This case was last updated from Los Angeles County Superior Courts on 06/10/2019 at 08:16:46 (UTC).

CLAUDIA DE LA O VS DISTRICT LAW FIRM APC ET AL

Case Summary

On 06/14/2017 CLAUDIA DE LA O filed a Labor - Wrongful Termination lawsuit against DISTRICT LAW FIRM APC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA P. JESSNER and YOLANDA OROZCO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5190

  • Filing Date:

    06/14/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SAMANTHA P. JESSNER

YOLANDA OROZCO

 

Party Details

Petitioner and Plaintiff

DE LA O CLAUDIA

Defendants and Respondents

DISTRICT LAW FIRM APC

GALVER FREDDY

DOES 1 TO 20

GALVEZ FREDDY

ROBERSON LEROY TRAVELLE

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

YOUNESSI RAMIN R. ESQ.

MARTIN LILIUOKALANI H.

YOUNESSI RAMIN RAY ESQ.

Defendant and Respondent Attorneys

M.E.T.A.L. LAW GROUP LLP

LEE WON DAN

DAVIDSON NICOLE ZACHAR

 

Court Documents

NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

2/2/2018: NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

DEFENDANTS DISTRICT LAW FIRM, APC AND FREDDY GALVEZ''S ANSWER TO PLAINTIFF''S FIRST AMENDED COMPLAINT

4/23/2018: DEFENDANTS DISTRICT LAW FIRM, APC AND FREDDY GALVEZ''S ANSWER TO PLAINTIFF''S FIRST AMENDED COMPLAINT

Proof of Service

8/2/2018: Proof of Service

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL, FURTHER RESPONSES BY DEFENDANT DISTRICT LAW FIRM, APC TO PLAINTIFF CLAUDIA DE LA 0?S FIRST SET OF REQUESTS FOR PRODUCTI

8/2/2018: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL, FURTHER RESPONSES BY DEFENDANT DISTRICT LAW FIRM, APC TO PLAINTIFF CLAUDIA DE LA 0?S FIRST SET OF REQUESTS FOR PRODUCTI

SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF CLAUDIA DE LA O'S MOTION TO COMPEL FURTHER RESPONSES BY DEFENDANT DISTRICT LAW FIRM, APC TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND

8/2/2018: SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF CLAUDIA DE LA O'S MOTION TO COMPEL FURTHER RESPONSES BY DEFENDANT DISTRICT LAW FIRM, APC TO PLAINTIFF'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND

NOTICE OF MOTION TO COMPEL FURTHER RESPONSES BY DEFENDANT DISTRICT LAW FIRM, APC TO PLAINTIFF CLAUDIA DE LA O'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR MONETARY SANCTIONS AGA

8/2/2018: NOTICE OF MOTION TO COMPEL FURTHER RESPONSES BY DEFENDANT DISTRICT LAW FIRM, APC TO PLAINTIFF CLAUDIA DE LA O'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR MONETARY SANCTIONS AGA

DECLARATION OF SAMANTHA L. ORTIZ IN ADVANCE OF POST MEDIATION STATUS CONFERENCE

9/14/2018: DECLARATION OF SAMANTHA L. ORTIZ IN ADVANCE OF POST MEDIATION STATUS CONFERENCE

Minute Order

9/20/2018: Minute Order

DISTRICT LAW FIRM, APC'S NOTICE TO APPEAR AT TRIAL AND PRODUCE DOCUMENTS

9/25/2018: DISTRICT LAW FIRM, APC'S NOTICE TO APPEAR AT TRIAL AND PRODUCE DOCUMENTS

Amendment to Complaint (Fictitious/Incorrect Name)

10/5/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Minute Order

10/9/2018: Minute Order

Witness List

10/10/2018: Witness List

Statement of the Case

10/10/2018: Statement of the Case

Exhibit List

10/10/2018: Exhibit List

Proof of Service by Mail

10/12/2018: Proof of Service by Mail

Exhibit List

10/12/2018: Exhibit List

Jury Instructions

10/12/2018: Jury Instructions

Witness List

10/12/2018: Witness List

59 More Documents Available

 

