Judge Gail Killefer, Case 22STCV09222 2022-09-19 Tentative Ruling

MOTION: Entity Defendants’ Demurrer to the Complaint; Entity Defendants’ Motion to Strike Portions of Complaint

MOVING PARTIES: Defendants, ICS Cargo-Clean-CA, LLC, Industrial Container Services-CA, LLC and Industrial Container Services, LLC

Tentative: Entity Defendants’ demurrer is sustained. Plaintiff is granted 30 days leave to amend. Entity Defendants to give notice.

MOTION: Individual Defendants’ Demurrer to the Complaint; Motion to Strike Portions of Complaint

Tentative: Individual Defendants’ demurrer is sustained. Plaintiff is granted 30 days leave to amend. Individual Defendants to give notice.

This case arises from the employment of Darrin Warren (“Plaintiff”) with ICS Cargo Clean-CA, LLC, Industrial Container Services-CA, LLC, and Industrial Container Services, LLC (together “Entity Defendants”). Plaintiff alleges he worked for Entity Defendants beginning in 2019 as a laborer in the reconditioning unit. Plaintiff alleges that on March 17, 2020, he sustained a serious workplace injury (“Injury”) resulting in temporary blindness, corneal burns, facial burns, hospitalization, and time off work with a workers compensation claim. The Complaint alleges that after the workers compensation claim was reported to Entity Defendants, Plaintiff was fired. The Complaint further alleges Defendants Antonio Uy and Alexis Wilson (“Individual Defendants”) were Plaintiff’s managers and were abusive, hostile, and harassing towards Plaintiff. The Complaint alleges Plaintiff, the only Black laborer, was the target of derogatory and racist terms and was treated differently by Individual Defendants than his non-black colleagues.

According to the Complaint, Plaintiff’s Injury was due to a lack of adequate safety measures. Following the Injury, Plaintiff alleges he was required to take an Uber to work, but while traveling in an Uber to work on March 23, 2022, the Uber driver was involved in an accident which required Plaintiff to seek medical care, but not further time off work. Plaintiff alleges Defendants refused to let him to return to work following the Uber accident and terminated his employment.

Plaintiff’s operative Complaint alleges the following nine causes of action: (1) breach of express contract, (2) breach of covenant of good faith and fair dealing, (3) wrongful termination in violation of public policy, (4) violation of California Constitution, Article I, Section 8-against Entity and Individual Defendants, (5) violation of California Government Code §§ 12900, et seq.-against Entity and Individual Defendants, (6) violation of Business & Professions Code § 17200-against Entity and Individual Defendants, (7) Fraud, (8) intentional infliction of emotional distress-against Entity and Individual Defendants, and (9) violation of California Labor Code.

Entity Defendants and Individual Defendants now demur to the Complaint, and move to strike portions of the operative Complaint. Plaintiff opposes all motions. Because both Entity Defendants and Individual Defendants have brought demurrers to the Complaint, the court will address both demurrers together before turning to the remaining motions individually.

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.)

As an initial matter, Entity Defendants contend that its demurrer to the entire Complaint should be sustained on the grounds that the entire Complaint is fatally uncertain because Plaintiff’s allegations are made against “Defendants” without defining the term in Plaintiff’s Complaint. (Demurrer, 12-13.) ¿The court has reviewed the allegations of the Complaint and finds that¿they are¿not “so incomprehensible that a defendant cannot reasonably respond.”¿ (Mahan,¿supra,¿14 Cal.App.5th at p. 848, fn. 3.)¿ The court therefore overrules the special demurrer for uncertainty.

A cause of action for breach of contract consists of the following elements: (1) the existence of a contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) the resulting damages to the plaintiff.¿ (Oasis West Realty, LLC v. Goldman¿(2011) 51 Cal.4th 811, 821.)¿“The essence of a contract is the meeting of minds on the essential features of the agreement.” (Krasley¿v. Superior Court¿(1980) 101 Cal.App.3d 425, 431.) A contract “is unenforceable if the parties fail to agree on a material term or if a material term is not reasonably certain.” (Lindsay v. Lewandowski¿(2006) 139 Cal.App.4th 1618, 1623.)¿

A¿written¿contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect.¿¿(Bowden v. Robinson¿(1977) 67 Cal.App.3d 705, 718.)¿¿An allegation of an oral agreement must “set[] forth the substance of its relative terms.”¿ (Gautier v. General Tel. Co.¿(1965) 234 Cal.App.2d 302, 305.)¿¿¿

