Moises Bernal et al vs Audrey Ovington Enterprises INC et a

Case Number

24CV03487

Case Type

Hearing Date / Time

Mon, 03/10/2025 - 10:00

Nature of Proceedings

Demurrer

Tentative Ruling

Moises Bernal and Riley Trent v. Audrey Ovington Enterprises, Inc., etc., et al. 

Case No. 24CV03487

           

Hearing Date: March 10, 2025                                               

HEARING:              Demurrer of Defendant Paris Trefz to Plaintiffs’ Complaint

ATTORNEYS:        For Plaintiffs Moises Bernal and Riley Trent: Nicole K. Ricotta, Anticouni & Ricotta, PC

                                    For Defendants Audrey Ovington Enterprises, Inc., and Paris Trefz: Melissa J. Fassett, Jeff F. Tchakarov, Price, Postel & Parma LLP  

                                   

TENTATIVE RULING:

The demurrer of defendant Paris Trefz to the fourth through thirteenth causes of action of the complaint of plaintiffs Moises Bernal and Riley Trent is sustained as to each of these causes of action with leave to amend. Plaintiffs shall file and serve their first amended complaint on or before April 7, 2025.

Background:

On June 20, 2024, plaintiffs Moises Bernal and Riley Trent filed their original complaint in this action against defendants Audrey Ovington Enterprises, Inc., dba Cold Springs Tavern (AOE), Wayne Wilson, and Janice Wilson. The complaint asserts 14 causes of action for wage and hour violations, wrongful termination, and other related claims.

On August 19, 2024, AOE filed its answer to the complaint, generally denying the allegations thereof and asserting 24 affirmative defenses.

On September 12, 2024, Wayne Wilson and Janice Wilson each filed a motion to quash service of summons based upon lack of personal jurisdiction.

On October 3, 2024, plaintiffs filed an amendment to the complaint identifying defendant Doe 1 as Paris Trefz.

Also on October 3, 2024, plaintiffs requested, and the court entered, dismissal without prejudice as to Wayne Wilson. (The motion to quash as to Janice Wilson remains pending and is now set for hearing on April 14, 2025.)

On November 25, 2024, defendant Trefz filed a demurrer to the fourth through thirteenth causes of action, asserting that Trefz was improperly named as a Doe defendant and that there are insufficient facts to state any cause of action against Trefz.

On January 10, 2025, plaintiffs filed opposition to the demurrer. The opposition is supported by the concurrently-filed declaration of attorney Nicole K. Ricotta, counsel for plaintiffs.

On January 16, 2025, attorney Ricotta filed a supplemental declaration in support of plaintiffs’ opposition.

On January 17, 2025, Trefz filed a reply to the opposition to the demurrer. Trefz also filed an objection to the supplemental declaration of Ricotta as untimely and improper.

Analysis:

(1)       Procedural Matters

Concurrently with the filing of the demurrer, counsel for Trefz, attorney Melissa J. Fassett, filed a declaration stating that the meet and confer required by Code of Civil Procedure section 430.41 occurred but did not reach an agreement resolving the matters raised by the demurrer.

In opposition to the demurrer, attorney Ricotta filed a declaration in which she states that in the meet and confer, Fassett had informed Ricotta of Trefz’s intent to file a demurrer on the grounds that the complaint failed to state facts against Trefz. (Ricotta decl., ¶ 9.) Ricotta repeated a request to Fassett, previously rejected, to stipulate to allow plaintiffs to amend the complaint to plead facts specific to Trefz. (Ibid.) Fassett stated that she was not authorized to allow the filing of a first amended complaint. (Ibid.) The demurrer was subsequently filed.

The demurrer points out that the sole allegation in the complaint specific to Trefz is in paragraph 23:

“Plaintiff BERNAL spent more than 50% of his time preparing food and cooking alongside non-exempt employees because of understaffing. His duties included: inventory, scheduling, cooking, preparing the menu, and cleaning. Plaintiff BERNAL did not hire or fire and did not have authority to discipline employees. Everything Plaintiff BERNAL did was under the direction of Paris Trefz, General Manager of CST.”

Based upon this limited allegation, Trefz argues both that the complaint fails to state a cause of action against Trefz, now identified as defendant Doe 1, and that Trefz should not have been named as a “Doe” defendant because Trefz’s name and capacity was previously known. The substance of these arguments is briefly discussed below. For the present, the court is concerned that the meet and confer process should have fully resolved this issue without the necessity of a demurrer. The purpose of the meet and confer process is to avoid unnecessary motion practice. (See Code Civ. Proc., § 430.41, subd. (a).) Here, plaintiffs have repeatedly requested leave to amend their complaint to add allegations specific to Trefz to address Trefz’s concerns about the sufficiency of the pleading. The demurrer is principally based upon the lack of allegations connecting Trefz to plaintiffs’ claims. The proper approach would have been to stipulate to the filing of an amended pleading. As discussed below, the court will, and would have reasonably been expected to, grant plaintiffs leave to amend. Trefz’s approach to this pleading dispute completely defeats the purpose of section 430.41.

