Demurrer__with_motion_to_strike_ccp_43010

Motion

Cal. Super. - 2nd Dist.January 21, 2020

Electronically FILED by Supe Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 Elizabeth T. Arce, Bar No. 216687 earce @lcwlegal.com Alison R. Kalinski, Bar No. 266705 akalinski@Icwlegal.com LIEBERT CASSIDY WHITMORE A Professional Law Corporation 6033 West Century Boulevard, 5th Floor Los Angeles, California 90045 Telephone: ~~ 310.981.2000 Facsimile: 310.337.0837 or Court of California, County of Los Angeles on 06/23/2020 03:24 PM Sherri R. Carter, Executive Officer/Clerk of Court, by J . Lara,Deputy Clerk Attorneys for Defendants CITY OF SOUTH PASADENA, STEPHANIE DEWOLFE and MARIAM LEE KO SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - CENTRAL LAUREN RUBIN, Plaintiff, Vv. THE CITY OF SOUTH PASADENA, a municipal entity, STEPHANIE DEWOLFE, an individual, MARIAM LEE KO, an individual, and DOES 1-10, inclusive, Defendants. Case No.: 20STCV02683 [ASSIGNED FOR ALL PURPOSES TO RICHARD L. FRUIN, DEPT. 15] Complaint Filed: January 21, 2020 FAC Filed: March 6, 2020 SAC Filed: May 20, 2020 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT Date: To be determined Time: 8:30 a.m. Dept. 15 Reservation No.: (*Exempt from filing fees pursuant to Gov. Code, § 6103.) TO THE HONORABLE COURT, PLAINTIFF AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that at 8:30 a.m. on , 2020, or as soon thereafter as this matter may be heard in Department “15” of the above-entitled Court, located at 111 North Hill Street, Los Angeles, California, 90012, Defendants City of South Pasadena, Stephanie DeWolfe and Mariam Lee Ko (collectively, “Defendants’) will and do hereby demur to Plaintiff 1 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 Lauren Rubin’s Second Amended Complaint pursuant to Code of Civil Procedure §§430.10 (e)and 430.10(f). Defendants demur to the Second Amended Complaint on the grounds set forth in the attached Demurrer which is incorporated herein by reference. The Demurrer is based on this Notice of Demurrer, the Demurrer and Memorandum of Points and Authorities, and Declaration of Alison Kalinski served and filed herewith and all pleadings and papers on file with the Court herein, on such matters as the Court may take judicial notice, and further evidence and argument that the Court may receive at or before the hearing on this Demurrer. Dated: June 23, 2020 Respectfully submitted, LIEBERT CASSIDY WHITMORE By: /s/ Alison R. Kalinski Elizabeth T. Arce Alison R. Kalinski Attorneys for Defendants CITY OF SOUTH PASADENA, STEPHANIE DEWOLFE and MARIAM LEE KO 2 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 DEMURRER TO SECOND AMENDED COMPLAINT Defendants City of South Pasadena, Stephanie DeWolfe and Mariam Lee Ko hereby demur to Plaintiff's Second Amended Complaint (“SAC”) and to the individual causes of action set forth therein on the following grounds: DEMURRER TO THE FIRST CAUSE OF ACTION FOR RETALIATION IN VIOLATION OF LABOR CODE SECTION 1102.5 1. Plaintiff’s first cause of action for retaliation in violation of Labor Code section 1102.5 fails to state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10(e).) DEMURRER TO THE SECOND CAUSE OF ACTION FOR RETALIATION IN VIOLATION OF LABOR CODE SECTION 98.6 2. Plaintiff’s second cause of action for retaliation in violation of Labor Code section 98.6 fails to state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10(e).) DEMURRER TO THE THIRD CAUSE OF ACTION FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY 1. Defendants are immune from liability for the third cause of action for wrongful termination in violation of public policy. (Code of Civil Procedure §430.10(e).) 2. Plaintiff’s third cause of action for wrongful termination in violation of public policy fails to state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10(e).) DEMURRER TO THE FOURTH CAUSE OF ACTION FOR DISCRIMINATION IN VIOLATION OF CALIFORNIA GOVERNMENT CODE SECTIONS 12940 ET SEQ. [FEHA] 1. Plaintiff’s fourth cause of action for disability discrimination in violation of FEHA fails to state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10(e).) 