Judge: Mark A. Young, Case: 19SMCV01976, Date: 2023-05-16 Tentative Ruling
Case Number: 19SMCV01976 Hearing Date: May 16, 2023 Dept: M
CASE NAME: Siegemund v. Le
Lycee Francais De Los Angeles
CASE NO.: 19SMCV01976
MOTION: Demurrer
to the Third Amended Complaint
HEARING DATE: 5/17/2023
BACKGROUND
On November 12, 2019, Plaintiff
Karen Siegemund brought this wrongful termination complaint against her former
employer, Defendant Le Lycee Francais de Los Angeles. The operative Third
Amended Complaint (TAC) alleges three causes of action for (1) violation of Cal.
Lab. Code §§ 1101 and 1102, (2) intentional infliction of emotional distress,
and (3) violation of Business & Professions Code section 17200. The SAC
generally alleges that refused to renew her contract as a teacher because of
her political activity and beliefs
Defendant demurs and moves to
strike. Plaintiff opposes. The Court notes
that the body of the TAC does not set forth allegations regarding the purported
second cause of action. It appears that Plaintiff intended to omit this cause. If that is not the case, the Court will discuss
this issue with the parties at the hearing.
Legal
Standard
A
demurrer for sufficiency tests whether the complaint states a cause of action.
(Hahn v. Mirda (2007)
147 Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in context. In a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) 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. (CCP §§
430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate
facts sufficient to apprise the defendant of the factual basis for the claim
against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) 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.” (S. Shore Land Co. v. Petersen
(1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
A
special demurrer for uncertainty is disfavored and will only be sustained where
the pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s
of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Ibid.)
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); Cal. Rules of Court, Rule
3.1322(b).) The court may, upon a motion or at any time in its discretion and
upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) strike out all or any part of any
pleading not drawn or filed in conformity with the laws of California, a court
rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a
pleading which is not essential to the claim is surplusage; probative facts are
surplusage and may be stricken out or disregarded”].)
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the
pleading. (Id.)
MEET
AND CONFER
Before filing a demurrer or motion to strike, the moving party must meet
and confer in person or by telephone with the party who filed the pleading to
attempt to reach an agreement that would resolve the objections to the
pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration satisfies the requirement.
(Szabo Decl. ¶¶ 4-7.)
Analysis
Demurrer - Labor Code Violations (Sections 1101, 1102)
Defendant demurs to the Labor Code violations
on the grounds that there are insufficient allegations of damages.
Specifically, Defendant argues that no damages are available, including statutory
damages, penalties, and attorney’s fees. Defendant argues that Plaintiff cannot state a
claim for any contractual damages because simple non-renewal of a contract that
expired on its own terms does not support such a claim.
As an initial matter, Plaintiff argues that
Defendant waived this objection. However, an objection that a cause of action
fails to state sufficient facts cannot be waived. (CCP §430.80(a).)
Thus, the Court must consider this objection, even if it was not previously
raised.
Non-renewal of employment contracts generally would
not support a claim for breach of contract (as no breach is alleged) or for
wrongful termination in violation of public policy. (See Touchstone Television Productions
v. Superior Court (2012) 208 Cal.App.4th 676, 682–84.) Thus, while Labor Code section 1105 provides
for potential contract damages, those damages would not be available here. There are, however, other remedies available beyond
breach of contract and tort. In Touchstone, the Court of Appeal held
that the plaintiff had no claim for wrongful termination in violation of public
policy because the defendant-employer simply chose not to renew her employment contract.
The court nonetheless found that the plaintiff could state a statutory claim
under Labor Code section 6310(b), which provides a remedy to “[a]ny employee who is
discharged, threatened with discharge, demoted, suspended, or in any other
manner discriminated against in the terms and conditions of employment” for
making a complaint regarding an unsafe work environment. (Id,
emphasis added; see Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39, 43-44
[“Here, it is alleged that Exxon discriminated against Daly by not renewing her
employment contract. To prevail on the claim, she must prove that, but for her
complaints about unsafe work conditions, Exxon would have renewed the
employment contract. Damages, however, are limited to ‘lost wages and work
benefits caused by the acts of the employer.’ (§ 6310, subd. (b).)”].) Thus, the
issue is whether Plaintiff has stated a statutory claim under the cited Labor
Code sections.