Docket Entries

  • 06/07/2019
  • at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Hearing on Motion to be Relieved as Counsel ((Res ID; 3267)) - Not Held - Continued - Court's Motion

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  • 06/06/2019
  • at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Hearing on Motion to be Relieved as Counsel ((Res ID6307)) - Not Held - Continued - Court's Motion

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  • 06/06/2019
  • Minute Order ( (Hearing on Motion to be Relieved as Counsel (Res ID: 6307))); Filed by Clerk

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  • 06/05/2019
  • Notice ( of Continued Hearings); Filed by District Law Firm, APC (Defendant); Freddy Galvez (Defendant)

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  • 05/13/2019
  • Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil; Filed by Won Dan Lee (Attorney)

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  • 05/13/2019
  • Motion to Be Relieved as Counsel; Filed by Won Dan Lee (Attorney)

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  • 05/13/2019
  • Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil; Filed by Won Dan Lee (Attorney)

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  • 05/13/2019
  • Motion to Be Relieved as Counsel; Filed by Won Dan Lee (Attorney)

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  • 04/03/2019
  • at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Order to Show Cause Re: Dismissal (Settlement) - Held

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  • 04/03/2019
  • at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Hearing on Motion to Enforce Settlement - Held - Motion Denied

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100 More Docket Entries
  • 06/28/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 06/28/2017
  • Proof-Service/Summons; Filed by Claudia De La O (Plaintiff)

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  • 06/28/2017
  • Proof-Service/Summons; Filed by Claudia De La O (Plaintiff)

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  • 06/22/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 06/22/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 06/22/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/22/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 06/14/2017
  • SUMMONS

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  • 06/14/2017
  • Complaint; Filed by Claudia De La O (Plaintiff)

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  • 06/14/2017
  • COMPLAINT FOR DAMAGES FOR: 1. DISCRIMINATION IN VIOLATION OF GOV'T CODF 1294O ET SEQ.; ETC

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Tentative Rulings

Case Number: BC665190    Hearing Date: July 07, 2020    Dept: 31

Background

On June 14, 2017, Plaintiff Claudia De La O filed the instant action against Defendants District Law Firm, APC; Freddy Galvez; and Does 1 through 20. The First Amended Complaint (“FAC”), filed on September 8, 2017, asserts causes of action for:

  1. Discrimination in Violation of Gov’t Code §§ 12940 et seq.;

  2. Harassment in Violation of Gov’t Code §§ 12940 et seq;

  3. Retaliation in Violation of Gov’t Code §§ 12940 et seq;

  4. Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of Gov’t Code § 12940(k);

  5. Hostile Work Environment in Violation of Gov’t Code §§ 12940 et seq.;

  6. Retaliation in Violation of Labor Code §§ 98.6 and 1102.5;

  7. Wrongful Termination in Violation of Public Policy;

  8. Battery;

  9. Assault

  10. Sexual Battery in Violation of Civil Code § 1708.5;

  11. Violation of the Ralph Civil Rights Act (Civil Code § 51.7);

  12. Violation of the Tom Bane Civil Rights Act (Civil Code § 52.1);

  13. Gender Violence;

  14. Intentional Infliction of Emotional Distress;

  15. Negligent Supervision Retention;

  16. Failure to Pay Wages (Cal. Labor Code §§ 201, 226.7);

  17. Failure to Provide Rest Periods (Cal. Labor Code §§ 226.7);

  18. Failure to Furnish Accurate Wage and Hour Statements (Cal. Labor Code §§ 226 et seq.);

  19. Waiting Time Penalties (Cal. Labor Code §§ 201-203);

  20. Failure to Permit Inspection of Personnel and Payroll Records (Cal. Labor Code § 1198.5); and

  21. Unfair Competition (Bus. & Prof. Code § 17200 et seq.).

    On December 11, 2017, Plaintiff dismissed the sixth and ninth causes of action and the Court sustained the demurrer to the thirteen cause of action as to Defendant the District Law Firm without leave to amend. On December 26, 2017, Plaintiff dismissed the fifteenth cause of action without prejudice.

