Maria Azari vs Covenant Living West Inc

Case Number

22CV01556

Case Type

Hearing Date / Time

Fri, 04/18/2025 - 10:00

Nature of Proceedings

Motion: Sanctions

Tentative Ruling

For the reasons set forth herein, plaintiff’s motion is denied.

Background:

This action was commenced on April 22, 2022, by plaintiff Maria Azari (“plaintiff”) against her former employer Covenant Living West, Inc. (“defendant”), by the filing of her original complaint.

The complaint asserted seven causes of action as follows: (1) Failure to provide meal and rest periods. (2) Failure to pay overtime wages. (3) Failure to pay final wages. (4) Failure to provide accurate itemized wage statements. (5) Failure to pay wages when due. (6) Unfair Business Practices. (7) Unlawful retaliation.

On April 19, 2024, the court granted defendants motion for judgment on the pleadings, with leave to amend as to those claims which are alleged under or based on Labor Code section 1102.5.

on April 23, 2024, Azari filed a first amended complaint alleging one cause of action against Covenant Living for retaliation under Labor Code section 1102.5 et seq. On June 24, 2024, with leave of court, Azari filed a second amended complaint (the SAC), also alleging one cause of action against Covenant Living for retaliation under Labor Code section 1102.5 et seq. As alleged in the operative SAC:

Azari was hired by Covenant Living as a Certified Nursing Assistant (CNA) in April 2017. (SAC, ¶ 8.) Covenant Living set the daily tasks, work duties, and rate of pay of Azari who was to be compensated at the rate of $17.12 per hour. (Id. at ¶¶ 9-10.) For six to eight months, Azari, who worked in excess of 8 hours per day and 40 hours per week, was not paid overtime wages and was not permitted to take meal or rest breaks because Covenant Living was understaffed. (Id. at ¶¶ 12-15.) In addition, Covenant Living failed to keep accurate records of Azari’s hours of work and meal breaks, to maintain such records for three years, and to provide accurate, itemized wage statements showing the number of hours worked. (Id. at ¶¶ 17-18.)

On May 16, 2021, Azari and four of her co-workers told the administrator of Covenant Living that it was unfair to assign 120 patients to only five CNAs because it did not enable them to provide the necessary standard of care to the patients without foregoing meal and rest breaks and requiring them to work overtime for which they were not being paid. (SAC, ¶ 16.) The administrator of Covenant Living “brushed them off laughingly telling them they would have a ‘pizza party’ and ordered them to get back to work.” (Ibid.) Azari also informed Covenant Living’s then supervising nurse, Michelle, that due to being short staffed, CNAs and nurses had developed a routine of “splitting” the checking of residents’ vital signs and that disregarding this routine would result in missed meal and rest breaks and unpaid overtime hours. (Id. at ¶¶ 19-20.)

Michelle told Azari that she had to listen to her nurse and brought up a grudge that Michelle evidently held against Azari from a previous conversation during which Azari had tried to persuade Michelle to find nurses to cover for those who called off work when they were short-staffed. (SAC, ¶¶ 20.) After becoming visibly annoyed during the conversation with Azari, Michelle ordered Azari to take a five-minute break, and a couple of minutes later, told Azari to leave, stating that Azari would be called to come into work the next day. (Id. at ¶ 22.)

Azari was not called back into work the next day. (SAC, ¶ 23.) Azari called the Human Resource Director of Covenant Living asking if she could come into work, but the Human Resource Director alleged that Azari had abandoned her job without permission or notice and accused Azari of refusing to care for the residents. (Ibid.) Azari explained what happened the day prior. (Id. at ¶ 24.) Though the Human Resource Director said she would call Azari back after an investigation, Azari received a letter 10 days later stating that Azari had been terminated on as of four days prior to the day Michelle demanded that Azari leave the work location. (Id. at ¶ 25.) (Note: Paragraphs 25 and 26 of the SAC appear to include typographical errors with respect to the date Azari was terminated.)

On July 24, 2024, Covenant Living filed a demurrer to the SAC on the grounds that the sole cause of action alleged in the SAC was barred by the res judicata impact of the Lopez settlement and that Azari had failed to allege facts sufficient to state a claim for retaliation under Labor Code section 1102.5. Covenant Living also filed a motion to strike the prayer for punitive damages in the SAC.

On October 25, 2024, the demurrer was overruled and the motion to strike was denied.

On November 7, 2024, Covenant Living filed its answer to the SAC asserting a general denial and 24 affirmative defenses.

Plaintiff now moves for sanctions against Covenant Living, pursuant to Code of Civil Procedure section 128.7, by striking all of Covenant Living’s affirmative defenses, arguing that the affirmative defenses lack evidentiary support and are not warranted by the evidence. Plaintiff also seeks $5,660.00 in monetary sanctions.

Covenant Living opposes the motion and seeks $2,400.00 in monetary sanctions against plaintiff for filing a motion for an improper purpose.

Analysis:

“By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

“(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

“(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

“(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

“(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” (Code Civ. Proc., § 128.7, subd. (b).)

