Schlickman vs. Anser Advisory

The parties do not dispute that the statute of limitations under the Unfair Competition Law (UCL) is four years and begins to run upon accrual of the claim. (See Bus. & Prof. Code § 17208; see also Fox v. Ethicon-Endo Surgery, Inc. (2005) 35 Cal. 4th 797, 806 [a cause of action accrues at the time when the cause of action is complete with all of its elements]).

The TAC alleges the following: Sometime between 3/4/19 to 10/11/19, Plaintiff complained about sick leave. (TAC, ¶ 56.) She took Pregnancy Disability Leave (PDL) starting 10/14/19. (TAC, ¶ 59.) On 12/3/20, Plaintiff inquired about returning to work to her position and a date to do so. Ms. Humbert informed Plaintiff that with the consolidation of both companies into one that the administrative side of the company was completely covered and the position Plaintiff previously held was “dissolved”. (TAC, ¶ 66.) Plaintiff’s employment was terminated on 2/5/21. (TAC, ¶ 27.)

Moving Defendants were added to this case on 4/18/24, when Plaintiff filed her First Amended Complaint. Moving Defendants argue that Plaintiff’s claims are time-barred because applying the four-year statute of limitations, Plaintiff had until 10/14/23 to file her lawsuit against them.

Plaintiff also argues that even if an additional 178 days is added by Judicial Council Emergency Rule 9, Plaintiff’s deadline would have been 4/9/24 – i.e., still before the Defendants were added to this case.

In her opposing papers, Plaintiff argues that the relationback doctrine applies to the individual defendants who were named in the First Amended Complaint, and as such, the relevant date is when the original Complaint was filed - i.e., 8/28/23.

With regards to the relation-back doctrine, an amendment filed after the statute of limitations has run will be deemed filed as of the date of the original complaint “provided recovery is sought in both pleadings on the same general set of facts.” (Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600.)

The facts pertaining to the individual defendants with regards to Plaintiff’s employment and disability leave relate to the facts against the Anser Defendants, and the Moving Defendants do not argue otherwise. However, Moving Defendants cite to Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176, where the court held: “The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed... A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint.” (Id. at 176.)

As relevant here, Section 474 of the Code of Civil procedure provides, in part:

When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; .... the copy of the first pleading

or notice served upon such defendant bore on the face thereof a notice stating in substance: “To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).” The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. ...

The court in Woo further states,

Among the requirements for application of the section 474 relation-back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint. [citation] Here [the plaintiff] made no apparent attempt to satisfy this procedural requirement. The amended complaint adds Woo as a defendant but does not identify him as a substitute for a previously named fictitious defendant. Furthermore, the summons served on Woo identifies him as being sued as an individual defendant, not as a defendant previously sued under a fictitious name.

(Woo, 75 Cal.App.4th at 176, emphasis supplied.)

The court also held,

“A further and non-procedural requirement for application of the section 474 relation-back doctrine is that [the plaintiff] must have been genuinely ignorant of [the defendant]’s identity at the time she filed her original complaint. ..., if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay.”

(Id. at 177.)

Pursuant to the holding in Woo, the relation-back doctrine does not apply in this instance. Plaintiff did not substitute Cooley and Humbert as “Doe” Defendants. They were

named and added as individual Defendants in the First Amended Complaint, which was filed after the expiration of the statute of limitations. The Summons served on Moving Defendants also does not identify them as Doe Defendants or by any other fictious name. (See Summons [ROA 255]). Plaintiff failed to comply with Section 474.

However, the court in Woo went on to state:

We conclude that [the plaintiff] would be permitted to allege that [the defendant] is a defendant substituted for a fictitious Doe defendant named in her original complaint and therefore do not hold that her noncompliance with the procedural requirements of section 474 forecloses consideration of her section 474 relation-back contention. However, in other cases the courts may well require strict compliance and counsel are advised to follow the simple correct procedure for substituting a named defendant for a fictitious Doe defendant.

(Woo, 75 Cal.App.4th at 177.)

Accordingly, the court finds that Plaintiff’s failure to list Cooley and Humber as Doe defendants does not, alone, warrant sustaining the demurrer without leave to amend.

However, Moving Defendants separately contend that Plaintiff failed to comply with Section 474 because her own pleading demonstrates that she was not ignorant of Moving Defendants’ identities at the time she filed her original complaint.

With regards to Defendant Cooley, Plaintiff alleges that he was the Chief Operating Officer (COO) and Corporate Development Director from November 2018 to March 2021, a time period covering the entirety of Plaintiff’s employment. (TAC, ¶ 14.) Plaintiff alleges that Cooley was one of the ultimate decision-makers regarding her wrongful termination, and that Cooley verbally berated/reprimanded Plaintiff while both of them were in a fish-bowl like glass office with onlookers, yelling at Plaintiff. (TAC, ¶ 14.)

