Opinion
D081505
04-24-2024
FALESTINE ABDELMUTI, Plaintiff and Appellant, v. EL CENTRO REGIONAL MEDICAL CENTER, Defendant and Respondent.
Capstone Law, Ryan H. Wu and Tyler C. Anderson for Plaintiff and Appellant. Sheppard, Mullin, Richter &Hampton, Jason W. Kearnaghan and Y. Douglas Yang for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. ECU002123, L. Brooks Anderholt, Judge. Reversed and remanded with directions.
Capstone Law, Ryan H. Wu and Tyler C. Anderson for Plaintiff and Appellant.
Sheppard, Mullin, Richter &Hampton, Jason W. Kearnaghan and Y. Douglas Yang for Defendant and Respondent.
O'ROURKE, Acting P. J.
Plaintiff and appellant Falestine Abdelmuti appeals from an order sustaining without leave to amend the demurrer of defendant and respondent El Centro Regional Medical Center (Center) to Abdelmuti's third amended complaint alleging causes of action for unpaid minimum wages in violation of the Labor Code (Lab. Code, §§ 1182.12, 1194, 1197, 1197.1, 1198) and violations of the Private Attorneys General Act (PAGA, § 2698 et seq.). The court ruled Abdelmuti's first cause of action failed because it asserted only a claim of unpaid wages, not a failure to pay minimum wages, and she could not maintain a PAGA claim for penalties as she could not collect such penalties for violations of Labor Code provisions that did not apply to Center. Abdelmuti contends the trial court erred by its ruling because her complaint properly pleaded such claims notwithstanding Center's status as a public entity employer. We conclude Abdelmuti's complaint adequately states the two causes of action. We reverse the judgment and remand with directions set forth below.
Undesignated statutory references are to the Labor Code.
FACTUAL AND PROCEDURAL BACKGROUND
In setting out the facts on our review of the court's order sustaining Center's demurrer without leave to amend, we accept as true the material factual allegations from Abdelmuti's operative third amended complaint, but not contentions, deductions or conclusions of law. (Turner v. Victoria (2023) 15 Cal.5th 99, 109; County of Santa Clara v. Superior Court (2023) 14 Cal.5th 1034, 1041.) We may take facts from properly judicially noticed matters. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.)
Center is a municipal hospital established by the City of El Centro and governed by a board of trustees, which is a public agency. Center employed Abdelmuti as an hourly, nonexempt phlebotomist from approximately June 2020 to April 2021, at Center's El Centro location.
Abdelmuti styled her action as one on behalf of herself and similarly situated individuals. Because the record does not indicate the court had certified any class at the time of Center's demurrers, we set out the operative complaint's allegations pertaining only to Abdelmuti.
Though Center was advised about California labor and wage law requirements, it did not pay Abdelmuti all hours she worked because all of those hours were not recorded. Center knew Abdelmuti was entitled to receive minimum wages for all hours she was required to work, and overtime wages for all hours worked in excess of eight hours per day or 40 hours per week. Specifically, Center had a company-wide policy and/or practice of rounding Abdelmuti's hourly clock-in and clock-out times in its timekeeping system to the nearest quarter hour, resulting in its failure to compensate her the then-applicable minimum wage for all hours that she worked, or overtime wages for hours worked in excess of eight hours per day or 40 hours per week. Center had company-wide practices and/or policies of limiting overtime accrual, understaffing, and assigning heavy workloads, leading to its failure to compensate Abdelmuti for her time spent working off the clock, including performing work duties before and after scheduled shifts and undergoing mandatory temperature checks and/or health screenings.
Center maintained and implemented a company-wide policy of requiring all employees to travel to a medical facility on their own time and using their own personal vehicles to undergo mandatory drug testing, tuberculin (TB) testing, and/or physical examinations. Center was in control of scheduling the time period for the testing and/or physical examinations, selecting the provider or facility where the testing and/or physical examinations were to take place, and determining the scope of the testing and/or physical examinations. For example, Center gave Abdelmuti strict instructions to obtain drug testing, TB testing, and a physical examination, and Abdelmuti underwent the testing and examination for Center's benefit. Abdelmuti followed Center's instructions, traveled eight to 10 miles roundtrip (for approximately 20 to 30 minutes total) to and from Center's El Centro medical facility, and spent an additional two to three hours waiting at the medical facility and undergoing the requisite drug testing. Abdelmuti was then required to return to the medical facility the next day, driving another 10 to 15 minutes each way, and spent an additional 60 to 80 minutes undergoing the TB testing and physical examination. Center did not compensate Abdelmuti for the time she spent traveling to and from the medical facilities; undergoing the mandatory drug testing, TB testing, and/or physical examinations; and/or obtaining TB test results.
Center understaffed their locations such that there were too few employees on duty to handle the heavy workloads and provide meal period coverage. It had a practice of failing to adhere to a schedule of meal periods, which caused Abdelmuti to not be relieved of her duties for compliant meal periods, forcing Abdelmuti to work in excess of five hours before taking a meal period and, at times, cutting short or preventing altogether any meal period. Abdelmuti was often required to take her meal periods after working six to seven hours into her shift due to understaffing and the heavy workload. Center's management pressured Abdelmuti to clock out for meal periods and/or would adjust her time records to reflect compliant meal periods, regardless of whether she had received a compliant meal period, in order to strictly limit meal penalties that Center would need to pay. Abdelmuti did not sign valid meal period waivers on days that she was entitled to meal periods and was not relieved of all duties. Center's practice of rounding employee clock-in and clock-out times prevented Abdelmuti from receiving all meal period premiums when she took late and/or shortened meal periods. Center also did not pay all meal period premiums owed to Abdelmuti when compliant meal periods were not provided.
Abdelmuti worked shifts in excess of three and one-half hours, in excess of six hours, and/or in excess of 10 hours without receiving all uninterrupted 10-minute rest periods, and Abdelmuti throughout her employment would miss her rest periods due to Center's policy of assigning heavy workloads and failing to provide sufficient coverage. Center had a practice or policy of not paying rest period premiums owed when rest periods were not authorized and permitted, and as a result Abdelmuti did not receive premium pay for all missed rest periods.