2. To the extent Plaintiff’s fourth cause of action for discrimination in violation of FEHA seeks recovery for alleged injuries that occurred before November 25, 2018, these claims 3 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 are barred by the statute of limitations and the provisions of Government Code §12960(d). Plaintiff filed a Charge of Discrimination on November 25, 2019 with the DFEH. As such, any allegations of FEHA violations that occurred prior to November 25, 2018 are barred by the applicable period of limitation. (Government Code §12960(d); Code of Civil Procedure §430.10(e).) DEMURRER TO THE FIFTH CAUSE OF ACTION FOR HARASSMENT AND HOSTILE WORK ENVIRONMENT IN VIOLATION OF CALIFORNIA GOVERNMENT CODE SECTIONS 12940 ET SEQ. [FEHA] 1. Plaintiff’s fifth cause of action for harassment and hostile work environment in violation of FEHA fails to state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10(e).) 2. To the extent Plaintiff’s fifth cause of action for harassment and hostile work environment in violation of FEHA seeks recovery for alleged injuries that occurred before November 25, 2018, these claims are barred by the statute of limitations and the provisions of Government Code §12960(d). Plaintiff filed a Charge of Discrimination on November 25, 2019 with the DFEH. As such, any allegations of FEHA violations that occurred prior to November 25, 2018 are barred by the applicable period of limitation. (Government Code §12960(d); Code of Civil Procedure §430.10(e).) DEMURRER TO THE SIXTH CAUSE OF ACTION FOR FAILURE TO TAKE ALL REASONABLE STEPS TO PREVENT DISCRIMINATION AND HARASSMENT IN VIOLATION OF CALIFORNIA GOVERNMENT CODE SECTIONS 12940 ET SEQ. [FEHA] I. Plaintiff’s sixth cause of action for failure to take all reasonable steps to prevent discrimination and harassment in violation of FEHA fails to state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10(e).) 2. To the extent Plaintiff’s sixth cause of action for failure to take all reasonable steps to prevent discrimination and harassment in violation of FEHA seeks recovery for alleged injuries that occurred before November 25, 2018, these claims are barred by the statute of limitations and 4 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 the provisions of Government Code §12960(d). Plaintiff filed a Charge of Discrimination on November 25, 2019 with the DFEH. As such, any allegations of FEHA violations that occurred prior to November 25, 2018 are barred by the applicable period of limitation. (Government Code §12960(d); Code of Civil Procedure §430.10(e).) DEMURRER TO THE SEVENTH CAUSE OF ACTION FOR SLANDER AND PER SE I. Plaintiff’s seventh cause of action for slander per se is barred by the statute of limitations. (Code of Civil Procedure §430.10(e); Cal. Civ. Proc. Code § 340 (c).) 2, Plaintiff’s seventh cause of action for slander per se fails to state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10(e).) DEMURRER TO THE EIGHTH CAUSE OF ACTION FOR DEFAMATION 1. Plaintiff’s eighth cause of action for defamation is barred by the statute of limitations. (Code of Civil Procedure §430.10(e); Cal. Civ. Proc. Code § 340 (c).) 2. Plaintiff’s eighth cause of action for defamation fails to state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10(e).) DEMURRER TO THE NINTH CAUSE OF ACTION FOR FALSE LIGHT 1. Plaintiff’s ninth cause of action for false light se is barred by the statute of limitations. (Code of Civil Procedure §430.10(e); Cal. Civ. Proc. Code § 340 (c).) 2. Plaintiff’s ninth cause of action for false light fails to state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10(e).) 