ROBERT HARRIS v. ELEMENTIS GLOBAL LLC.

On or about March 6, 2026, this matter returned to this Court. On March 24, Defendant filed the instant demurrer, arguing that all of Plaintiff’s claims are barred because Plaintiff’s employment with Defendant was governed by a Collective Bargaining Agreement (“CBA”) and thus preempted by Section 301 of the Labor Management Relations Act (“LMRA”). Along with its demurrer, Defendant also filed a meet and confer declaration as well as a request for judicial notice, attaching the CBA. On April 1, Defendant filed an errata, correcting its notice of demurrer.

On May 21, Plaintiff filed his opposition to the demurrer as well as an objection to the request for judicial notice, and Defendant replied on May 28.

On June 12, Plaintiff filed a motion for sanctions pursuant to Code of Civil Procedure section 128.7, arguing Defendant’s demurrer was improperly filed. Defendant filed its opposition to this motion on June 17, and Plaintiff replied on June 24.

Demurrer – Generally.

A demurrer challenges defects that appear on the face of the pleading under attack, or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The face of the complaint includes matters shown in attached exhibits and incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) No other extrinsic evidence can be considered. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer predicated on a complaint’s failure to state facts sufficient to constitute a cause of action (Code of Civ.

Proc. §430.10, subd. (e)) should be granted only when the facts alleged on the face of the complaint fail to state any valid claim entitled to the plaintiff or disclose a complete defense to relief. A complaint fails to state a cause of action where the dates alleged therein establish that the claim is barred by the statute of limitations. (Lehman v. Superior Court (2006) 145 Cal.App.4th 109, 115.) Even if a plaintiff is mistaken as to the nature of the case or the legal theory on which he could prevail, the complaint is good against a general demurrer if the essential facts allege some valid cause of action. (Gruenberg v.

Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.)

When evaluating a demurrer, trial courts should give the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Blank, supra, 39 Cal.3d at 318.) The material facts that are properly pled and judicially noticed are assumed true for purposes of a demurrer. (Ibid.) Yet contentions, deductions or conclusion of fact or law are not assumed true. (Ibid.) “[T]he question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Concerned Citizens of Costa Mesa, Inc. v. 32nd Agricultural Assn. (1986) 42 Cal.3d 929, 936 (citations omitted).) The complaint is also to be liberally construed. (Code of Civ. Proc. §452.)

Meet and Confer Requirement for Demurrers.

Under Code of Civil Procedure section 430.41, before filing a demurrer, the objecting party is required to meet and confer with the opposing party, at least 5 days before a responsive pleading is due, for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) During the meet and confer, the demurring party shall identify all the specific causes of action it believes are subject to demurrer and identify the legal support. A declaration must also be filed in connection with the demurrer that declares the means by which the parties met and conferred and that the parties did not reach an agreement or that the opposing party failed to respond to the meet and confer. (Ibid.)

Sanctions Under Section 128.7.

Code of Civil Procedure section 128.7 provides for the imposition of sanctions for filing “frivolous” pleadings. Yet sanctions under this provision are not designed to be punitive in nature, rather promote compliance with statutory standards of conduct. (Code Civ. Proc., §128.7, subd. (d); Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 441.) Section 128.7, subdivision (b) states:

By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is

certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Only an attorney or unrepresented party may be sanctioned if section 128.7, subdivision (b)(2) is violated, but if any other sub-section of section 128.7, subdivision (b) is violated, then the attorney and his client may be sanctioned. (Code of Civ. Proc., §128.7, subd. (d)(1).)

Essentially, there are “three types of submitted papers that warrant sanctions: factually frivolous (not well grounded in fact); legally frivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law); and papers interposed for an improper purpose.” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.)