Center did not maintain accurate payroll records for Abdelmuti showing the daily hours she worked and the wages paid as a result of failing to record the off-the-clock hours that she worked.
Abdelmuti's Lawsuit Abdelmuti filed suit against Center in 2021, alleging 11 causes of action for various Labor Code and Unfair Competition Law violations. She amended her complaint in early 2022, adding a PAGA claim. On the parties' stipulation, Abdelmuti again amended her pleading, limiting her claims to (1) an unpaid minimum wage claim under sections 1182.12, 1194, 1197, 1197.1, and 1198, and (2) a claim for civil penalties for the Labor Code violations under PAGA.
These were claims for unpaid overtime (§§ 510, 1198); unpaid minimum wages (§§ 1182.12, 1194, 1197, 1197.1, 1198); failure to provide meal periods (§§ 226.7, 512, subd. (a), 516, 1198); failure to authorize and permit rest periods (§§ 226.7, 516, 1198); failure to provide compliant wage statements or maintain payroll records (§§ 226, subd. (a), 1174, subd. (d), 1198); failure to timely pay wages on termination (§§ 201, 202); failure to timely pay wages during employment (§ 204); failure to provide reporting time pay (§ 1198; Cal. Code Regs., tit. 8, § 11050, subd. (5)(A)); failure to reimburse business expenses (§ 2802); and violations of the Unfair Competition Law (Bus. & Prof. Code, §§ 17200 et seq.).
Center's Demurrers
Center demurred on grounds the causes of action failed to state a claim on which relief may be granted. More specifically, Center argued Abdelmuti's first cause of action did not actually allege a minimum wage claim, but only that Center failed to pay wages for all hours worked, and Center was statutorily exempt from such a claim. Center argued Abdelmuti's PAGA claim failed because Center was not subject to default civil penalties or some of the Labor Code provisions underlying her claim. The trial court sustained Center's demurrer with leave to amend.
Center additionally argued Abdelmuti's claims were time-barred under the Government Claims Act (Gov. Code, § 810 et seq.), but the trial court rejected the argument on Center's demurrer to the operative third amended complaint. Center does not challenge that aspect of the court's ruling. Center also moved to strike numerous allegations on grounds certain Labor Code sections did not apply to it as a public entity and certain remedies were unavailable to Abdelmuti as a matter of law.
Abdelmuti thereafter filed the operative third amended class action complaint alleging the same two causes of action for unpaid minimum wages and PAGA civil penalties. Abdelmuti generally alleged "[Center] knew or should have known that [she was] entitled to receive at least minimum wages for compensation and that [she was] not receiving at least minimum wages for all hours [she was] required to work and/or were suffered and permitted to do so. In violation of the California Labor Code, [she was] not paid at least minimum wages for work done off[ ]the[ ]clock." She alleged Center knew or should have known it had a duty to compensate her at the minimum wage or higher for all hours worked, but willfully failed to do so, and falsely represented to her that she was properly denied such wages. She alleged Center's rounding policy resulted in its failure to compensate her the applicable minimum wage, as did its policies that led to its failure to compensate her for time working off the clock, including performing work duties before and after shifts, and undergoing mandatory temperature checks and/or health screenings.
Center again demurred on the same grounds, arguing Abdelmuti had not changed the substance of her pleading, but rather omitted select language and inserted legal argument.
Counsel's Arguments
At arguments on the matter, the trial court acknowledged that Abdelmuti had taken the opportunity to amend, and the court was careful to delineate line by line the exact changes Abdelmuti made to her operative pleading from the second amended complaint. Abdelmuti's counsel explained he had added language to state a minimum wage claim under Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314 (Armenta), which permitted a minimum wage claim based on an employer's failure to pay all hours worked. Defense counsel responded that Abdelmuti was using "creative pleading" to assert Labor Code violations that did not apply to a public entity: "The crux of the allegation is a failure to pay, not a failure to pay minimum wage, [be]cause there's no dispute that the minimum wage was always respected. It's a failure to pay." Abdelmuti's counsel conceded Abdelmuti could not state a claim for unpaid wages under section 200 of the Labor Code, characterizing such a claim as one for failure to timely pay wages.
On the PAGA claim, Abdelmuti argued employees could sue public entities for Labor Code civil penalties that were previously recoverable by the California Labor and Workforce Development Agency (the Agency). She distinguished between an employee's private action on a statutory claim, versus having such statutory claims apply where the Agency was tasked with enforcing those provisions against public entities. Center's counsel's position was that it was a factual impossibility for Abdelmuti to state a claim because she could not establish an underlying Labor Code violation; the applicable provisions for rest and meal periods did not apply to Center, and thus the Agency would not enforce such statutes against it or other public employers.
The Court's Ruling
The court sustained Center's demurrer without leave to amend. It found it "clear from the allegations in [the third amended complaint] and previous versions of the complaint that [Abdelmuti] asserts that she and the other class members were not paid anything for the time off the clock, not that they were paid a lower-than-minimum-wage rate for these times." Noting that Armenta, supra, 135 Cal.App.4th 314 involved a private employer, the court found Gomez v. Regents of University of California (2021) 63 Cal.App.5th 386 (Gomez) to be instructive. It observed that under Gomez, public employers, while subject to minimum wage laws, "are allowed more discretion when it comes to time-keeping procedures like rounding hours." The court ruled Abdelmuti's "assertions of employees working hours off the clock are vague and raise questions of whether [she] is pleading around other [L]abor [C]ode violations that cannot be pursued against a public entity." The court ruled Abdelmuti's claim "asserts only unpaid wages and not a failure to pay minimum wages" and thus failed as pleaded.
