Reply

Cal. Super. - 3rd Dist.January 5, 2018

O O O e N I N nn B W N e N O R RN N O N O N R O N DN r m r m h m be p e p m p d e d e d pe XX 9 AA hn B W N = O O NN S Y Rs W N = O FILED 11/20/2018 CAROLEE G. KILDUFF, ESQ., SB No. 107232 ARS CAMPER, Clerk of the Court uperior Court of California ) SERENA M. WARNER, ESQ., SB No. 264799 County of Calaveras MELISSA CURRIER, ESQ., SB No. 318805 LLY Tips Cle ANGELO, KILDAY & KILDUFF, LLP Electronically Filed Attorneys at Law 601 University Avenue, Suite 150 Sacramento, CA 95825 Telephone: (916) 564-6100 Telecopier: (916) 564-6263 Attorneys for Defendant COUNTY OF CALAVERAS PUBLIC ENTITY, FILING FEES WAIVED PURSUANT TO GOV'T CODE §6103 SUPERIOR COURT OF CALIFORNIA COUNTY OF CALAVERAS HOWARD TODD BARR, Case No.: 18 CV 42976 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO PLAINTIFF’S OPPOSITION TO DEFENDANT COUNTY OF CALAVERAS’ DEMURRER TO FIRST AMENDED COMPLAINT Plaintiff, VS. COUNTY OF CALAVERAS, and DOES 1- 100, inclusive, Defendants, Date: November 30, 2018 Time: 9:00AM Dept.: 2 Trial Date: Not Set Complaint Filed: January 5, 2018 R E Instead of responding in a substantive manner, Plaintiff uses his Opposition to Defendant’s demurrer to repeat the same conclusions he stated in his Complaint and First Amended Complaint (“FAC”). The demurrer should be sustained. 1. THE FAC FAILS TO PLEAD FACTS SUPPORTING AN INFERENCE OF CAUSATION FOR THE RETALIATION CLAIMS (CLAIMS 1-3) As he did in his FAC, Barr’s Opposition relies on conclusory statements as a means of demonstrating his retaliation claims. Yet, the FAC falls far short of establishing a causal -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT COUNTY OF CALAVERAS’ DEMURRER TO FIRST AMENDED COMPLAINT OO 0 N N nn BR W N ) ee r o N o n o \® ] N o N o N o No nN po et f e t JE f t - f e t -_- - - - oo ~~ ON Wi n S W NO S O » ~ J aN w n H W NN = O connection between Bart’s discrimination complaint in 2005 and any subsequent conduct by the County. Barr points to paragraphs 69 and 70 in his FAC, stating “Mr. White tells Todd, ‘You might as well start looking in another jurisdiction.” This statement is retaliatory on its face.” (Opposition at p.2.) The alleged retaliatory statement was purportedly made by an employee, Jeff White, who was not employed at the time Barr made his discrimination complaint. (See Complaint at § 61.) The FAC is silent as to whether White had any knowledge of the 2005 complaint. Moreover, White was not involved in the decision not to select Barr for the Building Official position in 2016, having retired in February 2016. (See FAC 84.) Barr has failed to allege any facts sufficient to establish causation between his alleged protected activity in 2005 and his failure to be selected for the Building Official position in 2016 and 2017. His retaliation claims fail and Defendant’s demurrer should be sustained. II. BARR’S VETERAN STATUS DISCRIMINATION CLAIM LACKS ALLEGATIONS INDICATING PROHIBITED ANIMUS OR CAUSATION (CLAIMS 4 AND 13) cl In response to Defendant’s argument, Barr relies on a practice guide stating “a decisionmaker’s remarks about race, age or gender may be an indicator of discriminatory bias.” Assuming this statement applies to veteran status as well, which Barr fails to argue, Hawkins was not a “decisionmaker” in terms of deciding whether Barr was a candidate worth being recommended to the Board of Supervisors for their consideration. Barr’s FAC makes clear that Hawkins, while present in the room while he was being interviewed by the three-person interview panel, was not a panelist and did not participate in the interview. Moreover, as the Court acknowledged in its ruling on the demurrer to the original Complaint, Hawkins’ alleged statement is not indicative of a discriminatory animus as it “easily leads to an inference that the intended meaning was a straightforward factual assertion that plaintiff's experience did not specifically translate to the experience relatable to the job position.” (Order on