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1 THE KICK LAW FIRM, APC
Taras Kick (State Bar No. 143379)
2 (Taras@kicklawfirm.com)
Daniel J. Bass (State Bar No. 287466)
3 (Daniel@kicklawfirm.com) ELECTRONICALLY
Roy K. Suh (State Bar No. 283988) F I L E D
4 (Roy@kicklawfirm.com) Superior Court of California,
815 Moraga Drive County of San Francisco
5 Los Angeles, California 90049 01/06/2020
Telephone: (310) 395-2988 Clerk of the Court
6 Facsimile: (310) 395-2088 BY: EDNALEEN ALEGRE
Deputy Clerk
7 Attorneys for Plaintiffs SUE JONES and ROBERT
ALLEN JONES, individually, and on behalf of all
8 others similarly situated
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11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SAN FRANCISCO
13 SUE JONES and ROBERT ALLEN JONES, CASE NO.: CGC-19-578596
individually, and on behalf of all others similarly
14 situated, CLASS ACTION
15 Plaintiffs, PLAINTIFFS’ OPPOSITION TO
v. DEFENDANTS’ DEMURRER
16
UPS SUPPLY CHAIN SOLUTIONS, INC., a Date: January 17, 2020
17 Delaware Corporation; UNITED PARCEL Time: 9:30 a.m.
SERVICE, INC., an Ohio Corporation; and DOES Dept.: 302
18 1 through 100, inclusive,
Complaint Filed: August 22, 2019
19 Defendants.
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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 TABLE OF CONTENTS
2 I. INTRODUCTION..........................................................................................................................6
3 II. STATEMENT OF FACTS ............................................................................................................6
4 III. LEGAL STANDARD ....................................................................................................................7
5 IV. ARGUMENT ..................................................................................................................................8
6 A. Plaintiffs Have Adequately Plead They Worked for Defendants in California
7 During the Class Period.....................................................................................................8
8 B. Plaintiffs’ Complaint asserts adequate facts to state causes of action, because
9 Plaintiffs only need to plead ultimate facts in general terms .......................................10
10 i. Plaintiffs’ First and Second Causes of Action Allege Sufficient Facts .................10
11 ii. Plaintiffs’ Third through Fifth Causes of Action Allege Sufficient Facts .............11
12 iii. Plaintiffs’ Sixth Through Ninth Causes of Action Allege Sufficient Facts ...........12
13 iv. Plaintiffs’ Twelfth Cause of Action Alleges Sufficient Facts ...............................13
14 C. Plaintiffs’ Allegations Show a Class Action is a Superior Vehicle ..............................13
15 Plaintiffs Can Establish the Requisite Community of Interest ..............................15
16 Plaintiffs Allegations Tend to Show an Ascertainable Class.................................16
17 D. Plaintiffs Must Be Granted Leave to Amend if the Demurrer is Granted .................17
18 V. CONCLUSION ............................................................................................................................18
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TABLE OF CONTENTS FOR PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 TABLE OF AUTHORITIES
2 Page(s)
3 STATE CASES
4 Adelman v. Associated International Insurance Co. (2001) 90 Cal.App.4th 337 ................................ 7, 11
5 Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471 ............................................. 12
6 Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th 723 ......................................................... 14
7
Beckstead v. Superior Court (1971) 21 Cal.App.3d 780 .......................................................................... 12
8
Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715.................................................................... 16
9
Blakemore v. Superior Court (2005) 129 Cal.App.4th 36 ........................................................................ 13
10
Blank v. Kirwan (1985) 39 Cal.3d 311 ..................................................................................................... 17
11
Brown v. Regents of University of California (1984) 151 Cal.App.3d 982 .............................................. 13
12
Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193 ....................................................... 16
13
C.A. v. William S Hart Union High School District (2012) 53 Cal.4th 861 ............................................... 8
14
15 Carabini v. Superior Court (1994) 26 Cal.App.4th 239 ..................................................................... 13, 16
16 City of Stockton v. Superior Court (2007) 42 Cal.4th 730........................................................................ 17
17 Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224 ....................................... 14
18 Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409 .................................................................... 9
19 Del E. Webb Corp. v. Structural Materials Co123 (1981) Cal.App.3d 593........................................... 6, 8
20 Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968 .................................................................. 6
21
Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903 ............................................................ 15
22
Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943 .................................................................................. 7
23
Estate of Lind v. Haughey (1989) 209 Cal.App.3d 1424 ...................................................................... 9, 10
24
Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835..................................................................... 6
25
Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524 .......................................................... 16
26
Goodman v. Kennedy (1976) 18 Cal.3d 335 ............................................................................................. 17
27
Gutierrez v. California Commerce Club, Inc. (2010) 187 Cal.App.4th 969 .................................. 7, 10, 13
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TABLE OF AUTHORITIES FOR PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 Hawkins v. TACA International Airlines, S.A. (2014) 223 Cal.App.4th 466...................................... 10, 11
2 Hendershot v. Ready to Roll Transportation, Inc. (2014) 228 Cal.App.4th 1213 .............................. 12, 16
3 Hicks v. Kaufman & Broad Home Corp (2001) 89 Cal.App.4th 908 ....................................................... 15
4 In Re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293 .................................................................... 13
5
Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868...................................................................... 6
6
Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325................................................................................. 15
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Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429 ......................................................................................... 7
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McDonalds v. Superior Court (1986) 180 Cal.App.3d 297............................................................ 7, 16, 17
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Metzenbaum v. Metzenbaum (1948) 86 Cal.App.2d 750 .................................................................... 11, 12
10
Morgan v. Superior Court (1959) 172 Cal.App.2d 527 ........................................................................... 17
11
12 Okun v. Superior Court (1981) 29 Cal.3d 442.......................................................................................... 17
13 Oppenheimer v. Robinson (1957) 150 Cal.App.2d 420 ............................................................................ 11
14 Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80 ......................................................... 9, 10
15 Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320..................................................... 12, 14
16 Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26...................................................... 6, 8
17 Roy Allen Slurry Seal, Inc. v. Am. Asphalt S., Inc (2017) 2 Cal.5th 505 .................................................. 10
18 Schermer v. Tatum (2016) 245 Cal.App.4th 912 ...................................................................................... 15
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Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992 .................................................................... 9
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Stevens v. Superior Court (1999) 75 Cal.App.4th 594 ............................................................................... 6
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Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494................. 12, 13
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TJX Companies, Inc. v. Superior Court (2001) 87 Cal.App.4th 747.......................................................... 7
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Tucker v. Pacific Bell Mobile Service (2012) 208 Cal.App.4th 201......................................................... 14
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White v. Davis (1975) 13 Cal.3d 757 .......................................................................................................... 6
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Young v. Gannon (2002) 97 Cal.App.4th 209 .......................................................................................... 11
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TABLE OF AUTHORITIES FOR PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 UNITED STATES SUPREME COURT CASES
2 Ashcroft v. Iqbal (2009) 556 U.S. 662 ...................................................................................................... 11
3 Bell Atl. Corp. v. Twombly (2007) 550 U.S. 544 ...................................................................................... 11
4 FEDERAL CASES
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Byrd v. Masonite Corp., (C.D.Cal. Feb. 25, 2016) 2016 WL 756523 ...................................................... 11
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Harding v. Time Warner, Inc., (S.D.Cal. Aug. 18, 2009) 2009 WL 2575898 ......................................... 11
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Landers v. Quality Commc’ns, Inc. (9th Cir. 2014) 771 F.3d 638 ........................................................... 11
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Schneider v. Space Systems/Loral Inc. (N.D.Cal. Feb. 14, 2012) 2012 WL 476495 ............................... 11
9
Weigele v. FedEx Ground Package Sys. (S.D Cal. Nov. 15, 2010), 2010 WL 4723673 ......................... 11
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STATUTES
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12 Cal. Code Civ. Proc. § 128.7 ...................................................................................................................... 5
13 Cal. Code Civ. Proc. § 430.10 (e) ........................................................................................................... 6, 7
14 Cal. Code Civ. Proc. § 452 ................................................................................................................. 6, 8, 9
15 Cal. Code Civ. Proc. § 473 ......................................................................................................................... 7
16 Cal. Code Civ. Proc. § 589 ......................................................................................................................... 6
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TABLE OF AUTHORITIES FOR PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiffs Sue Jones and Robert Allen Jones (“Plaintiffs”) hereby oppose the Demurrer of
4 Defendants UPS Supply Chain Solutions, Inc. and United Parcel Service, Inc. (“Defendants”) who ask
5 this court to ignore several well-settled policies favored by California courts, including the liberal pleading
6 requirement, policy favoring providing leave to amend, and disfavoring demurrers, particularly in class or
7 representative actions. Defendants also not only improperly seek to apply federal pleading standards, but
8 largely base their demurrer on, their own failure to maintain Plaintiffs’ records and the meritless claim
9 that Plaintiffs’ August 22, 2019 Complaint (“Complaint”) is what is at fault for Defendants’ inability to
10 do so. Plaintiffs’ Complaint has met the pleading requirements for wage and hour class actions set by
