`
`
`
`Michael Elkin, Esq. (SBN 286862)
` E-Mail: michael@elkingamboa.com
`Benjamin McLain, Esq. (SBN 340091)
` E-Mail: ben@elkingamboa.com
`Elizabeth Tsolakyan, Esq. (SBN 347832)
` E-Mail: elizabeth@elkingamboa.com
`4119 W. Burbank Blvd., Suite 110
`Burbank, CA 91505
`Telephone: 323.372.1202
`Facsimile: 323.372.1216
`
`Attorneys for Plaintiff
`ROBERT ACOSTA
`
`
`
`
`ELECTRONICALLY
`F I L E D
`
`Superior Court of California,
`County of San Francisco
`02/22/2024
`Clerk of the Court
`BY: WILLIAM TRUPEK
`Deputy Clerk
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`COUNTY OF SAN FRANCISCO
`
`
`ROBERT ACOSTA, an individual
`
`
`Plaintiff,
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`
`
`vs.
`
`
`DEGRACIA PARTNERS, INC., a California
`Corporation dba PACIFIC COAST STAFFING;
`TENDERLOIN HOUSING CLINIC, INC., a
`California Nonprofit Corporation; and DOES 1
`through 50 inclusive,
`
`
`Defendants.
`
`
`
` Case No. CGC-23-609739
`
`
`PLAINTIFF ROBERT ACOSTA’S
`OPPOSITION TO DEFENDANT
`DEGRACIA PARTNERS, INC.'S
`DEMURRER TO PLAINTIFF ROBERT
`ACOSTA'S COMPLAINT
`
`Hearing:
`
`Date: March 06, 2024
`Time: 9:30 a.m.
`Dept.: 610
`
`Action Filed: October 12, 2023
`Trial Date: None set
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`TO THE HONORABLE COURT, ALL PARTIES AND THE ATTORNEYS OF
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`RECORD:
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`Plaintiff Robert Acosta hereby opposes DeGracia Partners, Inc. dba Pacific Coast Staffing’s
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`Defendant DeGracia Partners, Inc.'s Demurrer to Plaintiff Robert Acosta's Complaint as follows:
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`1
`PLAINTIFF ROBERT ACOSTA’S OPPOSITION TO DEFENDANT DEGRACIA PARTNERS, INC.'S
`DEMURRER TO PLAINTIFF ROBERT ACOSTA'S COMPLAINT
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`

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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`INTRODUCTION
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`All of the causes of action at issue in the Demurrer are straightforward statutory violations,
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`which require no more than a concise statement of the essential factual elements of the claim. A
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`“complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that
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`might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart
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`Union High School Dist. (2012) 53 Cal.4th 861, 872.) A demurrer for uncertainty will be sustained
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`only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot
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`reasonably determine what issues must be admitted or denied, or what counts or claims are directed
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`against him or her. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616, 710; A.J. Fistes
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`Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) Plaintiff has alleged the
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`requisite ultimate facts for each of the cause of action addressed in the Demurrer. Defendant gains
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`nothing by the present Demurrer that could not be more efficiently obtained through discovery in
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`this case. “There is no need to require specificity in the pleadings because ‘modern discovery
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`procedures necessarily affect the amount of detail that should be required in a pleading.’ ” (Doheny
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`Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.)
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`As a result, the only end served by an order sustaining the present Demurrer is increased costs to
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`the parties. Because the Complaint alleges the essential elements of Plaintiff’s claims and puts
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`Defendant on notice of claims directed against it, and there is nothing to suggest that Plaintiff’s
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`claims are fatally flawed, the Demurrer should be overruled.
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`II.