3. To the extent Plaintiff is relying on any of the alleged defamatory conduct to support her ninth cause of action for false light, it fails based on the single publication rule. (Cal. Civ. Code § 3425.3; Code of Civil Procedure §430.10(e).) DEMURRER TO THE TENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 1. Defendants are immune from liability for the tenth cause of action for intentional infliction of emotional distress. (Code of Civil Procedure §430.10(e).) 2. Plaintiff’s tenth cause of action for intentional infliction of emotional distress fails 5 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 to state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10(e).) 3. To the extent Plaintiff is relying on any of the alleged defamatory conduct to support her tenth cause of action for intentional infliction of emotional distress, it fails based on the single publication rule. (Cal. Civ. Code § 3425.3; Code of Civil Procedure §430.10(e).) 4. The tenth cause of action for intentional infliction of emotional distress is barred by the Workers’ Compensation Act. (Code of Civil Procedure §430.10(¢).) Dated: June 23, 2020 Respectfully submitted, LIEBERT CASSIDY WHITMORE By: /s/ Alison R. Kalinski Elizabeth T. Arce Alison R. Kalinski Attorneys for Defendants CITY OF SOUTH PASADENA, STEPHANIE DEWOLFE and MARIAM LEE KO 6 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 L INTRODUCTION TABLE OF CONTENTS IL. PLAINTIFF'S ALLEGATIONS IN HER SECOND AMENDED COMPLAINT III. PROCEDURAL HISTORY IV. LEGAL ARGUMENT A. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION UNDER LABOR CODE SECTION 1102.5 in cuss avsanan ss ssuanss swans ss suns avsasss as sams aes PLAINTIFF FAILS TO STATE A CAUSE OF ACTION UNDER LABOR CODE SECTION 98.6 .uumusssmmusmammsvmmsesmssswmmesmamssssmsmsen PLAINTIFF CANNOT STATE A CLAIM FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY BE ANNET. THE CCTV msm sms sass som me ERE PLAINTIFF FAILS TO STATE ANY CAUSE OF ACTION FOR VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT eeeeee sheets ee eae sateen eee I. Plaintiffs Age Discrimination Claim Fails ..........ccocvviiiiiiiienennee. 2. Plaintiff’s Age Harassment Claim Fails .........ccccoooeevinniinciiiiiennene. 3. Plaintiff’s Claim for Failure to Prevent under FEHA Fails ............... 4. Allegations that Occurred One Year Before Plaintift’s Filing of a DFEH Claim are Barred by the Statute of Limitations............... PLAINTIFF'S CLAIMS FOR SLANDER PER SE, DEFAMATION, AND FALSE LIGHT FAIL ....c.cccccooiiiiiiiniinieececeeee I. The Claims are Time Barred...........ccooceevieiiiiiiinninicececneee 2. The SAC Fails to State a Cause of Action for the Seventh, Eighth, and Ninth Causes of ACtiON .........cccccevveerviernieeiecneinieeneene PLAINTIFE’S CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FAILS o.oo eee ee eae 1. Defendants are Immune from Claims for Intentional Infliction of EMotional DIStreSS......cvviiiiiiiieieiieeieeeieiivieee ee eevev innn 2- The IIED Claim is Barred by the Single Publication Rule. ................ 7 an az 16 sas 18 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 3. The SAC Fails to State a Cause of Action for Intentional Infliction of Emotional Distress. ........cccuveeiieiriiiriiiiinnieeenieeeniieeesiieeesiieene 4. IED preempted by Workers’ Compensation Act..........ccceeveeveeeueeneennnnne V. THE DEMURRER SHOULD BE SUSTAINED WITHOUT LEAVE TO AMEND coi eee sees eshte sheets ee este sate ste tebeebeeatesha eas VL COBRICTUTSTOMN jms smn ons ummm mmm ows 5 055555558 55555 45555 05555555 S455 55.50 055540 533045 50 8 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 TABLE OF AUTHORITIES Page(s) Federal Cases Davison ex rel. Sims v. Santa Barbara High School Dist. (C.D. Cal. 1998) 48 F.SUPP.2d 1225 ..onieieieee eee ete eee estes sees ie essa sae ee 23 Ghebreselassie v. Coleman Security Service {Oth Cit. 1987) 829 B.2 BUD, , ssi umn nnsss stsasssoassssis sss sis 4555565 05555545 5555555 55555558 55 SHA 8558 24 Hollie v. Concentra Health Servs., Inc. (N.D. Cal. Mar. 23, 2012) C 10-5197 PJH, 2012 WL 993522, at ¥6-7 ...cccceevueecuerireriierinenns 18 Lav. San Mateo Cty. Transit Dist. (N.D. Cal. Sept. 16, 2014) No. 14-CV-01768-WHO, 2014 WL 4632224, at *6 .........cce...... 17 Lauter v. Anoufrieva (C.D. Cal. 2009) 642 F.SUPP.2d 1060 .....ccceeeeiiaiiiiiieeiie cites ates eee sete seve eee seeesaee een 22 Love v. Motion Indus., Inc. (ND: Cal. 20045 309 F. SUPP: Zi. LTR sommes sumansn.s sons cnsssn is msm 505m. 55555508 555555538 SATE 555558 00555 17 McGill v. Comcast Cable Commc’'ns Mgmt., LLC (N.D. Cal. Oct. 30, 2017) No. 16-CV-05202-NC, 2017 WL 4877449, at *6.......ccccevevrvrerunen. 