11 California courts. To the extent the Court may find any ambiguity or defect, Plaintiffs seek leave to amend.
12 Finally, Defendants’ concerns regarding community of interest, ascertainability, and superiority as a class
13 action are premature at this stage of litigation and are more appropriately addressed at the class
14 certification phase. The Court should deny Defendants demurrer for what it is, a veiled attempt to push
15 Plaintiffs to produce records that Defendants themselves were required to maintain.
16 II. STATEMENT OF FACTS
17 Plaintiffs filed their current complaint on August 22, 2019 alleging several related wage and hour
18 claims arising out of their misclassification as independent contractors or owner-operators, as well as
19 related claims breach of contract, breach of the covenant of good faith and fair dealing and unfair business
20 practices. See Complaint ¶¶ 3-4. Prior to Defendants’ Demurrer counsel for the Plaintiffs met and
21 conferred with Defendants’ counsel regarding the work completed by Plaintiffs in California, including
22 Plaintiffs’ counsel providing several of the many driver’s numbers provided by Defendants to the
23 Plaintiffs while Plaintiffs worked for the Defendants. Declaration of Daniel J. Bass (“Bass Decl.”) ¶ 3.
24 During counsels’ meet and confer attempts Defendants’ counsel never discussed a demurrer or the basis
25 for such a demurrer, but rather threatened a motion for sanctions pursuant to CCP § 128.7 if Plaintiffs did
26 not withdrawal their Complaint. Bass Decl. ¶ 4; see also Declaration of Jaime B. Laurent (“Laurent Decl.”)
27 ¶¶ 3-8, Exh. A-D. Defendants counsel confirmed Defendants had records of Plaintiffs performing work
28 for Defendants in other states, making it clear that Defendants know exactly who the Plaintiffs are, but
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 claimed there were no such records for California. Bass Decl. ¶ 5. Defendants have never provided any
2 of the information reviewed to reach their determination that Plaintiffs did not work in California, just
3 Arizona, but demanded Plaintiffs produce records of their own or face sanctions. Bass Decl. ¶ 6. Plaintiffs’
4 counsel only ever discussed seeking their own sanctions in response to what Plaintiffs’ counsel saw as
5 Defendants’ baseless assertions that Defendants would seek sanctions should Plaintiffs’ refuse to
6 withdrawal their Complaint. Bass Decl. ¶ 7. Plaintiffs’ counsel was unaware of Defendants’ intention to
7 demurrer until Defendants served their demurrer. Bass Decl. ¶ 8.
8 III. LEGAL STANDARD
9 The California Code of Civil Procedural and the legal standards set by California state courts
10 govern the standards for ruling on a demurrer. Defendants demurrer solely based on Code of Civil
11 Procedure § 430.10 (e), claiming the pleading fails to state facts sufficient to constitute a cause of action.
12 A demurrer is solely used to test the legal sufficiency of the opposing party’s pleading; thus, its purpose
13 is to raise issues of law, and not fact, concerning the form or content of the allegations. (See Code Civ.
14 Proc. § 589; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; Friedland v. City of Long
15 Beach (1998) 62 Cal.App.4th 835, 841–842.) When ruling on a demurrer, the Court must construe the
16 complaint liberally, “with a view to substantial justice between the parties.” (Code Civ. Proc. § 452; see
17 Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) Because the truth of the allegations is not at
18 issue, the material facts of the allegation must be accepted as true for the purpose of ruling on the demurrer,
19 regardless of how improbable or unlikely they are. (Del E. Webb Corp. v. Structural Materials Co123
20 (1981) Cal.App.3d 593, 604.) “A demurrer tests only the legal sufficiency of the pleading… the question
21 of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not
22 concern the reviewing court.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47, as
23 modified, (Sept. 23, 1998); see also White v. Davis (1975) 13 Cal.3d 757, 765 [The Court must assume
24 the truth, not just of all the facts that were properly pled, but also those facts which may be implied or
25 inferred from the facts expressly alleged in the complaint.].) Moreover, no extrinsic evidence outside of
26 the pleadings may be considered in ruling on a demurrer. (Ion Equipment Corp. v. Nelson (1980) 110
27 Cal.App.3d 868, 881.) “Irrespective of the labels attached by a pleader to any alleged cause of action, the
28 court must examine the factual allegations of the complaint ‘to determine whether they state a cause of
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 action on any available legal theory.’” (Adelman v. Associated International Insurance Co. (2001) 90
2 Cal.App.4th 337, 359, quoting Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 947.)
3 If a demurrer is sustained, the Courts generally grant leave to amend the pleading. (Code Civ. Proc.
4 § 473.) “Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend
5 constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not.” (McDonalds
6 v. Superior Court (1986) 180 Cal.App.3d 297, 303–04.) Moreover, in class actions, demurrers without
7 leave to amend are properly sustained only where it appears from the face of the complaint that there is
8 no reasonable possibility that the plaintiffs could establish a community of interest among the potential
9 class members and that individual issues predominate over common questions of law and fact. (See Linder
10 v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 440; TJX Companies, Inc. v. Superior Court (2001) 87
11 Cal.App.4th 747; see also Gutierrez v. California Commerce Club, Inc. (2010) 187 Cal.App.4th 969, 977
12 [holding that a demurrer is properly sustained only in cases involving mass torts “or other actions in which
13 individual issues predominate”].) If there is a reasonable possibility that the plaintiffs can plead a prima
14 facie community of interest among class members, “the preferred course is to defer decision on the
15 propriety of the class action until an evidentiary hearing has been held on the appropriateness of class
16 litigation.” (Gutierrez, 187 Cal.App.4th at p. 975.)
17 IV. ARGUMENT
18 A. Plaintiffs Have Adequately Plead They Worked for Defendants in California During
19 the Class Period
20 Defendants bring their demurrer under California Code of Civil Procedure § 430.10(e) alleging
21 that Plaintiffs Complaint does not state facts sufficient to constitute a cause of action. Relying almost
22 entirely on their own lack of records, Defendants’ Demurrer argues that the Complaint is defective because
23 the Plaintiffs do not “allege their own specific job titles, much less any other job titles, locations, or shift”
24 (Demurrer, p. 10), without citing a single case where such information was deemed necessary, and
25 claiming that such information is need to “inform Defendants of the scope of the alleged violations” (ibid.)
26 seemingly recognizing that the Defendants indeed know what violations have occurred, but request
27 additional information as to their scope. Moreover, Defendants claim Plaintiffs’ class definition is
28 “unwieldly” because it could include both misclassified independent contractors and those recognized as
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 employees. (Ibid.) Each of Defendants’ arguments misconstrue the applicable legal rule.
