Opposition To Demurrer To First Amended Complaint

Opposition

Cal. Super. - 4th Dist.December 6, 2019

30- © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O Electronically Filed by Superior Court of California, County of Orange, 06/15/2020 03:22:00 PM. Edward W. Choi, Esq. SBN 211334 Paul M. Yi, Esq. SBN 207867 PI019-01116669-CU-OE-C)J C - ROA #60 - DAVID H. YAMASAKI, Clerk of the Court By e Clerk, Deputy Clerk. LAW OFFICES OF CHOI & ASSOCIATES, APLC 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 Email: edward.choi @choiandassociates.com Paul.yi @choiandassociates.com Attorneys for Plaintiff YAYA ALI SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE YAYA ALI an individual, Plaintiff, VS. SKY TOUCH IMPORTS, INC., a Corporation; LEASE REMARKETING SERVICES, INC., a Corporation; MOHAMMAD AMIN ZAVERI, an individual; SHAHIN ZAVERI, an individual; JUNAID ZAVERI, an individual; SHEHZAD ZAVERI, an individual; JAVVAD ZAVERI, an individual; and DOES 1 through 30, inclusive, Defendants. Case No. 30-2019-01116669-CU-OE-CJC Assigned for All Purposes to Honorable Judge Walter Schwarm in Dept C19 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT DATE: June 30, 2020 TIME: 1:30 p.m. Dept: C19 1 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O TO ALL PARTIES, THE HONORABLE COURT AND ALL COUNSEL OF RECORD: Plaintiff YAYA ALI (“Plaintiff”) submits this Opposition to the Demurrer of Defendants SKY TOUCH IMPORTS, INC. (“SKY TOUCH”), LEASE REMARKETING SERVICES, INC. (“LEASE REMARKETING”) MOHAMMAD AMIN ZAVERI, SHAHIN ZAVERI, JUNAID ZAVER]I, SHEHZAD ZAVERI, JAVVAD ZAVERI ("Defendants" or “Moving Parties”), to Plaintiff’s First Amended Complaint (“Motion”). MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants’ Demurrer is premature, improper and misplaced. The proper challenge to the facts alleged in the FAC should be a motion for summary judgment, not a Demurrer. In addition, Defendants’ Demurrer misconstrues the law; that an amended complaint must have a relationship to the original Complaint. It is well settled that an amended complaint supersedes the original Complaint. Finally, Plaintiff has alleged sufficient facts for multiple theories of why the Defendants are properly joined in this action. The instant Complaint was filed on December 6, 2019. After a meeting and conferring with Defendants, although Plaintiff initially did not believe that the Complaint was deficient, Plaintiff reconsidered and voluntarily filed a First Amended Complaint (“FAC”) to clarify the causes of action that were being brought against the corporate defendants and the individual Defendants. Plaintiff and Defendants met and conferred again wherein Plaintiff advised Defendants that the FAC clearly sets forth the different causes of action that were being brought against the corporate Defendants and individual defendants. Specifically, the FAC alleges the First through Fifth Causes of Action are being brought against the corporate defendants, SKY TOUCH and LEASE REMARKETING. Plaintiff’s FAC alleges the Sixth through Ninth Causes of Action are being brought against all Defendants. Further, the FAC alleges that the individual Defendants are alter egos of the corporate Defendants. Specifically, the FAC further alleges that Plaintiff is informed and believes and thereon alleges that Defendants SKY TOUCH and LEASE REMARKETING, are, and at all times herein mentioned were, mere shells, instrumentality and conduit through which the individual defendants 2 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O conducted business in the corporate name exactly as they had conducted it previous to incorporation, exercising complete control and dominance of such businesses to such an extent that any individuality or separateness by Defendants SKY TOUCH and LEASE REMARKETING do not, and at all times herein mentioned did not, exist. (FAC 9). Further, Plaintiff is informed and believes and thereon alleges that Defendants SKY TOUCH and LEASE REMARKETING are, and at all times herein mentioned were, the alter egos of the individual defendants and of each other in that the activities and business of Defendants SKY TOUCH and LEASE REMARKETING, were carried out without the holding of director’s or shareholder’s meetings, no records or minutes of any corporate proceedings were maintained. (Id. at 10). Adherence to the fiction of the separate existence of Defendants SKY TOUCH and LEASE