Demurrer__with_motion_to_strike_ccp_43010

Motion

Cal. Super. - 2nd Dist.December 2, 2019

Electronically FILED by Superior Court of California, County of Los Angeles on 04/27/2020 02:32 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk 459811 © 00 9 a N Dn B= W N = NN N N N N N N ND ND m= E E e e e m e m pe c o NI O N nM BAA N W I N D = DO 0 N Y B N W = Oo GLENN L. BRIGGS (SBN 174497) Email: gbriggs@kadingbriggs.com KYMBERLEIGH DAMRON-HSIAO (SBN 240508) Email: kdh@kadingbriggs.com STANLEY G. STRINGFELLOW II (SBN 259047) Email: sgs@kadingbriggs.com KADING BRIGGS LLP 100 Spectrum Center Drive, Suite 800 Irvine, California 92618 Telephone: (949) 450-8040 Facsimile: (949) 450-8033 Attorneys for Defendants THRIFTY PAYLESS, INC. and RITE AID CORPORATION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT MARK COLLINS, CASE NO. 19STCV43329 VS. Plaintiff, Assigned for all purposes to Honorable William F. Fahey, Department 69 THRIFTY PAYLESS, INC.’S AND RITE AID THRIFTY PAYLESS, INC.; RITE AID CORPORATION’S DEMURRER TO CORPORATION and DOES 1 through PLAINTIFF MARK COLLINS’ COMPLAINT 50, inclusive, [Filed concurrently with Declaration of Defendants. Sarah Y. Oh and Motion to Strike Portions of Plaintiff’s Complaint; [Proposed] Order filed concurrently herewith] Complaint Filed: December 2, 2019 Hearing: TBD by the Court 1 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O PLEASE TAKE NOTICE that on at 8:30 a.m., in Department __! of the above- captioned court, located at 111 North Hill Street, Los Angeles, CA 90012, or as soon thereafter as this matter may be heard, defendants Thrifty Payless, Inc., and Rite Aid Corporation will and hereby do jointly and severally demur to the First, Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Twelfth Causes of Action in plaintiff Mark Collins’ (“Plaintiff”) Complaint pursuant to Code of Civil Procedure Section 430.10 on the following grounds: Demurrer to the First Cause of Action I. Plaintiff’s First Cause of Action for Violation of Government Code § 12940(a) impermissibly combines multiple causes of action and thus is uncertain. See Cal. Code Civ. Proc. § 430.10(f). 2. Plaintiff’s First Cause of Action for Violation of Government Code § 12940(a) fails to state facts sufficient to constitute a cause of action. See Cal. Code Civ. Proc. § 430.10(e). Demurrer to the Second Cause of Action 3. Plaintiff’s Second Cause of Action for Violation of Government Code § 12940(h) and (i) fails to state facts sufficient to constitute a cause of action. See Cal. Code Civ. Proc. § 430.10(e). Demurrer to the Third Cause of Action 4. Plaintiff’s Third Cause of Action for Violation of Government Code § 12940(j) impermissibly combines multiple causes of action and thus is uncertain. See Cal. Code Civ. Proc. § 430.10(%). 5. Plaintiff’s Third Cause of Action for Violation of Government Code § 12940(j) fails to state facts sufficient to constitute a cause of action. See Cal. Code Civ. Proc. § 430.10(e). I As of the filing of this Demurrer, Defendants were unable to reserve a hearing date. Once a hearing on Defendants’ demurrer is scheduled, Defendants will serve notice of the hearing date. Defendants believe and are confident that the hearing will be set for a date that does not compromise Plaintift’s rights of notice under the Code of Civil Procedure. 2 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N N N M mm e m e m e m e m e m e m e m oO NN A N nm kA W I N D = D VO N N N B A W = O Demurrer to the Fifth Cause of Action 6. Plaintiff’s Fifth Cause of Action for Retaliation in Violation of Public Policy fails to identify with appropriate and necessary specificity the public policies that Defendants allegedly violated and thus is uncertain. See Cal. Code Civ. Proc. § 430.10(f). 5 Plaintiff’s Fifth Cause of Action for Retaliation in Violation of Public Policy fails to state facts sufficient to constitute a cause of action. See Cal. Code Civ. Proc. § 430.10(e). Demurrer to the Sixth Cause of Action 8. Plaintiff’s Sixth Cause of Action for Violation of Cal. Labor Code § 232.5 fails to state facts sufficient to constitute a cause of action. See Cal. Code Civ. Proc. § 430.10(e). Demurrer to the Seventh Cause of Action 9. Plaintiff’s Seventh Cause of Action for Intentional Infliction of Emotional Distress is subject to Workers’ Compensation Exclusivity and is therefore in excess of the Court’s jurisdiction. See Cal. Code Civ. Proc. § 430.10(a). 10. Plaintiff’s Seventh Cause of Action for Intentional Infliction of Emotional Distress fails to state facts sufficient to constitute a cause of action. See Cal. Code Civ. Proc. § 430.10(e). Demurrer to the Eighth Cause of Action 11. Plaintiff’s Eighth Cause of Action for Negligence is subject to Workers’ Compensation Exclusivity and is therefore in excess of the Court’s jurisdiction. See Cal. Code Civ. Proc. § 430.10(a). Demurrer to the Ninth Cause of Action 12. Plaintiff’s Ninth Cause of Action for Negligent Infliction of Emotional Distress is subject to Workers’ Compensation Exclusivity and is therefore in excess of the Court’s jurisdiction. See Cal. Code Civ. Proc. § 430.10(a). 3 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O Demurrer to the Tenth Cause of Action 13. Plaintiff's Tenth Cause of Action for Wrongful Termination in Violation of Public Policy fails to identify the public policy that Defendants allegedly violated and thus is uncertain. See Cal. Code Civ. Proc. § 430.10(f). Demurrer to the Eleventh Cause of Action 14. Plaintiff’s Eleventh Cause of Action for Failure to Provide Reasonable Accommodations fails to state facts sufficient to constitute a cause of action. See Cal. Code Civ. Proc. § 430.10(e). Demurrer to the Twelfth Cause of Action 15. Plaintiff’s Twelfth Cause of Action for Failure to Engage in the Interactive Process fails to state facts sufficient to constitute a cause of action. See Cal. Code Civ. Proc. § 430.10(e). Defendants timely met and conferred with Plaintiff, as required by Code of Civil Procedure section 430.41(a). This Demurrer is based on this Notice of Demurrer and Demurrer, the attached Memorandum of Points and Authorities, the Declaration of Sarah Y. Oh, and the Court’s complete files and records in this action, and any further oral and/or documentary evidence that may be presented at or before the hearing that the Court may consider. DATED: April 27, 2020 KADING BRIGGS LLP GLENN L. BRIGGS KYMBERLEIGH DAMRON-HSIAO STANLEY G. STRINGFELLOW II By: SARE GL TRINGEELL OW II Attorneys for Defendants THRIFTY PAYLESS, INC., and RITE AID CORPORATION 4 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O II. III. INTRODUCTION TABLE OF CONTENTS PAGE NO. A DEMURRER IS PROPER WHEN A CLAIM IS UNCERTAIN, BARRED BY WORKERS’ COMPENSATION EXCLUSIVITY, AND/OR FAILS TO STATE A CAUSE OF ACTION ALL BUT ONE CAUSE OF ACTION FALL PREY TO DEMURRER A. Plaintiff’s Claim for Discrimination in Violation of the FEHA (“Claim 17) Is Fatally Uncertain and Fails to Allege Sufficient Facts. .........ccccoeeeviiiininncncnn 13 1. Claim 1 Impermissibly Joins Three Separate Claims in One Retidering 1 LINGETITIN wxn.imsmunn umm on umes on smmsis5.m 5500508 500555550. 