The court also ruled Abdelmuti could not maintain a PAGA claim for penalties, agreeing that she could not collect such penalties for violations of Labor Code provisions that did not apply to Center. It found overtime and meal and rest break claims were not viable against public entities, nor were payroll record violations (§§ 1174, 1174.5) specifically applicable to public entities. The court ruled Gomez "makes it clear that where a cause of action cannot be maintained under the Labor Code sections, the entity 'cannot be considered a violator under PAGA' and [Abdelmuti] 'is not the victim of any violation.' "
In its ruling, the lower court did not address Center's request for judicial notice of portions of El Centro's Municipal Code, May 2022 minutes of Center's board of trustees' regular meeting, a Public Employment Relations Board (PERB) memorandum of agreement, and a July 2021 PERB notice of unfair practices charge to Center. On appeal, Center asks this court to take judicial notice of all but the municipal code sections, asserting the other documents "substantiate [its] legal status . . . as a public entity subject to the rules and procedures of public employment . . ." Center acknowledges that Abdelmuti does not dispute Center is a public entity. However, it characterizes Abdelmuti's PAGA position as that it "should be generally subjected to the reaches of the Labor Code" to justify its request. Whether Abdelmuti can state a PAGA claim turns not on the question of whether Center is a public entity but on the legal application of PAGA to such an entity. Accordingly, we deny Center's request as unnecessary to our decision. (See generally Riley v. Alameda County Sheriff's Office (2019) 43 Cal.App.5th 492, 518.)
Abdelmuti filed this appeal from the ensuing judgment.
DISCUSSION
I. Standard of Review
In assessing the court's order sustaining Center's demurrer without leave to amend, we apply settled principles." '[W]e examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.' [Citation.] '"' "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.... We also consider matters which may be judicially noticed." . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.'" '" (Mathews v. Becerra (2019) 8 Cal.5th 756, 768; see also Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.) This court must liberally construe the pleading with a view to substantial justice between the parties. (Code Civ. Proc., § 452; Morales v. 22nd Dist. Agricultural Assn. (2016) 1 Cal.App.5th 504, 537.)
" 'If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. "[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory ...." '" (Zhang v. Superior Court, supra, 57 Cal.4th at p. 370; Thomas v. Regents of University of California (2023) 97 Cal.App.5th 587, 611612 [sole consideration on demurrer is whether the plaintiff's complaint is sufficient to state a cause of action under any legal theory and the complaint"' "survives a general demurrer insofar as its states, however inartfully, facts disclosing some right to relief"' "].)
When a demurrer is sustained without leave to amend," 'we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse.'" (County of Santa Clara v. Superior Court, supra, 14 Cal.5th at p. 1041.) Abdelmuti has not proposed any amendments (though she can do so at any time, even for the first time on appeal (Code Civ. Proc., § 472c, subd. (a)), so we begin with whether her operative complaint's allegations state any legally sufficient claims. (Accord, Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 637.)
II. Cause of Action for Minimum Wage Violations
A. Legal Principles
California's minimum wage law gives employees a civil cause of action against their employer for unpaid minimum wages. (Martinez v. Combs (2010) 49 Cal.4th 35, 49 (Martinez); Flowers v. Los Angeles County Metropolitan Transportation Authority (2015) 243 Cal.App.4th 66, 74 (Flowers).) Section 1182.12 establishes the minimum wage for "all industries" that employers-including by definition the state, political subdivisions and municipalities-must pay. (§ 1182.12, subds. (a), (b)(3); Marquez v. City of Long Beach (2019) 32 Cal.App.5th 552, 557, fn. 2.)
Section 1182.12, subdivision (b)(3) defines an "employer" as "any person who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person" and "includes the state, political subdivisions of the state, and municipalities."
Section 1194 provides in part: "Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit." (§ 1194, subd. (a).) In actions under that statute, the Legislature intended that Industrial Welfare Commission (IWC) wage orders would define the employment relationship. (Martinez, supra, 49 Cal.4th at p. 52; Flowers, supra, 243 Cal.App.4th at p. 74.) IWC wage orders guarantee that every employee is paid "at least minimum wage for 'all hours worked in the payroll period.'" (Oman v. Delta Air Lines, Inc. (2020) 9 Cal.5th 762, 779.) These wage orders, as well as the Labor Code, are to be construed to favor employee protection in furtherance of the Legislature's purpose. (Donohue v. AMN Services, LLC, supra, 11 Cal.5th at p. 67; Frlekin v. Apple, Inc. (2020) 8 Cal.5th 1038, 1046; see also Marquez v. City of Long Beach, supra, 32 Cal.App.5th at p. 559 [" 'Wage and hour laws [and wage orders] are "to be construed so as to promote employee protection"' "].) The wage orders are to be accorded "great deference ...." (Stoetzl v. Department of Human Resources (2019) 7 Cal.5th 718, 725.)
The IWC, now defunded, was the state agency empowered to issue wage orders, which are legislative regulations specifying minimum requirements with respect to wages, hours, and working conditions. (Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 838 & fn. 6.) There are 18 wage orders still in effect (id. at p. 838) and they "are to be accorded the same dignity as statutes." (Donohue v. AMN Services, LLC (2021) 11 Cal.5th 58, 66.)
In Marquez v. City of Long Beach, supra, 32 Cal.App.5th 552, the Court of Appeal addressed whether charter cities must comply with state minimum wage law requirements. (Id. at p. 557.) It did so in the context of reviewing a judgment on an order sustaining a demurrer without leave to amend in favor of the defendant city on a class action alleging the city paid plaintiffs- nonexempt hourly employees-less than the legally mandated state minimum wage. (Id. at pp. 557-558.) The court held the "legislation setting a statewide minimum wage, generally applicable to both private and public employees, addresses the state's interest in protecting the health and welfare of workers by ensuring they can afford the necessities of life for themselves and their families" and accordingly, "the Legislature may constitutionally exercise authority over minimum wages, despite the constitutional reservation of authority in charter cities to legislate as to their municipal affairs." (Id. at p. 557.)
