Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from an employment dispute.  Plaintiff Jorge Rodriguez was hired by Defendant Trader Joe’s Company in 1997 and had been working there for approximately 24 years before his termination.   (First Amended Complaint (“FAC”) ¶11.)  Plaintiff was a “mate”, which is a management position.  (FAC ¶¶ 12, 14.)     

On March 2, 2022, Plaintiff hosted a “tasting” of a new whiskey at the end of the shift.  (Id. ¶7.)  He claims these tastings were a normal occurrence at Trader Joe’s as employees were expected to be able to recommend alcohol choices when asked by customers.  (Id. ¶8.)  Plaintiff had either participated in and/or coordinated tastings previously with no discipline.  (Id. ¶14.)   

On March 14, 2022, Plaintiff’s employment was terminated on the ground he arranged a “tasting” that was purportedly not permitted by Trader Joe’s.  (Id. ¶10.)  Plaintiff was also accused of making an employee feel “uncomfortable” after the tasting, which Plaintiff alleges is a false claim.  (Id. ¶10.)        

This action ensued.  The operative complaint alleges two claims for (1) breach of contract and (2) tortious breach of the implied covenant of good faith and fair dealing.   

This hearing is on Trader Joe’s demurrer and motion to strike the FAC.  Trader Joe’s argues that (1) Plaintiff’s breach of contract claim fails because Plaintiff fails to rebut the presumption of at will employment; does not sufficiently allege whether the contract was written, oral or implied; fails to provide a copy of the contract or recite its terms verbatim; and fails to plead the legal effect of the contract; and (2) Plaintiff’s claim for tortious breach of the implied covenant of good faith and fair dealing fails because it is duplicative and cumulative of Plaintiff’s breach of contract claim and fails to set forth any additional fact allegations differentiating this cause of action from the breach of contract claim.  In the event the demurrer fails, Defendant asks the Court to strike Plaintiff’s prayer for attorneys’ fees and punitive damages on the ground Plaintiff fails to set forth any factual or legal grounds for the award of such remedies.       

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon 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, subd. (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. (Code Civ. Proc. § 436, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Trader Joe’s submits the Declaration of Evan Kroll which attests counsel sent a meet and confer letter outlining the legal and factual basis for the instant demurrer and motion to strike and provided defense counsel’s availability for a call.  Defense counsel then called Plaintiff’s counsel’s office, at which time Plaintiff’s counsel proposed to meet and confer on September 16, 2024.  Defense counsel attempted to contact Plaintiff’s counsel on September 16 via email and phone, but Plaintiff’s counsel did not respond.  The Court concludes Defendant has satisfied the meet and confer requirements of §§ 430.41 and 435.5.  Plaintiff is admonished to respond to future requests to meet and confer.   

UNTIMELY OPPOSITION 

Plaintiff’s Opposition was filed four days after Plaintiff’s statutory deadline. The hearing on this motion is set for November 7, 2024; thus, Plaintiff’s Opposition was due on October 25, 2024.  However, Plaintiff did not file the Opposition until October 29, 2024, just two days before Trader Joe’s’ reply deadline.   

There is no good excuse for the belated opposition.  Trader Joe’s notified Plaintiff’s counsel of its intent to file the instant motion on five separate occasions. (See Declaration of Evan E. Kroll, filed September 17, 2024, (“Kroll Decl.”) at ¶¶ 4-8, Exs. A-C.)  Plaintiff does not dispute this; in fact, Plaintiff’s counsel admits that she “knew Defendant would be filing a Demurrer.” (Opp. at 1:23-2:5.)  Despite knowing Trader Joe’s intended to file the instant Demurrer as early as August 26, 2024, Plaintiff’s counsel waited until four days after Plaintiff’s deadline to file the Opposition.  

Further, Plaintiff’s counsel refused to participate in the meet and confer process; she never contacted counsel for Trader Joe’s to determine whether and when the motion was filed, and there is no evidence that she even checked the Court’s docket to ascertain the status or to obtain a copy.  Plaintiff’s counsel’s neglect has prejudiced Trader Joe’s by providing defense counsel less than two calendar days to prepare the instant reply.  

