Judge: Douglas W. Stern, Case: 22STCV21275, Date: 2023-03-21 Tentative Ruling
Case Number: 22STCV21275 Hearing Date: March 21, 2023 Dept: 68
Ava Naeini v. Confluent, Inc., Case No. 22STCV21275
Demurrer to Second Amended Complaint with Motion to
Strike
I. BACKGROUND
A. Factual
Defendant
Confluence, Inc. has filed a Demurrer and Motion to Strike. No opposition has been filed.
In her
Second Amended Complaint (SAC), Plaintiff alleges the same fourteen causes of
action involving her employment at and termination from Defendant’s company
that she alleged in her First Amended Complaint. Plaintiff makes several
allegations in her SAC that her fellow employees at Defendant’s company
discriminated against and harassed her on the basis of her gender and religion.
Plaintiff’s
92 page Second Amended Complaint is exceedingly confusing. While Plaintiff makes numerous conclusory allegations
of such things as discrimination (race, gender, age, etc), harassment, and many
other conclusory statements, it is devoid of the necessary factual allegations
to properly plead a claim. There are
numerous defects in how it is drawn. [Simply
as an example, paragraph 22 (page 9) contains no allegations. Paragraph 25, on the other hand, begins at
page 10 and concludes on page 14 with rambling statements. It is immediately followed by paragraph 21. On
other occasions paragraphs simply run into each other. See page 41, paragraph 117 and 118 and page
55, paragraphs 165 and 166. Plaintiff
must present a more properly drafted pleading.]
B. Procedural
This action was originally filed by Plaintiff
on June 29, 2022. Plaintiff’s First Amended Complaint was filed on August 29,
2022. On November 23, 2022, this Court sustained a Demurrer with Motion to
Strike to Plaintiff’s entire First Amended Complaint. On November 30, 2022,
Plaintiff filed her Second Amended Complaint, which is substantially similar to
her First Amended Complaint. Defendant filed its Demurrer with Motion to Strike
to Plaintiff’s Second Amended Complaint on February 17, 2023. No opposition has
been filed as of March 16, 2023.
II. ANALYSIS
A. The Demurrer
As a general matter, in a demurrer proceeding,
the defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins.
Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading
alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes
the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to amend
must be allowed where there is a reasonable possibility of successful
amendment. (Goodman v. Kennedy (1976)
18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a
pleading can be amended successfully. (Id.;
Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f
there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
1. Plaintiff’s
Complaint fails to State Claims to Constitute a Cause of Action, is Uncertain,
and Discloses that the Court has no Subject Matter Jurisdiction
Defendant demurs to Plaintiff’s entire
Second Amended Complaint on the basis that once again the whole complaint fails
to state claims to constitute a cause of action and is uncertain.
A demurrer is appropriate when a
complaint is uncertain, or “ambiguous and unintelligible.” (CCP § 430.10(f).)
“It is settled law that a pleading must allege facts and not conclusions, and
that material facts must be alleged directly and not by way of recital. Also,
in pleading, the essential facts upon which a determination of the controversy
depends should be stated with clearness and precision so that nothing is left
to surmise. Those recitals, references to, or allegations of material facts
which are left to surmise are subject to special demurrer for uncertainty.” (Ankeny
v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.)
A demurrer is
likewise appropriate where the complaint on its face discloses that “the court
has no jurisdiction of the subject matter of the cause of action.” (CCP §
430.10(a).) “Such a demurrer is functionally similar to a demurrer for failure
to state a cause of action, and is therefore deemed a general demurrer.” (Holiday
Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1421 (internal
citations omitted).) “A general demurrer will lie where the complaint ‘has
included allegations that clearly disclose some defense or bar to recovery.” (Id.)
On demurrer,
Plaintiff has the burden to prove a viable claim. (See Blank v. Kirwan
(1985) 39 Cal.3d 311, 318; see also Small v. Fritz Cos., Inc. (2003) 30
Cal.4th 167, 211.) To state a valid cause of action, California law requires
that Plaintiff plead each essential element of the cause of action with
specific statements of fact. (See CCP § 425.10(a)(1) (a complaint shall
contain “[a] statement of the facts constituting the cause of action, in
ordinary and concise language”); see also Rakestraw v. California
Physicians’ Serv. (2000) 81 Cal.App.4th 39, 43.)