In so holding, the court explained and applied the home rule doctrine, by which for "areas considered 'municipal affairs,' the general law of the state prevails over local law only where the general law is' "reasonably related"' and' "narrowly tailored"' to resolution of an issue of statewide concern." (Marquez v. City of Long Beach, supra, 32 Cal.App.5th at pp. 562-563, see also id. at p. 565 [describing test as including determining whether a state law is"' "reasonably related to . . . resolution" of [a statewide concern] . . . and "narrowly tailored" to avoid unnecessary interference in local governance'" or"' "not unduly broad in its sweep"' "].) In part relying on Sheppard v. North Orange County Regional Occupational Program (2010) 191 Cal.App.4th 289 (Sheppard) involving public school district employees, Marquez rejected the city's contention that the wage laws did not apply to it, as the express terms of the applicable IWC wage orders-Nos. 4-2001, section 1(b) and 10-2001, section (1)(C)-made their minimum wage provisions applicable to "any city," which included charter cities. (Marquez, at p. 569.) The appellate court found the minimum wage for California workers a matter of statewide concern that warranted applying it to all employees, including those of charter cities: the requirement reflected strong policies favoring protection of workers' general welfare, and it "is of broad general application, applying to every industry regulated by the IWC wage orders, and to the private and public sectors alike." (Id. at pp. 571-573.) The requirement also "serves the fundamental purpose of protecting the health and welfare of workers." (Id. at p. 573.) These concerns"' "justif[ied] the state's interference in what would otherwise be a merely local affair." '" (Id. at p. 576.)
Finally, the Marquez court held the minimum wage obligation was appropriately tailored to address the statewide concern: "[T]he statewide concern in worker health and welfare is reasonably related to the imposition of a minimum wage....[T]he minimum wage law does not deprive the City completely of its authority to determine wages. Rather, the law sets a floor based on the Legislature's judgment as to the minimum income necessary for a living wage within this state. The City retains authority to provide wages for its employees above that minimum as it sees fit. The minimum wage requirement therefore intrudes less on local authority than the prevailing wage laws, mandatory binding arbitration requirements, and prohibitions on cost-of-living pay increases held invalid by the Supreme Court. [Citations.] As such, the balance struck is' "sensible and appropriate . . . as between local and state legislative bodies."' [Citation.] This 'limited interference . . . is substantially coextensive with the state's underlying regulatory interest.'" (Marquez v. City of Long Beach, supra, 32 Cal.App.5th at p. 576.)
In Armenta, supra, 135 Cal.App.4th 314, the Court of Appeal addressed an issue of first impression: whether an employer violated California's minimum wage law on trial evidence that both before and after work employees spent hours on tasks (travel time in company vehicles, loading equipment, paperwork, and maintaining company vehicles) for which they were not compensated. (Id. at pp. 316-318.) The time was characterized as "nonproductive." (Id. at p. 317.) The plaintiffs contended they were entitled to minimum wage for each uncompensated hour, while the defendants contended there was no minimum wage violation as the plaintiffs were compensated weekly at an amount exceeding the total hours worked multiplied by the applicable minimum wage, that is, their average hourly rate in any given pay period was higher than California's minimum wage. (Id. at p. 319.) Following a bench trial, the trial court found the defendant had violated California's minimum wage law, and awarded the plaintiffs section 1194.2 liquidated damages. (Id. at pp. 320-321.)
The Armenta court, reviewing the ensuing judgment, held the lower court used the correct method to determine the minimum wage violations. (Armenta, supra, 135 Cal.App.4th at p. 324.) Specifically, it rejected the defendant's argument that where workers' hourly rate is higher than the government's set minimum wage, it is proper to divide the total number of hours worked into the amount the employee was paid to arrive at an average hourly wage and then determine whether the employee's compensation complied with the minimum wage law. (Id. at pp. 321-322.)
Armenta found reliance on federal authorities in the area misplaced, observing the state is empowered to go beyond federal statutes and regulations in adopting protective laws for employees' benefit. (Armenta, supra, 135 Cal.App.4th at pp. 322-323.) Such authorities were "of little assistance, if any, in construing state laws and regulations that provide greater protection to workers." (Id. at p. 323.) It contrasted the difference between federal law (referring to payment of minimum wage to "employees who 'in any work week' are engaged in commerce"), and California's section 1194, which entitles any employee receiving" 'less than the legal minimum wage'" to "recover the unpaid balance of the 'full amount' owed." The appellate court found the language of the relevant wage order, requiring employers to pay wages not less than [the minimum wage] for all hours worked "expresses the intent to ensure that employees be compensated at the minimum wage for each hour worked" and thus the averaging method used by federal courts did not apply. (Id. at p. 323.) It found a clear legislative intent to protect the minimum wage rights of California employees to a greater extent than federally. (Id. at p. 324.) "California's labor statutes reflect a strong public policy in favor of full payment of wages for all hours worked.... The [California] minimum wage standard applies to each hour worked by respondents for which they were not paid. The trial court, therefore, correctly determined that [defendant] violated section 1194 by failing or refusing to pay for driving time and time spent by foremen processing paperwork." (Ibid.)
The California Supreme Court has since observed that other Courts of Appeal "have uniformly followed [Armenta's] lead," extending its rule to employees under collective bargaining agreements, ordinary contracts, and without regard to whether the employee has an hourly, piece-rate or commission basis for compensation. (Oman v. Delta Air Lines, Inc., supra, 9 Cal.5th at p. 781.) The court in Oman "agree[d] with this consensus," stating: "State law prohibits borrowing compensation contractually owed for one set of hours or tasks to rectify compensation below the minimum wage for a second set of hours or tasks, regardless of whether the average of paid and unpaid (or underpaid) time exceeds the minimum wage. Even if that practice nominally might be thought to satisfy the requirement to pay at least minimum wage for each hour worked, it does so only at the expense of reneging on the employer's contractual commitments, in violation of the contract protection provisions of the Labor Code." (Ibid.)
