Judge: Michelle Williams Court, Case: 22STCV11417, Date: 2022-09-16 Tentative Ruling
Case Number: 22STCV11417 Hearing Date: September 16, 2022 Dept: 74
22STCV11417 ANGEL
BASULTO vs ANTELOPE VALLEY MEDICAL CENTER
Defendant Antelope Valley Healthcare District’s Demurrer
and Motion to Strike Portions of the First Amended Complaint
TENTATIVE RULING:
The demurrer is SUSTAINED without leave to amend as to the first
cause of action and thirteenth cause of action. The demurrer is OVERRULED as to
all other causes of action. The motion to strike is GRANTED without
leave to amend as to paragraphs 96, 101, 106, 110, 115, 119, 123, 127, 131, 136, 141, 146,
151, 156, 161, 165, 169, 174, as well
as the prayer for punitive damages. The motion is DENIED as to paragraph 92 and
MOOT as to paragraph 94. Defendant shall
have 20 days to answer the First Amended Complaint.
Background
On April 4,
2022, Plaintiff Angel Basulto filed this employment action against Defendants Antelope
Valley Medical Center, Alberto Dominguez, and Joe Lach. Plaintiff filed the
First Amended Complaint on July 6, 2022 asserting eighteen causes of action related
to medical leave and whistleblower retaliation as well as harassment and
discrimination based upon disability, taking leave, ancestry (Latino), gender (male),
and sexual orientation (heterosexual perceived as homosexual).
Demurrer
and Motion to Strike
Defendant Antelope Valley Healthcare
District demurs to each cause of action asserted in the complaint on the
grounds that Plaintiff failed to state sufficient facts to constitute any of
the causes of action asserted.
Defendant
also moves to strike paragraph 92 and 94 from the complaint as well as all
allegations related to punitive damages.
Opposition
In
opposition, Plaintiff contends the second through eighteenth causes of action and
the punitive damage allegations are adequately alleged. Plaintiff does not address
the first cause of action.
Reply
In reply, Defendant
reiterated its original arguments.
Meet and Confer
Defendant
submitted the declaration of Charlene
Busch, which satisfies the requirements of Code of Civil Procedure sections 430.41 and 435.5.
Judicial
Notice
Defendant
requests the Court take judicial notice of
the Public Employment Relations Board
complaint filed by Plaintiff and the “Overview of Health Care Districts,
prepared by the Legislative Analyst’s Office for the Assembly Accountability
and Administrative Review Committee, dated April 11, 2012.” These requests are GRANTED.
(Evid. Code § 452(c); 452(h).)
Demurrer
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. (Code Civ. Proc., §§ 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 complaint need not allege evidentiary facts noting plaintiff’s
proof. (C.A. v. William S. Hart Union
High School Dist. (2012) 53 Cal.4th 861, 872.) 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.)
A special demurrer to a complaint is
appropriate when the grounds of the pleading are uncertain, ambiguous, or
unintelligible. (Code Civ. Proc. § 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207
Cal.App.3d 1180, 1191.) Courts typically disfavor demurrers based on uncertainty,
which the court strictly construes even when the pleading is uncertain in some
respects. (Khoury
v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
If the demurrer is sustained, plaintiff
must prove the possibility of cure by amendment. (Czajkowski v. Haskell & White, LLP (2012) 208
Cal.App.4th 166, 173 (citing Grinzi v.
San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79).) Leave
to amend must be allowed where there is a reasonable possibility of
successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th
86, 92.)
Wrongful
Termination in Violation of Public Policy - First Cause of Action
The first cause of action asserts a
common law claim for wrongful termination in violation of public policy against
Defendant Antelope Valley Healthcare District. As argued by Defendant, it is a
special district and therefore considered a public entity to which the
Government Claims Act applies. (Gov. Code §§ 811.2; Health & Saf. Code, §
32492.) Accordingly, Plaintiff’s common law cause of action for wrongful
termination, also known as a Tameny claim, cannot be asserted against
Defendant. (Miklosy v. Regents of University of California (2008) 44
Cal.4th 876, 900 (“section 815 bars Tameny actions against public
entities.”); Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320,
329 (“Lloyd's fifth cause of action against the County, a Tameny claim
for wrongful termination in violation of public policy, fails to state a
claim.”).) Plaintiff does not address this cause of action in the opposition.
The demurrer to the first cause of
action is SUSTAINED without leave to amend.