2 “A demurrer tests only the legal sufficiency of the pleading… the question of plaintiff's ability to
3 prove these allegations, or the possible difficulty in making such proof does not concern the reviewing
4 court.” (Quelimane Co., 19 Cal.4th at p. 47.) At this stage, the question is not whether or not Plaintiffs
5 will be able to establish that they worked for Defendants, nor if they were misclassified as independent
6 contractors, but whether Plaintiff has adequately plead such allegations. “To survive a demurrer, the
7 complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might
8 eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S Hart Union High
9 School District (2012) 53 Cal.4th 861, 872.) Plaintiffs have met this requirement.
10 Defendants argue that “Defendants are unable to even identify Plaintiffs as individuals who
11 provided services for Defendants in California during the applicable period." (Demurrer, p. 9.) However,
12 no matter how unlikely the sole issue raised by a demurrer is whether the facts pleaded state a valid cause
13 of action—not whether they are true. Thus, no matter how unlikely or improbable, Plaintiffs’ allegations
14 must be accepted as true for the purpose of ruling on the demurrer. (See Del E. Webb Corp., 123
15 Cal.App.3d at p. 604; Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.)
16 Plaintiffs have properly plead ultimate facts and must be given the opportunity to conduct discovery of
17 the evidentiary facts to support their allegations. Plaintiffs have acted reasonably in their allegations and
18 further evidentiary facts will emerge in discovery to support their allegations. Specifically, Plaintiffs'
19 Complaint clearly alleges and identifies that “PLAINTIFFS are former drivers who worked separately and
20 as a team for DEFENDANTS in the State of California.” (Complaint ¶ 3; see also, ¶ 4 [“PLAINTIFFS,
21 on behalf of themselves and other similarly situated current and former drivers, including but not limited
22 to those misclassified as independent contractors or owner-operators, who performed work for
23 DEFENDANTS in the State of California at any time during the four years preceding the filing of this
24 action….”].) As such, Plaintiffs have identified themselves by name, as well as how they worked for
25 Defendants and during what time period they did that work.
26 Thus, given that Plaintiffs’ Complaint is to be construed "liberally . . . with a view to substantial
27 justice between the parties." (Code Civ. Proc. § 452), there can be little doubt that Plaintiffs have plead
28 sufficient facts to survive the on demurrer.
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 B. Plaintiffs’ Complaint Asserts Adequate Facts to State Causes of Action, Because
2 Plaintiffs Only Need to Plead Ultimate Facts in General Terms
3 California follows a “liberal” pleading standard. “In the construction of a pleading, for the purpose
4 of determining its effect, its allegations must be liberally construed, with a view to substantial justice
5 between the parties.” (Code Civ. Proc. § 452.) To adequately plead a cause of action, a plaintiff only needs
6 to plead ultimate facts in general terms. (See Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th
7 80, 92 [plaintiffs "are required to plead only ultimate facts, not evidentiary facts."].) “It is well established
8 that a contestant should plead ultimate facts . . . However, the distinctions among ultimate facts,
9 evidentiary facts, and conclusions of law are, at best, blurred . . . the important thing is that the proponent
10 be informed of the contestant's claim to standing.” (Estate of Lind v. Haughey (1989) 209 Cal.App.3d
11 1424, 1434, citations omitted.) Essentially, "the fact-pleading requirement of Code Civ. Proc., § 425.10,
12 subd. (a)(l), obligates the plaintiff to allege ultimate facts that as a whole apprize the adversary of the
13 factual basis of the claim." (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415.) However,
14 Plaintiffs are not required to plead all the evidentiary facts which support a cause of action. Defendants’
15 proposed heightened pleading requirements put "the cart before the horse" by requiring Plaintiffs to state
16 the evidentiary basis prior to having the opportunity to engage in adequate discovery.
17 A general demurrer may be upheld "only if the complaint fails to state a cause of action under any
18 possible legal theory[.]" (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) Plaintiffs’
19 Complaint clearly alleges sufficient facts to support Plaintiffs’ Causes of Action. Given that complaints
20 are to be construed liberally with a view towards substantial justice between the parties, Plaintiffs’
21 Complaint has sufficiently plead facts supportive of its causes of action. To the extent that there is any
22 ambiguity, Plaintiffs respectfully request leave to amend. Plaintiffs have clearly alleged facts sufficient to
23 support Plaintiffs causes of action. Accordingly, Demurrer as to Plaintiff’s Causes of Action should be
24 denied.
25 Plaintiffs’ First and Second Causes of Action Allege Sufficient Facts
26 In wage and hour cases, a plaintiff’s allegation that the defendant has failed to provide its
27 employees with proper rest periods and proper meal periods, for example, states “both the facts and the
28 theory.” (Gutierrez, 187 Cal.App.4th at p. 979, fn 5 [finding that the trial court, in overruling a demurrer,
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 correctly noted that “the statement that defendant has not provide its employees with proper rest periods
2 states both the facts and the theory.”].) Defendants cite no California courts deciding wage and hour
3 issues, instead citing to very general statements of California law and depending on Federal District Court
4 opinions for actual pleading comparisons. However, California courts follow a more liberal pleading
5 standard than the federal courts. (See Palestini, 99 Cal.App.4th at p. 92 [stating, plaintiffs “are required
6 to plead only ultimate facts, not evidentiary facts.”]; Estate of Lind v. Haughey (1989) 209 Cal.App.3d
7 1424, 1434 [holding “the important thing is that the proponent be informed of the contestant's claim to
8 standing.”].)
9 Defendants, for instance, cite to Roy Allen Slurry Seal, Inc. v. Am. Asphalt S., Inc (2017) 2 Cal.5th
10 505, 512 followed by a string citation to four Federal District Court cases for the idea that “Courts
11 consistently emphasize that a ‘demurrer is properly sustained’ when a pleading ‘does not state facts
12 sufficient to constitute a cause of action,’ and courts have dismissed similarly deficient meal and rest
13 period claims for this reason.” (Demurrer, p. 12.) Roy Allen Slurry Seal, however, concerned a demurrer
14 to a claim of intentional interference with prospective economic advantage where the demurrer was found
15 to be properly sustained, because as a matter of law it was found that the necessary economic relationship
16 element of that claim could not exist with a rejected “bidder for a public works contract and the public
17 entity soliciting bids.” (2 Cal.5th at pp. 509-10.) Defendants would have this Court demand Plaintiffs
18 satisfy federal pleading standards and sustain a demurrer that Defendants despite Defendants having not
19 shown why Plaintiffs claims fail as a matter of law. The Court should deny the Defendants request.
20 Plaintiffs’ Third through Fifth Causes of Action Allege Sufficient Facts
21 In response to Plaintiffs’ causes of action for Unpaid Overtime, Unpaid Minimum Wage, Untimely
22 Final Wages, Defendants continue their methodology of citing wholly distinct California precedent and
23 relying on Federal District Court decisions for support of their meritless demurrer after reciting Plaintiffs’
24 factual allegations. (Demurrer at pp. 12-14.) Defendants’ citation to Hawkins v. TACA International
25 Airlines, S.A. is factual distinct from the current situation, because in that complaint the factual allegations
26 lacked distinction between the multiple contracts at issue, which were supposedly underfunded triggering
27 liability under Labor Code section 2810, but were also legally insufficient for being contradictory to other
28 claims in the operative complaint. (Hawkins v. TACA International Airlines, S.A. (2014) 223 Cal.App.4th
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 466, 479-80; see also Adelman, 90 Cal.App.4th at 355-56 [affirming dismissal of the claims of uninsured
2 parties against an insurer of a third party finding that as a matter of law it would provide the uninsured
3 parties greater protections than those of the insured party]; Young v. Gannon (2002) 97 Cal.App.4th 209,
4 224 [finding a terminated administrative law judge did not demonstrate “that the trial court erred in
5 sustaining the demurrer to his writ of mandate cause of action” because he had “not demonstrated that he
6 is entitled to a writ of mandate to compel the administrative director to adopt different regulations.”];
7 Oppenheimer v. Robinson (1957) 150 Cal.App.2d 420, 422 [confirming dismissal of a claim for unpaid
8 wages following Plaintiff’s refusal to amend after the court previously granted a demurrer].)