55555 5550555. 50 553 13 2, Plaintiff also Fails to Allege Facts Supporting His Legal Contentions that Defendants Terminated His Employment Due to His Age, DHASABATIL, OF TR EG 05.0 res. m5, 5590555, 5856 F055. S58 S85 AR 14 Plaintiff Has Not Pleaded Facts Evidencing that Plaintiff Engaged in any Protected Activities under the FEHA Necessary to Maintain His Claim for Violation of Gov't Code § 12940 (h) and (i) (“Claim 2”) Plaintiff’s Claim for Harassment in Violation of the FEHA (“Claim 3”) Is Fatally Uncertain and Fails to Allege Facts Sufficient to State a Cause of Action I. Plaintiff’s Tort Claim for Retaliation in Violation of Public Policy (“Claim 5) Plaintiff Embeds Three Separate and Distinct Claims for Harassment Based on Race, Disability, and Age, Rendering it Uncertain. ............... Plaintiff Has Not Alleged Sufficient Facts that Show He Was Subjected to Severe or Pervasive Harassment on the Basis of His Race or any Facts at All Demonstrating Harassment Based on IISAIBTITEY OF AGE, 0555.50 m5 50.5585 55556555.5. 5855 05555055 5555 Is Fatally Uncertain and Fails to Allege Facts Sufficient to State a Cause of ISTO 5. ccm cms nam. 50, SA 6,5 5, A 4,6, 3 SAR 3, AO RS 5. AAR 18 I. Plaintiff’s Inclusion of the Catch-All Language “All Other State and Federal Statutes . . .” Renders Plaintiff’s Claim 5 Fatally UNCETTAIN. «eee eee eee ee eee eee eee eee eee eee eee ee eee eee eee eee ee ee ee ee ee ee ea ease eaeaeaaaaees Claim 5 Is Duplicative of Plaintiff’s Wrongful Termination in Violation of Public Policy Claim (“Claim 10”) and He Fails to Plead Facts Sufficient to Show that He Engaged in any Protected ACTIVE. weet st tesa eee e tee saae sabe eee eb ae ebae enna enns Plaintiff Has Not Alleged any Facts Showing that Plaintiff Disclosed or Complained about His Working Conditions Necessary to Support His Claim for Violation of Labor Code § 232.5 (“Claim 6”). .....cccccceveverireninicienicieneenne. 19 5 16 17 18 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O IV. TABLE OF CONTENTS (cont’d) PAGE NO. Workers” Compensation Pre-Empts Plaintiff’s [IED Claim (“Claim 77), and, Even If Not, Plaintiff Fails to State Facts Sufficient to Constitute a CAUSE OF ACTION. uveitisree ee ae seeaeseees 19 1. Workers’ Compensation Exclusivity Rule Bars Claim 7...........cccoeeneee. 19 2. Plaintiff Did Not Plead any “Extreme and Outrageous” Conduct. .......... 20 Workers” Compensation Pre-Empts Plaintiffs Negligence-Based Claims (“Claim 8 afd “CIATED nmin in ssmne is unssin ous sin sss in sass sv sass is swssss so 55585 21 Plaintiff’s Wrongful Termination in Violation of Public Policy (Claim 10) Fails to Articulate the Public Policy Allegedly Violated, Deeming It TT ETEETUII, cum mms sma, 005050001500 05 505,55. 5 05 40. 05 HF HS 22 Plaintiff’s Failure to Provide Reasonable Accommodations Claim (“Claim 117) Is Contradicted and Undermined by His Own Allegations............ 23 Plaintiff’s Failure to Engage in the Interactive Process Claim (“Claim 12”) Must Be Dismissed because Claim 11 Fails and He Alleges No Failure to TTR ss cssmrmsnoossctsosmnssos ceo wns cha 0358 0 5 3 BEA ESAS SEES 23 THE COURT SHOULD SUSTAIN DEFENDANTS’ DEMURRER WITHOUT LEAVE TO AMEND WITH RESPECT TO CLAIM 2, CLAIM 5, CLAIM 7, CLAIM 8, CLAING 9, CLAINI 1 L AND CLAIM 12 cncmammmmmmmmmmmmessmsmasams 24 CONCLUSION Litters sae sae ebeeaaen 25 6 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 1 TABLE OF AUTHORITIES PAGE NO. 2 | STATE CASES 3 | Arendell v. Auto Parts Club, Inc., 29 Cal. App. 4th 1261 (1994) ...ceeemieeieeeeeee te ee 21,22 4 Blank v. Kirwan, 3 BO CAL: 3 BLT [U0 8 Vc 0050.58.05 50 55 AAS TR 5. 13 6 | Breneric Assocs. Co. v. City of Del Mar, 69 Cal. App. 4th 166 (1998) ....ccuuiiiieitiie etic sees 13,20 7 Brown v. Smith, 8 24 Cal. App. 5th 1135 (2018) ..eeueetiiieeiieieeiieietest ees eter s es esser ree ee 12 9 | Brundage v. Hahn, 57 Cal. APP. 4th 228 (1997) ecu eeeeeeeeeeee et e este eteeeeesteeet eee 13 10 Brush v. Big Bear Lake Tavern, 11 20 Cals AEDs. Za, OD [LOBE ima. 50 5050555805505 550500 0540 5 40.5555 GA ESS FAFA 12 12 || Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800 (2001) .cueeeeeieetieieetiee eerste etree eters sees sbeebs sree snes 22 13 City of Stockton v. Superior Court, 14 42 Cal. 4th 730 (2007) cuvette erie steers sree eats es een ent ebesa eae eae 12 15 | Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148 (1987) uu eeeeeteeetee ete aeeseeeeaeeeeeeeeeeeseseeaeee 20, 22 16 Cornell v. Berkeley Tennis Club, 17 18 Cals App. SHE TUB CIOL TY es5,50505000 0500055050505 5050500505053 5055 ASR 5.5 16 18 || Diego v. Pilgrim United Church of Christ, 231 Cal. App. 4th 913 (2014) eee ete steers sree ee 22 19 Fermino v. Fedco, Inc., 20 7 Cal. 4th TOL (1994)... eee eee eee eee eee eae erates eee erae ns passim 21 || Fisher v. San Pedro Hospital, 214 Cal. APP. 3d 590 (1989) ....oeieieeeeiieeee eee ee 17 22 Greener v. Workers' Comp. Appeals Bd, 23 BCL. ATH, TOR T1003 Ym 5050500.05050 00805 506 55 0 RR 12 24 | Gonzales v. Cal., 68 Cal. APP. 3d 021 (1977) cuvettes eter ete sees sree ee 12 25 Hanson v. Lucky Stores, Inc., 26 74 Cal. APP. 4th 215 (1999) ...eeiiiieeeeee ete ste ete eae sree 23 27 | Heard v. Lockheed Missiles & Space Co., 44 Cal. App. 4th 1735 (1996) ...c.uiiiiiieeieeeeeeeee e e ee sree 13 28 459811 7 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS’ COMPLAINT 1 TABLE OF AUTHORITIES (cont’d) 2 PAGE NO. STATE CASES 3 Hersant v. Dep't of Soc. Servs., 4 57 Cal. APP. 4th 997 (1997) eee eee eee eee eee ee 13, 14 5 | Hughes v. Pair, 46 Cal. 4th 1035 (2009)...c.eiieeeieie ters estes es esses snes enene 20 6 Janken v. GM Hughes Electronics, 7 A Cal ADs. AE 55 {TT DD) ccm, 205m5555050530 040055405535 £5 055 RB R55 20 8 || Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245 (2000) ....cveieeeirieeiieeeiiereeie seers ete sees b estes ee aes 15,23 9 Jones v. Dep't of Corrections, 10 152 Cal. App. 4th 1367 (2007) .c.eeeviiieeiieeeiieieieseee steerer ees 17,20 11 | Khoury v. Maly’s of Cal., 14 Cal. APP. 4th 612 (1993)... eee eset ete eee sree ee 12 12 Koszdin v. State Comp. Ins. Fund, 13 1 86 Call Ap AU, AR (20 LN: 5550005500000 050055008055 506 5 5555 SRT 12 14 | Livitsanos v. Sup. Ct., 2 Cal. 4th 744 (1992)... estes estes sete sbeebs ese sree ee 20 15 Nealy v. City of Santa Monica, 16 234 Cal. App. 4th 359 (2015) cei eee sree 15 17 | Sandell v. Taylor-Listug, Inc., 188 Cal. App. 4th 297 (2010) ...cueeieiieeeieie etic eters ebsites eae sree ee 14 18 Schonfeldt v. State of