Maria Azari vs Covenant Living West Inc

Case Number

22CV01556

Case Type

Hearing Date / Time

Fri, 04/19/2024 - 10:00

Nature of Proceedings

Motion: Judgment on the Pleadings

Tentative Ruling

For all reasons further discussed herein, the motion of defendant Covenant Living West for judgment on the pleadings is granted with leave to amend. Plaintiff shall file and serve a first amended complaint, if any, on or before April 29, 2024.

Background:

On April 22, 2022, plaintiff Maria Azari (Azari) filed a complaint against defendant Covenant Living West, Inc. (Covenant Living) asserting seven causes of action: (1) failure to provide meal and rest periods (Lab. Code, §§ 226.7 & 512; IWC wage orders); (2) failure to pay overtime wages (Lab. Code, § 510 et seq.); (3) failure to pay final wages (Lab. Code, §§ 201, 202, 203); (4) failure to provide accurate itemized wage statements (Lab. Code, §§ 226, 1174); (5) failure to pay wages when due (Lab. Code, § 204); (6) unfair business practices (Bus. & Prof. Code, § 17200 et seq.); and (7) unlawful retaliation (Lab. Code, § 1102.5 et seq.). As alleged in the complaint:

Azari was hired by Covenant Living as a Certified Nurse’s Assistant (CNA) in April 2017. (Complaint, ¶ 8.) Covenant House set the work hours, duties, and rate of pay of Azari who was to be compensated at the rate of $17.12 per hour. (Id. at ¶¶ 9 & 10.) For six to eight months, Azari, who worked in excess of 8 hours per day and 40 hours per week, was not paid overtime wages and was not permitted to take meal or rest breaks. (Id. at ¶¶ 12-15.)

On May 16, 2021, Azari and four of her co-workers told the administrator of Covenant Living that it was unfair to assign 120 patients to only five CNA’s because it did not enable them to provide the necessary standard of care to the patients without having to forego meal and rest breaks and work overtime hours, and that they were not receiving meal or rest breaks or being paid for overtime. (Complaint, ¶ 16.) The administrator of Covenant House “brushed them off … and ordered them to get back to work.” (Ibid.)

Also on May 16, 2021, Azari informed Covenant House’s supervising nurse, Michelle, that due to being short staffed, CNAs and nurses had developed a routine of “splitting” the checking of residents’ vital signs but Michelle ignored that the disregarding of this routine would result in meal and rest breaks being forsaken and unpaid overtime would be worked. (Complaint, ¶¶ 19, 20.) Michelle told Azari that she had to listen to her nurse and brought up a grudge she held against Azari from a previous conversation during which Azari tried to persuade Michelle to find nurses to cover for those who called off work when they were short-staffed. (Id. at ¶¶ 20.) After ordering Azari to take a five-minute break, Michell told Azari to leave, stating that Azari would be called to come into work the next day. (Id. at ¶ 22.)

The next day, May 17, 2021, Azari was not called back into work. (Complaint, ¶ 23.)  Azari called the Human Resource Director of Covenant House asking if she could come into work that day. (Ibid.) The Human Resource Director alleged that Azari had abandoned her job without permission or notice. (Id. at ¶ 23.) Azari explained what happened the day prior and gave examples of her dedication to her job. (Id. at ¶ 24.) Though the Human Resource Director said she would call Azari back after an investigation, Azari received a letter 10 days later stating that Azari had been terminated on March 12, 2021, four days prior to the day Michelle demanded that Azari leave the work location. (Id. at ¶ 25.) (Note: Paragraphs 25 and 26 of the complaint appear to include typographical errors with respect to the date Azari was terminated and the dates on which Covenant House failed to pay wages to Azari as further discussed below.)

For at least three years, Covenant House failed to keep accurate daily records of Azari’s work hours and meal breaks. (Complaint, ¶ 17.) Covenant House also failed to provide employees with a writing setting forth the total hours of work for each pay period, payment of wages for rest and meal breaks not taken, the gross and net wages paid, and deductions from wages. (Ibid.) In addition, Covenant House failed to pay Azari amounts due for overtime, meal and rest breaks, and for days worked from March 12 through March 17. (Id. at ¶ 26.)

On June 6, 2022, Covenant House filed its answer to Azari’s complaint, generally denying its allegations and asserting twenty-six affirmative defenses.

On January 31, 2024, Covenant House filed a motion for judgment on the pleadings asserting that the present action is barred on res judicata grounds as a result of a settlement (the settlement) reached in a class action entitled Renee Lopez, on behalf of herself and all “aggrieved employees” pursuant to Labor Code § 2698 et seq. v. Covenant Living West, et al., filed with the Superior Court of Stanislaus County Superior as case number CV-21-001160 (the Lopez action). The motion is opposed by Azari.

In support of the motion, Covenant House has filed a request for judicial notice of: (1) a first amended complaint (the Lopez FAC) filed on August 27, 2021, by plaintiff Renee Lopez (Lopez) in the Lopez action; (2) an order and judgment entered on July 28, 2023, and filed on July 31, 2023, in the Lopez action granting final approval of the settlement (the final approval order); and (3) a notice of entry of the final approval order filed by Lopez in the Lopez action on August 1, 2023 (the notice). (RFJN, ¶¶ 1-3.) 

