Nathalia Montoya v. Ewy Axelsson

Case Number

25CV01990

Case Type

Hearing Date / Time

Wed, 10/08/2025 - 10:00

Nature of Proceedings

Demurrer to First Amended Complaint

Tentative Ruling

For Plaintiff Nathalia Montoya: Maria Fernanda Elosu, Robert L. Brace

                                   

For Defendant Ewy Axelsson as Trustee of the Rali Aramis Living Trust: Trevor D. Large, Victoria C. Diffenderfer, Fauver Large Archbald & Spray

RULING

For all reasons discussed herein, the demurrer of Defendant to Plaintiff’s first amended complaint is overruled. On or before October 20, 2025, Defendant shall file and serve an answer to the first amended complaint of Plaintiff.

Background

On April 1, 2025, Plaintiff Nathalia Montoya (Montoya) filed a complaint against Defendant Ewy Axelsson (Axelsson), as Trustee of the Rali Aramis Living Trust (the Trust), alleging three causes of action: (1) failure to pay minimum wages in violation of Labor Code sections 1194, 1194.2, and 1197.1; (2) failure to pay overtime wages in violation of Labor Code sections 1194, 1198, and IWC wage orders; and (3) failure to wages of terminated employee in violation of Labor Code sections 201-203.

On July 7, 2025, without any response to the complaint having been filed, Montoya filed a first amended complaint (the FAC) against Axelsson. The FAC modifies the first cause of action alleged in the complaint to add a claim for violation of Labor Code section 204, repeats the second and third causes of action alleged in the complaint, and adds fourth, fifth, and sixth causes of action for, respectively, breach of written contract, discrimination in the workplace based on national origin (Lab. Code, § 1197.5), and unfair business practices (Bus. & Prof. Code, § 17200 et seq.). Briefly, as alleged in the FAC:

Montoya was married to Rali Aramis (Aramis), who is the settlor of the Trust, from 2011 until 2016, when Aramis filed for divorce. (FAC, ¶¶ 18, 21, 35, 45.) Montoya was removed as a beneficiary of the Trust at the time of the divorce. (FAC, ¶ 49.) Axelsson and Sharon Amit are the current co-trustees of the Trust. (FAC, 48.)

In November 2019, Aramis was diagnosed with dementia of Alzheimer’s type and required 24-hour care by multiple attendants working rotating shifts. (FAC, ¶¶ 30-34.) In December 2019, Axelsson, as the co-trustee in charge of the administration of the Trust, hired Montoya to provide 24-hour care for Aramis. (FAC, ¶¶ 19 & 23.) Montoya provided the care to Aramis, who required around-the-clock care, until his passing on January 2, 2025. (FAC, ¶¶ 14, 26 & 59.) Though Montoya was the only full-time employee who worked up to 168 hours per week, almost 24 hours per day, and remained on call during Montoya’s off time, Montoya was paid for only 10 hours. (FAC, ¶¶ 25, 59 & 65-66.)

The above is not intended to be an exhaustive summary of the allegations of the FAC, which include allegations describing Montoya’s the relationship with Aramis, and the care purportedly provided to Aramis by Montoya and other caregivers, among other things.

On July 31, 2025, Montoya filed errata to correct allegations appearing in paragraph 142 and the prayer of relief alleged in the FAC.

On August 4, 2025, Axelsson filed a demurrer to the fourth, fifth, and sixth causes of action alleged in the FAC, which is made on the grounds that Montoya has failed to allege facts sufficient to constitute a cause of action and, as to the fourth and fifth causes of action, that the FAC is uncertain. (Demurrer at pp. 2-3.)

The demurrer is opposed by Montoya.

Analysis

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (Quelimane).)

Demurrer to the fourth cause of action for breach of written contract:

Axelsson asserts that the written agreement alleged in the fourth cause of action arises from checks issued to Montoya in 2019, 2023, and 2024, and a reference to text messages, and that Montoya has expressly admitted that no written agreement exists. For these reasons, Axelsson argues, the allegations of the FAC are impermissibly vague, conclusory, and fail to plead the essential elements required to allege a cause of action for breach of a written contract.