In every contract there is an¿implied covenant¿of good faith and fair dealing. (Sutherland v. Barclays American/Mortgage Corp.¿(1997) 53 Cal.App.4th 299, 314.) The covenant of good faith and fair dealing imposes a general duty upon each contracting party “to perform faithfully and not to deprive the other party of the benefits of the contract.” (Floystrup¿v. City of Berkeley Rent Stabilization Bd.¿(1990) 219 Cal.App.3d 1309, 1318.)¿¿

A breach of the¿implied covenant¿of good faith and fair dealing requires something more than breach of the contractual duty itself. (Careau¿& Co v. Security Pacific Business Credit, Inc.¿(1990) 222 Cal.App.3d 1371, 1394 (Careau).) “Thus, allegations which assert such a claim must show that the conduct of the defendant, whether or not it also constitutes a breach of a consensual contract term, demonstrates a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad judgment or negligence but rather by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement.” (Id.¿at 1395.)

Here, Entity Defendants contend the first and second causes of action are insufficiently pled because the Complaint fails to allege whether the contract was written, implied, or oral, and fails to allege further details regarding the alleged contract with Entity Defendants. (Demurrer, 14.)

In opposition, Plaintiff points to paragraphs 1, 20, 27, and 29 of the Complaint as alleging the existence of a contract. (Opposition, 5.) Plaintiff claims that these causes of action are based on “both express and implied promises,” and has sufficiently alleged a contract with Defendants and “resulting damages.” (Opp., 6.) A review of those paragraphs, however, only shows references to an “employment agreement,” without further elaboration of the details of the formation and the terms of the alleged agreement. (Complaint ¶¶20,27, 29.) Further, while Plaintiff mentions specific promises between Plaintiff and Entity Defendants, the Complaint fails to incorporate the agreement by reference or plead the agreement verbatim, or sufficiently plead the legal effect of the agreement. As such, Plaintiff has failed to plead sufficient facts regarding this oral or written agreement. (Bowden, supra, 67 Cal.App.3d at 718.)

For these reasons, the Entity Defendants’ demurrer to the first and second causes of action is sustained.

“‘The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.’” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234-35 (quoting Yau v. Allen (2014) 229 Cal.App.4th 144, 154).) “A discharge is actionable as against public policy if it violates a policy that is: ‘(1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) ‘substantial’ and ‘fundamental.’’” (Id. at 1238-39 (quoting Carter v. Escondido Union High School District (2007) 148 Cal.App.4th 922, 929).)

Here, Entity Defendants contend that the third cause of action -- in incorporating the first, second, and claims fifth cause of action -- is insufficiently pled as it appears to be derivative of those claims. (Demurrer, 14-15.) Further, Entity Defendants contend that the third cause of action has not incorporated allegations from the fifth cause of action of the Complaint, and as such those allegations cannot be used to support this claim. (Id.)

“Defendant’s wrongful treatment of Plaintiff and termination of Plaintiff was in violation of fundamental public policies of the State of California as it included illegal conduct and other wrongful activity of discrimination, harassment and retaliation. Said policies are stated in the common laws and statutes of the State of California, those stated herein, and stated in FEHA [Fair Employment and Housing Act], the California Constitution, Civil Code, Labor Code, Health and Safety Code, Business and Professions Code and other regulation, rules, driving standards, laws, statutes and case law.” (Complaint ¶42.)

Thereafter, Plaintiff contends that this paragraph “ is sufficient to apprise Defendants of the public policies relied upon, taken in conjunction with the actual causes of action pled in the Complaint, and the facts alleged to support them.” (Opp., 8.) However, Plaintiff’s Complaint, and paragraph 42 specifically, do not point to specific statutory or constitutional provisions and merely contain conclusory claims that Entity Defendants’ conduct violated entire Codes or Acts. (Nosal-Tabor, supra, 239 Cal.App.4th at 1238-9.) As such, Plaintiff’s Complaint does not complain sufficient allegations to show which public policies Entity Defendants allegedly violated.

For these reasons, the Entity Defendants’ demurrer to the third cause of action is sustained.

Article I, Section 8 of the California Constitution states that a person “may not be disqualified from entering or pursuing a business, profession, vacation, or employment because of sex, race, creed, color, or national or ethnic origin.” Section 8 “reflects fundamental and firmly established public policy against employment discrimination based on certain classifications including . . . sex.” (Phillips v. St. Mary Reg'l Med. Ctr. (2002) 96 Cal.App.4th 218, 230.) Thus, courts have “found Section 8 as an alternative source of public policy for wrongful termination claims.” (Ibid.)

