Demurrer
34-2023-00333157-CU-OE-GDS: Jesse Bailey vs. Arthur Freeman 07/18/2025 Hearing on Demurrer in Department 22
Tentative Ruling
Defendant Zackary Fuellings (Defendant or Fuelling) demurrer to Plaintiffs Second Amended Complaint is UNOPPOSED and SUSTAINED, as follows.
Background
Plaintiff initiated this wage and hour class action on January 18, 2023, alleging causes of action against Defendant Arthur Freeman, doing business as Indoor Restore Environmental Services. (Complaint.) Plaintiff alleged causes of action for (1) intentional misclassification of employees; (2) failure to pay minimum wages; (3) unlawful failure to pay overtime wages; (4) failure to provide itemized statement to employee; (5) failure to pay terminated or quitting employee; (6) failure to pay expenses reimbursement; (7) unfair business practices; and (8) failure to provide personnel file. (Ibid.)
On April 24, 2023, Plaintiff filed a First Amended Complaint (FAC) against Defendants NVC Group, Inc. doing business as Indoor Restore Environmental Services and substituting Zackary Fuelling for the fictitious Doe defendant 1. (FAC.) Plaintiff also dropped the failure to provide personnel file cause of action. (Ibid.)
On July 19, 2024, the Court sustained Defendants demurrer to Plaintiffs FAC, which largely addressed the FACs failure to allege facts connecting Defendant to Indoor Restore or sufficiently allege alter ego liability. (7-19-24 Minute Order.) The Court granted leave to amend. (Ibid.) On August 21, 2024, Plaintiff filed a Second Amended Complaint (SAC), which adds allegations regarding joint liability. (Compare FAC and SAC.) On July 9, 2025, the Court granted Plaintiffs request to dismiss the class allegations without prejudice. (7-9-25 Order.)
Discussion
Defendant now demurs to Plaintiffs entire SAC on the grounds that Plaintiff alleges no facts to establish any relationship between Fuelling and the alleged employer Indoor Restore, nor do the facts allege that Fuelling was an employer liable for wage violations, nor does Plaintiff provide any alter ego theory that would make Defendant Fuelling liable for wage violations of Indoor Restore. (Demurrer, p. 2:1-4.)
On July 11, 2025, Defendant filed a Notice of Non-Opposition noting that Plaintiff failed to file a timely opposition. (Non-Opp., p. 1:25-27.) The Court has reviewed its Register of Actions and confirmed that Plaintiff failed to oppose. Defendant also notes that Plaintiff attempted to file a Third Amended Complaint, which was rejected by the Court. (Id., p. 2:2-3.)
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The Court construes Plaintiffs failure to oppose as a concession on the merits. (See D.I. Chadbourne, Inc. v. Super. Ct. (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion it is assumed that [nonmoving party] concedes that ground].)
34-2023-00333157-CU-OE-GDS: Jesse Bailey vs. Arthur Freeman 07/18/2025 Hearing on Demurrer in Department 22
Accordingly, Defendants demurrer is SUSTAINED in its entirety.
Plaintiff did not seek leave to amend and/or explain how amendment would cure the defects raised in Defendants demurrer. Moreover, this is the second demurrer addressing the sufficiency of Plaintiffs alter ego/joint liability allegations and Plaintiff was previously granted leave to amend to address this issue. (See 7-19-24 Minute Order.) Accordingly, leave to amend is DENIED.
Disposition
Defendants demurrer is UNOPPOSED and SUSTAINED, WITHOUT LEAVE TO AMEND.
The Court will sign the Proposed Order submitted with Defendants moving papers.
To request oral argument on this matter, you must call Department 22 at (916) 874-5762 by 4:00 p.m., the court day before this hearing and notification of oral argument must be made to the opposing party/counsel. If no call is made, the tentative ruling becomes the order of the court. (Local Rule 1.06.)
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If you are not using a reporter from the Courts Approved Official Reporter Pro Tempore list, a Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) must be signed by each party, the private court reporter, and the Judge. The signed form must be filed with the clerk prior to the hearing.
If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211). The form must be filed with the clerk at least 10 days prior to the hearing or at the time the hearing is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporters Office and an official reporter will be provided.
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO
34-2023-00333157-CU-OE-GDS: Jesse Bailey vs. Arthur Freeman 07/18/2025 Hearing on Demurrer in Department 22
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Counsel for Defendant is directed to notice all parties of this order.
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