`
`Electronically Filed
`by Superior Court of CA,
`County of Santa Clara,
`on 3/8/2019 4:37 PM
`Reviewed By: R. Walker
`Case #17CV311757
`Envelope: 2607078
`
`17CV311757
`Santa Clara – Civil
`
`
`
`LATHAM & WATKINS LLP
`Linda M. Inscoe (Bar No. 125194)
` linda.inscoe@lw.com
`Christina P. Teeter (Bar No. 301569)
` christina.teeter@lw.com
`505 Montgomery Street, Suite 2000
`San Francisco, California 94111
`Telephone: (415) 391-0600
`Facsimile: (415) 395-8095
`
`LATHAM & WATKINS LLP
`Amy E. Hargreaves (Bar No. 266255)
` amy.hargreaves@lw.com
`12670 High Bluff Drive
`San Diego, California 92130
`Telephone: (858) 523-5400
`Facsimile: (858) 523-5450
`
`Attorneys for Defendants
`HCA HOLDINGS, INC., SAN JOSE, LLC, and
`HCA HEALTHCARE, INC.
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`COUNTY OF SANTA CLARA
`
`
` ZURI LAZARD, on behalf of herself and all
`others similarly situated,
`
`
`
`Plaintiff,
`
`
`v.
`
`HCA HOLDINGS, INC., a Delaware
`Corporation; SAN JOSE, LLC, a Delaware
`Limited Liability Corporation; and DOES 1
`through 10, inclusive,
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` CASE NO. 17-CIV-311757
`
`DEFENDANTS HCA HOLDINGS, INC.’S,
`SAN JOSE, LLC’S, AND HCA
`HEALTHCARE, INC’S NOTICE OF
`MOTION AND MOTION FOR JUDGMENT
`ON THE PLEADINGS; MEMORANDUM OF
`POINTS AND AUTHORITIES IN SUPPORT
`THEREOF
`
`Date: May 3, 2019
`Time: 9 a.m.
`Place: Department 5
`
`Assigned To:
`Hon. Thomas E. Kuhnle
`Action Filed:
`June 13, 2017
`Trial Date: None Set
`
`[Defendants’ Request for Judicial Notice In
`Support of Motion for Judgment on the
`Pleadings; Declaration of Christina P. Teeter;
`Appendix of Non-California Authorities, and
`[Proposed] Order filed concurrently herewith]
`
`
`
`
`
`
`CASE NUMBER: 17-CIV-311757
`DEFENDANTS' NOTICE OF MOTION AND
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`AT T ORNEYS AT L AW
`SAN FRA NCI SCO
`
`
`

