BEN ROMERO vs BSF FITNESS II, LLC

2026CUWT065204: BEN ROMERO vs BSF FITNESS II, LLC 09/10/2026 in Department 43 Demurrer

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Motion: Defendant BSF Fitness II, LLC’s Demurrer to Ben Romero’s Complaint

Tentative Ruling: The Demurrer of Defendant BSF Fitness II, LLC to Plaintiff Ben Romero’s Complaint is SUSTAINED in part and OVERRULED in part.

The special demurrer under Code of Civil Procedure section 430.10, subdivision (f), for uncertainty is OVERRULED as to all causes of action. The Complaint is lengthy but intelligible, and any residual ambiguity concerning the identity of particular managers or the evidentiary details of the alleged conduct may be clarified in discovery. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

The general demurrer under Code of Civil Procedure section 430.10, subdivision (e), is SUSTAINED with leave to amend as to the Third Cause of Action for Harassment and Hostile Work Environment, the Eighth Cause of Action for Fraudulent Inducement, the Ninth Cause of Action for Negligence, and the Thirteenth Cause of Action for Negligent Hiring, Supervision, and Retention.

2026CUWT065204: BEN ROMERO vs BSF FITNESS II, LLC

The general demurrer is SUSTAINED without leave to amend as to the Fourteenth Cause of Action for Failure to Timely Pay Wages When Due under Labor Code section 204 and the Twenty-First Cause of Action for Failure to Maintain Required Payroll and Employment Records.

The general demurrer is OVERRULED as to the First, Second, Fourth through Seventh, Tenth through Twelfth, Fifteenth through Twentieth, Twenty-Second, and Twenty-Third Causes of Action.

The Court does not sustain the demurrer to any cause of action based on Defendant’s challenge to punitive damages. A demurrer does not lie to only part of a cause of action or to a prayer for a particular remedy. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.) Defendant also states in reply that it is not presently asking the Court to strike the punitive-damages prayer and will bring a motion to strike as to any surviving cause of action if appropriate.

Defendant’s administrative-exhaustion argument is rejected. The Complaint alleges exhaustion (Compl. ¶ 23), and the attached Civil Rights Department charge expressly identifies disability discrimination, denial of reasonable accommodation, harassment, and retaliation for reporting or resisting discrimination or harassment or for requesting accommodation. (Compl., Ex. 1, CRD Compl. ¶ 3.)

The Court exercises its discretion to consider Plaintiff’s opposition notwithstanding its one-courtday late filing. Defendant addressed the opposition on the merits in a substantive reply and there is no apparent prejudice from the one-day delay. (Cal. Rules of Court, rule 3.1300(d).)

Plaintiff is granted leave to file and serve an amended complaint consistent with this ruling on or before November 3, 2026.

Moving party is ordered to serve notice of the Court’s ruling.

DISCUSSION

A. Legal Authority

A general demurrer tests the legal sufficiency of the pleading. The Court treats properly pleaded material facts as true, but not contentions, deductions, or conclusions of fact or law, and gives the complaint a reasonable interpretation as a whole. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A pleading need allege ultimate facts sufficient to state a cause of action; it need not plead each evidentiary fact that may later comprise the plaintiff’s proof. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

A special demurrer for uncertainty is strictly construed because ambiguities ordinarily can be clarified in discovery. It should be sustained only where the pleading is so uncertain that the defendant cannot reasonably determine what issues must be admitted or denied or what claims are directed against it. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

2026CUWT065204: BEN ROMERO vs BSF FITNESS II, LLC

A demurrer lies to an entire cause of action, not merely to a portion of a cause of action or to one form of relief requested within it. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682- 1683.) Thus, where a cause of action is legally sufficient under one pleaded theory, an objection to another theory or remedy ordinarily does not support sustaining the demurrer to the whole cause of action.

