ALLEN VS DESERT ORTHOPEDIC CENTER, A MEDICAL GROUP, INC.

matter, although one party may be “technically speaking” a prevailing party for purposes of court costs.” (Id. citing Hilltop Investment Assocs. v. Leon (1994) 28 Cal.App.4th 462, 466.) “This determination is appropriate where both parties seek relief but neither prevails; or where the ostensibly prevailing party received only part of the relief sought. In such cases, the judgment is “considered [both] good news and bad news to each of the parties.” (Id. § 17:869 citing Hsu v. Abbara (1995) 9 Cal.4th 863, 874-875.)

“But it is an abuse of discretion to award fees to a party who prevailed on a minor “battle” but who lost the “war” (the main issue in the action).” (Id. citing Artesia Med. Dev. Co. v. Regency Assocs., Ltd. (1989) 214 Cal.App.3d 957, 966.) “Where relief was denied on both the complaint and crosscomplaint, in cross-actions on the same contract, the court decided there was no prevailing party under Civ. Co. § 1717. The fact the defendant was the prevailing party under CCP § 1032 for purposes of recovering its court costs was irrelevant.” (Id. § 17:870 citing McLarand, Vasquez & Partners, Inc. v. Down Sav. & Loan Ass’n (1991) 231 Cal.App.3d 1450, 1456.)

Here, the “Defense Judgment” was filed on 3/16/26, and entered on 3/24/26. It attaches the jury’s verdict as Exhibit “A”. As to New Generation’s Complaint, the jury found no liability by Defendants, Palm 10, Harvey, and Desert Pacific Properties (DPP) to New Generation’s Complaint. (Defense Judgment p. 17 of 21.) The jury also found no liability by New Generation as to Palm 10’s Cross- Complaint. (Ibid.) The verdict further provided that New Generation “shall take nothing” from Palm 10, Harvey, and DPP for its claims asserted in its Complaint. (Ibid.) And, Palm 10 “shall take nothing” from New Generation. (Ibid.)

Palm 10 argues that it was the prevailing party because it obtained the greater relief by being allowed to keep the $1.5 million in deposit and extension monies and obtaining a release of its lis pendens wrongfully recorded against Palm 10’s property. However, the Judgment is clear that both Palm 10 and New Generation took nothing on their respective actions. These circumstances do not indicate that New Generation obtained the greater relief to make it the prevailing party on the contract claims. New Generation is, therefore, not entitled to attorneys’ fees.

5. CASE # CASE NAME HEARING NAME MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ALLEN VS DESERT ADJUDICATION ON COMPLAINT OF CVPS2405026 ORTHOPEDIC CENTER, A ANDREW ALLEN BY DESERT MEDICAL GROUP, INC. ORTHOPEDIC CENTER, A MEDICAL GROUP, INC., HAZMER CASSIM, DR. STEPHEN O'CONNELL Tentative Ruling: Granted.

Moving Defendants to submit proposed judgment within 10 days of this order becoming final.

Moving Defendants to provide notice pursuant to CCP 1019.5.

This is a wage and hour action.

On August 9, 2024, Plaintiff Andrew Allen (“Plaintiff”) filed a Complaint against Defendants Desert Orthopedic Center, a Medical Group (“Desert Orthopedic”), Hazmer Cassim (“Cassim”), and Dr. Stephen O’Connell (“O’Connell”) (together “Defendants”) for: (1) failure to pay all wages, including overtime; (2) inaccurate wage statements; (3) failure to provide meal periods; (4) failure to provide rest periods; and (5) violation of Bus. & Prof. Code § 17200. In the Complaint, Plaintiff alleges

that he was hired by Desert Orthopedic on August 2, 2004 as a physician assistant (“PA”), and from May 19, 2014 to October 11, 2023, he worked for Desert Orthopedic as a misclassified exempt employee earning a salary. (Complaint at ¶¶ 9-10.) In early October 2023, Plaintiff learned that he was the only PA classified as an exempt employee not receiving overtime or meal and rest breaks. (Complaint at ¶ 14.) At that time, his salary was $175,000 per year; he worked 50-60 hours per week, in addition to being on-call for several days each week; and he was required to track his hours for night and weekend shifts. (Complaint at ¶¶ 11-12, 15.)