9 California Courts have not followed the requirements of federal courts to allege specific times that
10 named plaintiffs was not paid wages due, which apply the standards laid down in Bell Atl. Corp. v.
11 Twombly (2007) 550 U.S. 544; Ashcroft v. Iqbal (2009) 556 U.S. 662; and their progeny which have been
12 cited by Defendants throughout their Demurrer. 1 This Court should not require Plaintiffs to meet those
13 standards now.
14 Plaintiffs’ Sixth Through Ninth Causes of Action Allege Sufficient Facts
15 Defendants make a lip service claim that Plaintiffs’ claims in their sixth through ninth causes of
16 action contain allegations that are either conclusory, recitals of legal conclusions or too “nonspecific”
17 despite Defendants often ironically referencing the specific factual allegations in the same paragraph. For
18 instance, Defendants reference the specific categories of information that Defendants failed to include on
19 Plaintiffs’ and the class members’ paystubs, including gross wages earned, total hours worked, and all
20 deductions. (See Demurrer, pp. 14-15; see also Complaint ¶ 49.) Similarly, Plaintiffs specifically allege
21 business expenses they were not reimbursed for including uniforms and cell phone usage. (Complaint ¶
22 54.) Moreover, Defendants’ citation to Metzenbaum v. Metzenbaum for a standard of “sufficient clarity
23 and particularity that the defendant may be apprised of the nature, source and extent of his cause of action”
24
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25 See Schneider v. Space Systems/Loral Inc. (N.D. Cal. Feb 14, 2012) 2012 WL 476495, at *2 (requiring
plaintiff to specify the “uncompensated hours [plaintiff] worked”); see also Landers v. Quality Commc’ns,
26 Inc. (9th Cir. 2014) 771 F.3d 638, 645 (requiring plaintiff to allege “a specific week” he or she was
“entitled to but denied” wages); Byrd v. Masonite Corp., (C.D.Cal. Feb. 25, 2016) 2016 WL
27 756523 (requiring specific statements of instances of violations to “state a wage claim under Iqbal and
Twombly”); Weigele v. FedEx Ground Package Sys. (S.D Cal. Nov. 15, 2010), 2010 WL 4723673 (same);
28 Harding v. Time Warner, Inc., (S.D.Cal. Aug. 18, 2009) 2009 WL 2575898 (same, but inviting motion to
amend).
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MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 is unavailing in the wage and hour context. (See Metzenbaum v. Metzenbaum (1948) 86 Cal.App.2d 750,
2 753 [Plaintiff sought a royalty interest, but failed to allege “(1) whether the royalty interest involved is an
3 interest in real property or otherwise, (2) whether this is a voluntary or an involuntary trust, or (3) whether
4 the trust was created orally or in writing.”].)
5 Plaintiffs’ Twelfth Cause of Action Alleges Sufficient Facts
6 As recognized by Defendants Plaintiffs’ Twelfth Cause of Action is premised on the other
7 violations Defendants are alleged to have committed. As Plaintiffs point out above, Plaintiffs have
8 properly plead their Causes of Action One through Nine. Moreover, Defendants have not specifically
9 contested Plaintiffs’ Causes of Action Ten through Eleven. As such, Defendants’ Demurrer as to
10 Plaintiffs’ Twelfth Cause of Action must also be denied.
11 C. Plaintiffs’ Allegations Show a Class Action is a Superior Vehicle
12 California Courts are generally reluctant to grant demurrers to class actions because of:
13 “California’s judicial policy of allowing potential class action plaintiffs to
have their action measured on its merits to determine whether trying their
14 suits as a class action would bestow the requisite benefits upon the litigants
and the judicial process to justify class action litigation. In order to effect
15 this judicial policy, . . . a candidate complaint for class action consideration,
if at all possible [must] be allowed to survive the pleading stages of
16 litigation. . . . because the sustaining of demurrers without leave to amend
represents the earliest possible determination of the propriety of class action
17 litigation, it should be looked upon with disfavor.”
18 Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 783-84. California has long recognized a “policy
19 disfavoring the determination of class suitability issues at the pleading stage.” (Tarkington v. California
20 Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494, 1511; Arce v. Kaiser Foundation Health
21 Plan, Inc. (2010) 181 Cal.App.4th 471, 487 [It is “often premature for a trial court to make determinations
22 pertaining to class suitability on demurrer.”].) If there is a reasonable possibility that the plaintiffs can
23 establish a community of interest among the members of the class, then the court should defer decision on
24 the propriety of the class action until an evidentiary hearing has been held. (See Prince v. CLS
25 Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1325.) Indeed, “[i]t is an abuse of discretion for a trial
26 court to determine class certification questions before the parties have an opportunity to conduct discovery
27 and present evidence on certification issues.” (Hendershot v. Ready to Roll Transportation, Inc. (2014)
28 228 Cal.App.4th 1213; see also Carabini v. Superior Court (1994) 26 Cal.App.4th 239, 244 [“Due process
13
MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER
1 requires an order with such significant impact on the viability of a case not be made without a full
2 opportunity to brief the issues and present evidence.… each party should have an opportunity to conduct
3 discovery on class action issues”].)
4 In wage and hour cases, a plaintiff’s allegation that the defendant has failed to provide its
5 employees with proper rest periods and proper meal periods, for example, states “both the facts and the
6 theory.” (See e.g. Gutierrez, 187 Cal.App.4th at p. 979, fn 5 [finding that the trial court, in overruling a
7 demurrer, correctly noted that “the statement that defendant has not provide its employees with proper
8 rest periods states both the facts and the theory.”].) If there is a reasonable possibility that the plaintiffs
9 can plead a prima facie community of interest among class members, the propriety of the class action
10 should be deferred until the class certification process. (Id. at p. 975, citing Brown v. Regents of University
11 of California (1984) 151 Cal.App.3d 982, 988.)
12 In addition, the court in Gutierrez states that “[j]udicial policy in California has long discouraged
13 trial courts from determining class sufficiency at the pleading stage and directed that this issue be
14 determined by a motion for class certification.” (Gutierrez, 187 Cal.App.4th at p. 976.) Importantly, the
15 court stated, “[a]s long as the lead plaintiff alleges institutional practices….that affected all of the members
16 of the potential class in the same manner, and it appears from the complaint that all liability issues can be
17 determined on a class-wide basis” no more is required at the pleading stage. (Id. at p. 978, citing
18 Tarkington, 172 Cal.App.4th at p. 1511.) These courts have noted that wage and hour routinely proceed
19 as class actions because the claims are of a nature that can be applicable to all members of the class and
20 the question of law is common to the class as a whole.
21 Defendants are attempting to litigate class claims at the pleading stage, a tactic that has been widely
22 unpersuasive to California courts. Particularly, the court in Gutierrez v. California Commerce Club, Inc.
23 stated that a demurrer to class allegations “may be sustained without leave to amend only if it is clear that
24 “there is no reasonable possibility that the plaintiffs could establish a community of interest among the
25 potential class members and that individual issues predominate over common questions of law and fact.’”
26 (Gutierrez, 187 Cal.App.4th at 975, citing Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 53;
27 see also In Re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293, 1298-99.)