Cal., 19 G1 Cal Ap, GH. TAT T1008 )s0.5.055050 0545.50 55500500550 5500050505800 5550 50.0 655 AAS R55 24 20 | Scotch v. Art Inst. of Cal., 173 Cal. App. 4th 986 (2009) ......eiviieeiiiiieeieieeiesee teeters steerer teeta sree ee 23 21 Sheffield v. Los Angeles Cnty. Dep't of Soc. Srvs., 22 109 Cal. App. 4th 153 (2003) ..ccueeieiieeiieieeiiee cece sees sree ee 17 23 | Shoemaker v. Myers, 52 Cal 3d 1 (1990). sree ene eas 20,21 24 Thompson v. City of Monrovia, 25 186 Call. Ap AEH. BOT {ZOTLE ic, 5055005 0505505055805, A SAR 16 26 | Vaillette v. Fireman's Fund Ins. Co., 18 Cal. App. 4th 680 (1993) ....eiiieiieeeiieee reeset sree sree eae 24 27 Williams v. Beechnut Nutrition Corp., 28 185 Cal. APP. 3d 135 (1986) ...vieeeriieeiieeeeee te sre eae 12 459811 8 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS’ COMPLAINT 1 TABLE OF AUTHORITIES (cont’d) 9 PAGE NO. STATE CASES 3 Wilson v. Cty. of Orange, 4 169 Cal. App. 4th 1185 (2009) ......eeiieiiieeie etcetera ete erase se eserves sree esse ae eens 23 5 | Wysinger v. Auto. Club of S. Cal., 57 Cal. App. 4th 413(2007) c.eecureeeieerieeieeeee eects eres eva eset ae eaae sree sree ss esse enseennes 24 6 Zumbrun v. Univ. of S. Cal., 7 25 CAL AD. FH, 1 {1 DTZ) 0 00000500000 5005055008050 555000800055 05 A A 5S 12 8 | FEDERAL CASES 9 | Juell v. Forest Pharmaceuticals, Inc., 456 F. Supp. 2d 1141 (2000) ...c.eeereeeieerieeieieeie e cts teers esters sree s ss es esse esse se 16 10 Tam v. Qualcomm, Inc., 11 No. 17-CV-710 JLS (AGS), 2018 WL 9918097 (S.D. Cal. Oct. 31, 2018)...cccuieieerierieieieeie eters eevee evens 19 12 U.S. ex rel. Lupo v. Quality Assurance Servs., Inc., 13 242 F. Supp. 3d. 1020 (SD CHL DOT) wn sso snssmsnsnsss s,s on sss soos sissy dusimis dussssssss 19 14 || Watkins v. Ameripride Serv., 375 F.3d 821 (9th Cir. 2004) .....eceieeeieeiie eters eee eee sree sees eee eave sree erase esse enaeennes 23 15 STATUTES 16 California Code of Civil Procedure Section 430.10(Q) ....ccccvveevuveeecuieeciieeeieeecieeeeeeeeeinn 3,12,25 17 California Code of Civil Procedure Section 430.10(€) ....ccovveeevurreeciireeieeeeieeeeieeeeeeee 2,3,4,12 18 California Code of Civil Procedure Section 430.100) .....ccovvieviieiiiieciieceieceeeeeeeeiees 2,3,12 19 California Labor Code SeCtion 232.5 .....uueeieiieiiieeeeeeieeeee eee ee ess re ee ens 3,11, 18, 19 20 California Labor Code Section 232.5(C) c.uieruiiriiirieeieeieeeeeeniie etter est rases esie se e estes esse enna ennnes 19 21 California Labor Code Section 1102.5. ....ccciiiiiiiieeiieiieiie cece ete everest 18 22 California Labor Code SECtion 2856.........occuiiiiiiiiieeieeiieei eer e eters eas esas sabe eebeeaees 18 23 California Labor Code Section 3600(Q) ........ccoouveeeirieeiirie cic ceeee c rev sia eevee eave e ns 19, 21 24 California Government Code Section 12940 ......ccevviviiiiiiiiiiiiiiieee eee eee eee 16, 18 25 California Government Code Section 12940(a) ........cccviiiiiieiiiieeieee cites eserves eevee 2 26 California Government Code Section 12940(h)(1)(J) +eeoveerveerueeireeriieniie sie re ese eseee sieeve eras s 2 27 28 459811 9 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS’ COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N N N M mm e m e m e m e m e m e m e m oO NN A N nm kA W I N D = D VO N N N B A W = O TABLE OF AUTHORITIES (cont’d) STATUTES California Government Code Section 12940(M)(1N) ....cceeeevuiieeiiiieeieieeieeecieeecieeeeeenn California Code of Regulations, Title 2 Section 11002(a)(b) ....cccvvevvevriienieeiierenee. California Code of Regulations, Title 2 Section 11021(a)......ccccecerervirviienieeieereenee. 10 PAGE NO. DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O IL. INTRODUCTION This employment-based lawsuit seeks redress against Plaintiff’s former employer Thrifty Payless, Inc., and Rite Aid Corporation (which did not employ Plaintiff) (collectively “Defendants”) on numerous grounds-12 to be exact, but probably more. Rather than presenting a focused pleading placing Defendants on notice of each claim, Plaintiff filed a wandering Complaint, weaving in harassment claims, age and race discrimination claims, common law torts for retaliation, negligence, and intentional and negligent infliction of emotional distress, and supposed violations of irrelevant Labor Code provisions. Ultimately, Plaintiff’s Complaint falls short in three critical ways: (1) Plaintiff has embedded multiple and distinct causes of action within his FEHA-based discrimination and harassment claims (Claims 1 and 3) and has failed to allege with minimal specificity the public policies allegedly violated in his retaliation and wrongful termination in violation of public policy claims (Claims 5 and 10), rendering each fatally uncertain; (2) Plaintiff seeks redress for negligence-based claims and intentional infliction of emotional distress (“IIED”) when Workers’ Compensation Exclusivity clearly pre-empts them; and (3) Plaintiff has failed to allege facts sufficient to state a cause of action for discrimination in violation of the Fair Employment and Housing Act (the “FEHA”) (Claim 1), FEHA-based retaliation (Claim 2), FEHA-based harassment (Claim 3), failure to accommodate (Claim 11), failure to engage in the interactive process (Claim 12), retaliation and wrongful termination in violation of public policy (Claims and 10), violation of Labor Code 232.5 (Claim 6), and IIED (Claim 7). Defendants seek to achieve two goals: (1) to establish clarity in pleading so that the Parties may set this case on the right trajectory early on by ensuring that Plaintiff’s allegations are clear and that all separate causes of action are separately pleaded; and (2) to strip Plaintiff’s Complaint of causes of action for which Plaintiff asserts no supporting facts, other than bare legal conclusions, and those which are otherwise barred by the Workers” Compensation Act. 11 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 OO 00 3 a Wn Bh W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O II. A DEMURRER IS PROPER WHEN A CLAIM IS UNCERTAIN, BARRED BY WORKERS’ COMPENSATION EXCLUSIVITY, AND/OR FAILS TO STATE A CAUSE OF ACTION “A demurrer tests the legal sufficiency of the complaint. Brown v. Smith, 24 Cal. App. 5th 1135, 1141 (2018). California Code of Civil Procedure Section 430.10 provides various grounds on which a party against whom a complaint was filed may object by demurrer to the complaint, including, uncertainty, lack of subject matter jurisdiction, and failure to state a cause of action. See Cal. Code Civ. § 430.10(e),(a),(). First. A cause of action is uncertain as a matter of law if it combines multiple causes of action into a single count. See, e.g., Brush v. Big Bear Lake Tavern, 29 Cal. App. 2d 69, 70 (1938) (sustaining demurrer where “several causes of action were improperly united and not separately stated