OrderCal. Super. - 6th Dist.July 20, 2021KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA HANS SANCHEZ, Case N0.: 2 1CV3 84531 Plaintiffs, ORDER CONCERNING DEFENDANTS AMAZON.COM SERVICES LLC AND VS. AMAZON LOGISTICS, INC.’S (1) DEMURRER TO, AND (2) MOTION GREEN MESSENGERS, INC., et al., TO STRIKE PORTIONS OF PLAINTIFF HANS SANCHEZ’S Defendants. COMPLAINT This is a putative class action alleging Violations 0f 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 an Amazon subcontractor).1 Before the Court are Amazon’s: (1) demurrer for failure t0 state a claim and uncertainty; and (2) motion t0 strike the class allegations from the complaint. Plaintiff Hans Sanchez opposes both motions. The Court issued a tentative ruling 0n March 15, 2022, and n0 one contested it at the hearing 0n March 17. The Court now issues its final order, which OVERRULES the demurrer and DENIES the motion t0 strike. 1 Plaintiff states that Green Messengers is Amazon’s subcontractor in his opposition brief, and Amazon does not dispute the accuracy 0f this statement 0n reply. 1 Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/21/2022 9:54 AM Reviewed By: R. Walker Case #21CV384531 Envelope: 8553259 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO I. BACKGROUND Plaintiff alleges that when he applied for employment with Defendants, they provided a disclosure and authorization form t0 perform a background investigation. (Complaint, 1] 22.) But the disclosure contained extraneous and superfluous language beyond the disclosure itself and/or was not clear and conspicuous, in Violation 0f the FCRA. (Id., 1] 23.) Specifically, extraneous information was reflected in “[m]iscellaneous provisions concerning Plaintiff’s employment including, but not limited to, ‘Time Clock Policy,’ ‘Uniform Policy,’ ‘Time Card Authorization,’ and ‘Paid Sick Leave.’ ” (161., 1] 24.) And the disclosure was not clear and conspicuous because: (1) it was not in all capital letters; (2) it was not in boldface t0 set off the required disclosure; and (3) the disclosure provisions are set out in a dense, small font that reduces clarity. (Id., 1] 25.) Based 0n these allegations, Plaintiff brings a single putative class claim for failure t0 make proper disclosure in Violation 0f the FCRA, which is title 15 United States Code section 1681b(b)(2)(A). II. AMAZON’S DEMURRER Amazon demurs t0 the complaint 0n the grounds that it is barred by the statute 0f limitations, otherwise fails t0 state a cause 0f action, and is uncertain. (Code CiV. Proc., § 430.10, subds. (e) & (f).) A. 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 matters as may be considered under the doctrine ofjudicial notice.” (Wei! v. Barthel (1955) 45 Cal.2d 835, 837; see also Code CiV. Proc., § 430.30, subd. (a).) “It is not the ordinary function 0f a demurrer t0 test the truth 0f the plaintiff” s allegations 0r the accuracy with which he describes the defendant’s conduct. Thus, the facts alleged in the pleading are deemed t0 be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO In ruling on a demurrer, the allegations 0f the complaint must be liberally construed, with a View t0 substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions 0r conclusions 0f law 0r fact.” (George v. Automobile Club 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.) B. Uncertainty 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 moving party cannot reasonably respond. (See Khoury v. Maly ’s ofCalifornia, 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 0f action is alleged clearly enough t0 enable a response, notwithstanding the various issues raised by Amazon. The Court hence OVERRULES the demurrer based 0n uncertainty. C. Statute 0f 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, Ina, et al., (N.D. Cal., Case N0. 5:20-CV-06538-EJD)), Plaintiff acknowledged Viewing the disclosure at issue 0n March 19, 2019. The disclosure informed Plaintiff that his offer 0f employment was contingent 0n a background check. Therefore, Plaintiffknew 0r should have known n0 later than the end 0f 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 0f limitations. Amazon’s argument depends upon its request for judicial notice 0f the Third Amended Complaint in the Federal Action and 0f the disclosure itself. Plaintiff does not oppose these KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO requests 0r dispute the accuracy 0f the documents submitted by Amazon? However, he urges that the issue 0f his constructive knowledge is a factual one that cannot be resolved 0n demurrer. 1 . Governing Law A demurrer will succeed where the allegations and matters subj ect t0 judicial notice clearly disclose a defense 0r bar t0 recovery. However, “[a] demurrer based 0n a statute 0f limitations will not lie where the action may be, but is not necessarily, barred.