Plaintiffs’ Claims Must be Alleged with
Particularity
Defendant notes each of the other
causes of action asserted in the complaint are based upon statutes and asserted
against a public entity and therefore must be pled with particularity. (See
e.g. Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790
(noting “the general rule that statutory causes of action must be pleaded with
particularity”); Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 604 (“we apply the general rule that facts in support of each
of the requirements of a statute upon which a cause of action is based must be
specifically pled.”); Peter W. v. San Francisco Unified Sch. Dist.
(1976) 60 Cal.App.3d 814, 819 (“to state a cause of action against a public
entity, every fact material to the existence of its statutory liability must be
pleaded with particularity.”); Mittenhuber v. City of Redondo Beach (1983)
142 Cal.App.3d 1, 5 (“General allegations are regarded as inadequate.”).)
Defendant argues the complaint fails to
meet this standard, (Dem. at 6:24-9:14), and particularly argues the complaint
does not allege facts supporting the inference that Defendant ratified or
authorized any of the conduct alleged. (Id. at 7:12:9:14.) While the “complaint
employs the disfavored shotgun (or ‘chain letter’) style of pleading, wherein
each claim for relief incorporates by reference all preceding paragraphs, which
often masks the true causes of action,” (International Billing Services,
Inc. v. Emigh (2000) 84 Cal.App.4th 1175, 1179), the FAC contains detailed
allegations. (FAC ¶¶ 13-92.)
The complaint also alleges facts, not
legal conclusions, supporting ratification, including Plaintiff following
Defendant’s policies regarding reporting issues, Defendant’s failure to take
remedial action, Defendant’s insistence that the termination was final, and
allegations indicating the individuals involved had unfettered discretion over
certain policies, including “whether and how to investigate and discipline . .
. discrimination, retaliation and harassment and other legal compliance.” (FAC ¶¶
17, 89-92. See e.g. Hart v. National Mortgage
& Land Co. (1987) 189
Cal.App.3d 1420, 1432 (“We believe under the doctrine of ratification,
[Citations] Hart may state a cause of action by alleging National was aware of
Campbell’s acts in jumping on, grabbing and pinching him, and did nothing to
discipline him.”); Fisher v. San
Pedro Peninsula Hospital (1989)
214 Cal.App.3d 590, 621 (“ratification may be inferred from the fact that the
employer, after being informed of the employee's actions, does not fully
investigate and fails to repudiate the employee's conduct by redressing the
harm done and punishing or discharging the employee.”); Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 372 (“Lochner,
as Kiewit's EEO officer, had the duties and responsibilities to enforce its
policies against discrimination, retaliation, and harassment based on gender
and other protected classes. A trier of fact could therefore reasonably infer
he had the authority and discretion regarding enforcement of those policies
because he did not conduct, or direct anyone else to conduct, an investigation
regarding the portable toilet incident.”).) While the FAC alleges supervisor
Dominguez was fired and Lisa Walker was demoted, (FAC ¶ 74), it does not state these
actions were due to Defendant’s investigation into Plaintiff’s complaints. The
Court addresses the sufficiency of Plaintiff’s allegations as they relate to
each cause of action.
CFRA Retaliation – Second Cause of
Action
“[T]he elements of a cause of action
for retaliation in violation of CFRA under the circumstances of this case are
as follows: (1) the defendant was an employer covered by CFRA; (2) the
plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff
exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff
suffered an adverse employment action, such as termination, fine, or
suspension, because of her exercise of her right to CFRA leave.” (Dudley v.
Department of Transp. (2001) 90 Cal.App.4th 255, 261.)
The second cause of action alleges “Employer
took adverse employment actions against Plaintiff in retaliation for
Plaintiff’s attempts to and exercise of Plaintiff’s rights to medical leave
under Govt. Code § 12945.2, and in retaliation for Plaintiff’s opposition to
Employer’s interference with Plaintiff’s rights.” (FAC ¶ 99.)
Defendant contends the FAC “does not
allege any facts which would support an inference that Plaintiff’s termination
in September of 2019 was in retaliation for leave he took in April, May, and
June.” (Dem. at 9:5-8.) However, the Court agrees with Plaintiff that the
allegations are sufficient at the pleading stage. (Opp. at 3:9-23.)
“A long period between an employer's
adverse employment action and the employee's earlier protected activity may
lead to the inference that the two events are not causally connected.
