Judge James C. Chalfant, Case Number: 24STCP00706, Date: 2024-06-11 Tentative Ruling

Respondent City of Los Angeles (“City”) and its Department of Airports demur and separately moves to strike portions of the First Amended Petition (“FAP”) filed by Petitioner Ivan Moore (“Moore”).

The court has read and considered the moving papers, opposition,[1] and reply, and renders the following tentative decision.

Petitioner Moore commenced this action on March 8, 2024. The operative pleading is the First Amended Petition (“FAP”) filed on April 16, 2024. The FAP alleges in pertinent part as follows.

The City’s Los Angeles World Airports (“LAWA”) is a proprietary department of the City. FAP ¶2. LAWA and the City employed Moore at all relevant times. FAP ¶2.

On or about July 5, 2022 LAWA and the City notified Moore that he was being discharged, effective July 5, 2022. FAP ¶6.

Morre filed an appeal to the Commission pursuant to the Commission’s and City’s rules. FAP ¶7. Moore sought review whether the charges in the discharge notice were true and the penaltyof discharge was appropriate. FAP ¶9.

The matter was heard by a hearing examiner who issued a report, decision, and recommendation on June 20, 2023. FAP ¶10. The hearing examiner determined that Moore’s discharge should not be sustained. FAP ¶11. The hearing examiner’s report identified that the parties stipulated that Skelly’s requirements had been met, none of the charges or the penaly were sustained. The City’s only evidence was hearsay, which is not sufficient by itself to prove a finding unless it would be admissible over objection in a civil action. FAP ¶12.

The Commission thereafter considered the hearing examiner’s report. FAP ¶13. On December 14, 2023, the Commission adopted findings and conclusions opposite from its hearing examiner. FAP ¶14. On January 8, 2024, the Commission sustained LAWA’s decision to discharge. FAP ¶15, Ex. 1.

Moore seeks mandamus with respect to the Commission’s decision as not supported by the findings and the findings are not supported by the weight of the evidence. FAP ¶17. The Commission also failed to provide an analytical bridge from the evidence to its final conclusion. FAP ¶18. The Commission further did not proceed in the manner required by law. FAP ¶19.

Moore has exhausted all administrative remedies by filing and pursuing and appeal. FAP ¶22. Pursuant to the City’s Charter section 1017, Moore has filed a Demand for Reinstatement with the Commission (Ex. 2) and a Clam for Compensation with the City Clerk (Ex. 3). FAP ¶23.

Moore prays for a writ of mandate requiring the Commission to reverse the decision, and ordering full benefits and back pay from the date of discharge, as well as attorney’s fees and costs of suit. FAP at Prayer 1.

A proof of service on file shows that Moore served the FAP via personal service on the Commission’s authorized agent, Brenda Salgado, and via personal service on the authorized agent of the City and LAWA on April 16, 2024.

“Any board or officer having the power of appointment shall have the power to suspend or discharge any officer, member or employee of the office or department. No person in the classified civil service shall be discharged or suspended except for cause, which shall be stated in writing by the board or officer having the power to make such discharge or suspension.” City Charter §1016(a) (discharge or suspension for cause).

“The written statement of cause shall be filed with the Board of Civil Service Commissioners, with certification that a copy has been served upon the person so discharged or suspended, in accordance with Section 1018. Upon filing with the board, the discharge or suspension shall take effect.” City Charter §1016(b) (statement of cause).

“Within five days of service of the written statement upon any person so discharged or suspended, the person shall file a written application with the board in order to require the board to hold a hearing to investigate the grounds for the discharge or suspension. In the event that the person does not file an application, the board may, but is not required to, within 15 days after the filing of the written statement with the board, determine to hold a hearing to investigate the grounds for the discharge or suspension.” City Charter §1016(c) (application for hearing).

“If, after investigation and hearing as required by law is held, the board finds, in writing, that the grounds stated for the discharge or suspension were insufficient or were not sustained, the board shall order the person to be reinstated or restored to duty. With the consent of the appointing authority, the board may also reduce the length of the suspension, or may substitute suspension for discharge, if the board makes a written finding that such action is warranted. The order of the board with respect to the discharge or suspension shall be promptly certified to the appointing board or officer, and shall be final and conclusive.” City Charter §1016(d) (reinstatement; restoration).

