Judge Gail Killefer, Case 20STCV40604 2022-10-27 Tentative Ruling

MOTION: Defendant’s Demurrer to the Complaint; Motion to Strike Portions of the Fourth Amended Complaint

Tentative: Law Office’s demurrer is overruled, except as to the second, third, and sixth causes of action which are sustained without leave to amend. Law Office’s motion is also granted. Law Office is to give notice.

This action arises out of Laura Sermeno’s (“Plaintiff”) employment with Defendant Law Offices of Ramin R. Younessi (“Law Office”). Plaintiff alleges that she began employment with Law Office on October 29, 2018, and that from then, one of her coworkers, Pasha Vafaei (“Vafaei”), began to harass her because of her gender. According to the Complaint, Plaintiff tried to avoid Vafaei and report his unwanted advances to her supervisors. Vafaei was terminated after Plaintiff reported her complaints, but Plaintiff alleges that she was also wrongfully terminated the following day. The court sustained Defendant’s demurrer to Plaintiff’s original complaint on August 5, 2021, and sustained Defendant’s demurrer to Plaintiff’s Second Amended Complaint on May 10, 2022.

Plaintiff’s Third Amended Complaint (“TAC”) alleges six causes of action: (1) discrimination based on sex in violation of the Fair Employment and Housing Act (“FEHA”); (2) discrimination based on sex in violation of the California Constitution; (3) harassment based on sex in violation of the FEHA; (4) retaliation in violation of the FEHA; (5) failure to prevent discrimination, harassment and retaliation in violation of the FEHA; and (6) wrongful termination in violation of public policy.

On August 4, 2022, the court sustained Defendant Law Office’s demurrer as to second, third, and sixth causes of action, and granted Plaintiff leave to amend (“August 4 Order”).

On September 2, 2022, Plaintiff filed her operative Fourth Amended Complaint (“4AC”) alleging identical causes of action.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Law Office here again contends that each of Plaintiff’s causes of action are insufficiently pled because Plaintiff has failed to demonstrate that she has exhausted her administrative remedies; Law Office contends Plaintiff did not allege discrimination in her DFEH Complaint and thus failed to exhaust her administrative remedies. (Demurrer, 10-12.)

Gov. Code § 12960 requires an employee bringing a claim to first file an administrative complaint with the Department of Fair Employment and Housing (“DFEH”) within one year of the date the alleged unlawful action occurred. (Gov. Code, § 12960(d).) “The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.” (Romano v. Rockwell (1996) 14 Cal.4th 479, 492 (Romano).) Furthermore, “the FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred,’ with an exception for delayed discovery. . . .” (Ibid., emphasis in original.) It is ““plaintiff's burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with [DFEH] and obtaining a right-to-sue letter.”” (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1346.)

“Here, the TAC again alleges that Plaintiff “has duly exhausted all administrative requirements by filing charges with the Department of Fair Employment and Housing (DFEH) and receiving the requisite right-to-sue notices.” (TAC ¶ 6.) The Complaint also alleges that Plaintiff was wrongfully terminated on December 4, 2018. (TAC ¶ 21.) Previous Complaints filed by Plaintiff stated she had been terminated on November 4, 2018. (SAC ¶ 15.) However, Plaintiff has also now alleged that on “October 19, 2019, [Plaintiff] filed and obtained a Right to Sue Notice.” (TAC ¶22 on p.5, Exh. A.) The Attached Exhibit A shows a Right to Sue Notice from the DFEH in the matter “Sermeno / LAW OFFICES OF RAMIN R. YOUNESSI.” (TAC, Exh. A.)

The court finds that Plaintiff’s Complaint successfully pleads that she has exhausted her administrative remedies. The Complaint, filed October 5, 2020, alleges that Plaintiff was terminated on November 4, 2018, approximately two years prior to her termination. Plaintiff has demonstrated that she filed an administrative complaint with the DFEH within one year and obtained a right-to-sue notice on October 19, 2019.” (August 4 Order, 3.)

As the court has previously found Plaintiff to have shown an exhausting of her administrative remedies, the court now disregards a reiteration of the demurrer to the first cause of action on the same basis.

As to the Third Cause of Action specifically, Law Office again contends it is insufficiently pled as Plaintiff fails “to allege conduct that is sufficiently severe or pervasive such as to constitute harassment as a matter of law.” (Demurrer, 14-15.) Law Office again relies on Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 to contend the alleged conduct is “merely offensive” and thus not actionable. (Id.) Law Office again contends that the comments made by Vafaei are not actionable as they are not “so humiliating as to fundamentally change the plaintiff’s workplace.” (Id.; citing Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) Lastly, Law Office again contends that the alleged conduct at issue was not consistent, or pervasive, but rather “occasional, isolated, sporadic, or trivial,” and should therefore not be considered actionable conduct. (Demurrer, 16; citing Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th 1221, 1226.)

“The TAC’s Third Cause of Action includes the alleged actionable conduct to be “when [Vafaei] petitioned [Plaintiff] to become her ‘sugar daddy’ and discussed how women aren’t into him because of his looks.” (TAC, 6, ¶15.) While Plaintiff may have alleged an individual instance of harassing conduct, Plaintiff has again failed to allege sufficient facts to show a pervasive or severe pattern of harassing conduct as her Third Cause of Action.” (August 4 Order, 4.)

Upon review of the 4AC, the court finds the third cause of action remains insufficiently pled as Plaintiff continues to fail to show a pervasive pattern of harassing conduct as necessary to sustain a claim for FEHA harassment.

