Response ReplyCal. Super. - 6th Dist.December 13, 2019Phillip 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 COIJRT OF CALIFORNIA COUNTY OF SANTA CLARA 12 13 JEANNIE HUDSON, vs. Plaintiff, Case No.: 19CV360275 REPLY TO OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT 14 15 16 17 19 20 21 ALL TEMPERATURE SERVICE AIR CONDITIONING INC., a California business organization; BLACK CORPORATION; WHITE COMPANY; and DOES I to 100, inclusive, and each of them, Defendants. Complaint Filed: First Amended Complaint Filed: Second Amended Complaint Filed: December 13, 2019 July 24, 2020 December 10, 2020 Date: April 27, 2021 Time: 9:00 a.m. Dept: 19 UNLIMITED JURISDICTION 22 23 25 26 27 I. INTRODUCTION Plaintiff's Opposition to the Demurrer ("Opposition") appears to be nothing more than smoke and mirrors. Plaintiff Jeannie Hudson ("Plaintiff') alleges that no Demurrer was actually filed, though such stamped, filed Demurrer and proof of service to Plaintiff are attached to the Supplemental Request for Judicial Notice ("Supp. RJN") filed herewith as Exhibit E - Plaintiff s counsel was served both by mail and email. Plaintiff continues to allege she should be treated REPLY TO OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CV360275 5047G7 doc* Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/16/2021 2:51 PM Reviewed By: F. Miller Case #19CV360275 Envelope: 6259963 19CV360275 Santa Clara - Civil specially and contrary to ATS'eave policy and that her statutory medical leave period should have been extended without any support at all. Plaintiff makes entirely new claims in her Opposition which are not at issue here, including but not limited to the Healthy Workplace Family Act of 2014, which are also false and misleading. Plaintiff does not provide any cites to support her various claims in the Opposition at all and instead attempts to turn the Demurrer into an evidentiary hearing regarding unalleged allegations - requesting that this court rule well outside of the scope of this demurrer. Plaintiff continues to submit piecemeal discovery responses and, as recently as April 12, 2021, ATS received additional discovery responses that contradict Plaintiff's allegations and claims in the Opposition. ATS shall address each herein, in 10 turn. At this stage, ATS still does not know what allegations are being made andlor what claims 12 truly remain. Preliminarily, ATS is not opposed to a continuance for Plaintiff s counsel's medical treatment. 13 II. PROCEDURAL HISTORY AND STATEMENT OF FACTS 14 ATS incorporates by reference the Procedural History and Statement of Facts provided in 15 the Memorandum of Points and Authorities in Support of Demurrer to the Second Amended 16 Complaint ("Memorandum"), filed on or about January 11, 2021 and in the Supplemental to 17 Memorandum of Points and Authorities, filed on or about March 2, 2021 (" Supplemental'*). The following additional facts are relevant to this Reply: 19 ATS filed its Notice of Demurrer and Demurrer to Second Amended Complaint on 20 January 11, 2021, and served the Demurrer on opposing counsel on the same date. (Supp. RJN 21 22 Exh. E.) ATS'ounsel was not contracted at any time regarding questions about the grounds for demurrer, including and in spite of the various meet and confer letters also sent to opposing 23 counsel. (See Declaration of Phillip G. Vermont Re: Meet and Confer Process, filed herewith.) ATS propounded discovery requests on Plaintiff in September 2020, these discovery 25 26 requests are still in dispute and an informal discovery conference is set. However, Plaintiff has intermittently provided additional discovery after repeat meet and confer attempts by ATS. Even 27 since the filing of the Supplemental, Plaintiff has provided Further Response to Special REPLY TO OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CV360275 504767 d Interrogatories and two (2) Further Responses to Form Interrogatories. Plaintiff's own admissions contradict Plaintiff s claims. Plaintiff admits, "Upon further reflection I believe that I received payment for all vacation time that was owed in December of 2015." (Declaration of Dominique M. Jacques Exh. B; Plaintiff s Further Response to Form Interrogatories Employment Law - Form Interrogatory No. 217.1, dated March 22, 2021, Request for Admission No. 10; Supp. RJN Exh. F.) Plaintiff admits, "The [unlimited vacation] policy in question states as follows. Time off due to long term illness and/or leaves of absence such as those covered under Family and 10 Medical leave are handled separately, unlimited vacation cannot be used for these types of absences." (Declaration of Dominique M. Jacques Exh. C; Plaintiff's Supplemental Responses to Form Interrogatories Employment Law - Form Interrogatory No. 217. 