Opposition ObjectionsCal. Super. - 6th Dist.December 13, 2019JOHN B. McMORROW, ESQ. SBN 71911 LAW OFFICES OF JOHN B. McMORROW A Professional Corporation 39650 Liberty Street, Suite 250 Fremont, CA 94538-2226 Telephone: (510) 651-9961 Facsimile: (510) 657-3467 Email: john@jmcmorrowlawftrm.corn Attorney for Plaintiff: JEANNIE HUDSON 10 SUPERIOR COURT OF CALIFORNIA SANTA CLARA COUNTY 12 JEANNIE HUDSON 13 CASE NO. 19CV360275 Assigned to the Honorable Thang N. Barrett, Department 2l 14 15 16 17 18 20 21 Plaintiff, ALL TEMPERATURE SERVICE AIR CONDITIONING INC., a California business organization; BLACK CORPORATION; WHITE COMPANY; and DOES 1 to 100, inclusive, and each of them Defendants. POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT [Unlimited Jurisdiction] Hearing Date: April 27, 2021 Time: 9:00AM Department: 19 22 23 24 25 26 27 [Complaint filed: December 13, 2019] [First Amended Complaint filed: July 24, 2020] [Second Amended Complaint filed: December 10, 2020] [Trial Date: None Set] TO: Defendant All Temperature Service Air Conditioning Inc., and to its Attorneys of Record: 28 L WOJ5 f JOHN 0. M MORROW, A PC 39650 L5 tyst t,s I 250 9 9 t,CA94535 2226 J5101651-9961 points and Authorities in Opposition to Defendant's Demurrer to plaintiffs Second Amended Complaint Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/13/2021 3:35 PM Reviewed By: F. Miller Case #19CV360275 Envelope: 6232821 19CV360275 Santa Clara - Civil F. Miller COMES /VOW Plaintiff, JEANNIE HUDSON, who submits the following Points and Authorities in Opposition to Defendant's Demurrer to the Second Amended Complaint (SAC) in this matter, PRELIMINARY STATEMENT On October 20, 2020, the Court heard argument of Defendant's First Demurrer in this 6, 10 12 13 14 15 16 17 18 19 matter. On December 3, 2020, the Court issued its Ruling. Defendant had demurred to each of The four causes of action of the First Amended Complaint (FAC) on the grounds of Code of Civil Procedure I) 430.10(e) "... Failure to allege facts sufficient to constitute a cause of action." In its Ruling of December 3, 2020, the Court Overruled Defendant's Demurrer to the Second Cause of Action (Violation of the California Fair Employment and Housing Act (FEHA) Age Discrimination and Family Care Leave), and the Fourth Cause of Action (Violation of the California Fair Employment and Housing Act (FEHA) Failure to Engage in the Interactive Process). As to the First and Third causes of action (Violation of the California Family Care and Medical Leave Act; and Wrongful Discharge in Violation of a Fundamental Public Policy), the Demurrer was Sustained Rvirh leave to amend. Plaintiff timely amended the First and Third cause of actions by filing a Second Amended Complaint (SAC) on December 10, 2020. The Second and Fourth causes of action are unchanged. Defendant filed the pleading before the Court on lanuary 11, 2021 and numerous follow-on pleadings thereafter (without leave of Court). 20 21 22 23 24 NO DEMURRER FILED However, Defendant has not actually filed a Second Demurrer. Defendant filed its Points and Authorities. Defendant filed Declarations. 25 26 Eut there is not an actual Demurrer that has been filed. Plaintiff is left to guess about what the actual grounds are for the putative Demurrer. This pleading is not Code compliant. 