Judge: Gregory Keosian, Case: 21STCV43041, Date: 2022-08-04 Tentative Ruling
Case Number: 21STCV43041 Hearing Date: August 4, 2022 Dept: 61
Defendants
VVE Managmeent, Inc. and Quality Care Cannabis’s Demurrer and Motion to Strike
Portions of the First Amended Complaint is SUSTAINED with 30 days leave to
amend as to the first through fifth, seventh, and eighth causes of action, and
OVERRULED as to the seventeenth cause of action. The motion to strike is
GRANTED with 30 days leave to amend as to the prayer for punitive damages.
I. DEMURRER
A demurrer should be sustained only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§
430.30, et seq.) A court should
sustain a demurrer if a complaint does not allege facts that are legally
sufficient to constitute a cause of action. (See id. § 430.10,
subd. (e).) As the Supreme Court held in Blank
v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all
material facts properly pleaded, but not contentions, deductions or conclusions
of fact or law. . . . Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th
740, 747 (“A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed.”))
“In determining whether the complaint is sufficient as
against the demurrer … if on consideration of all the facts stated it appears
the plaintiff is entitled to any relief at the hands of the court against the
defendants the complaint will be held good although the facts may not be
clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer
for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612,
616.) Such demurrers “are disfavored,
and are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” (Mahan v.
Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
A
demurrer should not be sustained without leave to amend if the complaint,
liberally construed, can state a cause of action under any theory or if there
is a reasonable possibility the defect can be cured by amendment. (Schifando
v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also
may be sustained without leave to amend where the nature of the defects and
previous unsuccessful attempts to plead render it probable plaintiff cannot
state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957,
967.)
Defendants
demurrer to all FEHA causes of action contained in the FAC, which are the first
through fifth and seventh causes of action, on the grounds that Plaintiffs fail
to plead the existence of a disability or protected activity. (Demurrer at pp.
6–12.) Defendants demurrer to the eighth cause of action for retaliation under
Labor Code § 6310, for failing to plead facts supporting the elements of the
cause of action. (Demurrer at p. 12.) Finally, Defendants demurrer to the
seventeenth cause of action for unreimbursed business expenses for lack of
factual specificity. (Demurrer at pp. 12–13.)
Government
Code § 12940(a) or the Fair Employment and Housing Act (FEHA) prohibits
employer discrimination on the basis of disability. To establish a discrimination claim under
FEHA, an employee must prove the following elements: “(1) he was a member of a
protected class, (2) he was qualified for the position he sought or was
performing competently in the position he held, (3) he suffered an adverse
employment action, such as termination, demotion, or denial of an available
job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco
(2016) 5 Cal.App.5th 368, 378.) The FEHA plaintiff “must plead a prima facie
case in order to survive demurrer.” (Caldwell
v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202 fn. 7.)
Defendant’s
argument as to the FEHA causes of action is persuasive, as Plaintiffs neither
plead membership in a protected class nor engagement in protected activity. A
“physical disability” under FEHA refers to a physiological condition that affects
one of the major bodily systems and limits a major life activity. (Gov. Code §
12926, subd. (m).) No allegations are present to show how Plaintiff Lucero’s
alleged food poisoning fits within this framework. The Department of Fair
Employment and Housing has promulgated regulations interpreting this definition
of disability, which state that a “disability” does not include
conditions
that are mild, which do not limit a major life activity, as determined on a
case-by-case basis. These excluded conditions have little or no residual
effects, such as the common cold; seasonal or common influenza; minor cuts,
sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches,
and minor and non-chronic gastrointestinal disorders.
(Cal. Code Regs., tit. 2, § 11065, subd.
(d)(9)(B).) This regulation would suggest that temporary distress caused by
food poisoning does not constitute a disability.
Nor does the FAC allege protected activity
within the meaning of a FEHA retaliation claim. “[T]o be protected, an
employee's actions must oppose activity the employee reasonably believes
constitutes unlawful discrimination.” (Dinslage v. City and County of San
Francisco (2016) 5 Cal.App.5th 368, 383, internal quotation marks and
italics omitted.) The FAC does not plead what protected activity that Lucero
engaged in for which she was retaliated against.