Because of this back-and-forth about leave to amend, plaintiffs filed a supplemental declaration to which Trefz objects both as untimely and as improper on demurrer. Plaintiffs themselves point out that “ ‘A demurrer tests the pleading alone, and not the evidence or facts alleged.’ (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)” (Opposition, at p. 5.) So, clearly, the supplemental declaration is not to be considered in determining whether or not the demurrer should be sustained or overruled. The supplemental declaration could therefore be considered only in the context of determining whether to grant leave to amend. As discussed below, it is unnecessary for that purpose. The court does not consider the supplemental declaration.

(2)       Demurrer

“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

One issue raised in the demurrer as to each of the causes of action is whether Trefz was properly named as a “Doe” defendant.

“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 ….” (Code Civ. Proc., § 474.)

“ ‘The phrase “ignorant of the name of a defendant” is broadly interpreted to mean not only ignorant of the defendant’s identity, but also ignorant of the facts giving rise to a cause of action against that defendant.’ [Citations.] ‘ “[T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.” ’ [Citation.]” (San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019) 40 Cal.App.5th 563, 579.)

“[W]hile the duty to investigate is considered in discussing whether an initial complaint is timely, that inquiry is not relevant to whether a Doe amendment is timely. [Citation.] ‘Although it is true that a plaintiff’s ignorance of the defendant’s name must be genuine (in good faith) and not feigned [citations] and that a plaintiff need not be aware of each and every detail concerning a person’s involvement before the plaintiff loses his ignorance [citations], it is equally true that the plaintiff does not relinquish her rights under section 474 simply because she has a suspicion of wrongdoing arising from one or more facts she does know. [Citations.]’ [Citation.] Code of Civil Procedure ‘[s]ection 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until [plaintiff] has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.’ [Citation.] ‘[S]ection 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading. [Citation.]’ [Citation.]” (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1172.)

Under this standard, Trefz may or may not be properly named as a “Doe” defendant under section 474. But ultimately, the application of section 474 is irrelevant here as explained in Davis v. Marin (2000) 80 Cal.App.4th 380 (Davis):

“Code of Civil Procedure section 474 permits a plaintiff to amend complaints by adding parties as Doe defendants ‘[w]hen the plaintiff is ignorant of the name of a defendant’ at the time the complaint is filed. ‘The purpose of section 474 is to enable a plaintiff to avoid the bar of the statute of limitations when he [or she] is ignorant of the identity of the defendant.’ [Citation.] The cases discussing section 474 deal with whether the plaintiff was truly ignorant of the identity of the person brought into the case as a Doe defendant because if that requirement is met, the amendment to the complaint relates back to the date the complaint was filed and the statute of limitations is preserved. [Citations.] For example, in Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176, the court stated: ‘If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed. [Citation.]’

“However, [the defendant] has cited no case which demands the same analytical approach be utilized when the statute of limitations has not expired. [The defendant] was added to the lawsuit as a defendant prior to the expiration of the statute of limitations …. The question of whether or not the amendment ‘related back’ to the date the complaint was filed was irrelevant.

“As [the plaintiff] notes, she could have filed an amended complaint naming [the defendant] as a defendant, rather than an amendment to the complaint. Had this been done, the trial court would not have inquired as to whether or not [the defendant’s] identity was known to [the plaintiff]. Such an inquiry, and the analysis used under Code of Civil Procedure section 474, would have been irrelevant. [Citation.] There is no reason to treat [the plaintiff’s] amendment to the complaint any differently than we would have treated an amended complaint naming [the defendant] as a defendant. To do so would elevate form over substance and would ignore common sense.” (Davis, supra, 80 Cal.App.4th at pp. 386–387, fn. and parallel citations omitted.)

Here, there is no showing that the statute of limitations would bar plaintiffs’ action against Trefz. So, whether or not Trefz was properly identified as a defendant under section 474, Trefz is properly made a defendant by an amendment to the complaint. Consequently, the manner in which Trefz has been made a defendant is not a basis for demurrer.

In any case, as noted above, there are very few allegations in the complaint specific to defendant Trefz, which relates the substantive sufficiency of the affected causes of action. In opposition to the demurrer, plaintiffs argue: “This demurrer could easily have been avoided if Defendant had allowed Plaintiffs to amend the Complaint when they requested to do so several times during the meet and confer process. … Defendants have refused to allow Plaintiffs to amend the Complaint to plead directly relevant facts which were discovered after Plaintiffs had already filed the Complaint.” (Opposition, at p. 1.) The court deems this a concession that at least some part of the demurrer is meritorious and can be cured by amendment. The court will therefore sustain the demurrer of Trefz to the fourth through thirteenth causes of action.