in the single count of the pleading”); Zumbrun v. Univ. of S. Cal. 25 Cal. App. 3d 1, 9 (1972) (holding that trial court properly sustained special demurrer to cause of action uniting two claims); Williams v. Beechnut Nutrition Corp., 185 Cal. App. 3d 135, 139, n. 2 (1986) (noting that a complaint that combines causes of action may render a complaint confusing and subject to special demurrer for uncertainty). A claim can also be uncertain where there is “doubt about what the plaintiff means by the facts [Jhe has alleged.” See Gonzales v. Cal., 68 Cal. App. 3d 621, 634 (1977) (sustaining demurrer on ground that the pleader failed to clarify the doubtful part by more explicit averments), abrogated on different grounds in City of Stockton v. Superior Court, 42 Cal. 4th 730 (2007); see also Khoury v. Maly’s of Cal., 14 Cal. App. 4th 612, 616 (1993). Second. Demurrer is also proper if the court lacks subject matter jurisdiction. See Cal. Code Civ. Proc. § 430.10(a). A court lacks subject matter jurisdiction in controversies that, by statute, are to be heard by other tribunals. See, e.g., Greener v. Workers' Comp. Appeals Bd., 6 Cal. 4th 1028, 1043 (1993) (no subject matter jurisdiction to enjoin enforcement of Workers’ Compensation Act); Koszdin v. State Comp. Ins. Fund, 186 Cal. App. 4th 480, 491 (2010) (no subject matter jurisdiction to correct WCAB attorney fees award by adding interest). Third. Demurrer is proper when “the pleading does not state facts sufficient to constitute a cause of action.” See Cal. Code Civ. Proc. § 430.10(e). In ruling on a demurrer, the court treats 12 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O all properly pleaded material facts as true, “but not contentions, deductions, or conclusions of fact or law.” Blank v. Kirwan, 39 Cal. 3d 311, 318 (1985). Additionally, conclusory allegations are insufficient to state a claim and fall short of the required pleading standard. See Breneric Assocs. Co. v. City of Del Mar, 69 Cal. App. 4th 166, 180 (1998) (A plaintiff must allege “specific and nonconclusory facts.”). III. ALL BUT ONE CAUSE OF ACTION FALL PREY TO DEMURRER Aside from Plaintiff’s Fourth Cause of Action for failure to prevent discrimination and harassment?, demurrer is proper as to each and every one of Plaintiff's causes of action on at least one, if not multiple, grounds under Section 430.10. A. Plaintiff’s Claim for Discrimination in Violation of the FEHA (“Claim 1”) Is Fatally Uncertain and Fails to Allege Sufficient Facts. 1. Claim 1 Impermissibly Joins Three Separate Claims in One Rendering It Uncertain. Within one claim, Plaintiff raises three distinct causes of action-FEHA discrimination based on race (“African-American”), disability (“neuropathy in both of his feet”), and age (“over the age of forty years old”). See Compl., 94 12, 25-27. Significantly, each claim requires proof of a different prima facie case. For example, to prove his race, disability, and age discrimination claims, Plaintiff must demonstrate, inter alia, that Defendants treated similarly-situated individuals differently because they were not African-American, disabled, or 40 years of age or older. See Heard v. Lockheed Missiles & Space Co., 44 Cal. App. 4th 1735, 1750 (1996) (prima facie elements of race discrimination claim); Brundage v. Hahn, 57 Cal. App. 4th 228, 236 (1997) (prima facie elements for disability discrimination claim); Hersant v. Dep't of Soc. Servs., 57 Cal. App. 4th 997, 1003 (1997) (prima facie elements for age discrimination claim). Plaintiff’s packing in of three separate and distinct causes of action into this one count causes particular concern with respect to summary judgment/adjudication because it may prevent 2 Quite frankly, this derivative claim rises and falls on the success of Plaintiffs discrimination and retaliation claims and could be proper for demurrer. 3 During meet-and-confer efforts, Plaintiff agreed to amend his first, second, third, and fifth claims; however, Plaintiff respectfully declined amendment unless and/or until the Court ruled on this Demurrer. Out of an abundance of caution, Defendants set forth a/l the bases for demurrer. 13 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O Defendants from obtaining dismissal of any one of them if Defendants are unable to obtain dismissal of all of them. Under Civil Procedure Section 437¢c(f), a motion for summary adjudication can be granted “only if it completely disposes of a cause of action.” Due to the way Plaintiff has pled Claim 1, if the Court determines at summary judgment, for example, that there is a triable issue of fact as to only the issue of whether his age was a motivating factor for the alleged termination of Plaintiff’s employment, but not his race or disability, the Court must nevertheless allow Plaintiff to continue to pursue the meritless claims for race and disability discrimination because Defendants did not dispose of the entire cause of action. Accordingly, if this cause of action is not separated, Defendants may be precluded from obtaining summary adjudication of Claim 1, even if the undisputed facts demonstrate that one or two of the discrimination claims should be dismissed. Plaintiff, therefore, must be ordered to plead these claims separately. * 2. Plaintiff also Fails to Allege Facts Supporting His Legal Contentions that Defendants Terminated His Employment Due to His Age, Disability, or Race. Plaintiff’s First Cause of Action is also subject to demurrer because he fails to allege any facts to support his claims for age, disability, or race discrimination. To state a prima facie case of age discrimination, Plaintiff must plead, inter alia, that he suffered an adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that he was replaced by someone significantly younger than the plaintiff. Sandell v. Taylor-Listug, Inc., 188 Cal. App. 4th 297, 321 (2010) (citing Hersant). Plaintiff fails to plead the requisite allegation. Instead, in support of his claim that Defendants discriminated against him on the basis of his age, Plaintiff alleges that “Defendants demonstrated favoritism to Plaintiff’s white colleagues by demoting Plaintiff and giving Plaintiff’s job to a white employee.” Compl., 4 27. Notably absent from his pleading is any allegation that the “white employee” was significantly younger and whether he/she received Plaintiff’s job based on age. * If the Court is not inclined to sustain Defendants’ Demurrer, Plaintiff should be estopped from asserting the procedural argument that Defendants cannot obtain summary adjudication as to each of his claims independently of one another notwithstanding that they are contained within one “cause of action.” 