28 Defendants contrary cases are inapposite because those cited are outside of the employment
14
MEMORANDUM OF POI
Preview
1 THE KICK LAW FIRM, APC Taras Kick (State Bar No. 143379) 2 (Taras@kicklawfirm.com) Daniel J. Bass (State Bar No. 287466) 3 (Daniel@kicklawfirm.com) ELECTRONICALLY Roy K. Suh (State Bar No. 283988) F I L E D 4 (Roy@kicklawfirm.com) Superior Court of California, 815 Moraga Drive County of San Francisco 5 Los Angeles, California 90049 01/06/2020 Telephone: (310) 395-2988 Clerk of the Court 6 Facsimile: (310) 395-2088 BY: EDNALEEN ALEGRE Deputy Clerk 7 Attorneys for Plaintiffs SUE JONES and ROBERT ALLEN JONES, individually, and on behalf of all 8 others similarly situated 9 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN FRANCISCO 13 SUE JONES and ROBERT ALLEN JONES, CASE NO.: CGC-19-578596 individually, and on behalf of all others similarly 14 situated, CLASS ACTION 15 Plaintiffs, PLAINTIFFS’ OPPOSITION TO v. DEFENDANTS’ DEMURRER 16 UPS SUPPLY CHAIN SOLUTIONS, INC., a Date: January 17, 2020 17 Delaware Corporation; UNITED PARCEL Time: 9:30 a.m. SERVICE, INC., an Ohio Corporation; and DOES Dept.: 302 18 1 through 100, inclusive, Complaint Filed: August 22, 2019 19 Defendants. 20 21 22 23 24 25 26 27 28 1 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 TABLE OF CONTENTS 2 I. INTRODUCTION..........................................................................................................................6 3 II. STATEMENT OF FACTS ............................................................................................................6 4 III. LEGAL STANDARD ....................................................................................................................7 5 IV. ARGUMENT ..................................................................................................................................8 6 A. Plaintiffs Have Adequately Plead They Worked for Defendants in California 7 During the Class Period.....................................................................................................8 8 B. Plaintiffs’ Complaint asserts adequate facts to state causes of action, because 9 Plaintiffs only need to plead ultimate facts in general terms .......................................10 10 i. Plaintiffs’ First and Second Causes of Action Allege Sufficient Facts .................10 11 ii. Plaintiffs’ Third through Fifth Causes of Action Allege Sufficient Facts .............11 12 iii. Plaintiffs’ Sixth Through Ninth Causes of Action Allege Sufficient Facts ...........12 13 iv. Plaintiffs’ Twelfth Cause of Action Alleges Sufficient Facts ...............................13 14 C. Plaintiffs’ Allegations Show a Class Action is a Superior Vehicle ..............................13 15 Plaintiffs Can Establish the Requisite Community of Interest ..............................15 16 Plaintiffs Allegations Tend to Show an Ascertainable Class.................................16 17 D. Plaintiffs Must Be Granted Leave to Amend if the Demurrer is Granted .................17 18 V. CONCLUSION ............................................................................................................................18 19 20 21 22 23 24 25 26 27 28 2 TABLE OF CONTENTS FOR PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 TABLE OF AUTHORITIES 2 Page(s) 3 STATE CASES 4 Adelman v. Associated International Insurance Co. (2001) 90 Cal.App.4th 337 ................................ 7, 11 5 Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471 ............................................. 12 6 Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th 723 ......................................................... 14 7 Beckstead v. Superior Court (1971) 21 Cal.App.3d 780 .......................................................................... 12 8 Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715.................................................................... 16 9 Blakemore v. Superior Court (2005) 129 Cal.App.4th 36 ........................................................................ 13 10 Blank v. Kirwan (1985) 39 Cal.3d 311 ..................................................................................................... 17 11 Brown v. Regents of University of California (1984) 151 Cal.App.3d 982 .............................................. 13 12 Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193 ....................................................... 16 13 C.A. v. William S Hart Union High School District (2012) 53 Cal.4th 861 ............................................... 8 14 15 Carabini v. Superior Court (1994) 26 Cal.App.4th 239 ..................................................................... 13, 16 16 City of Stockton v. Superior Court (2007) 42 Cal.4th 730........................................................................ 17 17 Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224 ....................................... 14 18 Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409 .................................................................... 9 19 Del E. Webb Corp. v. Structural Materials Co123 (1981) Cal.App.3d 593........................................... 6, 8 20 Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968 .................................................................. 6 21 Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903 ............................................................ 15 22 Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943 .................................................................................. 7 23 Estate of Lind v. Haughey (1989) 209 Cal.App.3d 1424 ...................................................................... 9, 10 24 Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835..................................................................... 6 25 Ghazaryan v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524 .......................................................... 16 26 Goodman v. Kennedy (1976) 18 Cal.3d 335 ............................................................................................. 17 27 Gutierrez v. California Commerce Club, Inc. (2010) 187 Cal.App.4th 969 .................................. 7, 10, 13 28 3 TABLE OF AUTHORITIES FOR PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 Hawkins v. TACA International Airlines, S.A. (2014) 223 Cal.App.4th 466...................................... 10, 11 2 Hendershot v. Ready to Roll Transportation, Inc. (2014) 228 Cal.App.4th 1213 .............................. 12, 16 3 Hicks v. Kaufman & Broad Home Corp (2001) 89 Cal.App.4th 908 ....................................................... 15 4 In Re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293 .................................................................... 13 5 Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868...................................................................... 6 6 Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325................................................................................. 15 7 Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429 ......................................................................................... 7 8 McDonalds v. Superior Court (1986) 180 Cal.App.3d 297............................................................ 7, 16, 17 9 Metzenbaum v. Metzenbaum (1948) 86 Cal.App.2d 750 .................................................................... 11, 12 10 Morgan v. Superior Court (1959) 172 Cal.App.2d 527 ........................................................................... 17 11 12 Okun v. Superior Court (1981) 29 Cal.3d 442.......................................................................................... 17 13 Oppenheimer v. Robinson (1957) 150 Cal.App.2d 420 ............................................................................ 11 14 Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80 ......................................................... 9, 10 15 Prince v. CLS Transportation, Inc. (2004) 118 Cal.App.4th 1320..................................................... 12, 14 16 Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26...................................................... 6, 8 17 Roy Allen Slurry Seal, Inc. v. Am. Asphalt S., Inc (2017) 2 Cal.5th 505 .................................................. 10 18 Schermer v. Tatum (2016) 245 Cal.App.4th 912 ...................................................................................... 15 19 Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992 .................................................................... 9 20 Stevens v. Superior Court (1999) 75 Cal.App.4th 594 ............................................................................... 6 21 Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494................. 12, 13 22 TJX Companies, Inc. v. Superior Court (2001) 87 Cal.App.4th 747.......................................................... 7 23 Tucker v. Pacific Bell Mobile Service (2012) 208 Cal.App.4th 201......................................................... 14 24 White v. Davis (1975) 13 Cal.3d 757 .......................................................................................................... 