Labor Code section 1101 states that “No employer shall make, adopt, or enforce
any rule, regulation, or policy: [¶] (a) Forbidding or preventing employees
from engaging or participating in politics or from becoming candidates for
public office. [¶] (b) Controlling or directing, or tending to control or
direct the political activities or affiliations of employees.” Lab. Code
section 1102 states that “No employer shall coerce or influence or attempt to coerce or influence
his employees through or by means of threat of discharge or loss of employment
to adopt or follow or refrain from adopting or following any particular course
or line of political action or political activity.” The TAC alleges as a matter
of fact that Defendant failed to renew plaintiff’s contract as a part of an
implicit policy that disallows promotion of conservative politics. Failing to
renew for espousing conservative beliefs or belonging to conservative organizations
would tend to influence or coerce employees’ political activity through loss of
employment or attempt to control employee’s political affiliations. Thus,
failing to renew here would be in violation of sections 1101 and 1102. However,
the TAC fails to establish facts which show entitlement to any statutory
remedies for this violation. Plaintiff cites no portion of Labor Code section
1101 et seq. which are analogous to section 6310(b)’s provision which provides
for direct damages in the form of lost wages or work benefits. Instead, the
statutes provide for criminal punishment and fines (see § 1103) or for breach
of contract damages (§ 1105).
To the extent that Plaintiff seeks to recover civil
penalties, civil penalties for Labor Code violations are generally only
recoverable by the Labor and Workforce Development Agency or any of its
departments or agencies – not private litigants. (Caliber Bodyworks, Inc. v.
Superior Court (2005) 134 Cal.App.4th 365, 374-75.) Labor Code section 2699
provides that civil penalties may be recovered by an aggrieved employee,
provided the aggrieved employee follows administrative procedures set forth in
section 2699.3. (Lab. Code, § 2699(a).) Section
2699.3 provides that a civil action by an aggrieved employee shall commence
only after (1) the aggrieved employee or representative gives written notice by
online filing with the Labor and Workforce Development Agency and by certified
mail to the employer of the specific provisions of this code alleged to have
been violated, including the facts and theories to support the alleged
violation and pays a $75 filing fee; and (2) the agency notifies the employer
and the aggrieved employee or representative by certified mail within 60 days
that it does not intend to investigate the alleged violation, or the agency
notifies the employer and aggrieved employee or representative by certified
mail of its decision within 65 calendar days of its intent to investigate and
subsequently determines no citation will be issued. (§ 2699.3(a).) An aggrieved
employee may also commence a civil action pursuant to section 2699 if the
agency fails to provide timely or any notification. (§ 2699.3(a)(2)(B).) There are no allegations on the record which show Plaintiff complied
with this requirement to recover penalties.
Accordingly, Defendant’s demurrer is
SUSTAINED. Leave to amend will only be granted if plaintiff provides an offer
of proof showing a reasonable probability of successful amendment.
Demurrer - UCL
To state a claim under Bus. &
Prof. Code section 17200, a plaintiff must allege whether the conduct
complained of is fraudulent, unlawful or an unfair business practice. To state
a claim under the unlawful prong, a plaintiff must allege a violation of law and
cite that law. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th
594, 610.) As discussed above, the TAC states that Defendant violated
Labor Code sections 1102 and 1102 by imposing an implicit policy that tends to
control their employees’ political orientation. This policy would violate the letter
of these sections, whether Plaintiff has legally cognizable damages under
statute, breach of contract or tort law. As such, Plaintiff alleges a violation
of the law, and cites the law. This states a claim under the unlawful prong of
the UCL.
Defendant argues that Plaintiff is not entitled to restitution, because
Plaintiff fails to allege funds that the defendant improperly took from Plaintiff,
or funds to which Plaintiff had an ownership interest. However, Plaintiff also
pleads a claim for injunctive relief, which Defendant concedes is a remedy
under the UCL. Defendant, however,
argues that the request is not for injunctive relief, since she only
asks to be reinstated. While the TAC does allege that Plaintiff requests to be
reinstated, the TAC also requests injunctive relief “prohibiting the
continuation of such business acts and practices[.]” (TAC ¶ 87.) This would be
a proper form of injunctive relief available under the UCL. Thus, Plaintiff’s
UCL claim would not fail for a lack of available remedy.