`

`1
`
`2
`
`NOTICE OF MOTION
`
`PLEASE TAKE NOTICE that on May 3, 2019 at 9:00 a.m., or as soon thereafter as the
`
`3 matter may be heard, before the Honorable Thomas E. Kuhnle of the California Superior Court
`
`4
`
`for the County of Santa Clara, Department 5, located at 191 North 1st Street, San Jose,
`
`5 California, 95113, Defendants HCA Holdings, Inc., San Jose, LLC, and HCA Healthcare, Inc.
`
`6
`
`(collectively "Defendants") will, and herby do, move pursuant to California Code of Civil
`
`7 Procedure section 438 for partial judgment on the pleadings in favor of Defendants with respect
`
`8
`
`9
`
`10
`
`to the Sixth Cause of Action alleged in Plaintiff Zuri Lazard's Third Amended Complaint
`
`("TAC").
`
`Defendants' Motion for Judgment on the Pleadings (the "Motion") is made on the
`
`11
`
`grounds that Plaintiffs TAC fails to state facts sufficient to demonstrate her Sixth Cause of
`
`12 Action for civil penalties pursuant to the Private Attorneys General Act,("PAGA"), Cal. Lab.
`
`13 Code§ 2698, et seq., is manageable as a representative claim. Accordingly, Defendants
`
`14
`
`respectfully request that the Sixth Cause of Action be dismissed without leave to amend.
`
`15
`
`The Motion is based on this Notice of Motion, the supporting Memorandum of Points
`
`16
`
`and Authorities, the Declaration of Christina P. Teeter in support of Defendants' Motion for
`
`17
`
`Judgment on the Pleadings, the Request for Judicial Notice in support of Defendants' Motion for
`
`18
`
`Judgment on the Pleadings, the Appendix of Non-California Authorities, and the [Proposed]
`
`19 Order, which have been filed concurrently herewith, all the papers, documents and pleadings on
`
`20
`
`file in this case, and such other oral or documentary evidence as may be presented in this matter.
`
`21 Dated: March 8, 2019
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`LATHAM & WATKINS LLP
`Linda M. Inscoe
`Amy E. Hargreaves
`Christina P. Teeter
`
`By
`
`A IJ
`/
`Clinstina P. Teeter
`Attorneys for Defendants
`HCA HOLDINGS, INC., SAN JOSE LLC,
`and HCA HEALTHCARE, INC.
`
`LATHAM&WATKI NS'"
`ATTORNEYS AT LAW
`SAN FRANCISCO
`
`CASE NUMBER: l 7-CIV-311757
`DEFENDANTS' NOTICE OF MOTION AND
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`2
`
`

`

`
`
`
`I.
`
`II.
`
`TABLE OF CONTENTS
`
`Page
`INTRODUCTION .......................................................................................................................... 6
`
`BACKGROUND ............................................................................................................................ 8
`
`A.
`B.
`
`Summary of Plaintiff’s Remaining Claims ............................................................ 8
`Procedural Background ........................................................................................ 10
`
`DEFENDANTS MAY MOVE FOR JUDGMENT ON THE PLEADINGS WITH
`III.
`RESPECT TO PLAINTIFF’S PAGA CLAIM .......................................................................................... 11
`
`JUDGMENT ON THE PLEADINGS SHOULD BE GRANTED ON
`IV.
`PLAINTIFF’S LABOR CODE SECTION 1102.5 RETALIATION CLAIM UNDER
`PAGA BECAUSE IT CANNOT BE LITIGATED ON A REPRESENTATIVE BASIS ......................... 13
`
`A.
`B.
`
`C.
`
`PAGA Claims Are Fundamentally Representative Claims ................................. 13
`PAGA Claims Cannot Proceed Where Labor Code Violations
`Cannot Be Proven Manageable at Trial ............................................................... 14
`Plaintiff’s Labor Code Section 1102.5 Retaliation Claim Under
`PAGA Is Unmanageable ...................................................................................... 15
`
`V.
`
`CONCLUSION ............................................................................................................................. 18
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`AT T ORNEYS AT L AW
`SAN FRA NCI SCO
`
`
`
`
`
`
`
`
`
`
`
`
`3
`
`CASE NUMBER: 17-CIV-311757
`DEFENDANTS' NOTICE OF MOTION AND
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`
`