1, dated April 7, 2021, 12 Request for Admission No. 16; Supp. RJN Exh. G.) 13 III. LAW 14 A pleading valid on its face may nevertheless be subject to demurrer when matters 15 judicially noticed by the court render the complaint meritless. (Id. at p. 604.) "A court will take 16 judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, 17 18 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, 19 Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605.) While the court will not review 20 21 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 established that the 22 23 trial court could properly consider the testimony arguably inconsistent with the allegations in Webb's complaint in determining the merits of the demurrer. (Ibid.) Further, demurrer is 24 appropriate to an amended pleading when grounds upon which the demurrer is based could not 25 have been raised to the earlier version of the complaint. (Cal. C. Civ. Proc. ("CCP") Ij 430.41.) 26 The burden of showing a reasonable possibility of amendment "is squarely on the plaintiff." 27 (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 28 3 REPLY TO OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CV360275 I A. FIRST CAUSE OF ACTION. This Court has already found that Plaintiff received 12 weeks of leave as required under CFRA. (Order Re: Demurrer 7:12-13.) Plaintiff continues to allege that she can take partial weeks of leave when holidays otherwise occur. As previously addressed by ATS, the California legislature clarified the CFRA, stating, "If a holiday falls within a week taken as CFRA..., the week is nevertheless counted as a week of CFRA... leave." (2. Cal. Code Reg. II11090(c)(3).) Plaintiff has no right to extension of the statutory period for certain holidays. Plaintiff falsely hypothesizes that she could have taken whatever time she wanted based on ATS'acation policy'. However, Plaintiff admits that she did not make any request to use the 10 vacation policy, that her request for leave was not considered vacation leave and that her leave was not a planned vacation and/or extended period of vacation leave. (Second Supplemental 12 Declaration of Mr. Vermont $ 8, Exhs. 1 5: 6-8; Exh. 2 6:23-25; RJN Exh. C, D.) Plaintiff admits, 13 "The [unlimited vacation] policy in question states as follows. Time off due to long term illness 14 and/or leaves of absence such as those covered under Family and Medical leave are handled 15 separately, unlimited vacation cannot be used for these types of absences." (Declaration of 16 Dominique M. Jacques Exh. C; Plaintiff's Supplemental Responses to Form Interrogatories 17 18 Employment Law - Form Interrogatory No. 217.1, dated April 7, 2021, Request for Admission No. 16; Supp. RJN Exh. G.) Plaintiff's own admissions contradict her claims. 19 Plaintiff further claims that she could have taken time off based on new allegations of 20 21 Labor Code section 246. ATS has separately addressed Labor Code section 246, inPa. While ATS contests that Plaintiff is entitled to ~an extension of leave time, based on the clear 22 guidelines of CFRA, Labor Code section 246 permits an employer to limit leave to 3 days/24 23 24 bours per year. (Labor Code II 246(b)(4).) Even assuming, arguendo and solely for the purpose of putting this claim to rest, that Plaintiff had a right to three (3) extra days, Plaintiff was not 25 26 27 28 'hile Plahtti ff has conveniently chosen to exclude the policy from her SAC, ATS has already produced the policy to Plaintiff and will provide to the court, upon request. The policy clearly establishes the process for any paid time off requests and the limitations for such requests. 4 REPLY TO OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CV360276 5047s7 do terminated until February 28, 2019, well after any potential extension would have expired . Therefore, Plaintiff's claims of vacation leave, Labor Code section 246 leave, and any other leave, are irrelevant here. Plaintiff has not provided any citations for her claims that sick leave or vacation leave justified an extension of CFRA coverage past February 28, 2019. 