Barber vs. Multi Media, LLC

103 Medero vs. Norada Capital Management

2024-01445239 Motion to Appear Pro Hac Vice

Defendant Ronald Fossum Jr.’s application for pro hac vice admission of attorney Miranda S. Ratcliffe is GRANTED.

On or before the anniversary of the date of this order, if this attorney remains counsel for the moving party, the moving party must pay an annual renewal fee of five hundred dollars ($500) for each year that the attorney maintains pro hac vice status in this case. (Gov. Code, § 70617, subd. (e)(2).)

Moving party shall provide notice. 104 Orange County Transportation Authority vs. Deen

2021-01214128 Motion to Be Relieved as Counsel of Record

Attorney Joseph D. Larsen and law firm Rutan & Tucker LLP’s motion to be relieved as counsel of record for Defendant Omar Deen is GRANTED, effective upon the filing of the proof of service of the signed order upon the client. (Code Civ. Proc., § 284, subd. 2.)

Moving counsel shall lodge with the Court an updated proposed order listing (1) the updated 1/7/2027 date for the next hearing (OSC and Status Conference) and (2) the 2/26/2027 pretrial conference.

Moving counsel shall give notice of this ruling. 105 Barber vs. Multi Media, LLC

2025-01531751

1. Demurrer to Complaint 2. Motion for Protective Order 3. Motion to Strike portions of Demurrer 1. Defendants’ Demurrer to Complaint Defendants Bayside Support Services LLC and Multi Media LLC’s demurrer to Plaintiff Neal Barber’s complaint is SUSTAINED IN PART WITH LEAVE TO AMEND and SUSTAINED IN PART WITHOUT LEAVE TO AMEND. (Code Civ. Proc. [CCP], § 430.10, subd. (e).)

Plaintiff shall have leave to file and serve a first amended complaint within 21 days of notice.

On a demurrer, a complaint “must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452; see also Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 996.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 996.) The court must determine “whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Ibid.) The court assumes “the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded[,] and matters of which judicial notice has been taken.” (Ibid.)

Indeed, all the court must do is “determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39, emphasis original; see also Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 [general demurrer may be sustained “only if the complaint fails to state a cause of action under any possible legal theory”].)

“‘[I]f upon a consideration of all the facts stated it appears that the plaintiff is entitled to any relief . . ., the complaint will be held good, although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.’” (Chase Chemical Co. v. Hartford Accident & Indemnity Co. (1984) 159 Cal.App.3d 229, 242, quoting Matteson v. Wagoner (1905) 147 Cal.739, 742.) “Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief.” (Saunders v.

Cariss (1990) 224 Cal.App.3d 905, 908; see also Martinez v. City of Clovis (2023) 90 Cal.App.5th 193, 262 [considering claim under different label because “courts examine the entire complaint and are not limited by the labels and structure used in the pleading”].)

“Questions of fact . . . cannot be decided on demurrer.” (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the legal sufficiency of the complaint, “[a] court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged in the complaint or are proper subjects of judicial notice.” (Hall v. Great West Bank (1991) 231 Cal.App.3d 713, 718, fn. 7.)

“Where the complaint is defective, ‘[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend [the] complaint.’” (Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 996, quoting Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at pp. 970-971.) Indeed, leave to amend an original complaint should generally be granted unless the complaint shows on its face that it is incapable of amendment. (Tarrar Enterprises, Inc. v. Associated Indemnity Corp. (2022) 83 Cal.App.5th 685, 688-689.) However, “‘leave to amend should not be granted where . . . amendment would be futile.’” (Readfearn, supra, 20 Cal.App.5th at p. 997, italics original in Redfearn, quoting Vaillette v. Fireman’s Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685.)

1st cause of action for negligence – SUSTAINED WITH LEAVE TO AMEND.

Defendants demur to the 1st cause of action for negligence on the ground that Plaintiff alleges a workplace injury claim falls squarely within the purview of workers’ compensation, which provides the sole and exclusive remedy and therefore preempts Plaintiff’s negligence claim. (ROA #76, Mot. P&A, at pp. 5-7.)

“As a general rule, an employee who sustains an industrial injury ‘arising out of and in the course of employment’ is limited to recovery under the workers’ compensation system.” (Torres v. Parkhouse Tire Services, Inc. (2001) 26 Cal.4th 995, 1001; see also Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161 [“Physical and emotional injuries sustained in the course of employment are preempted by the workers’ compensation scheme and generally will not support an independent cause of action”].)

Accordingly, “both IIED claims and negligence claims arising in the course of employment are barred ‘when the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances.’” (Kaldis v. Wells Fargo Bank, N.A. (C.D.Cal. 2017) 263 F.Supp.3d 856, 867, quoting Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.)

In opposition, Plaintiff’s opposition offers no rebuttal on this point and can therefore be treated as a concession that Plaintiff’s negligence cause of action based on allegations about Defendants’ conduct during Plaintiff’s employment are preempted by workers’ compensation. (See DuPont Merck Pharmaceutical Co. v. Super. Ct. (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”].) Indeed, Plaintiff concedes that “[w]orkers’ compensation exclusivity bars claims for injury arising out of and in the course of employment.” (ROA #55, Opp., p. 6.)