19 Mclnnis v. Town of Weston (D. Conn. 2005) 375 F. SUPP. 2d TO eevee eee ete esi eee 20 Tillery v. Lollis (E.D. Cal. Aug. 13,2015) 2015 WL 4873111, at 9 ...eiiiiiiiiieiie eects eee 17 United States ex rel. Lupo v. Quality Assurance Servs., Inc. (8: Cal. 20017) 242 F. SUPD. 30. 1020 x 0mmm50 sumasn ss sonssn cvs n msn sons 56555558 555555738 SATE 555558 00555 17 Vera v. Con-way Freight, Inc. (C.D. Cal., Apr. 6, 2015) No. CV 15-874 AJW, 2015 WL 1546178, at *1 ....ccccccerveerriiennnnne 17 Weingand v. Harland Fin. Sols., Inc. (N.D. Cal. Aug. 14,2012) No. C-11-3109 EMC, 2012 WL 3537035, at ¥*6-7 ....c.cccvevrueerunnnne 18 State Cases Banks v. Dominican College (1995) 35 Cal. APP.Ath 1545 eee te eee steer ee sbae sabes sees bee saee een 24 Caldwell v. Montoya (1995) 10 CalAth O72 «oe eee eee sees eset sabe e eae e sate enbe ane eenseas 21,26 Carter v. Escondido Union High Sch. Dist. (2007) 148 Cal. APP.Ath 22 eee eee eee sabes s teeta setae nee esaesaae ees 16 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 Dickinson v. Cosby (2017) 17 CalLAPP.Sth 655 coon 25 Dickson v. Burke Williams, Inc. (2016) 234 Cal. APPA 1307 couse scuusn ss svmusss sms ss uss svssss is sams ssi avs 5s 505558553 £25554 55 REE HFA 45.00.20 21 Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal APD BA SOO 1 ucmmmsnnsarsasasonsasssssooss so es vos sass es mss 55am ise sams 20 Gates v. Superior Court (1995) 32 Cal. APP.Ath 481 coon 25 Gillan v. City of San Marino (2007) 147 CalLAPP.4th 1033 o.oo eee eebe steer ee sbbe estes nee ssaesaee ees Grinzi v. San Diego Hospice Corp. (2004) 120 Cal APPA. T2 son smmnsn swans nsmass sumsnsm.65555755 55555 5555 555555 $5555 5545 5455559 755555 08 5455555 55555 18, Hughes v. Pair (2009) 46 Cal.Ath 1035 ....eiiiieeie eee eters ete e estes sabe sabes ae esses sabe snbe enna enseas 20, In re Groundwater Cases (2007) 154 Cal. APPA 659 ceo eee eee eases sate sabe eee ea ee saa ee lon Equip. Corp. v. Nelson (1980) 110 Cal APP.3A BOG... eee eters eee stte sabes e est eesbbesebeaneesseessee ees Javorv. Taggart (2002) 98 CALAPDATIE. TOT sain suns swmsnsn onsusnss 555555%.565555757% 55555 5738 555359 $5555 5545 5455555 S455555.08 5455555 S555 55.58 555 Johnson v. Harcourt, Brace, Jovanovich, Inc (1974) 43 Cal APP-3A BBO «eee eee eee esate setae teeta esbbe sete ene ee beesaae ees Jones v. Lodge at Torrey Pines P’ship (2008) 42 Cal.dth 1158 o.oo teeter steers sbeebs teste seen se ene Kemmerer v. County of Fresno (1988) 200 Cal. APP.3A 1426 onic sabes sabe eesabe esses King v. UPS, Inc. (2007) 132 Cal APRA ADO cx comms vss on susnss sswssm.6.555575% 55555 55.59 555359 $5555 545 5455555 S755555.08 5455555 S555 55.59 55 McGuiness v. Motor Trend Magazine (1982) 129 Cal. APP-3A 59 eee eee sete sabes sabes sabes sabes McRae v. Dep't of Corr. & Rehab. (2006) 142 Cal. APPA 377 eee sree sbeebs aetna ees Mokler v. Cnty. of Orange (2007) 157 Cal APPA 121 weenie eee e sabe sabe eneesseesbee ees Nguyen-Lam v. Cao (2009) 171 Cal APDATE BIB ox cons svn on susnass suwsssn. 65555755 55555 55.58 555559 $5555 545 5455555 $7555.08 5455555 5555 55.58 555 10 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 Reno v. Baird (1998) 18 Cal.Ath 640 cocci eee eee eee eee eee eee eee ee eee e ee eaae ee eetar ease eaaeees 17 Richardson-Tunnell v. School Ins. Program for Employees (SIPE) (2007) 137 Cal APPAR. 1056: nus snnsnonsnosnss swans. som ors i5 5555555 5505055.5. 