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232, internal citation and quotation marks omitted.) The defect must clearly and affirmatively appear 0n the face 0f the complaint and matters subj ect t0 judicial notice. (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 65 1, 658 (Richtek).) The statute 0f limitations t0 bring an FCRA claim is the earlier 0f “(1) 2 years after the date 0f discovery by the plaintiff 0f the Violation that is the basis for such liability; 0r (2) 5 years after the date 0n 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 0f 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] 0r cause[s] t0 be procured’ a consumer report about the job applicant. See 15 U.S.C. § 1681b(b)(2)(A)(i).” (Syed v. M-I, LLC (9th Cir. 2017) 853 F.3d 492, 506 (Syed).) The plaintiff’s discovery 0r constructive discovery 0f this Violation triggers the two-year statute 0f limitations. (See Drew v. Equifax Info. Servs., LLC (9th Cir. 2012) 690 F.3d 1100, 1109 (Drew).) It is the defendant’s burden t0 demonstrate when and how a reasonably diligent plaintiffwould have discovered the Violation. (See id. at p. 11 10, quoting Norman-Bloodsaw v. Lawrence Berkeley Lab, (9th Cir. 1998) 135 2 The Court accordingly GRANTS judicial notice as t0 the existence and contents 0f the subject documents only. (See EVid. Code, § 452, subds. (d) & (h); Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285, fn. 3 [it is appropriate t0 take judicial notice 0f documents that “form the basis 0f the allegations in the complaint,” but may be selectively quoted therein, under the incorporation-by-reference doctrine].) KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO F.3d 1260, 1266; see also Rodriguez v. U.S. Healthworks, Inc. (N.D. Cal. 2019) 388 F. Supp. 3d 1095, 1103-1 107 (Rodriguez) [Citing Drew]; Ladd v. Warner Bros. Entertainment, Inc. (2010) 184 Cal.App.4th 1298, 1309 [defendant has the burden t0 prove accrual 0f the statute 0f limitations] .) Resolution 0f the statute 0f limitations issue is normally a question 0f fact; however, “whenever reasonable minds can draw only one conclusion from the evidence, the question becomes one 0f 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, 1] 39.) Meanwhile, the “At Will Employment Offer Letter” that contains the disclosure at issue states, “I understand that my position within the company is contingent on the status 0f a background check and pre-employment 5-panel drug tests and random drug tastings.” (Defs.’ Req. for Judicial Notice, EX. 2.) Plaintiff apparently signed this document 0n March 19, 20 1 9. Contrary t0 Amazon’s argument, these documents d0 not clearly and affirmatively show that Plaintiff” s FCRA claim is barred by the statute 0f 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] 0r cause[s] t0 be procured’ a consumer report about the job applicant.” (Syed, supra, 853 F.3d at p. 506.) Here, there is n0 indication as t0 when that occurred: none 0f the allegations 0r documents subject t0 judicial notice addresses the key fact 0fwhen a background report 0n Plaintiff was obtained. True, Rodriguez and other federal authorities find constructive notice that a background check was obtained based 0n similar statements in disclosure documents.3 But in those cases, 3 The Court DENIES Plaintiffs request for judicial notice 0f a purportedly conflicting order by a California trial court. Unpublished California opinions “must not be cited 0r relied 0n by a court or a party in any other action.” (Cal. Rules 0f Court, rule 8.1 1 15(a); see also Schachter v. 5 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO the foundational fact that a background report had actually been obtained 0n a particular date was established. (See Rodriguez, supra, 388 F. Supp. 3d at p. 1099 [citing evidence that “[t]he background check was completed 0n July 25, 2013,” while “Plaintiff” s first day of employment was July 26, 2013”]; Berrellez v. Pontoon Solutions, Inc. (CD. Cal. Oct. 13, 2016, N0. 2: 15-CV- 01 898-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 0f plaintiffs fingerprints t0 the Federal Bureau 0f Investigation. [Citation] Even construing the facts in a light most favorable t0 plaintiff, a rational trier 0f fact would not be able t0 find that plaintiff- haVing had his fingerprints taken-was unaware that BANA had procured a background check.”].)4 Here, the “At Will Employment Offer Letter” does not clearly state that a background check will be obtained prior t0 the first day 0f employment, and in any event, the truth 0f such a statement would be a fact that is subj ect t0 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 0f the truth 0f hearsay statements 0r facts set forth in otherwise judicially noticeable documents] .) In Richtek, the Court 0f Appeal for the Sixth District reversed a trial court’s ruling sustaining a demurrer based 0n the statute 0f limitations. The Court 0f Appeal held that the trial court had improperly relied 0n the truth 0f allegations in pleadings filed in another case Citigroup, Inc. (2005) 126 Cal.App.4th 726, 738 [trial court ruling has n0 precedential value].) The Court admonishes Plaintiff not t0 cite unpublished California orders in the future. 4 AS noted by Rodriguez, Ruiz v. Shamrock Foods C0. (CD. Cal. Aug. 22, 2018, N0. 2:17-CV- 06017-SVW-AFM) 2018 U.S.Dist.LEXIS 148929 (Ruiz) addressed the issue 0f constructive notice in dicta. While its discussion 0f the evidence concerning two plaintiffs is not entirely clear about when their background checks were obtained, it was undisputed that the third plaintiff’s background check was obtained before his first date 0f employment. (Id. at *5.) Presumably, so were the other background checks. 6 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO (although the existence and contents 0f these pleadings were proper subj ects ofjudicial notice). The opinion explained: “[A] court ruling 0n a demurrer cannot decide a question that may depend 0n disputed facts by means ofjudicial notice.” (Fremont Indemnity C0. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 115. ...) “ ‘...The hearing 0n demurrer may not be turned into a contested evidentiary hearing through the guise 0f having the court take judicial notice 0f documents whose truthfulness 0r proper C“ interpretation are disputable. [Citation.]’ [J]udicial notice 0f matters upon demurrer will be dispositive only in those instances where there is not 0r cannot be a factual dispute concerning that which is sought t0 be judicially noticed.” [Citation.]’ ” (Id. at pp. 113-1 14. . . .) (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 0n a particular date, that interpretation 0f the document, and the underlying fact 0fwhen the background check was performed in reality, are disputable. So too, then, is Plaintiffs constructive notice 0f that underlying fact-which is what triggers the statute 0f limitations. Given these circumstances, it is not appropriate t0 resolve the application 0f the statute 0f limitations 0n demurrer here. D. Remaining Argument Finally, Amazon contends that Plaintiff fails t0 state a claim against it because the complaint improperly makes allegations as t0 “defendants” collectively (and sometimes as t0 an unspecified “defendant”), and fails t0 specify which defendant provided him with the disclosure at issue, procured a background check, and took other relevant actions. But “[t]0 survive a demurrer, the complaint need only allege facts sufficient t0 state a cause 0f action; each evidentiary fact that might eventually form part 0f the plaintiff” s proof need not be alleged.” (CA. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 [identities 0f allegedly negligent employees need not be provided t0 state a claim against school district].) With limited exceptions not applicable here, the rules 0f pleading require n0 more than KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO “general allegation[s] 0f ultimate fact.” (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548 (Birke) [allegation that asserted nuisance “affect[s] a substantial number 0f people at the same time” suffices t0 state a claim although it mirrors the element 0f 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 0r piece rates) and supportive evidentiary facts (American Modular’s inaccurate wage statements resulted from [its] failure t0 pay workers for all hours worked and rest and meal periods missed-and this failure t0 pay, in turn, resulted from [its] failure t0 compensate for, among other things, time spent ‘donning and doffing’ ”].) “The pleading is adequate so long as it apprises the defendant 0f the factual basis for the claim.” (Birke, supra, 169 Cal.App.4th at p. 1549.) Here, Plaintiff alleges the ultimate facts in support 0f his claim. It is clear from Amazon’s argument that it understands the factual basis for the claim, which is straightforward. And Amazon cites n0 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 t0 Green Messengers and whether it 0r Green Messengers took various actions regarding Plaintiff’s employment. E. Conclusion For all these reasons, the Court OVERRULES Amazon’s demurrer in its entirety. III. AMAZON’S MOTION TO STRIKE Amazon also moves t0 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]ll 0f 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 0f a lawsuit. The preferred course is t0 defer decision 0n the propriety 0f the class action until an evidentiary KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO hearing has been held 0n the appropriateness 0f 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 0f class certification 0n the pleadings “ ‘only if 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.’ ” (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 [n0 commonality regarding consumer claim where reliance and materiality varied among individuals and disclosures were provided that were likely seen by some putative class members].) As t0 the class definition, where there is an ascertainable class, “plaintiffs’ rights should not be forfeited because 0f counsel’s choice 0f words in the complaint 0r 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 (201 1) 199 Cal.App.4th 1450, 1462.) B. Discussion Here, Amazon does not address the requirements for class certification, but merely criticizes the proposed class definition alleged in the complaint. But a problem with the class definition is not a basis t0 strike all 0f the class allegations from the complaint, and none 0f Amazon’s authorities support this approach. (See, e.g., Silva v. Block (1996) 49 Cal.App.4th 345, 351 [affirming trial court’s “rejection 0f class action treatment upon plaintiffs’ failure t0 show that common questions 0f law 0r fact predominated and upon their failure t0 name representative plaintiffs,” not based 0n an issue with the class definition].) The issues Amazon raises are best addressed through the usual process 0f discovery and a motion for class certification. KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Finally, while it may be appropriate t0 strike allegations concerning a nationwide class under appropriate circumstances, Amazon’s motion is not targeted t0 this aspect 0f the class allegations, and does not address the substantive issues that would govern the analysis 0n 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 0f a nationwide class would require the trial court t0 adjudicate issues by application 0f numerous different rules 0f law from the various states, and whether California has a ‘special obligation’ t0 undertake the litigation. Following such an analysis, the court may, in an appropriate case, strike the nationwide class allegations.”].) So even this aspect 0f the class definition is not properly rejected at this juncture. C. Conclusion The Court DENIES Amazon’s motion t0 strike. IT IS SO ORDERED. Date: The Honorable Sunil R. Kulkarni Judge 0f the Superior Court 10 March 20, 2022