This case was last updated from Los Angeles County Superior Courts on 12/15/2019 at 10:16:54 (UTC).

HECTOR ALBERT DIAZ VS LLP PRODUCTION SERVICES INC

Case Summary

On 02/07/2018 HECTOR ALBERT DIAZ filed a Labor - Other Labor lawsuit against LLP PRODUCTION SERVICES INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RICHARD E. RICO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3224

  • Filing Date:

    02/07/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RICHARD E. RICO

 

Party Details

Plaintiffs and Petitioners

DIAZ HECTOR ALBERT

CASTILLO KEVIN

Defendants and Respondents

DOES 1 THROUGH 99

LLP PRODUCTION SERVICES INC.

PREMIERE PAYROLL INC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

ROMERO LAW APC

ROMERO ALAN JAMES ESQ.

Defendant and Respondent Attorneys

LISA E. AGUIAR

AGUIAR LISA E.

AGUIAR LISA EILEEN ESQ.

 

Court Documents

Notice of Ruling

7/9/2019: Notice of Ruling

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

5/31/2019: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

Minute Order - MINUTE ORDER (STATUS CONFERENCE)

4/9/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE)

Request for Dismissal

2/26/2019: Request for Dismissal

Minute Order - Minute Order (Nunc Pro Tunc Order)

2/5/2019: Minute Order - Minute Order (Nunc Pro Tunc Order)

CASE MANAGEMENT STATEMENT -

7/24/2018: CASE MANAGEMENT STATEMENT -

Notice and Acknowledgment of Receipt

12/20/2018: Notice and Acknowledgment of Receipt

Case Management Statement

10/22/2018: Case Management Statement

JOINT STIPULATION TO CONSOLIDATE RELATED CASES, ETC

9/4/2018: JOINT STIPULATION TO CONSOLIDATE RELATED CASES, ETC

Minute Order -

8/6/2018: Minute Order -

Minute Order -

6/20/2018: Minute Order -

NOTICE OF ENTRY OF JUDGMENT OR ORDER

6/27/2018: NOTICE OF ENTRY OF JUDGMENT OR ORDER

Minute Order -

5/7/2018: Minute Order -

NOTICE OF RELATED CASE

5/8/2018: NOTICE OF RELATED CASE

NOTICE OF ENTRY OF JUDGMENT OR ORDER

4/18/2018: NOTICE OF ENTRY OF JUDGMENT OR ORDER

CASE MANAGEMENT STATEMENT -

4/20/2018: CASE MANAGEMENT STATEMENT -

DEFENDANT LLP PRODUCTION SERVICES, INC.'S ANSWER TO COMPLAINT

4/2/2018: DEFENDANT LLP PRODUCTION SERVICES, INC.'S ANSWER TO COMPLAINT

27 More Documents Available

 

Docket Entries

  • 01/13/2020
  • Hearing01/13/2020 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 10/16/2019
  • Docketat 08:30 AM in Department 17, Richard E. Rico, Presiding; Status Conference - Held - Continued

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  • 10/16/2019
  • DocketMinute Order ( (Status Conference)); Filed by Clerk

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  • 08/13/2019
  • DocketNotice of Ruling; Filed by LLP Production Services, Inc. (Defendant)

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  • 08/07/2019
  • Docketat 08:30 AM in Department 17, Richard E. Rico, Presiding; Order to Show Cause Re: (representation of Defendant) - Held - Continued

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  • 08/07/2019
  • DocketMinute Order ( (Order to Show Cause Re: representation of Defendant)); Filed by Clerk

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  • 07/11/2019
  • Docketat 08:30 AM in Department 17, Richard E. Rico, Presiding; Hearing on Motion to be Relieved as Counsel - Not Held - Rescheduled by Party

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  • 07/09/2019
  • Docketat 08:30 AM in Department 17, Richard E. Rico, Presiding; Order to Show Cause Re: (representation of Defendant) - Held - Continued

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  • 07/09/2019
  • Docketat 08:30 AM in Department 17, Richard E. Rico, Presiding; Status Conference - Held

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  • 07/09/2019
  • DocketNotice of Ruling; Filed by Hector Albert Diaz (Plaintiff)

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48 More Docket Entries
  • 04/11/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/11/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE.