5555555 $55555538 SATE 555558 00555, 25 Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal. APP.ALh T1605 cenit eects eters eee eee sees sbte sabe e sees see saae een 24 Romano v. Rockwell Internet, Inc. (1996) 14 CallAtI ATO cuore eee e eee e ee eaae ee ee etae ae ee eaaeens 21 Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. APPA 297 cence eee sees atest esate eebe ene esbaesaee ees 20 Scotch v. Art Institute of Cal. (2009) 173 Cal APDAE. DBO scsumunsn snssnnonsnosnss swans. som orssssm is 5555555 555055.5 55555508 $55555538 SAFER SV5558 04555, 21 Selleck v. Globe Int’l, Inc. (1985) 166 Cal. APP.3A 1123 onic etter ee eraser eee eaae era e sree een seenaeenees 25 Shively v. Bozanich (2003) 31 CaliAth 1230 uits eee eae sree eset sb esas en 22,24 Shoemaker v. Myers (1990) 52 Cal.3A 1 eects eee ste sates teeta a sbae sabe aase ess ee este eebeanneeenseesaae ees 27 Singh v. Southland Stone, U.S.A. Inc. (2010) 186 Cal APD AH. SIV cucu cosssnn asso wvmssmn.s cavsiss 5s 555 5655555 £555555.06 5455559 55555 35 5 R55355 8553555. 49 555 27 Trovato v. Beckman Coulter, Inc. (2011) 192 CalLAPP-Ath 319 enit este eaters sate sabes e eee ee saa ee 21 Trujillo v. North County Transit Dist. (1998) 63 Cal. APPA 280 «cee sees sate sees eae 21 Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal. APP-Ath 819 n es sateen 26 Wright v. State (2004) 122 Cal APDAH B59 ccsumunsn nnn onsnosnss swans som ors is 5555555 5550555555558 $55555538 SATE S555 5555 25 State Statutes CVI] €0de SECHION 3425.3 cee eee eee ae aes eae esas aes esas esas ae aeaeaeaeaeaeaes 23,26 Civil COE SECTIONS 45-40 ....couuiiiiiiiiiieieeiie eee eee eee erie este este steer e stes sabe ee sabe ee sabe ee sabe ee sanes 24 Code of Civil Procedure SeCtion 340(C) ......cccoiriiiiirierieeeeeeiiiiiiereee sees isiiri reee se s es sisarsesssesees ssassens ns 22, Government Code SeCtion 129401) .......oooiviieiiiiiiieiie ieee eee cece e eee errr ee eee ee eetara ae ees 17 Government Code Section 12900(d) .....oeiieeiiiiiiiiieiiee e cece ccc reeee eee ee eee ee eee ee eeraraeae ees 21 Government Code SECON 815(A) ..uuvririiiieiiiiiiiiiiiiiee cece ee cece eer eee seer erar area ease ee eesara aeens 19 11 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 Government Code Section 820.2........cooviviiiiiiiiiiii 21, 26 Labor Code §§1101, 1102 and 1102.5 ...cc.uiiiiiiiiiiieieeie cies eset saan 18 Labor Code SECON 1102.5 ...cooovviiiiiiiiiieieeeeeeeeeeeeeee teeter eee assesses as ee esas aeaeeeaereaeaes 17, 18 Labor Code Section 1102.5(D).....ccciiiiiiiiiieieee eect eee cece e cece ever eee e sees eeeaar bere ee sees eeraraeaeeas 16 Labor Code SEEUOM 11S uu uss mssmsn smmssnos msm sown. 5555555 5505555745 5555555 $5553 75-45 5455555 S455535.08 5455575 S555 55.59.065 17 Labor Code SECTION 98.0 .....c..eiiuiiiiiiiieiie ects eters sree eaten esas sees ens 18 Other Authorities 4 Witkin, Cal. Proc. 5th Plead § 53 (2020)... ieee eects eevee eee escent 25 5 Witkin. Cal. Torts. CLO Bd. 2005) 8 535 « omn.mmssnnmmsnsn sss ss sms mmo sss 55060 5551 555555555 24 6A Cal. Jur. 3d Assault and Other Willful TOItS § 177 coeueeeeieiiieiieeeeee e e e cts eee e eee 22 12 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendants City of South Pasadena (“City”), Stephanie DeWolfe, and Mariam Lee Ko bring this demurrer to Plaintiff Lauren Rubin’s verified Second Amended Complaint (“SAC”). Plaintiff was a Senior Account Clerk in the City’s Finance Department. Plaintiff fell behind in her job duties which included depositing City checks and processing renewals for the City’s business license program. As a result, the City placed Plaintiff on administrative leave to investigate whether Plaintiff and another employee neglected their duties in the care of handling City property. At the same time, an independent audit of the City’s Finance Department revealed that the City was significantly behind in processing business licenses, and the City decided to outsource the processing to a third party vendor. As a result, the positions of Plaintiff and two other employees in the Finance Department were eliminated, and all three employees were laid off. These positions were eliminated