DeCRESCENZO v.

CHURCH OF SCIENTOLOGY INTERNATIONAL
LAURA ANN DeCRESCENZO, Plaintiff and Appellant, v. CHURCH OF SCIENTOLOGY INTERNATIONAL et al., Defendants and Respondents.

No. B224409. Court of Appeals of California, Second District, Division Three. Filed July 22, 2011. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
THE COURT: The opinion filed in this cause on June 24, 2011, is hereby modified as follows:

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1. On page 5, line 16, insert the words "and misrepresentation to induce relocation for employment" after "violations" so the phrase reads: (6) wage and hour violations and misrepresentation to induce relocation for employment; 2. On page 6, the first sentence of the first full paragraph is modified to read as follows:
Religious Technology Center (RTC) then filed its demurrer to the second amended complaint based on the same grounds asserted by Scientology. 3. On page 6, insert the following after the first sentence of the first full paragraph: RTC also argued that the allegation that plaintiff "also worked for Defendant, RTC" contradicted prior allegations that she "was not employed by" RTC and therefore was a sham. 4. On page 17, insert the following after the first paragraph: 5. The Judgment in Favor of RTC Cannot Be Affirmed Based on a Purported Sham Allegation RTC argued in support of its demurrer that the allegation in the second amended complaint that plaintiff "also worked for Defendant, RTC" contradicted allegations in her prior complaints that she "was not employed by" RTC. RTC argued that the new allegation was a sham, that plaintiff was bound by her prior allegations, and that the fact that she was not employed by RTC precluded each count alleged in the second amended complaint. Plaintiff argued in opposition that her current allegation that she "also worked for" RTC differed from her current allegation that she "was employed by" Scientology, and that she did not allege an employment relationship with RTC. She also argued that her current allegation that RTC "was responsible for and directly oversaw a number of the policies and conditions of Plaintiff's employment" explained RTC's role, and that there was no inconsistency with her prior allegations. An amended complaint that omits harmful factual allegations from a previous complaint, whether verified or unverified, or alleges facts contradicting those prior allegations, without an adequate explanation for the discrepancy is regarded as a sham pleading. A court ruling on a demurrer may take judicial notice of facts alleged in a prior complaint revealing a defect in an amended complaint, and may disregard any inconsistent allegations in the amended complaint. (State ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412; see Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-426.) We conclude that the allegation that plaintiff "also worked for" RTC does not contradict the prior allegation that she "was not employed by" RTC. These allegations are not contradictory because an employee of one company can provide services to another company without becoming an employee of the second company. (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492-493.) As we read the complaint, plaintiff alleges that she provided for services to RTC and that RTC oversaw some of the policies and conditions of her employment, and does not allege that RTC was her employer. Accordingly, we conclude that the allegation that plaintiff "also worked for" RTC is not a sham and that

the sustaining of the demurrer cannot be affirmed on this basis.

The petitions for rehearing filed by Church of Scientology International and Religious Technology Center are denied. There is no change in the judgment.

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