5 B. LABOR CODE SECTION 246. Plaintiff newly raises in her Opposition a violation of Labor Code section 246 (Healthy Workplace Family Act of 2014), though no such claim in pled in the Second Amended Complaint (or any prior amendment). This is a separate and distinct claim from a violation of the CFRA, is not contained within the CFRA, does not appear to be mentioned in the CFRA, and 10 does not cause the First Cause of Action to survive demurrer. Notably, Plaintiff has just recently 12 propounded discovery regarding this statute, response to which is not yet due. However, in an abundance of caution, ATS has briefed this issue. 13 Labor Code section 246, in great summary, guarantees a minimum of three (3) days or 24 hours of leave a year to employees. In lieu of typical sick leave, the statute states that an 15 16 17 employer is not required to provide additional sick days pursuant to Labor Code section 246 if the employer has a paid leave policy and the employer makes available an amount of leave that may be used for the same purposes and under the same conditions as Labor Code section 246, and provides the full amount of leave at the beginning of each year of employment. (Labor Code 19 20 21 tj 246(f)(2).) Notably, the statute establishes an employer's right to limit an employee's use of accrued paid sick days to 24 hours or 3 days in each year of employment. (Labor Code $246(b)(4).) ATS established an unlimited vacation policy that fully met the requirements of 22 Labor Code section 246. As admitted by Plaintiff, however, the policy established that, "[t]ime 23 off due to long term illness and/or leaves of absence such as those covered under Family and 24 Medical leave are handled separately, unlimited vacation cannot be used for these types of 25 absences." (Declaration of Dominique M. Jacques Exh. C; Plaintiff's Supplemental Responses to 26 27 28 'otably, Plaintiff had already taken at least four (4) sick days immediately prior to her leave, on October 10, 11, 18, and 19, 2018, per doctor's notes submitted by Plaintiff to ATS, though conveniently excluded from the SAC. ATS has already produced these to opposing counsel and will provide to the court, upon request. 5 REPLY TO OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CV360275 Soo67 do * Form Interrogatories Employment Law - Form Interrogatory No. 217.1, dated April 7, 2021, Request for Admission No. 16; RJN Exh. G.) This is consistent with the 24 hour/3 day limits employers may impose under Labor Code section 246. Plaintiff further alleges that ATS failed to put the amount of sick leave accrued on her pay stubs. However, at the time Plaintiff was receiving pay stubs, Plaintiff and not anyone else at ATS was in charge of creating the pay stubs and any omissions would be her own doing. "No one can take advantage of [her] own wrong." (Civ. Code $ 3517.) Plaintiff cannot seek damages from ATS for harm she may have caused to herself. In the event that this Court elects to address the Labor Code section 246 claims, the Court 10 should prohibit any amendment or leave to file a cause of action based on such claims, as explained herein. 12 C. SECOND CAUSE OF ACTION. 13 Demurrer is appropriate to an amended pleading when grounds upon which the demurrer 14 is based could not have been raised to the earlier version of the complaint. (CCP Ij 430 41.) As 15 stated in the Supplemental, due to Plaintiff s substantial discovery production delays, ATS did 16 not become aware of Plaintiff's contradictory admissions, under oath, until February 16, 2021, 17 after all matters regarding the Demurrer to the First Amended Complaint ("FAC Demurrer") had 18 concluded. These admissions cause Plaintiff s Second Cause of Action to fail. Plaintiff s Second Cause of Action jointly alleges age discrimination and retaliation in 20 violation of CFRA. Plaintiff does not address the allegations in the Supplemental, regarding the 21 22 Second Cause of Action. Plaintiff is required to show that she was performing satisfactorily at the time of termination. (Hersant v. Dept. ofSocial Services (1997) 57 Cal.App.4'" 997, 1003.) 