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`SUMMARY OF RELEVANT FACTS ALLEGED IN THE COMPLAINT
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`The Complaint alleges that in November 2022, DeGracia Partners, Inc., dba Pacific Coast
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`Staffing (“DeGracia”) hired Plaintiff to work as a Desk Clerk at a housing facility owned and
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`operated by Defendant Tenderloin Housing Clinic, Inc. (“Tenderloin”). (Complaint ¶ 19). Plaintiff
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`alleges that DeGracia and Tenderloin discriminated against Plaintiff based on Plaintiff’s age and
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`also retaliated against Plaintiff after Plaintiff made protected complaints regarding underpayment
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`of wages. In addition, Plaintiff alleges that Defendants are liable for multiple violations of the
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`PLAINTIFF ROBERT ACOSTA’S OPPOSITION TO DEFENDANT DEGRACIA PARTNERS, INC.'S
`DEMURRER TO PLAINTIFF ROBERT ACOSTA'S COMPLAINT
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`Labor Code, including, inter alia, failure to provide meal and rest periods, failure to pay minimum
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`wages for all hours worked, failure to pay overtime wages, failure to reimburse necessary business
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`expenditures, and failure to permit inspection of Plaintiff’s personnel records.
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`During Plaintiff’s first shift at the housing facility, Defendants instructed Plaintiff not to
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`leave his desk station during what should have been his off-duty meal periods. (Complaint ¶ 22).
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`Plaintiff complained about this to his supervisor, but his supervisor insisted that Plaintiff comply
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`and not leave his desk station. (Id.) In this way, Defendants required Plaintiff to remain on duty
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`during all his meal and rest periods throughout Plaintiff’s employment with Defendants. (Id.) The
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`Complaint further provides that Plaintiff often worked overtime hours, e.g. hours in excess of
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`eight per day and requiring multiple rest periods per Labor Code 226.7. (Complaint ¶¶ 23, 110,
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`115, 124)
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`The Complaint further alleges that “Defendants did not reimburse Plaintiff for all necessary
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`expenditures or losses incurred by Plaintiff during Plaintiff’s employment.” (Complaint, ¶ 150.)
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`Finally, the Complaint alleges that Defendants failed to comply with Plaintiff’s statutory request for
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`documents. (Complaint ¶ 153.)
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`III.
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`STANDARD ON DEMURRER
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`The Court’s task in deciding the demurrer is to determine whether the operative complaint
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`alleges facts sufficient to state a cause of action under any legal theory. (Mathews v. Becerra (2019)
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`8 Cal.5th 756, 768.) The Court treats the demurrer as admitting all material facts properly pleaded.
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`(Id. at 768; Centinela Freeman Emergency Med. Assocs. v. Health Net of Cal., Inc. (2016) 1 Cal.5th
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`994, 1010.) The Court must accept the truth of all facts properly pleaded in the complaint or
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`reasonably inferred from the pleading. (Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 350
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`n.1; Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 288.) In order to survive a demurrer a complaint
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`need only “state[] facts disclosing some right to relief.” (Award Metals v. Superior Court (1991)
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`228 Cal.App.3d 1128, 1131.) The Court must accept such facts regardless of how improbable the
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`asserted facts may be. (Popescu v. Apple Inc. (2016) 1 Cal.App.5th 39, 44, 50.) In addition, the
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`Court must give the complaint a reasonable interpretation, reading it as a whole and its parts in their
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`3
`PLAINTIFF ROBERT ACOSTA’S OPPOSITION TO DEFENDANT DEGRACIA PARTNERS, INC.'S
`DEMURRER TO PLAINTIFF ROBERT ACOSTA'S COMPLAINT
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`context. (Mathews v. Becerra (2019) 8 Cal.5th 756, 768; Centinela Freeman Emergency Medical
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`Associates v. Health Net of Calif, Inc. (2016) 1 Cal.5th 994, 1010.)
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`IV.