6 25 Young v. Gannon (2002) 97 Cal.App.4th 209 .......................................................................................... 11 26 27 28 4 TABLE OF AUTHORITIES FOR PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 UNITED STATES SUPREME COURT CASES 2 Ashcroft v. Iqbal (2009) 556 U.S. 662 ...................................................................................................... 11 3 Bell Atl. Corp. v. Twombly (2007) 550 U.S. 544 ...................................................................................... 11 4 FEDERAL CASES 5 Byrd v. Masonite Corp., (C.D.Cal. Feb. 25, 2016) 2016 WL 756523 ...................................................... 11 6 Harding v. Time Warner, Inc., (S.D.Cal. Aug. 18, 2009) 2009 WL 2575898 ......................................... 11 7 Landers v. Quality Commc’ns, Inc. (9th Cir. 2014) 771 F.3d 638 ........................................................... 11 8 Schneider v. Space Systems/Loral Inc. (N.D.Cal. Feb. 14, 2012) 2012 WL 476495 ............................... 11 9 Weigele v. FedEx Ground Package Sys. (S.D Cal. Nov. 15, 2010), 2010 WL 4723673 ......................... 11 10 STATUTES 11 12 Cal. Code Civ. Proc. § 128.7 ...................................................................................................................... 5 13 Cal. Code Civ. Proc. § 430.10 (e) ........................................................................................................... 6, 7 14 Cal. Code Civ. Proc. § 452 ................................................................................................................. 6, 8, 9 15 Cal. Code Civ. Proc. § 473 ......................................................................................................................... 7 16 Cal. Code Civ. Proc. § 589 ......................................................................................................................... 6 17 18 19 20 21 22 23 24 25 26 27 28 5 TABLE OF AUTHORITIES FOR PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiffs Sue Jones and Robert Allen Jones (“Plaintiffs”) hereby oppose the Demurrer of 4 Defendants UPS Supply Chain Solutions, Inc. and United Parcel Service, Inc. (“Defendants”) who ask 5 this court to ignore several well-settled policies favored by California courts, including the liberal pleading 6 requirement, policy favoring providing leave to amend, and disfavoring demurrers, particularly in class or 7 representative actions. Defendants also not only improperly seek to apply federal pleading standards, but 8 largely base their demurrer on, their own failure to maintain Plaintiffs’ records and the meritless claim 9 that Plaintiffs’ August 22, 2019 Complaint (“Complaint”) is what is at fault for Defendants’ inability to 10 do so. Plaintiffs’ Complaint has met the pleading requirements for wage and hour class actions set by 11 California courts. To the extent the Court may find any ambiguity or defect, Plaintiffs seek leave to amend. 12 Finally, Defendants’ concerns regarding community of interest, ascertainability, and superiority as a class 13 action are premature at this stage of litigation and are more appropriately addressed at the class 14 certification phase. The Court should deny Defendants demurrer for what it is, a veiled attempt to push 15 Plaintiffs to produce records that Defendants themselves were required to maintain. 16 II. STATEMENT OF FACTS 17 Plaintiffs filed their current complaint on August 22, 2019 alleging several related wage and hour 18 claims arising out of their misclassification as independent contractors or owner-operators, as well as 19 related claims breach of contract, breach of the covenant of good faith and fair dealing and unfair business 20 practices. See Complaint ¶¶ 3-4. Prior to Defendants’ Demurrer counsel for the Plaintiffs met and 21 conferred with Defendants’ counsel regarding the work completed by Plaintiffs in California, including 22 Plaintiffs’ counsel providing several of the many driver’s numbers provided by Defendants to the 23 Plaintiffs while Plaintiffs worked for the Defendants. Declaration of Daniel J. Bass (“Bass Decl.”) ¶ 3. 24 During counsels’ meet and confer attempts Defendants’ counsel never discussed a demurrer or the basis 25 for such a demurrer, but rather threatened a motion for sanctions pursuant to CCP § 128.7 if Plaintiffs did 26 not withdrawal their Complaint. Bass Decl. ¶ 4; see also Declaration of Jaime B. Laurent (“Laurent Decl.”) 27 ¶¶ 3-8, Exh. A-D. Defendants counsel confirmed Defendants had records of Plaintiffs performing work 28 for Defendants in other states, making it clear that Defendants know exactly who the Plaintiffs are, but 6 MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 claimed there were no such records for California. Bass Decl. ¶ 5. Defendants have never provided any 2 of the information reviewed to reach their determination that Plaintiffs did not work in California, just 3 Arizona, but demanded Plaintiffs produce records of their own or face sanctions. Bass Decl. ¶ 6. Plaintiffs’ 4 counsel only ever discussed seeking their own sanctions in response to what Plaintiffs’ counsel saw as 5 Defendants’ baseless assertions that Defendants would seek sanctions should Plaintiffs’ refuse to 6 withdrawal their Complaint. Bass Decl. ¶ 7. Plaintiffs’ counsel was unaware of Defendants’ intention to 7 demurrer until Defendants served their demurrer. Bass Decl. ¶ 8. 8 III. LEGAL STANDARD 9 The California Code of Civil Procedural and the legal standards set by California state courts 10 govern the standards for ruling on a demurrer. Defendants demurrer solely based on Code of Civil 11 Procedure § 430.10 (e), claiming the pleading fails to state facts sufficient to constitute a cause of action. 12 A demurrer is solely used to test the legal sufficiency of the opposing party’s pleading; thus, its purpose 13 is to raise issues of law, and not fact, concerning the form or content of the allegations. (See Code Civ. 14 Proc. § 589; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; Friedland v. City of Long 15 Beach (1998) 62 Cal.App.4th 835, 841–842.) When ruling on a demurrer, the Court must construe the 16 complaint liberally, “with a view to substantial justice between the parties.” (Code Civ. Proc. § 452; see 17 Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) Because the truth of the allegations is not at 18 issue, the material facts of the allegation must be accepted as true for the purpose of ruling on the demurrer, 19 regardless of how improbable or unlikely they are. (Del E. Webb Corp. v. Structural Materials Co123 20 (1981) Cal.App.3d 593, 604.) “A demurrer tests only the legal sufficiency of the pleading… the question 21 of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not 22 concern the reviewing court.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47, as 23 modified, (Sept. 23, 1998); see also White v. Davis (1975) 13 Cal.3d 757, 765 [The Court must assume 24 the truth, not just of all the facts that were properly pled, but also those facts which may be implied or 25 inferred from the facts expressly alleged in the complaint.].) Moreover, no extrinsic evidence outside of 26 the pleadings may be considered in ruling on a demurrer. (Ion Equipment Corp. v. Nelson (1980) 110 27 Cal.App.3d 868, 881.) “Irrespective of the labels attached by a pleader to any alleged cause of action, the 28 court must examine the factual allegations of the complaint ‘to determine whether they state a cause of 7 MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 action on any available legal theory.’” (Adelman v. Associated International Insurance Co. (2001) 90 2 Cal.App.4th 337, 359, quoting Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 947.) 3 If a demurrer is sustained, the Courts generally grant leave to amend the pleading. (Code Civ. Proc. 4 § 473.) “Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend 5 constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not.” (McDonalds 6 v. Superior Court (1986) 180 Cal.App.3d 297, 303–04.) Moreover, in class actions, demurrers without 7 leave to amend are properly sustained only where it appears from the face of the complaint that there is 8 no reasonable possibility that the plaintiffs could establish a community of interest among the potential 9 class members and that individual issues predominate over common questions of law and fact. (See Linder 10 v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 440; TJX Companies, Inc. v. Superior Court (2001) 87 11 Cal.App.4th 747; see also Gutierrez v. California Commerce Club, Inc. (2010) 187 Cal.App.4th 969, 977 12 [holding that a demurrer is properly sustained only in cases involving mass torts “or other actions in which 13 individual issues predominate”].) If there is a reasonable possibility that the plaintiffs can plead a prima 14 facie community of interest among class members, “the preferred course is to defer decision on the 15 propriety of the class action until an evidentiary hearing has been held on the appropriateness of class 16 litigation.” (Gutierrez, 187 Cal.App.4th at p. 975.) 