Plaintiff has failed to plead each
essential element of the causes of action with specific statements of fact.
Plaintiff makes a lot of irrelevant or conclusory statements that do not prove
the elements of each cause of action. Plaintiff’s FAC is also generally
ambiguous and unintelligible. Additionally, as will be outlined below, the
Court lacks subject matter jurisdiction as to some of Plaintiff’s causes of
action.
The following describes the issues
with Plaintiff’s causes of action:
a.
First Cause of
Action for Economic Duress
As was the case
with her First Amended Complaint, Plaintiff fails to state a claim upon which relief
may be granted for economic duress because economic duress is an affirmative
defense to contract formation. (See Judicial Council of California Civil
Jury Instructions (“CACI”) 333; see also Rich & Whillock, Inc. v. Ashton
Development, Inc. (1984) 157 Cal.App.3d 1154, 1158.) Furthermore, the SAC
does not state facts sufficient to maintain a cause of action for economic
duress because different facts apply to the affirmative defense of economic
duress when it is used to avoid an agreement. (See Perez v. Uline, Inc.
(2007) 157 Cal.App.4th 953, 959-960.) In such situations, “required criteria
that must be proven to invalidate a settlement agreement are: (1) the debtor
knew there was no legitimate dispute and that it was liable for the full amount;
(2) the debtor nevertheless refused in bad faith to pay and thereby created the
economic duress of imminent bankruptcy; (3) the debtor, knowing the
vulnerability its own bad faith had created, used the situation to escape an
acknowledged debt; and (4) the creditor was forced to accept an inequitably low
amount.” (Id.)
Even if Plaintiff
could state cause of action for economic duress, which she cannot since it is
typically an affirmative defense, she could not maintain it because she has not
pled facts showing that there was no legitimate dispute or shown that she was
in danger of imminent bankruptcy. Accordingly, Plaintiff cannot maintain the
cause of action for economic duress.
Defendant’s
demurrer to Plaintiff’s First Cause of Action is sustained without leave to
amend.
b.
Second Cause of
Action for Rescission of Contract
Like her First
Amended Complaint, Plaintiff fails to state a claim upon which relief may be
granted for recission of contract because recission is a remedy, not a cause of
action. (See Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 70
(“Rescission is not a cause of action; it is a remedy.”); see also Cal.
Civ. Code § 1689.) Additionally, Plaintiff fails to state sufficient facts and
this cause of action is uncertain as pled under CCP § 430.10. As such,
Plaintiff cannot maintain a cause of action for rescission of contract.
Defendant’s
demurrer to Plaintiff’s Second Cause of Action is sustained without leave to
amend.
c.
Third, Fourth,
Twelfth, and Thirteenth Causes of Action Preempted by the Workers’ Compensation
Act
It remains true
that this Court has no subject matter jurisdiction over Plaintiff’s causes of
action for intentional infliction of emotional distress (Third) and negligent
infliction of emotional distress (Fourth) because those claims arise out of
Plaintiff’s employment, and as such, must be brought under the Workers’
Compensation Act. “As a general rule, an employee who sustains an industrial
injury ‘arising out of and in the course of employment’ is limited to recovery
under the workers’ compensation system.” (Torres v. Parkhouse Tire Service,
Inc. (2001) 26 Cal.4th 995, 1001.) “Industrial injury” includes emotional
distress injuries arising out of and in the course of employment. (See
Livitsanos v. Superior Ct. (1992) 2 Cal.4th 744, 754 (“an employee's
emotional distress injuries are subsumed under the exclusive remedy provisions
of workers' compensation.”).)