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  • 04/02/2018
  • DocketDEFENDANT LLP PRODUCTION SERVICES, INC.'S ANSWER TO COMPLAINT

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  • 04/02/2018
  • DocketAnswer; Filed by LLP Production Services, Inc. (Defendant)

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  • 02/28/2018
  • DocketProof-Service/Summons; Filed by Hector Albert Diaz (Plaintiff)

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  • 02/28/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 02/07/2018
  • DocketComplaint; Filed by Hector Albert Diaz (Plaintiff)

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  • 02/07/2018
  • DocketSUMMONS

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  • 02/07/2018
  • DocketUNLIMITED COMPLAINT FOR DAMAGES (1) FAILURE TO PAY ALL WAGES DUE, INCLUDING MINIMUM WAGE AND OVERTIME (LABOR CODE 510, 1194. 1194.2);ETC

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  • 02/07/2018
  • DocketCIVIL DEPOSIT

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Tentative Rulings

Case Number: BC693224    Hearing Date: September 28, 2020    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

HECTOR ALBERT DIAZ, et al.

vs.

LLP PRODUCTION SERVICES, INC., et al.

Case No.: BC693224

(Consolidated with BC703531)

Hearing Date: September 28, 2020

Defendant Brian Gordon’s Demurrer to Plaintiff Hector Diaz’s Complaint is OVERRULED as to the sixth, seventh, and ninth causes of action and SUSTAINED without leave to amend as to the tenth and eleventh causes of action.

Defendant Brian Gordon’s Demurrer to Plaintiff Kevin Castillo’s Complaint is OVERRULED as to the sixth, seventh, and ninth causes of action and SUSTAINED without leave to amend as to the tenth and eleventh causes of action.[1]

Background

On February 7, 2018, Plaintiff Hector Albert Diaz (“Diaz”) filed a complaint against Defendant LLP Production Services, Inc. in this action (BC693224) for (1) failure to pay all wages due, including minimum wage and overtime (Labor Code §§ 510, 1194, 1194.2); (2) failure to provide meal and rest periods (Labor Code § 226.7); (3) waiting time penalties (Labor Code §§ 201, 203); (4) failure to provide accurate wage statements (Labor Code § 226); (5) conversion; (6) discharge in violation of public policy (Tameny Claim); (7) unlawful retaliation: Labor Code § 1102.5; (8) unlawful retaliation: Labor Code § 98.6; (9) unlawful retaliation: Government Code § 12940(h) (FEHA); (10) intentional infliction of emotional distress; (11) negligent infliction of emotional distress; and (12) California Private Attorney General Act (“PAGA”).

On April 24, 2018, Plaintiff Kevin Castillo (“Castillo”) filed a complaint against Defendant LLP Production Services, Inc. in BC703521 for (1) failure to pay all wages due, including minimum wage and overtime (Labor Code §§ 510, 1194, 1194.2); (2) failure to provide meal and rest periods (Labor Code § 226.7); (3) waiting time penalties (Labor Code §§ 201, 203); (4) failure to provide accurate wage statements (Labor Code § 226); (5) conversion; (6) discharge in violation of public policy (Tameny Claim); (7) unlawful retaliation: Labor Code § 1102.5; (8) unlawful retaliation: Labor Code § 98.6; (9) unlawful retaliation: Government Code § 12940(h) (FEHA); (10) intentional infliction of emotional distress; (11) negligent infliction of emotional distress; and (12) California Private Attorney General Act (“PAGA”).

On June 20, 2018, the Court found BC693224 and BC703521 were related.

On September 4, 2018, pursuant to the parties’ joint stipulation, BC693224 and BC703521 were consolidated for all purposes, with BC693224 as the lead case. The parties further stipulated to designating Plaintiff Diaz as the PAGA representative for all purposes and dismissing Plaintiff Castillo’s PAGA claims with prejudice.

On May 12, 2020, Plaintiffs Diaz and Castillo filed amendments to the complaint, substituting in Brian Gordon (“Gordon”) for Doe 1.

On June 12, 2020, dismissal was entered as to Gordon on the first, second, third, fourth, fifth, eighth, and twelfth causes of action in the complaints filed by Plaintiff Diaz.