Demurrer at p. 4.) Barr’s veteran discrimination claim fails and Defendant’s defiarier should be sustained. Additionally, as to his Equal Protection claim, Barr asserts in his opposition that “his years of military supervisory experience were dismissed as have[ing] (sic) zero value, whereas the others applying for the CBO position were apparently given full credit for their supervisory NZ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT COUNTY OF CALAVERAS’ DEMURRER TO FIRST AMENDED COMPLAINT OO 00 ~~ ON wn t BR W N = 0 N N A W N = D O 0 N N N R W = D experience.” (Opposition at p.5.) Barr makes no such allegation in his FAC, nor does his Opposition explain how his conclusion that other candidates for the Building Official were given “full credit for their supervisory experience” is anything but speculation. No facts alleged show any animus by the panelists against Barr on the basis of his veteran status, that Bart’s supervisory experience was the reason he was not hired, nor does the FAC provide a basis to establish that Barr was similarly situated to the other panelists other than his status as a veteran. Barr’s equal protection claim fails and Defendant’s demurrer should be sustained. III. BARR CANNOT SHOW MALICE TO OVERCOME THE, COMMON INTEREST PRIVILEGE BASED ON A STATEMENT OF A LEGAL CONCLUSION (CLAIMS 5, 10, AND 11) To overcome the common interest communication privilege under Civil Code section 47(c), Barr must plead sufficient facts to show actual malice, “which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable ground for belief in the truth of the publication and thereafter | acted in reckless disregard of the plaintiff's rights.” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538 [internal citations omitted].) Barr does not challenge the County’s description of his conduct as inaccurate, just the conclusion by Callen and Ryan that the conduct was “illegal” (See FAC 99 126-129.) The determination of whether conduct is legal or illegal is not a statement of fact, but a legal conclusion based on applying the facts at issue (here, Barr’s placement of abatement-related liens) to the relevant law. Absent a court-order regarding the legality of Barr’s conduct, it is unclear how Callen or Ryan could know their conclusion was false or that such statement was in reckless disregard for Barr’s rights-and even then, a court-order would not bar further discussion of the court’s analysis. Our legal system is based on interpretation of the law and regularly deals with the concept that laws can be interpreted differently by different parties. In a situation where the factual statements by County employees are not challenged as false, Barr cannot show that the expression of their legal conclusion that the conduct was illegal could have been made with the requisite malice required overcome the common interest privilege. Te MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT COUNTY OF CALAVERAS’ DEMURRER TO FIRST AMENDED COMPLAINT Oo © 3 S Y Wn B W N e N N R N N N R N O N r e e m e e ee pe d pe d pe d p e d e d p e d c o 3 O N hn Bx W N e e O O I N nn B W R e s OO IV. BARR’S MANDATORY DUTY CLAIMS FAIL TO MAKE A THRESHOLD SHOWING OF EITHER A MANDATORY DUTY IMPOSED ON THE COUNTY OR THAT HE SUFFERED THE SPECIFIC HARM THE CODE SECTIONS WERE DESIGNED TO PROTECT (CLAIMS 6-8) Defendant’s decision to address Plaintiff’s mandatory duty claims generally does not waive the argument that the code sections identified fail to impose a mandatory duty on the County or protect against the particular kind of injury Barr alleges to have suffered. It is Plaintiff's burden to plead facts demonstrating that his common law claims are so rooted in statute that it creates a duty akin to a statutory duty for which a public entity may be sued. Neither the facts alleged nor the code sections cited meet a threshold showing. Calaveras County Ordinance 2.64.060 and Resolution 2206 are general non-discrimination policy statements that recite legislative