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This case was last updated from Los Angeles County Superior Courts on 03/12/2021 at 21:27:25 (UTC).

WENJUAN LUO VS CHENLONG TAN

Case Summary

On 08/15/2019 WENJUAN LUO filed a Labor - Other Labor lawsuit against CHENLONG TAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY W. ALARCON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9272

  • Filing Date:

    08/15/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GREGORY W. ALARCON

 

Party Details

Plaintiff

LUO WENJUAN

Defendants

TAN CHENLONG AKA LAWRENCE TAN

MII STRATEGY INC. A CALIFORNIA CORPORATION

MII STRATEGY INC.

TAN CHENLONG

Attorney/Law Firm Details

Plaintiff Attorneys

MARKS PAUL

MARKS PAUL S.

Defendant Attorney

HSU RAY

 

Court Documents

Complaint

8/15/2019: Complaint

Answer

9/29/2020: Answer

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE (NO CRS))

8/26/2020: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE (NO CRS))

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE (NO CRS)) OF 08/26/2020

8/26/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE (NO CRS)) OF 08/26/2020

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

7/27/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

Notice of Change of Address or Other Contact Information

5/5/2020: Notice of Change of Address or Other Contact Information

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

2/11/2020: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER) OF 02/11/2020

2/11/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER) OF 02/11/2020

Case Management Statement

1/30/2020: Case Management Statement

Notice - NOTICE OF CASE REASSIGNMENT

10/31/2019: Notice - NOTICE OF CASE REASSIGNMENT

Notice of Case Reassignment/Vacate Hearings

10/21/2019: Notice of Case Reassignment/Vacate Hearings

Substitution of Attorney

10/23/2019: Substitution of Attorney

Challenge To Judicial Officer - Peremptory (170.6)

9/27/2019: Challenge To Judicial Officer - Peremptory (170.6)

Minute Order - MINUTE ORDER (COURT ORDER)

9/30/2019: Minute Order - MINUTE ORDER (COURT ORDER)

Proof of Personal Service

8/30/2019: Proof of Personal Service

Civil Case Cover Sheet

8/15/2019: Civil Case Cover Sheet

Civil Case Cover Sheet

8/15/2019: Civil Case Cover Sheet

Summons - SUMMONS ON COMPLAINT

8/15/2019: Summons - SUMMONS ON COMPLAINT

24 More Documents Available

 

Docket Entries

  • 09/13/2021
  • Hearing09/13/2021 at 08:30 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 08/27/2021
  • Hearing08/27/2021 at 09:00 AM in Department 34 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/02/2020
  • Docketat 08:30 AM in Department 34; Jury Trial ( (3-5 day estimate)) - Not Held - Continued - Court's Motion

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  • 10/26/2020
  • Docketat 08:30 AM in Department 34; Jury Trial ( (3-5 day estimate)) - Not Held - Clerical Error

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  • 10/20/2020
  • Docketat 09:00 AM in Department 34; Final Status Conference - Held - Continued

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  • 10/20/2020
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 10/14/2020
  • Docketat 09:00 AM in Department 34; Final Status Conference - Not Held - Clerical Error

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  • 09/29/2020
  • DocketAnswer; Filed by Chenlong Tan (Defendant); MII STRATEGY, INC. (Defendant)

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  • 08/26/2020
  • Docketat 08:30 AM in Department 34; Hearing on Demurrer - without Motion to Strike ((NO CRS)) - Held

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  • 08/26/2020
  • DocketMinute Order ( (Hearing on Demurrer - without Motion to Strike (NO CRS))); Filed by Clerk

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30 More Docket Entries
  • 09/30/2019
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 09/27/2019
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by Chenlong Tan (Defendant)

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  • 09/10/2019
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 09/10/2019
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 08/30/2019
  • DocketProof of Personal Service; Filed by Wenjuan Luo (Plaintiff)

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  • 08/15/2019
  • DocketCivil Case Cover Sheet; Filed by Wenjuan Luo (Plaintiff)

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  • 08/15/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 08/15/2019
  • DocketComplaint; Filed by Wenjuan Luo (Plaintiff)

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  • 08/15/2019
  • DocketSummons (on Complaint); Filed by Wenjuan Luo (Plaintiff)

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  • 08/15/2019
  • DocketCivil Case Cover Sheet; Filed by Wenjuan Luo (Plaintiff)

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Tentative Rulings

Case Number: 19STCV29272    Hearing Date: August 26, 2020    Dept: 34

SUBJECT: Demurrer to FAC

Moving Party: Defendants Chenlong Tan and MII Strategy, Inc.

Resp. Party: Plaintiff Wenjuan Luo

The demurrer is OVERRULED as to the first and second cause of action.

The demurrer is SUSTAINED with leave to amend as to the thirteenth cause of action.

The demurrer is SUSTAINED without leave to amend as to the fifteenth cause of action.

PRELIMINARY COMMENTS:

Plaintiff’s Opposition to the Demurrer is barely three pages long. Plaintiff cites to no authority in opposition to Defendant’s arguments; the most that Plaintiff musters is the statement that “there is enough ‘there’ there.” (Opposition, p. 2:10.) The remainder of the “opposition” is pure argument of counsel.

