Judge: Douglas W. Stern, Case: 22STCV21275, Date: 2023-11-14 Tentative Ruling
Case Number: 22STCV21275 Hearing Date: November 14, 2023 Dept: 68
Ava Naeini vs. Confluent,
Inc., 22STCV21275
MOVING PARTY: Defendant Confluent, Inc.
RESPONDING PARTY: Plaintiff Ava Naeini
Demurrer to Third Amended Complaint with Motion
to Strike
I.
BACKGROUND
A word about
formatting of the Third Amended Complaint and Plaintiff’s Opposition Brief. The Third Amended Complaint is 87 pages
long. No page is numbered. Rule of Court 2.109 provides “Each page must
be numbered consecutively at the bottom .... The page numbering must begin with
the first page and use only Arabic numerals (e.g., 1, 2, 3)….”
Plaintiff shall
comply with the page numbering requirement or the pleading and briefs may be
stricken by the Court on its own motion.
A. Factual
In her Third Amended Complaint (TAC), Plaintiff alleges seven causes of
action involving her employment at and termination from Defendant’s company. The
causes of action are harassment, retaliation, wrongful constructive
termination, discrimination, breach of covenant of good faith and fair dealing,
and workplace harassment. Many of these causes of action are the same as or
very similar to Plaintiff’s previous iterations of these causes of action. Plaintiff
alleges in her TAC that her fellow employees at Defendant’s company
discriminated against and harassed her on the basis of her gender, religion,
and national origin.
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. This Court sustained Defendant’s demurrer with
motion to strike for Plaintiff’s SAC on March 21, 2023.
On
September 14, 2023, Plaintiff filed her Third Amended Complaint. Defendant
filed it demurrer with motion to strike for Plaintiff’s TAC on October 16,
2023. Plaintiff opposes the demurrer, but did not file any opposition to the
motion to strike.
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).
a.
Plaintiff’s
Entire Complaint – Statue of Limitations
Defendant demurs to Plaintiff’s entire Third Amended
Complaint on the basis that Plaintiff’s causes of action are barred by the
applicable statutes of limitations because Plaintiff’s employment with
Defendant ended on June 30, 2020.
Except for one of Plaintiff's causes
of action, the statutes of limitations has not run as Plaintiff originally
filed her complaint on June 29, 2022.
The claims relate back to this filing date. That is within two years of the end of her
employment.
The only cause of action to which
the statute of limitations would have expired is Plaintiff’s Tenth Cause of
Action for Defamation. It has a one-year
statute of limitations. (CCP § 340(c).) The other causes of action all have
two- or three-year statutes of limitations.
Based on the statute of limitations issue, the Court sustains
Defendant’s demurrer to Plaintiff’s Tenth Cause of Action without leave to
amend.
b.
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 and is uncertain.
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.)
Plaintiff has once again 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 (TAC, ¶ 179), but the incidents
she describes in the paragraphs to follow are confusing and uncertain.
Plaintiff also does not indicate how the incidents amount to harassment. Plaintiff
cannot maintain this cause of action.
Defendant’s demurrer to Plaintiff’s Sixth
Cause of Action is sustained with leave to amend.
c.
Seventh
Cause of Action for Retaliation
Defendant demurs to Plaintiff’s Seventh Cause of
Action on the basis that it does not state facts sufficient to constitute a
cause of action and is uncertain.
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.)
Once again, Plaintiff relies on conclusory
statements and reiterates grievances against fellow employees. While she
alleges that she was fired because of complaints she made to HR (TAC, ¶ 188),
she has not alleged any causal nexus between her complaints to HR and her
firing. She does not allege any facts regarding the time frame of these
actions.
Defendant’s demurrer to Plaintiff’s Seventh
Cause of Action is sustained with leave to amend.
d.
Eighth
Cause of Action for Wrongful Constructive Termination
This cause of action remains unchanged from
Plaintiff’s Second Amended Complaint. The Court previously sustained
Defendant's demurrer to this cause of action because Plaintiff had failed to
state facts sufficient to constitute the cause of action.
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).) Plaintiff alleges that she was fired, yet in this
section she’s alleging that she was constructively terminated. The two
allegations appear to be inconsistent with one another.
Defendant’s demurrer to Plaintiff’s Eighth
Cause of Action is sustained with leave to amend.
e.
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).) It is unclear from Plaintiff’s
allegations which specific actions taken by Defendant were related to any
adverse employment action toward Plaintiff. Plaintiff’s complaint remains
uncertain for this cause of action.
Defendant’s demurrer to Plaintiff’s Ninth
Cause of Action is sustained with leave to amend.
f.
Tenth
Cause of Action for Defamation
The Court sustained Defendant’s demurrer to this
cause of action on the basis that it is barred by the statute of limitations.
The Court will also address the cause of action on its merits.
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. 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.
Defendant’s demurrer to Plaintiff’s Tenth
Cause of Action is sustained without leave to amend.
g.
Eleventh
Cause of Action for Breach of Covenant of Good Faith and Fair Dealing
As with her Second 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 TAC 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 to Plaintiff’s Eleventh
Cause of Action is sustained with leave to amend.
h.
Fourteenth
Cause of Action for Workplace Harassment
This is a redundant claim, and Plaintiff only makes
conclusory statements about the alleged harassing conduct or statements and
does not address 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 to Plaintiff’s
Fourteenth Cause of Action is sustained with 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 TAC. The Court previously ruled that the requests for punitive damages
should be stricken from Plaintiff’s complaint. Plaintiff has ignored the
Court’s ruling and left the requests in.
The
references to punitive damages in Plaintiff’s TAC, specifically paragraph 224
and paragraph 3 in the prayer for relief of Plaintiff’s complaint, shall be
stricken from the complaint. Defendant’s motion to strike the punitive
damages request is GRANTED without leave to amend.
2. Demand to Recover for Spine Injuries
and the Like
As
was the case with the punitive damages request, the Court had previously
ordered Plaintiff’s demand for recovery for physical injuries to be stricken.
Plaintiff failed to remove them.
Plaintiff’s
demand for relief for her physical injuries is improper and all requests for
such relief in TAC paragraphs 14, 186, 204, 210(8), and paragraph 3 in the
prayer for relief must be stricken.
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
many of these statements without leave to amend, yet they remained in
Plaintiff’s complaint.
The
CCP § 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 in Paragraphs 16,
18, 22, 24, 26, 28, 29, 30, 31, 32, 33, and 38, Many of these statements
include personal attacks against other employees of Defendant. The Court finds
that these statements are irrelevant or improper.
Defendant
has requested that more statements be stricken, but those statements appear to be
at least somewhat relevant to Plaintiff’s causes of action, so the Court will
not order that those statements by stricken.
Defendant’s
motion to strike these statements from Plaintiff’s TAC is GRANTED in part. For
those statements for which the Court is granting the motion, no leave to amend
is granted.
III. ORDER
1.
Defendant’s demurrer is granted without leave
to amend for Plaintiff’s Tenth Cause of Action.
2.
Defendant’s demurrer is granted with leave to
amend for Plaintiff’s Sixth, Seventh, Eighth, Ninth, Eleventh, and Fourteenth
Causes of Action.
3.
Defendant’s motion to strike is granted in
part without leave to amend.