If a demurrer is sustained, leave to amend should be granted where there is a reasonable possibility the defect can be cured. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The plaintiff bears the burden of showing how an amendment could cure the defect, but that showing may be made through the opposition or other submissions addressing leave. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

B. Application

1. Uncertainty

The Complaint is not so incomprehensible that Defendant cannot reasonably respond. It identifies one entity defendant, alleges a chronological course of employment from October 2025 through April 1, 2026, and separately states each of 23 legal theories. Although the pleading frequently uses the collective term “Defendants” and does not identify every manager involved in every event, these matters do not render the claims unintelligible. Defendant’s own detailed memorandum addresses each cause of action and demonstrates that it understands the conduct being challenged.

The special demurrer is overruled as to all causes of action.

2. FEHA Claims

a. First Cause of Action-Disability Discrimination

To state disability discrimination under Government Code section 12940, subdivision (a), Plaintiff must allege a qualifying disability, that he could perform the essential duties of the position with or without reasonable accommodation, an adverse employment action, and a causal connection to the disability. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886; see Green v. State of California (2007) 42 Cal.4th 254, 262.)

The common allegations identify esophageal achalasia affecting Plaintiff’s ability to eat and swallow, Defendant’s knowledge, and a specific request for uninterrupted meal time. (Compl. ¶ 16.) They also allege Plaintiff worked in the Front Desk/Culture Cultivator position from October 1, 2025 until April 1, 2026, including assigned communications duties over extended hours. (Compl. ¶¶ 11, 14, 21.) At the pleading stage, these allegations reasonably support that Plaintiff was able to perform the job, at least with the requested accommodation.

The First Cause of Action further alleges Defendant failed to accommodate the known condition, continued interfering with meals, and terminated Plaintiff after repeated accommodation requests and complaints. (Compl. ¶ 26.) Whether disability was in fact a substantial motivating reason, rather than performance or another asserted motive, cannot be resolved on demurrer.

2026CUWT065204: BEN ROMERO vs BSF FITNESS II, LLC

The demurrer to the First Cause of Action is OVERRULED.

b. Second Cause of Action-Retaliation for Protected Activity

A FEHA retaliation claim under Government Code section 12940, subdivision (h), requires protected activity, an adverse action, and a causal link. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Defendant is correct that Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652-654, held that a bare accommodation request, without opposition to perceived unlawful conduct, was not protected activity under subdivision (h).

Current Government Code section 12940, subdivision (m)(2), separately makes it unlawful for an employer to retaliate or otherwise discriminate against a person for requesting a reasonable accommodation, regardless of whether the request was granted.

The Complaint alleges that Plaintiff requested disability-related uninterrupted meal time and that Defendant later removed him from a work-related social media account and terminated him. (Compl. ¶¶ 16, 21, 32.) These facts support an accommodation-retaliation theory under current subdivision (m)(2), even though the Second Cause of Action cites subdivision (h). A demurrer must be overruled where the pleaded facts state a cause of action under any possible legal theory. (Aubry v. Tri-City Hospital Dist., supra, at p. 967.) Further, the CRD charge expressly encompasses retaliation for requesting accommodation. (Compl., Ex. 1, CRD Compl. ¶ 3.)

The demurrer to the Second Cause of Action is OVERRULED.

c. Third Cause of Action-Harassment and Hostile Work Environment

Government Code section 12923 rejects an unduly restrictive numerical or severity threshold for hostile-work-environment claims and provides that a single incident may create a triable issue if the conduct unreasonably interfered with work performance or created an intimidating, hostile, or offensive working environment. Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 878-880, explains that pre-section-12923 decisions requiring a repeated pattern are no longer controlling on that point. But the alleged harassment must still be “because of” a protected characteristic. In addition, although personnel-management acts can supply evidence of harassment depending on the manner in which they are carried out, the actionable aspect is an offensive social message associated with the protected characteristic. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706-707.)