But Plaintiff does contend that the complaint alleges Plaintiff suffered injuries as a result of Defendants’ pre-employment conduct—i.e., the complaint alleges that Defendants withheld from the materials used to describe the position to Plaintiff any reference to the job’s actual duties, its psychological hazards, or the absence of any safeguard against them, an omission intended to induce his acceptance of it, and that Plaintiff accepted the position based on that omission, without any opportunity to understand the true nature or risks of the work he was being offered. (Id., citing Compl. ¶¶ 28-29.)

Thus, “there [wa]s no employment relationship yet for the breach of arise in the course of.” (Id. at p. 7.) Plaintiff contends that “California courts have repeatedly treated an employer’s description of the title, duties, or conditions of work being offered, made before any employment relationship exists, as conduct outside the ordinary employer employee bargain. Misrepresentations regarding a position’s title and duties are independently actionable.” (Id. at p. 6.) In support, Plaintiff cites three cases: Tyco Industries, Inc. v.

Superior Court (1985) 164 Cal.App.3d 148; Seubert v. McKesson Corp. (1990) 223 Cal.App.3d 1514; and Munoz v. Kaiser Steel Corp. (1984) 156 Cal.App.3d 965, 980.

All three cases involved claims made under Labor Code section 970, which essentially provides for a claim against an employer for knowingly making false representations to “influence, persuade, or engage any person to change from one place to another in this State or from any place outside to any place within the State, or from any place within the State to any place outside, for the purpose of working in any branch of labor.” (Lab. Code, § 970.)

As Defendants point out in reply, Plaintiff has not alleged anywhere in the complaint that he relocated anywhere to take the job with Defendant. Therefore, Labor Code section 970 does not apply to Plaintiff’s claim as pleaded in the complaint. (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1392 [holding claim under Labor Code section 970 to be “meritless” because “[t]he statute is inapplicable” since “an employee must establish that the employer induced him or her to relocate or change residences,” and “[t]here was no such evidence in this case”].)

Defendants contend that leave to amend should not be granted because it would be futile, as Plaintiff “will not be able to allege that he was induced to relocate” because Plaintiff is and has always been a Nevada resident. (ROA #69, Reply, p. 3.) However, the complaint contains no allegations of where Plaintiff resides, either currently or previously. Therefore, the complaint, on its face, does not show that amendment is impossible or would be futile.

Accordingly, Defendants request that the Court take judicial notice of Plaintiff’s previous complaint filed in an earlier federal court action, in which Plaintiff alleged that he resided and worked for Defendants in Nevada. (Mot. P&A at p. 1, fn. 2, citing ROA #16, RJN, Exh. 1 at ¶ 6.) However, while a court may take judicial notice of a record of another court under Evidence Code section 452, subdivision (d), including complaints filed in other court actions, the court may not “use the allegations in those complaints to resolve factual disputes for purposes of [a] demurrer.” (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.) “Although in ruling on a demurrer courts may take judicial notice of files in other judicial proceedings, this does not mean that they take judicial notice of the truth of factual matters asserted therein.

There exists a mistaken notion that this means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. However, a court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file. A court may [only] take judicial notice of the existence of each document in a court file. . .” (Bach v. McNelis (1989) 207 Cal.App.3d 852, 865, internal quotes, citations, & ellipses omitted.)

Thus, the Court may only take judicial notice of the existence of the complaint filed in the earlier federal court action, but the Court may not take judicial notice of the truth of Plaintiff’s allegation in that complaint that Plaintiff is a Nevada resident.

In sum, the Court SUSTAINS the demurrer as to the 1st cause of action because it is preempted by workers’ compensation law and Plaintiff has not alleged sufficient facts to state a claim under Labor Code section 970, but GRANTS LEAVE TO AMEND.

2nd cause of action for intentional infliction of emotional distress – SUSTAINED WITHOUT LEAVE TO AMEND.

Defendants also demur to the 2nd cause of action for IIED on the same ground as the 1st cause of action for negligence—namely, that Plaintiff alleges a workplace injury claim falls squarely within the purview of workers’ compensation, which provides the sole and exclusive remedy and therefore preempts Plaintiff’s negligence claim. (Mot. P&A at pp. 5-8.)

In opposition, Plaintiff contends that Defendants’ demurrer treats this claim “as nothing more than a pre-injury failure to warn about the hazards of the job” but “ignores the narrower theory the Complaint actually pleads: that once Defendants learned Plaintiff was already injured, they concealed that knowledge and continued exposing him to the conditions aggravating it.” (Opp. at p. 8.) Plaintiff contends that “Labor Code section 3602, subdivision (b)(2) permits an action at law where an employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment.” (Id.)

Labor Code section 3602, subdivision (b)(2) codifies a common law fraudulent concealment exception to workers’ compensation exclusivity that was first enunciated in Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, which involved workplace exposure to toxic substances resulting in injury. (Jensen v. Amgen, Inc. (2003) 105 Cal.App.4th 1322, 1325.) The statute permits an employee to “bring an action at law for damages against the employer . . . [w]here the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer’s liability shall be limited to those damages proximately caused by the aggravation.” (Lab. Code, § 3602, subd. (b)(2).)

“Thus, to recover under this exception, the plaintiff need[s] to prove that (1) the employer knew of the plaintiff’s work-related injury; (2) the employer concealed the knowledge from the plaintiff; and (3) the injury was aggravated as a result of such concealment.” (Silas v. Arden (2012) 213 Cal.App.4th 75, 91.)