In October 2023, Plaintiff spoke to his superior, Barbara Limbardo (“Limbardo”), about not receiving overtime pay, and she advised him that his classification as exempt was incorrect. (Complaint at ¶ 17.) Desert Orthopedic’s medical director confirmed that Plaintiff had been misclassified. (Complaint at ¶ 18.) As a result of the misclassification, Plaintiff did not receive meal or rest breaks, or overtime pay. (Complaint at ¶ 19.) Beginning on October 11, 2023, Plaintiff was classified as a non-exempt employee and began earning an hourly wage. (Complaint at ¶ 16.)

In February 2026, Plaintiff filed a motion for summary adjudication of his 1st cause of action for failure to pay all wages due to his misclassification as an exempt employee. On May 22, 2026, the Court denied Plaintiff’s motion finding that Plaintiff did not meet his burden of establishing, as a matter of law, that he did not receive a salary and was misclassified as an exempt employee, and even if he met that burden, Desert Orthopedic presented sufficient evidence to create a triable issue of material fact as to whether Plaintiff was properly classified as an exempt employee. (5/22/26 Minute Order.)

Defendants now move for summary judgment. They argue that the 1st-4th causes of action for Labor Code violations fail because Plaintiff was properly classified as an exempt professional employee since he was a learned professional exercising independent judgment and was earning a predetermined salary above the minimum wage threshold every pay period, so he was not entitled to overtime, meal and rest breaks, or revised wage statements. They also argue that the 5th cause of action for violation of Bus. & Prof. Code § 17200 fails because no underlying claim supports it, and the claim for punitive damages fails because there is no malicious, fraudulent, or oppressive conduct.

In opposition, Plaintiff argues that the motion should be denied because Defendants fail to prove each element of the professional exemption. He also argues that triable issues of material fact exist as to whether the exemption applies because he was required to track and record his time; he was paid varying amounts in different pay periods; his paystubs continued to reflect that he was being paid a salary after he was classified as a non-exempt employee in October 2023; and his duties were protocol-driven, supervised, and non-managerial. Finally, he argues that the prior ruling denying his motion for summary adjudication does not entitle Defendants to summary judgment.

In reply, Defendants argue that the evidence clearly shows that Plaintiff was an exempt employee, and Plaintiff is now trying to contradict his own deposition testimony to create a dispute over whether he qualified as such. They also argue that Plaintiff has admitted throughout this litigation that he was paid a salary, and he fails to identify any pay period when he was paid less than his salary. Finally, they argue that Plaintiff’s new theory, not asserted in the Complaint, that Desert Orthopedic violated Labor Code § 226 when it continued to pay Plaintiff a salary after it reclassified him as a non-exempt employee is improper for several reasons: (1) Plaintiff’s misclassification claims are limited to the pleadings, where he alleges he was misclassified between May 19, 2014 and October 11, 2023; (2) it has no bearing on the professional exemption issue raised by this motion; and (3) even if the court considers the theory, Plaintiff presents no evidence that he suffered any injury under Labor Code § 226.

Evidentiary Objection(s)

Plaintiff’s Objections

Plaintiff objects to several facts set forth in Defendants’ separate statement. These objections lack merit, as the statements in the separate statement do not constitute evidence. As there is no basis to assert evidentiary objections to the separate statement, these objections are overruled.

Defendant Desert Orthopedic’s Objections

Defendants object to ¶¶ 4-12 of Plaintiff’s declaration, and Exs. A-C thereto, regarding his paycheck stubs and timesheets and what they show, and stating that he was required to track his time, was not paid for overtime, and that the amount he was paid varied by pay period. Overruled.

Defendants also object to ¶¶ 13-15 of Plaintiff’s declaration, in which he details his day-to-day job responsibilities and job duties, on the ground that these statements contradict Plaintiff’s prior deposition testimony. Sustained.. (See, D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.)