Here, the Third Cause of Action alleges that management became confrontational and dismissive after Plaintiff requested accommodation and made wage and injury complaints; that meal interruptions interfered with his disability-related needs; and that the conduct culminated in removal from social media access and a hostile verbal termination. (Compl. ¶ 37.) The Complaint does not allege what was said or done in the allegedly confrontational or hostile communications that conveyed hostility because of Plaintiff’s disability, nor does it allege disability-related ridicule, demeaning content, or another fact tying the asserted hostile environment to the protected

2026CUWT065204: BEN ROMERO vs BSF FITNESS II, LLC

characteristic rather than to the alleged wage, safety, performance, or other disputes. The defect is therefore one of protected-characteristic nexus, not merely the number of incidents.

Because Samaan states Plaintiff can add detail concerning the disability and accommodationrelated communications (Samaan Decl. ¶ 10), the demurrer to the Third Cause of Action is SUSTAINED with leave to amend.

d. Fourth Cause of Action-Failure to Prevent Discrimination, Harassment and Retaliation

A failure-to-prevent claim under Government Code section 12940, subdivision (k), requires an actionable underlying FEHA violation. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288-289.) Because the disability-discrimination and accommodation-retaliation theories survive, the claim has a viable predicate. The Complaint also alleges Defendant knew of Plaintiff’s disability and accommodation requests and failed to investigate or take meaningful preventive steps before the alleged adverse actions. (Compl. ¶ 42.)

The demurrer to the Fourth Cause of Action is OVERRULED.

e. Fifth and Sixth Causes of Action-Reasonable Accommodation/Interactive Process

A reasonable-accommodation claim requires a known disability, ability to perform the essential functions with reasonable accommodation, and failure to reasonably accommodate. (Nadaf- Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 977-978.) An interactiveprocess claim requires a timely, good-faith process to determine effective reasonable accommodations, and liability depends on the availability of a reasonable accommodation at the time. (Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1018- 1019.)

The Complaint alleges that Defendant knew of Plaintiff’s esophageal achalasia, Plaintiff specifically requested sufficient uninterrupted meal time because he cannot easily eat and speak simultaneously, and Defendant provided no accommodation and continued interrupting meals. (Compl. ¶¶ 16, 47.) Plaintiff alleges that he requested that accommodation in order to perform the essential job requirements. (Compl. ¶ 48.) The Sixth Cause of Action alleges that Defendant failed to engage in meaningful dialogue after the request and that Plaintiff was willing to participate in a good-faith process. (Compl. ¶¶ 53-54.) Whether uninterrupted meal time was ultimately reasonable, whether it would have imposed undue hardship, and what staffing conditions existed are factual questions not established on the face of the Complaint.

The demurrer to the Fifth and Sixth Causes of Action is OVERRULED.

3. Common-Law and Tort Claims

a. Seventh Cause of Action-Wrongful Termination in Violation of Public Policy

2026CUWT065204: BEN ROMERO vs BSF FITNESS II, LLC

A wrongful-discharge claim must be tethered to a public policy delineated in a constitutional or statutory provision, public in nature, well established at the time of discharge, and fundamental and substantial. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889-890.) Although paragraph 59 refers generally to California constitutional and statutory law, the cause of action incorporates the preceding allegations and specifically identifies discharge following disabilityaccommodation, wage, and safety complaints. (Compl. ¶¶ 58, 60.) The Complaint elsewhere expressly identifies Government Code section 12940 and Labor Code sections 1102.5, 6310, and 98.6 as the statutory sources for the alleged protections. (Compl. ¶¶ 24-56, 72-84.) Read as a whole, the pleading sufficiently identifies the public policies on which the claim rests.

The demurrer to the Seventh Cause of Action is OVERRULED.

b. Eighth Cause of Action-Fraudulent Inducement

Fraud must be pleaded with particularity. Against a corporate defendant, the plaintiff ordinarily must allege how, when, where, to whom, and by what means the representation was made, including facts concerning the speaker’s authority. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Promissory fraud also requires facts supporting a contemporaneous intent not to perform; nonperformance alone does not establish fraudulent intent. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.)