Plaintiff contends that ¶ 55 of the complaint adequately pleads all 3 elements (Opp. at p. 9):

55. Defendants were aware that Plaintiff and other content moderators were experiencing emotional and psychological distress arising from their work. Plaintiff and other moderators reported symptoms of distress, visible emotional reactions, and difficulty continuing their assignments. Despite this knowledge, Defendants did not remove Plaintiff from exposure, did not modify his workload, and did not implement any of the Protocols, but instead required him to continue reviewing traumatic content under the same unsafe conditions, demonstrating a conscious disregard for the known probability of severe emotional harm. This knowing refusal to act in the face of reported harm is conduct that courts repeatedly recognize as outside the workers’ compensation exclusivity doctrine.

(Compl., ¶ 55.)

However, as Defendants point out in their reply (Reply at p. 5), Labor Code section 3602(b)(2)’s exception requires a showing of fraudulent concealment on which the employee relied.” (Davis v. Lockheed Corp. (1993) 13 Cal.4th 519, 523, emphases original.) It therefore does not apply where, as here, the employer “did not conceal the existence of [plaintiff’s] injury. [Plaintiff] herself knew of her symptoms before anyone at [employer] did.’” (Jensen, supra, 105 Cal.App.4th at p. 1326.)

Indeed, Labor Code section 3602(b)(2)’s exception “does not apply where the employee was aware of the injury at all times.” (Jimenez v. Mrs. Gooch’s Natural Food Markets, Inc. (2023) 95 Cal.App.5th 645, 658, internal quotes omitted.) Where “the complaint does not allege that [the employee] was unaware of his injury” and the complaint cannot “reasonably do so,” “[t]his point is fatal to plaintiffs’ argument,” and the court may hold “as a matter of law” that the fraudulent concealment exception to workers’ compensation exclusivity does not apply and sustain the demurrer without leave to amend because amendment would be futile. (Id. at pp. 658-659.)

Here, the complaint alleges that “Defendants were aware that Plaintiff and other content moderators were experiencing emotional and psychological distress arising from their work” because “Plaintiff and other moderators reported symptoms of distress, visible emotional reactions, and difficulty continuing their assignments.” (Compl., ¶ 55.) Therefore, because the complaint alleges that Plaintiff was aware of his injuries, amendment would be futile.

In sum, the Court SUSTAINS WITHOUT LEAVE TO AMEND the demurrer as to the 2nd cause of action because it is preempted by workers’ compensation law and Plaintiff has not alleged and cannot, as a matter of law, allege sufficient facts to state a claim under Labor Code section 3602, subdivision (b)(2).

3rd cause of action for UCL violation – SUSTAINED WITH LEAVE TO AMEND.

At bottom, Defendants demur to this cause of action on two basic grounds: (1) Plaintiff has failed to allege any viable claim for relief under the UCL, and (2) Plaintiff’s claim implicates the presumption against extraterritorial application of the UCL (Mot. P&A at pp. 8-11.)

a. Failure to Allege Viable Claim for Restitution or Injunctive Relief As an initial matter, Defendants generally contend that a UCL claim cannot be predicated on negligence-based claims or tortious acts. (Mot. P&A at p. 9.) Plaintiff’s opposition does not address this argument.

It is true that “[a]n action under the UCL is not an all-purpose substitute for a tort or contract action.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1150, internal quotes omitted.) “Instead, the act provides an equitable means through which both public prosecutors and private individuals can bring suit to prevent unfair business practices and restore money or property to victims of these practices. . .. Because of this objective, the remedies provided are limited. While any member of the public can bring suit under the act to enjoin a business from engaging in unfair competition [or to seek restitution], it is well established that individuals may not recover damages.” (Id.)

Therefore, the relevant issue is whether Plaintiff alleges a viable claim for restitution or injunctive relief. Defendants contend Plaintiff does not. (Mot. P&A at pp. 9-11.)

Where a plaintiff “fail[s] to present a viable claim for restitution or injunctive relief (the only remedies available), . . . the complaint fails to state a viable UCL claim,” and a demurrer to the complaint may be sustained. (Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 467.)

i. Restitution Defendants also contend that Plaintiff is “not entitled to receive/recover any ‘restitution’ because he has not provided any money or property to the Defendants, hence there is nothing for Defendants to refund or restore.” (Mot. P&A at p. 11.)

In opposition, Plaintiff merely contends that “[a] demurrer tests whether the complaint states a cause of action. It does not test whether every remedy requested within that cause of action will ultimately be awarded. A demurrer does not lie to a defect in the prayer for relief where the complaint otherwise states a claim entitling the plaintiff to some form of relief.” (Opp. at p. 11.) Accordingly, “[w]hether restitution is available, and in what form, is a question for a later stage of this case. It is not a basis to sustain this Demurrer.” (Id.)

The only authority Plaintiff cites is Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167. However, Grieves merely held that the plaintiff there had failed to adequately allege facts to establish the requirements for punitive damages under Civil Code section 3294, subdivision (b). (Id.) Therefore, Grieves is inapposite.

In any case, the California Supreme Court has held that “disgorgement of profits allegedly obtained by means of an unfair business practice is [not] an authorized remedy under the UCL where these profits are neither money taken from a plaintiff nor funds in which the plaintiff has an ownership interest.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1140.) To constitute a claim for restitution, the plaintiff must have “an ownership interest in the money it seeks to recover from defendants” or a “vested interest in the money it seeks to recover.” (Id. at p. 1149.)