This Court also has
no subject matter jurisdiction over Plaintiff’s causes of action for Negligence
(Twelfth) and Negligent Hiring & Supervision (Thirteenth) because those
causes of action are also preempted by the Workers’ Compensation Act. (See
CCP § 430.10(a).) Specifically, the Court of Appeal has held that “any claim
for mere negligence” is barred by the workers’ compensation laws and, under
such laws, a former employee “may not sue…for [the employer’s] allegedly
negligent or improper supervision.” (Coit Drapery Cleaners, Inc. v. Sequoia
Ins. Co. (1993) 14 Cal.App.4th 1595,1606; see also Jones v. Dept. of
Corrections and Rehabilitation (2007) 152 Cal.App.4th 1367, 1384 (holding
the plaintiff’s claims for negligent supervision were preempted by the
exclusivity provisions of the WCA); see further Hine v. Dittrich (1991)
228 Cal.App.3d 59, 63-64 fn. 4 (observing that the employee’s negligent
retention and supervision cause of action is likely barred by the worker’s
compensation laws).) Plaintiff also does not plead sufficient facts to maintain
causes of action for negligence and negligent hiring and supervision because
Plaintiff failed to allege negligent conduct on the part of Defendant, and
these causes of action are uncertain as pled (CCP § 430.10(f)).
Defendant’s
demurrer as to Plaintiff’s Third, Fourth, Twelfth, and Thirteenth Causes of
Action is sustained without leave to amend.
d.
Fifth Cause of
Action for Failure to Prevent Harassment, Discrimination, or Retaliation
Private litigants
may not maintain a cause of action for failure to prevent harassment,
discrimination, or retaliation. (See Dept. of Fair Empl. & Housing v.
Lyddan Law Group (Williams), No. 10-04-P, 2010 WL 4901732, (Cal. F.E.H.C.,
Oct. 19, 2010, effective Nov. 20, 2010)(in which the FEHC found that failure to
prevent discrimination and harassment from occurring under Government Code
section 12940(k) does not give rise to an actionable tort between private
litigants).) As such, Plaintiff cannot maintain a cause of action for failure
to prevent harassment, discrimination, or retaliation as the facts are
currently pled because she is a private litigant.
Defendant’s
demurrer as to Plaintiff’s Fifth Cause of Action is sustained without leave to
amend.
e.
Sixth Cause of
Action for Harassment
Defendant demurs as
to the Sixth Cause of Action for Harassment because it does not state facts
sufficient to constitute a cause of action. To maintain a cause of action for
harassment, it is necessary for a plaintiff to indicate the context, frequency,
or circumstances regarding the allegedly harassing conduct. (Fisher v. San
Pedro Peninsula Hospital (1989) 214 Cal.App.3d, 590, 613.) Here, Plaintiff
failed to identify the context, frequency, or circumstances of the harassment
that was allegedly directed at her. She states that she was subjected to
non-consensual sexual conversations and comments against her religion (SAC, p.
60, ¶ 179), but she does not elaborate further on the circumstances surrounding
these comments. Accordingly, Plaintiff cannot maintain a cause of action for
harassment.
Defendant’s
demurrer as to Plaintiff’s Sixth Cause of Action is sustained with leave to
amend.
f.
Seventh Cause of
Action for Retaliation
Plaintiff’s claim
for retaliation remains unmodified from her First Amended Complaint. To support
a claim for retaliation, Plaintiff must allege facts that, among others, show
she engaged in a protected activity, she was subjected to an adverse employment
action, and her protected activity was a substantial motivating reason for the
adverse employment action. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1042.) Plaintiff did not do that here; instead, she relies on
conclusory statements and reiterates grievances against fellow employees. As
such, she cannot maintain a cause of action for retaliation.
Defendant’s
demurrer as to Plaintiff’s Seventh Cause of Action is sustained with leave to
amend.
g.
Eighth Cause of
Action for Wrongful Constructive Termination
This cause of
action also remains unchanged from Plaintiff’s First Amended Complaint. Plaintiff
has once again failed to plead sufficient facts to maintain this cause of
action, and she pleads inconsistent allegations as to the termination of her
employment, thereby rendering her complaint defective. (See Perez v. Golden
Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236 (“it is possible
that specific allegations will render a complaint defective when the general
allegations, standing alone, might have been sufficient.”); see also Chen v.
PayPal, Inc. (2021) 61 Cal.App.5th 559, 572 (appellants’ breach of contract
action defeated by appellant’s own inconsistent allegations).) Accordingly,
Plaintiff cannot maintain this cause of action.