17 IV. ARGUMENT 18 A. Plaintiffs Have Adequately Plead They Worked for Defendants in California During 19 the Class Period 20 Defendants bring their demurrer under California Code of Civil Procedure § 430.10(e) alleging 21 that Plaintiffs Complaint does not state facts sufficient to constitute a cause of action. Relying almost 22 entirely on their own lack of records, Defendants’ Demurrer argues that the Complaint is defective because 23 the Plaintiffs do not “allege their own specific job titles, much less any other job titles, locations, or shift” 24 (Demurrer, p. 10), without citing a single case where such information was deemed necessary, and 25 claiming that such information is need to “inform Defendants of the scope of the alleged violations” (ibid.) 26 seemingly recognizing that the Defendants indeed know what violations have occurred, but request 27 additional information as to their scope. Moreover, Defendants claim Plaintiffs’ class definition is 28 “unwieldly” because it could include both misclassified independent contractors and those recognized as 8 MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 employees. (Ibid.) Each of Defendants’ arguments misconstrue the applicable legal rule. 2 “A demurrer tests only the legal sufficiency of the pleading… the question of plaintiff's ability to 3 prove these allegations, or the possible difficulty in making such proof does not concern the reviewing 4 court.” (Quelimane Co., 19 Cal.4th at p. 47.) At this stage, the question is not whether or not Plaintiffs 5 will be able to establish that they worked for Defendants, nor if they were misclassified as independent 6 contractors, but whether Plaintiff has adequately plead such allegations. “To survive a demurrer, the 7 complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might 8 eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S Hart Union High 9 School District (2012) 53 Cal.4th 861, 872.) Plaintiffs have met this requirement. 10 Defendants argue that “Defendants are unable to even identify Plaintiffs as individuals who 11 provided services for Defendants in California during the applicable period." (Demurrer, p. 9.) However, 12 no matter how unlikely the sole issue raised by a demurrer is whether the facts pleaded state a valid cause 13 of action—not whether they are true. Thus, no matter how unlikely or improbable, Plaintiffs’ allegations 14 must be accepted as true for the purpose of ruling on the demurrer. (See Del E. Webb Corp., 123 15 Cal.App.3d at p. 604; Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) 16 Plaintiffs have properly plead ultimate facts and must be given the opportunity to conduct discovery of 17 the evidentiary facts to support their allegations. Plaintiffs have acted reasonably in their allegations and 18 further evidentiary facts will emerge in discovery to support their allegations. Specifically, Plaintiffs' 19 Complaint clearly alleges and identifies that “PLAINTIFFS are former drivers who worked separately and 20 as a team for DEFENDANTS in the State of California.” (Complaint ¶ 3; see also, ¶ 4 [“PLAINTIFFS, 21 on behalf of themselves and other similarly situated current and former drivers, including but not limited 22 to those misclassified as independent contractors or owner-operators, who performed work for 23 DEFENDANTS in the State of California at any time during the four years preceding the filing of this 24 action….”].) As such, Plaintiffs have identified themselves by name, as well as how they worked for 25 Defendants and during what time period they did that work. 26 Thus, given that Plaintiffs’ Complaint is to be construed "liberally . . . with a view to substantial 27 justice between the parties." (Code Civ. Proc. § 452), there can be little doubt that Plaintiffs have plead 28 sufficient facts to survive the on demurrer. 9 MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 B. Plaintiffs’ Complaint Asserts Adequate Facts to State Causes of Action, Because 2 Plaintiffs Only Need to Plead Ultimate Facts in General Terms 3 California follows a “liberal” pleading standard. “In the construction of a pleading, for the purpose 4 of determining its effect, its allegations must be liberally construed, with a view to substantial justice 5 between the parties.” (Code Civ. Proc. § 452.) To adequately plead a cause of action, a plaintiff only needs 6 to plead ultimate facts in general terms. (See Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 7 80, 92 [plaintiffs "are required to plead only ultimate facts, not evidentiary facts."].) “It is well established 8 that a contestant should plead ultimate facts . . . However, the distinctions among ultimate facts, 9 evidentiary facts, and conclusions of law are, at best, blurred . . . the important thing is that the proponent 10 be informed of the contestant's claim to standing.” (Estate of Lind v. Haughey (1989) 209 Cal.App.3d 11 1424, 1434, citations omitted.) Essentially, "the fact-pleading requirement of Code Civ. Proc., § 425.10, 12 subd. (a)(l), obligates the plaintiff to allege ultimate facts that as a whole apprize the adversary of the 13 factual basis of the claim." (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415.) However, 14 Plaintiffs are not required to plead all the evidentiary facts which support a cause of action. Defendants’ 15 proposed heightened pleading requirements put "the cart before the horse" by requiring Plaintiffs to state 16 the evidentiary basis prior to having the opportunity to engage in adequate discovery. 17 A general demurrer may be upheld "only if the complaint fails to state a cause of action under any 18 possible legal theory[.]" (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) Plaintiffs’ 19 Complaint clearly alleges sufficient facts to support Plaintiffs’ Causes of Action. Given that complaints 20 are to be construed liberally with a view towards substantial justice between the parties, Plaintiffs’ 21 Complaint has sufficiently plead facts supportive of its causes of action. To the extent that there is any 22 ambiguity, Plaintiffs respectfully request leave to amend. Plaintiffs have clearly alleged facts sufficient to 23 support Plaintiffs causes of action. Accordingly, Demurrer as to Plaintiff’s Causes of Action should be 24 denied. 25 Plaintiffs’ First and Second Causes of Action Allege Sufficient Facts 26 In wage and hour cases, a plaintiff’s allegation that the defendant has failed to provide its 27 employees with proper rest periods and proper meal periods, for example, states “both the facts and the 28 theory.” (Gutierrez, 187 Cal.App.4th at p. 979, fn 5 [finding that the trial court, in overruling a demurrer, 10 MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 correctly noted that “the statement that defendant has not provide its employees with proper rest periods 2 states both the facts and the theory.”].) Defendants cite no California courts deciding wage and hour 3 issues, instead citing to very general statements of California law and depending on Federal District Court 4 opinions for actual pleading comparisons. However, California courts follow a more liberal pleading 5 standard than the federal courts. (See Palestini, 99 Cal.App.4th at p. 92 [stating, plaintiffs “are required 6 to plead only ultimate facts, not evidentiary facts.”]; Estate of Lind v. Haughey (1989) 209 Cal.App.3d 7 1424, 1434 [holding “the important thing is that the proponent be informed of the contestant's claim to 8 standing.”].) 9 Defendants, for instance, cite to Roy Allen Slurry Seal, Inc. v. Am. Asphalt S., Inc (2017) 2 Cal.5th 10 505, 512 followed by a string citation to four Federal District Court cases for the idea that “Courts 11 consistently emphasize that a ‘demurrer is properly sustained’ when a pleading ‘does not state facts 12 sufficient to constitute a cause of action,’ and courts have dismissed similarly deficient meal and rest 13 period claims for this reason.” (Demurrer, p. 12.) Roy Allen Slurry Seal, however, concerned a demurrer 14 to a claim of intentional interference with prospective economic advantage where the demurrer was found 15 to be properly sustained, because as a matter of law it was found that the necessary economic relationship 16 element of that claim could not exist with a rejected “bidder for a public works contract and the public 17 entity soliciting bids.” (2 Cal.5th at pp. 509-10.) Defendants would have this Court demand Plaintiffs 18 satisfy federal pleading standards and sustain a demurrer that Defendants despite Defendants having not 19 shown why Plaintiffs claims fail as a matter of law. The Court should deny the Defendants request. 