Where a plaintiff is “not seeking the return of money or property that was once in its possession. . ., [a]ny award that plaintiff would recover from defendants would not be restitutionary as it would not replace any money or property that defendants took directly from plaintiff.” (Id.) Examples of money or property in which plaintiff has a “vested interest” include “earned wages that are due and payable.” (Id., citing Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178.)

Indeed, “nonrestitutionary disgorgement is not available in a UCL individual action or in a UCL representative action.” (Madrid, supra, 130 Cal.App.4th at p. 460, emphases omitted.) Also, “nonrestitutionary disgorgement is not an available remedy in a UCL class action.” (Id. at pp. 460-461.)

Here, Plaintiff’s theory of restitution, as pleaded in the complaint—“in the form of the economic value of the safety protections, wellness structures, clinical safeguards, and trauma-mitigation Protocols that Defendants unlawfully failed to provide and the resulting cost savings that Defendants wrongfully retained by shifting the burden of those protections to the workers” (Compl., ¶ 62)—seeks nonrestitutionary disgorgement of Defendants’ profits rather than restitution of money or property in which Plaintiff had an ownership interest or that was once in Plaintiff’s possession. Even if Defendants unlawfully failed to implement safety measures to protect Plaintiff, Plaintiff had no “vested interest” in the money or property that Defendants failed to use to implement such protocols.

Therefore, the Court concludes that the complaint, as pleaded, fails to adequately alleged a viable claim for restitution. However, since this is Plaintiff’s original complaint, Plaintiff is granted leave to amend.

ii. Injunctive Relief Defendants also contend that “Plaintiff lacks the requisite standing to seek any injunctive relief under the UCL statute” because Plaintiff is currently on voluntary medical leave, has not alleged any concrete intent to return to work for Defendants, and is therefore a former employee—“[y]et, he seeks prospective injunctive relief to require the Defendants to revise or adopt new policies or practices and reform the allegedly unsafe workplace in which he no longer works.” (Mot. P&A at p. 9, emphasis original.) Defendants contend that “[f]ormer employees lack constitutional standing to seek and obtain prospective injunctive relief.” (Id.) And “[i]n the context of a class action, ‘[u]nless the named plaintiffs are themselves entitled to seek injunctive relief, they may not represent a class seeking that relief.” (Id. at p. 10, fn. 7.)

Indeed, “in order to grant injunctive relief under the UCL, there must be a threat that the wrongful conduct will continue,” and a former employee cannot seek injunctive relief relating to the employer’s employment practices where “[t]he injuries [the employee] suffered at the hands of [the defendant-employer] are all in the past” and “there is no reasonable likelihood he will be [employed by the defendant employer] any time in the future or will otherwise be in a position to be harmed by [the employer’s] actions.” (Davis v. Farmers Insurance Exchange (2016) 245 Cal.App.4th 1302, 1326-1327, internal quotes omitted.)

In opposition, Plaintiff concedes that “[i]n a UCL class action, the named plaintiff must satisfy the statutory standing requirements of section 17204.” (Opp. at p. 10.) But Plaintiff contends that “[t]he complaint defines the class to include current employees who continue to perform content moderation work,” and “[t]hose class members have a direct, ongoing, and concrete stake in injunctive relief requiring implementation of the safeguards described in the complaint. The alleged harm to them is present and continuing.

It is not historical.” (Id. at pp. 10-11.) Plaintiff further contends that “[w]here a named plaintiff’s individual circumstances raise a question as to a particular form of relief, the appropriate remedy is amendment. The remedy is to substitute or add a plaintiff who can pursue that relief. It is not dismissal of the class claim outright.” (Id. at p. 11, citing Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.)

Indeed, “[a]lthough a complaint filed by a party who lacks standing is subject to demurrer, the rationale for the demurrer would be that there is a defect in the parties, since the party named as plaintiff is not the real party in interest. Amendments to complaints under Code of Civil Procedure section 473, subdivision (a), are liberally allowed to substitute in plaintiffs with standing for original plaintiffs without standing.” (CashCall, Inc. v. Super. Ct. (2008) 159 Cal.App.4th 273, 287, internal quotes omitted, citing Cloud v.

Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004-1011.) This “general rule allowing substitution of new plaintiffs with standing in place of original plaintiffs without standing applies to class actions” and equally to “a plaintiff who initially had standing when the class action complaint was filed, but subsequently lost his or her standing” and to “a plaintiff who never had standing when the complaint was filed.” (Id. at pp. 288-289.)

In reply, Defendants point out that Plaintiff does not dispute he lacks individual standing to seek UCL injunctive relief because he is currently on medical leave. (Reply at p. 6.) As to Plaintiff’s argument about leave to amend, Defendants simply contend that because Plaintiff’s “class allegations are not salvageable, amendment to substitute a new plaintiff (who Barber has not identified and likely does not exist) would be futile.” (Id., citing, inter alia, Newell v. State Farm General Insurance Co. (2004) 118 Cal.App.4th 1094, 1106 [holding, in a case involving insurance coverage for damages caused by the Northridge earthquake, that “no basis exists for granting plaintiffs leave to amend” when they “suggest no additional facts they could allege to satisfy . . . requirements for class action certification or otherwise to change the legal effect of their pleading”].)