Section 128.7, subdivision (c)(1) requires as a “safe harbor” provision that any sanctions motion to be made separately from other motions or requests, must describe the specific conduct alleged to violate subdivision (b) and “shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless within 21 days after service of the motion ... the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately correct.” The purpose of this provision is to permit the offending party an opportunity to avoid sanctions by withdrawing the improper pleading during the safe harbor period. (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 699.)

Analysis.

The Demurrer.

Judicial Notice

With its moving papers, Defendant requests judicial notice of the CBA between the parties pursuant to California Evidence Code section 452, subdivision (h), which allows judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

Although Plaintiff objects to the request for judicial notice, he does not argue or state that the CBA presented is not the agreement that would govern the relationship between the parties. Plaintiff is correct, however, that “[a]lthough the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113 (emphasis in original).)

The Court grants Defendant’s request for judicial notice, but only as to the document’s existence, given that Plaintiff objects to the document’s interpretation and the statements contained within the CBA are the subject to dispute.

Meet and Confer.

Counsel for Defendant attests that Plaintiff filed the FAC in federal court on February 12, 2026, and that on February 19, 2026, she met and conferred with counsel for Plaintiff by “Zoom videoconference regarding the deficiencies with Plaintiff’s FAC at issue in Defendant’s Demurrer. Counsel for Plaintiff did not agree as to the deficiencies, which necessitated the filing of Defendant’s Demurrer.” (D. Saad Decl. ¶¶3, 6.) As such, the Court finds that the meet and confer requirement has been satisfied.

Whether Plaintiff’s Claims Can Survive Section 301 of the LMRA.

Defendant’s argument on demurrer is that none of Plaintiff’s claims can survive because they are all preempted by section 301 of the LMRA. Section 301 states that:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

(29 U.S.C. § 185.) “[A]n application of state law is preempted by Section 301 only if such application requires the interpretation of a collective-bargaining agreement.” (Reyes v. Bulwark Constr., Inc. (S.D. Cal. Apr. 23, 2026, No. 25cv03638 W (KSC)) 2026 U.S. Dist. LEXIS 90150, at *5.) (Unpublished federal district court decisions are “citable notwithstanding California Rules of Court rule 977, which only bars citation of unpublished California opinions. Therefore, [unpublished federal district court decisions] are citable as persuasive, although not precedential, authority.” (City of Hawthorne ex rel. Wohlner v. H&C Disposal Co. (2003) 109 Cal.App.4th 1668, 1678, fn. 5 (emphasis in original).)

Where, as is here, a complaint does not mention the existence of a CBA, courts apply the two-pronged test articulated in Burnside v. Kiewit Pac. Corp. (9th Cir. 2007) 491 F.3d 1053 (“Burnside”) to determine whether a cause of action is subject to Section 301 preemption:

[F]irst, an inquiry into whether the asserted cause of action involves a right conferred upon an employee by virtue of state law, not by a CBA. If the right exists solely as a result of the CBA, then the claim is preempted, and our analysis ends there. [Citation.] If, however, the right exists independently of the CBA, we must still consider whether it is nevertheless ‘substantially dependent on analysis of a collective-bargaining agreement.’ [Citation.] If such dependence exists, then the claim is preempted by section 301; if not, then the claim can proceed under state law.

(Burnside v. Kiewit Pac. Corp., supra, 491 F.3d at 1059-1060.) As to factor one, only if the claim is founded directly on rights created by collective-bargaining agreement does section 301 preempt it.” (Kobold v. Good Samaritan Reg’l Med. Ctr. (9th Cir. 2016) 832 F.3d 1024, 1033.)

