Judge: Eddie C. Sturgeon, Case: 37-2022-00040739-CU-WT-CTL, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 18, 2024

01/19/2024  09:00:00 AM  C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Eddie C Sturgeon

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Civil - Unlimited  Wrongful Termination Motion Hearing (Civil) 37-2022-00040739-CU-WT-CTL THOMPSON VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 07/31/2023

Defendant County of San Diego's Demurrer is SUSTAINED without leave to amend. Defendant County of San Diego's unopposed Motion to Strike is GRANTED.

As an initial matter, Plaintiff has not opposed Defendant's motion to strike punitive damages and it should be granted in full. (See Gov. Code, § 818 ['notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.'].) Additionally, Plaintiff has filed an oversized opposition brief. California Rules of Court, Rule 3.1113 states that 'no opening or responding memorandum may exceed 15 pages[.]' Plaintiff's opposition papers are five pages over the limit, without counting the caption or table of contents. Because Defendant has not objected, the court has considered the entire opposition.

First, Plaintiff has not remedied the presentment defects identified in the court's prior order. (ROA 30.) The court granted leave to amend 'if such facts exist that would allow her to meet the presentment requirements.' (Ibid.) Putting aside that the letters and reply to OEC were not submitted with the complaint but only attached to a later filed declaration (compare ROA 31 and ROA 44), they still do not indicate compliance with Government Code section 915(e) or the County's Administration Code (see, e.g., ROA 37, RJN, Ex. 1, Article X, Sec. 149 ['Claims under this Article shall be presented to the County Counsel Claims Office.']).

Second, Plaintiff's Second Amended Complaint is beyond the scope of the court's prior order granting leave to amend. (ROA 30.) 'Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.' (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023; see also Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.) Plaintiff's five new causes of action (the first, second, third, fourth, and sixth) are not within the scope of the court's leave to amend and were not necessary to amend her prior third cause of action. To find otherwise would promote a rule of 'virtually no limitation on amendments following the sustaining of a demurrer.' (Zakk, supra, 33 Cal.App.5th at 456.) Third, even assuming Plaintiff had met the presentment requirement, the SAC is still deficient with respect to her fifth cause of action for retaliation (i.e., the previously styled third cause of action previously to which the court had granted leave to amend). Protected activity for purposes of section Calendar No.: Event ID:  TENTATIVE RULINGS

3001094  7 CASE NUMBER: CASE TITLE:  THOMPSON VS COUNTY OF SAN DIEGO [IMAGED]  37-2022-00040739-CU-WT-CTL 1102.5 arises 'when [the employee] discloses to a governmental agency 'reasonably based suspicions' of illegal activity,' meaning a violation of or noncompliance with a state or federal statute, rule or regulation.' (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468-469.) Plaintiff alleges that one of her instructors made racist remarks (e.g., 'it is fortunate to live in a nice middle-class Santee'), praising new cadets 'for applying during the 'War on Police,'' and speaking negatively about the BLM movement. (SAC ¶¶ 91-92.) Plaintiff alleges that she acted as a whistleblower when she complained to HR manager Johnna Duty on at least three occasions regarding these 'racist remarks.' The remarks also appear to include racism by omission (e.g., not emphasizing the impact of 'stop and frisk' policies on black Americans and communities of color during a training).

(SAC ¶ 24.) Even if the court accepts that these remarks were offensive, Plaintiff has not identified how they could reasonably be construed as illegal.

Plaintiff also alleges she 'asserted her right to receive accommodations while recovering from an upper respiratory cough.' (SAC ¶ 93.) She states that 'Plaintiff's job was to drive the Animal Control van for most of her shift. However, once she disclosed that her cough suppressant medication made her drowsy, Defendants removed her [from] her official duties. Although Plaintiff made it clear to her supervisors that she wanted to continue with her normal duties but that she just needed someone to drive the van until she no longer needed her medication, Defendants demoted her position to the kennels.' (Ibid.) Again, Plaintiff has not identified how this action could reasonably be construed as illegal as she was unable to drive a van and Defendant accommodated those circumstances. Plaintiff does not indicate why Defendant was required to accommodate Plaintiff in the manner she would have preferred (e.g., riding along with another driver).

Fourth, because the County is not liable under common law tort liability, the sixth cause of action is independently meritless. (Miklosy v. Regents of the University of California (2008) 44 Cal.4th 876, 899.) Calendar No.: Event ID:  TENTATIVE RULINGS

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