`

`
`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`
`
`Page(s)
`
`Amiri v. Cox Commc'ns California, LLC,
`272 F. Supp. 3d 1187 (C.D. Cal. 2017) ................................................................................ 18
`Arias v. Superior Court,
`46 Cal. 4th 969 (2009) .................................................................................................... 14, 15
`Bezirdjian v. O'Reilly,
`183 Cal. App. 4th 316 (2010) ............................................................................................... 13
`Blank v. Kirwan,
`39 Cal. 3d 311 (1985) ........................................................................................................... 13
`Bowers v. First Student, Inc.,
`2015 WL 1862914 (C.D. Cal. Apr. 23, 2015) ................................................................ 16, 17
`Bright v. 99 Cents Only Stores,
`No. BC 415527, 2011 WL 12913379 (Cal. Super. Ct. Dec. 7, 2011) ...................... 15, 17, 18
`Cardenas v. McLane FoodServices, Inc.,
`796 F. Supp. 2d 1246 (C.D. Cal. 2011) ................................................................................ 15
`Dailey v. Sears, Roebuck and Co.,
`214 Cal. App. 4th 974 (2013) ............................................................................................... 16
`Duran v. U.S. Bank Nat’l Ass’n,
`59 Cal. 4th 1 (2014) .............................................................................................................. 15
`Gerawan Farming, Inc. v. Lyons,
`24 Cal. 4th 468 (2000) .......................................................................................................... 13
`Ion Equipment Corp. v. Nelson,
`110 Cal. App. 3d 868 (1980) ................................................................................................ 12
`Kraus v. Trinity Management Services, Inc.,
`23 Cal. 4th 116 (2000) .......................................................................................................... 15
`Lawrence v. Bank of America,
`163 Cal. App. 3d 431 (1985) ................................................................................................ 14
`Litty v. Merrill Lynch & Co., Inc.,
`2014 WL 5904904 (C.D. Cal. Nov. 10, 2014) ...................................................................... 16
`Loggins v. Kaiser Permanente Int’l,
`151 Cal. App. 4th 1102 (2007) ....................................................................................... 18, 19
`McCutchen v. City of Montclair,
`73 Cal. App. 4th 1138 (1999) ............................................................................................... 12
`
`
`
`
`
`
`
`
`
`
`
`
`4
`
`CASE NUMBER: 17-CIV-311757
`DEFENDANTS' NOTICE OF MOTION AND
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`AT T ORNEYS AT L AW
`SAN FRA NCI SCO
`
`
`

`

`
`
`McDonnell Douglas Corp. v. Green,
`411 U.S. 792 (1973) .............................................................................................................. 18
`Morgan v. Regents of Univ. of Cal.,
`88 Cal. App. 4th 52 (2000) ................................................................................................... 18
`Ortiz v. CVS Caremark Corp.,
`2014 WL 1117614 (N.D. Cal. Mar. 19, 2014) ................................................................ 16, 17
`Raphael v. Tesoro Ref. and Mktg. Co. LLC,
`2015 WL 5680310 (C.D. Cal. Sept. 25, 2015) ............................................................... 16, 17
`Salazar v. McDonald's Corp.,
`2017 WL 88999 (N.D. Cal. Jan. 5, 2017) ............................................................................. 18
`Smiley v. Citibank (South Dakota) (NA),
`11 Cal. 4th 138 (1995) .......................................................................................................... 13
`Stoops v. Abbassi,
`100 Cal. App. 4th 644 (2002) ............................................................................................... 12
`Virginia G. v. ABC Unified Sch. Dist.,
`15 Cal. App. 4th 1848 (1993) ............................................................................................... 14
`
`STATUTES
`Cal. Civ. Proc. Code § 438 ......................................................................................................... 13
`Cal. Lab. Code § 1102.5 ............................................................................................................. 18
`Cal. Lab. Code § 2699 ................................................................................................................ 14
`OTHER AUTHORITIES
`Robert I. Weil et al., California Practice Guide: Civil Procedure Before Trial
` ¶ 7:277 (2018) ...................................................................................................................... 13
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`AT T ORNEYS AT L AW
`SAN FRA NCI SCO
`
`
`
`
`
`
`
`
`
`
`
`
`5
`
`CASE NUMBER: 17-CIV-311757
`DEFENDANTS' NOTICE OF MOTION AND
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`
`