following notification to Plaintiff's union and meeting and conferring on this issue. Plaintiff has now filed this lawsuit claiming she was terminated based on her age and for being a whistleblower. The Second Amended Complaint fails to state any cause of action against Defendants. First, Plaintiffs Labor Code 1102.5 and 98.6 whistleblower claims fail because Plaintiff fails to allege she engaged in protected activity. Plaintiff only alleges she shared concerns of “financial irregularities,” (SAC Pars. 30, 35) or that she tried to warn of “illegal activity,” (Par. 36) but this does not disclose a violation of state or federal law. While the SAC alleges Plaintiff became concerned that the City was violating certain statutes, nowhere in the SAC does Plaintiff allege she reported any of these believed statutory violations to anyone. In addition, internal complaints cannot support a claim under Labor Code 98.6, and individual defendants are not liable under 1102.5. Second, Plaintiffs third cause of action for wrongful termination in violation of public policy against the City fails as a matter of law as this common law claim is barred against public agencies. Third, Plaintiff fails to state any violation of the Fair Employment and Housing Act. 13 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 While Plaintiff alleges Defendants discriminated and harassed her based on age, she offers no evidence to suggest her layoff was motivated by her age nor any specific incidents of age-based harassment. Since her discrimination and harassment claims fail, so does her claim for failure to prevent discrimination and harassment. In addition, all allegations occurring before November 25, 2018 are barred by the statute of limitations and cannot be considered with respect to Plaintiff’s FEHA claims. Fourth, Plaintiff’s slander, defamation, and false light claims against Defendants DeWolfe and Ko fail. Plaintiff alleges she learned after January 23, 2019 that Defendants DeWolfe and Ko made false statements about her on September 14, 2018 and October 10, 2018. (SAC Par. 180.) These claims are barred by the one-year statute of limitations because Plaintiff alleges to no facts to suggest this was a secretive communication that would toll the statute of limitations. In addition, Plaintiff does not allege the nature of the communication to even suggest it was defamatory. Moreover, to the extent that Defendants DeWolfe or Ko were communicating internally about the reasons for Plaintiff’s lay off, such communications are privileged and cannot form a defamation claim. Finally, Plaintiff’s tenth cause of action for intentional infliction of emotional distress fails. Defendants are immune. If it is based on alleged defamatory statements, it is barred by the single publication rule. Plaintiff’s allegations do not amount to “extreme or outrageous” conduct; rather the essence of the conduct alleged by Defendants is that she was “overwhelmed” with work and had a “stressful investigation.” (SAC Pars. 18, 46.) Severe emotional distress that arises from outrageous conduct in the normal course of employment is preempted by the Workers’ Compensation Act. For all of these reasons, and for the reasons explained more fully below, Defendants request the Court sustain its demurrer to the Second Amended Complaint without leave to amend. II. PLAINTIFEF’S ALLEGATIONS IN HER SECOND AMENDED COMPLAINT Plaintiff was employed as a Senior Account Clerk in the City’s Finance Department for 13 years. (SAC Pars.1-2.) According to Plaintiff, in 2017 the City sent letters to residents seeking payment for business licenses. (SAC Par. 13.) Plaintiff alleges she warned the City that its plans 14 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 for the business license program would not be manageable, and that the City managers lied about the business license program. (SAC Pars. 14-15.) Plaintiff further alleges the public berated her on a daily basis in response to the program and the City did