The fourth cause of action alleges: Axelsson promised to pay Montoya a reasonable wage for caring for Aramis; Axelsson paid other assistants between $40 to $50 per hour; Axelsson’s promise was reduced to writings appearing in checks signed by Axelsson in 2019 and pay stubs issued Axelsson’s agents in 2023 and 2024; text messages between Axelsson and Montoya also confirm the employment relationship and duties, and Montoya’s performance; Axelsson ratified the existence of an employment relationship in a text message on December 30, 2024; Montoya performed according to the parties’ agreement; Axelsson breached the agreement; and this breach was the proximate and legal cause of Montoya’s damages. (FAC, ¶¶ 128-133.)

Notwithstanding whether the allegations of the FAC described above are sufficient to plead the existence of an express written contract,“[a] contract is either express or implied.” (Civ. Code, § 1619.) “An implied contract is one, the existence and terms of which are manifested by conduct.” (Civ. Code, § 1621.)

“ ‘ “An implied contract ‘ “... in no less degree than an express contract, must be founded upon an ascertained agreement of the parties to perform it, the substantial difference between the two being the mere mode of proof by which they are to be respectively established.” ’[Citation.] ... Although an implied in fact contract may be inferred from the ‘conduct, situation or mutual relation of the parties, the very heart of this kind of agreement is an intent to promise.’ [Citation.]” [Citations.]’ ” (Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1507-1508.)

Wholly absent from the demurrer is any reasoned argument addressing whether the FAC alleges facts sufficient to show the existence of an implied contract for caretaking services provided by Montoya to Aramis, notwithstanding “the title under which the factual basis for relief is stated....” (Quelimane, supra, 19 Cal.4th at p. 38.)

For example, Montoya alleges that she was hired by Axelsson to provide caregiving services to Aramis in December 2019, and that Axelsson provided Montoya with a first paycheck for those services on December 5, 2019. (FAC, ¶¶ 23-24.) That paycheck, a copy of which is attached to the FAC as exhibit 1, is ostensibly signed by Axelsson and includes a notation which states “caregiving Dec.” (FAC, Exh. 1; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567 [“we accept as true both facts alleged in the text of the complaint and facts appearing in exhibits attached to it”].)

The FAC also alleges that Montoya received two paychecks per month and was provided with “paycheck stubs”, ostensibly appearing in statements of earnings issued to Montoya by the Trust, copies of which are also attached to the FAC. (FAC, ¶¶ 25, 101-102, 129 & Exh. 2.) Montoya further alleges that Axelsson observed Montoya’s performance of caregiving tasks for which Axelsson paid Montoya, as revealed in text messages from Axelsson to Montoya set forth in the FAC. (FAC, ¶¶ 53 & 75.)
 

For present purposes, the Court accepts the allegations of the FAC described above as true, without considering whether Montoya can prove these allegations. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“facts alleged in the pleading are deemed to be true, however improbable they may be.”].) Giving the FAC a reasonable interpretation “in the light of the subject-matter and of the surrounding circumstances,” these allegations are sufficient to show that an implied contract was formed between the parties which may be inferred from the conduct of Montoya and Axelsson described in the FAC and above. (Westside Estate Agency, Inc. v. Randall (2016) 6 Cal.App.5th 317, 328 [“a contract may ... inferred from the parties’ conduct”]; Rose v. County of San Benito (2022) 77 Cal.App.5th 688, 711 [discussing conduct sufficient to form an implied contract].)

In the demurrer, which is directed only to whether the FAC alleges facts sufficient to constitute a cause of action for breach of a written contract, Axelsson fails to address whether the FAC also states a cause of action for breach of contract under an implied contract theory. For these and all further reasons discussed above, and as “a demurrer cannot rightfully be sustained to part of a cause of action...” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047,) the Court will overrule the demurrer to the fourth cause of action alleged in the FAC.

Demurrer to the fifth cause of action for national origin discrimination in violation of Labor Code section 1197.5:

The demurrer to the fifth cause of action is made on the grounds that Montoya has failed to allege that she was paid less than employees of a different race or ethnicity for substantially similar work, which Axelsson contends is required to state a viable claim for national origin discrimination under Labor Code section 1197.5. Notably absent from the demurrer is sufficient reasoned legal argument to support the points advanced in by Axelsson in the demurrer.

