PAMELA BROOKS v. MYSMART POCKET INC., et. al.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN BERNARDINO

PAMELA BROOKS, Case No.: CIVSB 2609691 Plaintiff, [TENTATIVE] ORDER OVERRULED DEMURRER FILED v. BY DEFENDANTS MYSMART POCKET, INC. AND ROSSEL MYSMART POCKET INC., et. al., LASTIMOSO Defendants.

I. INTRODUCTION On March 27, 2026, Plaintiff Pamela Brooks filed this action against Mysmart Pocket

Inc. and Rossel Lastimoso alleging causes of action for (1) failure to pay overtime compensation;

(2) failure to pay minimum wage; (3) failure to provide meal periods; (4) failure to provide rest

breaks; (5) failure to pay wages due upon termination and waiting time penalties; (6) failure to

issue accurate and itemized wage statements; (7) failure to indemnify; and (8) unlawful business

practices. The first seven causes of action are pled against both Defendants, while the eighth is

pled only against Mysmart Pocket. The complaint alleges violations of these wage and hour

requirements in connection with Plaintiff’s employment as a Supervisor commencing November

1, 2023.

On June 25, 2026, Defendants filed this demurrer. Plaintiff opposes. No reply was filed.

After issuing a tentative ruling and holding a hearing on the motion, the Court now issues its

final ruling.1

II. WHY THE DEMURRER SHOULD BE OVERRULED

A. Defendant Lastimoso

Defendants first argue the allegations against Defendant Lastimoso in the first seven

causes of action are inadequate because they contain no details that he personally caused any

violations.

The complaint alleges Lastimoso was at all relevant times an owner, director, officer, or

managing agent of Defendant Mysmart Pocket. The complaint further alleges upon information

and belief that Lastimoso, in his executive capacity, exercised sufficient control over Mysmart

Pocket’s operations to render him personally liable for causing the alleged statutory violations.

Lastimoso, acting on Mysmart Pocket’s behalf, violated Plaintiff’s rights as set forth by the

Industrial Welfare Commission and the Labor Code such that she is individually liable for such

violations pursuant to Labor Code section 558.1. (Complaint, ¶¶ 3-5.)

Defendants argue more details must be alleged showing Lastimoso had some real role in

the policy or decision that produced the violation. But none of the cases Defendants cite were

decided at the pleading stage. (Atempa v. Pedrazzani (2018) 27 Cal.App.5th 809 [post-trial];

Usher v. White (2021) 64 Cal.App.5th 883 [summary judgment]; Espinoza v. Hepta Run, Inc.

1 The Court finds that the moving party has complied with its meet-and-confer obligation.

(2022) 74 Cal.App.5th 44 [summary judgment].) Although these cases discuss pleading issues to

some extent, Defendants fail to establish that more detailed allegations are needed.

B. Uncertainty

Defendants next argue the first seven causes of action are uncertain because they do not

identify which Defendant did what or when, instead referring to Defendants collectively. In

support, Defendants cite Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, but

that case is fairly fact-specific involving an uncertain oral agreement. (Id. at p. 616.)

A demurrer predicated on a complaint’s uncertainty is generally sustained when the

complaint is unfairly vague or so ambiguous or unintelligible that the defendant cannot

reasonably respond and/or determine the issues. (Ibid.) “A demurrer for uncertainty is strictly

construed, even where a complaint is in some respects uncertain, because ambiguities can be

clarified under modern discovery procedures.” (Ibid.)

The complaint here is not so uncertain that Defendants cannot determine the issues.

Further details can be properly developed in discovery. The Court overrules the demurrer to the

extent it is premised on this argument.

C. Fifth and Sixth Causes of Action

The Court is similarly unpersuaded as to the defense’s arguments regarding the fifth

cause of action, for failure to pay wages upon termination, and the sixth cause of action, for

failure to issue accurate and itemized wage statements. Defendants argue these two causes of

action fail to adequately plead willful refusal to pay as required by Labor Code sections 203 or

“knowing and intentional” conduct as proscribed by Labor Code section 226, subdivision (e).

Both causes of action allege such conduct in conclusory language with no detail provided.

(Complaint, ¶¶ 53-54, 64.)

Defendants cite Moore v. Regents of the University of California (1990) 51 Cal.3d 120,

125 to argue that a plaintiff must plead specific facts demonstrating each defendant’s state of

mind. But the pinpoint citation provided does not specify any more stringent requirement, and

the allegations in Moore bear no resemblance to this case; the case involved “whether plaintiff

has stated a cause of action against his physician and other defendants for using his cells in

potentially lucrative medical research without his permission.” (Id. at pp. 124-125.) The Court is

reluctant to assign broad precedential value to a dispute involving such unusual and different

facts.

Plaintiff adequately alleges that Defendants willfully violated the subject statutory

requirements. The Court overrules the demurrer to the extent premised on this argument.

D. Sixth Cause of Action

The sixth cause of action alleges failure to issue accurate and itemized wage statements.

Such a claim is barred for any wage statement issued before March 27, 2025. Labor Code section

226, subdivision (e)(1) authorizes a monetary penalty to be paid to an employee suffering an

intentional violation. Actions for penalties are subject to a one-year statute of limitations. (Code

Civ. Proc., § 340, subd. (a).)

Plaintiff alleges she commenced working for Defendants on or about November 1, 2023

(Complaint, ¶ 9), but does not specify when the violations commenced or ended. Nevertheless,

Plaintiff limits her request for penalties to pay periods up to one year from the filing date of the

action. (Complaint, ¶ 67.) Therefore, the complaint as drafted already limits such recovery to the

statutorily allowable time period.

Moreover, “[a] demurrer must dispose of an entire cause of action to be sustained.”

(Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) Defendants

would have the Court split this cause of action in a manner not authorized on demurrer. The

Court is unwilling to do so; the demurrer is overruled to the extent premised on this argument.

E. Eighth Cause of Action

Defendants argue that this cause of action, for unlawful business practices in violation of

Business and Professions Code section 17200, fails because it is derivative of the other claims.

But since the other claims each withstand demurrer, this is not grounds to dismiss this claim.

Defendants also argue the eighth cause of action is internally inconsistent because it is

only pled against Defendant Mysmart Pocket and not against Defendant Lastimoso. The Court is

not persuaded. The prayer does not exclude Lastimoso from any form of relief. This structure

presents no inconsistency; a plaintiff may seek relief against a defendant only on the specific

causes of action pleaded against that party. This argument would be more properly made in a

motion to strike portions of the prayer rather than a demurrer attacking the entirety of the eighth

cause of action. This portion of the demurrer is overruled.

III. CONCLUSION

Defendants’ demurrer is OVERRULED.

IT IS SO ORDERED. Dated: [TENTATIVE – NOT FINAL] Hon. Joseph B. Widman Judge of the Superior Court