Judge William A. Crowfoot, Case Number: 23AHCV01863, Date: 2024-03-05 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV01863, Date: 2024-03-05 Tentative Ruling

On February 6, 2024, defendant City of Pasadena (“City”) filed this motion to compel plaintiff Jessica Austin’s (“Plaintiff”) further responses to Form Interrogatories-General, Set One, Form Interrogatories-Employment Law, Set One, Requests for Production of Documents, Set One, and Requests for Admission, Set One. Plaintiff served objections in response to City’s discovery requests on the grounds that City was in default and unable to propound discovery. Plaintiff also objected to the term “Incident” as compound, conjunctive, vague, ambiguous and overbroad. Plaintiff additionally objected on the grounds of attorney-client privilege and that the information sought could only be disclosed following a Pitchess motion.

On March 5, 2024, the Court set aside the default which had been entered against City on November 14, 2023.

On March 25, 2024, Plaintiff filed her opposition to this motion. Plaintiff argues that the discovery was improperly served and the motion improperly filed while City was in default. Plaintiff does not mention that she also served discovery requests on City during this period of default or that City served responses.

On April 3, 2024, City filed the declaration of its defense counsel David C. Casarrubias, in which Mr. Casarubbias reported that both Plaintiff and the City re-served their discovery requests on March 19, 2024, after the default was set aside.

Because the default was recently set aside and the parties have each re-served discovery requests which were improperly served while City was in default, the Court takes the motion off calendar as moot.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

On August 15, 2023, plaintiff Jessica Austin filed this action against City of Pasadena (“City”) and named Pasadena Police Department (“PPD”) as a separate defendant. Plaintiff alleges that she was employed as a full-time sworn police officer, hired in February of 2019. (Compl., ¶¶ 5, 16.) In or about September 2021, Plaintiff was investigated for allegations of misconduct. (Compl., ¶ 17.) Plaintiff alleges that the manner in which the investigation was conducted violated her rights under Government Code section 3300 et seq; the memorandum of understanding between the Pasadena Police Officers Association and the City, and City’s policy. (Ibid.)

On November 30, 2023, City and PPD filed this demurrer and motion to strike. City argues that Plaintiff’s Second Cause of Action fails because Plaintiff has not exhausted her administrative remedies and her Fourth Cause of Action is uncertain because it is unclear which claims against the City are being brought under the Meyers-Milias-Brown Act (“MMBS”). PPD demurs to the entire Complaint on the grounds that it is misjoined as a defendant. City also moves to strike allegations seeking damages for violations of the California Constitution’s due process clause.

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.) ¿

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike 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, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

As an initial matter, the Court addresses Plaintiff’s claim that the demurrer and motion to strike are untimely due to Defendants’ ineffective attempts to obtain an automatic extension to respond. First, insofar as the demurrer is untimely, the Court treats the demurrer as a motion for judgment on the pleadings pursuant to Code of Civil Procedure section 438. Second, a motion to strike may be brought within the time allowed to respond or “at any time in [the court’s discretion].” (Code Civ. Proc., § 436.) Therefore, the Court proceeds to evaluate the demurrer and motion to strike on their merits.

Plaintiff’s second cause of action alleges that she was retaliated against for engaging in whistleblowing activities protected under Labor Code sections 1102.5 and 1102.6. (Compl., ¶¶ 105-106.) City demurs to this cause of action on the grounds that Plaintiff has failed to exhaust all administrative remedies and only alleges that she has “attempted” to do so. (Compl., ¶ 99.)

Defendant relies on Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321, which included “internal grievance procedures” as administrative remedies. In opposition, Plaintiff argues Campbell is distinguishable because it was decided before the Legislature in 2014 implemented Labor Code section 244, which states that an individual “is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy.” This argument is unpersuasive. In Terris v. County of Santa Barbara (2018) 20 Cal.App.5th 551, 556-558, the Second Appellate District noted that section 244’s reference to “administrative remedies” only refers to Labor Commissioner claims and held that nothing in the legislative history of section 244 indicated an intent to overturn Campbell. Additionally, Plaintiff states in her opposition that her employment has been reinstated.

City demurs to Plaintiff’s cause of action under the MMBA on the grounds that it is uncertain. Demurrers for uncertainty are disfavored and should only be sustained where the complaint is so uncertain that the demurring defendant cannot reasonably respond thereto (see, e.g., Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616).

Here, Plaintiff's Complaint is not so uncertain that City cannot reasonably respond to it. The Complaint specifically alleges violations of the MMBA through a blanket “gag order” (see Complaint, ¶30, ¶31 and ¶131) and the failure to provide a copy of the complaint giving rise to the administrative investigation. (Compl., ¶¶ 35, 133). Plaintiff also alleges Defendants failed to comply with the Memorandum of Understanding by failing to provide required documents to Plaintiff prior to her interrogation. (Compl., ¶¶ 32-33, 35, 134.) Plaintiff also alleges that the failure to comply with the Memorandum of Understanding constitutes a unilateral change in working conditions without meeting and conferring. (Compl., ¶ 134.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Khoury, supra, 14 Cal.App.4th at p. 616.) To the extent that City argues that these are not changes in working conditions which constitute a violation of the MMBA, this argues that Plaintiff fails to state a claim, which is not asserted as a basis for its demurrer.

PPD argues that it should be dismissed from this case as an improper party. The Court agrees. PPD is a subdivision of the City and the proper defendant is City. (See Thompson v. City of Petaluma (2014) 231 Cal.App.4th 101, 103, n.1.)

PPD’s demurrer is SUSTAINED in its entirety without leave to amend. Because the demurrer is sustained, Defendants’ motion to strike, insofar as it requests to strike PPD as a defendant from this action, is moot.

City moves to strike Plaintiff’s requests for damages in her Third Cause of Action on the grounds that she cannot recover damages for alleged violations of the California Constitution’s due process clause. City cites to Javor v. Taggart (2002) 98 Cal.App.4th 795, 807, in which the Second Appellate District stated, “It is beyond question that a plaintiff is not entitled to damages for a violation of the due process clause or the equal protection clause of the state Constitution.”

In opposition, Plaintiff argues that her due process claims entitle her to back pay if she prevails at trial. Plaintiff relies on Barber v. State Personnel Board (1976) 18 Cal.3d 395, which City contends is only applicable to “Skelly violations”, not general due process violations. City’s distinction is unpersuasive where Plaintiff’s Complaint is essentially alleging a Skelly violation, i.e., a violation of her right to pre-disciplinary and post-disciplinary due process based on her vested right to continued employment as a civil servant. Moreover, City’s emphasis on Plaintiff’s recent reinstatement and back pay relies on extrinsic evidence which is not available for consideration on a motion to strike.

City’s demurrer is SUSTAINED with 20 days’ leave to amend as to the Second Cause of Action and OVERRULED as to the Fourth Cause of Action.

City’s motion to strike is DENIED with respect to Plaintiff’s claim for damages associated with her due process claim. The motion to strike is MOOT as to the references to PPD as a defendant within the Complaint.

William A. Crowfoot

Judge of the Superior Court