However, “all that is normally required for a complaint to survive demurrers to the propriety of class litigation is that the complaint allege facts that tend to show: (1) an ascertainable class of plaintiffs, and (2) questions of law and fact which are common to the class.” (Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 784.)

Here, the complaint adequately alleges an ascertainable class of plaintiffs and questions of law and fact which are common to the class. (Compl., ¶¶ 39-45.) Indeed, Defendants’ demurrer does not contend that the class is not ascertainable or that there are no questions of law and fact which are common to the class.

Instead, Defendants contend that the complaint fails to satisfy the requirements of adequacy, typicality, numerosity, predominance, and superiority for class certification. (See Mot. P&A at pp. 11-15.)

As an initial matter, Plaintiff Barber’s personal adequacy and typicality is irrelevant given that this preliminary class certification analysis is being conducted only to determine whether the naming of a new plaintiff would salvage the class claims in this case. In other words, even if Plaintiff Barber personally fails to satisfy the adequacy and typicality requirements, that does not mean a new plaintiff could not satisfy those requirements.

On numerosity, Defendants’ opening brief contended that numerosity cannot be satisfied because “throughout the history of Chaturbate, there have only been approximately 25 or less employees that have been, or who are, Customer Service Risk Managers who performed the same compliance and complaint escalation review functions as Barber. None of which are, or were, located in California. . . . There are no other former or current employees of Defendants who have filed a workers’ compensation claim or lawsuit claiming they are suffering from severe emotional distress or have been diagnosed with PTSD resulting from conditions in the workplace. Let alone any employee claiming post-brain surgery PTSD. Accordingly, Barber is a class of one and numerosity cannot be demonstrated.” (Mot. P&A at p. 12.)

Then, in reply, Defendants further contend that “[s]ince the time of the filing of Barber’s Complaint and this Demurrer, virtually all of the Defendants’ employees who could arguably be included in Barber’s class definition (Compl. ¶ 39) have executed binding mandatory arbitration written agreements, which include a class action waiver provision. Consequently, Barber cannot satisfy the numerosity requirement for class certification purposes because he is the only one that can assert a claim before this Court.” (Reply at p. 8.)

But all of these arguments rely on facts extrinsic to the complaint, and on a demurrer, a court must accept as true the allegations of the complaint and may not consider facts not alleged in the complaint unless they may be reasonably inferred from the matters alleged in the complaint or are proper subjects of judicial notice. Therefore, Defendants’ arguments on numerosity fail on a demurrer. Defendants are also ADMONISHED to refrain from relying on extrinsic facts in any future demurrer.

On predominance and superiority, Defendants generally contend that the claims in this case are riddled with “diverse factual issues to be resolved, even though there may be many common questions of law.” (Mot. P&A at p. 13.) Defendants contend that “claims for negligence and intentional infliction of emotional distress are not amenable to class treatment because the requisite elements of these common law claims require highly individualized proof which defeat the community of interest requirement and individual issues predominate over common issues for both types of claims.” (Id.)

Indeed, “Plaintiff readily admits that ‘the degree of emotional harm may vary among class members.’” (Id. at p. 14, quoting Compl. ¶ 37.) Defendants contend that “individualized issues as to job description, liability, causation and damages cannot be established with class-wide proof.” (Id. at p. 15.) Accordingly, “a class action is not the superior means of resolving this litigation.” (Id.)

However, the relevant inquiry here is not just whether the complaint’s negligence and IIED claims are amenable to class treatment. The Court has already sustained the demurrer as to Plaintiff’s IIED claim without leave to amend. That leaves one potential “negligence” claim subject to amendment to allege sufficient facts to state a claim under Labor Code section 970, as well as a UCL claim. The UCL claim, by definition, cannot seek damages, so there are no individualized issues to try as to damages.

At a minimum, the key issue of Defendants’ liability for both the Labor Code section 970 claim and the UCL claim (especially to the extent it seeks only injunctive relief) appears to involve common questions of law and fact relating to Defendants’ alleged uniform policy of failing to provide safety precautions. As Plaintiff contends, “[t]he complaint alleges that common questions predominate because the conduct at issue, Defendants’ failure to adopt the Protocols, failure to provide informed consent and warnings, use of misleading job titles, and operation of a uniform content moderation system without rotation, screening, or support, applied identically across every class member regardless of title or location.” (Opp. at p. 13.)

Whether these common questions predominate or whether individual issues relating to damages predominate, and whether any individual issues can be properly managed at trial, cannot and should not be decided at this early stage of litigation:

It is a tenet of California civil procedure that the sustaining of demurrers without leave to amend is an extraordinary judicial procedure. . . . Such a drastic step is unwarranted, and ordinarily constitutes an abuse of discretion if there is a reasonable possibility that the defect can be cured by amendment. In particular, the California Supreme Court has expressed its disfavor with this practice as applied to class action suits. In Vasquesz, the court said: ‘For the purpose of determining if the demurrers should have been overruled, it is sufficient that there is a reasonable possibility plaintiffs can establish a prima facie community of interest among the class members. Plaintiffs’ inability to do so, if that be the ultimate result, can be determined at a later stage of the proceeding.’ . . .

California[has adopted a] judicial policy of allowing potential class action plaintiffs to have their action measured on its merits to determine whether trying their suits as a class action would bestow the requisite benefits upon the litigants and the judicial process to justify class action litigation. In order to effect this judicial policy, the California Supreme Court has mandated that a candidate complaint for class action consideration, if at all possible, be allowed to survive the pleading stages of litigation.