    On October 5, 2018, Plaintiff filed an Amendment to Complaint (Fictitious/Incorrect Name) substituting Le’Roy Travelle Roberson (“Roberson”) for Doe 1. On August 5, 2019, the Court received an additional Amendment to Complaint (Fictitious/Incorrect Name) substituting Resolve Law Firm (“Resolve”) for Doe 2. On September 30, 2019, the Court granted Plaintiff’s motion to strike Defendant District Law Firm APC’s Answer filed on April 23, 2018. On November 14, 2019, default was entered as to Defendant District Law Firm APC.

    Defendants Roberson and Resolve (hereinafter “Defendants”) demur to the entire FAC arguing that it fails to allege facts sufficient to state causes of action against them.

    Legal Standard on Motion for Judgment on the Pleadings 

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) When considering demurrers and judgment on the pleadings, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) 

Legal Standard on Motion to Strike 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

Request for Judicial Notice 

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)  

Defendants request that the Court take judicial notice of the following documents: 

  1. The DFEH Complaint filed by Plaintiff on January 28, 2016;

  2. The original Complaint filed in this action on June 14, 2017; and

  3. The December 11, 2017 Order re: Demurrer filed in this action. 

The request is GRANTED.

Discussion

The Court notes at the outset that Defendants seek to demur to the FAC. Pursuant to Code of Civil Procedure section 430.40, a demurrer must be filed within 30 days after service of the complaint. The Proofs of Service filed in this action indicate that Defendants were served with the FAC on September 24, 2019. Accordingly, the instant demurrers are untimely. 

Nevertheless, pursuant to Section 438, Defendants may make a motion for judgment on the pleadings, which functions as a general demurrer, after the time to demur has expired and an answer has been filed. Accordingly, the Court construes in the instant motions as motions for judgment on the pleadings. 

Statute of Limitations 

A general demurrer may lie “where plaintiff has included allegations that clearly disclose some defense or bar to recovery.” (Edmon & Karnow, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 7:49.) As a result, “[w]here the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies. . . . The running of the statute must appear “clearly and affirmatively” from the face of the complaint. It is not enough that the complaint might be time-barred.” (Id. at ¶ 7:50; Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) 

Defendants move for judgment on the pleadings as to the entire FAC arguing that each of Plaintiff’s claims are time-barred. Defendants assert that the claims against Resolve cannot possibly relate back to the original filing to the Complaint based on the naming of Doe Defendants because Resolve was not even in existence at the time the Complaint was filed. As to Defendant Roberson, Defendants contend that the claims do not relate back to the filing of the Complaint based on the Doe amendments because Plaintiff knew when she filed the Complaint that Roberson was the owner of District Law Firm but failed to name him for over 4 years. Defendants argue that accordingly, Plaintiff failed to comply with the rules for Doe amendments, which required that she did not know Roberson’s identity at the time and required her to amend as soon as she ascertained his identity. 

Defendants further assert that nothing in the complaint or FAC put Defendants on notice of any purported wrongdoing on their part. Defendants contend that accordingly, it would be unjust to require them to defend themselves now, more than 4 years after the allegedly wrongful conduct occurred. 

The Court finds that Defendants’ arguments that the FAC is time-barred are unpersuasive on a motion for judgment on the pleadings. As noted above, a general demurrer may lie where a plaintiff has included allegations that clearly disclose some defense or bar to recovery and where the dates alleged in the complaint show the running of the statute “clearly and affirmatively.” Here, Defendants rely on facts and/or evidence outside of the FAC and judicially noticed documents to argue that Plaintiff knew Roberson’s identity when she filed the Complaint and that Resolve was not in existence at the time the Complaint was filed. Such reliance on outside evidence is inappropriate on a motion for judgment on the pleadings where the Court tests the sufficiency of the pleadings alone. 

Based on the foregoing, Defendants’ motion for judgment on the pleadings on this ground is DENIED. 