28 tOHNB M MORROW,APC 3965016 IPSt I,S t 250 9 I, CA 94530-2226 (510) 651.9961 Points and Authorities in Opposition to Defendant's Demurrer to Plaintiffs Second Amended Complaint Page I The Court has discretion to disregard that pleading as a result. There is nothing in the recent Motion that shows compliance with Code of Civil Procedure 8 430.30, 430.60 or California Rules of Court, Rule 3.1320. This failure gives the Court the option to disregard the filing. (CCP ll 430.60). Additionally, it seems that Defendant is also attempting to again Demur to the causes of action as to which the Court has previously overruled Defendant's Demurrer. Given the fact that Defendant's First Demurrer to the Second and Fourth cause of actions were Overruled, Defendant cannot renew the Demurrer previously Overruled by the Court. In the event that the Court hears this matter, despite the fact that no Demurrer was actually filed, the issues regarding the First and Third cause of actions of the SAC are addressed below. The Second and Fourth 9i 10 cause of actions remain unchanged from the FAC and therefore cannot be challenged by this Motion, as the Demurrer to those causes of action were Overruled. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . 26 27 FIRST CAUSE OF ACTION Violation of the California Familv Care and Medical Leave Act In its Ruling on Defendant's Demurrer to the FAC, First Cause ofAction, dated December 3, 2020, the Court stated three reasons for Sustaining the Demurrer to the First Cause of Action: 1. Plaintiff had not alleged facts sufficient to satisfy the "50 or more employee" requirement under Gov't Code h 12945.2(c)(2). This defect was cured by )5 of the General Allegations of the SAC at pg. 3:7-11, incorporated by reference into the First Cause of Action of the SAC at pg. 12;4-7 of $ 1 of the First Cause of Action of the SAC. It reads in pertinent part. "Said Defendant regularly employs five or more persons in the State ofCalifornia and is subject to suit under the provisions ofthe California Fair Employment and Housing Act (FEHA). At the time ofeventsin issue Defendant regularly employed fifty or more persons and therefore was subject to suit under the CFRA (California Family Rights Act). " [Emphasis Added]. 2. The second ground for sustaining the Demurer to the First Cause of Action was that "Plaintiff does not allege facts showing that her alleged medical condition (i.e., panic attacks) constitutes a serious health condition." The SAC was amended to allege as follows; 28 &off J JOHN 0 MuelORROW, A RC 39650OBe tySt e t.Sute250 9 t, CA 96538-2226 (510J 651-9961 Points and Authorities in Opposition to Defendant's Demurrer to Plaintiff's Second Amended Complaint Page 2 It reads: "From the time that Plaintiffwas initially placed offwork by her treating Physician plaintiffwas continuously under the care and treatment ofa licensed Physician and a licensed Clinical Psychologist. Treatment consisted ofat least weekly therapy visits and a course ofprescribed medication commencing with the start ofthe leave period and continuing to and beyond the date ofdischarge when Plaintiffwas discharged despite thefact that Plaintiffhad informed her Employer that her medical leave had been extended beyond the original leave period into March of2019, without objection by the Employer. " This was incorporated by reference with the First Cause of Action in 111 of that Cause of action. In the amendment contained in the SAC at pg, 5:5-12, )XII incorporated into the First Cause of Action of the SAC in $ 1 of the First Cause of Action, Plaintiff alleges as quoted above. 10 3. The third ground stated by the Court in the December 3, 2020 Order. The Court concluded at pg. 7:19-20 that 12 13 14 15 16 17 18 20 21 22 23 '4 25 26 27 28 L Otic of 2OHNB McMORROW,ABC 39650 Lt tySt t,S I 250 9 t, CA 94539-2226 (510)651-9961 "Thus the allegation of the FAC show that Plaintiffreceived l2 weeks ofleave as required under CFRA ". In the SAC, Plaintiff alleges in $ XXI at pg. 8:6-12 of the General Allegations of the Complaint as follows: "XXl. The claim that Plaintiffhas exhausted California Family Care and Medical Leave Act leave by February 8, 20l9is inaccurate. Plaintiffonly utilized partial weeks ofleave during the 20l8 Thanksgiving week, the Christmas Holiday week, the New Year 's Holiday week, the Martin Luther King Holiday week Defendant