`

`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`AT T ORNEYS AT L AW
`SAN FRA NCI SCO
`
`
`I.
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`Nearly two years ago, Plaintiff Zuri Lazard—a registered nurse whose employment at
`Regional Medical Center of San Jose (“RMC”) was terminated on July 21, 2017—launched this
`putative class and Private Attorneys General Act (“PAGA”) representative action allegedly on
`behalf of all current and former California employees of Defendants HCA Holdings, Inc.
`(“HCA”), San Jose, LLC, and HCA Healthcare, Inc. (together, “Defendants”).1 On June 28,
`2018, the Court dismissed the class action allegations without leave to amend. Plaintiff’s sole-
`remaining causes of action include her individual employment claims and her representative
`PAGA claim—the Sixth Cause of Action—which is premised on violation of California Labor
`Code section 1102.5.
`Defendants respectfully request that the Court grant their motion for judgment on the
`pleadings with respect to Plaintiff’s Sixth Cause of Action under PAGA. Numerous California
`state and federal courts have held that claims that cannot be litigated on a class action basis due
`to manageability concerns likewise cannot be litigated on a representative basis under PAGA.
`Like the class allegations, the PAGA claim should not be allowed to proceed past the pleading
`stage. Plaintiff has had multiple opportunities to amend her operative complaint—the Third
`Amended Complaint (“TAC”)—to allege facts sufficient to demonstrate that her retaliation claim
`is susceptible to common proof and, as a result, manageable. Yet, Plaintiff has steadfastly failed
`to cure the PAGA claim’s defects, instead completely side-stepping around the issue of common
`proof.
`Even a perfunctory review of the TAC demonstrates that individual issues related to
`prima facie retaliation claims brought under Labor Code section 1102.5 will predominate this
`litigation, transforming the proceeding into a multitude of mini-trials. Most notably, Plaintiff
`purports to represent a PAGA class of employees who were retaliated against for complaining
`
`1 Plaintiff’s operative complaint does not name HCA Healthcare, Inc. as a defendant, despite the
`fact that HCA Healthcare, Inc. was added as a Doe defendant after the filing of the First
`Amended Complaint. As Defendants previously advised, HCA Healthcare, Inc. is the correct
`entity that is affiliated with RMC, not HCA Holdings.
`
`
`
`
`
`6
`
`CASE NUMBER: 17-CIV-311757
`DEFENDANTS' NOTICE OF MOTION AND
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`
`

`

`
`
`about inpatient charting. Plaintiff alleges that she was retaliated against, demoted, had her hours
`cut, was accused of substandard patient care, and subsequently terminated as of July 21, 2017.
`TAC ¶ 27. But Plaintiff has not alleged the existence of a single allegedly aggrieved employee
`who was treated the same way. Indeed, what remains absent from this iteration of her complaint
`is a single fact allegation supporting that Defendants, or the numerous other, unnamed California
`hospitals whose employees Plaintiff purports to represent, retaliated against any nurse other than
`Plaintiff following complaints by that nurse about inpatient charting, or that these various
`hospitals even shared similar inpatient charting procedures. Moreover, Plaintiff’s PAGA notice
`letter to the Labor and Workforce Development Agency (“LWDA”) demonstrates that Plaintiff’s
`PAGA claim will require highly individualized inquiries to determine liability. See Defendants’
`Request for Judicial Notice, Ex. A at 7 (“In retaliation, Employer has, among other things, cut
`Claimant’s and aggrieved employees’ hours, hired non-union workers to replace Claimant and
`aggrieved employees, unilaterally denied vacation days, issued unprecedented disciplinary
`notices and proceedings for up to 80 nurses at a time, and created an overall hostile work
`environment.”).
`After multiple amendments to her pleadings, Plaintiff was unable to concoct a viable
`theory to assert her highly individualized employment grievances as class claims. Plaintiff’s
`PAGA claim is plagued by the same fundamental deficiencies that resulted in this Court’s
`dismissal of her class allegations. A burden-shifting retaliation claim is simply not suited for the
`PAGA mechanism. Determining liability at trial for all employees would be nothing short of
`unmanageable, and Defendants should not be forced to incur the additional costs associated with
`onerous discovery related to Plaintiff’s PAGA retaliation claim. Plaintiff has had ample
`opportunity to amend her claims throughout this litigation and has been assisted by three
`competent counsel in the process. The Court should grant Defendants’ motion for judgment on
`the pleadings as to Plaintiff’s Sixth Cause of Action under PAGA without leave to amend.
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`AT T ORNEYS AT L AW
`SAN FRA NCI SCO
`
`
`
`
`
`
`
`
`
`
`
`
`7
`
`CASE NUMBER: 17-CIV-311757
`DEFENDANTS' NOTICE OF MOTION AND
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`
`