Alter-Ego Liability 

“In general, the two requirements for applying the alter ego doctrine are that (1) there is such a unity of interest and ownership between the corporation and the individual or organization controlling it that their separate personalities no longer exist, and (2) failure to disregard the corporate entity would sanction a fraud or promote injustice.” (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 993.)

In Rutherford Holdings, LLC v. Plaza Del Rey, the Court of Appeal held the following was sufficient to allege alter ego liability:

Rutherford alleged that Caswell dominated and controlled PDR; that a unity of interest and ownership existed between Caswell and PDR; that PDR was a mere shell and conduit for Caswell's affairs; that PDR was inadequately capitalized; that PDR failed to abide by the formalities of corporate existence; that Caswell used PDR assets as her own; and that recognizing the separate existence of PDR would promote injustice. These allegations mirror those held to pass muster in First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 915–916, 73 Cal.Rptr. 657. As in First Western, “[a]ssuming these facts can be proved, [Caswell] ... may be held liable ... under the alter ego principle.” (Id. at p. 916, 73 Cal.Rptr. 657.)

Defendants argue that Rutherford failed to allege specific facts to support an alter ego theory, but Rutherford was required to allege only “ultimate rather than evidentiary facts.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, 67 Cal.Rptr.3d 330, 169 P.3d 559.) Moreover, the “less particularity [of pleading] is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff,” which certainly is the case here. (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 474, 20 Cal.Rptr. 609, 370 P.2d 313.) Therefore, we affirm the trial court's ruling that Rutherford sufficiently pled an alter ego theory of liability.

(Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 235-36.)

Defendants next move for judgment on the pleadings as to the entirety of the FAC arguing that Plaintiff has not and cannot sufficiently allege alter ego liability. Defendants assert that the to the extent Plaintiff intends to assert any of the above causes of action against Defendants as alter egos of District Law Firm, Plaintiff has not pled, nor can she plead that (1) Defendants used District Law Firm to perpetrate fraud or some other wrong; or (2) that fraud or injustice will occur if Defendants are not deemed an alter ego of District Law Firm. Defendants contend that although the FAC contains certain conclusory allegations regarding District Law Firm and the Doe Defendants, it does not contain any actual facts supporting a finding that Defendants are alter egos of District Law Firm.

In opposition, Plaintiff argues that the FAC sufficiently alleges alter ego liability.

The Court finds that Plaintiff has sufficiently alleged alter ego liability. Contrary to Defendants’ arguments otherwise, Plaintiff is required to allege only ultimate facts rather than evidentiary facts. Moreover, less particularity is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by plaintiff. Here, the allegations in the FAC sufficiently allege that there is such a unity of interest and ownership between the corporation and the individual or organization controlling it that their separate personalities no longer exist, and a failure to disregard the corporate entity would sanction a fraud or promote injustice. (FAC ¶ 12-16.)

Based on the foregoing, Defendants’ motion for judgment on the pleadings is DENIED on this ground.

Successor Liability

“‘The general rule of successor nonliability provides that where a corporation purchases, or otherwise acquires by transfer, the assets of another corporation, the acquiring corporation does not assume the selling corporation's debts and liabilities.’ [Citation.] However, in Ray v. Alad Corp. (1977) 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3, the Supreme Court noted four exceptions to this rule: When “(1) there is an express or implied agreement of assumption, (2) the transaction amounts to a consolidation or merger of the two corporations, (3) the purchasing corporation is a mere continuation of the seller, or (4) the transfer of assets to the purchaser is for the fraudulent purpose of escaping liability for the seller's debts.” [Citation.]” (Daniell v. Riverside Partners I, L.P. (2012) 206 Cal.App.4th 1292, 1300-1301.)

Defendants also move for judgment on the pleadings as to the FAC arguing that Plaintiff has not and cannot sufficiently allege successor liability. Defendants assert that to the extent Plaintiff intends to assert some sort of successor liability against Resolve, Plaintiff would have to plead and prove that Resolve was created with a fraudulent intent to avoid financial obligations, which it cannot do. Defendants contend that Resolve is a completely separate entity with separate corporate documents, separate accounts, a separate office, separate branding, and a new marketing team and staff. (Roberson Decl. ¶ 10.) Defendants argue that accordingly, Resolve should not be named on any of the causes of action alleged in the FAC.