A claim for wrongful termination may be based upon defendants’ retaliation or discrimination in violation of policies against race and sex discrimination, under California Constitution, Article I, Section 8. (Phillips v. St. Mary Reg'l Medical Ctr. (2002) 96 Cal. App. 4th 218, 233 (“We hold that the trial court erred in sustaining defendant's demurrer as to plaintiff's wrongful termination claim based on defendant's retaliation in violation of Section 8's policy against race and sex discrimination.”).) See also generally Cal. Prac. Guide: (The Rutter Group 2013) ¶5:156 (“Art. I, § 8 provides an alternative source of public policy for wrongful termination cases; i.e., employers exempt from the FEHA may still be subject to Tameny claims for terminating employees in violation of the public policy expressed in Art. I, § 8.”).

Entity Defendants first contend that Section 8 is not self-executing, and thus the fourth cause of action fails as a matter of law. (Demurrer, 15-16.) However, as precedent shows us, several claims have based liability on Section 8, including as an alternative method of public policy for wrongful termination cases. As such, the court continues to Entity Defendants’ remaining arguments.

Entity Defendants also contend that the fourth cause of action is duplicative and “based on the same factual allegations as [Plaintiff’s] cause of action for discrimination, harassment and retaliation in violation of FEHA.” (Id.)

In opposition, Plaintiff correctly contends he is allowed to plead alternate theories of liability. (Opp., 9.) Plaintiff further contends that the fourth cause of action “is clearly properly pled in the alternative, and is neither duplicative nor superfluous.” (Opp., 10.)

Here, aside from incorporating earlier allegations in the Complaint, the fourth cause of action states:

“Throughout his employment, Plaintiff was a loyal and hardworking employee. However, Defendants discriminated, harassed and retaliated against Plaintiff, interfered with his employment, violated his civil rights as afforded by the California Constitution. Defendants’ conduct violated the California Constitution Article I, Section 8.” (Complaint ¶49.)

In reply, Entity Defendants contend the Complaint “alleges no facts whereby Entity Defendants supposedly ‘disqualified’ Plaintiff from entering employment with Entity Defendants based on any aspect of his sex, race, creed, color, or national or ethnic origin,” and further, that “there simply are no facts to support this Cause of Action...” (Reply, 5.) The court agrees.

As with the third cause of action, Plaintiff makes conclusory allegations as to discrimination, harassment, retaliation, and violations of civil rights, without alleging a sufficient factual basis for these conclusions of law.

For these reasons, Entity Defendants’ demurrer to the fourth cause of action is sustained.

Per California Rules of Court, rule 2.112, each separately stated cause of action must specifically state its number (e.g., “first cause of action”) and its nature (e.g., “wrongful termination in violation of public policy”). Second, “[a] complaint must contain ‘[a] statement of the facts constituting the cause of action, in ordinary and concise language.’ [Citation.]” (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415, citing CCP § 425.10, subd. (a)(1).) “This fact-pleading requirement obligates the plaintiff to allege ultimate facts that ‘as a whole apprise[ ] the adversary of the factual basis of the claim. [Citations.]’ [Citations.]” (Davaloo v. State Farm Ins. Co., supra, 135 Cal.App.4th at p. 415.)

Here, the fifth cause of action of Plaintiff’s Complaint is stated as a “Violation of FEHA,” Gov. Code §§ 12900, et seq. (Complaint ¶¶52-57.) In the fifth cause of action, the Complaint includes allegations of

“discrimination, harassment, retaliation motivated by his race, national origin, ancestry, color, perceived medical condition/sickness and need for family care or medical leave (CFRA), disability, perceived disability, association with protected classes, denied him a good faith interactive process, denied him a work environment free of discrimination and/or retaliation, denied him pay, employment, denied reasonable accommodation and rest periods, resulting in reprimand, hostile work environment, wrongful termination of Plaintiff” as well as a duty to “screen and hire capable qualified individuals” and “properly oversee and to direct,” as well as a duty to evaluate Plaintiff “through a good faith interactive process” for any accommodations. (Complaint ¶¶53-55.)