Oman made clear that "[w]hatever the task or period promised as a basis for compensation, . . . an employer must pay no less than the minimum wage for all hours worked. [Citation.] The employer must satisfy this obligation while still keeping any promises it has made to provide particular amounts of compensation for particular tasks or periods of work. [Citation.] For all hours worked, employees are entitled to the greater of the (1) amount guaranteed by contract for the specified task or period, or (2) the amount guaranteed by the minimum wage. Whether a particular compensation scheme complies with these obligations may be thought of as involving two separate inquiries. First, for each task or period covered by the contract, is the employee paid at or above the minimum wage? Second, are there other tasks or periods not covered by the contract, but within the definition of hours worked, for which at least the minimum wage should have been paid?" (Oman v. Delta Air Lines, Inc., supra, 9 Cal.5th at p. 782.)
Under Oman, employers are required to pay employees for "all hours worked" regardless of how the employee is compensated. Oman's noborrowing rule applies when an employer's compensation system includes "nonproductive" hours-time spent by employees on work-related tasks that do not increase the amount of compensation. In that circumstance, the employer must separately compensate the employee for the nonproductive hours. (Oman v. Delta Air Lines, Inc., supra, 9 Cal.5th at pp. 781-783.)
The high court also addressed employer obligations to pay minimum wage for "hours worked" in the context of off-the-clock time spent complying with a policy at the employer's worksite in Frlekin v. Apple, Inc., supra, 8 Cal.5th 1038. Frlekin involved employee time spent on Apple store premises "waiting for, and undergoing, mandatory exit searches of bags, packages, or personal Apple technology devices, such as iPhones, voluntarily brought to work purely for personal convenience ...." (Id. at p. 1058.) The answer turned on the amount of Apple's control exerted in executing its policy, as well as whether the searches were "imposed mainly for Apple's benefit." (Id. at pp. 1047, 1052.) The court determined the "employees [we]re clearly under Apple's control while awaiting, and during, the exit searches," the searches were "imposed mainly for Apple's benefit" in detecting and deterring theft and thus the time spent constituted "hours worked" for purposes of obligating Apple to pay minimum wage. (Id. at pp. 1046, 1052.)
More recently, the California Supreme Court in Huerta v. CSI Electrical Contractors (2024) __Cal.5th__, __ addressed several questions at the Ninth Circuit Court of Appeals' request, and decided, among other things, that "time an employee spends on his employer's premises waiting in his personal vehicle to scan an identification badge and have a security guard peer into his vehicle before exiting a [s]ecurity [g]ate is compensable as 'hours worked.'" (Id. at p.__ [2024 WL 124529, at *3].) Because we conclude Abdelmuti states a minimum wage claim under some of the theories alleged in her operative pleading such that Center's demurrer should have been overruled, we need not address Huerta in detail, though it may impact the viability of other theories she alleges.
The court in Frlekin detailed how Apple exercised control: "First, Apple requires its employees to comply with the bag-search policy under threat of discipline, up to and including termination. Second, Apple confines its employees to the premises as they wait for and undergo an exit search. Third, Apple compels its employees to perform specific and supervised tasks while awaiting and during the search. This includes locating a manager or security guard and waiting for that person to become available, unzipping and opening all bags and packages, moving around items within a bag or package, removing any personal Apple technology devices for inspection, and providing a personal technology card for device verification." (Frlekin v. Apple, Inc., supra, 8 Cal.5th at p. 1047.)
B. Issue Presented and Contentions
In this demurrer context, the sole question involves pleading requirements: whether Abdelmuti has alleged a viable cause of action against Center for minimum wage violations under the Labor Code. In resolving the issue, we emphasize that certain matters are not in dispute: The parties do not dispute that Center is a public entity employer. Nor do the parties dispute that Center, despite its public entity status, is subject to minimum wage laws. Indeed, Center concedes "the minimum wage mandate as applied to [it] and other public employers simply requires them to pay their employees at least the minimum wage rate." It admits a minimum wage violation claim is viable against it "if Abdelmuti alleges that [it] did not pay her . . . at least the minimum wage rate at the time of her employment." The issue is how Abdelmuti must plead the violation as against a public entity and whether it suffices that she alleges she was not paid for hours that Center failed to record, or time spent traveling to obtain Center-mandated testing or physical examinations.
Wage Order No. 5-2001 "applies to persons employed in the public housekeeping industry," which includes hospitals. (Mendiola v. CPS Security Solutions, Inc., supra, 60 Cal.4th at p. 839, fn. 8; Cal. Code Regs., tit. 8, § 11050, subds. 1, 2(P)(4).) Section 4 of the Wage Order imposes minimum wage requirements on "[e]very employer ...." (Cal. Code Regs., tit. 8, § 11050, subd. 4.) Like Wage Order No. 4-2001 in Marquez v. City of Long Beach, supra, 32 Cal.App.5th 552, Wage Order No. 5-2001 applies minimum wage requirements to public employees. (See Cal. Code Regs., tit. 8, § 11050, subd. 1(C) ["Except as provided in Section[ ] . . . 4 [relating to minimum wages], the provisions of this order shall not apply to any employees directly employed by the State or any political subdivision thereof, including any city," italics added].) Wage Order No. 5 also defines hours worked as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so ...." (Cal. Code Regs., tit. 8, § 11050, subd. 2(K).)
Abdelmuti contends she adequately pleaded minimum wage claims under" 'applicable wage orders' including IWC Wage Order [No.] 5-2001" (Cal. Code Regs. tit. 8, § 11050, subds. (1) &(2)(P)(4)), as such laws expressly apply to public entities, and Center is liable for violations occurring when she was under Center's control but was uncompensated. Abdelmuti characterizes Armenta, supra, 135 Cal.App.4th 314 as directly on point; she argues it and other cases hold minimum wage violations occur not only when an employer pays less than the legal minimum wage, but also "when an employee is forced to engage in uncompensated time." More specifically, she points out she alleges she "failed to receive her proper minimum wage because she was not paid overtime when it was due, and she was paid less than minimum wage, including for time spent working when her hours worked were discounted or not calculated at all," stating a violation of sections 1194, 1197 and 1198against Center. Abdelmuti distinguishes Gomez, supra, 63 Cal.App.5th 386, arguing her allegations are unambiguous and included additional violations beyond what the plaintiff alleged in that case. She argues "unlike Gomez, the question is not whether [Center] had an ambiguous and potentially facially legal scheme for compensating employees. Rather, [she] directly alleged that [Center] undercompensated her and other employees....[T]he [third amended complaint] alleged that [Center] owed [her] at least the unpaid minimum wage, and at times overtime wages, based on the time [she] spent working when [she] went uncompensated or undercompensated, including for travel time and time that [Center] deliberately shaved off [her] clock ...."