Defendants object to Exs. A-G attached to the Decl. of Matthew Perez [“Perez Decl.”]. As Mr. Perez has no personal knowledge or foundation regarding Exs. A-E (Plaintiff’s paystubs, timesheets, and a Personnel Action Form), the objections to these exhibits are sustained. The objections to the deposition transcripts attached as Exs. F and G are overruled.

Request for Judicial Notice (RJN)

Defendants request that the Court take judicial notice of: (1) the Complaint, filed 8/9/24; (2) the Court’s 5/22/26 ruling denying Plaintiff’s motion for summary adjudication; and (3) Plaintiff’s PA license. These documents are the proper subject of judicial notice [Evid. Code § 452(d), (h)], and Plaintiff raises no objection. GRANTED

Summary Judgment

Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (C.C.P. § 437c(c).) A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (C.C.P. § 437c(p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Importantly, a moving defendant establishes a right to summary judgment by showing that the plaintiff lacks the evidence to support at least one element of the cause(s) of action pleaded. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756. See also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.)

Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar, supra, 25 Cal.4th at 849.) The opposing party may not rely upon the allegations or denials in its pleadings, but must “set forth the specific facts showing that a triable issue of material fact exists.” (C.C.P. § 437c(p)(2).) Claims and theories not supported by admissible evidence do not raise triable issues of fact. (Rochlis v.

Walt Disney Co. (1993) 19 Cal.App.4th 201, 219, disapproved on another ground in Turner v. Anheuser–Busch, Inc. (1994) 7 Cal.4th 1238.) However, while summary judgment is no longer considered a “disfavored” procedure, the moving party’s evidence must be strictly construed, while the opposing party’s evidence must be liberally construed. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832,

838.) If the plaintiff does not meet his burden of establishing a triable issue of material fact, summary judgment in favor of the defendant is appropriate.

1st through 4th Causes of Action – Issue of Whether Plaintiff Was Properly Qualified as an Exempt Employee

Plaintiff’s claims in this action are based on his contention that he was improperly classified as an exempt employee, and because he was so classified, he was not paid for overtime, did not receive meal or rest breaks, and did not receive accurate wage statements. (Complaint at ¶¶ 10, 23-24, 26-30, 33-35, 38-41, 45-50.) Defendants move for summary judgment of these claims on the ground that the undisputed evidence shows that Desert Orthopedic properly classified Plaintiff as an exempt employee, and Plaintiff was therefore not entitled to overtime, meal and rest breaks, and revised pay statements. (Motion; P&As iso Motion, pp. 1:2-4:11.)

Pursuant to Labor Code § 515(a), an employee is exempt from various requirements “if the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” Thus, in California, to qualify as exempt from wage and hour laws, an employee must meet both the salary basis test and the job duties test. (Lab. Code § 515(a); see also Conley v. Pacific Gas & Electric Co. (2005) 131 Cal.App.4th 260, 266.)

1. Job Duties

Under the job duties test, the employee’s primary job duties must fall within the recognized exemptions, one of which is the “professional exemption.” Under Wage Order No. 4-2001 and Labor Code section 515, to qualify for the professional exemption, the employee must either have a license and be primarily engaged in the field of “law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting,” or be engaged in an occupation recognized as a “learned profession.” (See 8 C.C.R. § 11040(1)(A)(3)(a)-(b).)

An employee is engaged in a learned profession if he or she performs “work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study.” (8 C.C.R. § 11040(1)(A)(3)(b)(i).) Under either circumstance, the employee must also “customarily and regularly exercise discretion and independent judgment” in performing their duties. (8 C.C.R. § 11040(1)(A)(3)(c).)

All exemptions turn on the primary duty test – the duty that consumes more than half of the employee’s work time. (See, Nordquist v. McGraw-Hill Broad. Co. (1995) 32 Cal.App.4th 555, 563.) Evidence of occasional exempt tasks does not establish exempt status if non-exempt duties predominate. (Id.) Moreover, “discretion and independent judgment involves the comparison and evaluation of possible courses of conduct, and acting or making a decision after considering various possibilities. It implies that the employee has the power to make an independent choice free from immediate supervision and with respect to matters of significance.