On June 17, 2020, dismissal was entered as to Gordon on the first, second, third, fourth, fifth, eighth, and twelfth causes of action in the complaints filed by Plaintiff Castillo.

On June 19, 2020, Defendant Gordon filed demurrers to Plaintiffs’ complaints. Plaintiffs filed oppositions on September 15, 2020. Defendant filed a reply on September 21, 2020.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.) 

Evidentiary Objections

Defendant Gordon has filed evidentiary objections to the declarations of attorney Alan Romero filed in support of the oppositions to the demurrers. As a demurrer is confined to the face of the pleading and any judicially noticed documents, the statements made in the declaration are irrelevant for the purposes of a demurrer. Therefore, the Court declines to rule on Defendant’s evidentiary objections.

Discussion

Defendant Gordon demurs to the remaining causes of action asserted against him in Plaintiff Diaz and Plaintiff Castillo’s complaints: the sixth cause of action for discharge in violation of public policy (Tameny claim), the seventh cause of action for unlawful retaliation: Labor Code section 1102.5, the ninth cause of action for unlawful retaliation: Government Code section 12940(h) (FEHA), the tenth cause of action for intentional infliction of emotional distress, and the eleventh cause of action for negligent infliction of emotional distress.[2][3]

Statute of Limitations/Improper Doe Amendment

Defendant argues the sixth, seventh, ninth, tenth, and eleventh causes of action are barred by the statute of limitations because the Doe amendment does not relate back to the original complaints as Plaintiffs were not ignorant of Defendant or his alleged involvement. The issue is thus whether the complaints disclose that the Doe amendments substituting Defendant in for Doe 1 were improper.

CCP section 474 “allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.” (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943.) Whether the plaintiff had knowledge of sufficient facts at the time of filing is generally a question of fact. (See id. at 945.)

Here, as pled in Plaintiffs’ complaints, Gordon was the plant manager and Plaintiffs’ supervisor. (Diaz Complaint, ¶¶ 14, 24, Ex. 1, DFEH Complaint, p. 6; Castillo Complaint, ¶¶ 14, 24, 33, Ex. 1, DFEH Complaint, p. 6.)

Regarding Plaintiff Diaz, Gordon allegedly told Diaz that his duties in walking around the parking lot to clear electrical wires or any property that was left behind constituted a break and that, as Diaz did not do anything during his shifts, he should not receive formal breaks. (Diaz Complaint, ¶ 24.) Diaz alleges Gordon told him and two other employees that if they wanted their lunch break, they would “have to come in 30 minutes earlier” and when Diaz complained about not receiving his lunch breaks, Gordon allegedly told another supervisor that Diaz would be fired if he continued to take lunch breaks. (Id., ¶ 31.) When Diaz met with Gordon and an accountant on May 1, 2017 and presented California law regarding meal and rest periods as they apply to employees, Diaz was allegedly told to change his timecard so that it would indicate that he took a meal period. (Id., ¶ 32.) When Diaz refused and told Gordon he was going to hire an attorney, Gordon asked Diaz to leave and voluntarily resign. (Id.) Diaz refused to leave and was terminated on May 2, 2017. (Id., ¶¶ 32-35.)

Regarding Plaintiff Castillo, Gordon also allegedly told Castillo that his duties in walking around the parking lot to clear electrical wires or any property that was left behind constituted a break and that, as Castillo did not do anything during his shifts, he should not receive formal breaks. (Castillo Complaint, ¶ 24.) Castillo alleges that he complained about not having breaks to Gordon and was told that Castillo was prohibited from taking certain meal and rest periods because there was nobody that could cover for him. (Id., ¶ 33.) Castillo alleges that Gordon gave him the ongoing order to forge entries on his timecards to reflect that he was taking uninterrupted meal and rest periods as afforded by California law. (Id., ¶ 37.) Castillo alleges that on the Friday prior to his termination, he disconnected a camera in the guard shack while attempting to take an uninterrupted lunch break and reconnected the camera promptly after the end of the lunch break. (Id., ¶ 41.) Gordon allegedly confronted Castillo over the weekend regarding the camera disconnection and Castillo was admonished that he was not allowed to touch the cameras and that no one was allowed to touch the cameras. (Id.) Castillo alleges that on the following Sunday, he again disconnected the camera during his lunch break and promptly reconnected it. (Id., ¶ 42.) On the following Tuesday, as soon as Castillo arrived at work, Gordon had Castillo’s final check ready and informed Castillo that his employment with Defendants had been terminated. (Id., ¶ 43.)