`

`
`
`II.
`
`BACKGROUND
`
`Summary of Plaintiff’s Remaining Claims
`A.
`Plaintiff, formerly a registered emergency room (“ER”) nurse employed by RMC, alleges
`that RMC instructed its ER nurses to engage in certain medical record charting procedures for
`ER patients for whom inpatient treatment is required, but no inpatient bed is available. TAC ¶¶
`4, 10, 11-19. Plaintiff alleges that these ER charting procedures resulted in fraudulent inpatient
`billings. Id. ¶¶ 18-25. Plaintiff claims that she complained about these procedures to her
`supervisors, but that her complaints were not addressed. Id. ¶¶ 26-27. Plaintiff alleges that she
`was then retaliated against “by demoting her, by cutting back her hours, by falsely claiming that
`she had provided substandard patient care, and ultimately, by terminating her employment on
`July 21, 2017.” Id. ¶ 27. The TAC asserts five remaining causes of action, including: (1)
`retaliation pursuant to Labor Code section 1102.5; (2) retaliation pursuant to Health and Safety
`Code section 1278.5; (3) wrongful and constructive termination in violation of public policy; (4)
`unfair competition pursuant to Business and Professions Code section 17200; and (5) civil
`penalties pursuant to the Private Attorneys General Act (“PAGA”). Id. ¶¶ 39-75.
`The Sixth Cause of Action brought under PAGA—the claim at issue in this motion—is
`premised on Defendants’ alleged violation of Labor Code section 1102.5. Id. ¶ 72. As required
`under the statute, Plaintiff exhausted PAGA’s administrative requirements by notifying the
`Labor and Workforce Development Agency (“LWDA”) of her claims and the group of aggrieved
`employees she seeks to represent. Id. ¶ 74.
`Yet, both Plaintiff’s TAC and PAGA letter are completely devoid of fact allegations
`supporting that individual ER nurses, other than Plaintiff, were unlawfully retaliated against as a
`result of complaining about RMC’s charting practices. More specifically, Plaintiff does not
`allege that any putative aggrieved employee actually engaged in a legally “protected activity” or
`that, as a result of engaging in such protected activity, Defendants’ unlawfully took adverse
`employment actions against the putative aggrieved employees. Instead, Plaintiff merely asserts
`that 75 “ER nurses left employment either because they resigned or were terminated by
`Defendants.” Id. ¶ 3. Though Plaintiff alleges that “[t]he ER nurses who worked for Defendants
`
`
`
`
`
`8
`
`CASE NUMBER: 17-CIV-311757
`DEFENDANTS' NOTICE OF MOTION AND
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`AT T ORNEYS AT L AW
`SAN FRA NCI SCO
`
`
`