In opposition, Plaintiff argues that she has sufficiently alleged successor liability.

The Court finds that Plaintiff has sufficiently alleged successor liability. Again, Plaintiff is not required to allege evidentiary facts, only ultimate facts. Here, the FAC alleges that “(1) there is an express or implied agreement of assumption pursuant to which DOES 1-20 agreed to be liable for the debts of DISTRICT LAW; (2) the transaction between DOES 1-20 and DISTRICT LAW amounts to a consolidation or merger of the two corporations, (3) DOES 1-20 is a mere continuation of DISTRICT LAW, or (4) the transfer of assets to DOES 1-20 is for the fraudulent purpose of escaping liability for DISTRICT LAW’s debts. Accordingly, DOES 1-20 are the successors of DISTRICT LAW, and are liable on that basis.” (FAC ¶ 15.)

Based on the foregoing, Defendants’ motion for judgment on the pleadings on this ground is DENIED.

First through Fifth and Seventh Causes of Action under the FEHA  

Exhaustion of Administrative Remedies

“[I]n the context of the FEHA, exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts: “Under California law ‘an employee must exhaust the ... administrative remedy' provided by the Fair Employment and Housing Act, by filing an administrative complaint with the [DFEH] [citation] and obtaining the DFEH's notice of right to sue [citation], ‘before bringing suit on a cause of action under the act or seeking the relief provided therein ....’ [Citations.].” (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.)

“In order to bring a civil lawsuit under the FEHA, the defendants must have been named in the caption or body of the DFEH charge.” (Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 1515.) “[A] plaintiff is barred from suing . . . individual defendants for fail[ing] to name them in the DFEH charge.” (Id. at 1515.)

However, “federal authorities [do not] take[] the hard line . . . that only a party named in the caption of the administrative complaint may be sued, regardless of any other circumstances. The reasons are apparent. (1) The function of an administrative complaint is to provide the basis for an investigation into an employee's claim of discrimination against an employer, and not to limit access to the courts. A strict rule would harm victims of discrimination without providing legitimate protection to individuals who are made aware of the charges through the administrative proceeding. If they are described in the charge as the perpetrators of the harm, they can certainly anticipate they will be named as parties in any ensuing lawsuit.” (Martin v. Fisher (1992) 11 Cal.App.4th 118, 122.)

Defendants move for judgment on the pleadings as to the first through fifth and seventh causes of action under FEHA first arguing that Plaintiff failed to exhaust her administrative remedies with respect to these claims, as Plaintiff failed to file a complaint with DFEH that named Roberson or Resolve in either the caption of the body of the complaint.

In opposition, Plaintiff argues that she adequately named Defendants in her DFEH complaint. As to Defendant Resolve, Plaintiff asserts that her claim of alter ego liability did not exist until Resolve’s creation and the default of District Law.

The Court finds that at this point in the procedural posture of the case, Plaintiff has alleged facts sufficient to allege exhaustion of administrative remedies. As noted above, the purpose of an administrative complaint is to provide the basis for an investigation into an employee’s claim of discrimination against an employer, and not to limit access to the courts. While Defendants were not explicitly named in the DFEH complaint, Plaintiff’s FEHA causes of action are alleged against Defendants as alter-egos and/or successors in interest of District Law Firm. Accordingly, at this stage in the litigation, the Court finds that the naming of District Law Firm in the DFEH complaint is sufficient to allege exhaustion of administrative remedies.

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the first through fifth and seventh causes of action is DENIED on this ground.

Adverse Employment Action & Personal Liability

“[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) Thus, in determining whether there was an adverse employment action to show discrimination or retaliation, courts look at the totality of circumstances and not just at each isolated act. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1055 (“we need not and do not decide whether each alleged retaliatory act constitutes an adverse employment action in and of itself.”); see also Horsford v. Board Of Trustees Of California State Etc. (2005) 132 Cal.App.4th 359, 374; Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1231, disapproved on other grounds by Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1174.)