It may be possible that Plaintiff can amend her complaint to allege that she was ignorant of the facts regarding Cooley’s liability with respect to the UCL claims. The TAC alleges that Cooley “berated her” but does not allege any other communications or dealings between Plaintiff and Cooley that could leave one to believe that she was not ignorant of his identity with regards to the specific UCL claims based on overtime, minimum wage, meal periods, rest periods, and failure to reimburse necessary expenses.

However, the same cannot be said for Defendant Humbert. Plaintiff alleges that Humbert communicated directly with Plaintiff regarding leave, termination, and severance. (TAC, ¶¶ 14, 66-85.) The court also notes that Plaintiff made these allegations against Humbert in her original complaint, which was filed on 8/28/23. (See Compl., ¶¶ 26- 45). As such, the court sustains the demurrer as to these causes of action without leave to amend as to Defendant Humbert.

Labor Code Section 558.1

Next, Moving Defendants argue that Plaintiff failed to allege facts sufficient to show individual liability pursuant to Labor Code section 5581.1 as to the 9th, 11th, 12th, 13th, 14th, 15th and 16th causes of action.

Section 558.1 provides,

(a) Any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation. (b) For purposes of this section, the term “other person acting on behalf of an employer” is limited to a natural person who is an owner, director, officer, or managing agent of the employer, and the term “managing agent” has the same meaning as in subdivision (b) of Section 3294 of the Civil Code.

(c) Nothing in this section shall be construed to limit the definition of employer under existing law.

11th C/A (sick leave) – SUSTAINED (w/out leave)

Moving Defendants argue that there is no basis for individual liability under Labor Code section 558.1 for failure to pay sick leave in violation of Labor Code section 246. As Moving Defendants note, Section 558.1 provides for personal liability only where a natural person violates, or causes to be violated, “any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission,” or the specifically enumerated Labor Code sections. Section 246 is not among them. (See Usher v.

White (2021) 64 Cal.App.5th 883, 896- 897 [“to be held liable section 558.1, an ‘owner’ such as Shirley must either have been personally involved in the purported violation of one or more of the enumerated provisions; or, absent such personal involvement, had sufficient participation in the activities of the employer, including, for example, over those responsible for the alleged wage and hour violations, such that the ‘owner’ may be deemed to have contributed to, and thus for purposes of this statute, ‘cause[d]’ a violation.”].)

Here, Plaintiff has not demonstrated in her opposing papers that Labor Code section 246 falls within the purview of Labor Code section 558.1. Accordingly, the court sustains the demurrer to this cause of action without leave to amend.

UCL C/As related to minimum wages, overtime wages, untimely meal periods, untimely rest periods, and failure to reimburse necessary business expenses – SUSTAINED (w/leave as to Cooley only)

With regards to the causes of action for UCL claims based on minimum wages, overtime wages, untimely meal periods, untimely rest periods, and failure to reimburse necessary business expenses, this court will only analyze whether the allegations are sufficiently alleged against

Defendant Cooley, as these claims against Defendant Humbert are time-barred as explained above.

In order for Cooley to be liable for these causes of action pursuant to Labor Code section 558.1, Defendant Cooley “must either have been personally involved in the purported violation of one or more of the enumerated provisions” or “had sufficient participation in the activities of the employer, including, for example, over those responsible for the alleged wage and hour violations”. (Usher, 64 Cal.App.5th at 896-897.)

In Usher, the court found that the entity’s owner/individual defendant was not liable, as follows: “Shirley was never consulted about, or provided any guidance regarding, the classification of service technicians; played no role in the hiring of technicians; did not create, draft or contribute to the content of any of the independent contractor agreements utilized by White Communications; and did not sign any such agreements on behalf of the company”. (Id. at 897; See also Espinoza v. Hepta Run, Inc. (2022) 74 Cal.App.5th 44, 59 [“We agree generally with Usher and the federal cases it cited that, in order to ‘cause’ a violation of the Labor Code, an individual must have engaged in some affirmative action beyond his or her status as an owner, officer or director of the corporation.”]).