The Complaint alleges, in approximate time and amount, that Defendant advertised a position around October 2025 with a $5,000 monthly base and earning potential up to $10,000 per month, and that Plaintiff relied on that representation by leaving other employment. (Compl. ¶¶ 10, 65.) But it does not allege where or by what medium the advertisement appeared, the person or authorized corporate actor responsible for the representation, or facts showing the representation was false when made or was made with a contemporaneous intent not to perform. The opposition’s assertion that the representation appeared in a written job posting Defendant created and controls is not pleaded and cannot cure the Complaint.

The demurrer to the Eighth Cause of Action is SUSTAINED with leave to amend.

c. Ninth Cause of Action-Negligence

Workers’ compensation exclusivity generally is an affirmative defense. But where the complaint itself affirmatively alleges facts establishing coverage by the Workers’ Compensation Act and does not allege facts negating application of the Act, the claim is subject to general demurrer. (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 97-98.) Labor Code section 3600 generally covers injury sustained by an employee arising out of and in the course of employment, reflecting the workers’ compensation bargain. (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708.)

The Ninth Cause of Action alleges an employer duty to maintain a safe workplace and safe food products, expressly invoking Labor Code section 6400. (Compl. ¶ 69.) It alleges that Plaintiff warned management about expired food at the facility and that, while employed, suffered a dental injury on February 17, 2026 after consuming an expired protein bar Defendant provided at the workplace. (Compl. ¶¶ 19, 70.) On the face of the pleading, these allegations describe an industrial

2026CUWT065204: BEN ROMERO vs BSF FITNESS II, LLC

injury arising out of and in the course of employment. The Complaint does not allege facts bringing the claim within an exception to workers’ compensation exclusivity.

The demurrer to the Ninth Cause of Action is SUSTAINED with leave to amend.

d. Thirteenth Cause of Action-Negligent Hiring, Supervision, and Retention

Plaintiff need not necessarily identify by name every employee whose conduct forms the basis of an employer-liability claim at the pleading stage. (C.A. v. William S. Hart Union High School Dist., supra, at p. 872.) But the Complaint must plead facts showing the employer knew or should have known of an employee’s particular unfitness or dangerous propensity and that the risk materialized in Plaintiff’s injury.

Paragraph 88 alleges only that Defendant negligently hired, supervised, and retained employees who engaged in unlawful conduct; that Defendant knew or should have known those employees were unfit; and that Plaintiff was harmed. (Compl. ¶ 88.) It identifies no particular unfitness or propensity, no facts showing prior notice, and no facts connecting a hiring, retention, or supervision decision to a resulting injury. These are ultimate elements, not merely evidentiary details.

The demurrer to the Thirteenth Cause of Action is SUSTAINED with leave to amend.

4. Labor Code Retaliation Claims

a. Tenth Cause of Action-Labor Code Section 1102.5

Labor Code section 1102.5, subdivision (b), protects an employee who discloses information the employee reasonably believes reveals a violation of a state or federal statute, rule, or regulation. The employee need not cite a specific code section in the disclosure; reasonably based suspicions of unlawful activity may suffice. (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592.) A disclosure to the employer may be protected even if the recipient already knows of the alleged violation. (People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719, 734.)

The Complaint alleges that Plaintiff disclosed to management on multiple occasions in December 2025 that expired food posed health risks and separately raised concerns about unpaid wages, unpaid commissions, and compensation practices. (Compl. ¶ 74.) It alleges that management communications became hostile and that Defendant later removed Plaintiff from social media access and terminated him. (Compl. ¶¶ 20-21, 74.) Whether Plaintiff in fact had the required reasonable belief and whether the disclosures contributed to the termination are factual questions.

