Judge: David B. Gelfound, Case: 23CHCV01873, Date: 2024-04-29 Tentative Ruling

Case Number: 23CHCV01873    Hearing Date: April 29, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER WITH MOTION TO STRIKE

Motion filed: 3/21/24

MOVING PARTY: Defendants Prezzee, Inc. (“Prezzee”), and Peter Durham (“Durham”) (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff Sanah “Sonya” Hamad (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: An order from this Court granting Defendants’ demurrer to the Fifth and Sixth Causes of Action and striking portions of Plaintiff’s First Amended Complaint.

TENTATIVE RULING: The demurrer is OVERRULED. The motion to strike is GRANTED with LEAVE TO AMEND.

BACKGROUND

On June 27, 2023, Plaintiff initiated this action against Defendants and Does 1-10. Subsequently, on January 19, 2024, Plaintiff filed her First Amended Complaint (“FAC”) in response to Defendant’s demurrer filed on September 27, 2023. The FAC alleges the following causes of action: (1) Reproductive Health Decision-Making Discrimination in Violation of FEHA, (2) Sex Discrimination in Violation of FEHA, (3) Disability Discrimination in Violation of FEHA, (4) Retaliation in Violation of FEHA, (5) Harassment in Violation of FEHA, (6) Failure to Prevent Discrimination, Harassment and/or Retaliation in Violation of FEHA, (7) Failure to Engage in the Interactive Process in Violation of FEHA, (8) Failure to Accommodate in Violation of FEHA, (9) Retaliation in Violation of Labor Code § 1102.5, (10) Wrongful Termination in Violation of Public Policy, and (11) Failure to Reimburse Business Expenses.

On March 21, 2024, Defendants filed the instant Demurrer (the “Demurrer”) with Motion to Strike (the “Motion”). Plaintiff then filed her Opposition on April 16, 2024. Subsequently, Defendants filed their Reply on April 22, 2024.

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A general demurrer is proper, and typically used, where the plaintiff fails to allege “facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.)

“The sufficiency of a cause of action is evaluated by presuming all of the material factual allegations in the complaint are true.” (Aubry v. TriCity Hospital Dist. (1992) 2 Cal 4th 962, 966 – 967 (Aubry).) In ruling on a demurrer, a court may consider facts that are properly subject to judicial notice.” (Arroyo v. Plosay, 225 Cal. App. 4th 279.) In ruling on a demurrer, the allegations of the complaint must be liberally construed, with a view to substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while "[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact." (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120, 135.) Additionally, “[a] complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)

“It is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.) And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)” Aubry, supra, 2 Cal. 4th at 967.)

A.    Meet and Confer

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

On February 21, 2024, Defendants’ counsel telephonically met and conferred with Plaintiff’s counsel, discussing issues raised in the Demurrer and Motion. Despite efforts, the parties were unable to reach a resolution on their disputes. (Bronstein Decl., ¶ 6.)

Therefore, the Court concludes that the meet and confer requirement has been satisfied.

B.     Fifth Cause of Action – Harassment in Violation of FEHA (Cal. Gov. Code §§ 12940 et seq.)

Defendants assert that Plaintiff failed to exhaust her administrative remedies required to bring a claim under Fair Employment and Housing Act (“FEHA”), arguing that Plaintiff’s original complaint filed with state Department of Fair Employment and Housing (“DFEH”) does not allege that she was harassed due to her request for reasonable accommodations, as alleged under the Fifth Cause of Action in this action.

“To exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) “‘The administrative exhaustion requirement is satisfied if the allegations of the civil action are within the scope of the EEOC charge, any EEOC investigation actually completed, or any investigation that might reasonably have been expected to grow out of the charge. Thus, the judicial complaint may encompass any discrimination ‘like and reasonably related to’ the allegations of the EEOC charge. ... Plaintiffs may proceed on claims not explicitly set forth in a charge of discrimination if the claim is “like or reasonably related to the EEOC charges” and could reasonably be expected to grow out of an EEOC investigation of the charge. [Citation.]’” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 266–267.) 

Conversely, in Wills v. Superior Court (2011) 195 Cal.App.4th 143 (Wills), the court determined that a plaintiff had not exhausted her administrative remedies because she did not file a sufficiently specific administrative claim. The Wills Court reasoned that “neither Wills's administrative complaint nor the OC Court's letter mentioned harassment. A claim the OC Court discriminated against Wills by firing her based on her mental disability is distinct and different in nature from a claim Wills's coworkers harassed her during her employment, especially given the lack of any evidence her coworkers harassed Wills based on her disability. [Citation.]” (Id., at p. 157.)

Upon reviewing the FAC, the Court observes that Plaintiff alleged in her complaint to DFEH the following adverse actions:

“Complaint was harassed because of complainant's sex/gender, other, pregnancy,

childbirth, breast feeding, and/or related medical conditions, disability (physical, intellectual/developmental, mental health/psychiatric), family care and medical leave (cfra) related to serious health condition of employee or family member, child bonding, or military exigencies, pregnancy disability leave (pdl), reproductive health decisionmaking.”

(FAC, Ex. “1.”)