Defendant’s
demurrer as to Plaintiff’s Eighth Cause of Action is sustained with leave to
amend.
h.
Ninth Cause of
Action for Discrimination
Once again, Plaintiff
has failed to plead sufficient facts to maintain a cause of action for
discrimination because she has not pled any specific facts showing that
Defendant subjected Plaintiff to adverse employment action because of her race,
religion or gender. (See Harris v. City of Santa Monica (2013) 56
Cal.4th 203, 232 (discussing requirement that discrimination based on a
protected classification be a substantial motivating reason for the adverse
action).) As such, Plaintiff cannot maintain a cause of action for
discrimination.
Defendant’s
demurrer as to Plaintiff’s Ninth Cause of Action is sustained with leave to
amend.
i.
Tenth Cause of
Action for Defamation
Plaintiff cannot
maintain her cause of action for defamation because she has failed to plead sufficient
facts to constitute a defamation cause of action and only makes conclusory
allegations, same as in her First Amended Complaint. In pleading defamation,
“the plaintiff cannot assume that the court has access to the [] special
knowledge of extrinsic facts but must specially plead and prove those facts.” (Palm
Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 7.) The elements of
a defamation claim include “(1) a publication that is (2) false, (3)
defamatory, (4) unprivileged, and (5) has a natural tendency to injure or
causes special damages.” (Jackson v. Mayweather (2017) 10 Cal.App.5th
1240, 1259.) Plaintiff has not done that here. She has not alleged facts
sufficient to show that there was a publication of false, defamatory, and
unprivileged statements about her. Accordingly, this cause of action cannot be
maintained.
Defendant’s
demurrer as to Plaintiff’s Tenth Cause of Action is sustained with leave to
amend.
j.
Eleventh Cause of
Action for Breach of Covenant of Good Faith and Fair Dealing
As with her First
Amended Complaint, Plaintiff has not pled sufficient facts to maintain a cause
of action for breach of covenant of good faith and fair dealing and her SAC is
uncertain as to what contract was allegedly breached. (See Digerati Holdings,
LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873,885 (“a
breach of the implied covenant is necessarily a breach of contract.”).)
Therefore, this cause of action cannot be maintained.
Defendant’s
demurrer as to Plaintiff’s Eleventh Cause of Action is sustained with leave to
amend.
k.
Fourteenth Cause of
Action for Workplace Harassment
This is a redundant
claim, and Plaintiff only makes conclusory statements without identifying the
alleged harassing conduct or statements, the severity of the alleged
harassment, or any of the other required elements of a harassment claim. (See
Oritz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.) As such,
Plaintiff cannot maintain a cause of action for workplace harassment.
Defendant’s
demurrer as to Plaintiff’s Fourteenth Cause of Action is sustained with leave
to amend.
2. Conclusion
Defendant’s Demurrer as to
Plaintiff’s First, Second, Third, Fourth, Fifth, Twelfth, and Thirteenth Causes
of Action is sustained WITHOUT leave to amend. Defendant’s Demurrer as to
Plaintiff’s Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Fourteenth
Causes of Action are sustained WITH 20 days leave to amend.
B. The Motion to Strike
The court may, upon a motion, or at any time
in its discretion, and upon terms it deems proper, strike any irrelevant,
false, or improper matter inserted in any pleading. (Code Civ. Proc., §
436(a).) The court may also strike all or any part of any pleading not drawn or
filed in conformity with the laws of this state, a court rule, or an order of
the court. (Id., § 436(b).) The
grounds for a motion to strike are that the pleading has irrelevant, false or
improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to
strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)
1. Punitive Damages
Defendant requests that the Court strike
Plaintiff’s request for punitive damages from the SAC.
Punitive damages are only awarded in a narrow
set of circumstances where a defendant intends to cause harm. (Woolstrum v.
Mailoux (1983) 141 Cal.App.3d Supp. 1, 10 [quoting Nolin v. National
Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286].) Thus, a claim for
punitive damages can be stricken if it fails to provide facts sufficient to
support allegations of intent. (Turman v. Turning Point of Cent. Cal., Inc.
