Judge: Michelle Williams Court, Case: 22STCV16874, Date: 2022-12-09 Tentative Ruling
Case Number: 22STCV16874 Hearing Date: December 9, 2022 Dept: 74
22STCV16874 STEPHANIE SALTO SOTO vs LIBERTY GLOBAL LLC
Demurrer and Motion to Strike Portions of
the Complaint
TENTATIVE RULING: The demurrer is OVERRULED and the motion to
strike is DENIED. Defendants shall file
their answers within 15 days.
Background
On May 20, 2022, Plaintiff Stephanie Soto filed this
employment action against Defendants Liberty
Global LLC, Ingenious, LLC, Gesler Alvizu, Adam Alvardo, and Marc Lelah. The complaint
asserts causes of action for discrimination, harassment, FEHA retaliation,
failure to prevent, failure to engage in a good faith interactive process,
failure to accommodate, negligent supervision and retention, assault, Labor
Code section 98.6 retaliation, Labor code sections 232.5 and 1102.5
retaliation, wrongful termination, and declaratory judgment.
Demurrer and Motion to Strike
On
September 8, 2022, Defendants Liberty Global LLC, Ingenious, LLC, Adam Alvardo,
and Marc Lelah filed their demurrer to each of the causes of action asserted in
the complaint and a motion to strike Plaintiff’s punitive damages allegations.
Defendants
failed to include page numbers as required in both the demurrer and motion to
strike. (Cal. R. Ct., rule 2.109.)
Opposition
In opposition, Plaintiff contends the demurrer and
motion to strike are untimely, Defendants failed to meet and confer, Defendants
reserved the incorrect motion in the Court Reservation System, and Defendants
failed to demonstrate the complaint is insufficient.
Plaintiff contends, based upon the date of service, Defendant Alvardo and Defendant Ingenious LLC’s responsive
pleadings were due on July 18, 2022 and Defendant Marc Lelah and Liberty Global
LLC’s responsive pleadings were due on August 22, 2022. Defendants served their
demurrer on September 1, 2022 and their motion to strike on August 25, 2022. However,
Plaintiff was not prejudiced by the
late filing and the Court shall hear the demurrer and motion to strike on the
merits. (See Jackson v. Doe (2011) 192 Cal.App.4th 742, 750; McAllister v. County of Monterey (2007)
147 Cal.App.4th 253, 281.)
Plaintiff notes Defendants originally served their
motion to strike with a Court Reservation System Reservation receipt indicating
Defendants reserved a December 9, 2022 hearing for a “Motion to Strike (not
anti-SLAPP) – without Demurrer” and used the same reservation number when
serving their demurrer a few days later and appeared to whiteout the “out” from
the reservation receipt. However, the motion is properly calendared in the
Court’s docket as a Hearing on Demurrer - with Motion to Strike (CCP 430.10)
and Plaintiff was not prejudiced by this issue.
Reply
In reply, Defendants filed documents that are
largely identical to their demurrer and motion to strike.
Defendants
failed to include page numbers as required in both replies. (Cal. R. Ct., rule
2.109.)
Defendants’
reply to the demurrer is 14-pages in length, which exceeds the maximum
allowable page limit. (Cal. R. Ct., rule 3.1113(d) (“No reply or closing
memorandum may exceed 10 pages.”).) The Court exercises its discretion to
refuse to consider Defendants’ duplicative, oversized reply to the demurrer.
(Cal. R. Ct., rules 3.1113(g); 3.1300(d).)
Defendants Failed to Adequately Meet and Confer
Defendants submitted the declaration of Robert Shiri, which fails to satisfy the requirements of Code of Civil Procedure sections 430.41 and
435.5.
The statutes require that the parties meet and
confer in person or by telephone, that Defendants “identify all of the specific
causes of action that it believes are subject to demurrer and identify with
legal support the basis of the deficiencies.” (Code Civ. Proc. §§ 430.41;
435.5.) Defendants did not demonstrate any effort to meet and confer in person
or via telephone and did not address any of the causes of action at issue.
Rather, Defendants merely noted the complaint contained a typographical error.
In opposition, Plaintiff suggests the demurrer and
motion to strike should be denied on this basis. However, the statutes
expressly preclude this argument. (Code Civ. Proc. § 430.41(a)(4) (“A determination by the
court that the meet and confer process was insufficient shall not be grounds to
overrule or sustain a demurrer.”); 435.5(a)(4) (same).)