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`PLAINTIFF’S NINTH CAUSE OF ACTION STATES A CLAIM FOR REST
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`PERIOD VIOLATIONS
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`California Labor Code section 226.7(c) states that if an employer fails to provide an employee
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`with a rest or recovery period, an employer is required to pay the employee one additional hour of
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`pay at the employee’s regular rate of pay. (Id.) Multiple California courts have explained that
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`“during meal periods, employers must ‘relieve the employee of all duty and relinquish any employer
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`control over the employee and how he or she spends the time.’” (Augustus v. ABM Security Services,
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`Inc. (2016) 2 Cal. 5th 257, 265.) To establish a rest break violation a plaintiff must prove: 1) that
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`plaintiff worked for defendant on one or more workdays for at least three and one-half hours; 2) that
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`defendant did not authorize and permit plaintiff to take one or more rest breaks to which plaintiff
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`was entitled. (See CACI No. 2761.)
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`Here, the complaint states that Plaintiff worked for Defendant beginning in November 2022
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`(Complaint ¶ 19). The Complaint further provides that Plaintiff often worked overtime hours, e.g.
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`hours in excess of eight per day (Complaint ¶¶ 23, 110, 115, 124) and that Defendants “required
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`Plaintiff to remain on duty during all his meal and rest periods throughout Plaintiff’s employment
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`with Defendants.” (Complaint, ¶ 22.) Though it is not required for employers to police employees’
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`meal breaks, it is however, unlawful for an employer to control an employee’s activities during their
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`entitled meal and rest periods. (Brinker Rest. Corp. v. Superior Court (2012) 53 Cal. 4th 1004,
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`1040.) Without relinquishing control of employee’s activities during their meal and rest periods, an
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`employee violates their obligation to “relieve its employees of all duty.” (Id.) On demurrer,
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`Plaintiff’s allegation that he was required to stay on duty during his rest periods must be accepted
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`as true. (Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 350 n.1; Foxen v. Carpenter (2016)
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`6 Cal.App.5th 284, 288.) Defendant urges a further inquiry into the minutia of whose actions
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`prevented plaintiff from taking rest breaks or whether the there is a distinction between the methods
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`by which Plaintiff was prevented from taking meal breaks versus rest breaks. However, all of these
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`PLAINTIFF ROBERT ACOSTA’S OPPOSITION TO DEFENDANT DEGRACIA PARTNERS, INC.'S
`DEMURRER TO PLAINTIFF ROBERT ACOSTA'S COMPLAINT
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`issues are beyond the very basic fact pleading that is required on this cause of action. Plaintiff’s
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`complaint states that he was prevented from taking rest breaks to which he was entitled. These
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`allegations establish the ultimate facts of claim for rest period violations under the Labor Code.
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`(CACI No. 2761.) And a statement of the ultimate facts is all that is required at the pleading stage.
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`(Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550; C.A. v. William S. Hart Union High School
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`Dist. (2012) 53 Cal.4th 861, 872.) Accordingly, the demurrer to Plaintiff’s Ninth Cause of Action
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`should be overruled.
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`V.
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`PLAINTIFF’S SIXTEENTH CAUSE OF ACTION STATES A CLAIM FOR
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`FAILURE TO REIMBURSE NECESSARY BUSINESS EXPENSES
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`California Labor Code section 2802 requires employers to indemnify employees for all
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`“necessary expenditures or losses incurred by the employee in direct consequence of the discharge
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`of his or her duties, or of his or her obedience to the directions of the employer[.]” (Id.)
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`Here, the complaint states that “Defendants did not reimburse Plaintiff for all necessary
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`expenditures or losses incurred by Plaintiff during Plaintiff’s employment.” (Complaint, ¶ 150.)
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`This sentence alone is enough to establish the essential factual elements of a cause of action under
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`Labor Code section 2802, which requires that 1) plaintiff incurred expenditures; 2) the expenditures
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`were reasonable and necessary; and that the expenditures were not reimbursed. (See CACI No.