Entity Defendants here contend that the fifth cause of action “conflates various violations of the FEHA including discrimination, harassment, and retaliation in the same cause of action.” (Demurrer, 16.) Entity Defendants contend that the pleading is “facially impermissible,” as California Rules of Court, Rule 2.112 require factual allegations with “reasonable precision” and specificity, as well as “requires causes of action to be separately stated...” (Id.) Entity Defendants thus contend that the fifth cause of action is an “improper consolidation” and Entity Defendants cannot reasonably respond to the Complaint as “it cannot be determined which issues are related to which individual allegation within the causes of action.” (Demurrer, 17.)

In the opposition, Plaintiff states that if the court “agrees with Defendants’ argument, this is clearly something that can easily be remedied by amending the Complaint to separate out each cause of action,” and requests leave to amend to plead separate causes of action. (Opp., 10.)

The court finds the fifth cause of action to be insufficiently pled, as a review of the fifth cause of action finds merely conclusory allegations and conclusions of law necessarily involving several causes of action within the cause of action and individual paragraphs. Pursuant to Rule 2.112, the fifth cause of action is improperly pled.

For these reasons, Entity Defendants’ demurrer to the fifth cause of action is sustained.

Business and Professions Code § 17200 (“UCL”) prohibits “unfair competition,” which is defined to include “any unlawful, unfair or fraudulent business act or practice” and “unfair, deceptive, untrue or misleading advertising” and any act prohibited by business and professions code section 17500. Business and Professions Code section 17500 prohibits false or misleading statements in connection with the disposal of property or performance of services. A cause of action under the UCL must be stated with “reasonable particularity.” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1261.)

The UCL prohibits: (1) unlawful conduct; (2) unfair business acts or practices; (3) fraudulent business acts or practices; (4) unfair, deceptive, untrue or misleading advertising; and (5) any act prohibited under sections 17500-77.5.¿ UCL actions based on “unlawful” conduct may be based on violations of other statutes.¿ (See¿Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.)

Entity Defendants contend that “because Plaintiff’s factual basis for his sixth cause of action depends on the claims found in his fifth cause of action...this cause of action likewise must fail.” (Demurrer, 17.)

In opposition, Plaintiff contends that the sixth cause of action incorporates paragraphs 1 through 17, as well as 58 through 61, which Plaintiffs contends “are clearly sufficient to state a violation of” unfair competition law. (Opp., 10-11.)

In reply, Entity Defendants contend that “because all those underlying Causes of Actions [sic] are improperly pleaded, so too is this cause of action.” (Reply, 6.) This court agrees.

As the sixth cause of action has incorporated and referenced the other causes of action before it, and is therefore derivative of those causes of action, the court also finds the sixth cause of action to be insufficiently pled.

For these reasons, Entity Defendants’ demurrer to the sixth cause of action is sustained.

The elements of a fraud cause of action are: (1) misrepresentation (false representation, concealment, or omission); (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th 619.) Fraud must be pled in the complaint specifically. General and conclusory allegations are not sufficient. (Stansfield v. Starkey¿(1990)¿220 Cal.App.3d 59,¿74;¿Nagy v. Nagy¿(1989) 210 Cal.App.3d 1262, 1268.) Unlike most causes of action where the “the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield, supra, 220 Cal.App.3d at 73;¿Lazar v. Superior Court¿(1996) 12 Cal.4th 631, 645.) Every element of a fraud cause of action must be alleged both factually and specifically. (Hall v. Department of Adoptions¿(1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General Insurance¿(1990) 219 Cal.App.3d 1252, 1262.)¿

“Defendants made representations of material fact which were in fact false. Defendants made the representations with the intent to defraud and induce Plaintiff to act as described herein. At the time Plaintiff acted, Plaintiff did not know the representations were false and believed they were true. Plaintiff acted in justifiable reliance upon the truth of the representations. Defendants made such promises without any intention of performing them. In reliance on the company’s promises, Plaintiff continued to work for Defendants.” (Complaint ¶63.)

Entity Defendants contend “Plaintiff alleges nothing more than mere conclusory statements insufficient to support a cause of action for fraud,” and further argue no specific facts are pled to meet the heightened pleading requirement for fraud causes of action. (Demurrer, 17-18.)

In opposition, Plaintiff again points to earlier paragraphs and makes the conclusory claim that earlier paragraphs satisfy the inquiry of “how, when, where, to whom, and by what means the fraud was committed.” (Opp., 11.)

However, a review of the seventh cause of action shows the Complaint to make conclusory allegations as to what representations were made, fails to state who made the representations, and further fails to establish the remaining elements of a fraud cause of action generally. Thus, the court finds the seventh cause of action is insufficiently pled.

For these reasons, Entity Defendants’ demurrer to the seventh cause of action is sustained.

