Judge Gail Killefer, Case Number: 20STCV40604, Date: 2023-05-10 Tentative Ruling

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

TENTATIVE: Vafaei’s demurrer is overruled, except as to the fifth and sixth causes of action which are sustained without leave to amend. Vafaei is ordered to file an Amended Answer within 15 days. The improper motion is also moot. Vafaei is to give notice.

This action arises out of the employment of Laura Sermeno (“Plaintiff”) 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 the following 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, (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.

On November 10, 2022, the court sustained Law Office’s demurrer to the 4AC without leave to amend.

Vafaei now demurs to the third, fifth, and sixth causes of action of the 4AC. Plaintiff opposes the motion.

The court here notes that Vafaei filed an Answer to the SAC on February 25, 2022. Further, Plaintiff’s 4AC was filed on September 2, 2022. A party has 30 days after service of the complaint to bring a demurrer to the complaint or cross-complaint. (CCP § 430.40(a).) Vafaei now brings this demurrer and motion to strike on April 17, 2023. Therefore, the demurrer is clearly untimely. Further, this court notes Vafaei’s motion to strike asks this court to strike individual causes of action from the 4AC, which is specifically prohibited. It is improper to strike a whole cause of action pursuant to a motion to strike. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.) Such challenges must be made by demurrer. (Id.)

However, the court has discretion to consider late demurrers. (Tuck v. Thuesen (1970) 10 Cal.App.3d 193; McAllister v. County of Monterrey (2007) 147 Cal.App.4th 253.) Thus, the court will exercise its discretion to consider Vafaei’s very late demurrer, with full consideration of all the circumstances surrounding this instant motion.

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.)

Vafaei contends the third cause of action is insufficiently pled as it supposedly fails to allege obscene or demeaning language, hostile comments, or abusive conduct by Vafaei. (Dem., 4-5.)

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.)

In opposition, Plaintiff contends she has sufficiently alleged pervasive and severe harassment at the hands of Vafaei: “the timeframe of Vafaei’s harassment, from the commencement of Plaintiff’s employment until Vafaei’s termination... the nature of Vafaei’s pattern of harassing conduct, specifically, repeated comments, innuendo, and uncomfortable stares... [and] has alleged with specificity the most severe individual substance of harassment, wherein Vafaei propositioned to pay her for a relationship.” (Opp., 6.) The court agrees.

Upon review of the 4AC, the court finds the third cause of action is sufficiently pled.

For these reasons, Vafaei’s demurrer to the third cause of action is overruled.

Here, a review of the Fourth Amended Complaint shows Vafaei was not Plaintiff’s employer, supervisor or an agent acting on behalf of Plaintiff’s employer. For these reasons, Vafaei’s demurrer is sustained as to the fifth and sixth causes of action.

Vafaei’s demurrer is overruled, except as to the fifth and sixth causes of action which are sustained without leave to amend. Vafaei is ordered to file an Amended Answer within 15 days. Vafaei is to give notice.

[1] Vafaei submits the declaration of his counsel, Azadeh Manoussi, Esq. (“Manoussi”), to demonstrate compliance with statutory meet and confer requirements. Manoussi attests that prior to filing the demurrer, he called and left a message with Plaintiff’s counsel on April 14, 2023, only three days before filing this demurrer. (Manoussi Decl.) Manoussi attests he has not received a response. (Manoussi Decl.) The Manoussi Declaration is woefully insufficient for purposes of CCP §§ 430.41 and 435.5.

First, Defendant’s counsel has entirely failed to make any significant efforts to meet and confer with Plaintiff’s counsel, and to provide reasonable notice in order to effectuate cooperation and amendments to the pleadings. As such, Defendant’s conduct has created a significant roadblock to the resolution of the issues raised in this demurrer. Further, as noted above, this court does not take lightly the fact that Defendant has waited nearly half a year to even begin efforts to meet and confer with Plaintiff’s counsel regarding the issues raised in the 4AC. This is entirely substandard behavior. However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (CCP § 430.41(a)(4).) The court will continue with the merits of the parties’ arguments.