Further, the majority of Plaintiff’s “opposition” is a diatribe against demurrers for “uncertainty.” Plaintiff states that he “cannot put this demurrer opposition to rest without climbing on a soap box, and thus respectfully requests the Court’s indulgence.” (Opposition, p. 2:13-14.) In the future, Plaintiff need not waste his time, opposing counsel’s time, or the Court’s time by “climbing on a soap box.”

BACKGROUND:

This action arises out of allegations from Plaintiff Wenjuan Luo that her employer, Defendants Chenlong Tan and MII Strategy, Inc., initiated a pattern and practice of sexual harassment and failure to properly compensate Plaintiff during Plaintiff’s employment with Defendants.

On August 15, 2019, Plaintiff Wenjuan Luo commenced this action and on May 13, 2020, filed a first amended complaint (“FAC”)

against Defendants Chenlong Tan (aka Lawrence Tan) and MII Strategy, Inc.

Plaintiff alleges causes of action for (1) discrimination based on sex harassment; (2) retaliation for reporting and/or not submitting to sex harassment; (3) fraud by intentional misrepresentation; (4) fraud by concealment; (5) failure to provide required meal periods; (6) failure to provide required rest breaks; (7) failure to pay overtime wages; (8) failure to pay wages due to a terminated employee; (9) failure to maintain mandatory employment records; (10) failure to provide adequate wage statements; (11) violation of the Business and Professions Code; (12) breach of contract; (13) negligence; (14) intentional infliction of emotional distress; and (15) negligent infliction of emotional distress.

On June 30, 2020, Defendants filed the instant demurrer to the first, second, thirteenth, and fifteenth causes of action on the grounds that (1) they fail to state facts sufficient to constitute causes of action and (2) they are uncertain.

ANALYSIS:

A. Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§422.10, 589.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within).

A demurrer may be brought under Code of Civil Procedure section 430.10(e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10(f).

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

B. Discussion

1. First Cause of Action: Discrimination – Sex Harrassment

 

Plaintiff’s first cause of action is for discrimination based on sex harassment, pursuant to Civil Code sections 51.7 and 51.9. (FAC, ¶ 16.)

Civil Code § 51.7 provides that “[a]ll persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 . . . .” (Civ. Code § 51.7, subd. (b).) Section 51 includes the following listed characteristics: sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.(Civ. Code, § 51, subd. (b).)

Under Civil Code section 51.9, a sexual harassment cause of action is established if Plaintiff proves the following elements: (1) there is a business, service, or professional relationship between the plaintiff and defendant, such as with a physician; (2) the defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe; and (3) as a result, the plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right. (Civ. Code, §51.9.)

Conduct is “pervasive” if the acts are so egregious as to alter the conditions of the underlying professional relationship and must consist of more than a few isolated incidents. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1048.) An isolated incident of harassing conduct may qualify as “severe” when it consists of a physical assault or the threat thereof. (Id.)

Defendants demur to the first cause of action on the grounds that “Plaintiff does not allege that she was subjected to violence or threat of violence” which is required to assert a claim pursuant to Civil Code section 51.7. (Demurrer, p. 5:11-19.)

Although Plaintiff references both Civil Code sections 51.7 and 51.9, this cause of action is really for Civil Code section 51.9. “Irrespective of the labels attached by the pleader to any alleged cause of action, [the court] examine[s] the factual allegations of the complaint, to determine whether they state a cause of action on any available legal theory.” (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764,773.) The Court finds that Plaintiff sufficiently alleges a cause of action for sex harassment pursuant to Civil Code section 51.9 to put Defendants on sufficient notice of the claim against them. In the FAC, Plaintiff alleges:

“At the time of her hire, Plaintiff was a recent college graduate. Immediately upon her hiring, Defendant Tan initiated a pattern and practice of unlawful sexual harassment. Specifically, he made inappropriate workplace comments; leered at her; invited her to his hotel room on a business trip; touched her inappropriately; asked her to work from his home past midnight on more than one occasion; and made overtures of a personal nature. The entreaties and the inappropriate conduct were persistent, and on each occasion Plaintiff rebuffed Defendant Tan. When Plaintiff rebuffed his advances for the last time, Tan became irate and engaged in a pattern and practice of retaliation. He began ignoring her and he stopped doing the things necessary for her and for the business to maintain a good working environment. He removed himself from the workplace, further breaking the promises he had made that he would work on growing the business. Finally, it got to the point where Plaintiff felt she was being discriminated against for having rebuffed his sexual advances; Plaintiff further felt that she was being constructively discharged by Defendant Tan.” (FAC, ¶ 13.)

This is more than sufficient. The Court OVERRULES the demurrer to the first cause of action.

2. Second Cause of Action: Retaliation

 

“The elements of a section 1102.5(b) retaliation cause of action require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation.” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.) To establish a prima facie case of retaliation, “plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” (Id.) “[A]n employee need not prove an actual violation of law; it suffices if the employer [subjected him to an adverse employment action] for reporting his “reasonably based suspicions” of illegal activity. [Citation.]” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 87.)