Defendants also
challenge Plaintiffs’ standing. Private parties can sue under the UCL only
if,¿as a result of¿the violation, they “(1) establish a loss or
deprivation of money or property sufficient to qualify as injury in fact, i.e.,
economic injury, and (2) show that that economic injury was the result of,
i.e., caused by, the unfair business practice or false advertising that is the
gravamen of the claim. (Bus. & Prof. Code § 17204; see¿Kwikset Corp. v.
Superior Court (2011) 51 Cal.4th 310, 322.) There must be a causal link
between the alleged unfair competition and plaintiff's injury; plaintiff must
have lost money or property¿because of¿the challenged act. (Hall v.
Time Inc. (2008) 158 Cal.App.4th 847, 855.) Economic injury may be shown in
a myriad of ways, including that the plaintiff was required to enter into a
transaction that would otherwise have been unnecessary.” (Kwikset
Corp., supra, 51 Cal.4th at 323.) “The phrase ‘as a result of’ in its plain
and ordinary sense means ‘caused by’ and requires a showing of a causal
connection or reliance on the alleged misrepresentation.” (Id. at 326.) The
“causal connection is broken when a complaining party would suffer the same
harm whether or not a defendant complied with the law.” (Troyk v. Farmers
Grp., Inc., (2009) 171 Cal. App. 4th 1305, 1349.)
Plaintiff alleges an economic
injury caused by Defendant’s violation of the law. “As a direct, foreseeable
and proximate result of Defendants’ unlawful actions, Plaintiff has suffered
and continues to suffer substantial losses in earnings and other employment
benefits and has incurred other economic losses.” (TAC ¶ 78.) Plaintiff
alleges an economic injury when she was deprived of her employment due to
Defendant’s decision to not renew the contract due to her political
affiliations. Defendant argues the alleged violation of Labor Code sections was
not the “cause” of the end of Plaintiff’s employment contract, since the
contract expired on its own terms. However, as alleged in the TAC, Defendant
chose not to renew the contract because of her political affiliations, in
violation of the Labor Code. The violation caused the injury, because Plaintiff
would not have suffered the harm if Defendant complied with the law. Notably, this
inquiry is separate from whether Plaintiff states damages under a
contractual, tort or statutory theory.
Accordingly, Defendant’s demurrer is OVERRULED as to the UCL claim.
MTS
– IIED Caption
The motion to strike the IIED caption is
GRANTED. It appears that Plaintiff intended to omit this cause of action, as it
was dismissed by the Court per the prior demurrer.
MTS - Att. Fees
Defendant moves to strike the
request for “attorneys’ fees and costs.” Plaintiffs seek attorneys’ fees pursuant
to Code of Civil Procedure section 1021.5, which permits an award to a
“successful party . . . in any action which has resulted in the enforcement of
an important right affecting the public interest if: (a) a significant benefit
. . . has been conferred on the general public or a large class of persons,
(b) the necessity and financial burden of private enforcement . . . are such as
to make the award appropriate, and (c) such fees should not in the interest
of justice be paid out of the recovery, if any.” (Emphasis added.) The issue is
committed to the trial court’s discretion. (Flannery v. California
Highway Patrol, (1998) 61 Cal.App.4th 629, 634.) The party seeking
attorney fees bears the burden of establishing that its litigation costs
transcend personal pecuniary interests. (Save Open Space Santa Monica
Mountains v. Superior Court, (2000) 84 Cal.App.4th 235, 247; see Families
Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors, (2000) 79
Cal.App.4th 505, 515 [this is a “realistic and practical comparison of the
litigant's personal interest with the cost of suit”].)