14 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O Similarly, to demonstrate a prima facie case for disability discrimination, Plaintiff must allege that he was “subjected to an adverse employment action because of the disability or perceived disability.” Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 254 (2000). Again, Plaintiff alleges only that Defendants discriminated against him on the basis of his disability by “demoting Plaintiff and giving Plaintiff’s job to a white employee” (Compl., 26), never alleging that the white employee was given his job because Plaintiff was disabled or perceived as disabled or because the white employee was not disabled (or even just point out that the white employee was not disabled). Lastly, while Plaintiff provides the cursory allegation that Defendants discriminated against him on the basis of his race “by demoting Plaintiff and giving his job to a white employee” (Compl., 9 25), none of the facts alleged by Plaintiff support this conclusory contention. He alleges only that he requested (and received) a disability-related medical leave of absence and that, when he returned from his medical leave, Defendants did not reinstate him to his prior position but “terminated” when Plaintiff refused the three options presented to remain employed. Compl., 49 12, 16-21. None of these allegations support a claim for race-based discrimination. Thus, Plaintiff has failed to plead a prima facie case for age, disability, or race- based discrimination. B. Plaintiff Has Not Pleaded Facts Evidencing that Plaintiff Engaged in any Protected Activities under the FEHA Necessary to Maintain His Claim for Violation of Gov’t Code § 12940 (h) and (i) (“Claim 2”). > Plaintiff bases Claim 2 on allegations that Plaintiff “reported certain accounting discrepancies to his supervisors” and as a result, Defendants “engaged in a conspiracy to terminate” him. See Compl., 99 33-35. Even if true, Plaintiff’s purported conduct does not qualify as protected activity within the meaning of the FEHA. “[P]rotected activity takes the form of opposing any practices forbidden by FEHA or participating in any conduct by the DFEH or the Fair Employment Housing Council.” Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 380-81 (2015) (citing Cal. Code Regs., tit. 2, §§ 11002, subds. (a), (b), 11021, subd. (a).) > During their meet-and-confer, Plaintiff acknowledged that this cause of action was included by mistake and agreed to remove it. See Declaration of Sarah Y. Oh, § 8. 15 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O Furthermore, an “unlawful employment practice” in violation of FEHA refers to the employer’s “refus[al] to hire or employ the person or to refuse to select the person . . ., or to discriminate against the person in compensation or in terms, conditions, or privileges of employment” on the basis of “race, religious creed, color, national origin, ancestry, physical disability ....” Cal. Gov’t Code § 12940. Consequently, Plaintiff’s alleged reporting of “accounting discrepancies,” even if true, does not qualify as a FEHA protected activity-i.e., Plaintiff did not oppose any unlawful practice/activity within the ambit of the FEHA and Claim 2 should be dismissed. C. Plaintiff’s Claim for Harassment in Violation of the FEHA (“Claim 3”) Is Fatally Uncertain and Fails to Allege Facts Sufficient to State a Cause of Action. 1. Plaintiff Embeds Three Separate and Distinct Claims for Harassment Based on Race, Disability, and Age, Rendering it Uncertain. Like Claim 1, Plaintiff’s Claim 3 sets forth three distinct bases for his FEHA-harassment claim: harassment “on the basis of his race because he was the only African-American manager,” “on the basis of his age because he was over the age of 40 years old and commanded a higher salary than younger employees,” and “on the basis of his disability because he was not [sic] precluded from assuming his position as store manager when returned [sic] from his disability [sic].” Id., qq 42-44. Once again, Plaintiffs race-, disability-, and age-based harassment claims require him to demonstrate different prima facie elements. See Thompson v. City of Monrovia, 186 Cal. App. 4th 860, 876, (2010) (race-based harassment); Cornell v. Berkeley Tennis Club, 18 Cal. App. 5th 908, 927 (2017) (disability-based harassment); Juell v. Forest Pharmaceuticals, Inc. 456 F. Supp. 2d 1141, 1157 (2006) (age-based harassment). As with the discrimination claim, Defendants may be encumbered at summary judgment and/or trial with all three harassment claims if Plaintiff is able to avoid summary adjudication on any one of them. See Cal. Civ. Proc. Code § 437c(f); Section III.A.1, supra. Further, at trial, Plaintiff's medley of harassment claims will provide ample opportunity for the jury to confuse the varying evidentiary standards and erroneously interpret and/or apply the evidence. Requiring Plaintiff to separate his claims into separate and distinct causes of action eliminates the possibility of such confusion at trial. For these reasons, Claim 3 is uncertain and demurrer is proper. 16 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O 2. Plaintiff Has Not Alleged Sufficient Facts that Show He Was Subjected to Severe or Pervasive Harassment on the Basis of His Race or any Facts at All Demonstrating Harassment Based on Disability or Age. Plaintiff’s Claim 3 also is subject to demurrer because it fails to allege any facts sufficient to support a claim for harassment. In support of his race-based harassment claim, Plaintiff offers only the vacuous allegations that he was “harassed” because “he was the only African-American manager” contending that his “authority was regularly undermined,” but these alone do not constitute harassment. Compl., 42. And in support his age-based harassment and disability- based harassment, he pleads nothing more than vague and conclusory allegations that he was harassed because “he was over the age of 40 years old and commanded a higher salary than younger employees” and because “he was not [sic] precluded from resuming his position as store manager when he returned from his disability,” but was instead “forced to either take a demotion, remain unemployed, or take a severance.” Id. at 49 43-44. These are wholly deficient. See Fisher v. San Pedro Hospital, 214 Cal. App. 3d 590, 610 (1989) (“In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature”); Jones v. Dept of Corrections, 152 Cal. App. 4th 1367, 1377 (2007), quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“The conduct must be extreme: ‘simple teasing,’ [citation] offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’”); see also, Sheffield v. Los Angeles Cnty. Dep't of Soc. Srvs., 109 Cal. App. 4th 153, 161 (2003) (“FEHA’s prohibitions are not a “civility code” and are not designed to rid the workplace of vulgarity.”). To be clear, Plaintiff does not make any attempt to place Defendants on notice how, by whom, when, where, and in what context his “authority” was “regularly undermined,” how he was harassed for being older than 40, or how not being returned to his store manager job when he returned from leave constitutes harassment under the FEHA leaving Defendants engaging in a game of Guesstures to piece together the basis for any of the three bases of harassment, currently pleaded as one. 17 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N N N M mm e m e m e m e m e m e m e m oO NN A N nm kA W I N D = D VO N N N B A W = O D. Plaintiffs Tort Claim for Retaliation in Violation of Public Policy (“Claim 5”) Is Fatally Uncertain and Fails to Allege Facts Sufficient to State a Cause of Action. 