goals and require an exercise of discretion to implement, thus creating no “mandatory duty” as defined by case law. (See Cty. of Los Angeles v. Superior Court (2012) 209 Cal.4th 543, 550 [quoting County of Los Angeles v. Superior Court (Terrell R)) (2002) 102 Cal.4th 627, 639].) Similarly, Ordinance 2.64.565(H) sts forth a code of ethics for the County and generally advises the County to comply with the laws. Ordinance 2.64.225 directs the County to encourage professional advancement, but creates no mandatory duty to hire internally. Ordinance 2.64.115 provides the process for recruitments and 2.64.590 provides for annual evaluations for employees, neither of which policies Barr alleges were violated. Barr can file claims for discrimination and retaliation, and has done so in this FAC. But such claims require he allege them under the specific statutes that bind a public entity, not through a common law claim. | V. WORKER’S COMPENSATION EXCLUSIVITY APPLIES (CLAIMS 9-11) As stated in the Court's ruling on Defendant’s demurrer to Plaintiff’s Complaint, “[t}he general rule is that any injury sustained on the job is subject to the exclusive remedy of the Worker's Compensation Act (Labor Code section 3600) unless additional facts are sufficiently pled showing otherwise.” (emphasis added) (Gibbs v. American Airlines (1999) 74 Cal.4th 1.) Barr fails to state any such facts explaining why his negligence per se (#9), intentional infliction of emotional distress (#10), and negligent infliction of emotional distress (#11) claims are 4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT COUNTY OF CALAVERAS’ DEMURRER TO FIRST AMENDED COMPLAINT © © © 3 ON Ln BA W R ) ND b o No No ] b o tN [3 ] No nO re pa st pom s [ - pon s fw J, pd ni - 0 ~ J aN w n i N L o [\ - I {e ms \ O o o ~ J oN w h + w d N o Jo y excepted from the general rule of workers’ compensation exclusivity. Barr responds by stating that disctintinatio, harassment, retaliation, and defamation cases do not fall within the workers’ compensation rule. (Opposition at 8-9.) Yet, Defendant does not assert workers’ compensation exclusivity as to those claims. Workers’ compensation exclusivity bars Barr’s claims under his negligence and intentional infliction of emotional distress theories. His claims of discrimination, retaliation, and defamation fail for other reasons. | VI. BARR’S DUE PROCESS CLAIM FAILS (CLAIM 13). As discussed in the moving papers, Barr’s original Complaint contained facts demonstrating his ability to avail himself of internal County processes to challenge the County’s decision not to hire him for the Building Official position or pay him out of class, which the Court acknowledged in its order on the last demurrer. (Order of Demir at 5 [“The Court concurs with defendant's contention that as pled the complaint actually makes the case was plaintiff was afforded due process by being given the opportunity to which he availed himself of taking every step for review of his not being promoted”].) Although Barr omits such allegations from the FAC, he cannot hide from those pleadings to overcome the demurrer. Those pleadings are still part of the record in this case that the Court can consider. Furthermore, by omitting the facts regarding his challenges to the County’s personnel decisions, Barr is left with only his “bald faced assertions that ‘he was most qualified’ for the position of Building Official.” (Order of Demurrer at 5.) His pleading does not plead sufficient evidence to support a cognizable due process claim. VII. BARR’S ESTOPPEL CLAIM FAILS (CLAIM 14). Plaintiff's opposition fails to address Defendant’s arguments as to his estoppel claim. As discussed in the moving papers, Defendant’s demurrer should be sustained as to this claim. The FAC and the opposition are silent as to what facts Barr was ignorant of or how he relied on the facts to his detriment with respect to either the out of class pay issue or the Building Official position, The “promises” alleged, that the