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`2750.) Plaintiff’s allegations that such expenses were incurred, that they were reasonable and
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`necessary, and that they were not reimbursed, must be accepted as true at the pleadings stage. (Reid
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`v. City of San Diego (2018) 24 Cal.App.5th 343, 350 n.1; Foxen v. Carpenter (2016) 6 Cal.App.5th
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`284, 288.) Defendant contends that this allegation does not clearly explain what amounts Plaintiff
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`needed Defendants to reimburse. However, there is no requirement that Plaintiff outline specific
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`details in the pleadings in order to establish that Plaintiff is entitled judicial relief. (Roger v. County
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`of Riverside (2020) 44 Cal.App.5th 510, 533.) A complaint is sufficient if it alleges the type of
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`damages suffered, there is no requirement to allege the specific amount—even on claims requiring
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`a heightened pleading standard. (Furia v. Helm (2003) 111 Cal.App.4th 945, 957.) A complaint
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`need only allege a specific dollar amount when default judgment is to be entered. (Id.) Plaintiff is
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`5
`PLAINTIFF ROBERT ACOSTA’S OPPOSITION TO DEFENDANT DEGRACIA PARTNERS, INC.'S
`DEMURRER TO PLAINTIFF ROBERT ACOSTA'S COMPLAINT
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`not seeking default judgment and therefore his claim under Labor Code section 2802 cannot be held
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`to be insufficient for failure to allege a specific dollar amount. Accordingly, the Demurrer to this
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`cause of action must be overruled.
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`VI.
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`PLAINTIFF’S SEVENTEENTH CAUSE OF ACTION STATES A CLAIM FOR
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`FAILURE TO PERMIT INSPECTION OF PERSONNEL RECORDS
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`California Labor Code sections 226(b) and (c) provide that an employer make available the
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`contents of an employee’s personnel file upon request. (Id.) If an employer fails to produce these
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`records within the statutory timeframe, employees are entitled to a penalty. (Labor Code section
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`226(e)(1); Labor Code section 1198.5(k).)
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`Here, the Complaint alleges that Defendants failed to comply with Plaintiff’s statutory
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`request for documents. (Complaint ¶ 153.) As with the above causes of action, this is a
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`straightforward statutory violation. Plaintiff made a request for his personnel records; Defendant did
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`not comply. There is no need to require specificity in the pleadings because ‘modern discovery
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`procedures necessarily affect the amount of detail that should be required in a pleading.’ ” (Doheny
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`Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.)
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`The allegations in the Complaint put Defendant on notice of the statutory violation Plaintiff alleges
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`against Defendant. Any of the further details may be easily worked out in discovery and Defendant
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`has sufficient information to conduct the discovery needed on this cause of action. Accordingly,
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`Plaintiff has met the pleading standard as to the Seventeenth Cause of Action and the Demurer
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`should be denied.
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`VII.
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`IF THE DEMURRER IS SUSTAINED, PLAINTIFF SHOULD BE GRANTED
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`LEAVE TO AMEND
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`As stated above, Plaintiff has established, with facts, the challenged portions of the
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`complaint. However, if the Court finds there is any deficiency, Plaintiff requests that the Court grant
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`leave to amend the complaint. It is an abuse of discretion to sustain a demurrer without leave to
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`amend if there is any reasonable possibility that the defect can be cured by amendment. (La Sala v.
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`American Sav. & Loan Assn., (1971) 5 Cal.3d 864, 876; Vaccaro v. Kaiman (1998) 63 Cal.App.4th
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`6
`PLAINTIFF ROBERT ACOSTA’S OPPOSITION TO DEFENDANT DEGRACIA PARTNERS, INC.'S
`DEMURRER TO PLAINTIFF ROBERT ACOSTA'S COMPLAINT
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`761, 768.) “There is a policy of great liberality in permitting amendments to the pleadings at any
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`stage in the proceeding,” (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) Here, Defendant
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`urges that this Court should take the extraordinary step of denying leave to amend following
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`Defendant’s first demurrer to the Complaint. This request is in no way justified by the
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`circumstances. The causes of action at issue are straightforward Labor Code violations, which
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`Plaintiff suffered multiple times throughout his employment with Defendants. If there are any
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`deficiencies, Plaintiff can provide more specific details. Further, Defendant suggests that Plaintiff
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`should be denied leave because Plaintiff refused to amend the complaint following initial meet and
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`confer efforts. This ignores the procedural posture of the case. By the time Defendant met and
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`conferred with Plaintiff, Defendant Tenderloin Housing Clinic, Inc. had already answered the
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`complaint. (RJN, Exh. “1”.) A plaintiff may amend a complaint once as a matter of right without
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`leave of court, but this ability ends when an answer is filed. (C.C.P. § 472.) As a result, Plaintiff did
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`not stubbornly refuse to amend the complaint, instead Plaintiff recognized the procedural reality of
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`the case and proceeded accordingly. As such, there is no basis for this Court to refuse to grant
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`Plaintiff leave to amend, and such leave should be granted if the Demurrer is sustained.