`

`
`
`uniformly complained to their supervisors about the [charting] practices described [in the TAC],”
`id. ¶ 26, Plaintiff does not actually allege that Defendants retaliated against putative aggrieved
`employees as a result of the alleged complaints. In fact, the sole factual allegation set forth in
`the TAC reads as follows: “at least 75 other registered nurses employed by Defendants in
`California complained about the practices described herein and thereafter left employment with
`Defendants.” Id. ¶ 28. In other words, the TAC does not include any factual causation
`allegation that would support a claim for retaliation with respect to any employee other than
`Plaintiff. See id. ¶¶ 26-28.
`Moreover, while Plaintiff asserts that Defendants retaliated against her “by demoting her,
`by cutting back her hours, by falsely claiming that she had provided substandard patient care,
`and ultimately, by terminating her employment on July 21, 2017,” id. ¶ 27, Plaintiff does not
`allege that any putative aggrieved employees were similarly demoted, had their hours cut, were
`claimed to have provided substandard care, and/or were terminated as a result of their alleged
`complaints to management. Plaintiff’s generic and bare-bones claim that alleged aggrieved
`employees were retaliated against is insufficient because this allegation, even if true, fails to set
`forth facts defining the PAGA group.
`Plaintiff’s PAGA letter to the LWDA is similarly lacking and fails to set forth fact
`allegations supporting that individual ER nurses, other than Plaintiff, were subject to unlawful
`retaliation. Plaintiff’s claim that “Employer has, among other things, cut Claimant’s and
`aggrieved employees’ hours, hired non-union workers to replace Claimant and aggrieved
`employees, unilaterally denied vacation days, issued unprecedented disciplinary notices and
`proceedings for up to 80 nurses at a time, and created an overall hostile work environment” is
`insufficient. See Defendants’ Request for Judicial Notice, Ex. A at 7. The PAGA letter does not
`include fact allegations stating that Defendants retaliated against specific putative aggrieved
`employees as a result of their alleged complaints. In addition, the PAGA letter fails to identify
`and/or define the group of allegedly aggrieved employees Plaintiff seeks to represent. Indeed,
`the only thing gleaned from the PAGA letter is that Plaintiff’s PAGA claim will require highly
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`AT T ORNEYS AT L AW
`SAN FRA NCI SCO
`
`
`
`
`
`
`
`
`
`
`
`
`9
`
`CASE NUMBER: 17-CIV-311757
`DEFENDANTS' NOTICE OF MOTION AND
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`
`

`

`
`
`individualized inquiries to determine liability, most notably starting with which individuals are
`members of the group of employees supposedly retaliated against.
`
`Procedural Background
`B.
`On June 13, 2017, Plaintiff filed her putative class action complaint against Defendants
`related to her employment with RMC.2 On October 20, 2017, and before Defendants’ responded
`to this complaint, Plaintiff filed an amended complaint—the First Amended Class Action
`Complaint (“FAC”)—adding an additional cause of action and request for relief pursuant to the
`Private Attorneys General Act (“PAGA”).3
`Defendants demurred to Plaintiff’s FAC on the grounds that Plaintiff failed to allege facts
`establishing a reasonable possibility that her class claims for retaliation and wrongful termination
`in violation of public policy could satisfy the requirements for class certification.4 Plaintiff
`opposed Defendants’ demurrer. On February 2, 2018, the Court sustained Defendants’ demurrer
`to the class allegations with 60 days’ leave to amend.5
`Following a substitution of counsel, on April 23, 2018, Plaintiff filed her Third Amended
`Complaint (“TAC” and the operative complaint in this matter).6 Because Plaintiff failed to
`exhaust PAGA’s administrative requirements with respect to her retaliation claim brought
`pursuant to Labor Code section 98.6, the parties stipulated (and the Court ordered) to strike the
`TAC’s entire Third Cause of Action and the portion of the PAGA cause of action (the Sixth
`Cause of Action) premised on that claim.7 On May 23, 2018, Defendants demurred to Plaintiff’s
`TAC on the grounds that she failed to allege facts establishing a reasonable possibility that her
`
`
`2 Plaintiff’s Class Action Complaint (filed June 13, 2017).
`3 Plaintiff’s First Amended Class Action Complaint (filed Oct. 20, 2017).
`4 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s First Amended Complaint (filed
`Nov. 8, 2017).
`5 Order Re: Demurrer to First Amended Complaint (Feb. 5, 2018).
`6 The TAC may be more appropriately titled Second Amended Complaint, as there is no Second
`Amended Complaint on file in this action.
`7 Stipulation to Amend Pleadings to Strike Certain Portions of Plaintiff’s Third Amended
`Complaint and Order (May 23, 2018).
`
`
`
`
`10
`
`CASE NUMBER: 17-CIV-311757
`DEFENDANTS' NOTICE OF MOTION AND
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`AT T ORNEYS AT L AW
`SAN FRA NCI SCO
`
`
`
`
`
`
`
`
`