The pleading sufficiently alleges protected disclosures, employer knowledge at the entity level, adverse actions, and a causal theory. The demurrer to the Tenth Cause of Action is OVERRULED.

b. Eleventh Cause of Action-Labor Code Section 6310

2026CUWT065204: BEN ROMERO vs BSF FITNESS II, LLC

The Complaint alleges that Plaintiff warned management on multiple occasions in December 2025 that expired food products posed health risks, the warnings were disregarded, that he later suffered the alleged workplace injury, and that he was removed from social media access and terminated after continuing to raise concerns. (Compl. ¶ 79.) These allegations sufficiently plead a safety complaint, employer knowledge, adverse action, and a claimed causal relationship for purposes of Labor Code section 6310.

Defendant’s position that performance, not safety complaints, caused the termination raises a factual dispute.

The demurrer to the Eleventh Cause of Action is OVERRULED.

c. Twelfth Cause of Action-Labor Code Section 98.6

Plaintiff alleges that he complained about unpaid wages, unpaid commissions, late paychecks, and wage-statement issues and sought reimbursement after the workplace injury; he then was removed from the social media account and terminated. (Compl. ¶ 84.) These allegations give Defendant fair notice of the Labor Code rights Plaintiff contends he exercised and the adverse actions allegedly taken in response.

The precise identity of the recipient of each complaint and Defendant’s actual motive are subjects for discovery and proof. The demurrer to the Twelfth Cause of Action is OVERRULED.

5. Wage, Hour, Expense, and Records Claims

a. Fourteenth Cause of Action-Labor Code Section 204

Labor Code section 204 regulates the timing of wage payments. Labor Code section 210 supplies the penalty for violations of section 204. Section 210, subdivision (b), provides that the employee's statutory penalty is recovered “pursuant to Section 98,” while the Labor Commissioner may recover a civil penalty through a citation or pursuant to section 98.3. (Jaime Zepeda Labor Contracting, Inc. v. Department of Industrial Relations (2021) 67 Cal.App.5th 891 [discussing § 210, subd. (b)].) Section 98 establishes the administrative procedure for adjudicating wage claims upon the employee’s filing of a complaint with the Labor Commissioner. (Id.)

The Fourteenth Cause of Action is pleaded as a standalone civil claim under section 204 based on wages paid several days after designated paydays. (Compl. ¶¶ 91–94.) Section 204 establishes when wages must be paid but does not itself provide a damages remedy for late payment, and Plaintiff does not plead this cause of action through the statutory procedure specified in section 210.

The demurrer to the Fourteenth Cause of Action is SUSTAINED without leave to amend. Because additional factual allegations would not alter the statutory remedy available for the section 204 violation as presently pleaded, leave to amend is not warranted.

2026CUWT065204: BEN ROMERO vs BSF FITNESS II, LLC

b. Fifteenth Cause of Action-Unpaid Overtime

Plaintiff alleges that he was scheduled approximately 10:00 a.m. to 4:00 p.m. but was required to monitor and respond to work communications from approximately 8:00 a.m. to 8:00 p.m. daily, and regularly worked more than eight hours per day and 40 hours per week without overtime pay. (Compl. ¶¶ 14-15.) The overtime cause further alleges that Defendant instructed Plaintiff to work beyond the regular schedule, omitted the overtime from payroll, and ignored requests to correct the issue. (Compl. ¶¶ 98-99.) These allegations identify the nature of the work, the approximate daily window, the fact of overtime, nonpayment, and employer direction/knowledge.

Exact workweeks, minute totals, rates, and damages are evidentiary details. (C.A. v. William S. Hart Union High School Dist., supra, at p. 872.) The demurrer to the Fifteenth Cause of Action is OVERRULED.

c. Sixteenth and Seventeenth Causes of Action-Meal and Rest Periods

The Complaint alleges that Plaintiff worked shifts exceeding five hours and received only brief, scattered approximately 15-minute breaks rather than uninterrupted meal periods. (Compl. ¶ 15.) The Sixteenth Cause of Action alleges that Defendant maintained schedules that did not provide compliant uninterrupted meal periods and pressured Plaintiff to continue working through breaks despite requests. (Compl. ¶¶ 103-105.) The Seventeenth Cause of Action similarly alleges schedules and practices that did not authorize and permit uninterrupted rest periods and pressured Plaintiff to continue working. (Compl. ¶¶ 110-111.)

