Defendants’ Demurrer to First Amended Complaint
12. Alcantar v. PSLQ, Inc., et al, Case No. CIVSB2221075 Defendants’ Demurrer to First Amended Complaint 8/5/26, 9:00 a.m., Dept. S-17
Tentative Ruling The Court would OVERRULE.
Case Summary This is, largely, a wage-and-hour class and representative action. Plaintiff alleges that he was employed by Defendants in the construction industry. He further alleges he was criticized or disciplined for complaining about working conditions, taking meal and rest breaks, or requesting required items. He states he was denied pay for travel time and expenses, and he ultimately had his employment terminated. As such, he filed suit on September 26, 2022.
He filed a First Amended Complaint (FAC) on March 30, 2026, alleging (1) failure to prevent discrimination, retaliation, etc.; (2) violation of the Whistleblower Statutes; (3) breach of oral/ implied contract; (4) wrongful termination in violation of public policy; (5) violation of the mealand-rest period requirements; (6) minimum wage violations; (7) final pay violations; (8) failure to provide accurate wage statements; (9) failure to provide sick leave, COVID leave, etc.; (10) failure to provide heat program and suitable seating; and (11) intentional infliction of emotional distress. Notably, the Complaint asserts the wage-and-hour components as claims for civil penalties pursuant to the Private Attorneys General Act (PAGA). (FAC, 5:25-6:21 & ¶¶6, 54 [meal & rest], 60 [min. wage]; 66 [final pay]; 71 [accurate wage statements]; 75 [sick leave]; and 82 [heat program and seating].)
Analysis
Defendants’ demurrer argues that Plaintiff’s purported PAGA claim fails to state facts sufficient to constitute a cause of action. More specifically, Defendants argue that the FAC purports – for the first time – to assert a PAGA claim. The FAC was filed on March 30, 2026. Defendants assert that the statute of limitations expired no later than September 30, 2023, and that the PAGA claims cannot be related back to the original filing date of September 26, 2022.
As a starting point, a cause of action for civil penalties under PAGA is subject to a one-year statute of limitations, tolled only by the 65-day LWDA review period under Labor Code section 2699.3, subdivision (d). (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 839.) In this case, Plaintiff acknowledges at Paragraph 17 of the original Complaint that he was terminated prior to the filing of the original Complaint on September 26, 2022. (Comp., ¶17.) Plaintiff's LWDA notice was submitted on July 27, 2022. (FAC, Ex. A.) Accepting Plaintiff’s July 27, 2022 LWDA notice as the anchor and applying the 65-day statutory tolling, the one-year limitations period expired no later than approximately September 30, 2023.
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The FAC was filed on March 26, 2026, more than two and a half years after the statute of limitations expired. Defendants argue that the PAGA cause of action in the FAC is untimely on its face. Thus, the issue falls squarely on whether the allegations relate back to the original filing. Under California law, an amended complaint relates back to the original only if it “(1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality.” (Pointe San Diego Residential Cmty., L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276-277.)
However, the mechanical three-part test is not enough: “In determining whether the amended complaint alleges facts that are sufficiently similar to those alleged in the original complaint, the critical inquiry is whether the defendant had adequate notice of the claim based on the original pleading.” (Id. at p. 277; Hutcheson v. Superior Court (2022) 74 Cal.App.5th at p. 940 [“the most important consideration is whether the original pleading gave the defendant adequate notice of the claim”].)
Here, given the original allegations and the case history, it appears that there was enough to put the Defendants on notice of the PAGA allegations. In the preamble of the original complaint, it expressly indicates that “Plaintiff is seeking all damages and relief, penalties, fines, fees, statutory penalties, fines and fees, attorneys’ fees, costs, interest on behalf of himself, [and] other current and former employees of Defendants pursuant to [Labor Code section] 2698 of the Private Attorneys General Act.” (Compl., 4:6-9 [emphasis].) Further, under the “FACTS COMMON TO ALL CAUSES OF ACTION” heading, the Complaint expressly references the Labor and Workforce Development Agency (LWDA) notice of violations pursuant to PAGA. (Compl., ¶6.)
Moreover, even before the FAC, the record reflects that the parties were on notice of PAGA claims: Certainly, it is undisputed that Defendants received the LWDA notice on July 27, 2022, prior to the filing of original Complaint. On January 4, 2024, Defendants in fact filed answers that included failure to exhaust administrative remedies as an affirmative defense. (E.g., PSLQ Ans., 4:7-8.) Further, prior to the filing of the FAC, the Court expressly stated that “the Complaint appears to assert the wage-and-hour components as claims for civil penalties pursuant to PAGA.” (Tentative, 5/22/24.)
The Court’s own minute order from motion to compel arbitration read, in part: “As modified in that the Representative PAGA action is stayed with the exception of Motion practice as to the adequacy of the pleadings.” (Minute Order, 5/24/24 [emphasis added].) Thus, the ruling expressly considered the Complaint’s allegations to contain PAGA claims.
The FAC rests on the same general set of factual allegations; involves the same purported injuries; and refers to the same instrumentality. In the FAC, Plaintiff’s counsel clarifies the causes of action brought by Plaintiff in an individual capacity versus the causes of action brought in a representative capacity under PAGA. However, the facts common to all causes of action one through twenty are identical with the exception of three sentences added to section 18 on page eleven of the FAC. Plaintiff, unlike the Plaintiff in Esparza does not add a cause of 3
action in the FAC, but rather adds details to the Complaint to clean up the pleading in areas that were previously less than unclear in the original. *** *** ***
13. Jackson v. Robinson, et al, Case No. CIVSB2606811 Demurrer 8/5/26, 9:00 a.m., Dept. S-17
The Court would CONTINUE the matter so that Defendant may satisfy the meet-and-confer requirements. Prior to a demurrer, a party is required meet and confer in person or by telephone or by video conference with the party who filed the pleading for purposes of “determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a) [demurrer].)
Here, the supporting declaration does not confirm compliance with the meet-and-confer requirements. (See Beard Decl.) Rather, the declaration sets out that an email with a request to meet and confer. (Beard Decl., ¶2.) Later, a follow-up email was sent without any response. (Beard Decl., ¶5.) The declaration fails to indicate any attempt to contact in person, by telephone, or by video. It also fails to adequately set out any frustrated attempt at such compliance.
The Court would continue the matter to allow a supplemental declaration showing compliance. Defendant will file a supplemental declaration at least ten court days before the next hearing. *** *** ***
15. Morales v. VPET USA, LLC, et al, Case No. CIVSB2108161 Plaintiff’s Motion for Preliminary Approval of Class Action Settlement 8/5/26, 9:00 a.m., Dept. S-17
The Court would CONTINUE the matter to allow Plaintiff to pay the motion filing fee.
Notice from the Court was sent on July 31, 2026, indicating that payment of the filing fees was due at least one day prior to the hearing. As of the time of this tentative, the filing fees have not yet been received. *** *** ***
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