20 Plaintiffs’ Third through Fifth Causes of Action Allege Sufficient Facts 21 In response to Plaintiffs’ causes of action for Unpaid Overtime, Unpaid Minimum Wage, Untimely 22 Final Wages, Defendants continue their methodology of citing wholly distinct California precedent and 23 relying on Federal District Court decisions for support of their meritless demurrer after reciting Plaintiffs’ 24 factual allegations. (Demurrer at pp. 12-14.) Defendants’ citation to Hawkins v. TACA International 25 Airlines, S.A. is factual distinct from the current situation, because in that complaint the factual allegations 26 lacked distinction between the multiple contracts at issue, which were supposedly underfunded triggering 27 liability under Labor Code section 2810, but were also legally insufficient for being contradictory to other 28 claims in the operative complaint. (Hawkins v. TACA International Airlines, S.A. (2014) 223 Cal.App.4th 11 MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 466, 479-80; see also Adelman, 90 Cal.App.4th at 355-56 [affirming dismissal of the claims of uninsured 2 parties against an insurer of a third party finding that as a matter of law it would provide the uninsured 3 parties greater protections than those of the insured party]; Young v. Gannon (2002) 97 Cal.App.4th 209, 4 224 [finding a terminated administrative law judge did not demonstrate “that the trial court erred in 5 sustaining the demurrer to his writ of mandate cause of action” because he had “not demonstrated that he 6 is entitled to a writ of mandate to compel the administrative director to adopt different regulations.”]; 7 Oppenheimer v. Robinson (1957) 150 Cal.App.2d 420, 422 [confirming dismissal of a claim for unpaid 8 wages following Plaintiff’s refusal to amend after the court previously granted a demurrer].) 9 California Courts have not followed the requirements of federal courts to allege specific times that 10 named plaintiffs was not paid wages due, which apply the standards laid down in Bell Atl. Corp. v. 11 Twombly (2007) 550 U.S. 544; Ashcroft v. Iqbal (2009) 556 U.S. 662; and their progeny which have been 12 cited by Defendants throughout their Demurrer. 1 This Court should not require Plaintiffs to meet those 13 standards now. 14 Plaintiffs’ Sixth Through Ninth Causes of Action Allege Sufficient Facts 15 Defendants make a lip service claim that Plaintiffs’ claims in their sixth through ninth causes of 16 action contain allegations that are either conclusory, recitals of legal conclusions or too “nonspecific” 17 despite Defendants often ironically referencing the specific factual allegations in the same paragraph. For 18 instance, Defendants reference the specific categories of information that Defendants failed to include on 19 Plaintiffs’ and the class members’ paystubs, including gross wages earned, total hours worked, and all 20 deductions. (See Demurrer, pp. 14-15; see also Complaint ¶ 49.) Similarly, Plaintiffs specifically allege 21 business expenses they were not reimbursed for including uniforms and cell phone usage. (Complaint ¶ 22 54.) Moreover, Defendants’ citation to Metzenbaum v. Metzenbaum for a standard of “sufficient clarity 23 and particularity that the defendant may be apprised of the nature, source and extent of his cause of action” 24 1 25 See Schneider v. Space Systems/Loral Inc. (N.D. Cal. Feb 14, 2012) 2012 WL 476495, at *2 (requiring plaintiff to specify the “uncompensated hours [plaintiff] worked”); see also Landers v. Quality Commc’ns, 26 Inc. (9th Cir. 2014) 771 F.3d 638, 645 (requiring plaintiff to allege “a specific week” he or she was “entitled to but denied” wages); Byrd v. Masonite Corp., (C.D.Cal. Feb. 25, 2016) 2016 WL 27 756523 (requiring specific statements of instances of violations to “state a wage claim under Iqbal and Twombly”); Weigele v. FedEx Ground Package Sys. (S.D Cal. Nov. 15, 2010), 2010 WL 4723673 (same); 28 Harding v. Time Warner, Inc., (S.D.Cal. Aug. 18, 2009) 2009 WL 2575898 (same, but inviting motion to amend). 12 MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 is unavailing in the wage and hour context. (See Metzenbaum v. Metzenbaum (1948) 86 Cal.App.2d 750, 2 753 [Plaintiff sought a royalty interest, but failed to allege “(1) whether the royalty interest involved is an 3 interest in real property or otherwise, (2) whether this is a voluntary or an involuntary trust, or (3) whether 4 the trust was created orally or in writing.”].) 5 Plaintiffs’ Twelfth Cause of Action Alleges Sufficient Facts 6 As recognized by Defendants Plaintiffs’ Twelfth Cause of Action is premised on the other 7 violations Defendants are alleged to have committed. As Plaintiffs point out above, Plaintiffs have 8 properly plead their Causes of Action One through Nine. Moreover, Defendants have not specifically 9 contested Plaintiffs’ Causes of Action Ten through Eleven. As such, Defendants’ Demurrer as to 10 Plaintiffs’ Twelfth Cause of Action must also be denied. 11 C. Plaintiffs’ Allegations Show a Class Action is a Superior Vehicle 12 California Courts are generally reluctant to grant demurrers to class actions because of: 13 “California’s judicial policy of allowing potential class action plaintiffs to have their action measured on its merits to determine whether trying their 14 suits as a class action would bestow the requisite benefits upon the litigants and the judicial process to justify class action litigation. In order to effect 15 this judicial policy, . . . a candidate complaint for class action consideration, if at all possible [must] be allowed to survive the pleading stages of 16 litigation. . . . because the sustaining of demurrers without leave to amend represents the earliest possible determination of the propriety of class action 17 litigation, it should be looked upon with disfavor.” 18 Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 783-84. California has long recognized a “policy 19 disfavoring the determination of class suitability issues at the pleading stage.” (Tarkington v. California 20 Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494, 1511; Arce v. Kaiser Foundation Health 21 Plan, Inc. (2010) 181 Cal.App.4th 471, 487 [It is “often premature for a trial court to make determinations 22 pertaining to class suitability on demurrer.”].) If there is a reasonable possibility that the plaintiffs can 23 establish a community of interest among the members of the class, then the court should defer decision on 24 the propriety of the class action until an evidentiary hearing has been held. (See Prince v. CLS 25 Transportation, Inc. (2004) 118 Cal.App.4th 1320, 1325.) Indeed, “[i]t is an abuse of discretion for a trial 26 court to determine class certification questions before the parties have an opportunity to conduct discovery 27 and present evidence on certification issues.” (Hendershot v. Ready to Roll Transportation, Inc. (2014) 28 228 Cal.App.4th 1213; see also Carabini v. Superior Court (1994) 26 Cal.App.4th 239, 244 [“Due process 13 MEMORANDUM OF POINTS AND AUTHORITIES ISO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER 1 requires an order with such significant impact on the viability of a case not be made without a full 2 opportunity to brief the issues and present evidence.… each party should have an opportunity to conduct 3 discovery on class action issues”].) 4 In wage and hour cases, a plaintiff’s allegation that the defendant has failed to provide its 5 employees with proper rest periods and proper meal periods, for example, states “both the facts and the 6 theory.” (See e.g. Gutierrez, 187 Cal.App.4th at p. 979, fn 5 [finding that the trial court, in overruling a 7 demurrer, correctly noted that “the statement that defendant has not provide its employees with proper 8 rest periods states both the facts and the theory.”].) If there is a reasonable possibility that the plaintiffs 9 can plead a prima facie community of interest among class members, the propriety of the class action 10 should be deferred until the class certification process. (Id. at p. 975, citing Brown v. Regents of University 11 of California (1984) 151 Cal.App.3d 982, 988.) 12 In addition, the court in Gutierrez states that “[j]udicial policy in California has long discouraged 13 trial courts from determining class sufficiency at the pleading stage and directed that this issue be 14 determined by a motion for class certification.” (Gutierrez, 187 Cal.App.4th at p. 976.) Importantly, the 15 court stated, “[a]s long as the lead plaintiff alleges institutional practices….that affected all of the members 16 of the potential class in the same manner, and it appears from the complaint that all liability issues can be 17 determined on a class-wide basis” no more is required at the pleading stage. (Id. at p. 978, citing 18 Tarkington, 172 Cal.App.4th at p. 1511.) These courts have noted that wage and hour routinely proceed 19 as class actions because the claims are of a nature that can be applicable to all members of the class and 20 the question of law is common to the class as a whole. 21 Defendants are attempting to litigate class claims at the pleading stage, a tactic that has been widely 22 unpersuasive to California courts. Particularly, the court in Gutierrez v. California Commerce Club, Inc. 23 stated that a demurrer to class allegations “may be sustained without leave to amend only if it is clear that 24 “there is no reasonable possibility that the plaintiffs could establish a community of interest among the 25 potential class members and that individual issues predominate over common questions of law and fact.’” 26 (Gutierrez, 187 Cal.App.4th at 975, citing Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 53; 27 see also In Re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293, 1298-99.) 28 Defendants contrary cases are inapposite because those cited are outside of the employment 14 MEMORANDUM OF POI