Judge: Michael P. Linfield, Case: 23STCV12527, Date: 2023-09-13 Tentative Ruling
The Court often posts its tentative several days in advance of the hearing. Please re-check the tentative rulings the day before the hearing to be sure that the Court has not revised the ruling since the time it was posted.
Please call the clerk at (213) 633-0154 by 4:00 pm. the court day before the hearing if you wish to submit on the tentative.
Case Number: 23STCV12527 Hearing Date: September 13, 2023 Dept: 34
SUBJECT: Demurrer
Moving Party: Defendants
Special Service for Groups, Inc. and Deontate Lollis
Resp. Party: Plaintiff Ebone Hurt
SUBJECT: Motion to Strike
Moving Party: Defendants
Special Service for Groups, Inc. and Deontate Lollis
Resp. Party: Plaintiff Ebone Hurt
The Demurrer is
OVERRULED.
The Motion to
Strike is DENIED.
On June 2, 2023, Plaintiff Ebone Hurt filed her Complaint
against Defendants Special Service for Groups, Inc. and Deontate Lollis on
causes of action arising from Plaintiff’s employment with Defendants.
On July 11, 2023, Plaintiff filed her First Amended
Complaint (FAC).
On August 11, 2023, Defendants filed: (1) Demurrer; and
(2) Motion to Strike.
On August 30, 2023, Plaintiff filed her Oppositions to
the Demurrer and the Motion to Strike.
On September 6, 2023, Defendants filed their Replies
regarding the Demurrer and the Motion to Strike. Defendants also filed their
Notice of Errata regarding their Demurrer.
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 Cal., 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
Defendants demur to Plaintiff’s second cause of action (retaliation),
fourth cause of action (failure to prevent discrimination, harassment, and
retaliation), sixth cause of action (wrongful termination in violation of
public policy), and seventh cause of action (defamation).
1. Retaliation
a. Legal
Standard
“To establish a prima facie case of retaliation under the [Fair
Employment and Housing Act] FEHA, a plaintiff must show (1) he or she engaged
in a ‘protected activity,’ (2) the employer subjected the employee to an
adverse employment action, and (3) a causal link existed between the protected
activity and the employer’s action.” (Meeks
v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878–79, brackets omitted.)
“An ‘adverse employment action,’ which is a critical component of a
retaliation claim, requires a substantial adverse change in the terms and
conditions of the plaintiff’s employment.” (Holmes
v. Petrovich Dev. Co., LLC (2011) 191 Cal.App.4th 1047, 1063, quotation
marks omitted.)
b. Discussion
Defendants demur to the second cause of action for retaliation, arguing
that Plaintiff did not state whom she complained to, when she complained to
them, the requisite causal link, and her participation in a protected activity.
(Demurrer, p. 5:10–21.)
The Court disagrees with these arguments.
Among other things, Plaintiff alleges: (1) that she was employed by
Defendants; (2) that Defendant Deontate Lollis, who was Plaintiff’s supervisor,
sexually harassed her and discriminated against her on the basis of sex; (3)
that Plaintiff complained both orally and in writing regarding Defendant
Lollis’s conduct while she was employed; (4) that Defendants terminated
Plaintiff shortly after she made complaints of harassment and discrimination;
and (5) that Plaintiff’s complaints of harassment and discrimination were a
substantial motivating reason for her termination. (FAC, ¶¶ 2, 4–5, 11–13.)
These allegations are sufficiently specific for this cause of action to
withstand demur.
The Court OVERRULES the Demurrer to the
second cause of action for retaliation.
2.
Failure
to Take Reasonable Steps to Prevent Discrimination, Harassment, and Retaliation
a. Legal
Standard
The elements of a cause of action for failure to prevent harassment or
retaliation are: (1) actionable discrimination or harassment by employees or
nonemployees; (2) defendant’s legal duty of care toward plaintiff (i.e.,
defendant is the plaintiff’s employer); (3) breach of that duty (i.e., failure
to take all reasonable steps necessary to prevent discrimination and harassment
from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. N. County Transit Dist. (1998)
63 Cal.App.4th 280, 287, 289; Bradley v.
Dep’t of Corr. & Rehab. (2008) 158 Cal.App.4th 1612, 1630; Gov. Code, §
12940.)
b. Discussion
Defendants demur to the fourth cause of action for failure to take
reasonable steps to prevent discrimination, harassment, and retaliation,
arguing that this cause of action should fail because she has not alleged that
Defendants were aware of any inappropriate behavior constituting harassment,
discrimination, or retaliation. (Demurrer, pp. 5:27–28, 6:1–2.)
The Court disagrees with this argument. The allegations previously
stated above regarding the second cause of action are also sufficient for the
fourth cause of action to withstand demur.
The Court OVERRULES the Demurrer to the fourth cause of action for
failure to take reasonable steps to prevent discrimination, harassment, and
retaliation.
3. Wrongful
Termination in Violation of Public Policy
a. Legal
Standard
“The elements of a claim for wrongful
discharge in violation of public policy are (1) an employer-employee
relationship, (2) the employer terminated the plaintiff’s employment, (3) the
termination was substantially motivated by a violation of public policy, and
(4) the discharge caused the plaintiff harm.” (Nosal-Tabor v. Sharp Chula
Vista Med. Ctr. (2015) 239 Cal.App.4th 1224, 1234, citation omitted.)