Section 1197 provides: "The minimum wage for employees fixed by the commission or by any applicable state or local law, is the minimum wage to be paid to employees, and the payment of a lower wage than the minimum so fixed is unlawful. This section does not change the applicability of local minimum wage laws to any entity." Section 1198 provides: "The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful."
Center does not discuss Armenta, supra, 135 Cal.App.4th 314 in any detail, characterizing it and other cases cited by Abdelmuti as interpreting the minimum wage laws "exclusively applied to private employers" and thus "of no weight." Center argues Abdelmuti's allegations attempt to "conflate the two statutory schemes" so as to "render both surplusage." According to Center, the minimum wage law requirements "are of different nature and effect" when applied to public versus private employers. Discussing cases that it asserts show the minimum wage provisions should "not be read beyond their bounds," it maintains the minimum wage laws apply only narrowly to public employers. Center argues the court correctly applied Gomez, supra, 63 Cal.App.5th 386 to sustain its demurrer without leave to amend; it characterizes Abdelmuti's allegations as an assertion that its "alleged timekeeping practices deprived her of payment of wages for all hours worked," which assertedly "falls short" because she does not allege "she was paid at less than the minimum wage rate ...."
C. Abdelmuti's Complaint States a Cause of Action for Minimum Wage Violations
A complaint is sufficient if it contains "[a] statement of the facts constituting the cause of action, in ordinary and concise language." (Code Civ. Proc., § 425.10, subd. (a); see Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550; Thomas v. Regents of University of California, supra, 97 Cal.App.5th at p. 610.) Under this standard, a pleading is ordinarily sufficient "if it alleges ultimate rather than evidentiary facts." (Doe, at p. 550.)" 'Generally, courts and litigants are guided in making these distinctions by the principle that a plaintiff is required only to set forth the essential facts with" '" 'particularity to acquaint a defendant with the nature, source and extent of [the plaintiff's] cause of action.'" '" '" (Thomas, at p. 611, quoting Foster v. Sexton (2021) 61 Cal.App.5th 998, 1027-1028; see Doe, at p. 550.) A complaint is not required to include each evidentiary fact that ultimately forms part of a plaintiff's proof at trial. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)
We conclude Abdelmuti's allegations that Center failed to pay her for unrecorded time spent working, for work duties she performed off the clock before and after scheduled shifts, and for the time she spent traveling for mandatory testing or physical examinations for Center's benefit, state a cause of action for minimum wage violations. Those are the sorts of unpaid activities that were held to support a judge's verdict for minimum wage violations in Armenta, supra, 135 Cal.App.4th 314. That Armenta involved a private company does not change the analysis. Armenta addressed the minimum wage rights of California employees generally as set forth in the Labor Code and relevant Wage Orders; it did not turn on the public or private status of the employer. Center concedes it is subject to minimum wage laws, and rightly so. As a public entity, it falls squarely within the Wage Order No. 5-2001's inclusion of political subdivisions of the State, including charter cities like the one in Marquez. (Marquez v. City of Long Beach, supra, 32 Cal.App.5th at p. 569.)
Abdelmuti points to Wage Order No. 7-2001 in her complaint, but Wage Order No. 5-2001 governs hospitals, and "there are no material differences between the relevant provisions of the two wage orders. (Cal. Code Regs., tit. 8, § 11070, subds. 2(G), 3(A), 4(A); Cal. Code Regs., tit. 8, § 11050, subds. 2(K), 3(A), 4(A) ....)" (Woodworth v. Loma Linda University Medical Center (2023) 93 Cal.App.5th 1038, 1058, review granted November 1, 2023, S281717, citing Singh v. Superior Court (2006) 140 Cal.App.4th 387, 390, 397-398 [Wage Order No. 5 governs hospitals].)
Center cites no authority that heightened pleading standards should apply because it is a public entity. However it suggests that Abdelmuti was required to allege Center "failed to pay Abdelmuti . . . at least the applicable minimum wage rate for all time [she] spent working," or that Abdelmuti "was paid at less than the minimum wage rate" or that Center "set [her] hourly wage below the minimum wage rate." (Emphasis omitted.) There is no such particular pleading standard, nor are such strict pleading requirements consistent with the minimum wage laws. It "would be inconsistent with . . . the mandate to broadly construe [Labor Code and Wage Order provisions so as to promote employee protections] to apply more stringent rules of pleading than those that ordinarily apply." (Doe v. City of Los Angeles, supra, 42 Cal.4th at p. 550.) It is enough for pleading purposes for Abdelmuti to allege the ultimate fact that Center did not pay her the minimum wage for hours she worked. (Accord, Flowers, supra, 243 Cal.App.4th at pp. 78-79 [reversing demurrer to state law minimum wage cause of action against public entity defendant, noting "[t]he plain language of [the wage order at issue] imposes minimum wage requirements on the [transportation authority]" and "[s]ection 4 of the wage order requires '[e]very employer' to pay a specified minimum wage to its employees"].)
Center's attack on Abdelmuti's ability to state a minimum wage violation cause of action is based on its characterization of Marquez v. City of Long Beach, supra, 32 Cal.App.5th 552 and other cases as imposing a rule to only narrowly apply minimum wage laws to public entities, and its interpretation of Gomez, supra, 63 Cal.App.5th 386 as somehow limiting Marquez's application to it. We see Center's arguments in substance as challenging application of the minimum wage laws to it, contradicting its concession that it is subject to those laws. In any event, the home rule principles discussed in Marquez do not govern Abdelmuti's pleadings; they are a preemption analysis. (See Cultiva La Salud v. State of California (2023) 89 Cal.App.5th 868, 875.) As stated, Marquez held California's minimum wage laws are a subject of statewide concern and narrowly tailored to avoid unnecessary interference in local governance; that holding does not invalidate Abdelmuti's pleading that Center failed to pay her the minimum wage for her hours worked.