Adverse employment actions can include demotions, reassignments, refusals to promote, unwarranted evaluations, tolerating harassment by coworkers, reprimands and suspensions. (Yanowitz, supra, 36 Cal.4th at 1061.) “Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of . . . [the FEHA].” (Id. at 1054-1055.) However, “a hostile work environment can constitute [an] . . . adverse employment action.” (Id. at 1053, fn. 12.)

Defendants next move for judgment on the pleadings as to the first through fifth and seventh causes of action under FEHA arguing that despite Plaintiff’s false allegations in the FAC claiming otherwise, Plaintiff is well aware that she was terminated for a legitimate business reason: failing to show up to work for multiple consecutive days. (Roberson Decl. ¶ 2.)

Defendants also argue, without citation to any binding authority, that there is no personal liability for violations of FEHA.

The Court finds that Plaintiff has sufficiently alleged an adverse employment action and, in fact, Defendants concede this only arguing that Plaintiff’s allegation is false. Moreover, as to Defendants’ argument regarding personal liability, “[a]ssertions unsupported by legal authority are presumed to lack merit. (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635; In Re Marriage of Nichols (1994) 27 Cal.App.4th 661, 673; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807.)

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the first through fifth and seventh causes of action is DENIED on these ground. 

Eighth, Tenth, Eleventh, Twelfth, and Fourteenth Causes of Action for Torts 

Respondeat Superior 

“The respondeat superior doctrine makes an employer vicariously liable for torts of its employee committed within the ‘scope of the employment.’ [Citation.]” (Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 8.) “The respondeat superior doctrine, however, applies only if the plaintiff can prove that the employee committed the tortious conduct ‘within the scope of employment.’ [Citation.]” (Id. at 9.) “Whether the tort occurred within the scope of employment is a question of fact, unless the facts are undisputed. [Citation.]” (Id.

Defendants move for judgment on the pleadings as to the eighth, tenth, eleventh, and fourteenth causes of action arguing that they fail to state any facts supporting any of these causes of action against Defendants. Defendants assert that instead, each of the claims related solely to alleged conduct by Defendant Galvez. Defendants contend that to the extent Plaintiff intends to assert these claims against Defendants as her employer, her employer was District Law Firm. Defendants argue that further, even if either was her employer, there is no employer liability for conduct that occurs that is outside the scope of employment and the alleged sexual harassment was outside the scope of employment. 

The Court finds that Plaintiff has alleged theories of liability sufficient to state causes of action against Defendants. As noted above, Plaintiff sufficiently alleges theories of liability based on Defendants’ status as alter egos and/or successors in interest of District Law Firm, who is alleged to be Plaintiff’s employer. Moreover, whether a tort occurred within the scope of employment is a question of fact inappropriate for determination on a motion for judgment on the pleadings. 

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the eighth, tenth, eleventh, and fourteenth causes of action is DENIED on this ground. 

Sixteenth, Seventeenth, Eighteenth, Nineteenth, and Twentieth Causes of Action under the Labor Code

 

Defendants move for judgment on the pleadings to the sixteenth, seventeenth, eighteenth, nineteenth, and twentieth causes of action under the Labor Code arguing, without citation to any authority, that each cause of action fails to state sufficient facts to constitute a cause of action against Roberson because there is no personal liability under the Labor Code unless the individual personally caused the Labor Code violations to occur. Defendants assert that further, there can be no liability against Resolve because Resolve was never Plaintiff’s employer. 

The Court finds that Plaintiff has sufficiently alleged causes of action under the Labor Code against Defendants. Again, [a]ssertions unsupported by legal authority are presumed to lack merit. (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635; In Re Marriage of Nichols (1994) 27 Cal.App.4th 661, 673; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807.) Moreover, as noted above, Plaintiff has sufficiently alleged theories of liability based on Defendants’ status as alter egos and/or successors in interest of District Law Firm, who is alleged to be Plaintiff’s employer. 