The decision may be in the form of a recommendation for action subject to the final authority of a superior, but the employee must have sufficient authority for the recommendations to affect matters of consequence to the business or its customers... An employee who merely applies his or her knowledge in following prescribed procedures or in determining which procedures to follow, or who determines whether specified standards are met ... is not exercising discretion and judgment of the independent sort...” (Id.)

In support of their argument that Plaintiff qualifies for the professional exemption, Defendants present the following evidence:

Plaintiff holds, and at all relevant times held, a valid physician’s assistant license [RFJN, Ex. 3];

Plaintiff obtained a bachelors of science from USC and a master’s of Medical Science Physician Assistance from Yale [Deposition of Andrew Allen, attached as Ex. 1 to Defendants’ Compendium of Evidence (“Defendants’ COE”), p. 13:4-15];

At Desert Orthopedic, Plaintiff “basically ran a parallel clinic to Dr. O’Connell,” seeing patients on his own schedule and assisting Dr. O’Connell in surgeries [Defendants’ COE, Ex. 1, p. 26:4-11];

He saw between 12 and 40 patients a day, and after 2020, he regularly saw 30-40 patients per day [Defendants’ COE, Ex. 1, p. 27:4-20];

In a routine visit with a patient, he “would examine the patient, make a diagnosis, [and] offer treatment options” [Defendants' COE, Ex. 1, pp. 27:23-28:4, 37:3-19];

Plaintiff ordered 2-3 MRIs for patients per day [Defendants' COE, Ex. 1, p. 37:20-24];

He communicated with patients via email almost every day [Defendants' COE, Ex. 1, p. 64:2-17]

Plaintiff’s job was “intellectually challenging” and every day was different [Defendants' COE, Ex. 1, pp. 28:20; 29:10];

From 2020 on, Plaintiff was in the clinic 3.5-4 days per week, and sometimes 5 days because Dr. O’Connell was taking more time off [Defendants' COE, Ex. 1, p. 30:15- 25]; and

From 2020 on, Dr. O’Connell was in the clinic exam room with Plaintiff about 10 percent of the time, often post-op, so the patient could see the surgeon or if something else needed to be addressed [Defendants' COE, Ex. 1, pp. 34:6-23, 37:3-8].

Based on the evidence that Plaintiff holds a PA license and obtained a PA master’s degree from Yale [RFJN, Ex. 3, Defendants' COE, Ex. 1, p. 13:4-15], Defendants have established that Plaintiff is a professional and/or a learned professional for purposes of the professional exemption. (See 8 C.C.R. § 11040(1)(A)(3)(a)-(b).) Defendants’ evidence, in the form of Plaintiff’s own testimony, that Plaintiff saw 30-40 patients per day, with Dr. O’Connell in the exam room with him only 10 percent of the time, and Plaintiff examined, diagnosed, and treated these patients, only involving Dr.

O’Connell if he (Plaintiff) had a question or the patient wanted to see the surgeon [Defendants' COE, Ex. 1, pp. 26:4-11, 27:4-28:4, 30:15-25, 34:6-23, 37:3-24, 64:2-17] is sufficient to establish that Plaintiff had the power to make independent choices, and customarily and regularly (i.e., more than 50% of the time) exercised discretion and independent judgment” in performing his duties. (8 C.C.R. § 11040(1)(A)(3)(c); Nordquist, supra, 32 Cal.App.4th at 563.) Therefore, Defendants have met their burden of establishing that Plaintiff meets the job duties portion of the professional exemption, and the burden shifts to Plaintiff to present evidence creating a triable issue of material fact.

Plaintiff does not truly dispute any of the above evidence (and cannot, as it all comes directly from his own deposition testimony). However, in an effort to show he did not act with discretion and

independent judgment, Plaintiff presents evidence that he sometimes would bring in Dr. O’Connell to help make a diagnosis if he was unable to do so, or include him in a post-op appointment where the patient wanted to see the surgeon. (Deposition of Andrew Allen, attached as Ex. F to Plaintiff’s Compendium of Exhibits [“Plaintiff's' COE”], pp. 29:4-10, 35:1-10.) This evidence, however, does not show that Plaintiff’s primary duties (more than 50% of his work) were non-exempt.