`

`
`
`class claims for retaliation and wrongful termination in violation of public policy can satisfy the
`requirements for class certification.8 Plaintiff opposed Defendants’ demurrer.
`On June 28, 2018, the Court again agreed with Defendants, and dismissed all class
`allegations without leave to amend.9 The Court explained that: “in a retaliation case, the plaintiff
`has the burden of establishing a causal link between the ‘protected activity’ and the adverse
`action, and then the defendant has the burden of coming forward with a legitimate reason for the
`activity. Therefore, not only will Plaintiff need to establish the causal link, but Defendants will
`have the right to try to establish the alleged retaliation (i.e., the negative employment action)
`against each class member was based on something other than a response to a complaint by that
`class member. The individual issues arising out of this defense will quickly overwhelm the
`common issues in this case.”10 The Court further reasoned: “determining whether each class
`member can establish liability against Defendants for retaliation or wrongful termination will
`require an examination of the evidence surrounding each incident.”11 Defendants
`subsequently filed their Answer to the TAC.12
`
`III. DEFENDANTS MAY MOVE FOR JUDGMENT ON THE PLEADINGS WITH
`RESPECT TO PLAINTIFF’S PAGA CLAIM
`
`“A motion for judgment on the pleadings may be made at any time either prior to the trial
`or at the trial itself.” Stoops v. Abbassi, 100 Cal. App. 4th 644, 650 (2002) (citing Ion Equipment
`Corp. v. Nelson, 110 Cal. App. 3d 868, 877 (1980). “Such motion may be made on the same
`ground as those supporting a general demurrer, i.e., that the pleading at issue fails to state facts
`sufficient to constitute a legally cognizable claim or defense.” Id. (citing McCutchen v. City of
`Montclair, 73 Cal. App. 4th 1138, 1144 (1999)). In other words, “[t]he standard for granting a
`motion for judgment on the pleadings is essentially the same as that applicable to a general
`
`8 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Third Amended Complaint (May
`23, 2018).
`9 Order Re: Demurrer to Third Amended Complaint (June 28, 2018).
`10 Id. at 5. (emphasis added).
`11 Id. at 5. (emphasis added).
`12 Defendants’ Answer to Plaintiff’s Third Amended Complaint (filed July 6, 2018).
`
`
`
`
`
`11
`
`CASE NUMBER: 17-CIV-311757
`DEFENDANTS' NOTICE OF MOTION AND
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`AT T ORNEYS AT L AW
`SAN FRA NCI SCO
`
`
`