(2010) 191 Cal.App.4th 53, 63.) Punitive damages claims are typically improper
in a negligence claim because negligence is, by its very definition,
unintentional. (Woolstrum, supra, 141 Cal.App.3d Supp. at p. 10 (quoting
Prosser, Law of Torts (4th ed. 1971) p. 9).)
To sufficiently plead a claim for punitive
damages pursuant to Civil Code §3294, a plaintiff must satisfy circumstances of
"malice, oppression, or fraud," supported by facts alleged with
sufficient particularity. (G.D. Searle & Co. v. Superior Court
(1975) 49 Cal.App.3d 22, 29.) These allegations are held to a heightened
pleading standard: a plaintiff may not state a mere conclusion of law to
support a cause of action. (Perkins v. Sup. Ct. (1981) 117 Cal.App.3d 1,
6.) More importantly, the plaintiff may not simply "plead . . . a claim
for damages in the language authorizing such damages." (Id.) While
some conclusory statements may be permitted, they must make sense in the
context of the Complaint taken as a whole. (Id.)
Plaintiff’s request for punitive damages
remains unchanged from her First Amended Complaint. Plaintiff has still not pled
facts sufficient to show that Defendant intended to cause harm or alleged facts
with sufficient particularity to show that there was malice, oppression, or
fraud on the part of Defendant. Plaintiff simply makes conclusory statements
without showing actual intent.
Accordingly, the references to punitive
damages in Plaintiff’s SAC, specifically paragraphs 137, 141, and 224, and
paragraph 3 in the prayer for relief on p. 91 of Plaintiff’s complaint, shall
be stricken from the complaint. Defendant’s motion to strike as to the punitive
damages is GRANTED with leave to amend.
2. Demand to Recover for Spine Injuries and
the Like
Once
again, Plaintiff’s demand to recover for alleged physical injuries are
preempted by the Workers’ Compensation Act and should be stricken pursuant to
CCP section 431.10(b)(3). “As a general rule, an employee who sustains an
industrial injury ‘arising out of and in the course of employment’ is limited
to recovery under the workers’ compensation system.” (Torres v. Parkhouse
Tire Service, Inc. (2001) 26 Cal.4th 995, 1001.) As alleged, Plaintiff’s
physical injuries to her back, spine, shoulder, and neck all arose out of and
in the course of her employment with Defendant. (See FAC ¶ 14 (claiming
work environment caused “chronic back pain, irreversible disc desiccation and
spine injuries, shoulder and neck pain”).) As such, Plaintiff’s demand for
relief is improper and all requests for such relief in SAC paragraphs 14, 76,
105, 115, 127, 185, 207, and in the prayer for relief on page 91 must be
stricken.
Accordingly,
Defendant’s motion to strike these statements is GRANTED without leave to
amend.
3. Irrelevant and Improper Statement
Defendant
requests that the Court strike all irrelevant or improper matters from
Plaintiff’s complaint on the basis that they are not supported by factual
allegations. Previously, the Court had granted Defendant’s motion to strike as
to many of these statements.
The
Code of Civil Procedure Section 435(b)(1) provides that “[a]ny party, within
the time allowed to respond to a pleading may serve and file a notice of motion
to strike the whole or any part thereof....” A motion to strike may be brought
to strike out “all or any part of any pleading not drawn or filed in conformity
with the laws of this state, a court rule, or an order of the court.” (CCP
§436(b).) The motion may also be brought to strike out “any irrelevant, false,
or improper matter inserted in any pleading.” (CCP §436(a).)
Defendant
has requested that the Court grant its motion to strike several irrelevant and
improper statements from Plaintiff’s complaint because the statements lack a
factual foundation against Defendant or are otherwise improper matters for the
complaint. The statements that Defendant wishes to strike are outlined in
Defendant’s moving papers. (Motion to Strike pp. 10-16.) Many of these
statements include personal attacks against other employees of Defendant. The
Court finds that these statements are irrelevant or improper.
Accordingly,
Defendant’s motion to strike these statements from Plaintiff’s SAC is GRANTED
without leave to amend.