Judge Michael J. Strickroth, Case 2022-01273960 2023-07-24 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2022-01273960, Date: 2023-07-24 Tentative Ruling

Demurrer to Petition

Respondent, California Unemployment Insurance Appeals’ (Respondent) Board Demurrer to Petitioner’s Petition and Complaint (Demurrer) is OVERRULED in part and SUSTAINED in part with 20 days leave to amend.

Respondent’s Request for Judicial Notice is granted as to the existence and legal significance of items 1, 6, 9, 11, 12, 16 and otherwise denied. Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1090[“Courts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents.”]

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. Code of Civil Procedure § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Additionally, a defendant may demur on the grounds the pleading is uncertain. Code Civ. Proc., § 430.30, subd. (f). 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. “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.” Code Civ. Proc., § 452; Stevens v. Superior Court (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.)

Respondent demurs to Petitioner’s Petition and Complaint on the following grounds:

1.The petition for writ of administrative mandate fails to name an indispensable real party in interest Secret Pho Restaurant

2.The petition for writ of administrative mandate fails to state facts sufficient to constitute a cause of action

3.The claim for intentional infliction of emotional distress fails to state facts sufficient to constitute a cause of action because Petitioner does not allege compliance with the Government Claims Act

4.The claim for intentional infliction of emotional distress fails to state facts sufficient to constitute a cause of action because of quasi-judicial discretionary immunity.

On 5-15-23, Respondent’s Demurrer previously came on for hearing. The Court continued the Demurrer to allow Petitioner to file a response, if any, to Respondent’s new evidence filed with its reply. Petitioner has not filed any response to date.

Demurrer to Petition for Administrative Writ of Mandate

First, Respondent demurs to the petition for administrative writ of mandate on the grounds it fails to name Secret Pho Restaurant, who is an indispensable party. (Demurrer, 5:14-6:27.)

An indispensable party is defined as a party who fits any of the following characteristics:

(1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. Code Civ. Proc., § 389, subd. (a); see Hartman Ranch Co. v. Associated Oil Co. (1937) 10 Cal.2d 232, 262 [“a person is an indispensable party when the judgment to be rendered necessarily must affect his rights”].) If any such persons are not named as parties to the lawsuit, the complaint must state their names (if known) and the reasons why they have not been joined. Code Civ. Proc., § 389, subd. (c).

The Opposition does not specifically respond to Respondent’s argument regarding indispensable party.

In Reply, Respondent submits various Secretary of State documents from Secret Pho Restaurant for the argument that Petitioner was an employee of Secret Pho Restaurant.

As discussed above, the Court grants judicial notice only as to the existence and legal significance of Secret Pho Restaurant’s Secretary of State documents. Because the Court does not consider the truth of the matters stated in these documents, the Court rejects Respondent’s argument that they demonstrate Secret Pho Restaurant is an indispensable party at the pleadings stage.

Here, the Petition alleges Petitioner worked for Secret Pho Restaurant “as an independent contractor” (Petition, 2:17-21.) Further, the Petition and Complaint seek relief from the Defendant regarding its decision on Petitioner’s unemployment claim and does not seek relief from Secret Pho Restaurant.

In ruling on a demurrer, the Court “assume[s] the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247. Because the Court is required to assume the truth of the Petition’s allegations, the question of whether the ABC Test applies to Petitioner’s employment at Secret Pho Restaurant is not a question to be determined on demurrer.

Second, Respondent argues the Petition fails to plead facts sufficient to constitute a cause of action for the following reasons: (1) the Petition relies on Exhibit B, a document not part of the administrative record, and (2) the Petition alleges in a conclusory fashion that Petitioner worked as an “independent contractor” for Secret Pho Restaurant without alleging facts demonstrating that he was employed as an independent contractor. (Demurrer, 7:3-8:3.)

Respondent’s authority does not support the argument a Court may strike a document by demurrer which is not part of the underlying administrative record. Further, the Court has found Petitioner’s allegation that he is an independent contractor is sufficient for the pleadings stage.

Therefore, Respondent’s demurrer to the petition for administrative writ of mandate is overruled.

Demurrer to Claim for Intentional Infliction of Emotional Distress

Respondent contends Petitioner’s claim for intentional infliction of emotional distress is NOT sufficiently pled because Petitioner did not allege compliance with the Government Claims Act. (Demurrer, 8:6-23.)

Lawsuits against government entities must comply with the Government Claims Act of Government Code section 945.4, which provides: “[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board.” Gov. Code, § 945.4. At the pleading stage, the plaintiff is required to allege compliance with, or excuse from compliance with, the requirements of the Government Claims Act. State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239 [“We conclude that failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action”].) Omission of the necessary allegations about the claims filing requirements gives rise to a general demurrer for failure to state a cause of action. Id.; Dujardin v. Ventura County General Hosp. (1977) 69 Cal.App.3d 350, 355[“Timely compliance with the claim filing requirements and rejection of the claim by the governmental agency must be pleaded in a complaint in order to state a cause of action.”]

Petitioner’s Opposition does not respond to Respondent’s argument about the Government Claims Act.

The Court has reviewed the Petition and finds Petitioner has not alleged compliance with the Government Claims Act as required. Therefore, the Court SUSTAINS Respondent’s Demurrer to the IIED claim on this basis.

Petitioner is granted 20 days leave to amend.

Because the demurrer as to the claim for intentional infliction of emotional distress is sustained based upon non-compliance with the Governmental claims Act, the Court does not address the argument regarding quasi-judicial discretionary immunity at this time.

Respondent to give notice.

Case Management Conference

Regardless whether the parties submit on the tentative, counsel for the parties are to appear, either remotely or in person, for the Case Management Conference.