23 However, Plaintiff has admitted that she was unsuccessful with projects she was solely assigned to and believed she was going to be terminated prior to her medical leave period due to the 25 introduction of a superior employee to manage Plaintiff. (Supplemental 4:8-18; Plaintiff s 26 Further Responses to Special Interrogatories, Set One, Request Nos. 16, 18.) Plaintiff further is 27 required to establish that she suffered an adverse employment action because of exercise of her 28 6 REPLY TO OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CV360275 504767 4 right to CFRA for her retaliation claim. (Moore v. Regents of University ofCalifornia (2016) 248 Cal.App.4th 216, 248.) Per Plaintiff s doctor's note, Plaintiff was not authorized to return to work upon the expiration of her statutory leave and she could be discharged lawfully. (Govt. Code $ 12940(a)(2); Pettus v. Cole (1996) 49 Cal.App.4th 402, 462-463.)s D. THIRD CAUSE OF ACTION. Contrary to Plaintiff s claims, ATS did in fact challenge Plaintiff's Third Cause of Action. (Memorandum 7:20-8:26.) Plaintiff has made no argument contrary to the statements in the Demurrer. ATS submits on its pleadings. K. FOURTH CAUSE OF ACTION. 10 ATS has demurred to the Fourth Cause of Action based on what appeared to be a misunderstanding of the Court as to the FAC Demurrer. The Order Re; Demurrer reads, 12 13 "Plaintiff alleges and Defendant does not dispute, for purposes of this demurrer, that Plaintiff's medical condition constitutes a disability." (12:15-17.) At the hearing on the FAC Demurrer, 14 15 ATS'ounsel brought it to the Court's attention that ATS had in fact disputed that Plaintiff did not have a medical condition that constituted a disability. (Memorandum of Points and 16 17 Authorities in Support of FAC Demurrer 7:11-21; Reply to Opposition to FAC Demurrer 5:8-20, 9:22-23.) The Court also did not appear to address the incongruence between the statute cited by 18 Plaintiff (Government Code section 12940(m) which is for reasonable accommodations) and the 19 20 21 cause of action alleged (failure to engage in the interactive process, codified at Government Code section 12940(n)), addressed in the pleadings by ATS and not corrected in the SAC. (Reply to Opposition to FAC Demurrer 9:2-7.) To the extent that the Court did not consider 22 23 these prior allegations, which are restated in the current Demurrer, ATS seeks to have them considered here. 24 25 26 27 28 'hile ATS previously demurred to the retaliation claim, the Court observed that demurrer cannot be granted as to only a portion of the claim. (Order Re: Demurrer 9:6-7.) ATS did not become aware of the admissions contradictory to the age discrimination portion until after Demurrer to the First Amended Complaint. 7 REPLY TO OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CV360275 ddd 767 ddd 1 IV. CONCLUSION Plaintiff has failed to provide any actual supported argument in its Opposition to the Demurrer. Plaintiff s own admissions, under penalty of perjury, and of which the Court can take judicial notice at the demurrer stage, significantly contradict the allegations in the SAC; Plaintiff knows that she received all ofher statutory leave time, that she was having problems at work prior to her termination, that she was not replaced by anyone under 50, and that her alleged "disability" was no more than work-related stress that manifested in physic@ symptoms (found not to be a disability under case Iaw). However, Plaintiff continues to assert allegations she knows to be false and for which ATS has produced documentation of their falsity. Plaintiff will 10 continue to repeat these false allegations if unabated. ATS is simply seeking a definitive understanding of what claims, if any, remain, and which claims are dismissed so that discovery 12 13 can be tailored to such remaining claims. For the reasons stated herein and in the prior Memorandum and Supplemental, this Court should sustain this Demurrer without leave to 14 15 16 17 amend, I Date: April f.'2021 RAN CK O'A TOOLIATOS ENT, LLP 18 19 By: Phillip G. ermont 20 22 23 24 25 26 27 28 REPLY TO OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT - CASE NO. 19CV360275 504707 0 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 4 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: 6 REPLY TO OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT 7 on the parties in this action by placing a true copy thereof in a sealed envelope, and each envelope addressed as follows: 10 John B. McMorrow, Esq. Law Offices of John B. McMorrow 39650 Liberty St., Suite 250 Fremont, CA 94538-2226 iohnRimcmorrowlawfirm.corn Attorneysfor PlaintiffJeannie Hudson 13 [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. 16 17 [X ] (By Electronic Service) The above-referenced document was served by electronically mailing a true and correct copy through Randick 07Dea Tooliatos Vermont & 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 April 16, 2021, at Pleasanton, California. 21 22 23 Sue Betti 25 26 27 28 PROOF OF SERVICE 706767 dcc