Thus, whether the Doe amendments were proper depends on whether Gordon could have been held liable for Plaintiffs’ claims based on these allegations at the time of the filing of the complaints.

1. Sixth Cause of Action for Discharge in Violation of Public Policy and Ninth Cause of Action for Unlawful Retaliation: Government Code section 12940(h) (FEHA)

Both causes of action for discharge in violation of public policy and FEHA retaliation require an employer-employee relationship. (See Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234-35 (stating one of the elements of a claim for wrongful discharge in violation of public policy is the existence of an employer-employee relationship); Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (stating that the plaintiff must show the employer subjected the plaintiff to an adverse employment action).) Courts have specifically held that while an employer is liable for retaliation, non-employer individuals are not personally liable for their participation in retaliation. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173.) An individual supervisor also may not be sued for wrongful discharge in violation of public policy. (Reno v. Baird (1998) 18 Cal.4th 640, 664; see also Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, 330.)

As pled, Gordon was the plant manager and Plaintiffs’ supervisor, not Plaintiffs’ employer. Based on these allegations, Gordon could not have been held liable for discharge in violation of public policy and unlawful retaliation under FEHA. Rather, Gordon can only be held liable for these claims under his current alleged status as Plaintiffs’ employer pursuant to the Doe allegations and amendment. (Diaz Complaint, ¶¶, 8, 20, 72-73, 89; Castillo Complaint, ¶¶ 8, 20, 79-80, 96.) The Court thus cannot determine at this stage that Plaintiffs had sufficient knowledge of the facts pertaining to Gordon’s liability for these claims at the time of the filing of the complaints. It thus cannot be determined at this time that the Doe amendments were improper and that the relation back doctrine does not apply such that the sixth and ninth causes of action are barred by the statute of limitations.

Accordingly, the demurrers to the sixth and ninth causes of action are OVERRULED on this ground.

2. Seventh Cause of Action for Unlawful Retaliation: Labor Code Section 1102.5

Plaintiffs’ Labor Code section 1102.5 claims are based on subsection (b), which provides “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. (Lab. Code, § 1102.5(b).) While section 1102.5(b) prohibits “any person acting on behalf of the employer” from retaliating, it is unclear whether an individual employee may be held liable for such a violation. On this point, the district court in Toranto v. Jaffurs (S.D. Cal. 2018) 297 F.Supp.3d 1073, 1105 found the following:

No California court has addressed the issue of individual liability since the amendment to the language. All district courts, but one, that have addressed the issue have found no individual liability. See Tillery v. Lollis, 2015 WL 4873111 (E.D. Cal. 2015) (Looking to California Supreme Court discussion of language similar to the language of section 1102.5 and finding no individual liability); Vera v. Con-way Freight, Inc., 2015 WL 1546178 (C.D. Cal. 2015) (Finding the “statutory text, structure and legislative history all indicate that only employers—no individual employees—are liable for violations of the statute.”)[;] Conner v. Aviation Services of Chevron, U.S.A., 2014 WL 5768727 (N.D. Cal. 2014) (Finding the plaintiff failed to point to any language establishing individual liability and that section 1104 of the Labor Code expressly stated, in all prosecutions under the pertinent chapter, employers are responsible for acts of its manager, officers, agents and employees.). While the court in De La Torre v. Progress Rail Servs. Corp., 2015 WL 4607730 (C.D. Cal. 2015) found the language ambiguous, it made no determination as to whether the statute permitted individual liability when it remanded the action to state court.

(Id.) In finding no individual liability under section 1102.5, the district court was persuaded by the district courts’ distillation of the statutory language. (Id.)

While not binding, the Court finds Toranto and the district court cases examined by Toranto to be persuasive. The Court thus finds an individual employee cannot be held liable for violation of Labor Code section 1102.5. As Gordon could not have been held liable as an individual employee, it cannot be determined at this time that Plaintiffs had sufficient knowledge of the facts pertaining to Gordon’s liability for this claim at the time of filing of the complaints; that the Doe amendments were improper; and that the relation back doctrine does not apply such that the seventh cause of action is barred by the statute of limitations.

