Memorandum Points and Authorities

Cal. Super. - 6th Dist.December 13, 2019

Phillip G. Vermont, SBN 132035 Dominique M. Jacques, SBN 290036 RANDICK O'DEA TOOLIATOS VERMONT & SARGENT, LLP 5000 Hopyard Road, Suite 225 Pleasanton, California 94588 Telephone: (925) 460-3700 Facsimile: (925) 460-0969 Attorneys for Defendant, ALL TEMPERATURE SERVICE AIR CONDITIONING INC., a California business organization 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 12 13 14 15 16 17 JEANNIE HUDSON, vs. Plaintiff, ALL TEMPERATURE SERVICE AIR CONDITIONING INC., a California business organization; BLACK CORPORATION; WHITE COMPANY; and DOES I to 100, inclusive, and each of them, Case No.: 19CV360275 SUPPLEMENTAL TO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT Date: April 27, 2021 Time: 9:00 a.m. Dept: 19 UNLIMITED JURISDICTION 18 19 20 21 22 23 24 25 26 27 /// /// /// /// Defendants. Complaint Filed: First Amended Complaint Filed: Second Amended Complaint Filed: December 13, 2019 July 24, 2020 December 10, 2020 SUPPLEMENTAL TO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CV360275 499093 4 Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/2/2021 2:32 PM Reviewed By: M. Sorum Case #19CV360275 Envelope: 5946616 19CV360275 Santa Clara - Civil M. Sorum 1 I. PROCEDURAL HISTORY Following the filing by Plaintiff, Jeannie Hudson ("Plaintiff') of a Second Amended Complaint ("SAC") on or about December 10, 2020, All Temperature Service Air Conditioning Inc., a California business organization ("ATS") filed its Demurrer to the Second Amended Complaint and Memorandum of Points and Authorities in Support ("Demurrer") on or about January 11, 2021. However, a date for the hearing was not set until February 24, 2021. During such time, Plaintiff and ATS have engaged in various meet and confers to resolve discovery disputes. On or about February 16, 2021, ATS received Plaintiff's Further Responses to Special Interrogatories, Set One ("SROGS"). In the SROGS, Plaintiff makes various admissions that 10 12 support ATS'emurrer, which ATS was unable to previously address. As the date for the hearing on the Demurrer has only recently been set, ATS is informed and believes that no prejudice would result from supplementation of the Demurrer at this time, based on the 13 information recently received. Further, if supplementation is not permitted, ATS would be 14 15 16 unduly harmed by Plaintiff s delayed discovery responses and such information should be considered by this Court, to the extent that it would have been considered if originally provided with the Demurrer. ATS has not previously exhausted its page limit for Demurrer. 17 II. STATEMENT OF FACTS 18 ATS incorporates by reference the Statement of Facts provided in the Memorandum of Points and Authorities in Support of Demurrer to the Second Amended Complaint 20 ("Memorandum"), filed on or about January 11, 2021. The following additional facts are relevant 21 to this Supplemental: 22 23 1. Plaintiffhas admitted that ATS paid out all accrued vacation time prior to January 1, 2016. (Second Supplemental Declaration of Phillip G. Vermont in Support of 24 25 Demurrer ("Second Vermont Dec.") $ 7, Exh. 1 4:10-14; Exh. 2 5:17-19 ["...In 2016, the vacation policy was changed by James R. Lowder to change to unlimited paid time off (PTO). 26 27 Prior to change of policy the owner paid out outstanding accrued vacation time for employees."].) 28 SUPPLEMENTAL TO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CY360275 499053 dooo 2. Plaintiff admits that she never made any request to use the "unlimited" vacation policy in place at ATS for her leave. (Second Vermont Dec. $ 8, Exh. 1 5;6-8; Exh. 2 6:23-25.) 3. Plaintiff admits that she was not performing satisfactorily prior to her medical leave. (Second Vermont Dec. $ 9, Exh. 2 7:9-14 [Plaintiff's situational stress was caused, in part, due to "1) sole implementation of unsuccessful progress and/or utilization of new software (Global Edge, GE) after 13 weeks which included 12/14 hour days, 7 days a week with limited breaks... (3) Verbal demands that company relies on implementation of new software which induced excessive amount of pressure and stress as the sole implementor"].) III. LAW 10 A pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless. (Itl. at p. 604.) "A court will take 12 judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, 13 14 when considering a demurrer... where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court." (Del E. Webb Corp. v. 15 Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605.) A court may look to affidavits 16 filed on behalf of plaintiff, the plaintiff s answers to interrogatories [citations omitted], as well as 17 to the plaintiff s response to request for admissions. [Citations omitted.]" (Id. at p. 604.) While 18 19 the court will not review the declarations of the pleading party in support of its own position, it will consider the statements of opposing party. (Id. at p. 605.) In Del E. Webb Corp., the court 20 21 established that the trial court could properly consider the testimony arguably inconsistent with the allegations in Webb's complaint in determining the merits of the demurrer. (Ibtil) The 22 burden of showing a reasonable possibility of amendment "is squarely on the plaintiff." (Blank v. 23 Eirwan (1985) 39 Cal.3d 311, 318.) 24 A. PLAINTIFF'S VACATION LEAVE IS IRRELEVANT TO THIS ACTION. 