Here, in contrast to the Wills case, Plaintiff explicitly alleges the wrongful act of Defendant’s harassment due to various factors, including “pregnancy, childbirth, breast feeding, ... medical conditions, disability[.]” These factors underpin Plaintiff’s claim and request for reasonable accommodation. Unlike the distinction drawn between discrimination and harassment claims, it is clear that a claim for harassment arising from Plaintiff’s request for reasonable accommodation is neither distinct nor different in nature from related claims. Furthermore, Plaintiff’s DEFH complaint specifically asserts that Defendants’ denial of her reasonable accommodation request was motivated by discrimination and retaliation, supporting the finding that the particular act of harassment “might be uncovered by a reasonable investigation” of the denial of her request for reasonable accommodation. (See Nazir v. United Airlines, Inc. (2009) 178 Ca.4th 243, 268.) 

Consequently, the Court concludes that Plaintiff’s harassment complaint encompasses a basis for reasonable accommodation, or alternatively, that the complaint as a whole is sufficient to uncover the particular act of harassment through a reasonable investigation.

Furthermore, Plaintiff contends that her amended complaint, filed with DFEH on January 19, 2024, comprehensively includes all allegations, such as harassment based on her request for reasonable accommodation. (Opp’n., at p. 6.) Notably, Plaintiff asserts that the amended complaint, as incorporated in the FAC, was duly verified as mandated by the submission process on the DFEH’s portal. (Id., at p. 5.)

Defendants do not dispute the completeness of the amended complaint filed with DFEH, nor do they contest the verification process. Instead, Defendants challenge the FAC on the grounds that it lacks proof of verification, arguing that “unverified information relayed to DFEH may not substitute for a formal administrative charge ... [t]herefore, Plaintiff’s ‘amendment’ fails.” (Reply, at p. 3.) However, they do not provide any legal authorities to substantiate their claim. It is important to note that neither oral statement nor unverified written correspondence made to DFEH may substitute for a formal administrative charge. (See Wills, supra, 195 Cal.App.4th at p. 158.) Despite this, the FAC does include an amended formal administrative charge, rendering Defendants’ argument on this point unconvincing.

Accordingly, the Court OVERRULES the Demurrer as to the Fifth Cause of Action.

C.    Sixth Cause of Action – Failure to Prevent Discrimination, Harassment and/or Retaliation in Violation of FEHA (Cal. Gov. Code § 12940(k).)

Defendants argue that Plaintiff’s Sixth Cause of Action also lacks exhaustion of administrative remedies under Fair Employment and Housing Act (“FEHA”), as it is derivative of Plaintiff’s Fifth Cause of Action.

As the Court has previously concluded that Plaintiff does not fail to plead the Fifth Cause of Action and has exhausted administrative remedies, it follows that Defendants’ argument against the Sixth Cause of Action on the same grounds is untenable.

Therefore, the Court OVERRULES the Demurrer as to the Sixth Cause of Action.

D.    Motion to Strike

The court may, upon a 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. (Id., § 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.)

In their Motion to Strike, Defendants seek to strike the following portions from the FAC:

Paragraph 63, on page 13, lines 17-20: "During the Zoom meeting, Defendants presented Plaintiff with a severance agreement which stated that Plaintiff would give up all her rights to sue PREZZEE and its employees, must keep the settlement confidential, refrain from disparaging Defendants in any way and agree that PREZZEE was not admitting to any fault whatsoever.”

Paragraph 64, from page 13, lines 21-28 to page 14, lines 1-7: “Most gallingly, the severance agreement contained numerous false statements, which Defendants knew to be false when they presented it to Plaintiff. These false statements contained in the proposed severance agreement were designed to conceal Defendants’ wrongdoing:

“...Former Employee represents and warrants that she has no knowledge of any illegal actions or omissions by Company nor does she know of any basis on which any third party or governmental entity could assert such a claim...Former Employee further represents and warrants that she has fulfilled her duties to Company to the best of her abilities and in a reasonable and prudent manner, and that she has not knowingly engaged, directly or indirectly, in any actions or omissions that are unlawful, nor has she failed to report any such actions or omissions. Former Employee acknowledges and agrees that all salary or wage compensation due her by Company, whether by contract or by law, has been paid in full, and she has been provided all rights and benefits to which she is entitled without interference by Company, including, but not limited to, vacation, sick time, paid or unpaid time off, family and medical leave, accommodation for any disability, or any contractual rights or privileges, and that Former Employee has no outstanding claims for any compensation or benefits.” (Emphasis in original.)

            Defendants argue that paragraphs 63-64 should be stricken as they contain privilege settlement discussion. (Mot., at p. 4.)

            In her response, Plaintiff maintains that paragraphs 63-64 do not allege that the severance established liability; rather, they allege that severance agreement “contained numerous false statements ... [which] were designed to conceal Defendants’ wrongdoing.” (Opp’n., at p.6.) However, Plaintiff does not adequately justify why these allegations, even if considered probative, are “necessary to the sufficiency of the pleading.” (See Dabney v. Key (1922) 57 Cal.App.762, 763 [“The expression was but a probative fact not necessary to the sufficiency of the pleading and was properly stricken out.”])

            Consequently, the Court GRANTS with LEAVE TO AMEND the Motion to Strike.         

CONCLUSION

Defendants’ Demurrer is OVERRULED.

Defendants’ Motion to Strike is GRANTED with LEAVE TO AMEND as to paragraphs 63-64.

Plaintiff is ordered to file a Second Amended Complaint as to paragraphs 63-64 within 20 days.

Moving party is to give notice.