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). The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action.” (SKF Farms v. Superior Court (1984) 153
Cal.App.3d 902, 905.) 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.)
Defendants’ Demurrer is Largely Unsupported and Improperly Relies
Upon Extrinsic Matters
Much
of Defendants’ demurrer relies upon their contention that the allegations in
the complaint are “gossip and hearsay,” and their assertions that Plaintiff is
“attempt[ing] to get paid for failing to show up to work,” or “was amidst her
probationary period, had only worked for the company less than 3 months (less
than her probationary period) and continually made excuses and stopped showing
up to Defendants.” Defendants also contend Plaintiff never made requests for
leave and there is “no proof, no report filed, or any action taken by Plaintiff
until the filing of her complaint.”
None
of the purported facts relied upon by Defendants are alleged in the complaint
and are not the proper basis for a demurrer. “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. . . . The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action.” (SKF Farms, supra, 153 Cal.App.3d at 905.)
Additionally, the Court accepts every factual allegation as true. (Nolte v.
Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406 (“Because a
demurrer tests only the legal sufficiency of the pleading, we accept as true
even the most improbable alleged facts, and we do not concern ourselves with
the plaintiff's ability to prove its factual allegations.”).)
Defendants rely entirely upon these contentions in
support of their demurrer to the first, third through sixth, eighth, eleventh
and twelfth causes of action. Accordingly, Defendants have not demonstrated a
proper basis for their demurrer to these causes of action and the demurrer is
OVERRULED as to the first, third through sixth, eighth, eleventh and twelfth
causes of action.
Harassment - Second Cause of Action
Defendants contend “Plaintiffs’ allegations
throughout her Complaint, fails to submit to even the most minimal requirements
of specificity, and instead refer to Defendants that she was terminated because
she complained of being Sexually assaulted by her co worker at lunch who told
her she looked nice one day. The allegations of the Complaint as written, are
entirely uncertain as to what date time any of these violations took place. Not
a single material fact is alleged that would give rise to liability on the part
of Defendants under the ambiguous and uncertain causes of action alleged by the
Plaintiff.” Defendants’ argument omits the overtly sexual comments allegedly
made by Plaintiffs’ manager on multiple occasions and that he allegedly twice
attempted to kiss Plaintiff while under the misrepresentation that they were
going to meet all her coworkers for lunch. (Compl. ¶¶ 24-29.) The complaint
asserts liability against all Defendants for their actions. (Compl. ¶¶ 18-22.)
The complaint alleges sufficient facts and the
demurrer is OVERRULED as to the second cause of action.
Negligent Supervision and Retention - Seventh
Cause of Action
“California case law recognizes the theory that an
employer can be liable to a third person for negligently hiring, supervising,
or retaining an unfit employee. [Citation]. Liability is based upon the facts
that the employer knew or should have known that hiring the employee created a
particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)
Defendants contend “[t]he Complaint fails to state a
claim for Negligent Hiring, Retention, or Supervision as there are no facts
showing that Defendants knew or should have known that an Employee, or anyone
else posed a particular risk to discriminate against the Plaintiff.” However,
the complaint contains the required factual allegations that Defendants were
aware of Alvizu’s conduct and retained him as an employee, which are sufficient
at the pleading stage. (Compl. ¶¶ 30-31, 34, 36, 114-115.)
The demurrer is OVERRULED as to the seventh cause of
action.
Labor Code Section 98.6 Retaliation – Ninth
Cause of Action
Labor Code section 98.6 makes it unlawful to discharge
an employee or in any manner discriminate, retaliate, or take any adverse
action against any employee because they engaged in specified conduct,
including making complaints about illegal conduct.
As to the ninth cause of action for retaliation
under Labor Code section 98.6, Defendants refer to the failure to prevent
harassment and sexual harassment and do not address the specifics of
Plaintiff’s retaliation claim. Accordingly, Defendants failed to meet their
burden as the demurring parties. The complaint adequately alleges Defendants reduced
Plaintiff’s hours and later terminated Plaintiff’s employment in retaliation
for her complaints. (Compl. ¶¶ 30, 31, 34, 133.)
The demurrer is OVERRULED as to the ninth cause of
action.
Labor Code Sections 232.5 and 1102.5
Retaliation – Tenth Cause of Action
Labor
Code section 232.5(c) makes it unlawful to “[d]ischarge, formally discipline,
or otherwise discriminate against an employee who discloses information about
the employer's working conditions.” Labor Code section 1102.5(b) makes it
unlawful to retaliate against an employee for making complaints about
violations of state of federal statutes, rules, or regulations.