Gomez does not compel a different result. A panel of this court in Gomez declined to extend Marquez and Sheppard, supra, 191 Cal.App.4th 289 to the Regents of the University of California (the Regents), "a completely different type of public entity" than the charter city involved in Marquez. (Gomez, supra, 63 Cal.App.5th at pp. 402, 403 [observing Sheppard recognized the Regents' "unique constitutional status"]; Marquez v. City of Long Beach, supra, 32 Cal.App.4th at p. 563.) In reviewing a judgment after the court sustained a demurrer without leave to amend, this court held the Regents was not generally considered a political subdivision as listed in Wage Order No. 4-2001. (Gomez, at p. 399.) Gomez pointed out that unlike the defendant in Marquez, the Regents was not a charter city or any type of entity listed in Wage Order No. 4-2001, and the plaintiff did not include allegations in her complaint that the Regents set the hourly rate for any nonexempt employee below the minimum wage, but rather alleged its internal timekeeping procedures of rounding hours and automatically deducting meal breaks resulted in her not receiving the minimum wage for all hours she actually worked. (Id. at pp. 389-390, 401-402.) Applying "courts' consistent deference to the Regents regarding the setting of wages and benefits for employees" (id. at p. 403), this court concluded the Regents' timekeeping procedures were matters of internal affairs of the university, and thus the lower court did not err in sustaining its demurrer without leave to amend. (Id. at pp. 403-404.)
Gomez does not purport to delineate pleading standards for minimum wage claims against a charter city. The question there was simply whether the Regents was an "employer" and "political subdivision" within the meaning of the applicable wage order obligating minimum wage pay and the court assessed whether to apply Marquez's holding given the Regents was "a completely different type of public entity." (Gomez, supra, 63 Cal.App.5th at pp. 396, 401-402.) In that "unique" context (id. at p. 403), the court deferred to the Regents' setting of wages and benefits generally, and its timekeeping procedures specifically. (Ibid.) Abdelmuti's allegations, and Center's concession of its legal status as a public entity subject to minimum wage requirements, ends the inquiry at this pleading stage.
We are not persuaded by Center's other authorities and arguments. Both Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244 and Aleman v. AirTouch Cellular (2012) 209 Cal.App.4th 556 are attorney fee cases. (Kirby, at pp. 1252-1254, 1256-1257 [gravamen of a section 226.7 action is the nonprovision of meal or rest periods, not the nonpayment of wages, thus section 1194 does not authorize the recovery of attorney's fees to employees who prevail on a section 226.7 claim]; Aleman, at pp. 579, 586 [addressing whether split shift compensation and reporting time claims are both subject to section 1194's fee-shifting provision].) This court in Jaime Zepeda Labor Contracting, Inc. v. Department of Industrial Relations (2021) 67 Cal.App.5th 891 did not address pleading standards; we simply held section 1197.1 minimum wage citations were not properly issued to employers for their failure to promptly pay final wages to employees who were undisputedly paid at or above the minimum wages on or before payday in accord with the minimum wage laws. (Id. at pp. 897-898.) None of these cases compel us to reject Abdelmuti's allegations that Center failed to pay minimum wages for hours worked.
III. PAGA Claim
"[T]he Legislature enacted PAGA to create new civil penalties for Labor Code violations and' "to allow aggrieved employees, acting as private attorneys general, to recover [those] penalties."' [Citation.] Specifically, PAGA authorizes 'an aggrieved employee,' acting as a proxy or agent of the state Labor and Workforce Development Agency . . ., to bring a civil action against an employer 'on behalf of himself or herself and other current or former employees' to recover civil penalties for Labor Code violations they have sustained." (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1113; § 2699, subds. (a), (c); Estrada v. Royalty Carpet Mills, Inc. (2024) 15 Cal.5th 582, 599.) "The term' "aggrieved employee" . . . governs not just who has standing to bring a PAGA claim, but also who may recover a share of penalties.'" (Estrada, at p. 599.) The purpose of the law" 'is not to recover damages or restitution'" (Sargent v. Board of Trustees of California State University (2021) 61 Cal.App.5th 658, 669 (Sargent)), but to" 'deputize employees to pursue sanctions on the state's behalf.'" (Adolph, at p. 1122.)
Section 2699, subdivision (a), provides in part: "[A]ny provision of this code that provides for a civil penalty to be assessed and collected by the [Agency] . . . for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3."
Under PAGA, an aggrieved employee is any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed. (§ 2699, subd. (c); Adolph v. Uber Technologies, Inc., supra, 14 Cal.5th at p. 1114.) But" 'PAGA standing is not inextricably linked to the plaintiff's own injury. Employees who were subjected to at least one unlawful practice have standing to serve as PAGA representatives even if they did not personally experience each and every alleged violation. (§ 2699[, subd.] (c).) This expansive approach to standing serves the state's interest in vigorous enforcement.'" (Adolph, at p. 1122; see also Sargent, supra, 61 Cal.App.5th at p. 670.) Thus, "a PAGA plaintiff may seek penalties for violations involving aggrieved employees other than the PAGA plaintiff." (Estrada v. Royalty Carpet Mills, Inc., supra, 15 Cal.5th at p. 599.)
In Sargent, the court explained that a public entity (there, a state university) is only subject to PAGA claims by aggrieved employees for violating Labor Code provisions that themselves provide for a civil penalty. (Sargent, supra, 61 Cal.App.5th at pp. 669-670 [describing the two types of penalties authorized by PAGA], 671.) Because public entities are not included within the definition of a "person" under PAGA (§ 2699, subd. (b)),they are not subject to the sort of default penalties that PAGA establishes for other Labor Code violations. (§ 2699, subd. (f); Sargent, at p. 670.)
