California Court of Appeal, Second District, Fourth Division
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael L. Stern, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC440504).
[167 Cal.Rptr.3d 269] Law Offices of Ellen Lake, Ellen Lake; The Nourmand Law Firm and Michael Nourmand, Los Angeles, for Plaintiff and Appellant.
Greenberg Traurig, Mark D. Kemple and Karin L. Bohmholdt, Los Angeles, for Defendant and Respondent TACA International Airlines, S.A.
Squire Sanders (US), Stephen T. Owens and Emily L. Wallerstein, Los Angeles, for Defendant and Respondent Concesionaria Vuela Compania de Aviacion S.A.P.I. deC.V., doing business as Volaris.
DLA Piper, Maria C. Rodriguez and Benjamin M. Gipson, Los Angeles, for Defendants and Respondents LAN Airlines and LAN Cargo.
In this action for violating Labor Code section 2810,  we affirm the judgment (order of dismissal) in favor of defendants and respondents TACA International Airlines, S.A. (TACA), LAN Airlines and LAN Cargo (jointly, LAN), and Concesionaria Vuela Compania de Aviacion S.A.P.I. de C.V., doing business as Volaris (Volaris), whose demurrers were sustained without leave to amend.
This litigation began in June 2010, when plaintiff and appellant Arlette Hawkins filed a putative class action complaint alleging wage and hour claims against her former employer, defendant Sereca Security [167 Cal.Rptr.3d 270] Corp., who is not a party to this appeal. This appeal involves the section 2810 [167 Cal.Rptr.3d 271] claim against TACA, LAN, and Volaris (collectively, the airline defendants),
which was added by an amendment in 2012, around the time when Sereca's default was entered. Hawkins's theory is that the airline defendants are
responsible under section 2810 for Sereca's alleged violations of wage and hour laws. As stated in Castillo v. Toll Bros., Inc. (2011) 197 Cal.App.4th 1172, 1182, 130 Cal.Rptr.3d 150, " section 2810 authorizes the employees of a services contractor [in certain industries] to sue the party hiring the contractor if the hiring party knowingly pays a contract price insufficient to permit the contractor to comply with the law in performing the contract."
Although Hawkins sued the airline defendants for entering into underfunded contracts, she admits that she has never seen the relevant contracts and has no information concerning their contents. She contends, however,
that she may sue first and conduct discovery later to ascertain whether any of the contracts was underfunded. The airline defendants disagree. They contend that because Hawkins failed to allege any facts to show that they knowingly entered into underfunded contracts in violation of [167 Cal.Rptr.3d 272]section 2810, the demurrers were properly sustained. For the reasons that follow, we agree that the complaint fails to allege sufficient facts to state a cause of action and affirm.
In part I below, we discuss the events leading to the entry of Sereca's default. In part II, we address the amended pleading that added a section 2810 claim against the airline defendants.
I. The Events Leading to the Entry of Sereca's Default
According to Hawkins's first amended complaint, Sereca allegedly failed to: (1) reimburse employees for required uniforms (first cause of action); (2) pay all wages due immediately upon termination (second cause of action); (3) provide complete and correct itemized wage statements (third cause of action); (4) pay all wages due in each pay period (fourth cause of action); and (5) pay overtime wages (fifth cause of action). (Lab.Code, §§ 2802, 201-202, 226, 204, 1194.) Sereca also allegedly violated the unfair competition law (Bus. & Prof.Code, § 17200) (sixth cause of action).
The complaint alleged that Sereca " had the ability to pay all wages earned by Former Security Guard Class and Late Pay Class at the time of termination in accordance with Labor Code §§ 201 and 202, but intentionally adopted ... policies or practices incompatible with the requirements of Labor Code §§ 201 and 202." (Italics added.) Without alleging a dollar amount, the complaint sought on behalf of all similarly situated plaintiffs, the payment of all wages earned and owed, statutory penalties, reimbursement of the cost to purchase the required uniforms, and injunctive relief.
In March 2011, Hawkins allegedly learned that due to financial problems, it was unlikely that Sereca would be able to pay a judgment on a class basis. After receiving this information, Hawkins filed a second amended complaint that added two entities affiliated ...