Plaintiff also submits his declaration as evidence, in which he states that “his clinical decisions were constrained by written protocols and supervisory requirements,” and he “had minimal discretion outside the established clinical pathways.” (Decl. of Andrew Allen [“Allen Decl.”] at ¶¶ 14-15.) However, these statements contradict Plaintiff’s prior deposition testimony that he “ran a parallel clinic to Dr. O’Connell;” often saw patients on his own and examined, diagnosed, and treated them; and was on his own with patients approximately 90% of the time. (Defendants' COE, Ex. 1, pp. 26:4-11, 27:4-28:4, 30:15-25, 34:6-23, 37:3-24.) Therefore, they are inadmissible. (See, D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22 [a party cannot create an issue of fact by a declaration which contradicts his prior deposition testimony].)

Accordingly, Plaintiff fails to create a triable issue of material fact as to whether he meets the job duties portion of the professional exemption. For the exemption to apply, Defendants must also satisfy the salary basis test as well. (Lab. Code § 515(a); see also Conley, supra, 131 Cal.App.4th at 266.)

2. Salary

Under the salary basis test of the professional exemption, the employee must earn a fixed monthly salary that is at least twice the state minimum wage for full-time employment (i.e., greater than $66,560 as of 2024). (Lab. Code § 515(a); 8 C.C.R. § 11040(1)(A)(3)(d).)

Defendants present evidence that in his deposition, Plaintiff admitted that in 2014, he negotiated a $175,000 salary with Desert Orthopedic, and his compensation from then on was made up of that salary plus on-call bonuses. (Defendants’ COE, Ex. 1, pp. 116:21-117:17, Ex. 2, pp. 282:20- 283:5.) Defendants also present evidence that Plaintiff was always paid a minimum of $6,730.77 each pay period, which was equal to his $175,000 salary; he also paid overtime or an incentive for his hospital hours; and he was paid the minimum amount even if he worked less than 40 hours. (Deposition of Barbara Limardo, attached to Defendants’ COE as Ex. 3, pp. 59:16-62:23, 64:11- 16, 87:6-24.)

Thus, Defendants have presented sufficient evidence to satisfy the salary basis test for the professional exemption, and shift the burden to Plaintiff to create a triable issue of material fact as to whether he was actually paid a salary.

Plaintiff presents evidence that he was required to track his time, he was paid different amounts each pay period, his pay stubs listed his hours and various earning categories, and he was sometimes paid overtime, arguing that this shows he was not paid a salary. (Allen Decl. at ¶¶ 7- 11, Plaintiff's COE, Exs. A-C.) He cites the case of Negri v. Koning & Associates (2013) 216 Cal.App.4th 392, as support for his contention that because he was paid different amounts on each paycheck, he was not paid a salary.

In Negri, the court noted that “the question presented in this case is whether a compensation scheme based solely upon the number of hours worked, with no guaranteed minimum, can be considered a salary.” (Id. at 395.) In resolving this question in the negative, the court stated: “A salary is generally understood to be a fixed rate of pay as distinguished from an hourly wage. Thus, use of the word salary implies that an exempt employee's pay must be something other than an hourly wage.” (Id. at 397 [internal quotations omitted].)

The court noted that federal regulations provide that “[a]n employee is paid on a salary basis if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee 's compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.”

(Id. at 398 [internal quotations omitted][emphasis added].) The court acknowledged that “as a general matter, an exempt employee may be paid extra for extra work without losing the exemption,” but found that rule did not apply in that case because the employer had stipulated that it did not pay the plaintiff a guaranteed salary. (Id. at 400.)

Here, while Plaintiff presents evidence that he was paid different amounts each pay period, he does not present evidence that the amount paid was subject to reduction based on the amount or quality of his work. Further, Defendants present evidence that Plaintiff was only required to track his hours for incentive/overtime pay purposes, and the categories and hours listed on the paystubs was to provide transparency to the employees. (Defendants’ COE, Ex. 3, pp. 21:13-23, 42:13-43:3, 59:16-63:12.)

