Judge: Michael P. Linfield, Case: 22STCV19885, Date: 2023-02-15 Tentative Ruling

Case Number: 22STCV19885    Hearing Date: February 15, 2023    Dept: 34

SUBJECT:         Demurrer with Motion to Strike Plaintiff’s First Amended Complaint

Moving Party:  City of Long Beach, Department of Health and Human Services

Resp. Party:    None

Defendant’s Demurrer is OVERRULED.

Defendant’s Motion to Strike is DENIED.

PRELIMINARY COMMENTS:

The Court finds Plaintiff’s non-opposition to this demurrer to be troubling.  If plaintiff believed that the demurrer should be overruled, she should have filed an opposition.  If plaintiff agreed that the complaint needed to be amended, she should have agreed when meeting-and-conferring with defendants to amend the complaint or drop this cause of action.  The Court questions Plaintiff’s (or Plaintiff’s counsel’s) commitment to this case when she does not even oppose a demurrer to would eliminate one of her causes of action.

BACKGROUND:

On June 17, 2022, Plaintiff Rosario Rivas filed her Complaint against Defendant City of Long Beach, Department of Health and Human Services on causes of action regarding Plaintiff’s former employment with Defendant.

On October 17, 2022, Plaintiff filed her First Amended Complaint.

On January 12, 2023, Defendant filed its Demurrer with Motion to Strike Plaintiff’s First Amended Complaint. Defendant concurrently filed its Proposed Order.

On February 7, 2023, Defendant filed its Reply/Notice of Non-Opposition.

ANALYSIS:

I.           Demurrer

A.      Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within).

A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10, subdivision (f)), 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. (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.” (Id.)

B.      Discussion

Defendant demurs against the Complaint solely regarding the fifth cause of action for violation of California Labor Code section 6310, arguing: (1) that Plaintiff failed to exhaust her administrative remedies; and (2) that Plaintiff has not pleaded facts sufficient to support this cause of action.

Plaintiff has not filed an opposition or other response.

The Court disagrees with Defendant’s arguments.

Among other causes of action in her First Amended Complaint, Plaintiff pleads a cause of action pursuant to Labor Code section 6310. This section provides that “[a]ny employee who is discharged, demoted, suspended, or in any other manner discriminated against in the terms and conditions of their employment by their employer because the employee has made a bona fide oral or written complaint to . . . their employer, or their representative, of unsafe working conditions, or work practices, in their employment or place of employment . . . shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.” (Lab. Code, § 6310, subd. (b).)

Further, Labor Code section 6312 provides that “[a]ny employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of Section 6310 or 6311 may file a complaint with the Labor Commissioner pursuant to Section 98.7.” (Emphasis added.) In case it is not clear that section 6312 provides an additional remedy rather than a requirement prior to suing in court, Labor Code section 98.7, subdivision (g) unequivocally states: “[i]in the enforcement of this section, there is no requirement that an individual exhaust administrative remedies or procedures.”

This is confirmed by the Court of Appeal, which considered Labor Code section 6310 after the Legislature’s 2013 amendments to the Labor Code and concluded that plaintiffs do not have to exhaust their administrative remedies under sections 98.7 and 6312. (Sheridan v. Touchstone Television Prod., LLC (2015) 241 Cal.App.4th 508, 510, 512–17.)

The Court is also concerned that all of Defendant’s case citations are to cases that are merely persuasive authority and which were decided prior to the 2013 amendments. “[C]ounsel has a responsibility to the court to accurately present all relevant authority.” (Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 884-885; Tate v. Canonica (1960) 180 Cal.App.2d 898, 900.) That has not happened here.

Plaintiff did not have to exhaust her administrative remedies prior to filing a cause of action under Labor Code section 6310. Further, Plaintiff alleges, among other things, that she was demoted by her employer because of her complaints of unsafe work practices of other employees. (First Amended Complaint ¶ 63.) This is a sufficient allegation to sustain demur.

C.      Conclusion

Defendant’s Demurrer is OVERRULED.

II.        Motion to Strike

A.      Legal Standard¿ 

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.)¿¿¿¿ 

B.      Discussion 

¿ 

Defendant argues that Defendant should be stricken from the First Amended Complaint because Defendant (the City of Long Beach Department of Health and Human Services) is not a separate public entity from the City of Long Beach.  According to Defendant, “The Department of Health and Human Services is not a legal entity separate and apart from the City of Long Beach, and so reference to the same as a Defendant should be striked [sic].”  (Demurrer, p. 3:20-22.)

The Court find this argument hyper-technical and silly.  The Court might grant the requested relief if the City of Long Beach were also sued as a separate defendant. But

Plaintiff – either intentionally or inadvertently – chose to sue Defendant Department of Health and Human Services, and as demurring Defendant City of Long Beach argues, there is no legal difference between the two entities. (Demurrer and Motion to Strike, p. 3:23-24.) It would be a waste of time,  a waste of judicial resources, and a waste of the Parties’ resources to have the Court strike Defendant Department of Health and Human Services from the First Amended Complaint, only for the Court to grant Plaintiff leave to file an amended pleading. The Court also notes that the Demurrer and Motion to Strike was filed by the City of Long Beach, not the City of Long Beach’s Department of Health and Human Services. It is not as if there was any confusion as to whom the correct Defendant is. The Court wonders what Defendant’s client – i.e., the taxpayers of the City of Long Beach – would think of the City spending their money on such an argument.

        “The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings and proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.”  (Code Civ. Proc., § 475; Cal. Const., Art. VI, § 13.)

        Moreover, the authorities cited by Defendant citations do not stand for the proposition that the Court must strike a department that has been sued when the city itself has not been sued. (See Demurrer, p. 3:24-26; Alcala v. City of Corcoran (2007) 147 Cal.App.4th 666 and Vallas v. City of Chula Vista (1976) 56 Cal.App.3d 382, 388.)

C.      Conclusion

Defendant’s Motion to Strike is DENIED.