Judge: Gail Killefer, Case: 21STCV35034, Date: 2022-09-22 Tentative Ruling

Case Number: 21STCV35034    Hearing Date: September 22, 2022    Dept: 37

HEARING DATE:                 September 22, 2022    

CASE NUMBER:                  21STCV35034

CASE NAME:                        Nieves Araujo v. Complete Clothing Co.

TRIAL DATE:                        None

PROOF OF SERVICE:          OK

MOTION:                               Defendant’s Demurrer to the Second Amended Complaint

MOVING PARTY:                Defendant Complete Clothing Co.

OPPOSING PARTY:             None

OPPOSITION:                       No opposition filed as of September 21, 2022.

REPLY:                                  No opposition filed.

RECOMMENDATION:        Defendant’s demurrer to the SAC and its causes of action is sustained, without leave to amend. Defendant is to give notice.

Background

This action arises in connection with the employment of Nieves Araujo (“Plaintiff”) by Complete Clothing Co. (“Defendant”).

Plaintiff filed a petition (the “Complaint”) to commence this action. The Complaint alleged that Defendant harassed, retaliated, discriminated, and wrongfully terminated Plaintiff because she filed a worker’s compensation claim and requested work accommodations following an injury. The Complaint also alleged that Plaintiff suffered intentional and negligent infliction of emotional distress in the hands of her supervisors. On March 3, 2022, the court granted Defendant’s demurrer to Plaintiff’s Complaint in its entirety, and granted leave to amend.

On March 18, 2022, Plaintiff filed a First Amended Complaint (“FAC”) withdrawing all causes of action, except the first for employment discrimination.

On May 25, 2022, Defendant’s demurrer to the FAC was sustained in its entirety, and Plaintiff was granted leave to amend.

On June 23, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) alleging identical causes of action as the FAC.

Defendant now again demurrers to the SAC as follows:

1.      All of Plaintiff’s causes of action are time-barred pursuant to the applicable statute of limitations.

2.      The court lacks subject matter jurisdiction over Plaintiff’s cause of action for retaliation under Labor Code § 132a.

3.      The FAC does not state facts sufficient to constitute a cause of action as to Defendant.

4.      The FAC is uncertain.

Plaintiff did not file an opposition to the Demurrer.

Discussion[1]

I.                   Legal Authority

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.)  “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.) 

II.                Analysis

A.     Statute of Limitations

Defendant again contends that Plaintiff’s claims are time-barred by their applicable statute of limitations. (MPA, 9-11.) Defendant contends that the alleged causes of action included in Plaintiff’s single paragraph of the SAC are all time-barred as they are based on Plaintiff’s alleged termination date of September 13, 2018. (Id.) Even with the tolling pursuant to Emergency Rule 9, Plaintiff’s claims are still untimely. (Id.) Defendant further correctly explains that Plaintiff references her Right to Sue letter was dated September 28, 2022, but Plaintiff did not allege any FEHA claims until her June 23, 2022 SAC. (Id.) As such, Defendant contends all of Plaintiff’s claims are time-barred. (Id.) The court agrees.

“The general rule for defining the accrual of a cause of action sets the date as the time ‘when, under the substantive law, the wrongful act is done,’ or the wrongful result occurs, and the consequent ‘liability arises ....’ [Citation.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) “An exception to the general rule for defining the accrual of a cause of action — indeed, the ‘most important’ one — is the discovery rule.’ [Citation.]” (Ibid.) The discovery rule “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Ibid.)

The court again finds that no new facts have been alleged here, and affirms the earlier finding that Plaintiff has alleged no new facts which show her claims to not be time-barred.

CCP § 335.1 provides a two-year statute of limitations for any “action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” Therefore, because Plaintiff’s intentional infliction of emotional distress, and negligent infliction of emotional distress tort claims arise from Defendant’s alleged wrongful acts or neglect, and Plaintiff has not alleged any new facts to suggest a tolling of that period, the two-year statute of limitations applies to those claims. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1205 [“It is settled that an employer's discharge of an employee in violation of a fundamental public policy embodied in a constitutional or statutory provision gives rise to a tort action”].)

The two-year statute of limitation under section 335.1 above also applies to Plaintiff’s claim for discrimination under Civil Code § 51. In Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, the respondent was ejected from a county fair for refusing to remove the vest he was wearing that bore insignia of the Hell’s Angels Motorcycle Club. (Id. at p. 749.) The respondent filed a lawsuit alleging that the county’s dress code at the fair violated his rights under the Unruh Civil Rights Act (Civil Code § 51). (Ibid.) The California Court of Appeal held that the one-year statute of limitations for personal injury actions applied in that case because the respondent’s claim under Civil Code § 51 derived from common law principles. (Id. at pp. 759-760.) Indeed, “there is a common law analog to the right of access protected under section 51, and section 51 derives from that common law.” (Id. at p. 759, fn. 11.) In 2002, the California Legislature enacted § 335.1, changing the statute of limitations for personal injury actions from one to two years. (Bullard v. California State Automobile Assn. (2005) 129 Cal.App.4th 211, 219.) Therefore, to the extent that Plaintiff is bringing this action under Civil Code § 51, her claim is subject to the two-year statute of limitations period under Code of Civil Procedure § 335.1.

The burden is on the plaintiff “to articulate how [she] could amend its pleading to render it sufficient.” (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) To satisfy that burden, a plaintiff “must show in what manner [she] can amend [her] complaint and how that amendment will change the legal effect of [her] pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Consistent with prior rulings, the court finds Plaintiff has again failed to articulate how she can amend her SAC to cure the statute of limitations issues described above. Therefore, the court declines to grant leave to amend the Complaint.

For these reasons, Defendant’s demurrer to Plaintiff’s SAC is sustained in its entirety, without leave to amend.

Conclusion

Defendant’s demurrer to the SAC and its causes of action is sustained, without leave to amend. Defendant is to give notice.