[Citation] But if between these events the employer engages in a pattern of
conduct consistent with a retaliatory intent, there may be a causal
connection.” (Wysinger v. Automobile Club of Southern California (2007)
157 Cal.App.4th 413, 421.) The FAC alleges Plaintiff returned to work from
leave on June 7, 2019 and was met by Supervisor Walker making the “cuckoo sign motion.”
(FAC ¶ 75.) On June 20, 2019, the same supervisor “handed Plaintiff a
Disciplinary Action form, which stated that a harassment allegation was brought
to Employer’s HR Department by an anonymous employee” and “Plaintiff was never
told specific details about the allegations or formally interviewed.” (FAC ¶ 79.)
Plaintiff reported harassing flyers that “displayed Plaintiff’s face and full
name” that were put up around his workplace and Defendant’s Director of HR did
nothing to investigate. (FAC ¶ 80.) On August 31, 2019, Defendant informed
Plaintiff he would be terminated for failing to renew his ARRT certification,
even though Plaintiff “responded that he had renewed two days prior, and handed
the proof of compliance to Supr. Walker” and “several co-workers did not have
ARRT certifications at all, and did not face any reprimand or termination.”
(FAC ¶ 83.) These allegations are sufficient at the pleading stage to causally
connect Plaintiff’s leave with his termination.
The demurrer is OVERRULED as to the
second cause of action.
Medical Leave Discrimination – Third
Cause of Action
The third cause of action alleges “[o]n
information and belief, Employer discouraged Plaintiff from taking and denied
Plaintiff medical leave from work in violation of Govt. Code § 12945.2, in part
by terminating Plaintiff’s employment to prevent Plaintiff from taking medical
leave from work in the future.” (FAC ¶ 104.)
Pursuant to Government Code section
12945.2(q), “[i]t shall be an unlawful employment practice for an employer to
interfere with, restrain, or deny the exercise of, or the attempt to exercise,
any right provided under this section.” This includes discouraging leave. (Cal.
Code Regs., tit. 2, § 11094(a) (“‘Interfering with’ the exercise of an
employee’s rights includes, for example, refusing to authorize CFRA leave and
discouraging an employee from using such leave.”).) In opposition, Plaintiff
argues the FAC alleges he was denied CFRA leave and was discouraged from taking
it. (Opp. at 3:24-5:4.) The FAC alleges Plaintiff took protected leave, but was
not properly credited with having taken protected leave. (FAC ¶¶ 54, 60, 61, 86.)
Additionally, the FAC alleges Defendant’s supervisory employees discouraged
Plaintiff from taking leave. (FAC ¶¶ 64, 69, 75.) The allegations are
sufficient.
The demurrer is OVERRULED as to the
third cause of action.
Family Leave – Fourth through Seventh Causes
of Action
The fourth through seventh causes of
action are asserted based upon Plaintiff’s use of family medical leave.
The fourth cause of action, captioned
“retaliation for exercising rights for family leave,” alleges “Plaintiff
opposed Employer’s interference with his exercise of his family medical leave
rights” and “Employer removed responsibilities from and otherwise discriminated
against Plaintiff in the terms, conditions and existence of Plaintiff’s
employment.” (FAC ¶ 108.)
The fifth cause of action captioned
“family care leave discrimination,” alleges “Employer discouraged Plaintiff
from taking and denied Plaintiff medical leave from work in violation of Govt.
Code § 12945.2, in part by terminating Plaintiff’s employment to prevent
Plaintiff from taking family medical leave from work in the future.” (FAC ¶
113.)
The sixth and seventh causes of action
are captioned kin care leave retaliation and discrimination, respectively, and
assert claims pursuant to Labor Code section 233 based upon alleged retaliation
and discouragement from taking kin care leave. (FAC ¶¶ 117, 121.) Labor Code
section 233(c) provides “[a]n employer shall not deny an employee the right to
use sick leave or discharge, threaten to discharge, demote, suspend, or in any
manner discriminate against an employee for using, or attempting to exercise
the right to use, sick leave to attend to an illness or the preventive care of
a family member, or for any other reason specified in subdivision (a) of
Section 246.5.”
The FAC alleges “[o]n or about February
6, 2019, Plaintiff informed Supr. Dominguez in-person that he needed to take
time off work the next few days to take care of his brother following surgery.