“If the board orders reinstatement or restoration to duty of a person who has been discharged or suspended, the person shall be entitled to receive compensation from the City the same as if he or she had not been discharged or suspended by the appointing board or officer.” City Charter §1016(e) (compensation).

“Whenever it is claimed by any person that he or she has been unlawfully demoted, suspended, laid off or discharged, and that person has filed an application for a hearing as provided in Section 1016(c) and reinstatement or restoration to duty has been denied, the person may file a written claim for compensation and a demand for reinstatement. The claim and demand must be filed within 90 days from the date of the decision of the board following a hearing, or if no hearing is applied for, from the date on which it is claimed that the person was first illegally, wrongfully or invalidly demoted, laid off, suspended or discharged. The demand for reinstatement must be filed with the board and the claim for compensation must be filed with the City Clerk. Failure to file a demand for reinstatement with proof of filing with the board, within the time specified in this section, shall be a bar to any action to compel reinstatement. Proof of filing with the City Clerk of the claim for compensation within the time and in the manner specified shall be a condition precedent to any recovery of wages or salary claimed to be due on account of demotion, layoff, suspension or discharge. Except as provided in this section, claims for compensation shall conform to the requirements of Section 350.” City Charter §1017 (emphasis added).

Moore and the City’s counsel met and conferred on April 11, 2024 pertaining to the deficiencies in the Petition that Moore failed to exhaust administrative remedies and file proofs of filing the Demand for Reinstatement and Claim for Compensation per City Charter section 1017. Mora Dem. Decl., ¶¶4-6. That same day, the City’s counsel emailed Moore a summary of their meet and confer call. Mora Dem. Decl., ¶7, Ex. A. On April 12, 2024, the City’s counsel called Moore again to continue the meet-and-confer discussion wherein Moore stated he could fix the deficiencies accordingly. Mora Dem. Decl., ¶8, Ex. B.

On April 16, 2024, Moore filed the FAP. Mora Dem. Decl., ¶11. On April 25, 2024, the City’s counsel attempted to meet and confer with Moore pertaining to the lack of proofs of filing the Demand for Reinstatement and Claim for Compensation. Mora Dem. Decl. ¶12. The parties agreed to continue the meet-and-confer to April 29, 2024. The City’s counsel could not reach Moore that day. Mora Dem. Decl., ¶13.

After some follow-up, the parties agreed to speak on May 1, 2024. Mora Dem. Decl., ¶¶14-15. Prior to the meet and confer call, the City’s counsel learned from the court’s website that Moore filed six proofs of service and informed Moore that it could not engage in meaningful discussion until it had an opportunity to review the proofs of service. Mora Dem. Decl., ¶¶16-17, Ex. D. On May 2, 2024, Moore provided the City with copies via email of proofs of service filed with the court. Mora Dem. Decl., ¶18.

On May 10, 2024, the City’s counsel called Moore to discuss the continuing deficiencies with regard to the FAP but were unable to reach him. Mora Dem. Decl., ¶19.

The City demurs to the FAP in its entirety on the grounds that it fails to state a claim and is uncertain.

Demurrers are permitted in administrative mandate proceedings. CCP §§ 1108, 1109. A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face.

Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings. CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257. The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading. CCP §430.10. A demurrer is timely filed within the 30-day period after service of the complaint. CCP § 430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318. The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47. The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. CCP §430.31(a). As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies. CCP §430.31(a)(1). The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. Id. The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met. CCP §430.31(a)(3).

The City notes that the City Charter required Moore to file a demand for reinstatement within 90 days from the date of the decision of the board. The demand for reinstatement must be filed with the board. Failure to file a demand for reinstatement with proof of filing with the board shall be a bar to any action to compel reinstatement. City Charter §1017 (emphasis added).[3]

The City does not argue that it has no demand for reinstatement was filed with the Commission. Nor can it do so because extrinsic evidence is not permitted on demurrer. Instead, the City points to the FAP’s allegation that “Pursuant to the City’s Charter Section 2017, Petitioner has filed a Demand for Reinstatement (attachment Exhibit 2). FAP ¶23.