As
to the tenth cause of action, Defendants similarly refer to the failure to prevent harassment and sexual harassment rather
than the specifics of Plaintiff’s retaliation claim. Defendants also contend “[t]here
are no facts stating she officially requested maternity leave nor did she have
to use any restroom to pump as her allegations state she was discriminated
against due to her gender/ pregnancy.” However, the complaint expressly alleges
Plaintiff told Defendants she was pregnant and was informed she “‘would
have to pump in the shared restroom’ and ‘no maternity leave would be
provided.’” (Compl. ¶¶ 35, 36.) The
complaint also adequately alleges Defendants reduced Plaintiff’s hours and
later terminated Plaintiff’s employment in retaliation for her complaints.
(Compl. ¶¶ 30, 31, 34, 141-142.)
The
demurrer to the tenth cause of action is OVERRULED.
Motion to Strike
Defendants move to strike Plaintiff’s
punitive damages allegations.
Defendants’ motion fails to comply
with California Rules of Court, rule 3.1322(a): “A notice of motion to strike a
portion of a pleading must 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. Specifications in a notice must be numbered consecutively.”
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.) As used in Section 436, “irrelevant matter” is
defined as “any of the following: (1) An allegation that is not essential to
the statement of a claim or defense. (2) An allegation that is neither
pertinent to nor supported by an otherwise sufficient claim or defense. (3) A
demand for judgment requesting relief not supported by the allegations of the
complaint or cross-complaint.” (Code Civ. Proc. § 431.10.)
“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.)
Discussion
Defendants cite general authority
regarding punitive damages and argue the complaint does not allege sufficient
facts to support a claim for punitive damages.
The Court
finds the allegations sufficient. “[W]here an action is pleaded under the Fair
Employment and Housing Act for racial employment discrimination, recovery of
punitive damages under the general provisions of Civil Code section 3294 is
permitted.” (Roberts v. Ford Aerospace & Communications Corp. (1990)
224 Cal.App.3d 793, 798.) The complaint alleges Defendant Alvizu sexually harassed and assaulted Plaintiff, Plaintiff
informed Defendants, Defendants did not punish Alvizu, but rather reduced
Plaintiff’s hours and ultimately terminated Plaintiff’s employment. (Compl. ¶¶ 24-34,
41-43.) Upon learning Plaintiff was pregnant, Defendants allegedly told
Plaintiff “no maternity leave would be provided,” and refused to provide
Plaintiff with sufficient time to attend medical appointments. (Compl. ¶¶ 36-38.)
The complaint alleges Defendants ratified the conduct at issue and are equally
liable. (Compl. ¶¶ 18-22, 34, 45.)
The allegations are sufficient to
establish malice within the meaning of Civil Code section 3294(c)(1): “‘Malice’
means conduct which is intended by the defendant to cause injury to the
plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard of the rights or safety of others.” Plaintiff’s
allegations of sexual harassment, and Defendants’ alleged indifference thereto,
support her claim for punitive damages. (Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 621 (“sexual harassment is subjecting a
person to cruel and unjust hardship in conscious disregard of that person's
rights and therefore supports punitive damage allegations.”); Monge v.
Superior Court (1986) 176 Cal.App.3d 503, 509 (“where an action is pleaded
under the Fair Employment and Housing Act for sexual employment discrimination,
the same opportunity to plead and recover punitive damages exists.”).)
Moreover, “language must be read not
in isolation, but in the context of the facts alleged in the rest of
petitioner's complaint. Taken in context, the words ‘wrongfully and
intentionally’ . . . describe a knowing and deliberate state of mind from which
a conscious, disregard of petitioner's rights might be inferred-a state of mind
which would sustain an award of punitive damages.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) Plaintiff’s
complaint sufficiently alleges Defendants acted with malice or ratified such
conduct at the pleading stage. (Monge, supra, 176 Cal.App.3d at 511
(“read as a whole, sufficiently allege a deliberate intent on the part of
defendants to sexually harass and then to retaliate against plaintiffs, causing
them to suffer significant mental anguish on the job without regard for their
right to be free from such oppressive and hostile employment conditions. This
concisely pleads defendants' actions as having an unequivocally evil and mischievous
motive.”).)
The motion to strike is DENIED in
its entirety.