REMARKETING as entities distinct from the individual defendants would permit an abuse of the corporate privilege and would promote injustice in that Plaintiff might be denied satisfaction of [his] claims. (/d. at (11). During the time of Plaintiff’s employment for Defendants and each of them as described herein, Defendant DOES 1 through 30 regularly exercised direct and/or indirect control of Plaintiff’s wages, working hours, and working conditions during Plaintiff’s employment for Defendants and each of them. (Id. at (12). Plaintiff further alleges that each of the said individual Defendants, including unknown Defendants identified herein as DOES, also directly and/or indirectly controlled the working conditions, wages, working hours, and working conditions of Plaintiff. (/d.). Based on the foregoing, Defendants’ Demurrer should be overruled. II. STATEMENT OF FACTS Plaintiff worked for the Defendants SKY TOUCH and LEASE REMARKETING as a driver. (FAC {15). Plaintiff was originally hired by Defendant SKY TOUCH. (/d.) In or about February 2018, Plaintiff was issued some of his wages from Defendant LEASE REMARKETING and some of his wages from Defendant SKY TOUCH. (Id.) Thus, Plaintiff alleges that Defendants SKY TOUCH and LEASE REMARKETING are joint employers. (/d.) During Plaintiff’s employment with Defendants SKY TOUCH and LEASE REMARKETING, Plaintiff’s duties primarily involved field work in performing menial tasks including driving to and from different locations to pick up vehicles and other tasks as assigned by Defendants SKY TOUCH and 3 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O LEASE REMARKETING. (FAC {16). During Plaintiff’s employment, the Moving Party required and/or permitted Plaintiff to work hours substantially in excess of 8 hours per day, and 40 hours per work week, and did not permit Plaintiff to take his meal breaks and rest breaks where he was completely relieved of all duties. Due to the nature of travel time for pickups between different locations, Plaintiff worked 10 hours per day on average. (Id. at 16). Consistently, during his employment, Defendants SKY TOUCH and LEASE REMARKETING, required and/or permitted Plaintiff to work hours substantially in excess of 8 hours per day, and 40 hours per work week, and did not permit Plaintiff to take his meal breaks and rest breaks where he was completely relieved of all duties. (FAC 17) Due to the nature of travel time for pick-ups between different locations, Plaintiff worked 10 hours per day on average. (Id.). He was paid a flat salary of $2,000.00 in check and $1,500.00 in cash per month. (/d.). He was also paid $100 per vehicle he drove back to the dealership but was not paid until after 3 months after it was earned. (/d.). On or about June 2017, Plaintiff suffered a heart attack. (FAC (18). After he returned from his surgery, Plaintiff became a target of harassment and was forced to work longer hours. (/d.). Defendants’ constant yelling and harassment increased based on his now evident medical condition and age. (/d.). When Plaintiff began complaining about the lack of meal and break times and the longer hours he had to endure, Defendants refused to accommodate his demands and, instead, retaliated against him by exposing him to a hostile environment and emotional distress to the point where he was forced to quit. Id.). III. STATEMENT OF FACTS A. STANDARD ON DEMURRER While California is a code-pleading state, California courts have become increasingly liberal in their attitude toward pleadings and have diminished the distinctions between ultimate facts, evidentiary matters and legal conclusions. Weil & Brown, “California Practice Guide: Civil Procedure Before Trial”, §6:128. In Perkins v. Superior Ct., the Court of Appeal stated “The distinction is not at all clear and involves at most a matter of degree... What is important is that the complaint as a whole contain 4 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief...” Perkins v. Superior Ct. (1981) 117 Cal. App. 3d 1, 6 [emphasis added]. The standard on demurrer is that all facts plead are "taken as true"; and pleading clarity is not essential to overcome general demurrers. (Johnson v. Mead (1987) 191 Cal.App.3d 156, 160.) Defects must appear on face of a complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Courts must construe complaints liberally. (Code Civ. Proc., § 452.) Demurrers based on technicalities, even