In opposition, Plaintiffs make no argument as
to the sufficiency of their claims, but argue only that Defendants failed to
meet and confer in good faith, and ask for an opportunity to amend. (Opposition
at pp. 1–2.) But the evidence shows that Defendants attempted to meet and
confer with Plaintiffs up to a month before the demurrer was filed and
continuing up to the filing date. (Karikomi Decl. ¶¶ 2–6.) What’s more,
the failure to meet and confer is in itself no grounds to overrule a demurrer.
(Code Civ. Proc. § 430.41, subd. (a)(4).) The demurrer is therefore properly
SUSTAINED, with 30 days leave to amend, as to the first through fifth and
seventh causes of action under FEHA.
The same result is appropriate for the eighth
cause of action for retaliation under Labor Code § 6310. That statute prohibits
retaliation against any employees who make an oral or written complaint to their
employer regarding unsafe working conditions. (Ferrick v. Santa Clara
University (2014) 231 Cal.App.4th 1337, 1350.) Here, the FAC alleges only
that “Plaintiffs,” in general, “mad oral and/or written complaints regarding
health, safety and/or working conditions to Defendants.” (FAC ¶ 106.) This
broad level of pleading is insufficient to place Defendants on notice of what
is being alleged against them, and the demurrer is properly SUSTAINED as to the
eighth cause of action, with leave to amend.
Defendants finally demurrer to the
seventeenth cause of action for failure to reimburse business expenses under
Labor Code §§ 2800 and 2802, because the FAC does not allege what expenses were
not reimbursed. (Demurrer at pp. 12–13.) However, the failure to allege the
particular expenses at issue is not a pleading defect with respect to claims
for unreimbursed employee expenses, and the nature of such expenses may be
clarified in discovery. (See Khoury v. Maly's of California, Inc. (1993)
14 Cal.App.4th 612, 616.)
The demurrer is therefore SUSTAINED with
leave to amend as to the first through fifth, seventh, and eighth causes of
action, and OVERRULED as to the seventeenth cause of action.
I.
MOTION TO
STRIKE
Any
party, within the time allowed to respond to a pleading, may serve and file a
notice of motion to strike the whole or any part thereof. (Code Civ. Proc., §
435(b)(1)). The notice of motion to strike a portion of a pleading shall quote
in full the portions sought to be stricken except where the motion is to strike
an entire paragraph, cause of action, count or defense. (California Rules of
Court Rule 3.1322.)
The
grounds for a motion to strike shall appear on the face of the challenged
pleading or form any matter of which the court is required to take judicial
notice. (Code Civ. Proc., § 437(a)). The court then may strike out any
irrelevant, false, or improper matter inserted in any pleading and 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. (Code Civ. Proc., §
436.) When the defect which justifies striking a complaint is capable of cure,
the court should allow leave to amend. (Perlman
v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)
Defendants
here move to strike the prayer for punitive damages made in connection with
Plaintiffs’ tort claims, on the grounds that insufficient facts are alleged to
support the request for relief. (Motion at pp. 5–7.)
Punitive damages are allowed in non-contract cases when a
defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code §
3294.) The terms are defined as:
“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.
“Oppression” means despicable conduct that subjects a person to
cruel and unjust hardship in conscious disregard of that person's rights.
“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.
Something more than the mere commission of a
tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of
negligence, gross negligence, or recklessness is insufficient to warrant an
award of punitive damages. (Dawes v.
Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be
recovered in an action for negligence or other nonintentional torts if the
plaintiff pleads and proves that the defendant acted with the state of mind
described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious
disregard of Plaintiff’s rights, the conduct must be both despicable and
willful. (College Hospital v. Superior
Court (1994) 8 Cal.4th 794, 713 (“College
Hospital”).)
Defendants are correct that few facts are
alleged to support the prayer for punitive damages. The FEHA claims are
defective, as described above in relation to Defendants’ demurrer, and
therefore cannot serve as a basis for claiming punitive damages. Defendants do
not demurrer to Plaintiffs’ Labor Code § 1102.5 claim, which alleges that
Plaintiffs were discharged for complaining about Defendants’ unlawful wage
practices, (FAC ¶ 87.) But even in this cause of action, the allegations made
to support punitive damages consist of a conclusory invocation of the malice,
oppression, and fraud that Civil Code § 3294 requires. (FAC ¶¶ 92–93.)
Plaintiffs in with respect to this claim allege no more than the commission of
a tort, and include no other underlying facts supporting a prayer for punitive
damages.
The motion is therefore GRANTED with leave
to amend.