The City notes that the facts alleged in a complaint’s exhibits must be accepted as true for purposes of demurrer, and if they are inconsistent with the pleading, the exhibit will be given precedence. Brakee v. Economic Concepts, Inc., (2013) 213 Cal.App.4^th 761, 767. The FAP’s Exhibit 2 is a February 24, 2024 letter to the Commission’s board noting that the Commission’s decision sustaining his discharge was issued on December 14, 2023 and demanding his reinstatement pursuant to City Charter section 2017. The City argues that, pursuant to City Charter section 2017, Moore must have proof that his demand was filed with the board within 90 days of the decision. February 24, 2024 was within 90 days of the December 14, 2023 decision, but there is no proof of filing. The City argues that the letter is inconsistent with the FAP’s allegations. Dem. at 6.

The City is wrong. The FAP alleges that Moorer filed a Demand for Reinstatement with the board pursuant to City Charter section 2017. FAP ¶23. There is nothing inconsistent between that allegation and a timely letter to the board demanding reinstatement. The letter is not required to have a file stamp by the board to be consistent with the allegation. If Moore did not timely file a demand for reinstatement, the City’s remedy is a CCP section 1094 motion, not a demurrer.

The City moves to strike page 5, lines 18-20 of the FAP alleging entitlement to “full benefits and back pay from the effective date of discharge.”

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. CCP §435(b)(1). CCP section 436 permits the court to strike out any irrelevant, false, or improper matter, as well as any part of any pleading not in conformity with an order of the court. Irrelevant matters are defined as those allegations that are not essential to the statement of a claim or that are neither pertinent nor supported by an otherwise sufficient claim. CCP §431.10(b).

The notice of motion to strike shall be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and shall be noticed for hearing and heard at the same time as the demurrer. CRC 3.1322(b). 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. CRC 3.1322(a).

A motion to strike can serve an important function of deleting matter for which a defendant may not be able to demur but for which the defendant should not have to suffer discovery and navigate the thicket of proceedings for summary adjudication. Ph II, Inc. v. Superior Court (1995) 33 Cal.app.4^th 1680, 1682-83. The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. CCP §437(a). Matter to be judicially noticed shall be specified in the notice of motion. CCP §437(b). 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.

The City notes that the City Charter required Moore to file a written claim for compensation with the City Clerk within 90 days from the date of the decision of the board. Proof of filing with the City Clerk of the claim for compensation within the time and in the manner specified shall be a condition precedent to any recovery of wages or salary claimed to be due on account of demotion, layoff, suspension or discharge. City Charter §1017.

The City makes the same pleading inconsistency argument for the claim that it makes for the demand for reinstatement. Mot. at 5-6. For the same reasons as the demurrer, there is no inconsistency. FAP paragraph 23 is not inconsistent with Exhibit 3. Nor is Moore required to show proof of filing the claim with the City Clerk in his FAP. See Mot. at 5. If Moore did not timely file a written claim for compensation with the City Clerk, the City’s remedy lies at trial.

[1] Petitioner Moore filed an opposition to the motion to strike but not the demurrer.

[2] The City requests judicial notice of the following documents: (1) City Charter section 1017 (Ex. A); (2) City Charter section 1016 (Ex. I); (3) the FAP (Ex. B); (4) Address of Main Office of the Board of Civil Service Commission reflected in the Contact Us Page of its official website (Ex. C); (5) Proofs of service for the verified Petition, Notice of Case Assignment, Notice of Trial Setting Conference, served on Brenda Salgado (“Salgado”), Commission Clerk (Ex. D); (6) Proofs of service of the verified Petition, Notice of Case Assignment, Notice of Trial Setting Conference, served on Marisol G., Deputy City Clerk (Ex. E); (7) Address where to file claims reflected in the Office of the City Clerk File a Claim/Reward Application website (Ex. F); (8) Proofs of service of FAP served on Salgado and Michelle (Ex. G); (9) Proof of service of FAP served on Mike V., Deputy City Clerk (Ex. H). There is no need to judicially notice the FAP and proofs of service (Exs. B, D, E, G, and H; the court can always review the court record for the pending case. Exhibits A, I, C, and F are judicially noticed. Evid. Code §452(b), (h).

[3] City Charter section 1017 also contains requirements for a written claim for compensation, but failure to comply with the claim requirement would bar compensation for, not reinstatement of, a former employee and would not be subject to demurrer. See post.