Section 2699, subdivision (b) provides that "[f]or purposes of this part, 'person' has the same meaning as defined in Section 18." "Section 18 . . . defines 'person' as 'any person, association, organization, partnership, business trust, limited liability company, or corporation.'" (Sargent, supra, 61 Cal.App.5th at p. 672; see also Stone v. Alameda Health System (2023) 88 Cal.App.5th 84, 98, review granted May 17, 2023, S279137.)
We have already determined that Abdelmuti's third amended complaint states a cause of action for violation of the minimum wage laws against Center. Abdelmuti maintains she otherwise limited her PAGA claims in her operative pleading to those involving violations of statutes that themselves provide for civil penalties. We need not go beyond the question of whether section 1194 and the related minimum wage statutes themselves provide for civil penalties; in this pleading context, the sole question is whether Abdelmuti can state a PAGA claim under any theory. Once we determine she can plead a viable theory under PAGA, her cause of action survives Center's demurrer. (Thomas v. Regents of University of California, supra, 97 Cal.App.5th at p. 611; Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400 [" '[i]f the complaint states a cause of action under any theory, . . . that aspect of the complaint is good against a demurrer,'" italics added]; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632.)
We conclude that the minimum wage laws read together, sections 1194 and 1197.1, provide for civil penalties, and thus Abdelmuti has pleaded a PAGA claim for Center's alleged violation of minimum wage laws. Section 1197.1 specifically imposes specified civil penalties on "[a]ny employer . . . who pays or causes to be paid to any employee a wage less than the minimum fixed by an applicable state or local law, or by an order of the commission ...."
More fully, section 1197.1 provides: "(a) Any employer or other person acting either individually or as an officer, agent, or employee of another person, who pays or causes to be paid to any employee a wage less than the minimum fixed by an applicable state or local law, or by an order of the commission, shall be subject to a civil penalty, restitution of wages, liquidated damages payable to the employee, and any applicable penalties imposed pursuant to Section 203 as follows: [¶] (1) For any initial violation that is intentionally committed, one hundred dollars ($100). For any initial violation that is intentionally committed, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee is underpaid. This amount shall be in addition to an amount sufficient to recover underpaid wages, liquidated damages pursuant to Section 1194.2, and any applicable penalties imposed pursuant to Section 203.00) for each underpaid employee for each pay period for which the employee is underpaid. This amount shall be in addition to an amount sufficient to recover underpaid wages, liquidated damages pursuant to Section 1194.2, and any applicable penalties imposed pursuant to Section 203. [¶] (2) For each subsequent violation for the same specific offense, two hundred fifty dollars ($250) for each underpaid employee for each pay period for which the employee is underpaid regardless of whether the initial violation is intentionally committed. This amount shall be in addition to an amount sufficient to recover underpaid wages, liquidated damages pursuant to Section 1194.2, and any applicable penalties imposed pursuant to Section 203. [¶] (3) Wages, liquidated damages, and any applicable penalties imposed pursuant to Section 203, recovered pursuant to this section shall be paid to the affected employee." We observe that section 1194.2 provides that an employee who sues under section 1194 because of payment less than the minimum wage "shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon." (§ 1194.2, subd. (a).) In Martinez, the California Supreme Court stated that "[t]he 'liquidated damages' allowed in section 1194.2 are in effect a penalty equal to the amount of unpaid minimum wages." (Martinez, supra, 49 Cal.4th at p. 48, fn. 8.) But section 1197.1 provides for civil penalties in addition to those liquidated damages, suggesting the liquidated damages are not properly characterized as a civil penalty. (See ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 190 [declining to deem unpaid wages a civil penalty under section 558, which is "remarkably similar in structure" to section 1197.1].) We need not decide the issue.
Abdelmuti does not squarely address section 1194. She argues her reliance on other statutes, such as sections 1198 and 1199, state a PAGA claim. But Center raises section 1194, asserting it is "silent as to the imposition of any civil penalties." Center also maintains Abdelmuti is improperly seeking to directly enforce wage order provisions. We disagree. "Although PAGA does not create a private right of action to directly enforce a wage order promulgated by the IWC, a PAGA action 'can serve to indirectly enforce certain wage order provisions by enforcing statutes that require compliance with wage orders.' [Citation.] The minimum wage requirements of . . . section 1194 is one of those statutes." (Flowers, supra, 243 Cal.App.4th at p. 86; see also Whitlach v. Premier Valley, Inc. (2022) 86 Cal.App.5th 673, 705 ["PAGA actions can serve to indirectly enforce certain wage order provisions by enforcing statutes that require compliance with wage orders (e.g., § 1198, which prohibits longer work hours than those fixed by wage order or employment under conditions prohibited by a wage order)"].)
Based on the foregoing discussion, and particularly the holding in Flowers, supra, 243 Cal.App.4th 66, which reversed an order sustaining a demurrer without leave to amend as to the plaintiff's PAGA cause of action based on alleged minimum wage violations, we conclude Abdelmuti's PAGA claim survives demurrer. The trial court here ruled Abdelmuti's PAGA claim failed because she had not alleged any cause of action under the Labor Code. Because Abdelmuti has stated a violation of the minimum wage laws and, in turn, a claim under PAGA, the judgment based on the court's order sustaining Center's demurrer without leave to amend must be reversed.
IV. Center's Motion to Strike
As stated above (footnote 4, ante), Center moved to strike various allegations in Abdelmuti's third amended complaint. The trial court ruled the motion was moot based on its resolution of Center's demurrer. On appeal, Center does not renew its arguments on the motion to strike, but that is of no moment." '[A] court may "at any time in its discretion, and upon terms it deems proper[,]" "[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state ...." '" (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 844.) Notably, Abdelmuti disclaims any effort to seek unpaid overtime wages, unpaid meal and rest break premiums, or statutory penalties and alleges no causes of action for Labor Code violations other than the minimum wage. With this in mind, the court may in its discretion consider Center's motion to strike on remand.
DISPOSITION
The judgment is reversed and the matter remanded with directions that the trial court enter a new order overruling Center's demurrer and in its discretion consider Center's motion to strike in a manner consistent with this opinion. Abdelmuti shall recover her costs on appeal.
WE CONCUR: IRION, J. DATO, J.