observed all holidays ofthe Unionfor its trade. As a result, Plaintiff's leave period was not exhausted on the dale claimed and Plaintiffalso had accrued Vacation time availablefor leave. " Additionally, as a result of recent Discovery, it appears that Defendant's sick leave policies do not comply with Labor Code tl 246 which provides for mandatory accrual of paid sick leave under Labor Code II 246 et. seq. California Law requires employers by statute to provide employees with paid sick leave, and to show accrued leave on payroll check stubs. This Defendant does not appear to have done as shown by payroll records obtained in Discovery. The Healthy IVorkplace Family Act of2014 (Labor Code II 246) requires paid sick leave and the right to accrue sick leave. Documentary evidence of payroll records do not show that Defendant complied with this sick leave accrual or available carryover rule requirements. Logically paid sick leave would be utilized before a longer term extended medical unpaid leave would be used. Points and Authorities in Opposition to Defendant's Demurrer to Plaintiffs Second Amended Complaint Page 3 That statute was enacted in 2014. Payroll stubs must list accrued available paid sick leave. Family leave is unpaid. An employee would use accrued paid sick leave before commencing unpaid medical leave. While it is clear that Plaintiff was placed off work on November 19, it is not clear what was the first day of the FMLA leave time. A Demurrer admits the allegations of the Complaint. (Ro//eJI, /nc. v Mer/e Norman Cosme/ics (1964) 129 Cal.App.2'44). The amendment to the First Cause of Action specifically alleges that Plaintiff ha not used all of the CFLA leave available due to other time off available to her. 9 10 12 13 14 15 16 17 18 For purposes of a Demurrer that allegation is deemed to be true. There is no showing of compliance by Defendant with the paid sick leave statute. The Vacation/PTO leave policy appears illusory since Defendant apparently claims it has discretion to not provide Vacation/PTO on its whim. A factual issue as to when the CFLA time period actually started is presented. Efforts at Discovery in the form of the deposition of the Defendant CEO have been obstructed as Defendant has twice refused to produce that witness for deposition. The SAC also alleges that Plaintiff had accrued vacation time under the Company's amended vacation time policies that provided for unlimited PTO (Personal Time off) and Vacation time. It is true that when that policy was published the past accrual vacation pay was paid off. It is also true that the new Vacation/PTO policy provided for unlimited time off, subject to conditions. Additionally, the Healthy Workplace Family Act of 2014 mandated paid sick leave under California Labor Code $ 246, et seq. 20 IV. 21 22 THE START DATE OF THE LEAVE PERIOD The SAC also alleges at (XVI and XVII (pg. 6:12-2S) that in January the Company President was 23 l informed of and received information about the extension of the leave of absence and said nothing. It 24 25 26 further alleges that Defendant had a duty to speak if the leave extension was a problem and did not. At that time, as alleged in the SAC, Plaintiff had other options available to her to cover the needed leave period. Defendant had the ability to charge the absence from work to one of several baskets of available leave time, 27 28 I off4 f iotets M MORROW,A PC 39650O661351 t,S t 250 9 6 t, CA 94536.2226 4510l 651-9961 Points and Authorities in Opposition to Defendant's Demurrer to Plaintiffs Second Amended Complaint Page 4 12 13 14 15 16 17 18 the CFLA period, accrued sick leave as required by California Law (Labor Code t1 246) and her rights to utilize the unlimited PTO process to cover some or all of her leave period. Defendant's Demurrer to the SAC as to the First Cause of Action nowhere