when facts may not be clearly stated or are intermingled with irrelevancies or pleas for unattainable relief, should be overruled. (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) If material facts support a claim under any theory, a complaint survives demurrer. (Holland v. Morse Diesel Int’l (2001) 86 Cal. App. 4th 1443, 1447.) When determining whether sufficient facts are pleaded, the complaint will be read as a whole so that even conclusory allegations may suffice when read in context with facts alleged as to the defendant’s wrongful conduct. (See Perkins v. Superior Ct, supra, 117 Cal. App. 3d at pp. 6-7; Monge v. Superior Court, (1986) 176 Cal. App. 3d 503, 510.) B. PLAINTIFF’S FIRST THROUGH FIFTH CAUSES OF ACTION ARE PROPERLY BROUGHT AGAINST SKY TOUCH AND LEASE REMARKETING Plaintiff had a right to file an amended complaint prior to Defendants’ filing of a Demurrer. C.C.P. §472. Plaintiff exercised that right and thus, under well settled law, the filing of an amended pleading supersedes the original and furnishes the sole basis of the cause of action. Plaintiff filed his FAC to make it clear that the First through Fifth Causes of Action against Defendants SKY TOUCH and LEASE REMARKETING. Defendants’ improper footnote that “Notably, on information and belief, counsel for Plaintiff is in possession of paystubs that bear only one entity’s name, that of LEASE REMARKETING SERVICES, INC.” actually supports Plaintiff’s allegations that Defendants SKY TOUCH and LEASE REMARKETING are proper Defendants. Indeed, Labor Code §226 (a)(8) requires that wage statements contain the “the name and address of the legal entity that is the employer”. (Labor Code §226(a)(8) [emphasis added] SKY TOUCH’s failure to issue wage statements to Plaintiff, despite the fact that 5 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O Plaintiff was first hired by SKY TOUCH and did not receive any wages from LEASE REMARKETING until February 2018, supports Plaintiff’s allegations that SKY TOUCH and LEASE REMARKETING are properly named Defendants. This further supports Plaintiff’s alter ego allegations that the individual defendants were utilizing the corporate defendants as mere shells and instrumentalities. Finally, Defendants’ allegation that Plaintiff violated the “principle of truthful pleading” is misplaced. The principle of truthful pleading is “when the plaintiff pleads inconsistently in separate actions, the plaintiff's complaint is nothing more than a sham that seeks to avoid the effect of a demurrer; Cantu v. Resolution Trust Corp., et al. (1992) 4 Cal. App. 4th 857, 877-878 [emphasis added]. Plaintiff has not filed two separate actions against Defendants. Again, the FAC supersedes the Complaint in this action so there cannot be any inconsistencies. C. PLAINTIFF'S FACTUAL ALLEGATIONS ALSO ESTABLISH THAT THE MOVING PARTY IS LIABLE UNDER THE ALTER EGO THEORY Plaintiff can also seek to impose liability for the acts and obligations of the corporation if he can show that: (1) there is a unity of interest and ownership that the individuality, separateness, of such person and the corporation has ceased and (2) the adherence of the fiction of the separate existence of the corporation would, under the particular circumstances would promote injustice or fraud. (Associated Vendors v. Oakland Meat Co. (1962) 210 Cal. App. 2d 825, 837.) Such a determination is by the trier off fact and not a conclusion of law. (Ibid.) However, for purposes of the instant demurrer, Plaintiff's alter ego allegations must be taken as true. (Johnson v. Mead, supra, 191 Cal.App.3d at p. 160.) Plaintiff's FAC pleads exactly what is required to prove alter ego liability. Plaintiff alleged that there existed a unity of interest and ownership between the corporate Defendants and the non-corporate Defendants such that any individuality and separateness between said individual Defendants have ceased, (FAC 13). Plaintiff also alleged that if the acts of the corporate Defendant entities are treated as those of the entities alone, an inequitable result would follow. (FAC (13). These allegations alone would suffice to establish alter ego liability. (Associated Vendors v. Oakland Meat Co, supra, 210 Cal. App. 2d at p. 837.) 