“[F]or a policy
to support a wrongful discharge claim, it must be: (1) delineated in either
constitutional or statutory provisions; (2) ‘public’ in the sense that it
‘inures to the benefit of the public’ rather than serving merely the interests
of the individual; (3) well established at the time of the discharge; and (4)
substantial and fundamental.” (Stevenson
v. Super. Ct. (1997) 16 Cal.4th 880, 894.)
b. Discussion
Defendants demur to the sixth cause of action for wrongful termination
in violation of public policy, arguing that this cause of action should fail because
she has not alleged that Defendants were aware of any inappropriate behavior
constituting harassment, discrimination, or retaliation. (Demurrer, p.
6:20–21.)
The Court disagrees with this argument. The allegations previously
stated above regarding the second cause of action are also sufficient for the
sixth cause of action to withstand demur.
The Court OVERRULES the Demurrer to the sixth cause of action for
wrongful termination in violation of public policy.
4. Defamation
a. Legal
Standard
“‘The
sine qua non of recovery for defamation . . . is the existence of
falsehood.’ Because the statement must contain a provable falsehood, courts
distinguish between statements of fact and statements of opinion¿for purposes
of defamation liability.¿Although statements of fact may be actionable as
libel, statements of opinion are constitutionally protected.” (Id.,
quoting Letter Carriers v. Austin (1974) 418 U.S. 264, 283, italics
omitted.)
“[T]he question is not strictly whether the published
statement is fact or opinion. Rather, the dispositive question is whether a
reasonable fact finder could conclude the published statement declares or
implies a provably false assertion of fact.” (Franklin v. Dynamic Details,
Inc. (2004) 116 Cal.App.4th 375, 385, citations omitted.)
“Whether a statement declares or implies a provable false
assertion of fact is a question of law for the court to decide, unless the
statement is susceptible of both an innocent and a libelous meaning, in which
case the jury must decide how the statement was understood.” (Id.)
“To determine whether a statement is actionable fact or nonactionable
opinion, we apply a totality of the circumstances test pursuant to which we
consider both the language of the statement itself and the context in which it
is made.” (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696,
citation omitted.)
b. Discussion
Defendants demur to the seventh cause of action for defamation,
arguing: (1) that Plaintiff’s allegations are mere conclusions and fail to
allege specific facts, including who made the defamatory statements, the actual
statements made, the recipients of the statements, and whether the statements
were uttered or published; (2) that that the alleged statements are
unactionable opinions; and (3) that the alleged statements are subject to the
common interest privilege under Civil Code section 47, subdivision (c).
(Demurrer, pp. 7–9.)
The Court disagrees with these arguments.
Among other things, Plaintiff alleges: (1) that Defendant Lollis and
other employees, managing agents, directors, and/or executives of Defendant
Special Service For Groups, Inc. purposely and maliciously published and
republished certain statements which stated, insinuated, and/or suggested that
Plaintiff was dishonest, of low moral character, and/or made threats of
violence; (2) that Defendant Lollis specifically stated that Plaintiff
threatened him, which insinuated Plaintiff behaved dishonorably in her
profession and was responsible for a criminal act(s) and/or threats; (3) that
these statements and publications were false; and (4) that Defendant Lollis and
others continued publishing and republishing the same or similar defamatory and
false statements and/or insinuations. (FAC, ¶ 69.)
These allegations are sufficiently specific to withstand demur on the
grounds of uncertainty and/or lack or specificity.
Further, a reasonable trier of fact could find these statements declare
of imply provably a false assertion of fact. Further resolution of this issue
is thus not suitable for resolution on demur.
Finally, “[u]nder the ‘common-interest privilege,’ codified in California in Civil Code section 47,
subdivision (c) (hereafter section 47(c)), a defendant who makes a statement to others on a matter of common interest is immunized
from liability for defamation so long as the statement is made ‘without
malice.’” (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1196.) The burden
of proof for proving that there was malice in fact is on the party asserting
the privilege, and whether such a fact does or does not exist is a question not
suitable for resolution on demur.” (Id. at p. 1207.)
The Court OVERRULES the Demurrer to the
seventh cause of action for defamation.
C. Conclusion
The 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, subd. (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. (Cal. 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, subd. (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. Mun. Ct. (1979) 99 Cal.App.3d 568, 575.)
B. Discussion
Defendants move to strike various allegations and prayers for relief
that involve punitive damages.
Plaintiff is entitled to make these
allegations in her Complaint. These allegations are not irrelevant, false, or
improper. It will ultimately be Plaintiff’s burden to prove with admissible
evidence that she is entitled to the relief she seeks.
“The court must, in every
stage of an action, disregard any error, improper ruling, instruction, or
defect, in the pleadings or proceedings which, in the opinion of said court,
does not affect the substantial rights of the parties. . . .” (Code Civ. Proc.,
§ 475.)
Here, the
pleading of various allegations and prayers for relief involving punitive
damages do not affect the substantial rights of the Parties.
The Court DENIES the Motion to Strike.
C. Conclusion
The Motion to Strike is DENIED.