County would seek out-of-class pay for him and that he would get an interview for the Building Official positon ifit was determined he was qualified for one, do not confer any guarantees that he would receive out of class pay or get the Building 5-0 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT COUNTY OF CALAVERAS’ DEMURRER TO FIRST AMENDED COMPLAINT O R N Y n e Bs W N ) ea MN N R N N R N N R me e d e d he t be d pe d pe ed pe ed be d pe d 0 ~~ A N nn B A W N = D N R S Y i R W ND = O Official job such that reliance on the statements would lead to any damage to Barr. VIII. BARR FAILS TO PLEAD A CAUSE OF ACTION FOR BREACH OF IMPLIED- IN-FACT CONTRACT, IMPLIED COVENANT, OR COMMON COUNT (CLAIMS 15-17). Barr avoids responding to the argument raised by Defendant in the moving papers. Defendant acknowledges the Court’s ruling on the last demurrer that it is possible for Barr to plead a contract-based claim under the theory set forth in Sheppard v. North Orange County Regional Occupational Program (2011) 191 Cal.App.4th 289. However, the FAC is nonetheless deficient because there are no allegations that set forth the statute of regulation under which Barr’s claim is raised, as was the case in Sheppard. Nor does the FAC provide for the terms of the contract or collective bargaining agreement the County supposedly breached. Rather, Barr relies purely on the theory that the claim is capable of surviving a demurrer, without adding the required facts that might avoid the general rule that public employment is held by statute not by contract. Barr makes no attempt to address Defendant’s argument that a common count claim is inapplicable to public entity defendants and thus appears to have concede as to it invalidity. | IX. CONCLUSION Barr’s Opposition offers no remedy for the fatal flaws in his FAC. Defendant respectfully requests the Court sustain its demurrer as to each of Barr’s claims. Because Barr has been granted an opportunity to amend his complaint to plead cognizable claims and he has not done so, Defendant requests its demurrer be sustained without leave to amend. (See Cal Francisco Inv. Corp. v. Vrionis (1971) 14 Cal.App.3d 318, 321 [“Since plaintiff was given leave to amend its first amended complaint and failed to do so, it must be assumed that it has stated its case as strongly as it was possible for it to do”].) Dated: November 20, 2018 ANGELO, ( By: FT MELISSA A” CURRIER Attorneys for Defendant IEDAY¥<& KILDUFF, LLP -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANT COUNTY OF CALAVERAS’ DEMURRER TO FIRST AMENDED COMPLAINT Oo Re a N nn B W ND B O N O N N N N N N R ) m e p e d e d ee k p e d pe t pe d pe d pe ed pe s 0 N N BR W N m= O N D N N BR W N e s OO COURT: CALAVERAS COUNTY SUPERIOR CASE NO. 18 CV 42976 CASE NAME: BARR V. COUNTY OF CALAVERAS PROOF OF SERVICE [ am a citizen of the United States, employed in the County of Sacramento, State of California. My business address is 601 University Avenue, Suite 150, Sacramento, California 95825. 1am over the age of 18 years and not a party to the above-entitled action. On November 20, 2018, I caused the within MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT COUNTY OF CALAVERAS’ DEMURRER TO FIRST AMENDED COMPLAINT, the original of which was produced on recycled paper, to be served via X BY ELECTRONIC SERVICE (to individual persons) --- By electronically transmitting the document(s) listed above to the email address(es) of the person(s) set forth below. The email address I used to transmit these documents is skelly@akk- law.com. This transmission was sent on this date. The transmission was reported as complete and without error. (CRC 2.260 or Fed.R.Civ.P. 5(b)}(E).) John A. Shepardson 59 N. Santa Cruz Ave., Suite Q Los Gatos, CA 95030 shepardsonlaw(@me.com I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 20, 2018 at Sacramento, re on SARAH KELLY 7- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT COUNTY OF CALAVERAS’ DEMURRER TO FIRST AMENDED COMPLAINT