Additionally, this is the second time that Plaintiff’s counsel has used the excuse of having service emails go to her junk email folder as a basis for avoiding her obligations to comply with the California Rules of Civil Procedure.  Counsel avoided the meet and confer requirement by claiming that Trader Joe’s detailed meet and confer letter outlining the deficiencies of the FAC went into her junk email folder. (Kroll Decl., ¶ 7.) There is no evidence – because Plaintiff’s counsel did not submit any declaration under penalty of perjury – that counsel took any action to ensure that communications and service of pleadings from Trader Joe’s’ counsel would not be categorized as “junk” in her email folders.  Accordingly, the Court exercises its discretion to ignore Plaintiff’s opposition.   

DISCUSSION 

Demurrer to Breach of Contract Claim 

Trader Joe’s argues that Plaintiff fails to rebut the presumption of an at-will employment, and accordingly, he cannot state a claim for breach of an employment contract.  The Court agrees.   

It is well established that “[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other.  Employment for a specified term means an employment for a period greater than one month.”  (Cal. Lab. Code § 2922.) Therefore, California courts have held that employment agreements for an indefinite term are deemed to be at-will and are terminable at the will of either party.  (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677-678.)   

Here, Plaintiff admits in both the Complaint and the FAC, that one term of his employment with Trader Joe’s was that he “would be able to continue his employment with defendant indefinitely so long as he carried out her (sic.) duties in a proper and competent manner” (FAC, ¶ 13(a)) (emphasis added).  As such, Plaintiff concedes that this alleged “contract” was “indefinite” and not for a specified term and therefore was at will.  (Foley, 47 Cal.3d at 677-678.)   

Similarly, Plaintiff’s new allegation that he was “promised long term employment,” (FAC, ¶ 15) means his contract is presumed to be at will.  “Ordinarily a contract for permanent employment, for life employment, for so long as the employee chooses, or for other terms indicating permanent employment, is interpreted as a contract for an indefinite period terminable at the will of either party, unless it is based on some consideration other than the services to be rendered.”  (Ruinello v. Murray (1951) 36 Cal. 2d 687, 689-690 (citations omitted); see also Gressley v. Williams (1961) 193 Cal. App. 2d 636, 642 (“A contract for permanent employment is only a contract for an indefinite period, terminable at the will of either party unless it is based on some consideration other than the services to be rendered.”)  Thus, Plaintiff cannot state a claim for breach of contract.  

Plaintiff’s FAC does nothing to cure this fundamental defect.  And Plaintiff cannot plead around his admission that his contract is for an indefinite term because any such amendment would be a sham and will be disregarded.  (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384; Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1060-1062.)  Accordingly, the Court sustains the demurrer to the breach of contract claim without leave to amend.  The Court declines to consider the other arguments raised by Trader Joe’s to dismiss this claim.     

Demurrer to Implied Covenant Claim 

Trader Joe’s argues that Plaintiff’s tortious breach of implied covenant claim is merely duplicative of the breach of contract claim.  The Court sustains Trader Joe’s demurrer but for a different reason. 

It is well settled that where there is¿no¿breach¿of contract, there can be no breach of the¿implied¿covenant¿of good faith and fair dealing. (Walter v. Truck Ins. Exch. (1995) 11 Cal.4th 1, 35-36¿(“because a contractual obligation is the underpinning of a bad faith claim, such a claim cannot be maintained unless policy benefits are due under the contract”);¿Cal. State Auto Assn. Inter-Ins. Bureau v. Superior Court (1986) 184 Cal.App.3d 1428, 1433¿(no award of bad faith can be made “without establishing that coverage exists”).  Accordingly, because Plaintiff's claim for breach of contract is subject to demurrer, so too is his claim for breach of the implied covenant of good faith and fair dealing.  Therefore, the Court sustains the demurrer to Plaintiff’s breach of the covenant of good faith and fair dealing claim.  The Court does so without leave to amend because Plaintiff cannot amend his complaint to state a contract, and consequently, he also cannot amend to state a breach of an implied covenant.   

Motion to Strike 

Trader Joe’s moves to strike Plaintiff’s prayer for punitive damages and attorneys’ fees.  Given the Court’s ruling on the demurrer, the Court denies the motion to strike as moot. 

CONCLUSION 

Based on the foregoing, the Court SUSTAINS Defendant’s demurrer without leave to amend and DENIES the motion to strike as moot.       

 

IT IS SO ORDERED. 

 

DATED:  November 7, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court