Accordingly, the demurrers to the seventh cause of action are OVERRULED on this ground.

3. Tenth Cause of Action for Intentional Infliction of Emotional Distress and Eleventh Cause of Action for Negligent Infliction of Emotional Distress

The gravamen of both the IIED and NIED claims as asserted by Plaintiffs in their respective complaints is that Plaintiffs suffered severe emotional distress because they were deprived of their legally authorized breaks. (Diaz Complaint, ¶¶ 106, 108, 124; Castillo Complaint, ¶¶ 113, 115, 131.) As pled, it was Gordon who told them they could not have breaks. (Diaz Complaint, ¶¶ 24, 31, 98, 103, 120; Castillo Complaint, ¶¶ 24, 33, 105, 110, 127.) These facts were sufficient for Plaintiffs to hold Gordon liable for these causes of action at the time of the filing of the complaints. Plaintiffs have thus failed to satisfy section 474 requirements and the Doe amendments were improper. As the Doe amendments were improper, the relation back doctrine does not apply to these claims. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176 (stating that substitution under CCP section 474 is an exception to the general rule that “an amended complaint that adds a new defendant does not relate back to the date of the filing of the original complaint”).)

The statute of limitations for both IIED and NIED is two years. (Code Civ. Proc., § 335.1.) While the complaints do not specifically plead when Gordon allegedly deprived Plaintiffs of their breaks, the complaints allege Diaz’s employment was terminated on May 2, 2017 and Castillo’s employment was terminated on April 25, 2017. (Diaz Complaint, ¶¶ 20, 35; Castillo Complaint, ¶ 20.) Gordon’s misconduct in depriving Plaintiffs of their breaks thus had to have occurred prior to May 2, 2017 and April 25, 2017. Based on these dates, Diaz and Castillo had to assert their IIED and NIED claims against Gordon prior to May 2, 2019, and April 25, 2019, respectively. As Plaintiffs did not assert these claims against Gordon until May 12, 2020, these claims are barred by the statute of limitations.

Based on the complaints and the oppositions, the Court finds it is unlikely Plaintiffs can successfully amend to state these causes of action against Defendant Gordon.

Accordingly, the demurrers to the tenth and eleventh causes of action are SUSTAINED without leave to amend.

Failure to Exhaust Administrative Remedies

Defendant Gordon has indicated in the notices of demurrer that he is also demurring to the ninth cause of action for FEHA retaliation on grounds that Plaintiffs Diaz and Castillo have failed to exhaust their administrative remedies by filing DFEH complaints against him. However, in the consolidated memorandum of points and authorities, Gordon has failed to offer any concrete arguments on this point. Rather, Gordon centered his arguments on this cause of action being barred by the one-year statute of limitations for bringing a claim after obtaining a right-to-sue letter. Defendant has thus failed to meet his burden of demonstrating the ninth cause of action fails because Plaintiffs have failed to exhaust their administrative remedies.

Accordingly, the demurrer to the ninth cause of action is also OVERRULED on this ground.

It is so ordered.

Dated: September ____, 2020

Hon. Jon R. Takasugi Judge of the Superior Court

 

 

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.


[1] The numbering of these causes of action is based on the caption of Castillo’s complaint. As noted below, the Court is using the numbering in the caption for the sake of simplicity. The sixth, seventh, ninth, tenth, and eleventh causes of action are actually the fifth, sixth, eighth, ninth, and tenth causes of action in the body of Castillo’s complaint.

[2] Defendant filed two separate notices of demurrer to each complaint, but one consolidated memorandum of points and authorities. As the arguments are the same and the allegations in the complaints filed by Diaz and Castillo are similar, the Court addresses the demurrers together.

[3] As pointed out by Defendant, the numbering of the causes of action in the caption does not match the numbering of the causes of action in the body of Plaintiff Castillo’s complaint because Castillo failed to put the fifth cause of action in the body of his complaint. In his request for dismissal as to Defendant, Castillo dismissed “causes of action 1-5, 8, and 12”, thus following the causes of action listed in the caption of his complaint. Based on this and for the sake of simplicity, the Court follows the numbering of the causes of action in the caption of Castillo’s complaint.

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