct. Thus, the 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 allegations of the complaint must be liberally construed, 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) B. Uncertainty Uncertainty is a disfavored ground for demurrer, and a demurrer on this ground is typically sustained only Printed: 3/17/2022 03/17/2022 Motion: Demurrer and Motion to Strike - 21CV384531 Page 2 of 8 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER where the pleading is so unintelligible that the moving party cannot reasonably respond. (See Khoury v. Maly s of California, Inc. (1993) 14 Cal.App.4th 612, 616 [ A demurrer for uncertainty is strictly construed, even where a [pleading] is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. ].) Here, the single cause of action is alleged clearly enough to enable a response, notwithstanding the various issues raised by Amazon. The Court hence OVERRULES the demurrer based on uncertainty. C. Statute of Limitations Amazon contends that, in a federal lawsuit alleging wage and hour violations against Green Messengers and Amazon.com Services, LLC (the Federal Action, Sanchez v. Green Messengers, Inc., et a|., (N.D. Ca|., Case No. 5:20-CV-06538-EJD)), Plaintiff acknowledged viewing the disclosure at issue on March 19, 2019. The disclosure informed Plaintiff that his offer of employment was contingent on a background check. Therefore, Plaintiff knew or should have known no later than the end of March 2019 when he started working for Green Messengers that a background check had been obtained. Because Plaintiff did not file this action until July 20, 2021, Amazon concludes that his claim is barred by the two-year statute of limitations. Amazon s argument depends upon its request for judicial notice of the Third Amended Complaint in the Federal Action ancl of the disclosure itself. Plaintiff does not oppose these requests or dispute the accuracy of the documents submitted by Amazon. However, he urges that the issue of his constructive knowledge is a factual one that cannot be resolved on demurrer. 1. Governing Law A demurrer will succeed where the allegations and matters subject to judicial notice clearly disclose a defense or bar to recovery. However, [a] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. (Lee v. Hanley (2015) 61 Ca|.4th 1225, 1232, internal citation and quotation marks omitted.) The defect must clearly and affirmatively appear on the face of the complaint and matters subject to judicial notice. (Richtek USA, Inc. v. uPl Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658 (Richtek).) The statute of limitations to bring an FCRA claim is the earlier of (1) 2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability; or (2) 5 years after the date on which the violation that is the basis for such liability occurs. (15 U.S.C. 1681p.) It is undisputed that Mr. Sanchez filed his FCRA claim within the five-year actual violation window, so the issue is whether he filed it within the two-year date of discovery window. Critically, an FCRA violation occurs, not at the time a defective disclosure is made, but where, after violating its disclosure procedures, [the employer] procure[s] or cause[s] to be procured a consumer report about the job applicant. See 15 U.S.C. 1681b(b)(2)(A)(i). (Syed v. M-l, LLC (9th Cir. 2017) 853 F.3d 492, 506 (Syed).) The plaintiff s discovery or constructive discovery of this violation triggers the two-year statute of limitations. (See Drew v. Equifax Info. Servs., LLC (9th Cir. 2012) 690 F.3d 1100, 1109 (Drew).) It is the defendant s burden to demonstrate when and how a reasonably diligent plaintiff would have Printed: 3/17/2022 03/17/2022 Motion: Demurrer and Motion to Strike - 21CV384531 Page 3 of 8 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER discovered the violation. (See id. at p. 1110, quoting Norman-Bloodsaw v. Lawrence Berkeley Lab, (9th Cir. 1998) 135 F.3d 1260, 1266; see also Rodriguez v. U.S. Healthworks, Inc. (N.D. Cal. 2019) 388 F. Supp. 3d 1095, 1103 1107 (Rodriguez) [citing Drew]; Ladd v. Warner Bros. Entertainment, Inc. (2010) 184 Cal.App.4th 1298, 1309 [defendant has the burden to prove accrual of the statute of limitationsl.) Resolution of the statute of limitations issue is normally a question of fact; however, whenever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law. (Nguyen v. Western Digital Corporation (2014) 229 Cal.App.4th 1522, 1552.) 2. Discussion Plaintiff alleged in the Federal Action that he worked for Defendants from approximately March 2019 until July 20, 2019, as a delivery driver. (Defs. Req. for Judicial Notice, Ex. 1, 39.) Meanwhile, the At Will Employment Offer Letter that contains the disclosure at issue states, l understand that my position within the company is contingent on the status of a background check and pre-employment 5-panel drug tests and random drug testings. (Defs. Req. for Judicial Notice, Ex. 2.) Plaintiff apparently signed this document on March 19, 2019. Contrary to Amazon s argument, these documents do not clearly ancl affirmatively show that Plaintiff s FCRA claim is barred by the statute of limitations. As discussed above, an FCRA violation occurs not at the time a defective disclosure is made, but where, after violating its disclosure procedures, [the employer] procure[s] or cause[s] to be procured a consumer report about the job applicant. (Syed, supra, 