Defendants demur to the second cause of action for retaliation on the grounds that “Plaintiff fails to elaborate any further respect to the basic fats that would form the elements of a retaliation claim.” (Demurrer, p. 6:18-19.) For example, Defendants argue that “Plaintiff fails to allege when she disclosed this information,” “when Plaintiff’s employment ended,” any “facts describing the protected activity that Plaintiff allegedly engaged in,” or facts “that would suggest that Plaintiff’s termination had any relation to her engaging in said protected activities.” (Id. at p. 6:19-24.)

The Court finds that Plaintiff sufficiently and clearly alleges facts to support a cause of action for retaliation that puts Defendants on notice of the claim against them.

In the FAC, Plaintiff alleges that she “registered complaints to Defendants about, among other things, the harassment she was enduring; the failure of Defendants to pay her and others properly; and Defendants’ mistreatment of her and other employees.” (FAC, ¶ 21.) Specifically, Plaintiff alleges that “immediately upon her hiring, Defendant Tan initiated a pattern and practice of unlawful sexual harassment. Specifically, he made inappropriate workplace comments; leered at her; invited her to his hotel room on a business trip; touched her inappropriately; asked her to work from his home past midnight on more than one occasion; and made overtures of a personal nature. The entreaties and the inappropriate conduct were persistent, and on each occasion Plaintiff rebuffed Defendant Tan. When Plaintiff rebuffed his advances for the last time, Tan became irate and engaged in a pattern and practice of retaliation. He began ignoring her and he stopped doing the things necessary for her and for the business to maintain a good working environment. He removed himself from the workplace, further breaking the promises he had made that he would work on growing the business. Finally, it got to the point where Plaintiff felt she was being discriminated against for having rebuffed his sexual advances; Plaintiff further felt that she was being constructively discharged by Defendant Tan.” (Id. at ¶ 13.) Plaintiff further alleges that “in retaliation for making said complaints and rebuffing Defendant Tan’s sexual advances, Defendants terminated her employment.” (Id. at ¶ 21.) Further, Plaintiff alleges that “less than a year after being hired, Plaintiff was constructively discharged.” (Id. at ¶ 14.)

This too is sufficient. The Court OVERRULES the demurrer to the second cause of action.

3. Thirteenth Cause of Action: Negligence

 

The elements of a negligence cause of action are “duty, breach of duty, proximate cause, and damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)

Defendants argue that “Plaintiff claims that she ‘suffered harm as a result of Defendants’ negligence,’ but aside from this vague statement, there are no facts alleged in the Complaint that would she that Plaintiff has a claim for negligence here.” (Demurrer, p. 7:6-8, citing Complaint [sic], ¶ 59.) Defendants maintain that “Plaintiff’s Complaint is more-or-less an action for the following claims: harassment; retaliation; fraud; various wage and hour violations; breach of contract; and intentional infliction of emotional distress.” (Id. at . 7:8-10.) Defendants argue that “none of the facts in these claims, however, support a separate claim for negligence.” (Id. at p. 7:10-11.)

In opposition, Plaintiff argues that “the negligence claim is good – or, respectfully, an amendment should be allowed.” (Opp., p. 1:22-23.) Plaintiff maintains that the conduct complained of in the harassment claims could be found by a trier of fact to be negligent, instead of intentional. (Id. at p. 1:25-28, 2:4-7.)

For the negligence claim, Plaintiff alleges that she “repeats and incorporates by reference at this point all preceding paragraphs of this complaint.” (FAC, ¶ 58.) Further, Plaintiff alleges that she “suffered harm as a result of Defendants’ negligence, in an amount to be proven at trial, but not less than $2,000,000.” (Id. at ¶ 59.)

The Court finds that Plaintiff fails to allege facts to support all the elements of a negligence cause of action, such as who owed Plaintiff a duty, how that duty was breached, proximate cause, and damages.

The Court SUSTAINS the demurrer with leave to amend as to the thirteenth cause of action.

4. Fifteenth Cause of Action: Negligent Infliction of Emotional Distress

California courts have repeatedly recognized that negligent infliction of emotional distress is not an independent tort, but the tort of negligence such that the traditional elements of duty, breach of duty, causation, and damages apply. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 884.) Therefore, to plead negligent infliction of emotional distress, a plaintiff must establish negligence. (Id. at p. 882.)

Defendants demur to the fifteenth cause of action on the grounds that negligent infliction of emotional distress is not an independent cause of action. (Demurrer, p. 7:17-18.)

In opposition, Plaintiff states that she “is willing to concur that the claim for negligent infliction of emotional distress rises or falls based on the negligence claim.” (Opp., p. 1:21-22.)

As explained above, the Court finds that the negligence cause of action is insufficiently plead, thus the negligent infliction of emotional distress is insufficiently plead as well.

The Court SUSTAINS the demurrer without leave to amend as to the fifteenth cause of action.