Read liberally in favor of the
pleading party, Plaintiff pleads facts which show there would be a benefit conferred
to a large class of persons, which include faculty employed by Defendant who
wish to participate in political activity supporting non-liberal or
conservative causes. (TAC ¶ 81.) If Plaintiff prevails, Defendant would be
enjoined or otherwise prohibited from continuing to enforce discriminatory policies
which direct, control, or tend to direct and/or control a person’s political
affiliations and/or candidacies. This would benefit future faculty and
employees of Defendant. Furthermore, this would be in line with the important public
policy embodied by sections 1101 & 1102. These sections serve to protect “the fundamental right of
employees in general to engage in political activity without interference by
employers.” (See Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979)
24 Cal.3d 458, 487.) Further, such an injunction goes beyond Plaintiff’s
mere pecuniary interests. Therefore, for pleading purposes, Plaintiff states a claim for attorneys’
fees under section 1021.5.
Accordingly, Defendant’s motion to strike
is DENIED.
MTS - Punitive Damages
Plaintiff has not pled sufficient facts to support a claim of punitive
damages under Civil Code section 3294. In order to state a prima facie claim
for punitive damages, a complaint must set forth the elements as stated in the
general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court
(1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that
the defendant has been guilty of oppression, fraud or malice. (Civ. Code § 3294
(a).) “The mere allegation an intentional tort was committed is not sufficient
to warrant an award of punitive damages. [Citation.] Not only must there be
circumstances of oppression, fraud or malice, but facts must be alleged in the
pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct.
(1984) 157 Cal.App.3d 159, 166, fn. omitted.) Section 3294 defines malice as
conduct “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.” (Id.) Despicable is a powerful term used to describe circumstances
that are “base,” “vile,” or “contemptible.” (Coll. Hosp. v. Superior Ct. (1994) 8 Cal.4th 704, 726.) The
statute “plainly indicates that absent an intent to injure the plaintiff,
“malice” requires more than a “willful and conscious” disregard of the
plaintiffs' interests. The additional component of “despicable conduct” must be
found.” (Id.)
Plaintiff’s allegations concerning Defendants’ actions do not rise to the
level of despicable conduct for malice. Plaintiff only provides conclusions
regarding Defendant’s allegedly despicable actions. Plaintiff alleges that
Defendant committed the acts herein despicably, maliciously, fraudulently, and
oppressively, with the wrongful intention of injuring Plaintiff, from an
improper and evil motive amounting to malice, and in conscious disregard of the
rights of Plaintiff. (TAC ¶80.) Such a conclusion is insufficient. The Labor
Code claims do not specifically allege conduct “intended” to harm Plaintiff, or
“despicable” conduct required for a finding of malice.
Accordingly, Defendants’ motion to strike is GRANTED without leave to
amend.
MTS - Restitution
Defendant also moves to strike the allegations concerning restitution. The UCL provides for restitution as a remedy,
which requires a defendant to “restore” money or property (real or personal)
“which may have been acquired by means of [the] unfair competition” (Bus. &
Prof. Code § 17203.) The word “restitution” means the return of money or other
property obtained through an improper means to the person from whom the
property was taken. (Clark v. Sup.Ct. (2010) 50 Cal.4th 605, 614.)The object
t of restitution is “to restore the status quo by returning to the plaintiff
funds in which he or she has an ownership interest.” (Korea Supply Co. v.
Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1149.) Therefore, section
17203 operates only to return to a person those measurable amounts which are
wrongfully taken by means of an unlawful business practice. (Day v. AT &
T Corp. (1998) 63 CA4th 325, 338-339.) Here, there are no allegations showing
that Defendant acquired any money or property from Plaintiff. (TAC ¶ 88.) As such,
restitution would not be an appropriate remedy.
Accordingly, the motion to strike is GRANTED without leave to amend.
MTS - Other
Factual Allegations
The Court is not inclined to grant the
motion as to the relevant cited phrases such as “termination”, “toxic work
environment”, “harassment”, Plaintiff’s reactions to Kabbaz’s email, and other
allegations targeted by the motion. Such allegations are merely factual descriptions
of the non-renewal in plain and ordinary terms. The allegations are not
strictly irrelevant to the remaining claims, even if the TAC states no cause of
action for “termination”, “harassment”, emotional distress, etc.
Accordingly, the motion is DENIED as to
these items.