25 26 27 28 ATS incorporates by reference its previous arguments made in the Demurrer. (Memorandum 5;6-6;18.) Not only has Plaintiff admitted the veracity of the payout of her accrued vacation leave and of the "Unlimited" Vacation Time Policy, as stated in the Demurrer, 3 SUPPLEMENTAL TO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CV360275 d99053 docx Plaintiff has now directly stated that, "the owner paid out outstanding accrued vacation time for employees." (Second Vermont Dec. tt 7, Exh. 1 4:10-14; Exh. 2 5:17-19.) Plaintiff had no accrued vacation leave to which she was entitled as of the dates of her medical leave. Plaintiff additionally admits that she made no request to utilize the "unlimited" vacation time policy before she was terminated. (Second Vermont Dec. tt 8, Exh. 1 5:6-8; Exh. 2 6:23-25.) The "unlimited" vacation policy required prior notice before it could be utilized. Plaintiff has failed to show how Plaintiff s vacation leave allegations otherwise protect her causes of action. B. PLAINTIFF'S SECOND CAUSE OF ACTION FOR AGE DISCRIMINATION MUST FAIL. 10 12 13 14 15 16 17 An essential element of an age discrimination claim is the showing that Plaintiff was performing satisfactorily at the time of the adverse action. (CACI 2570; Hersant v. Dept. of Social Services (1997) 57 Cal.App.4'" 997, 1003.) Plaintiff admits that she was "unsuccessful" in the "sole implementation" of the new software program "after 13 weeks" and hundreds ofhours. (Second Vermont Dec. $ 9, Exh. 2 7:9-14.) Plaintiff admits that ATS informed her that it "relies on the implementation of new software". (Ibid.) By Plaintiffs own admissions, Plaintiff was not performing satisfactorily, which caused her situational stress. Plaintiff is unable to state facts sufficient to state a cause of action for age discrimination against ATS and Plaintiff's Second Cause of Action must fail. 19 C. PLAINTIFF'S SECOND CAUSE OF ACTION FOR "RETALIATION" ALSO 20 21 MUST FAIL. Two essential elements of a cause of action for retaliation in violation of CFRA are that 22 23 25 26 27 28 "the plaintiff exercised her right to take the leave for a qualifying CFRA purpose" and "the plaintiff suffered an adverse employment action... because of her exercise ofher right to CFRA." (Moore v. Regents of University ofCalifornia (2016) 248 Cal. App.406 216, 248.) An employee who cannot work according to her treating physician, may be discharged as regular attendance at work is an essential job function for most jobs. (Pettus v, Cole (1996) 49 Cal.App.4'" 402, 462-463.) The FEHA provisions make clear that ATS is not legally liable for 4 SUPPLEMENTAL TO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CV360275 499053 docx discharge of an employee who is unable to perform her duties after protected leave has ended. 2 (Govt. Code I'I 12940(a)(2).) ATS has previously addressed that Plaintiff received the entirety of her protected leave under CFRA and thereafter failed to return to work, (Memorandum 3:9-4:5), Plaintiff did not take CFRA leave for a qualifying purpose, (Memorandum 6:19-7:19), Plaintiff could not work according to her treating physician at the time of discharge, and Plaintiff had no right to reinstatement upon expiration of leave, (Memorandum 4:6-5;5,) Therefore, Plaintiff is unable to state a claim for retaliation and Plaintiff s Second Cause of Action must fail. Further, ATS addressed in its Demurrer, based on Jackson v. ICaplan Higher Educ., LLC 10 12 (2015) 106 F.Supp.3d 1118, 1121, that no retaliation claim can be supported, as work-related mental anxiety, emotional stress and related physical symptoms is not a "disability" entitling Plaintiff to accommodation under FEHA. (Memorandum 6:19-7:19.) The court in Jackson also 13 refused to presume that a former employee who has no statutory right to being hired or rehired 14 suffers an adverse job action simply because she is not hired or rehired. (Jackson, supra, at 15 p. 1133.) Plaintiff has suffered no adverse employment action based on case law, as she had no right to be reinstated to her former position at the time of discharge. 17 IV. CONCLUSION 18 19 20 In addition to the arguments presented in the Demurrer, Plaintiff s allegations regarding vacation leave are irrelevant and do not protect any of her causes of action from demurrer, Plaintiff s Second Cause of Action also fails as Plaintiff s verified responses disprove Plaintiff s 21 22 age discrimination claims, and Plaintiff is unable to show retaliation. Therefore ATS'emurrer should be sustained. 23 24 25 Date: March 2, 2021 RA A TOO VE RGE J(Ill ElliIItG91Ver'moKt IATOS , LLP 27 SUPPLEMENTAL TO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CY360275 49905) dccx PROOF OF SERVICE I, Sue Betti, declare: I am employed in Alameda County, State of California, am over the age of eighteen years, and not a party to the within action. My business address is 5000 Hopyard Road, Suite 225, Pleasanton, California 94588. I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service and/or other overnight delivery. Under overnight delivery practice, all mailings are deposited in an authorized area for pick-up by an authorized express service courier the same day it is collected and processed in the ordinary course of business. On the date set forth below, I served the within: 10 12 SUPPLEMENTAL TO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT on the parties in this action by placing a true copy thereof in a sealed envelope, and each envelope addressed as follows: John B. McMorrow, Esq. Law Offices of John B. McMorrow 39650 Liberty St., Suite 250 Fremont, CA 94538-2226 i ohnRimcmorrowlawfirm.corn 13 14 15 16 17 18 19 20 21 22 Attorneysfor PlaintiffJeannie Hudson [X ] (By U.S. Mail) I caused each such envelope to be served by depositing same, with postage thereon fully prepaid, to be placed in the United States Postal Service in the ordinary course of business at Pleasanton, California. [X ] (By Electronic Service) The above-referenced document was served by electronically mailing a true and correct copy through Randick O'Dea Tooliatos Vermont k, Sargent, LLP's electronic mail system, to the email addresses set forth as listed above, and in accordance with Federal Rules of Civil Procedure, Rule 5(b). [ X ] (By E-SERVICE) - through One-Legal's filing system. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on March 2, 2021, at Pleasanton, California. 23 24 Sue Betti 25 26 27 28 PROOF OF SERVICE 499053 docx