addresses these issues. If the First Cause of Action states a viable cause of action for purposes of a Demurrer, the same is logically true of the Third Cause of Action. The converse is true. This the Court apparently agreed with in the December 3'uling. Plaintiff contends, as shown above, that the amendments to the First Cause of Action in the SAC have cured the defect for purposes of the Demurrer. It is Settled Law a Demurrer reaches only the contentions of a pleading, deemed to be true for the purpose of testing the sufficiency of the Complaint. Hilltop Properties, /nc v. Siaie (!965) 233 Cal.App.2d 349, 353; Align Technology, inc v. Tran (2009) !79 Cel. App.4th 949, 958. Here, Defendant had the ability to charge the leave period against available leave options. That is, available sick leave, unlimited PTO/Vacation leave policy or CFLA rights. And Defendant had a duty to speak when it was informed that due to the serious medical condition that Plaintiff required a medically ordered leave extension. The SAC alleges that the Defendant amended its Vacation policy to avoid the accrual of earned vacation entitlement as a vested right. Defendant wrote its new Vacation policy, said to be unlimited. Ambiguities in contract documents are to be construed against the drafter of the document. See 19 e.g., CACI No. 320. Sands v E./.C., /nc. (!98!) l!8 Cal.App.3d 23!. 20 21 22 23 24 25 26 The unilateral change in Vacation policy has elements of unconscionability to it. It was imposed by the Employer. It purports to promise unlimited leave rights for Personal Time off (PTO/Vacation) but reserves to the employer the right to determine what it can be used for! Does this not raise issues of unenforceability of the elements of the policy on the grounds of unconscionability? See A & M Produce Co. v. FMC, Corp. (1982) 135 Cal.App.3d 473. You have a right to unlimited vacation, but cannot use it for sick leave? How can an employer control how an employee uses their vacation time? 27 28 Om OJR J JOHN B. M MORROW, A.PC 3965010erlPSt t,S 1 250 Pmm I, CA 94530-2226 45102 651-9961 Points and Authorities in Opposition to Defendant's Demurrer to Plaintiffs Second Amended Complaint Page 5 10 12 13 If the employee has the right to take a vacation, they can use that paid vacation for whatever purpose they choose. Defendant drafted this Vacation policy. Ambiguities are construed against the drafter. Either there is a right to vacation time or there is not. The allegation that Plaintiff did not take vacation time from 2014 until she went on medical leave is relevant to the question of whether she had earned vacation, particularly when an issue of unconscionability of an illusory promise of vacation time is present in the facts. Even more so when an employer is engaged in a scheme to defeat the vested right to earned vacation by adopting the instant policy. The SAC alleges that atter the unilateral elimination of accrued vacation time, substituted with an illusory promise of unlimited PTO/Vacation time, that Plaintiff did not take any significant time off. Defendant is urging the Court to adopt an interpretation of the unlimited vacation time policy that has issues of Unconscionability and appears aimed at side stepping the accrual of earned, but unused Vacation pay. 15 16 THE THIRD CAUSE OF ACTION As stated above, the Court's Order of December 3, 2020 overruled Defendant's Demurrer to the Second and Fourth causes of action. 17 18 amend. That same Order sustained the Demurrer to the First and Third causes of action, granting leave to 19 20 21 Plaintiff amended those two causes of action. As stated above, Defendant has not actually filed a code compliant Demurrer, Should the Court choose to treat the pending pleading as a Demurrer, it should be noted that in the 22 moving papers do not challenge the amendment to the Third Cause of Action, which incorporates the 23 allegation of the General Allegations of the Complaint, as well as amendments to the First Cause of Action. 