6 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O However, there is more. Plaintiff allege alleged that corporate Defendants and DOES 1 through 30, are liable for (1) commingling of personal funds and other assets; (2) treatment of corporate assets as individual assets; (3) inadequate capitalization of the corporation; (4) use of the corporation as a mere shell; (5) contracting with another corporation to shield against personal liability; (6) use of the corporation to require Plaintiff work overtime without proper payment of overtime; and (7) the use of personal funds in form of cash and checks to pay Plaintiff his regular wages, but no overtime wages. (FAC {13) These are all specific facts, if taken as true, support the conclusion that Moving Party is liable under the alter ego theory; not conclusory statements. Thus, Plaintiff has pled sufficient “facts” to prove alter ego liability against Defendants. D. PLAINTIFF’S SIXTH CAUSE OF ACTION IS SUFFICIENTLY PLEAD Defendants allege that Plaintiff failed to allege facts sufficient to prove the third element of Constructive Discharge in Violation of Public Policy (CACI No. 2431) which requires that Plaintiff plead “3. That this requirement was so intolerable that a reasonable person in [name of plaintiff]’s position would have had no reasonable alternative except to resign”. Plaintiff’s Sixth Cause of Action references the prior 47 paragraphs as though fully set forth therein. (FAC (48). Plaintiff alleges: “On or about June 2017, Plaintiff suffered a heart attack. After he returned from his surgery, Plaintiff became a target of harassment and was forced to work longer hours. Defendants’ constant yelling and harassment increased based on his now evident medical condition and age. When Plaintiff began complaining about the lack of meal and break times and the longer hours he had to endure, Defendants refused to accommodate his demands and, instead, retaliated against him by exposing him to a hostile environment and emotional distress to the point where he was forced to quit” (FAC 118). Based on the foregoing, Plaintiff alleges sufficient facts to place Defendants on notice that their refusal to accommodate his requests and instead retaliating against him by exposing him to a hostile environment and causing emotional distress forced him to a position that caused him to quit. Thus, Plaintiff has alleged sufficient facts to justify his cause of action for constructive discharge against Defendants. 1" 7 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O E. PLAINTIFF'S SEVENTH CAUSE OF ACTION IS SUFFICIENTLY PLEAD Plaintiff’s Seventh Cause of Action is based on Defendants’ continuing violation of the FEHA. The FEHA codified in Government Code § 12940 et. seq., makes it unlawful for an employer to discriminate against an employee on the basis of the employee’s age and medical condition. Plaintiff can maintain an action under the FEHA for continuing violations if: “[Name of plaintiff] filed a complaint with the DFEH on [date]. [Name of defendant] claims that its alleged unlawful practice that triggered the requirement to file a complaint occurred no later than [date more than one year before DFEH complaint was filed]. [Name of plaintiff] claims that [name of defendant]’s unlawful practice was a continuing violation so that the requirement to file a complaint was triggered no earlier than [date less than one year before DFEH complaint was filed). [Name of defendant]’s alleged unlawful practice is considered as continuing to occur as long as [name of plaintiff] proves that all of the following three conditions continue to exist: 1. Conduct occurring within a year of the date on which [name of plaintiff] filed [his/her] complaint with the DFEH was similar or related to the conduct that occurred earlier; 2. The conduct was reasonably frequent; and 3. The conduct had not yet become permanent.” (CACI No. 2508). Again, Plaintiff alleges: “On or about June 2017, Plaintiff suffered a heart attack. After he returned from his surgery, Plaintiff became a target of harassment and was forced to work longer hours. Defendants’ constant yelling and harassment increased based on his now evident medical condition and age. When Plaintiff began complaining about the lack of meal and break times and the longer hours he had to endure, Defendants refused to accommodate his demands and, instead, retaliated against him by exposing him to a hostile environment and emotional distress to the point where he was forced to quit” (FAC q18). As set forth above, after Plaintiff suffered a heart attack in 