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Tererice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)

A personnel management decision does not constitute extreme and outrageous conduct even if it was improperly motivated by discrimination and retaliation. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 79-80; see also Light v. California Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 101-02.)

Labor Code § 3600 et seq., provides that, subject to certain exceptions, workers’ compensation is the exclusive remedy for employees who sustain injuries arising in the course of employment. (Labor Code § 3600.) To apply, the injury must occur in the course of the employment and arise out of the employment. “That is, the employment and the injury must be linked in some causal fashion.” (Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 833, internal quotations and citation omitted.)

Entity Defendants contend the Complaint fails to plead sufficient facts to show intentional infliction of emotional distress, and further fails to plead additional facts to show the workers compensation exclusivity rule does not apply. (Demurrer, 18-19.)

In opposition, Plaintiff contends “[c]learly Defendants’ discrimination of Plaintiff went beyond the scope of Plaintiff’s employment,” and the workers compensation exclusity rule does not apply. (Opp., 12-13.)

However, a review of the eight cause of action shows that the Complaint has not pled sufficient facts to show outrageous conduct, beyond mere conclusory claims to that effect. Further, as Entity Defendants correctly contend in their reply, the Complaint fails to plead sufficient facts to show that the exclusivity rule does not apply. (Reply, 7-8.)

For these reasons, Entity Defendants’ demurrer to the eighth cause of action is sustained.

Labor Code § 1102.5 provides that an employer, or “any person acting on behalf of the employer” shall not “make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance,” if the employee has reasonable cause to believe that the information discloses a violation of a federal or local statute, rule or regulation. (Labor Code § 1102.5(a).) Additionally, an employer or person acting on behalf of the employer “shall not retaliate” against any employee for disclosing such information, or for refusing to participate in an activity that would lead to violation of a statute, rule or regulation. (Labor Code § 1102.5(b)-(c).)

Entity Defendants contend claims of whistleblower retaliation are insufficiently pled as the “Complaint not only fails to allege a specific state or federal rule or regulation that he complained about or opposed, but [the Complaint] does not allege any particular facts showing he engaged in any protected activity at all.” (Demurrer, 20.)

In opposition, Plaintiff contends Entity Defendants “admit” allegations of protest and argues “Defendants’ assertion that the Complaint is insufficient, without more, is not a proper ground for sustaining a Demurrer.” (Opp., 13.) In reply, Entity Defendants refute that any admission of any protest was made by Entity Defendants. (Reply, 8.)

“Defendant, EMPLOYER’s retaliation against Plaintiff as stated herein, by refusing to comply with OSHA, FEHA and terminating Plaintiff’s employment after he protested illegal treatment constituted a violation of California Labor Code §1102.5(b), (d) and 6310.” (Complaint ¶76.)

Conclusory claims that Plaintiff “protested” any “illegal treatment” are not sufficient to show a claim for whistleblower retaliation. The ninth cause of action contains no factual allegations of engaging in a protected activity, and Plaintiff’s incorrect contention that conclusory references are sufficient remains without any supporting authorities. As such, the court finds the ninth cause of action is insufficiently pled.

For these reasons, Entity Defendants’ demurrer to the ninth cause of action is sustained.

Here, Individual Defendants demur as to the fourth, fifth, sixth, and eight causes of action, on the same bases as the Entity Defendants. (Individual Demurrer, 3-12.) Plaintiff also maintains identical contentions in his opposition. (Opposition to Individual Defendants, 3-9.)

Therefore, as the court has sustained Entity Defendants’ demurrer to the entire Complaint, the court also sustains Individual Defendants’ demurrer to the fourth, fifth, sixth, and eighth causes of action.

Defendants’ demurrers are sustained. Plaintiff is granted 30 days leave to amend. Defendants to give notice.

Having sustained Defendants’ demurrers, the court finds Defendants’ motions to strike moot.

[1] Entity Defendants and Individual Defendants submit the declaration of their counsel, Christina T. Tellado (“Tellado”) to demonstrate compliance with statutory meet and confer requirements. Tellado attests that counsel sent meet and confer correspondence to Plaintiff’s counsel, Plaintiff’s counsel did not respond, and the parties were unable to meet and confer. (Tellado Decl. ¶¶2-7.) The Tellado Declaration is insufficient for purposes of CCP §§ 430.41 and 435.5, as the declaration makes clear that the parties have not met and conferred. However, as failure to meet and confer is not grounds to overrule a demurrer, the court continues with its analysis of the merits.