. . . Plaintiff was out until February 8, 2019.” (FAC ¶ 42.) Plaintiff alleges on
April 1, 2019, he “received a Disciplinary Action for Supr. Dominguez for
excessive absences at work . . . [because] Plaintiff had used up all his sick
days in January.” (FAC ¶ 60.) Plaintiff explained he took the days for family
leave, to which “Dominguez replied that Plaintiff did not get excused time off
for family care leave.” (Ibid.) Plaintiff filed a grievance with Human
Resources and “the HR Representative promised Plaintiff that these days would
be reinstated as kin care days, and Plaintiff would get his sick days back.” (FAC
¶ 61.) Plaintiff did not receive those days back and the Disciplinary Action
was still in his file as of his termination. (FAC ¶ 86.)
Defendant acknowledges that the FAC
alleges Plaintiff’s family leave days were not properly accounted for and he
received a disciplinary action due to his leave. (Dem. at 9:26-10:4.) Defendant
argues, without authority, that these allegations “do not support claims for
retaliation and discrimination, based on an alleged wrongful termination.”
(Dem. at 9:14-10:4; Reply at 3:25-4:17.) Plaintiff’s claims are not limited to
termination. (FAC ¶¶ 108-109, 113, 117-118, and 121.) Additionally, the FAC
alleges facts supporting Defendant’s hostility toward Plaintiff’s use of the
time off and alleges it was a substantial motivating factor for his
termination. The Court finds the allegations sufficient at the pleading stage.
The demurrer is OVERRULED as to the
fourth through seventh causes of action.
Disability Based FEHA Claims – Eighth Through
Twelfth Causes of Action
The eighth through twelfth causes of
action are disability-related FEHA claims: retaliation for requesting
accommodations, (FAC ¶ 125), failure to engage in interactive process, (FAC ¶
129), failure to accommodate, (FAC ¶ 134), disability discrimination, (FAC ¶ 139),
and disability harassment. (FAC ¶ 143.)
Plaintiff alleges he suffered from
panic attacks and anxiety that required accommodations “including but not
limited to period time off work for medical treatment and recuperation from
flare ups of symptoms, rest breaks during work, and workplace accommodations.”
(FAC ¶ 63.)
Defendant generally contends the eighth
through twelfth causes of action are not sufficiently alleged. (Dem. at
10:4-11:5.) The FAC alleges Defendant would not count Plaintiff’s leave due to
an anxiety attack as FMLA/CFRA leave, (FAC ¶ 67), two different supervisors
made a “cuckoo sign” to Plaintiff regarding his time off and disability, (FAC
¶¶ 69, 75), and alleges a series of events that ended in his termination. (FAC
¶¶ 75-83.) Plaintiff alleges Defendant was aware of Plaintiff’s disability and
failed to engage in the interactive process or provide accommodations. (FAC ¶¶ 68,71,
73, 129, 134.) “Once notified of a disability, the employer’s burden is to take
positive steps to accommodate the employee's limitations.” (Brown v. Los
Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1108.) The
Court finds the allegations sufficient at the pleading stage.
Defendant also contends the
accommodation related allegations in the FAC render it a sham pleading. (Dem.
at 11:6-12:14; Reply at 4:21-5:15.) Defendant notes the original complaint
alleged Plaintiff was “[a]t all times . . . qualified for Plaintiff’s job
position with Employer, and could perform all essential functions of
Plaintiff’s job, and of reasonably available alternative positions of Employer,
either with or without reasonable accommodations, without unreasonably
endangering Plaintiff’s or anyone else’s health or safety.” (Compl. ¶ 64.) The
FAC removed “or without” from this allegation. (FAC ¶ 63.) As noted by
Plaintiff, the “with or without” language is a common framing of causes of
action based upon disability. (See e.g. Green
v. State of California (2007) 42 Cal.4th 254, 263 (“it is reasonable to
require a plaintiff who alleges a FEHA violation as a basis for recovery to prove
the elements of a claim for violation of the Act, including by proving the
element that the defendant impermissibly discriminated because the plaintiff
was able to do the job with or without reasonable accommodation.”).)
Additionally, “[u]nder the sham pleading doctrine,
allegations in an original pleading that rendered it vulnerable to demurrer or
other attack cannot simply be omitted without explanation. The purpose of the doctrine is to enable the
courts to prevent an abuse of process.