(3)       Leave to Amend

Plaintiffs request leave to amend. Trefz opposes granting leave to amend.

“ ‘The current edition of a leading practical treatise explains, “[I]n the case of an original complaint, plaintiff need not even request leave to amend. ‘Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not.’ ” [Citation.] And the California Judges Benchbook, Civil Proceedings Before Trial (CJER 2019) …, instructs, “Rarely should a judge sustain a demurrer to an initial complaint without granting leave to amend. [Citations.] Denial of leave to amend is appropriate only when it conclusively appears that there is no possibility of alleging facts under which recovery can be obtained. [Citation.]” [Citation.]’ ” (Tarrar Enterprises, Inc. v. Associated Indemnity Corp. (2022) 83 Cal.App.5th 685, 689.)

This is a demurrer to the original complaint, with the only amendment being the identification of Trefz as “Doe 1.” Notwithstanding the strong policy preference for granting leave to amend, Trefz argues that leave to amend should be denied because: (1) plaintiffs always were aware of Trefz’ position as general manager and yet failed to plead facts that would hold her liable; (2) plaintiffs have not alleged facts to support liability against Trefz; (3) the complaint alleges that Wayne and Janice Wilson controlled plaintiff Bernal’s hours and compensation, which contradicts liability of Trefz; and (4) the doctrine of judicial estoppel precludes a party from changing their factual allegations to be inconsistent with prior pleadings. (Demurrer, at pp. 14-16; Reply, pp. 1-3, 5-6.)

As discussed above, whether or not plaintiffs had knowledge of Trefz’ position, that issue applies to whether section 474 was the appropriate procedural vehicle for naming Trefz as a defendant. As discussed above, even if section 474 was improperly used, Trefz is now a defendant and so that earlier knowledge is not a basis, by itself, to deny leave to amend now to add or to clarify allegations regarding Trefz.

The argument that plaintiffs have not already alleged facts sufficient to support liability against Trefz is also not a basis for denying leave to amend. This reasoning is circular. Regardless of why Trefz was not named in the original complaint, the absence of currently alleged facts regarding Trefz is not a proper basis for denying leave to allege those facts.

Finally, Trefz argues that the doctrine of judicial estoppel applies to preclude a party from making allegations inconsistent with a prior pleading, citing Miyahara v. Wells Fargo Bank (2024) 99 Cal.App.5th 687, and that an allegation of liability as to Trefz is inconsistent with the allegation of liability as to Wayne and Janice Wilson in paragraph 86 of the complaint. In making this argument, Trefz confuses the doctrine of judicial estoppel with the sham pleading doctrine.

“ ‘The doctrine [of judicial estoppel] applies when “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” ’ [Citations.]” (Miyahara v. Wells Fargo Bank, N.A. (2024) 99 Cal.App.5th 687, 697.) As these elements make clear, this doctrine has no application where, as here, the asserted inconsistency is between allegations of a prior and a subsequent complaint and there has been no judicial action favorable to plaintiffs based upon the truth of the prior allegations.

The doctrine Trefz tries to invoke is instead the sham pleading doctrine. “Under the sham pleading doctrine, allegations in an original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation. [Citation.] The purpose of the doctrine is to enable the courts to prevent an abuse of process. [Citation.] The doctrine is not intended to prevent honest complainants from correcting erroneous allegations or to prevent the correction of ambiguous facts.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751.)

The court takes no position as to whether any potential allegations in an amended pleading would or would not be contradictory or subject to the sham pleading doctrine. But the mere potential that allegations in an amended complaint may contradict allegations made by the plaintiffs in the original complaint is also not grounds, by itself, to deny leave to amend.

Importantly, even if new allegations are inconsistent with prior allegations, a party may plead such allegations with an explanation: “The province and purpose of the law is to ascertain the real facts and to administer justice in the light of such facts. It would seem to be a travesty on justice if a litigant had inadvertently, ignorantly and erroneously stated as a fact, without fault on his part, an admission against interest, if he were to become bound thereby and would not be permitted upon proper showing to correct the innocent error and assert the true fact in that regard. We do not concede that is the law.” (Jackson v. Pacific Gas & Elec. Co. (1949) 95 Cal.App.2d 204, 209.) As a result, a party may plead the true facts, even if inconsistent with a prior pleading, by explaining the inconsistency in the pleading as the result of mistake or inadvertence. (Reichert v. General Insurance Co. (1968) 68 Cal.2d 822, 836.)

Plaintiffs will be given leave to amend, which leave includes adding or clarifying any allegation as to Trefz.