1)Defendants MC Painting Inc dba MC Painting and MC Contracting, Michael Christian Lewis and Kerry Lynn Lewis?s Demurrer to Complaint
2)Case Management Conference
Defendants’ demurrer is?overruled.
A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, ?because ambiguities can be clarified under modern discovery procedures.???Khoury v. Maly?s of California, Inc. (1993) 14 Cal.App.4th 612, 616;?Saunders v. Cariss?(1990) 224 Cal.App.3d 905, 908 [errors and confusion created by ?the inept pleader? are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief].? Moreover, a demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.??People v. Lim?(1941) 18 Cal.2d 872, 883;?Fenton v. Groveland Community Services Dept.?(1982) 135 Cal.App.3d 797, 809 [Disapproved on other grounds in?Katzberg v. Regents of the University of California?(2002) 29 Cal.4th 300].
Although Plaintiffs? complaint is by no means a model of specificity, it provides sufficient factual allegations under California law.? For example, the allegations which Defendants? identify as ?legal conclusions? are factual allegations,?i.e.??Defendants routinely failed to pay employees? recorded working hours, including travel time . . .? and ?Defendants failed to compensate [Plaintiffs and the class] for all hours worked due to Defendant?s rounding policy . . .? and ?Defendants? payroll policies and procedures required [Plaintiffs and the class] to work in excess of eight hours in a workday and work in excess of forth hours in a workweek . . .???See pages 3 and 4?of Defendants? memorandum of points and authorities, citing ?? 1, 18, 32, 29, 40 and 53 of the Complaint.
In support of their demurrer, Defendants cite to?Brinker Restaurant Corp. v. Superior Court?(2012) 53 Cal.4th 1004;?Tarkington v. California Unemployment Ins. Appeals Bd.?(2009) 172 Cal.App.4th 1494; andClausing v. San Francisco Unified School Dist.?(1990) 221 Cal.App.3d 1224.? None of these cases help Defendants.??Brinker?does not involve a demurrer.??Clausing?involved a claim which could not, under any circumstances, be asserted as a class claim.??Tarkington?helps Plaintiffs rather than Defendants:
?[W]e conclude that it was premature for the trial court to make determinations pertaining to class suitability on demurrer. We reverse the court’s order granting Albertsons’s motion to strike and the court’s accompanying legal ruling that the class definition was “too broad.” The putative class definition alleged in the petition, which we cite here, is sufficient to move forward past the pleading stage: “Petitioners … bring this petition for writ of administrative mandamus on behalf of the entire class of individuals who were employed by Albertson’s at any time during the period October 11, 2003 through February 26, 2004, and who filed timely claims with the EDD for unemployment insurance benefits for all or some of this period, and were denied such benefits on the basis of the trade dispute exception, California Unemployment Insurance Code ? 1262 . . . .”
Tarkington, 172 Cal.App.4th at 1512.
With regard to the open-ended nature of the class definition as to time, this is a common, acceptable way in which to define the duration of the class period, namely by reference to an event rather than a specific date.
To the extent that there is uncertainty regarding the alleged policies and practices, Defendants may follow up with appropriate discovery.??Khoury v. Maly?s of California, Inc. (1993) 14 Cal.App.4th 612, 616.
Plaintiffs to give notice.