The doctrine is not intended to prevent honest complainants from
correcting erroneous allegations or to prevent the correction of ambiguous
facts. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751 (internal citation
omitted).) The general statement in paragraph 64 of the original complaint was
belied by the more specific allegations regarding Plaintiff’s disability and
the need to take leave from work. Defendant cites Plaintiff’s PERB complaint,
(Dem. at 11:23-12:11), as evidence that Plaintiff did not raise disability
issues therein, which is irrelevant. Plaintiff’s amended allegation does not
fall within the sham pleading doctrine.
The demurrer to the eighth through
twelfth causes of action is OVERRULED.
Sexual Harassment – Thirteenth Cause of
Action
“To establish a prima facie case of
harassment, [Plaintiff] must show that (1) []he is a member of a protected
class; (2) []he was subjected to unwelcome harassment; (3) the harassment was
based on [his] protected status; (4) the harassment unreasonably interfered
with [his] work performance by creating an intimidating, hostile, or offensive
work environment; and (5) defendants are liable for the harassment.” (Galvan
v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563.) “[A]n employee
claiming harassment based upon a hostile work environment must demonstrate that
the conduct complained of was severe enough or sufficiently pervasive to alter
the conditions of employment and create a work environment that qualifies as
hostile or abusive to employees because of their sex.” (Miller v. Department
of Corrections (2005) 36 Cal.4th 446, 462.)
“The employer is liable for harassment
by a nonsupervisory employee only if the employer (a) knew or should have known
of the harassing conduct and (b) failed to take immediate and appropriate
corrective action. [Citation.] This is a negligence standard. (State Dept.
of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041.) “[U]nder
the FEHA, an employer is strictly liable for all acts of [] harassment by a
supervisor.” (Id. at 1042.)
As argued by Defendant, the FAC does
not contain any specific allegations indicating Plaintiff was harassed based
upon his gender. In opposition, Plaintiff merely cites allegations regarding
sexual orientation harassment, which is a separate protected class. (Opp. at
11:3-13:2.) Plaintiff does not provide any authority supporting his contention
that “the remarks about sex and sexual orientation are so closely related they
both combine to create an overall hostile environment in support of both
claims.” (Opp. at 11:1-2.) The legal conclusions in the FAC are insufficient to
allege a claim for harassment based upon gender, rather than harassment based
upon other protected classes.
The demurrer is SUSTAINED. Based upon
the allegations in the FAC and the arguments made by Plaintiff, it does not
appear Plaintiff has any additional facts which would support a claim for
harassment based upon gender. Accordingly, the Court shall not provide leave to
amend. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th
72, 78 (“the burden of demonstrating a reasonable possibility that the defect
can be cured by amendment is squarely on the plaintiff.”); Cooper v. Leslie
Salt Co. (1969) 70 Cal.2d 627, 636 (“Plaintiff must show in what manner he
can amend his complaint and how that amendment will change the legal effect of
his pleading.”).)
Sexual Orientation Harassment and
Ancestry Harassment – Fourteenth and Fifteenth Causes of Action
The FAC alleges Plaintiff was subjected
to harassment by a non-supervisory employee based upon a perception that he was
homosexual and based upon his Latino ancestry. (FAC ¶¶ 15-17.) Plaintiff
reported the harassment to his supervisor, as directed by Defendant’s policy,
and no action was taken. (FAC ¶ 17.) This conduct interfered with Plaintiff’s
ability to work. (FAC ¶¶ 153, 158.) Defendant does not cite any authority for
its contention that these allegations are insufficient. (Dem. at 13:3-19; Reply
at 7:17-8:6.) The Court finds the FAC adequately states causes of action for harassment
based upon sexual orientation and ancestry. (State Dept. of Health Services,
supra, 31 Cal.4th at 1041.) The demurrer is OVERRULED as to the fourteenth
and fifteenth causes of action.
Retaliation for Opposing FEHA
Violations and Whistleblower Retaliation – Sixteenth and Eighteenth Causes of
Action
The sixteenth and eighteenth causes of
action allege Defendant took adverse employment actions against Plaintiff in
retaliation for his opposition to Defendant’s violations of FEHA and other
laws. (FAC ¶¶ 163, 171.)