1. Plaintiff’s Inclusion of the Catch-All Language “All Other State and Federal Statutes . ..” Renders Plaintiffs Claim 5 Fatally Uncertain. Plaintiff’s Claim 5 includes “catch-all” language rendering it impossible for Defendants to reasonably respond. Although Plaintiff alleges a slew of policies that Defendants purportedly violated, such as Government Code § 12940 and Labor Code §§ 232.5, 1102.5, and 2856, Plaintiff also includes the catch-all reference: “All other state and federal statutes, regulations, administrative orders, and ordinances that impact society at large, which will be established according to proof at the time of trial.” Compl., § 57(a)-(d). Plaintiff’s inclusion of this language implores the question-on what statute, regulation, administrative order, and ordinance, if any, and in addition to those already identified (i.c., Gov't Code § 12940 and Lab. Code §§ 232.5, 1102.5, and 2856) does Plaintiff base his retaliation claim? If Plaintiff knows what the other state and/or federal statutes are, he must specify them and set forth sufficient facts to sustain them; if he does not, then he must remove this language from his Fifth Cause of Action.’ But as currently pled, Defendants have no notice of what “other state and federal statutes...” may have been violated and cannot reasonably defend themselves, and Plaintiff’s claim is therefore fatally uncertain. Gonzales, 68 Cal. App. 3d at 634 (a claim is uncertain where there is doubt about what the plaintiff means by the facts alleged). He does not get to maintain this “catch all” language as a safety net in case one of his other bases fails. 2. Claim 5 Is Duplicative of Plaintiff’s Wrongful Termination in Violation of Public Policy Claim (“Claim 10”°) and He Fails to Plead Facts Sufficient to Show that He Engaged in any Protected Activity. First and foremost, no independent cause of action for common law retaliation exists: retaliation either falls under a statute, such as the FEHA, or is covered by the common law tort of wrongful termination in violation of public policy.’ 6 See Defendants’ concurrently-filed Motion to Strike. 7 Often times plaintiffs plead “wrongful termination in violation of public policy” as retaliation in violation of public policy-effectively the same claim-but not both. 18 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N N N M mm e m e m e m e m e m e m e m oO NN A N nm kA W I N D = D VO N N N B A W = O And second, in support of Claim 5, Plaintiff alleges that Defendants terminated his employment for reporting “numerous instances of discrimination, harassment and retaliation.” Compl, 99 58, 60. Accordingly, Claim 5 constitutes a claim for wrongful termination in violation of public policy and is therefore duplicative of Claim 10. E. Plaintiff Has Not Alleged any Facts Showing that Plaintiff Disclosed or Complained about His Working Conditions Necessary to Support His Claim for Violation of Labor Code § 232.5 (“Claim 6”). Labor Code Section 232.5 prohibits an employer from discharging or otherwise discriminating against an employee who discloses information about the employer’s “working conditions.” Cal. Lab. Code § 232.5(c). “Examples of working conditions...include attire, proper behavior, break room condition, elevator maintenance, seat comfort, temperature, lighting, uniforms, hair requirements, breaks, restroom facilities, and even one’s required attitude.” See, e.g., Tam v. Qualcomm, Inc., No. 17-CV-710 JLS (AGS), 2018 WL 9918097, at *10 (S.D. Cal. Oct. 31, 2018) (citing U.S. ex rel. Lupo v. Quality Assurance Servs., Inc., 242 F. Supp. 3d 1020, 1030-31 (S.D. Cal. 2017).) Here, Plaintiff offers a single, conclusory statement that Defendants terminated his employment after he complained about “being discriminated against, harassed, and retaliated against.” Compl., § 66. Though there are no allegations that Plaintiff ever proffered such complaints, even if true, the conduct of which Plaintiff purports he complained-i.e., discrimination, harassment, and retaliation against Plaintiff-falls outside the scope of the term “working conditions” and Section 232.5’s statutory scheme rendering it susceptible to demurrer. See supra Tam. F. Workers’ Compensation Pre-Empts Plaintiff’s ITED Claim (“Claim 7”), and, Even If Not, Plaintiff Fails to State Facts Sufficient to Constitute a Cause of Action. 1. Workers’ Compensation Exclusivity Rule Bars Claim 7. At the outset, Plaintiff fails to state a cause of action for IIED because Workers’ Compensation is Plaintiffs exclusive remedy as a matter of law. It is well-settled that an employee who sustains an injury “arising out of and in the course of the employment” is limited to recovery under the workers’ compensation system. Cal. Lab. Code § 3600(a); Fermino v. 19 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O Fedco, Inc., 7 Cal. 4th 701, 708 (1994); Shoemaker v. Myers, 52 Cal. 3d 1, 16 (1990). Courts have repeatedly affirmed that independent emotional distress claims arising from the workplace are preempted by the Workers’ Compensation Act’s exclusive remedies and must be dismissed with prejudice when they arise from “actions which are a normal part of the employment relationship.” See Jones, 152 Cal. App. 4th at 1384; Livitsanos v. Sup. Ct., 2 Cal. 4th 744, 747, 752 (1992); Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 158 (1987) (“while the employee receives expeditious compensation, he surrenders his right to a potentially larger recovery in a common law action for the negligence... of his employer”) (emphasis added). 2, Plaintiff Did Not Plead any “Extreme and Outrageous” Conduct. Even if Plaintiff's IIED claim was not subject to Workers’ Compensation Exclusivity (it is), Plaintiff’s Complaint is devoid of a single fact to support his IIED claim. Instead, Plaintiff 9 C6 merely alleges legal conclusions that Defendants’ “adverse employment actions” were “so extreme and outrageous that it [sic] exceeded the boundaries of human decency and was [sic] beyond the pale of conduct tolerated in a civilized society.” Compl., § 68. These legal conclusions are insufficient to preserve this cause of action from demurrer. See Breneric Assocs. Co., 69 Cal. App. 4th at 180. Moreover, the only conduct alleged in the Complaint-that Defendants “forced” Plaintiff to take two disability leaves, that Plaintiff’s “authority” was “regularly undermined,” and that Defendants terminated his employment-constitute personnel management actions incumbent with his employment. California law makes clear that mere “personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.” Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55, 80 (1996). As currently pled, Plaintiff’s allegations against Defendants, even if true, do not rise to the level of actionable harassment, let alone “extreme” or “outrageous” conduct necessary to maintain a claim for IED. See, e.g., Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009) (holding that liability for IIED “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” or even to “mere profanity, obscenity, or abuse, without circumstances of aggravation”). 20 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O G. Workers’ Compensation Pre-Empts Plaintiff’s Negligence-Based Claims (“/Claim 8” and “Claim 9”). Plaintiff seeks to hold Defendants liable based on two theories of negligence (Claim 8- Negligence; Claim 9-Negligent Infliction of Emotional Distress); however, an employee who sustains an injury “arising out of and in the course of the employment” is limited to recovery under the workers’ compensation system. Cal. Lab. Code § 3600(a); see also Fermino, 7 Cal. 4th at 708. The California Supreme Court has explained the basis for this “Workers” Compensation Exclusivity Rule”: a presumed “compensation bargain,” pursuant to which the employer assumes liability for industrial personal injury . . . without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort. Shoemaker, 52 Cal. 3d at 16 (emphasis added). In interpreting the Workers” Compensation Exclusivity Rule, the California Supreme Court has adopted a “tripartite” classification of injuries arising in the course of employment. Fermino, 7 Cal. 4th at 713-714. The Supreme Court identified three categories of injuries keyed to the nature of the employer’s conduct: (1) injuries to an employee resulting from “employer negligence or without employer fault”; (2) injuries to an employee resulting from “ordinary employer conduct that intentionally, knowingly[,] or recklessly harms an employee; and (3) injuries to an employee resulting from employer conduct that is “intentional” and “beyond the boundaries of the compensation bargain.” Fermino, 7 Cal. 4th at 713-714; see also Arendell v. Auto Parts Club, Inc., 29 Cal. App. 4th 1261, 1264 (1994). An employee may bring a civil cause of action premised on the third category of injuries only. See Fermino, 7 Cal. 4th at 713-714; Arendell, 29 Cal. App. 4th at 1264. The Workers’ Compensation system serves as the exclusive forum for obtaining compensation for the first and second categories of injuries-namely, those resulting from employer negligence or from ordinary employer conduct that intentionally, knowingly, or recklessly harms an employee. See 21 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O Fermino, 7 Cal. 4th at 713-714; Arendell, 29 Cal. App. 4th at 1264. Indeed, the Supreme Court has pointedly recognized that under the workers’ compensation regime, “while the employee receives expeditious compensation, he surrenders his right to a potentially larger recovery in a common law action for the negligence... of his employer.” Cole, 43 Cal. 3d at 158 (emphasis added); see Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800, 812-813 (2001) (claims for negligence are expressly subsumed by the alleged facts to show that any exception to Workers” Compensation Exclusivity applies). Plaintiff seeks remedy in the wrong forum and demurrer to Claims 8 and 9 should be sustained. H. Plaintiff’s Wrongful Termination in Violation of Public Policy (Claim 10) Fails to Articulate the Public Policy Allegedly Violated, Deeming It Uncertain. To establish a claim for wrongful termination, Plaintiff must show that his discharge violated a policy that is: “(1) delineated in either constitutional or statutory provisions; (2) public in the sense that it inures to the benefit of the public rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.” Diego v. Pilgrim United Church of Christ, 231 Cal. App. 4th 913,921 (2014). Plaintiff must also show that the violation of public policy “substantially motivated” the discharge of his employment. Id. at 920. Critically absent from Plaintiff’s Tenth Cause of Action for wrongful termination in violation of public policy is any reference to a specific constitutional or statutory provision that he contends Defendants purportedly violated. Compl., 9 88-92. Plaintiff merely asserts that Defendants “forced [him] to take two disability leaves” and later “replaced him while he was on disability leave.” Compl., 7 90-91. However, without identifying the public policy at issue, if any, Defendants cannot determine whether Plaintiff’s allegations in fact implicate any public policy. Furthermore, as pleaded, Defendants cannot decipher what conduct supports the basis for Plaintiff’s claim. Absent further clarification, Plaintiff's Tenth Cause of Action is fatally uncertain. 22 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O 1. Plaintiff’s Failure to Provide Reasonable Accommodations Claim (“Claim 11”) Is Contradicted and Undermined by His Own Allegations. Plaintiff’s Claim 11 is also subject to a demurrer because Plaintiff fails to plead any facts to support this claim. To establish a prima facie case for failure to accommodate, Plaintiff must show: (1) he suffered a disability under the FEHA; (2) he was qualified to perform the essential functions of the job; and (3) Defendants failed to reasonably accommodate his disability. See Scotch v. Art Inst. of Cal., 173 Cal. App. 4th 986, 1009-10 (2009). Here, Plaintiff cannot allege a prima facie case for failure to accommodate for one simple reason-as Plaintiff concedes in his Complaint, Plaintiff received accommodations for his purported disability in the form of two leaves of absence from October 2018-April 2019 and an option to take a third unpaid leave until a store manager position became available. See Compl., 99 12, 17, 90; see, e.g., Jensen, 85 Cal. App. 4th at 263 (holding a finite leave of absence is a reasonable accommodation). Plaintiff is not entitled to cherry pick which accommodation he receives so long as Defendants provided an accommodation, which he expressly admits and/or otherwise acknowledges in his Complaint. See Wilson v. Cty. of Orange, 169 Cal. App. 4th 1185, 1184 (2009) (citing Hanson v. Lucky Stores, Inc., 74 Cal. App. 4th 215, 228 (1999) [“an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided.”]). Simply