Judge Gail Killefer, Case 22STCV19546 2023-01-30 Tentative Ruling

MOTION: Defendant’s Demurrer to the 5^th Cause of Action of the First Amended Complaint; Defendant’s Motion to Strike Portions of the First Amended Complaint.

TENTATIVE: LAUSD’s demurrer is sustained without leave to amend. Having sustained the demurrer without leave to amend, the motion to strike is moot. LAUSD is to give notice.

This is an employment action arising out of the employment of Deborah Mak (“Mak”) and Brent Palmer (“Palmer”) (collectively “Plaintiffs”) with Defendant LAUSD. In October 1999, Mak was employed as a Special Ed. Trainee and/or Assistant during her employment at the John F. Kennedy High School. In January 2006, Palmer was employed as an Investigator with LAUSD. In August 2021, LAUSD adopted a mandatory COVID-19 vaccination policy (“Policy”) for its employees. The Complaint alleges Plaintiffs submitted requests for exemptions from the Policy pursuant to their religious beliefs (“Requests”), and the Requests were denied by the LAUSD. Plaintiffs contend Mak was terminated on December 8, 2021 under pretextual reasons, and Palmer was terminated on March 9, 2022 for pretextual reasons as well.

Plaintiffs filed their operative First Amended Complaint (“FAC”) on November 14, 2022. The FAC alleges the following causes of action: (1) discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) failure to prevent discrimination and retaliation in violation of FEHA; (3) failure to accommodate in violation of FEHA; (4) retaliation; (5) financial abuse of a dependent adult due to undue influence (Welfare and Institutions Code § 15610.30)—Mak against LAUSD; and (6) violation of PAGA, Lab. Code §§ 2698, et seq.—Mak and aggrieved employees against LAUSD.

LAUSD now demurs to the FAC’s fifth cause of action. Plaintiff Mak opposes the demurrer.

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 (Mahan), 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.) “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.)

A. Third Cause of Action: Financial Abuse of a Dependent Adult (Welfare and Institutions Code § 15610.30)

An elder for purposes of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code § 15600 et seq.) is “any person residing in this state, 65 years or older.” (Welf. & Inst. Code § 15610.27.) California’s Elder Abuse Act (the “Act”) defines dependent adult abuse as either “(a) physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (b) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (Welf. and Inst. Code §15610.07.) Physical abuse of a dependent adult is defined by Welfare and Institutions Code § 15610.63(d) as “unreasonable physical constraint, or prolonged or continual deprivation of food or water.”

Neglect under the Act is not "the substandard performance of medical services," but is rather the failure of those responsible to carry out their custodial obligations. (Covenant Care Inc. v. Superior Court (2004) 32 Ca1.4th 771, 783.) Thus, when the issue is the medical care of a dependent adult, "the statutory definition of 'neglect' speaks not of the undertaking of medical services, but of the failure to provide medical care." (Ibid.)

Financial elder abuse is defined as when a person "[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both." (Welf. & Inst. Code, § 15610.30(a)(l). ) “A person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult." (Welf. & Inst. Code, § 15610.30(c).)

LAUSD argues that Mak’s fifth cause of action is insufficiently pled because Plaintiff’s allegations are not viable. (Demurrer, 5-7.) The FAC alleges LAUSD engaged in financial elder abuse against Mak by ““taking, secreting, appropriating, obtaining, and retaining Plaintiff MAK’s wages and other employment benefits, including, without limitation, pension benefits and any applicable insurance policy proceeds[.]” (Id.; FAC ¶78.) LAUSD claims the fifth cause of action is therefore insufficiently pled since Plaintiff cannot support the contention that “her termination of employment constituted financial elder abuse because she lost potential future wages and benefits.” (Id.) LAUSD then correctly cites Hardin v. Wal-Mart Stores, Inc. (E.D. Cal. 2011) 813 F.Supp.2d 1167 to show precedent has found a loss of future wages to not constitute financial abuse under the Act. (Hardin v. Wal-Mart Stores, Inc. (E.D. Cal. 2011) 813 F.Supp.2d 1167, 1818 [quoting CC § 14].) LAUSD also correctly explains future wages do not constitute a property right as well. (Dem., 5-6; citing Sivas v. Luxottica Retail North America, Inc. (E.D. Cal. Sept. 4, 2019) 2019 WL 4189811, at 3.)