Here, the TAC alleges the following as to Defendant Cooley’s involvement:

“GARY COOLEY was the Chief Operating Officer and Corporate Development Director of ANSER ADVISORY, LLC from November 2018 to March 2021, a time period covering the entirety of SCHLICKMAN’s employment. According to his LinkedIn profile, as COO and CDD, COOLEY was a “[m]ember of [the] Executive Leadership Team responsible for development of strategic partnerships and mergers and acquisitions that fit the company’s aggressive acquisition strategy.” He was also “[r]esponsible for leading marketing, business development and strategic growth initiatives as well as managing the core operating activities including Finance, Human Resources, Information Technology and Risk Management. On information and belief, given

his role, SCHLICKMAN believes COOLEY was one of the ultimate decision makers regarding her wrongful termination from ANSER ADVISORY MANAGEMENT, LLC. Additionally, COOLEY verbally berated/reprimanded SCHLICKMAN while both of them were in a fish-bowl like glass office with onlookers, yelling at SCHLICKMAN.”

(TAC, ¶ 14.)

“At all relevant times herein, Defendants ANSER ADVISORY, LLC, ANSER ADVISORY MANAGEMENT, LLC, and individual Defendants SUDIR DAMLE, GARY COOLEY, MARLENE HUMBERT, and LOYELLA COUTTS subjected Plaintiff to pervasive and severe workplace harassment due to her sex, pregnancy, actual and/or perceived disability, and/or her request for accommodation.”

(TAC, ¶ 85).

These allegations do not satisfy the standard set forth in Usher.

Plaintiff’s allegations do not demonstrate any affirmative action relating to Plaintiff’s minimum wages, overtime, meal period, rest periods, or reimbursement claims beyond Cooley’s status as COO and CDD, and the incident wherein he “berated” Plaintiff for reasons that were not even specified.

Accordingly, the court SUSTAINS these causes of action as to Defendant Cooley with leave to amend.

Waiting Time Penalties Through the UCL – SUSTAINED (w/leave as to both Humbert and Cooley)

Finally, Moving Defendants demur to Plaintiff’s cause of action for “Lab. Code § 203 Waiting Time Penalties For Willful Violation Of Lab. Code § 201 OR § 202 [Violation of Lab. Code §§ 201-203 Through Bus. & Prof. Code §§ 17200 and 17208 (UCL)]” because the UCL does not permit recovery of waiting time penalties under Lab. Code § 203.

In Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1401, the California Supreme Court held:

By contrast, permitting recovery of section 203 penalties via the UCL would not ‘restore the status quo by returning to the plaintiff funds in which he or she has an ownership interest.’ [citation] Section 203 is not designed to compensate employees for work performed. Instead, it is intended to encourage employers to pay final wages on time, and to punish employers who fail to do so. In other words, it is the employers' action (or inaction) that gives rise to section 203 penalties. The vested interest in unpaid wages, on the other hand, arises out of the employees' action, i.e., their labor. Until awarded by a relevant body, employees have no comparable vested interest in View more Negative Treatments section 203 penalties. We thus hold section 203 penalties cannot be recovered as restitution under the UCL.

(Id. at 1401-1402.)

Here, Plaintiff seeks waiting time penalties through the UCL. Accordingly, the demurrer is sustained as to this cause of action, with a final opportunity to amend this claim.

Plaintiff is grants 10 days leave to file an amended complaint as noted above.

Moving Defendants to give notice.

2. Upcoming CMC

The action is still not at-issue. As such, the court CONTINUES the scheduled 8/3/26 Case Management Conference to 11/30/26, at 10:00 am in Dept. W8. All appearing parties SHALL file and serve a timely case management statement at least 15 calendar days prior to the continued hearing as required by the rules, including California Rules of Court rule 3.725 and Local Rule 369.

Plaintiff to give notice.

17 Romero vs. Herrera Motion to Strike (re First Amended Complaint)

The court DENIES Defendant JENESSA ANGELINE HERRERA’s motion to strike the claim for exemplar/punitive damages of the First Amended Complaint (FAC) filed by Plaintiffs BERNABE ROMERO, MARCELA SANCHEZ, YOSELIN ROMERO, and DAYANA ROMERO.

To plead a claim to recover punitive damages, a plaintiff must plead and show one of the following bases for imposition of exemplary damages, i.e. malice, oppression, or fraud. (Civ. Code, § 3294(a).) The statute defines “malice” to mean “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294(c)(1).)

Conduct carried on with a willful and conscious disregard of the rights or safety of others but that is not despicable will not support an award of punitive damages. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “Despicable conduct” is conduct that is so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) Such conduct has been described as “having the character of outrage frequently associated with crime.” (Id.)

A complaint must allege specific factual allegations to support a request for punitive damages. (See, e.g., Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [allegations that defendant’s conduct was intentional, willful, malicious, performed with ill will, and in conscious disregard of plaintiffs’ rights does not satisfy the specific pleading requirement].) “Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a

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