The wisdom of allowing survival is elementary. Class action litigation is proper whenever it may be determined that it is more beneficial to the litigants and to the judicial process to try a suit in one action rather than in several actions. To make this determination, it is necessary to balance the benefits of trying a particular suit as a class action, against the concomitant burdens. It is clear that the more intimate the judge becomes with the character of the action, the more intelligently he may make the determination.

If the judicial machinery encourages the decision to be made at the pleading stages and the judge decides against class litigation, he divests the court of the power to later alter that decision. However, if the decision is allowed to be deferred past the pleading stage, and even well into the trial on the merits, the balancing will be more precise. Since it is both the litigants and the judicial process who are the beneficiaries of a wise decision, the overriding interest of all affected is to allow the judge as much insight into the case as possible in making his determination.

Therefore, because the sustaining of demurrers without leave to amend represents the earliest possible determination of the propriety of class action litigation, it should be looked upon with disfavor. . . . If the complaint is allowed to survive the demurrer, then the judge may proceed with the suit, deferring his determination of the propriety of class action until a time when he may better make the decision.

In the case before us, plaintiffs have pleaded facts which tend to show both an ascertainable class and questions of law and fact common to the class. We do not hold that the arguments of real parties in interest are without merit; we hold only that no argument has been made which would allow the judge to rule at the pleading stage that the suit was without the realm of probability of being properly tried as class litigation. The proper time for real parties in interest to raise their arguments is at ‘a later stage in the proceeding’ ‘after notice and hearing’.

(Beckstead, supra, 21 Cal.App.3d at pp. 782-784; see also Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 214, 225, 230 [criticizing Beckstead’s “questionable conclusion that consideration of the sufficiency of class action allegations by demurrer is disfavored,” but also acknowledging trial court may sustain “demurrer to class action allegations of a complaint only if it concludes as a matter of law that, assuming the truth of the factual allegations in the complaint, there is no reasonable possibility that the requirements for class certification will be satisfied,” and holding that trial court erred in sustaining demurrer as to UCL claims seeking injunctive relief because “[s]omewhat different considerations apply in evaluating the sufficiency of the UCL causes of action at the pleading stage,” and “on demurrer, a UCL claim for injunctive relief could be maintained on allegations of [unfair business practices]” alone without consideration of other individualized questions pertaining to each plaintiff.)

In short, Defendants have not sufficiently demonstrated—especially on the current record and at this early stage of litigation—that class certification is not within the realm of probability, so amendment to name a new plaintiff is not, as a matter of law, futile.

Therefore, the Court concludes that Plaintiff Barber has not adequately alleged a viable claim for injunctive relief, but should be granted leave to amend, including to name a new plaintiff who has standing to pursue injunctive relief.

b. Presumption Against Extraterritorial Application of UCL

Defendants also contend that “[a]nother bar to Plaintiff’s UCL claim is that California courts have acknowledged a general presumption against the extraterritorial application of state laws,” which is “in full force with respect to the UCL.” (Mot. P&A at p. 10, citing Sullivan v. Oracle (2011) 51 Cal.4th 1191, 1207.) Defendants contend that because “Plaintiff is a resident of Las Vegas, worked in Chaturbate’s facility in Nevada, and as part of his job reviewed content in the workplace provided by Chaturbate in Nevada.

A reasonable interpretation of Barber’s allegations is that he also suffered his alleged work-related personal injuries in Nevada. Plaintiff alleges no contacts with California, nor could he truthfully or plausibly allege that any Chaturbate Customer Service Risk Supervisors are employed and work in California (because there are none).” (Id. at p. 11.) Accordingly, Defendants contend that Barber cannot avail himself of the protections afforded by California’s UCL statute (and neither can any of the non-California putative class members).” (Id.)

In opposition, Plaintiff contends that “California's UCL reaches unlawful conduct that occurs in California, even where the plaintiff resides elsewhere.” (Opp. at p. 11, also citing Sullivan, supra, 51 Cal.4th at p. 1207.) Plaintiff contends that because the complaint alleges both that “Defendant Multi Media is located in California and committed the acts and omissions at issue in this state” and that “at least 81 people performed this content moderation work during the class period in Nevada, Florida, and California, working both remotely and from Defendants’ offices,” the allegations of the complaint place the unlawful conduct itself inside California. (Id. at pp. 11-12, citing Compl., ¶¶ 12, 23.)

In Sullivan, cited by both parties, the court held that the UCL did not apply where a plaintiff’s UCL claim was based on an employer’s violation of labor laws where the unlawful business act or practice (adoption of an illegal policy), which allegedly occurred in California, but the only work performed by employees occurred “outside California . . . by out-of-state plaintiffs.” (Sullivan, supra, 51 Cal.4th at pp. 1207-1209.)

Here, once again, Defendants’ arguments rely on facts extrinsic to the complaint, as the complaint does not allege where Plaintiff resided or worked, and judicial notice cannot be taken of Plaintiff’s residence based on the allegations of his previous federal complaint. Moreover, on a demurrer, the Court must accept as true the complaint’s allegations at least some number of putative class members worked in California and therefore, presumably suffered injuries in California.