Defendant does not cite any authority
in support of its demurrer to these causes of action and argues the allegations
in the FAC are insufficient. (Dem. at 13:20-14:2, 14:16-15:5; Reply at 8:7-9:2,
9:16-10:7.) Plaintiff alleges he consistently reported numerous FEHA and other
legal violations to his supervisor as required by Defendant’s policies. (FAC ¶¶
17, 21, 25, 31, 34-36, 38, 39, 44, 48, 55, 57, 58.) The FAC alleges Plaintiff
responded to the June 20, 2019 Disciplinary Action that “these allegations were
false, and made as retaliation for his reports of sexual and racial harassment
to Employer.” (FAC ¶ 79.) On August 28, 2019, Plaintiff was notified his ARRT
certification was set to expire and he “was placed on suspension, and not allowed
to return to work until the certification was done.” (FAC ¶ 81.) The following
day, Plaintiff was called into a meeting wherein he “brought up concerns
regarding race favoritism.” (FAC ¶ 82.) Plaintiff was terminated the next day,
based upon an assertion that he failed to renew his ARRT certification. (FAC ¶
83.) The Court finds the allegations sufficient to state claims for
retaliation.
The demurrer is OVERRULED as to the
sixteenth and eighteenth causes of action.
Failure to Prevent Harassment,
Discrimination, and Retaliation – Seventeenth Cause of Action
Government Code section 12940(k) makes
it unlawful “[f]or an employer, . . . to fail to take all reasonable steps
necessary to prevent discrimination and harassment from occurring.” Defendant
does not cite any relevant authority in its discussion of this cause of action.
(Dem. at 14:3-15; 9:3-14.) As noted above, the complaint alleges Plaintiff was
subjected to harassment, reported the harassment, and no actions were taken. (FAC
¶¶ 15-17.) Additionally, Defendant confirmed his termination was final. (FAC ¶
89.) The FAC adequately states a claim for failure to prevent harassment,
discrimination, and retaliation under FEHA. The demurrer to the seventeenth
cause of action is OVERRULED.
Motion to Strike
Defendant moves to strike the following
from the FAC:
-
Paragraph
92;
-
Paragraph
94; and
-
Allegations
related to punitive damages. (FAC ¶¶ 96, 101, 106, 110, 115, 119, 123, 127,
131, 136, 141, 146, 151, 156, 161, 165, 169, 174, and the prayer for relief.)
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 of Civ. Proc. § 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. (Code Civ. Proc. § 436(a)-(b);
Stafford v. Shultz (1954) 42 Cal.2d
767, 782.)
Discussion
Defendant’s motion to strike is MOOT as to
paragraph 94 based upon the Court’s ruling on the demurrer to the first cause
of action.
Defendant
argues Plaintiff’s conclusory allegations of are insufficient to support
punitive damages. (Mot. at 3:4-5:9.) “In order to survive a motion to strike an
allegation of punitive damages, the ultimate facts showing an entitlement to
such relief must be pled by a plaintiff. [Citations.] In passing on the
correctness of a ruling on a motion to strike, judges read allegations of a
pleading subject to a motion to strike as a whole, all parts in their context,
and assume their truth. [Citations.] In ruling on a motion to strike, courts do
not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67
Cal.App.4th 1253, 1255.) “Pleading in the language of the statute is not
objectionable when sufficient facts are alleged to support the allegation.” (Perkins
v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.) The Court agrees many of the claims fail
to allege sufficient facts beyond the commission of a FEHA violation and
therefore punitive damages are not adequately alleged.
In its
demurrer, Defendant demonstrated it was a public entity and therefore claims
against it were governed by the Government Claims Act. (Dem. at 5:5-23.) Though
not argued by Defendant, it cannot be held liable for punitive damages as a
public entity. (Gov. Code § 818 (“a public entity is not liable for damages awarded
under Section 3294 of the Civil Code or other damages imposed primarily for the
sake of example and by way of punishing the defendant.”); City of Glendale
v. Superior Court (2002) 95 Cal.App.4th
1266, 1271 (“The Government Code bars
all punitive damage awards against public entities.”).)
The motion to strike is GRANTED without leave to
amend as the claims for punitive damages, paragraphs 96, 101, 106, 110, 115, 119, 123, 127,
131, 136, 141, 146, 151, 156, 161, 165, 169, 174, and the prayer for punitive
damages.
The allegations in paragraph 92 regarding individuals
acting as managing agents is not solely relevant to the punitive damages
claims. Accordingly, the motion is DENIED as to paragraph 92.