Additionally, payment of overtime wages does not show the lack of a salary for purposes of determining exemption status. (Boykin v. Boeing Co. (9th Cir. 1997) 128 F.3d 1279, 1281 [“The DOL has unequivocally and consistently declared that additional compensation in the form of hourly overtime payment does not defeat exempt status under the salary-basis test”].) As Defendants’ evidence establishes that Plaintiff was always paid a minimum amount equal to his $175,000 salary, regardless of the hours he worked [Defendants' COE, Ex. 3, pp. 59:16-62:23, 64:11-16, 87:6-24], and Plaintiff presents no evidence to the contrary, Plaintiff fails to meet his burden of establishing a triable issue of material fact regarding whether he was paid a salary.

As Defendants presented sufficient evidence to establish Plaintiff met both the job duties and salary basis tests to qualify for the professional exemption, and Plaintiff presents no evidence to the contrary, the summary judgment motion must be granted.

Plaintiff’s New Theory

In a final attempt to defeat Defendants’ motion for summary judgment, Plaintiff asserts a new theory: that Desert Orthopedic violated Labor Code § 226 by labeling Plaintiffs compensation as a salary after it reclassified him as a non-exempt employee on October 11, 2023. (Opposition, pp. 8:21-9:24.)

Defendants argue that this argument is improper because it is based on facts and a theory not pled in the Complaint, and a plaintiff cannot defeat summary judgment by asserting a new unpled theory. Defendant is correct. “The burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) “A moving party seeking summary judgment or adjudication is not required to go beyond the allegations of the pleading, with respect to new theories that could have been pled, but for which no motion to amend or supplement the pleading was brought, prior to the hearing on the dispositive motion.” (Howard v.

Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 421.) “To create a triable issue of material fact, the opposition evidence must be directed to those issues raised by the pleadings.” (Id. at 423.)

Now Plaintiff alleges that “from May 19, 2014 to October 11, 2023, Plaintiff worked under Defendant Dr. O’Connell as a misclassified exempt employee earning a salary.” (Complaint at ¶ 10.) He also alleges that “[a]s a result of being misclassified from May 19, 2014 to October 11, 2023, Plaintiff did not receive meal and rest periods. Similarly, despite working more than 8 hours per day and/or 40 hours per week Plaintiff was paid an overtime wage.” (Complaint at ¶ 19.) Thus, his claims as asserted in the Complaint are based on his alleged misclassification as an exempt employee from May 19, 2014 to October 11, 2023. While Plaintiff alleges that beginning October 11, 2023, he was reclassified as a non-exempt employee earning an hourly wage [Complaint at ¶ 16], there are no allegations of any wrongful conduct by Defendants after October 11, 2023, or

as a result of this reclassification or how he was paid thereafter. (See, Complaint, generally.) Therefore, Plaintiff cannot defeat summary judgment based on this theory. (Howard, supra, 203 Cal.App.4th at 421, 423; Hutton, supra, 213 Cal.App.4th at 493.) Furthermore, Plaintiff presents no evidence to support this theory, only conclusory arguments. (Rochlis, supra, 19 Cal.App.4th at 219 [claims and theories not supported by admissible evidence do not raise triable issues of fact].)

5th Cause of Action - Violation of Bus. & Prof. Code § 17200

In addition to the claims for failure to provide overtime wages, rest and meal breaks, and accurate wage statements, Plaintiff asserts a cause of action for violation of Bus. & Prof. Code §17200 based on the same alleged Labor Code violations. Bus. & Prof. Code § 17200 prohibits any business act or practice that is unlawful, unfair, or fraudulent. An “unfair” practice occurs “when that practice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (Moran v.

Prime Healthcare Mgmt., Inc. (2016) 3 Cal.App.5th 1131, 1150 [citation and internal quotation marks omitted].) Under the unlawful prong, the UCL borrows violations of other laws and treats them as unlawful business practices that are independently actionable under the UCL. (Smith v. State Farm (2001) 93 Cal.App.4th 700, 718.) To satisfy the fraudulent prong of the UCL, the plaintiff must show that the business practice is likely to deceive the public. (Klein v. Earth Elements (1997) 59 Cal.App.4th 965.)