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`VIII. CONCLUSION
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`Based on the foregoing, Plaintiff Robert Acosta respectfully requests that this Court deny
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`DeGracia Partners, Inc. dba Pacific Coast Staffing’s Demurrer to Plaintiff Robert Acosta's
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`Complaint in its entirety. In the alternative, Plaintiff respectfully requests leave to amend the
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`Complaint.
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`DATED: February 22, 2024
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`Respectfully Submitted,
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`By:
`ELIZABETH TSOLAKYAN
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` Attorneys for Plaintiff Robert Acosta
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`7
`PLAINTIFF ROBERT ACOSTA’S OPPOSITION TO DEFENDANT DEGRACIA PARTNERS, INC.'S
`DEMURRER TO PLAINTIFF ROBERT ACOSTA'S COMPLAINT
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`PROOF OF SERVICE
`(C.C.P. §§ 1013a and 2015.5)
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`I, ANGIE DEL ARCA, declare as follows:
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`I am employed in the County of Los Angeles, State of California. I am over the age of
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`eighteen and not a party to the within action. My business address is 4119 W. Burbank Blvd.,
`Suite 110, Burbank, CA 91505. My email address is angie@elkingamboa.com.
`
`On February 22, 2024, I caused to be served the foregoing document described as
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`PLAINTIFF ROBERT ACOSTA’S OPPOSITION TO DEFENDANT DEGRACIA
`PARTNERS, INC.'S DEMURRER TO PLAINTIFF ROBERT ACOSTA'S COMPLAINT
`on the interested parties in this action as follows:
`
`
`Adam Arce, Esq.
`Ferber Law, PC
`2603 Camino Ramon, Ste 385, San
`Ramon, CA 94583
`
`Nicole Meredith, Esq.
`Vogl Meredith Burke & Streza LLP
`456 Montgomery Street, 20th
`Floor, San Francisco, CA 94104
`
`Attorneys for Defendant DeGracia Partners,
`Inc. dba Pacific Coast Staffing
`Tel:
`(925) 355-9800
`Email: aarce@ferberlaw.com,
`jbabione@ferberlaw.com,
`cpierce@ferberlaw.com
`
`Attorneys for Defendant Tenderloin Housing
`Clinic, Inc.
`Tel:
`(510) 501-5274
`Email: nmeredith@vmbllp.com,
`keng@vmbllp.com
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` an original) to be sent via
` a true and correct copy,
`BY E-MAIL: By causing (
`electronic service, by electronically mailing through Elkin Gamboa, LLP’s electronic
`mail system to the e-mail address(es) set forth above.
`
`
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`I declare under penalty of perjury under the laws of the State of California that the
`foregoing is true and correct.
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`Executed on February 22, 2024, at Burbank, California.
`
`
`
`
`________________________________
`ANGIE DEL ARCA
`
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`8
`PLAINTIFF ROBERT ACOSTA’S OPPOSITION TO DEFENDANT DEGRACIA PARTNERS, INC.'S
`DEMURRER TO PLAINTIFF ROBERT ACOSTA'S COMPLAINT
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