Judge: Gregory Keosian, Case: 22STCV15052, Date: 2022-10-26 Tentative Ruling

Case Number: 22STCV15052    Hearing Date: October 26, 2022    Dept: 61

Defendant Booz Allen Hamilton, Inc.’s Motion to Strike Portions of the Complaint is DENIED.

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.)

Defendant Booz Allen Hamilton, Inc. (Defendant) moves to strike Paragraphs 10–12 of the Complaint and a portion of Paragraph 9, which they contend relate to irrelevant and unactionable conduct that occurred in Virginia in 2017 or earlier. (Motion at pp. 2–3.) Defendant notes that the three-year statute of limitations for FEHA claims would bar conduct occurring three years before Plaintiff filed his charge with the Department of Fair Employment and Housing (DFEH) on May 5, 2022, meaning claims arising prior to May 5, 2019, are time-barred. (Motion at p. 4, citing Gov. Code § 12960, subd. (e)(5).) Defendant argues that Plaintiff cannot benefit from the “continuing violation” doctrine to reach this conduct, remote both in time and geography, as Plaintiff has not attempted to allege any of the factors that form the basis for the doctrine’s application. (Motion at pp. 5–8, citing Richards v. CH2M Hill, Inc. (2001) 26 Cal.4^th 798, 823 [describing continuing violation factors].) Defendant also argues that conduct occurring in Virginia while Plaintiff was a resident there is beyond the bounds of the FEHA statute. (Motion at p. 8, citing Campbell v. Arco Marine, Inc. (1996) 42 Cal.App.4th 1850, 1859 [declining to apply “this state's employment-discrimination regime to non-residents employed outside the state”].)

Plaintiff in opposition does not attempt to argue that the continuing violation doctrine applies, or that the FEHA statute may be applied to conduct targeting a non-resident employed outside the state. Rather, Plaintiff argues that the alleged Virginia conduct is evidence and context that may support his claims for conduct that took place in California. (Motion at pp. 3–5.) Specifically, Plaintiff hopes to argue that the persistence of Defendant’s homophobic work culture across different branches, which may support Plaintiff’s prayer for punitive damages. (Opposition at pp. 3–4.) Plaintiff also argues that among the Virginia allegations is a promise by a former supervisor that a transfer would rectify Plaintiff’s wage imbalance, which failed to materialize in Los Angeles. (Motion at pp. 4–5.)

Plaintiff’s opposition confirms that the allegations related to Virginia are not intended to add to his substantive claims, and that Plaintiff does not seek to establish liability for conduct or damages occurring in Virginia. (Motion at p. 4.) In the absence of any attempt to plead or argue for application of the continuing violation doctrine, any attempt to do so would be barred by FEHA’s statute of limitations, and would be further barred by the fact that FEHA’s reach does not extend to out-of-state conduct committed against non-residents. Plaintiff does not oppose either argument.

Plaintiff argues instead that the allegations are provided as evidence and context for the conduct that occurred in California, and to help establish the intent behind the conduct alleged. This is not generally necessary in pleadings, as “[t]he plaintiff is required to plead only ultimate facts, not evidentiary facts,” as Plaintiff characterizes these Virginia allegations here. (C. W. Johnson & Sons, Inc. v. Carpenter (2020) 53 Cal.App.5th 165, 169.) However, where the plaintiff pleads, as here, causes of action grounded upon statute, “facts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) Allegations concerning context and evidence of intent may accordingly be permissible, even if the conduct itself would not support a statutory claim.

Under this authority, Plaintiff’s allegations concerning employment in Virginia are not subject to strike. Plaintiff alleges them to provide factual context for the California harassment claim, and to support the contention that an anti-gay bias in Defendant’s offices was broadly practiced and accepted, rendering it relevant to a showing of managing-agent ratification under Civil Code § 3294, subd. (b).

The motion to strike is therefore DENIED.