Plaintiff argues, essentially, that she has propounded discovery on Covenant Living and Covenant Living does not have any evidence supporting its affirmative defenses. The discovery responses in question pertain to form interrogatory 15.1, which requires that Covenant Living identify each denial of a material allegation and affirmative defense in its pleadings, state all facts upon which the denial or affirmative defense is based, identify individuals with knowledge of those facts, and identify all supporting documents and things that support the facts.

Covenant Living responded by first setting forth objections and then identifying each affirmative defense. As to each affirmative defense, other than the fourth affirmative defense, Covenant Living states, for each of the categories of No. 15.1: “Unknown at present. Discovery and investigation are ongoing, and Defendant reserves the right to supplement or amend this response.”

As for the fourth affirmative defense, that each cause of action is barred by laches, res judicata, or collateral estoppel, Covenant Living states: “Plaintiff’s Labor Code Section 1102.5 retaliation claim is barred under the Res Judicata Doctrine as it is within the type of claims contemplated in and expressly released by the PAGA class action settlement, Renee Lopez, et al. v. Covenant Living West (Stanislaus County Superior Court, Case No. CV-21-001160), which was finalized and dismissed without prejudice in July 2024. Discovery and investigation are ongoing, and Defendant reserves the right to supplement or amend this response.”

Plaintiff argues:

“Defendant neither asserts any factual bases for its affirmative defenses, and now, after having nearly three years--certainly more than a reasonable amount of time to identify and locate supporting factual assertions and evidence, simply has nothing to present -- no facts, no witnesses, and no documents supporting any of their affirmative defenses, other than perhaps the 4th affirmative defense . . ..” (Motion, p. 4, ll. 7-11.)

As to the fourth cause of action, plaintiff argues that, not only does the affirmative defense lack any factual support, that the court has “already ruled that Plaintiff’s claims are not pre-empted by Res Judicata.” (Motion, p. 5, ll. 3-10.)

Addressing plaintiff’s representation regarding the court’s ruling regarding res judicata: The court’s ruling on demurrer, of October 25, 2024, indicated that, in the context of ruling on a demurrer, defendant had failed to meet its burden. That in no way means that the issue has been conclusively established for any other purpose.

In opposition to the motion, Covenant Living first argues that plaintiff, having failed to timely demurrer to the answer or move to strike the affirmative defenses, is improperly seeking the same results by the filing of the present motion. The court finds this argument unpersuasive. As plaintiff argues by way of her reply brief, she was not required to attempt to dispose of the affirmative defenses by demurrer, motion to strike, or any other available motion, prior to filing the present motion.

Covenant Living next points out that plaintiff’s argument, regarding Covenant Living having had three years to assert facts to support its affirmative defenses, is inaccurate. The court agrees with Covenant Living’s contention that plaintiff’s statement is both inaccurate and misleading. As noted above, plaintiff’s original complaint contained seven causes of action. Following challenges to the pleadings, plaintiff did not file the operative SAC, containing only one cause of action, until June 24, 2024. Covenant Living did not file its answer until November 7, 2024. Hence, we are still at the early stages of discovery as set forth in the declaration of Covenant Living’s counsel. (Chan Decl., ¶¶ 5-8.)

Covenant Living’s final argument is that asserting affirmative defenses, for the purpose of not waiving them, is not sanctionable conduct. “[O]bjections a defendant might have on the merits - including an objection that liability is barred by an affirmative defense - are ordinarily deemed ‘waived’ if the defendant does not raise them in its demurrer or answer to the complaint.” (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 807.)

“Section 128.7 applies only in limited circumstances. It “ ‘authorizes trial courts to impose sanctions to check abuses in the filing of pleadings, petitions, written notices of motions or similar papers.’ ” [Citation.] Under that authority, trial courts may issue sanctions, including monetary and terminating sanctions, against a party for filing a complaint that is legally or factually frivolous. (§ 128.7, subds. (b)-(d); Ponce v. Wells Fargo Bank (2018) 21 Cal.App.5th 253, 263-264.) “ ‘A claim is factually frivolous if it is ‘ “not well grounded in fact” ’ and is legally frivolous if it is ‘ “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” ’ [Citation.] In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if ‘ “any reasonable attorney would agree that [it] is totally and completely without merit.” ’ [Citations.]’ ” [Citation.]” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1120.)

“ ‘A court has broad discretion to impose sanctions if the moving party satisfies the elements of the sanctions statute.’ ” [Citation.] Like its federal counterpart, however, rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), Code of Civil Procedure section 128.7 should be utilized only in “ ‘the rare and exceptional case where the action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose.’ ” [Citation.] “ ‘Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, [section 128.7] sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous’ ” [citation], and instead “ ‘should be ‘ “made with restraint.’ ” ” [Citation.]” Kumar v. Ramsey, supra, 71 Cal.App.5th at pp. 1120–1121.)

The assertion of multiple boilerplate affirmative defenses may be sloppy practice, and the affirmative defenses may be subject to a motion to strike, a demurrer, judgment on the pleadings, or other appropriate motion. However, sanctions are not warranted for attempting to preserve available affirmative defenses that may later be proven valid. It cannot be said that asserting the affirmative defenses is legally or factually frivolous as defined by existing case law. Plaintiff has not shown, and could not show, that “any reasonable attorney would agree that [it] is totally and completely without merit.”

The motion will be denied. No sanctions will be issued in favor of, or against, either party.