Plaintiff argues that its causes of action are not preempted under the Burnside test. Plaintiff’s causes of action one through six derive from California’s Fair Employment and Housing Act (“FEHA”) and the California Family Rights Act (“CFRA”). Plaintiff’s seventh through nineth causes of action are wage violations under the California Labor Code. Numerous federal district courts have applied the Burnside test to find that causes of actions deriving from these statutes are not preempted by section 301. For

example, in Galipeau v. Nat'l Retail Transp., Inc., the Central District federal court found that “the rights to be free from harassment, retaliation, and wrongful termination in violation of public policy are independent protections,” and “exist regardless of union membership and cannot be waived by private agreement.” (Galipeau v. Nat’l Retail Transp., Inc. (C.D. Cal. Mar. 19, 2026, No. CV 25-10254-MWF (BFMx)) 2026 U.S. Dist. LEXIS 59471, at *8; see also Chmiel v. Beverly Wilshire Hotel Co. (9th Cir. 1989) 873 F.2d 1283, 1286 (stating that “antidiscrimination statutes were not preempted by section 301 because the right is defined and enforced under state law without reference to the terms of any collective bargaining agreement”).)

As such, “[t]hese claims therefore do not exist solely under the CBA and are not preempted under Step One.” (Ibid.) Such logic also applies to the CFRA and labor code provisions, which establish causes of action outside of the existence of a CBA. (See, e.g., Mayo v. Aspire Bakeries, LLC. (C.D. Cal. July 6, 2026, No. 2:26-cv-05885-DSF-RAO) 2026 LX 317224; McCray v. Marriott Hotel Servs. (9th Cir. 2018) 902 F.3d 1005, 1010 (“claims that the employer did not pay minimum wage and back pay arise under state and local law and would exist with or without the CBA”.)

As to Burnside step two, Defendant argues that the Court needs to interpret sections of the CBA to determine whether Defendant is liable on Plaintiff’s claims. (Mot. at 14-17.) However, as articulated by the Central District Court, while “[i]t is true that a court may need to read the CBA, analyze the complex interplay of its provisions, and apply it to the facts to determine whether [Plaintiff or Defendant] is correct[, the] mere application of the CBA—even if complicated—does not rise to the level of interpretation required for the Court to find the wrongful termination claim preempted.” (Mayo v.

Aspire Bakeries, LLC., supra, 2026 U.S. Dist. LEXIS 148512, at *13.) “[I]n the context of § 301 complete preemption, the term ‘interpret’ is defined narrowly - it means something more than ‘consider,’ ‘refer to,’ or ‘apply.’” (Balcorta v. Twentieth Century-Fox Film Corp. (9th Cir. 2000) 208 F.3d 1102, 1108.)

Additionally, Plaintiff’s claims rest on allegations that he was terminated because of his disability in violation of California law, not on allegations that Defendant violated the CBA. “If the claim is plainly based on state law, § 301 pre-emption is not mandated simply because the defendant refers to the CBA in mounting a defense.” (Cramer v. Consol. Freightways, Inc. (9th Cir. 2001) 255 F.3d 683, 691.) Here, Defendant’s argument on demurrer invokes its defenses – that Plaintiff did not abide by the CBA. As such, the existence and interpretation of the CBA is part of Defendant’s defense; not the origin of Plaintiff’s claims.

Accordingly, the court intends to overrule the demurrer in its entirety.

The Motion for Sanctions.

Although the court is overruling the defendant’s demurrer, the Court also intends to deny Plaintiff’s motion for sanctions. Plainly, Plaintiff has not shown that Defendant has violated any of the subdivisions listed as part of Code of Civil Procedure section 128.7, subdivision (b).

Plaintiff argues that because Defendant made a scrivener’s error in its notice of demurrer that it was frivolous, but as Defendant points out, it served a notice of errata, correcting the notice of demurrer, on April 1.

Further, Defendant’s underlying argument regarding preemption was not frivolous, and there is no evidence that Defendant brought the underlying demurrer for an improper purpose. Indeed, even though the court is overruling the demurrer, Defendant may have a credible argument as to the application of the CBA, but given the standard on demurrer, this Court will allow it to proceed on the merits.

TENTATIVE RULING:

The court overrules Defendant’s demurrer. The plaintiff’s motion for sanctions is denied.

The court further orders the plaintiff to refile the FAC within 10 Days.