stated, he has not alleged any failure. J. Plaintiff’s Failure to Engage in the Interactive Process Claim (“Claim 12”) Must Be Dismissed because Claim 11 Fails and He Alleges No Failure to Interact. Similarly, Plaintiff fails to allege sufficient facts to support a claim for failure to engage in the interactive process. First, there can be no failure to engage in the interactive process if Plaintiff’s allegations concede that Rite Aid accommodated his disability. See Hanson, 74 Cal. App. 4th at 229 (“We see no reason why this employer should be subjected to liability for failing to engage in the interactive process where the employee was reasonably accommodated . . .”); see also Watkins v. Ameripride Serv., 375 F.3d 821, 829 fn 5 (9th Cir. 2004) (“The fact that Ameripride reasonably accommodated Watkins’ disability forecloses his allegation that Ameripride failed to engage in the interactive process.”) (citing Hanson). Second, the FEHA 23 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 459811 © 0 9 O N Wn B= W N = N N N N N N N ND ND = E E e m e e e a e a a oO NN A N nm kA W I N D = D VO N N N B A W = O requires an employer to engage in the “interactive process” and “make reasonable accommodations” for known physical or mental disabilities of an employee “in response to a request for reasonable accommodation....” Cal. Gov’t Code § 12940, subds. (m) & (n). Notably absent from Plaintiff’s Complaint is any allegation that Defendants failed to interact with him regarding accommodations for his purported disability. Instead, Plaintiff parrots the allegations contained in his Eleventh Cause of Action (compare Compl. 99 95 and 101), failing to recognize that these two claims are distinct and require different facts and different evidence. See Wysinger v. Auto. Club of S. Cal., 157 Cal. App. 4th 413, 424 (2007) (reasonable accommodation and interactive process claims “involve separate causes of action and proof of different facts”). More importantly though, Plaintiff makes clear that there is no basis for his failure to interact claim since, as Plaintiff concedes, Defendants “presented” at least three options to return to work following his disability leave and therefore timely engaged in the interactive process. Compl., 20. Where is the failure? Defendants should not have to guess. IV. THE COURT SHOULD SUSTAIN DEFENDANTS’ DEMURRER WITHOUT LEAVE TO AMEND WITH RESPECT TO CLAIM 2, CLAIM 5, CLAIM 7, CLAIM 8, CLAIM 9, CLAIM 11, AND CLAIM 12 Where a pleading is defective, “leave to amend [the pleading] should not be granted where, in all probability, amendment would be futile.” Vaillette v. Fireman's Fund Ins. Co., 18 Cal. App. 4th 680, 685 (1993); see also Schonfeldt v. State of Cal., 61 Cal. App. 4th 1462, 1465 (1998). Here, many of the causes action that are the subject of this demurrer are incapable of proper amendment. They include Claim 5 because a common law retaliation in violation of public policy claim does not exist and is, in any event, redundant with the already extant wrongful termination in violation of public policy (i.e., Claim 10); Claims 7, 8, and 9 because they are barred by Workers’ Compensation Exclusivity; and Claims 11 and 12 because the allegations pleaded in the Complaint constitute judicial admissions that Defendants accommodated Plaintiff’s disability and engaged in the statutory interactive process. Defendants respectfully request that the Court sustain this demurrer as to these six causes of action without leave to amend. 24 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS” COMPLAINT 1 Additionally, given Plaintiff’s acknowledgment that Claim 2 was alleged by mistake, and 2 || that Plaintiff has not alleged any facts to support Claim 2, Defendants also request that the Court 3 | dismiss Claim 2 without leave to amend. 4 | V. CONCLUSION 3 For the foregoing reasons, and pursuant to California Code of Civil Procedure Sections 6 | 430.10(a), (e), and (f), Defendants respectfully request that the Court sustain their demurrer in its 7 | entirety. 8 9 DATED: April 27, 2020 KADING BRIGGS LLP GLENN L. BRIGGS 10 KYMBERLEIGH DAMRON-HSIAO STANLEY G. STRINGFELLOW II 11 12 By: / 13 STANLEY G-STRINGFELLOW 1 14 Attorneys for Defendants THRIFTY PAYLESS, INC., and RITE AID 15 CORPORATION 16 17 18 19 20 21 22 23 24 25 26 27 28 459811 25 DEFENDANTS’ DEMURRER TO PLAINTIFF MARK COLLINS’ COMPLAINT Ce 0 9 O N Dn B= W N = N N N N N N N N N m e m e m e m e m e m m e co NI O N Ln A W N = O D I Y B N W ND = O PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. Iam over the age of 18, and not a party to the within action. My business address is Kading Briggs LLP, 100 Spectrum Center Drive, Suite 800, Irvine, CA 92618. On April 27, 2020, I served the foregoing document(s) described as: THRIFTY PAYLESS, INC.’S AND RITE AID CORPORATION’S DEMURRER TO PLAINTIFF MARK COLLINS’ COMPLAINT on the interested parties in this action by the method indicated below and to the following addresses: Dominique N. Westmoreland Attorneys for Plaintiff MARK COLLINS THE WESTMORELAND LAW FIRM, P.C. 955 Deep Valley Drive, Suite 3216 Telephone: (424) 285-5362 Palos Verdes Peninsula, CA 90274 Facsimile: (424) 285-5825 Email: dwestmoreland@wml-law.com BY MAIL: I caused such envelope, with postage thereon fully prepaid, to be placed in the United States mail at Irvine, California. I am readily familiar with the practice of Kading Briggs LLP for collection and processing correspondence for mailing. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY ELECTRONIC SERVICE THROUGH ONE LEGAL ONLINE COURT SERVICES: Pursuant to C.R.C. 2.251, I caused a copy of the foregoing document(s) to be uploaded to One Legal Online Court Services for electronic service on the above- referenced individuals. [] BY FACSIMILE: I caused said document(s) to be transmitted to a facsimile machine maintained by the office of the addressee(s) at the facsimile machine number(s) indicated. Said facsimile number(s) are the most recent numbers appearing on documents filed and served by the addressee(s). I received electronic confirmation from the facsimile machine that said document was successfully transmitted without error. A copy of said electronic confirmation is maintained in this office. [] BY OVERNIGHT DELIVERY: I am readily familiar with the practice of Kading Briggs LLP for the collection and processing of correspondence for overnight delivery and know that the document(s) described herein will be deposited in a box or other facility regularly maintained by the overnight delivery carrier. [] BY PERSONAL DELIVERY: I caused said document(s) to be personally delivered by a process server employed by Nationwide Legal. STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 27, 2020, at Irvine, California. (SF PROOF OF SERVICE