Judge Michael Shultz, Case Number: 23STCV25496, Date: 2024-12-05 Tentative Ruling

[TENTATIVE] ORDER SUSTAINING DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND

The first amended complaint alleges that Defendants employed Plaintiff as a receptionist for nearly 21 years. Plaintiff alleges that Defendants engaged in harassing and discriminating conduct and retaliated against Plaintiff and ultimately terminated her employment when she was 45 years old. Plaintiff alleges six causes of action for discrimination, harassment, retaliation, and related claims in violation of the Fair Employment and Housing Act (“FEHA”), and a tort claim for wrongful termination.

Defendant, Air Tiger Express (USA), Inc. (“Defendant”) demurs to the sixth cause of action for wrongful termination in violation of public policy on grounds the claim is barred by the two-year statute of limitations. (Code Civ. Proc., § 335.1.)

Plaintiff argues that the claim is not barred by the statute of limitations. The principle cited by Defendant is in conflict with another opinion which this court should follow. Alternatively, the doctrine of equitable tolling applies as Plaintiff had several legal remedies, and reasonably pursued one of those remedies in good faith.

In reply, Defendant argues that the court sustained Defendant’s demurrer to the complaint on this issue, and Plaintiff has not alleged new facts to avoid the statute of limitations bar. Plaintiff is improperly re-arguing issues already adjudicated by this court.

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the complaint’s sufficiency, the court must assume the truth of the properly pleaded factual allegations as well as facts that can be reasonably inferred from those expressly pleaded facts. The court may also consider matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity that is sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) Whether the Plaintiff will be able to prove the pleaded facts is irrelevant. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

A demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing, they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ. Proc., § 430.10(f).)

A pleading is required to assert general allegations of ultimate fact. Evidentiary facts are not required. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47; Lim v. The.TV Corp. Internat. (2002) 99 Cal. App. 4th 684, 690.) However, unlike federal courts, California state courts are not a notice pleading jurisdiction, and notice alone is not a sufficient basis for any pleading. California is a fact pleading jurisdiction. Merely putting an opposing party on notice is not sufficient. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561; see Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.)

On May 17, 2024, the Hon. Anne Richardson heard Defendant’s demurrer to Plaintiff’s complaint, and in relevant part, sustained Defendant’s demurrer to the fifth cause of action for wrongful termination in violation of public policy on grounds it was barred by the statute of limitations having been filed more than two years from the date of accrual, which is the date of the alleged termination. (M.O. 5/17/24, p.7.) The court acknowledged the perceived conflicts between Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367 cited by Defendant, and and Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402 on which Plaintiff relies relative to the statute of limitations on the wrongful termination claim. Judge Richardson determined that the two-year statute of limitations applied to bar Plaintiff’s wrongful termination claim, as articulated by Prue. However, the court allowed leave to amend in the event Plaintiff could allege additional facts to avoid the statute of limitations. (M.O. 5/17/24, p. 9.)

B. The statute of limitations on a claim for wrongful termination in violation of public policy is two years.

Defendant relies on Prue which determined that the two-year statute of limitations applicable to claims for personal injury governed because the primary nature sued upon was personal. (Prue at 1382.) Plaintiff contends that because her common law tort claim is based on policy set forth under FEHA, the tort claim was “tethered” to the FEHA claims such that the limitations period applicable to the statutory claim governs.

In the first instance, Plaintiff is articulating the same argument made in opposition to Defendant’s demurrer to the complaint, and which Judge Richardson already rejected. Here, Plaintiff continues to urge the court that it should adopt the “tethering” principle applied in Acuna to avoid the two-year statute of limitations. Judge Richardson allowed leave to amend to add additional facts that would otherwise affect the two-year statute of limitations. Plaintiff does not discuss any new facts that would warrant a different outcome.

Plaintiff alleges that she was terminated from employment on March 24, 2020. (Complaint, ¶ 12.) The two-year limitations period expired on March 24, 2021. Plaintiff commenced this action on October 18, 2023.

Plaintiff’s equitable tolling argument was previously rejected by Judge Richardson because the two-year statute of limitations had already expired before any administrative process under the FEHA had been invoked. (M.O. 5/17/24, p. 7.)

Based on the foregoing, Defendant’s demurrer to Plaintiff’s first amended complaint is SUSTAINED. Plaintiff was previously given leave to amend to allege facts that would avoid the statute of limitations. As Plaintiff has not offered any new facts that would warrant a different outcome, leave to amend is DENIED. Defendant is ordered to file its answer within 10 days.

[1] The former statute has under which Barton was decided has since been amended to extend the statute of limitations to two years. (Code Civ. Proc., § 335.1.)