These are sufficient ultimate facts at the pleading stage. The demurrer’s demand for representative dates and the exact number of violations goes to proof and damages. The demurrer to the Sixteenth and Seventeenth Causes of Action are OVERRULED.

d. Eighteenth Cause of Action-Business Expenses

The Complaint alleges that Defendant required Plaintiff to use his personal mobile device for all work-related communications during unpaid hours without reimbursement. (Compl. ¶ 22.) The Eighteenth Cause of Action incorporates this allegation and alleges failure to reimburse necessary business expenses. (Compl. ¶¶ 115, 117-120.)

Where an employee is required to use a personal cell phone for work-related calls, Labor Code section 2802 requires reimbursement of a reasonable percentage of the bill even if the employee did not incur an incremental charge. (Cochran v. Schwan’s Home Service, Inc. (2014) 228 Cal.App.4th 1137, 1144.) Accordingly, Defendant’s argument that Plaintiff must plead an incremental cost or a particular reimbursement submission does not establish a pleading defect.

The demurrer to the Eighteenth Cause of Action is OVERRULED.

e. Nineteenth Cause of Action-Final Wages

2026CUWT065204: BEN ROMERO vs BSF FITNESS II, LLC

Plaintiff alleges that Defendant failed to pay all wages due upon termination. (Compl. ¶ 22.) The Nineteenth Cause of Action alleges that Defendant willfully withheld earned compensation after separation, ignored repeated requests for final payment, and intentionally delayed and denied payment. (Compl. ¶¶ 123-124.)

These allegations plead nonpayment at separation and willfulness. The exact amount of final wages allegedly due and the computation of waiting-time penalties are matters of proof. The demurrer to the Nineteenth Cause of Action is OVERRULED.

f. Twentieth Cause of Action-Itemized Wage Statements

The Complaint alleges that Plaintiff “rarely received pay stubs” despite requests. (Compl. ¶ 17.) The Twentieth Cause of Action further alleges that the wage statements provided did not accurately reflect hours, rates, gross wages, net wages, deductions, and other required information, and that the failure was knowing and intentional. (Compl. ¶¶ 128-129.) Under Labor Code section 226, subdivision (e)(2), an employee is deemed to suffer injury when the employer fails to provide a wage statement or provides one from which required information cannot promptly and easily be determined. Kao v. Joy Holiday (2017) 12 Cal.App.5th 947, 961-962, recognizes injury from failure to provide any wage statement and from materially incomplete statements. These allegations are sufficient at the pleading stage.

To the extent Plaintiff’s prayer or paragraph 130 seeks a remedy that is not privately recoverable, this issue does not defeat the entire section 226 cause of action because the facts support a potentially available section 226, subdivision (e), damages theory. A demurrer may not be sustained to only a portion of a cause of action or remedy. (PH II, Inc. v. Superior Court, supra, at pp. 1682-1683.)

The demurrer to the Twentieth Cause of Action is OVERRULED.

g. Twenty-First Cause of Action-Failure to Maintain Payroll and Employment Records

The Twenty-First Cause of Action cites Labor Code section 1198.5 and alleges that statute requires employers to maintain accurate payroll and employment records, including hours worked and meal/rest periods. (Compl. ¶¶ 132-134.) Section 1198.5 principally governs personnel records relating to performance or grievances and the employee’s rights to inspect and receive copies. It does not create the general payroll-record-maintenance cause of action alleged here.