853 F.3d at p. 506.) Here, there is no indication as to when that occurred: none of the allegations or documents subject to judicial notice addresses the key fact of when a background report on Plaintiff was obtained. It is true that Rodriguez and other federal authorities find constructive notice that a background check was obtained based on similar statements in disclosure documents. But in those cases the foundational fact that a background report had actually been obtained on a particular date was established. (See Rodriguez, supra, 388 F. Supp. 3d at p. 1099 [citing evidence that [t]he background check was completed on July 25, 2013, while Plaintiff s first day of employment was July 26, 2013 ]; Berrellez v. Pontoon Solutions, Inc. (C.D. Cal. Oct. 13, 2016, No. 2:15-cv-01898-CAS(FFMx)) 2016 U.S.Dist.LEXIS 142174, at *20 21 [ [T]he Court agrees with BANA that by the time plaintiff began his assignment with BANA, plaintiff had constructive notice that BANA had procured a background check. The Court is particularly swayed by the fact that plaintiff does not dispute that First Advantage facilitated the submission of plaintiff s fingerprints to the Federal Bureau of Investigation. [Citation.] Even construing the facts in a light most favorable to plaintiff, a rational trier of fact would not be able to find that plaintiff having had his fingerprints taken was unaware that BANA had procured a background check. ].) Here, the At Will Employment Offer Letter does not clearly state that a background check will be obtained prior to the first day of employment, and in any event, the truth of such a statement would be a fact that is subject to dispute, which is not an appropriate subject ofjudicial notice. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 1568 [court cannot take judicial notice of the truth of hearsay statements or facts set forth in otherwise judicially noticeable documents].) Printed: 3/17/2022 03/17/2022 Motion: Demurrer and Motion to Strike - 21CV384531 Page 4 of 8 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER In Richtek, the Court of Appeal for the Sixth District reversed a trial court s ruling sustaining a demurrer based on the statute of limitations. The Court of Appeal held that the trial court had improperly relied on the truth of allegations in pleadings filed in another case (although the existence and contents of these pleadings were proper subjects ofjudicial notice). The opinion explained: [A] court ruling on a demurrer cannot decide a question that may depend on disputed facts by means of judicial notice. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 115 .) The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. [Citation.] [J]udicia| notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed. [Citation.] (Id. at pp. 113 114 .) (Richtek, supra, 242 Cal.App.4th at p. 660.) Here, even if the Court could infer from the At Will Employment Offer Letter that a background check was actually performed on a particular date, that interpretation of the document, and the underlying fact of when the background check was performed in reality, are disputable. So too, then, is Plaintiff s constructive notice of that underlying fact which is what triggers the statute of limitations. Given these circumstances, it is not appropriate to resolve the application of the statute of limitations on demurrer here. C. Remaining Argument Finally, Amazon contends that Plaintiff fails to state a claim against it because the complaint improperly makes allegations as to defendants collectively (and sometimes as to an unspecified defendant ), and fails to specify which defendant provided him with the disclosure at issue, procured a background check, and took other relevant actions. But [t]o survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff s proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 [identities of allegedly negligent employees need not be provided to state a claim against school districtl.) With limited exceptions not applicable here, the rules of pleading require no more than general allegationls] of ultimate fact. (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548 (Birke) [allegation that asserted nuisance affectls] a substantial number of people at the same time suffices to state a claim although it mirrors the element of the claim]; see also Rojas-Cifuentes v. Superior Court (2020) 58 Cal.App.5th 1051, 1059 [ Rojas s allegations here thus included an ultimate fact (American Modular provided workers with wage statements that inaccurately listed hours worked, wages earned, and applicable hourly or piece rates) and supportive evidentiary facts (American Modular s inaccurate wage statements resulted from [its] failure to pay workers for all hours worked and rest and meal periods missed and this failure to pay, in turn, resulted from [its] failure to compensate for, among other things, time spent donning and doffing ].) The pleading is adequate so long as it apprises the defendant of the factual basis for the claim. (Birke, supra, 169 Cal.App.4th at p. 1549.) Printed: 3/17/2022 03/17/2022 Motion: Demurrer and Motion to Strike - 21CV384531 Page 5 of 8 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Here, Plaintiff alleges the ultimate facts in support of his claim. It is clear from Amazon s argument that it understands the factual basis for the claim, which