24 // // // // 27 28 L PO/0 f FOHN 0 M MORROW, A PC 39650L69 lPSt 2,5 t 250 F 9 t, CA 9653&.2226 i510)651-9961 Points and Authorities in Opposition to Defendant's Demurrer to Plaintiffs Second Amended Complaint Page 6 VI. PLAINTIFFts COUNSEL PREVIOUSLY NOTIFIED THE COURT AND DEFENSE COUNSEL ABOUT A PERIOD OF TIME THAT HE WOULD BE UNAVAILABLE DUE TO KNEE SURGERY, BUT THIS MATTER WAS SET DURING THE UNAVAILABILITY PERIOD On February 11, 2021, Counsel for Plaintiff filed and served a Notice of Unavailability For All Purposes due to a scheduled medical procedure, that is, total right knee replacement surgery scheduled for 4/21/2021. Copy attached. That Notice was filed on February 11, 2021. On or about March 2, 2021, the Court scheduled this matter for hearing, setting the Hearing Date for 4/27/2021. 10 12 13 14 15 16 18 The hearing on this matter is set for April 27, 2021. The surgery contemplates hospitalization from 4/21/2021 to 4/23/2021. This is followed by an approximate 7-10 day period of bed rest, intense physical therapy and opioid prescription medication for pam control. Plaintiff s Counsel does not expect to be cleared to drive, i.e., off prescription opioid medication for approximately ten (10) days, post surgery'. In April 2020, Plaintiff s Counsel underwent the same procedure for his lett knee and could not attend to the office at all for twelve days, returning on a part-time basis. Plaintiff requests that the hearing date be continued approximately twenty (20) days. VIL 19 20 CONCLUSION For all of the foregoing reasons, it is respectfully submitted that the Demurrer should be Overruled. 21 Dated: April 13, 2021 LAW 22 23 24 By: JOHJ2FS. IvkMORROW Attorneyfor Plaintiff 25 26 27 28 2 0/f too of fOHNR M MORROW,A.PC 3965020 ly5I t,5 tt 250 9 t, CA 94530-2226 (510l 651 9961 ' underwent knee replacement surgery for left knee in April of 2020 and this was the recovery process. Points and Authorities in Opposition to Defendant's Demurrer to Plaintif1's Second Amended Complaint Page 7 Attachmentt ent Ive 000U/ra Santa Clara - Civil M. Scram JOHN B. McMORROW, ESQ. SBN 71911 LAW OFFICES OF JOHN B. McMORROW A Professional Corporation 39650 Liberty Street, Suite 250 Fremont, CA 94538-2226 Telephone: (510) 651-9961 Facsimile: (510) 657-3467 Email: john@jmcmorrow]awftrm.corn Attorney for Plaintiff: JEANNIE HUDSON Electronically Filed by Superior Court of CA, County of Santa Clara, on 2/11/2021 3:19 PM Reviewed By: M. Sorum Case ¹19CV360275 Envelope: 5829891 10 SUPERIOR COURT OF CALIFORNIA SANTA CLARA COUNTY 12 13 14 15 16 17 18 19 JEANNIE HUDSON Plaintiff, V. ALL TEMPERATURE SERVICE AIR CONDITIOMNG INC., a California business organization; BLACK CORPORATION; WHITE COMPANY; and DOES 1 to 100, inclusive, and each of them CASE NO. 19CV360275 Case Management Judge Hon. Thang N Barrett - Dept. 2/ NOTICE OF UNAVAILABILITY FOR ALL PURPOSES 20 21 22 23 Defendants. [Complaint filed: December 13, 2019] [First Amended Complaint filed: July 24, 2020] [Second Amended Complaint filed: December 10, 2020] [Trial Date: None Set] 1 24 TO: ALL PARTIES AND TO THEIR ATTORNEY(S) OF RECORD: 25 PLEASE TAKE NOTICE that John B. McMorrow, attorney for Plaintiff 26 JEANNIE HUDSON in this action, will be unavailable for all purposes in this case, 27 28 lee Cfaa of IN 0. MeMOAAOn A.PC. 50 overly Streel, Seae 150 6 I, CA 9655162226 65109 rela961 Notice of tJnavailabiTity For All Purposes Page 1 including receipt of pleadings, for telephone or email communications, due to 2 medical reason, from April 20, 2021 to May 5, 2021. Dated: February 10, 2021 LAW OFFICES OF JOHN B. McMORROW JOE~c MORROW Attorneyfor PiaintiJf 10 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I