Subject to exception, “[a]n employer shall not pay any of its employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions....” (Lab. Code, § 1197.5, subd. (b).)

Labor Code section 1197.5 “closely tracks[]” and “is nearly identical to the federal Equal Pay Act of 1963. [Citation.] Accordingly, in the absence of California authority, it is appropriate to rely on federal authorities construing the federal statute: ‘Although state and federal antidiscrimination laws “differ in some particulars, their objectives are identical, and California Courts have relied upon federal law to interpret analogous provisions of the state statute. [Citations.]” [Citation.]’ [Citations.]” (Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 111; Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 623.)

Pursuant to analogous federal law, Montoya must allege in the FAC facts which are, for pleading purposes, sufficient to show that “the jobs being compared—not ‘the individuals who hold the jobs’—are ‘substantially equal.’ [Citation.] ‘Substantially equal’ does not necessarily mean ‘identical.’ [Citations.] Instead, ‘the crucial finding on the equal work issue is whether the jobs to be compared have a “common core” of tasks.’ [Citations.] Once a Plaintiff establishes a common core of tasks, ‘the Court must then determine whether any additional tasks, incumbent on one job but not the other, make the two jobs “substantially different.” ’ [Citations.] ‘The question of whether two jobs are substantially equal is one that must be decided on a case-by-case basis.’ [Citation.]” (Freyd v. University of Oregon (9th Cir. 2021) 990 F.3d 1211, 1219-1220.)

The FAC alleges that Axelsson paid non-Hispanic workers $40 to $50 per hour to assist Montoya with providing care to Aramis and to relieve Montoya, and that Montoya, who is Hispanic, was paid less for that work. (FAC, ¶ 136.) Axelsson does not appear to dispute that the individuals who Montoya alleges were paid higher wage rates for substantially similar work include a certified personal trainer Walter Seth Stanley (Stanley), and Nancy Boroy (Boroy), who, as noted above, are alleged to be non-Hispanic. (See also FAC, ¶ 71.)

As to Stanley, Montoya alleges that Stanley assisted Montoya with keeping Aramis physically active, and with bathing and shaving Aramis. (FAC, ¶ 71.) Montoya also alleges that Boroy was hired to assist Montoya, and to relieve Montoya from providing care to Aramis, including by grocery shopping and taking Aramis for walks,  (FAC, ¶ 67, 69, & 87-88.)

The allegations of the FAC described above are sufficient at this stage of the proceedings to show that the responsibilities of Montoya, Stanley, and Boroy included a common core of tasks in caring for Aramis, and that Montoya was paid lower wages for these common tasks. For these and all reasons further discussed above, the FAC includes allegations which are sufficient to constitute a cause of action for violation of Labor Code section 1197.5. Therefore, the Court will overrule the demurrer to the fifth cause of action alleged in the FAC.

Demurrer to the sixth cause of action for unfair business practices:

As grounds for the demurrer to the sixth cause of action, Axelsson contends that the FAC fails to allege facts sufficient to show any unfair business acts or practices under Business and Professions Code section 17200 et seq., and that “persons” under that statute do not include a trustee sued solely in a representative capacity.

Under Business and Professions Code section 17200 et seq. (the Unfair Competition Law or UCL), the term “unfair competition” is “broadly” defined to include “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” (Bus. & Prof. Code, § 17200; Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850-851 (Gregory).) “A business practice constitutes unfair competition if it is forbidden by any law, ‘be it civil or criminal, federal, state, or municipal, statutory, regulatory, or Court-made’ [citation] or if it is unfair, that is, if it ‘ “ ‘offends an established public policy or ... is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’ ” ’ [Citation.]” (Gregory, supra, 104 Cal.App.4th at p. 854.)

“With respect to the unlawful prong, ‘[v]irtually any state, federal or local law can serve as the predicate for an action’ under section 17200. [Citations.] ‘ “[I]n essence, an action based on Business and Professions Code section 17200 to redress an unlawful business practice ‘borrows’ violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under section 17200 et seq. and subject to the distinct remedies provided thereunder.” ’ [Citation.]” (People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 515.)