Therefore, Defendants have failed to demonstrate that the allegations of the complaint necessarily implicate the presumption against extraterritorial application.

However, as noted above, the Court nevertheless SUSTAINS WITH LEAVE TO AMEND the demurrer to the UCL cause of action on the grounds that Plaintiff has failed to allege sufficient facts to state a viable claim for restitution or injunctive relief.

Defendants’ request for judicial notice is DENIED as irrelevant. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 289, fn. 9 [“These materials are not relevant to any issue in this case and the request is denied”]; Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of materials not “necessary, helpful, or relevant” or when court does “not require that information to decide this case”].)

2. Plaintiff’s Motion to Strike Portions of Demurrer Plaintiff Neal Barber’s motion to strike portions of Defendants Bayside Support Services LLC and Multi Media LLC’s demurrer is DENIED. (Code Civ. Proc. [CCP], § 436.)

As an initial matter, the Court finds that the motion was timely filed. CCP section 435, subdivision (b)(1) explicitly permits motions to strike a pleading “within the time allowed to respond to [the] pleading,” and subdivision (b)(3) also provides that “[a] notice of motion to strike a demurrer, or a portion thereof, shall set the hearing thereon concurrently with the hearing on the demurrer.” Here, Plaintiff’s motion was filed 9 court days before the hearing on the demurrer, which is “within the time allowed to respond to” the demurrer, and the motion was noticed for hearing concurrently with the demurrer.

The Court also finds that Plaintiff substantially satisfied CCP section 435.5’s meet-and-confer requirement before filing this motion. Although Plaintiff’s 2/25/2026 letter purports to be a “Safe-Harbor Notice Pursuant to Code of Civil Procedure § 128.7” and did not reference Plaintiff’s intention to file a motion to strike, the letter and the ensuing communications between the parties nevertheless substantially satisfy the spirit of section 435.5’s meetand-confer requirements, as Plaintiff’s letter identified 11 of the 12 statements at issue in this motion, explained why Plaintiff believed they are improper, and prompted further communications between the parties in an informal attempt to resolve their dispute before resorting to the courts. (ROA #65, Exh. A.)

In any case, even if Plaintiff failed to satisfy the meet-and-confer requirement for a motion to strike, CCP section 435.5, subdivision (a)(4) explicitly states that “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.”

Although the motion is procedurally sound, the Court exercises its discretion under CCP section 436 to deny the motion.

CCP section 436 vests courts with discretion to grant or deny a motion to strike made pursuant to CCP section 435. (CCP, § 436, emphases added [title of section is “Discretion of court to strike pleadings or portions of pleadings,” and text of provision states “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper” strike all or part of a pleading].)

Plaintiff contends that the 12 statements at issue in the motion are irrelevant or improper because they either (1) assert facts that are neither alleged in the complaint nor subject to judicial notice or (2) disparage Plaintiff and his counsel.

However, defendants routinely file demurrers that contain arguments that rely on facts not alleged in the complaint, and courts routinely disregard those facts without formally striking them from the demurrer. (See, e.g., Hall, supra, 231 Cal.App.3d at p. 718, fn. 7 [simply noting demurrer relied on facts extrinsic to complaint and stating “court will not consider facts which have not been alleged in the complaint unless they may be reasonably inferred from the matters which have been pled or are subjects of judicial notice”]; Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [simply noting that since complaint “did not allege or refer to” a factual issue, defendants “cannot raise this issue by demurrer”].)

Moreover, the allegedly disparaging statements that Plaintiff seeks to strike here reflect mere rhetoric or hyperbole that courts frequently see and ignore if not supported. In fact, as Defendants point out, California courts have even used similar language in their opinions. (See, e.g., People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1317 [describing filing of abusive lawsuits as “a kind of legal shakedown” based on “ridiculously minor violations of some regulation or law by a small business”].) In short, the statements at issue here do not rise to the level of being so “abusive, rude, hostile, and/or disrespectful” that they must be stricken. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1534-1535 [describing pervasive pattern of abusive conduct and language warranting imposition of sanctions].)

Even with motions to strike complaints, California courts have “emphasize[d] that . . . use of the motion to strike should be cautious and sparing,” and courts “have no intention of creating a procedural ‘line item veto’” for litigants. (PH II, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1683.) Preserving the court’s resources is also a legitimate policy goal. (See, e.g., Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [“recogniz[ing] that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objections, without focusing on those that are critical,” and “encourag[ing] parties to raise only meritorious objections to items of evidence that are legitimately in dispute and pertinent to the disposition of the summary judgment motion”]; Le Francois v.

Goel (2005) 35 Cal.4th 1094, 1104 [recognizing “conserv[ation of] the court’s resources by constraining litigants [from] bring[ing] the same motion over and over” as a legitimate purpose for the adoption of CCP section 1008].)

Ultimately, in ruling on Defendant’s demurrer, the Court did not consider any of the 12 statements at issue in the instant motion. Therefore, the Court DENIES the motion as unnecessary and/or moot.

3. Defendants’ Motion for Protective Order

Defendants Bayside Support Services LLC and Multi Media LLC’s motion for protective order is DENIED.

As an initial matter, CCP section 1010 requires that the notice of motion state “the grounds upon which it will be made.” Similarly, CRC 3.1110(a) requires a notice of motion to “state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” Thus, “[a]s a general rule, the trial court may consider only the grounds [and relief sought] stated in the notice of motion,” as “[t]he purpose of these requirements is to cause the moving party to sufficiently define the issues for the information and attention of the adverse party and the court.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125, internal quotes omitted.)