A cause of action for violating this statute “borrows” actionable conduct and makes it independently actionable under the unfair competition law. (Smith v. State Farm (2001) 93 Cal.App.4th 700, 718.) Since Defendants have established that Plaintiff’s Labor Code claims fail as a matter of law, Plaintiff has not alleged any unlawful conduct supporting this cause of action. (Smith, supra, 93 Cal.App.4th at 718.)

6. CASE # CASE NAME HEARING NAME DEMURRER ON COMPLAINT OF CVPS2604217 MADRIGAL VS DELACRUZ ENRIQUE MADRIGAL BY AIDEN RAZIEL DELACRUZ Tentative Ruling: Sustained.

Sustained as to 3rd cause of action. Plaintiff granted leave to amend, one last and additional time, within 10 days of this order becoming final. If Plaintiff does not file a 1st Amended Complaint, moving Defendant is to file their answer within 20 days to the remaining causes of action on the operative complaint.

Moving Defendant to provide notice pursuant to CCP 1019.5.

Plaintiff Enrigue Madrigal brings this personal injury action arising out of a car accident on 10/17/25 at Madison St. and Miles Ave. in Indio. Plaintiff alleges Defendant Aiden Raziel Delacruz rear ended him, and admitted to being intoxicated. The complaint, filed 5/13/26, asserts: (1) motor vehicle; (2) general negligence; and (3) intentional tort (intentional infliction of emotional distress).

Defendant demurs to the 3rd cause of action for failure to state facts sufficient. Defendant argues that he and Plaintiff are strangers and occupied the roadway at the same time. There are no allegations that would support any intent to cause emotional distress. He also argues that Plaintiff does not allege severe emotional distress. Defendant also moves to strike punitive damages, contending it does not meet the standard of Taylor or Dawes.

In opposition, Plaintiff contends reckless disregard of the probability of causing emotional distress is sufficient for the claim, and that he has sufficiently pled the intent. Alternatively, he requests leave to amend.

Demurrer

A demurrer tests the legal sufficiency of the pleading, but not the truthfulness of the allegations. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Id.)

The elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) Conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)

The first issue is that Plaintiff does not plead facts demonstrating extreme and emotional distress. “Only emotional distress of ‘such substantial quantity or enduring quality’ that an individual in civilized society should not be expected to endure it constitutes severe emotional distress.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) Facts regarding the nature, extent or duration of the alleged emotional distress should be pled in the complaint to support severe emotional distress. (Ibid.)

The second issue is intent. “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen, supra, at 903.) In Christensen, the Court held that family members of a deceased could not sue for intentional infliction of emotional distress for the intentional mishandling of the decedent’s remains. (Id. at 877-879, 906.)

In Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 975, the plaintiff property owners lived adjacent to a landfill where the defendant disposed toxic waste subjected the plaintiffs to exposure of carcinogens, resulting in an enhanced but unqualified risk of developing cancer. The Court concluded that Christensen precluded liability for intentional infliction of emotional distress unless the defendant’s conduct was directed at the plaintiffs, or undertaken with the knowledge of these specific plaintiffs and consumption of the groundwater, and with knowledge that they would suffer severe emotional distress. (Id. at 974, 1002-1003.)

Here, in the operative complaint, Plaintiff alleges that it was directed to Plaintiff because he was in the zone of danger. (Complaint, p. 6.) That is not sufficient for purposes of demonstrating that it was directed to Plaintiff. There are no allegations that Defendant drove drunk to rear end Plaintiff specifically.

Plaintiff is relying on reckless disregard. “The law limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant.’ [Citation.] The only exception to this rule is that recognized when the defendant is aware of, but acts with reckless disregard of the plaintiff and the probability that his conduct will cause severe emotional distress to that plaintiff. [Citations.] Where reckless disregard of the plaintiff's interests is the theory of recovery, the presence of the plaintiff at the time the outrageous conduct occurs is recognized as the element establishing a higher degree of culpability which, in turn, justifies recovery of greater damages by a broader group of plaintiffs than allowed on a negligent infliction of emotional distress theory.” (Christensen, supra, 54 Cal.3d at 905.)