2017 and returned from his surgery, Plaintiff became a target of harassment and was forced to work longer hours. Plaintiff alleges that Defendants constant yelling and harassment increased and that he was forced to work longer hours without meal and break times. Ultimately, Plaintiff was forced to quit because Defendants refused to 8 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O accommodate Plaintiff’s reasonable requests for meal and rest breaks and shorter working hours. Thus, Plaintiff has plead sufficient facts for violation of the FEHA. F. PLAINTIFF'S EIGHT CAUSE OF ACTION IS PROPERLY PLEAD Plaintiff has plead the following elements to justify his cause of action for Intentional Infliction of Emotional Distress: (1) extreme and outrageous conduct by her former employer with the intention of causing reckless disregard of the probability of causing, emotional distress; (2) Plaintiff suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by her former employer’s outrageous conduct. Christensen v. Sup. Ct., 54 Cal. 3d 868, 903 (1991). As set forth in the FAC, Plaintiff alleges that all of the Defendants refused to accommodate his requests for shorter hours and meal and rest breaks, as an accommodation to his weakened physical condition after his heart surgery. However, Defendants refused to accommodate Plaintiff and ultimately caused Plaintiff to quit. Such conduct can rise to the level of “extreme and outrageous” conduct that caused “severe or extreme emotional distress” and justify an award of damages for emotional distress. G. IF THE COURT IS INCLINED TO GRANT DEFENDANTS’ DEMURRER, PLAINTIFF SHOULD BE GRANTED LEAVE TO FILE A SECOND AMENDED COMPLAINT When a demurrer is granted, the court may order that an amendment or amended pleading be filed on terms it deems proper. (Code Cov. Proc., §472a (d).) In Calif. Cas. Gen. Ins. Co. v. Sup. Ct. (1985) 173 Cal. App. 3d. 274, 278, the court stated as follows (emphasis added): “While a motion to permit a pleading to be filed is one addressed to the discretion of the court . . . it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case . . . and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error, but an abuse of discretion.” The present case is in the initial stages and discovery is ongoing. Defendant will not be prejudiced if the court grants Plaintiff leave to file a second amended complaint. Therefore, although 9 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O Defendants’ motion should be denied, if the court is inclined to grant defendants’ demurrer, the court should grant plaintiff leave to file a second amended complaint. IV. CONCLUSION For the foregoing reasons, the Demurrer should be overruled in its entirety. In the event the demurrer is sustained, Plaintiff should be granted leave to file a second amended complaint. Dated: June 15, 2020 LAW OFFICES OF CHOI & ASSOCIATES by Ll HA fidward W. Choi Attorneys for Plaintiff YAYA ALI 10 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT PROOF OF SERVICE I am employed in the County of Los Angeles; I am over the age of 18 years and not a party to the within action; my business address is 515 S. Figueroa St. Suite 1250, Los Angeles, California 90071. On June 15, 2020, I served the foregoing document(s) described as: PLAINTIFF'S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT, on the interested parties in this action by placing a true copy thereof, in a sealed envelope(s) addressed as follows: Daniel Josephson Siddiqui Law 695 Town Center Drive, Suite 700 Costa Mesa, CA 92626 djosephson @sidlawpc.com BY MAIL As follows: Tam “readily familiar” with the practice of Choi & Associates, Attorneys at Law for collection and processing of correspondence for mailing with the United States Postal Service and that correspondence placed in the outgoing mail tray in my office for collection would be deposited in the United States Mail that same day in the ordinary course of business. BY PERSONAL SERVICE I caused such envelope to be delivered by hand to the offices of the addressee. X BY ELECTRONIC SERVICE I caused such document to be uploaded to One Legal to be served on the offices of the addressees. X___ (State) I declare under penalty of perjury that the foregoing is true and correct. (Federal) Ideclare under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on June 15, 2020, at Los Angeles, California. Michelle Lee PROOF OF SERVICE