LAUSD further adds the allegations of the FAC do not include any past or “vested” wages, but only refer to future wages lost. (Dem., 6.) Lastly, LAUSD contends Plaintiff cannot establish the “wrongful use” prong of the claim, as LAUSD acted within its rights to institute the Policy, which Mak fails to show was wrongful. (Dem., 6-7; citing Palsay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 657; Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 527.)

In opposition, Plaintiff Mak argues that the fifth cause of action is sufficiently pled because Plaintiff does not seek damages for future wages. (Opposition, 3.) Plaintiff also argues that California caselaw has found vested pension rights of public employees, like Mak, to be personal property and contractual rights. (Opp., 4; citing Protect Our Benefits v. City & Cnty. of San Francisco (2015) 235 Cal.App.4th 619, 628.) Thus, Plaintiff Mak argues the FAC alleges a taking of already vested and earned wages. (Opp., 6-7.) Further, Mak contends, the FAC shows “the District was not acting within its rights when it secreted and retained her earned wages and other employment benefits and then terminated her employment in violation of FEHA.” (Opp., 8-9.) Thus, Plaintiff Mak anchors the wrongful use prong of the fifth cause of action on the wrongful conduct alleged in violation of FEHA in other causes of action.

In reply, LAUSD contends its status as a public entity burdens Mak to plead “every fact material to the existence of the entity’s liability” “with particularity.” (Reply, 2; citing Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819.) LAUSD therefore contends Mak’s allegations regarding earned and vested wages, as well as pension rights, should be pled with further particularity. (Id.) Lastly, LAUSD again reiterates their argument that Mak has failed to show, or cite authority to suggest, that the actions taken by LAUSD “can constitute a ‘wrongful use’ of the Plaintiff’s wages and benefits, and other than plainly using the words ‘wrongful use,’ Plaintiff fails to address the issue and her Complaint is similarly bereft of information.” (Reply, 3.) The court agrees.

The FAC states, in relevant part, that “Defendants have taken, secreted, appropriated, obtained, and/or retained Plaintiff MAK’s wages and other employment benefits, including, without limitation, pension benefits and any applicable insurance policy proceeds which may apply to Plaintiff MAK’s causes of action alleged in this lawsuit, for wrongful use because they knew or should have known that their conduct was likely to be harmful to Plaintiff MAK.” (FAC ¶77.) However, the FAC only includes conclusory language to argue LAUSD’s Policy and personnel decisions were wrongful conduct, which would impose liability on Defendant here. The court does not assume the truth of conclusory contentions at the demurrer stage. (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.”].) Thus, the court finds Mak has insufficiently pled how LAUSD has appropriated or taken Mak’s property; has insufficiently pled which property rights have been affected by which takings; and has lastly failed to show how any such taking was done for a wrongful use or with an intent to defraud as required by the Act.

For these reasons, LAUSD’s demurrer to the fifth cause of action is sustained.

LAUSD’s demurrer is sustained without leave to amend. LAUSD is to give notice.

[1] LAUSD submits the declaration of its attorney, Sheryl Rosenberg (“Rosenberg”), to demonstrate that it has satisfied the statutory meet and confer obligations prior to filing the instant demurrer. Rosenberg attests on November 28, 2022, counsel sent Plaintiffs’ counsel an email raising the issues in the instant demurrer, and on November 30, 2022, Plaintiffs’ counsel responded asking for counsel’s availability; however, the parties have not met and conferred regarding the instant motion. (Rosenberg Decl. ¶¶ 3-5.) The Rosenberg Declaration is insufficient for purposes of CCP § 430.41 as the declaration makes clear the parties have failed to meet and confer around the issues raised here. However, as the failure to meet and confer does not constitute grounds for overruling the motion, the court continues with the merits of parties’ arguments.