is straightforward. And Amazon cites no authority supporting its position that a plaintiff cannot make allegations against multiple defendants collectively. The issues Amazon raises are best addressed through discovery and it appears likely that Amazon already has the information it requests, such as details about its own relationship to Green Messengers and whether it or Green Messengers took various actions regarding Plaintiff s employment. D. Conclusion For all these reasons, the Court OVERRULES Amazon s demurrer in its entirety. III. AMAZON S MOTION TO STRIKE Amazon also moves to strike the class allegations from the complaint, urging that because Plaintiff is not specific about which defendant employed him, the proposed class definition, which includes [a]|| of Defendants current, former and prospective applicants for employment in the United States is ambiguous and overbroad. A. Governing Law Class certification is generally not decided at the pleading stage of a lawsuit. The 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. (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1062, citing In re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293, 1298 1299, internal citations and quotations omitted.) A court may decide the propriety of class certification on the pleadings 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. (Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 211 (Tucker), citing Bridgeford v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034, 1041 1042.) This is most commonly the case in circumstances where it is clearly apparent that individual issues will predominate. (See Tucker, supra, 208 Cal.App.4th at p. 211 [no commonality regarding consumer claim where reliance and materiality varied among individuals and disclosures were provided that were likely seen by some putative class membersl.) As to the class definition, where there is an ascertainable class, plaintiffs rights should not be forfeited because of counsel s choice of words in the complaint or class certification motion ; the court itself can and should redefine the class where the evidence shows such a redefined class would be ascertainable. (Marler v. E.M. Johansing, LLC (2011) 199 Cal.App.4th 1450, 1462.) B. Discussion Here, Amazon does not address the requirements for class certification, but merely criticizes the proposed Printed: 3/17/2022 03/17/2022 Motion: Demurrer and Motion to Strike - 21CV384531 Page 6 of 8 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER class definition alleged in the complaint. But a problem with the class definition is not a basis to strike all of the class allegations from the complaint, and none of Amazon s authorities support this approach. (See, e.g., Silva v. Block (1996) 49 Cal.App.4th 345, 351 [affirming trial court s rejection of class action treatment upon plaintiffs failure to show that common questions of law or fact predominated and upon their failure to name representative plaintiffs, not based on an issue with the class definition].) The issues Amazon raises are best addressed through the usual process of discovery and a motion for class certification. Finally, while it may be appropriate to strike allegations concerning a nationwide class under appropriate circumstances, Amazon s motion is not targeted to this aspect of the class allegations, and does not address the substantive issues that would govern the analysis on this point. (See Canon U.S.A., Inc. v. Superior Court (1998) 68 Cal.App.4th 1, 8 [ [A] trial court should, at the pleading stage, consider the Osborne factors, i.e., whether certification of a nationwide class would require the trial court to adjudicate issues by application of numerous different rules of law from the various states, and whether California has a special obligation to undertake the litigation. Following such an analysis, the court may, in an appropriate case, strike the nationwide class allegations. ].) So even this aspect of the class definition is not properly rejected at this juncture. C. Conclusion The Court DENIES Amazon s motion to strike. The Court will prepare the order. *** LAW AND MOTION HEARING PROCEDURES The Court rescinded, effective June 21, 2021, all prior general orders restricting courthouse access. Remote appearances for complex civil matters are still permitted, but are no longer mandatory. (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at https://www.scscourt.org/genera|_info/news_media/newspdfs/ZOZ1/GeneralOrder RescindingPortionofOSOSZlGenera|OrderConcerningComplexCivilActions.pdf.) If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall. Public access to hearings is available on a listen-only line by calling 888-808-6929 (access code 2752612). State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a hearing remotely or listening in on a public access line. No court order has been issued which would allow recording of any portion ofthis motion calendar. Printed: 3/17/2022 03/17/2022 Motion: Demurrer and Motion to Strike - 21CV384531 Page 7 of 8 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this Court s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom. The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this Court s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom. Printed: 3/17/2022 03/17/2022 Motion: Demurrer and Motion to Strike - 21CV384531 Page 8 of 8