For these reasons, Law Office’s demurrer is again overruled, except as to the third cause of action which is sustained.

b. Second Cause of Action: Discrimination on the basis of Sex in Violation of the California Constitution

Here, Law Office once again contends that Plaintiff’s second cause of action fails to state a recognized claim. (Demurrer, 12-13.) Law Office again contends that “an alleged violation of a Constitutional right does not support a cause of action for monetary damages in the absence of a statutory provision or an established common law tort authorizing such damage remedy for the constitutional violation.” (Id.; citing Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 312; Degrassi v. Cook (2002) 29 Cal.4th 333, 335.) However, courts have affirmed "a 'claim brought directly under Article I,§ 8 of the California Constitution may only be brought where a plaintiff has been denied entrance into a profession or particular employment or terminated from the same."' Strother v. Southern Cal. Permanente Medical Group, 79 F.3d 859, 871 (9th Cir.1996). See also Himaka v. Buddhist Churches of Am., 919 F.Supp. 332,335 (N.D.Cal.1995); Simpson v. Martin, Ryan, Andrada & Lifter, 1997 WL 542701, * 4 (N.D.Cal.1997) ("Article I, section 8, however, does not create a private cause of action to redress private employment discrimination that does not result in termination"). (Madison v. Motion Picture Set Painters and Sign Writers Local 729 (C.D. Cal. 2000) 132 F.Supp.2d 1244, 1255-1256.) As such, since Plaintiff has alleged she was terminated on December 4, 2018, Plaintiff may be justified in seeking a private cause of action based on this specific constitutional violation. (4AC ¶22.)

Second, Law Office again contends Plaintiff has not alleged sufficient facts to show she was terminated on the basis of her sex. (Demurrer, 13.) Rather, Law Office points out that the 4AC again "specifically [state] that she was denied employment (terminated) in retaliation for complaining about sexual harassment." (Id.; 4AC ¶22 [incorrectly cited as ¶ 15].)

Here, upon review of the claims made in the 4AC, the court again finds Plaintiff fails to plead sufficient facts to show a private action for violation of Article 1, § 8, of the California Constitution, as Plaintiff again fails to show how she faced termination on the basis of her sex. For these reasons, Law Office's demurrer is again sustained as to the second cause of action.

c. Sixth Cause of Action: Wrongful Termination in Violation of Public Policy

Finally, Law Office again argues that to the extent Plaintiff pled a claim for wrongful termination in violation of public policy, such a claim is insufficiently pled because it only includes conclusory allegations, and the 4AC again includes no facts in support of such a claim. (Demurrer, 16.)

Here, a review of the Fourth Amended Complaint shows the 4AC again fails to allege sufficient facts and again only makes conclusory allegations regarding how her termination was wrongful and violated California public policy. For these reasons, Law Office's demurrer is again sustained as to the sixth cause of action.

Law Office’s demurrer is overruled, except as to the second, third, and sixth causes of action which are sustained without leave to amend. Law Office is to give notice.

CCP § 436 provides: “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.”¿ The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”¿ (CCP § 437.)¿¿¿

Motions to strike are used to challenge defects in the pleadings not subject to demurrer.¿ (Ferraro v.¿Camarlinghi¿(2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].)¿ Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading.¿ (CCP § 435(b)(1).)¿ The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.”¿ (CCP § 452.)¿ The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.”¿ (Clauson v. Sup. Ct.¿(1998) 67 Cal.App.4th 1253, 1255.)

Plaintiff may recover damages “in an action from breach “not arising from contract” if Plaintiff proves by clear and convincing evidence that Defendant acted with malice, oppression, or fraud. (Civ. Code § 3294(a).) “Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”¿ (Civ. Code § 3294(c)(1).)¿ “Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”¿ (Civ. Code § 3294(c)(2).)¿ “Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”¿ (Civ. Code § 3294(c)(3).)¿¿A¿plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud,¿or malice, express or implied,¿within the meaning of section 3294.”¿ (Brousseau v. Jarrett¿(1977) 73 Cal.App.3d 864.)¿

Law Office contends that the 4AC’s punitive damages allegations must be stricken because the Plaintiff does not allege that Law Office acted with oppression, fraud, or malice sufficient to support a claim for punitive damages under Civ. Code § 3294. (Motion, 4-5.) According to Law Office, the allegations do not include specific factual claims to establish malice or oppression, are “too conclusory and insufficient,” and their decision to terminate Plaintiff’s employment “does not show that Defendant acted with any oppression and/or malice” on its own. (Motion, 6.)

Liberally construing the allegations of the 4AC in favor of Plaintiff, the court finds that the 4AC does not plead sufficient allegations to support a claim for punitive damages. As discussed above with regard to the demurrer, the 4AC does not point to specific factual allegations to show any conduct done by Defendants which can be seen as intended to harm Plaintiff or malicious towards Plaintiff’s rights. As defined in Brousseau, mere conclusory claims regarding malicious and/or oppressive conduct is not sufficient to support a claim for punitive damages.

[1] Law Office again submits the declaration of its counsel, Jason J. Buccat (“Buccat”) to demonstrate compliance with statutory meet and confer requirements. Buccat attests that prior to filing the demurrer, he called and spoke with Plaintiff’s counsel to meet and confer on September 22, 2022. (Buccat Decl. ¶ 5.) Buccat attests the parties continued to meet and confer through written correspondences, but Plaintiff has not responded to written attempts and the parties have not come to a resolution. (Buccat Decl. ¶¶ 6-8.) The Buccat Declaration is sufficient for purposes of CCP §§ 430.41 and 435.5.