The common allegations separately invoke Labor Code section 1174 concerning payroll/time records. (Compl. ¶ 13.) But the penalty for willful failure to maintain records required by section 1174 is the civil penalty in section 1174.5. A private employee may pursue that civil penalty only through PAGA after satisfying the applicable prefiling requirements; there is no standalone private cause of action for it. (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 379, 381-382; Noe v. Superior Court (2015) 237 Cal.App.4th 316, 336.)

Plaintiff does not plead a PAGA cause of action or PAGA exhaustion. Because the Twenty-First Cause is framed as a direct, standalone claim for maintaining payroll/employment records, the

2026CUWT065204: BEN ROMERO vs BSF FITNESS II, LLC

defect is legal rather than factual. The demurrer to the Twenty-First Cause of Action is SUSTAINED without leave to amend.

h. Twenty-Second Cause of Action-Failure to Provide Employment Records

The Twenty-Second Cause of Action alleges that Plaintiff’s attorneys requested complete and accurate employment records, including time records and wage statements, on March 30, 2026, and that Defendant failed to provide them. (Compl. ¶¶ 136-139.) Labor Code section 226, subdivisions (b) and (c), require an employer to permit inspection or copying of payroll records upon reasonable request and to comply as soon as practicable, but no later than 21 calendar days after the request; subdivision (f) provides a $750 penalty for noncompliance. The 21-day period from March 30 expired before the Complaint was filed on April 24. Thus, the section 226 theory was ripe on the face of the pleading.

The section 1198.5 personnel-record theory has a different deadline and presents separate issues, but the Court need not resolve them at this stage because the cause of action is sufficient under section 226. A demurrer does not lie to only one theory within an otherwise viable cause of action. (PH II, Inc. v. Superior Court, supra, at pp. 1682-1683.) The demurrer to the Twenty-Second Cause of Action is OVERRULED.

6. Twenty-Third Cause of Action-Unfair Business Practices

The UCL’s unlawful prong may borrow violations of other laws. Several predicate claims survive the demurrer, including the overtime, meal/rest, reimbursement, final-wage, and wage-statement theories. The Complaint alleges that Defendant’s practices caused Plaintiff to lose money and property and expressly seeks restitution under Business and Professions Code section 17203. (Compl. ¶¶ 143-146.) Unpaid earned wages may be recovered as restitution under the UCL because, once earned, they are property belonging to the employee. (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 177-178.)

Defendant is correct that damages and nonrestitutionary penalties are unavailable under the UCL, and that waiting-time penalties under Labor Code section 203 are not restitutionary. (Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1401-1402.) But these limits on relief do not eliminate the pleaded restitution theory based on unpaid earned compensation.

Because the cause of action is viable under that theory, the demurrer to the Twenty-Third Cause of Action is OVERRULED. (PH II, Inc. v. Superior Court, supra, at pp. 1682-1683.)

7. Punitive Damages and Administrative Exhaustion

Defendant’s original memorandum criticizes the factual basis for punitive damages, but the reply clarifies that Defendant is not asking the Court to strike the punitive-damages prayer by this demurrer and intends to use a motion to strike if appropriate. In any event, a demurrer to a portion of a cause of action or a requested remedy is procedurally improper. (PH II, Inc. v. Superior Court, supra, at pp. 1682-1683.) For this reason, the Court declines to rule on punitive damages.

2026CUWT065204: BEN ROMERO vs BSF FITNESS II, LLC

The CRD exhaustion argument likewise does not support the demurrer. The Complaint alleges exhaustion. (Compl. ¶ 23.) The attached CRD complaint states that Plaintiff complained of harassment because of physical or mental disability, denial of reasonable accommodation, disability-related discrimination and termination, and retaliation for reporting or resisting discrimination or harassment or requesting accommodation. (Compl., Ex. 1, CRD Compl. ¶ 3.) These allegations encompass the FEHA theories that survive this demurrer. To the extent wage or commission complaints standing alone are not FEHA-protected activity, this limits the substantive theory but does not create an exhaustion defect as to the disability and accommodation-based claims.

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