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the sixteenth, seventeenth, eighteenth, nineteenth, and twentieth causes of action is DENIED on this ground. 

Thirteenth Cause of Action for Gender Violence 

Pursuant to Civil Code section 52.4, “gender violence is a form of sex discrimination and means either of the following: (1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction. (2) A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.” “Notwithstanding any other laws that may establish the liability of an employer for the acts of an employee, this section does not establish any civil liability of a person because of his or her status as an employer, unless the employer personally committed an act of gender violence.” (Civil Code § 52.4(e).) 

Defendants move for judgment on the pleadings as to the thirteenth cause of action arguing that not only does the FAC fail to state any facts that would support a finding of personal liability against Roberson, the Court previously sustained District Law Firm’s demurrer to this cause of action on the basis that the statute itself precludes holding an employer responsible for an employee’s conduct. 

The Court finds that Plaintiff has not and cannot state a cause of action for gender violence against Defendants. As previously held by this Court, pursuant to Section 52.4(e), an employer may not be held liable for the acts of an employee unless the employer personally committed an act of gender violence. Here, the only theories of liability alleged against Defendants are based on their status as alter egos and/or successors in interest of District Law Firm, who is alleged to be Plaintiff’s employer. 

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the thirteenth cause of action is GRANTED without leave to amend. 

Twenty-First Cause of Action 

California Business and Professions Code section 17200 prohibits “any unlawful, unfair or fraudulent business act or practice.” (Cal. Bus. & Prof. Code § 17200; see Clark v. Superior Court (2010) 50 Cal.4th 605, 610.) “An unlawful business practice or act is an act or practice, committed pursuant to business activity that is at the same time forbidden by law.” (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969.) If a business practice is alleged to be “unlawful, then the complaint “must state facts supporting the statutory elements of the alleged violation.” (See G.H.I.I. v. MTS (1983) 147 Cal.App.3d 256 (allegations of secret rebates, locality discrimination, sale below cost, and loss leaders; complaint was sufficient); Khoury v. Maly’s of Calif. (1993) 14 Cal.App.4th 612, 619 (citing 5 Witkin, Cal. Procedure (5th ed. 2008), Pleading, § 779, p. 196 stating “demurrer was properly sustained; complaint identified no particular statutory section that was violated and failed to describe with reasonable particularity facts supporting violation . . .”).) 

Defendants finally move for judgment on the pleadings as to the twenty-first cause of action arguing that the FAC contains only conclusory allegations. 

The Court finds that Plaintiff has stated facts sufficient to state a cause of action for unfair competition against Defendants. Contrary to Defendants’ contentions otherwise, the FAC sufficiently pleads facts to allege violations of the Labor Code and Government Code such that Plaintiff has sufficiently alleged “unlawful” business acts or practices. 

Based on the foregoing, Defendants’ motion on the pleadings as to the twenty-first cause of action is DENIED. 

Motion to Strike 

Defendants move to strike allegations in the FAC relating to alter ego liability, successor liability, and joint employer liability arguing that such allegations are false and improper. 

In opposition, Plaintiff argues that she has sufficiently alleged alter ego liability and successor liability.  

The Court finds that the allegations related to alter ego liability, successor liability, and joint employer liability are not improper and Defendants have not provided any evidence that the allegations are false. Moreover, any attempt Defendants would have made to prove that the subject allegation are false would require the Court to essentially adjudicate the entire issue of liability based on those theories. Such a determination is inappropriate on a motion to strike. 

Based on the foregoing, Defendants’ motion to strike to DENIED in its entirety. 

Conclusion 

Defendants’ motion for judgment on the pleadings as to the thirteenth cause of action is GRANTED without leave to amend. Defendants’ motion for judgment on the pleadings as to the remainder of the FAC is DENIED. Defendants’ motion to strike is DENIED in its entirety. 

The parties are strongly encouraged to attend all scheduled hearings via telephone or CourtCall. All social distancing protocols will be enforced within the Courthouse and in the courtrooms. 

Moving parties to give notice.

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