I O)rieeV N B. NRMORROW, A.IC. SLIBeAISRe I,S Re250 * I,CASRIIB2226 (510) 6SII)061 Notice of Unavailability For All Purposes Page 2 PROOF OF SERVICE - CCP 1013a AND 2015.5 STATE OF CALIFORNIA, COUNTY OF ALAMEDA l CASESHORTNAMEi Hudson v. All Temperature Service air Conditioning inc., et al. Santa Clara County Superior Court Case Ho.i 19CV360275 I, Theresa Deibert, declare as follows: I am over eighteen years of age and not a party to the within action. My business address is Law Offices of John B. McMorrow, A Professional Corporation, 39650 Liberty Street, Suite 250, Fremont, California 94538-2226. I am employed in Alameda County, California. I am readily familiar with my employer's practices for collection and processing of correspondence for mailing with the United States Postal Service, as well as facsimile transmissions and Federal Express routing. 'Dn,Febr'uary '1l r2021'; I.'serotet('sa'ScoP);;"o e'Within'i'-'NOTICEs OF 'UNAV~BWTY"FOR 'ALL on the''int'e'rested parties in the'ithin'.ac'tion:',by ',.,'::, ''.~'.'X U.S. Mail By following ordinary business practices and placing for collection and mailing at Fremont, California, a true copy of the above-referenced document(s), enclosed in a sealed envelope, postage pre-paid, was addressed as indicated on the Service List . Electronic Service Pursuant to consent of the parties, I caused each such document to be served by Electronic Service and/or File and ServeXpress on the interested parties on the Service List. Federal Express I caused each such document(s) to be deposited with Federal Express, in a pre-paid envelope, in Fremont, California, addressed to each of the interested parties on the Service List. "SERVICE LIST" Phillip Vermont, Esq. Dominque Jacques, Esq. Randick, O'Dea, Tooliatos, Vermont dk Sargent 5000 Hopyard Rd., Suite 225 Pleasanton, CA 94588 Email: PVermont randicklaw.corn Emaih diacoues(Rrandicklaw.corn I DECLARE UNDER PENALTY OF PERJUR the foregoing is true and correct, and this Declaration wa f California that at Fremont, California, THERESA DEIAERT PROOF OF SERVICE - CCP 1013a AND 2015.5 STATE OF CALIFORNIA, COUNTY OF ALAMEDA CASESHORTNAIHE; Hudson v. All Temperature Service Air Conditioning Inc., et al. Santa Clara County Superior Court Case No.: 19CV360275 I, Theresa Deibert, declare as follows: I am over eighteen years of age and not a party to the within action. My business address is Law Offices of John B. McMorrow, A Professional Corporation, 39650 Liberty Street, Suite 250, Fremont, California 94538-2226. I am employed in Alameda County, California. I am readily familiar with my employer's practices for collection and processing of correspondence for mailing with the United States Postal Service, as well as facsimile transmissions and Federal Express routing. On April 13, 2021, I served a copy of the within: POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT on the interested parties in the within action by: XX U.S. Mail By following ordinary business practices and placing for collection and mailing at Fremont, California, a true copy of the above-referenced document(s), enclosed in a sealed envelope, postage pre-paid, was addressed as indicated on the Service List . XX Electronic Service The above-referenced document was served by electronically mailing a true and correct copy through Law Offices of John B. McMorrow's electronic mail system, to the email addresses set forth as listed, and in accordance with Federal Rules of Civil Procedure, Rule 5(b) XX E-Service By E-Service through One Legal "SERVICE LIST" Phillip Vermont, Ksq. Randick, O'Dea, Tooliatos, Vermont & Sargent 5000 Hopyard Rd., Suite 225 Pleasanton, CA 94588 Email: PVermont randtcklaw.com I DECLARE UNDER PENALTY OF PEIUU the foregoing is true and correct, and this Declaration w of California that Fremont, California. THERESA DEIAERT