`

`
`
`demurrer, that is, under the state of the pleadings, together with matters that may be judicially
`noticed, it appears that a party is entitled to judgment as a matter of law.” Bezirdjian v. O'Reilly,
`183 Cal. App. 4th 316, 321-322 (2010) (internal citation omitted). A motion for judgment on the
`pleadings may be made to the entire complaint or any of a plaintiffs’ causes of action. Cal. Civ.
`Proc. Code § 438(c)(2)(A). The burden of proof is on a plaintiff to show a viable claim to
`overcome a motion for judgment on the pleadings. Blank v. Kirwan, 39 Cal. 3d 311, 318 (1985).
`In California, Defendants are permitted to bring a motion for judgment on the pleadings
`both under the Code of Civil Procedure and the common law. See Gerawan Farming, Inc. v.
`Lyons, 24 Cal. 4th 468, 482 n.2 (2000) (“Since 1994, motions for judgment on the pleadings
`have been authorized by statute.”); see also Cal. Civ. Proc. Code § 438. In Bezirdjian v.
`O’Reilly, for example, the court explained that while motions for judgment on the pleadings have
`been authorized under Section 438 of the California Code of Civil Procedure since 1994, non-
`statutory common law motions for judgment on the pleadings were available before 1994 and
`have remained available ever since. 183 Cal. App. 4th at 321-322; see also Smiley v. Citibank
`(South Dakota) (NA), 11 Cal. 4th 138, n. 2 (1995) (distinguishing between statutory and non-
`statutory motions for judgment on the pleadings and upholding ruling granting non-statutory
`motion for judgment on the pleadings). The procedural requirements governing statutory
`motions for judgment on the pleadings do not apply to common law motions. See, e.g., Robert I.
`Weil et al., California Practice Guide: Civil Procedure Before Trial ¶ 7:277 (2018) (the
`limitations on statutory motions for judgment on the pleadings “may be meaningless because”
`the common law motion “survives without such limitations.”) (emphasis in original). Among
`other things, whereas a statutory motion does not lie on grounds previously raised by demurrer
`unless there has been a material change in the law, Cal. Civ. Proc. Code § 438 (g)(1), common
`law motions are not limited by this statutory requirement.13
`
`
`13 This motion is brought as a common law motion for judgment on the pleadings. In addition to
`considering this as a non-statutory motion, the Court may, in the alternative, consider this motion
`for judgment on the pleadings on statutory grounds under section 438 of the Code of Civil
`Procedure. Although Defendants demurred to the Sixth Cause of Action in Plaintiff’s TAC for
`failure to state a claim, Defendants did not demur to the PAGA claim on manageability grounds.
`
`
`
`
`
`
`12
`
`CASE NUMBER: 17-CIV-311757
`DEFENDANTS' NOTICE OF MOTION AND
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`AT T ORNEYS AT L AW
`SAN FRA NCI SCO
`
`
`

`

`
`
`
`A Court may grant a motion for judgment on the pleadings without leave to amend if the
`pleading “show[s] on its face that it is incapable of amendment.” Virginia G. v. ABC Unified
`Sch. Dist., 15 Cal. App. 4th 1848, 1852 (1993). “Leave to amend should be denied where the
`facts are not in dispute and the nature of the claim is clear, but no liability exists under
`substantive law.” Lawrence v. Bank of America, 163 Cal. App. 3d 431, 436 (1985).
`Prior iterations of Plaintiff’s TAC make clear that Plaintiff’s PAGA claim is incapable of
`amendment such that the claim would prove manageable at trial. Because amendment would be
`futile, Defendants respectfully request that their motion for judgment on the pleadings with
`respect to Plaintiff’s Sixth Cause of Action under PAGA be granted without leave to amend.
`JUDGMENT ON THE PLEADINGS SHOULD BE GRANTED ON PLAINTIFF’S
`IV.
`LABOR CODE SECTION 1102.5 RETALIATION CLAIM UNDER PAGA
`BECAUSE IT CANNOT BE LITIGATED ON A REPRESENTATIVE BASIS
` PAGA Claims Are Fundamentally Representative Claims
`A.
`
`PAGA allows for an award of penalties on behalf of “aggrieved employees.” Cal. Lab.
`Code § 2699(a). Indeed, bringing claims on behalf of other aggrieved employees is the very
`premise of PAGA. See Arias v. Superior Court, 46 Cal. 4th 969, 987 (2009). An “aggrieved
`employee” is defined as “any person who was employed by the alleged violator and against
`whom one or more of the alleged violations was committed.” Cal. Lab. Code § 2699(c). In
`order to recover a PAGA penalty for an employee, a plaintiff in a PAGA action must prove a
`Labor Code violation with respect to each and every individual on whose behalf plaintiff seeks to
`recover civil penalties. Arias, 46 Cal. 4th at 987 (“Recovery of civil penalties under [PAGA]
`requires proof of a Labor Code violation[.]”).
`Requiring proof of Labor Code violati