Here, in their moving papers, Defendants initially sought only a “limited protective order staying all discovery, including depositions, until the resolution of Defendants’ pending potentially dispositive demurrer.” (ROA #23, Not. of Mot. & Mot., p. 1; see also id., Mot. P&A, at p. 5.) Plaintiff is correct that this relief sought by the instant motion is moot insofar as the Court is hearing the demurrer concurrently with this motion for protective order. Therefore, the Court DENIES as moot the relief sought in the notice of motion and motion.

But in Defendants’ reply, Defendants broadened the relief sought by further requesting that “[s]hould the Court instead allow Plaintiff to amend his Complaint in some fashion, Defendants request that all discovery be stayed until at least after the pleadings are settled either through another demurrer or an answer.” (ROA #67, Reply, p. 1; see also id. at p. 5 [“Further, if any of Plaintiff’s claims survive the Demurrer, or if leave to amend is granted as to any of his claims, no discovery should be permitted until after the pleadings are settled either through a subsequent Demurrer/motion to strike or the filing of an answer”].)

Then, in the final paragraph of their reply, Defendants additionally requested that “any ‘class’-related discovery should be barred altogether because by reason of binding mandatory arbitration and class action waiver agreements, no class can be certified in this case. Accordingly, any class discovery would be completely irrelevant and violate the privacy rights of Defendants’ employees.” (Id. at p. 5.)

“Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument. Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant. Obvious considerations of fairness in argument demand that the [moving party] present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764, internal quotes & citations omitted.)

Thus, the Court also DENIES the additional relief requested by Defendants only in their reply brief out of basic fairness in motion practice.

But even if the Court were to consider the merits of the additional relief requested by Defendants, the Court also DENIES the motion because Defendants have failed to satisfy their burden of proving that they are entitled to a stay of all discovery, including, in particular, class discovery.

A “party objecting to particular discovery requests, e.g., as unduly burdensome or oppressive, may seek a protective order,” and “the burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont Insurance Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255.)

A basic tenet of discovery is that “a civil litigant’s right to discovery is broad. Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. This right includes an entitlement to learn the identity and location of persons having knowledge of any discoverable matter. [A]nd . . . statutes governing discovery must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial. This means that disclosure is a matter of right unless statutory or public policy considerations clearly prohibit it.” (Willians v. Super. Ct. (2017) 3 Cal.5th 531, 541, internal quotes, ellipses, & citations omitted.)

Moreover, plaintiffs are entitled to pre-certification discovery to identify class members and to determine whether class allegations are appropriate. (Union Mutual Life Insurance Co. v. Super. Ct. (1978) 80 Cal.App.3d 1, 10- 11.) At a minimum, “[c]ontact information regarding the identity of potential class members is generally discoverable, so that the lead plaintiff may learn the names of other persons who might assist in prosecuting the case.” (Pioneer Electronics (USA), Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 373.)

Here, at bottom, Defendants’ reply seeks a wholesale order barring all discovery, including discovery aimed at facts relating to class certification. Defendants contend that this discovery should be denied because Defendants believe that certification will not be granted in this case. But that’s not how civil litigation works. Plaintiffs are entitled to obtain through discovery the actual facts Defendants are relying upon to contend that the class cannot be certified, including for lack of numerosity. Defendants cannot refuse to produce relevant evidence and simply ask that Plaintiff and the Court trust Defendants’ representation of the facts and application of the law.

Moreover, as explained in the above order ruling on Defendants’ demurrer, the Court has sustained Defendants’ demurrer as to the 3rd causes of action for violation of the UCL with leave to amend, including to identify a new plaintiff who has standing to seek injunctive relief. Defendants have presented no argument as to why Plaintiff should not be permitted to amend to name a new plaintiff other than by simply insisting that class certification requirements cannot be met. (See ROA #69, Reply ISO Dem., p. 6 [as to Plaintiff’s argument about leave to amend, Defendants simply contend that because Plaintiff’s “class allegations are not salvageable, amendment to substitute a new plaintiff (who Barber has not identified and likely does not exist) would be futile”].) The instant motion papers also do not address this issue.

Defendants shall give notice of all of the above.

106 MD Hydration Inc. vs. Fusion Hydration, LLC

2022-01246305 1. Motion for Leave to File Amended Complaint 2. Motion to Seal

(1) Motion for Leave to Amend Plaintiffs (1) MD Hydration Inc. dba The Hydration Room and (2) Hydration Holding Company’s motion for leave to file the Third Amended and Supplemental Complaint (TAC) is GRANTED.

Procedural Requirements

Plaintiffs have complied with the procedural requirements for the instant motion under California Rules of Court (CRC), rule 3.1324. (See ROA #262, Poorman Decl., passim.)

Defendants do not contend the motion is procedurally defective. Rather, Defendants disagrees with whether the substance of Plaintiffs’ motion is sufficient to warrant relief.

Merits

Applicable Legal Standard

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . . .” (Code Civ. Proc. [CCP], § 473, subd. (a)(1).) Further, “[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, . . . may allow the amendment of any pleading . . . .” (CCP § 576.)

“[C]ourts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial,” so long as “no prejudice is shown to the adverse party.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 [internal quotes and citations omitted].) “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)