Further, a cause of action for unfair competition under the UCL may be established independent of a contractual relationship between the parties and the “the quantum of lost money or property necessary to show standing is only so much as would suffice to establish injury in fact[.]” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 324 (Kwikset).) Accordingly, “[i]f a party has … proven a personal, individualized loss of money or property in any nontrivial amount, he or she has also … proven injury in fact.” (Id. at p. 325, 327-328.)  

For all reasons discussed above, the FAC alleges facts sufficient to constitute a cause of action for violation of Labor Code section 1197.5. In addition, the FAC alleges that Axelsson failed to pay Montoya minimum and overtime wages, to provide correct payroll information to Montoya, to withhold taxes, and to provide sick days or rest periods to Montoya, and that these acts or practices are unlawful under the UCL. (FAC, ¶¶ 140-141.) Axelsson does not challenge the sufficiency of the first through third causes of action which also assert claims for purported Labor Code violations arising from the purported failure by Axelsson to pay required wages to Montoya, among other claims.

As the cause of action for unfair competition under the UCL alleged in the FAC arises from the purported statutory violations described above, Montoya has, for all reasons discussed above, sufficiently alleged a claim under the UCL. The allegations of the FAC described above are also sufficient to state an injury in fact under the UCL arising from the purported failure to pay wages due to Montoya. (Kwikset, supra, 51 Cal.4th at pp. 325, 327-328 [“economic injury is itself a form of injury in fact”].)

Information appearing in the exhibits to the FAC also suggest or indicate that Montoya’s wages were paid by the Trust. (See, e.g., FAC, Exh. 2 [statements of earnings issued by the Trust].) Considering these allegations which appear on the face of the FAC, Axelsson fails to explain why this proceeding is improperly directed to a trustee in his or her representative capacity. (See Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 521-522 [general discussion of proper procedure for directing legal proceedings involving trust property].) 

As Montoya has, for all reasons further discussed above, alleged facts sufficient to constitute a cause of action under the UCL which appears properly directed to a trustee of the Trust, the Court will overrule the demurrer to the sixth cause of action alleged in the FAC.

Special demurrer for uncertainty:

Axelsson contends that the FAC is uncertain as to the claims alleged in the fourth through sixth causes of action further discussed above.

A party may object by special demurrer on the grounds that the subject pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) “ ‘[U]ncertain’ includes ambiguous and unintelligible.” (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.) “A special demurrer on the ground that [a pleading] is (a) ambiguous, (b) unintelligible, or (c) uncertain is insufficient unless the demurrer points out specifically wherein the pleading is ambiguous, uncertain or unintelligible.” (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.)

Though the demurrer generally argues that the FAC is uncertain, Axelsson fails to point out specifically where the FAC is uncertain.

Furthermore, Axelsson include in the demurrer a general description of the allegations of the FAC, including those which give rise to each cause of action to which the demurrer is directed. The recitation of these allegations by Axelsson indicates that the FAC is not so unintelligible or ambiguous that Axelsson cannot understand the issues or the nature of the claims alleged by Montoya. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245 [“a Plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a Defendant with the nature, source and extent of his cause of action”].)

For all reasons discussed above, the allegations of the FAC are not so incomprehensible that Axelsson cannot reasonably respond. (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.) Therefore, and for these reasons, the Court will overrule the special demurrer of Axelsson to the fourth through sixth causes of action alleged in the FAC.

Axelsson’s reply to Montoya’s opposition:

In the reply to Montoya’s opposition to the demurrer, Axelsson contends that the opposition was untimely and should be disregarded.

“[A] trial Court has broad discretion to accept or reject late-filed papers.” (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 262.) Considering that the Court’s reasoning and analysis as set forth herein would not change even if the Court were to decline to consider the points raised in Montoya’s opposition, and that Axelsson has substantively responded to those points, the Court will exercise its discretion to accept the opposition notwithstanding whether it was late filed.

Plaintiff’s sur-reply filed 10/2/25; read and considered.