Covenant House also submits the declaration of its counsel, Timothy C. Travelstead (Travelstead) who declares that plaintiffs in the Lopez action allege the same wage and hour violations in the Lopez FAC. (Travelstead Decl., ¶ 2.) Counsel further declares that the Lopez action settled on December 6, 2022. (Id. at ¶ 3.) Travelstead asserts that Covenant House attempted to meet and confer with Azari prior to filing the present motion but was unsuccessful. (Id. at ¶ 7 & Exh. 5.)

Analysis:

A defendant may move for judgment on the pleadings on the grounds that the plaintiff’s the complaint fails to state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B).) On a motion for judgment on the pleadings, “[t]he issue is whether the complaint raises an issue that can be resolved as a matter of law.” (Westly v. California Public Employees’ Retirement System Bd. of Administration (2003) 105 Cal.App.4th 1095, 1115.)

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d).) In ruling on a motion for judgment on the pleadings, the court “must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220.)

The court grants the unopposed request for judicial notice of Covenant House, and will take judicial notice of the Lopez FAC, the final approval order, and the notice. (Evid. Code, § 452, subd. (d)(1).) (See Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299 (Frommhagen).) Judicial notice does not extend to the truth of any factual assertions or hearsay statements appearing in these court records. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483.)

The term “[r]es judicata … is an umbrella term encompassing issue preclusion and claim preclusion, both of which describe the preclusive effect of a final judgment.” (Guerrero v. Department of Corrections & Rehabilitation (2018) 28 Cal.App.5th 1091, 1098.) Claim preclusion, the primary aspect of res judicata, prevents a party from relitigating the same cause of action in a second suit between the same parties while issue preclusion prevents the relitigation of issues actually litigated and resolved in the prior proceeding. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896; Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) For present purposes, “[i]f all of the facts necessary to show that [this] action is barred by res judicata are within the complaint or subject to judicial notice”, the court may grant the present motion. (Frommhagen, supra, 197 Cal.App.3d at p. 1299.)

In the motion, Covenant House does not appear to contend that issue preclusion operates as a bar to the causes of action alleged in the present complaint. For example, Covenant House utilizes the term res judicata exclusively in the motion, which generally refers to claim preclusion. (See, e.g., Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226 [though “the term ‘res judicata’ is often applied to both doctrines, we follow our Supreme Court in limiting its scope to claim preclusion”].) In addition, Covenant House asserts that Azari is a member of the settlement class in the Lopez action because Azari was an employee of Covenant House from March 5, 2017, through September 30, 2022. (Final Approval Order, ¶ 2 [defining the settlement class in the Lopez class action as “all persons who are or were employed in California by [Covenant House] as non-exempt employees at any time from March 5, 2017 through September 30, 2022].) For this reason, Covenant House contends that the parties in the present action and in the Lopez class action are the same.

Covenant House also argues that under the primary rights theory, the causes of action asserted by Azari here and by Lopez in the Lopez action are the same because the claims involve Azari and Lopez’s right to complain about and seek remedies based on a failure to be paid true and correct wages. (See Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1517 [the primary rights theory “implicates matters of claim preclusion (res judicata), not issue preclusion or collateral estoppel”].) Moreover, Covenant House does not offer any reasoned argument demonstrating that any specific issues were actually litigated and resolved against it in the Lopez action. (See DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN) [“[u]nder issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action”].)

As Covenant House has, for all reasons discussed above, limited its arguments to whether the causes of action alleged in the Lopez FAC and in the present complaint involve the same parties and the same primary rights, the court construes the motion as brought on the grounds of claim preclusion and not issue preclusion. (See DKN, supra, 61 Cal.4th at pp. 818, 824-825 [noting that claim preclusion and issue preclusion have distinctly different requirements].)

In the opposition to the motion, Azari does not dispute that she is a member of the class at issue in the Lopez action, that the Lopez action settled, or that Azari is bound by the settlement in the Lopez action. For example, Azari states that “in advance of the hearing on the instant motion”, Azari will “dismiss the vast majority of her claims because of the res judicata effect of the Lopez matter.” (Opp. at p. 2, ll. 7-9.) However, Azari does not specify which causes of action she effectively concedes are barred under the doctrine of res judicata or which causes of action will be dismissed.

Notwithstanding that Azari intends to dismiss those claims which Azari concedes are barred as a result of the settlement in the Lopez action, Azari asserts that the primary right at issue with respect to her claim of retaliation under Labor Code section 1102.5 is different from the primary rights at issue in the Lopez class action. Therefore, Azari argues, any claims for retaliation alleged by Azari under Labor Code section 1102.5 are not barred by the doctrine of res judicata. (See, e.g., Opp. at p. 1, ll. 23-25 [disputing the motion as to the “1102.5 claims” only]; p. 2, ll. 23-25 [same].) For this reason, Azari argues, the motion should be denied in its entirety.

The court construes Azari’s statements and arguments as a concession that the motion has merit with respect to a significant portion of the claims alleged in the present complaint. Therefore, the court will grant the motion with leave to amend as to those claims which are alleged under or based on Labor Code section 1102.5 and which arise from any purported retaliation by Covenant House. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [plaintiff may amend the complaint “only as authorized by the court’s order”].) The court’s ruling is without prejudice to any future procedurally appropriate pleading challenge, if warranted, that may be filed by Covenant House in response to any first amended complaint filed by Azari.