nothing to help her which caused her extreme emotional distress. (SAC Pars. 18-20.) As to Defendants DeWolfe and Ko, Plaintiff alleges they tried to intimate staff, including Plaintiff, and planned to remove older workers from the Finance Department. (SAC Par. 26.) Plaintiff alleges she “tried to advise Defendant Ko and Aceves both in person and via email about incoming monies not being directed into the correct accounts” and that she was concerned about violation of provision of the Penal Code. (SAC Par. 28.) Plaintiff also sent out emails to Defendant Ko and Ms. Karen Aceves alerting them to financial irregularities and mishandling of monies, but received no response. (SAC Par. 30.) Plaintiff alleges the audit of the Financial Department was a “sham” audit. (SAC Par. 31.) On August 16, 2018, Plaintiff shared concerns about the audit and “about monies not being processed and accounted for properly” with Defendant Ko. (SAC Par. 35.) Plaintiff alleges Defendants retaliated against her by investigating her and placing her on administrative leave, but it was a pretext for her age and for raising her concerns to Defendant Ko. (SAC Par. 36.) Plaintiff alleges her lay off was a termination based on her age and for blowing the whistle. (SAC Pars. 39, 47.) Finally, Plaintiff alleges that Defendants DeWolfe and Ko defamed and slandered her by making false statements about her and damaged her reputation. (SAC Pars. 49, 55, 56, 83, 103, 123, 180.) III. PROCEDURAL HISTORY Plaintiff filed her Complaint on January 21, 2020, and before she served Defendants, filed her First Amended Complaint on March 8, 2020 and served Defendants on March 11, 2020. (Declaration of Alison Kalinski (“Kalinski Decl.” Pars. 2-3).) In response to Defendants’ meet and confer by letter and telephone discussion on the First Amended Complaint, Plaintiff agreed to file a Second Amended Complaint, and the Court granted the parties’ request for additional time for Plaintiff to file it. (/d. Pars.4-6.) Plaintiff filed her Second Amended Complaint on May 20, 2020, and responded to the meet and confer letter the same day. (Id. Pars. 7-8.) While Plaintiff 15 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 made some revisions, the Second Amended Complaint is largely the same as the First Amended Complaint. (/d. Par. 8.) Defendants sent Plaintiff a meet and confer letter on the deficiencies in the Second Amended Complaint and their intent to file a demurrer and motion to strike on June 10, 2016. (Id.. Par. 10.) The parties subsequently corresponded by email, but did not reach an agreement and Plaintiff did not agree to amend the SAC. (/d.) IV. LEGAL ARGUMENT A. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION UNDER LABOR CODE SECTION 1102.5 To establish a prima facie case of retaliation under Labor Code section 1102.5(b), Plaintiff must show: (1) she engaged in protected activity; (2) she was subjected to an adverse employment action; and (3) a causal link between the two. (Mokler v. Cnty. of Orange (2007) 157 Cal.App.4th 121, 138.) Protected activity under section 1102.5(b) requires disclosing “a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or 99 <6 regulation” “to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance.” (Lab. Code section 1102.5, subd. (b).) The SAC still fails to state a prima facie cause of action because Plaintiff does not allege she disclosed any violation of law or regulation. Rather, Plaintiff only alleges she shared her concerns of “financial irregularities,” (SAC Pars. 30, 35) or that she tried to warn of “illegal activity.” (Par. 36.) While the SAC alleges Plaintiff became concerned that the City was violating certain statutes, such as Penal Code 424, 484, and 518, nowhere in the SAC does Plaintiff allege she reported any of these believed statutory violations to anyone. (Pars. 14, 28.) This does not constitute protected activity; vague and conclusory allegations are insufficient. (See, e.g., Carter v. Escondido Union High Sch. Dist. (2007) 148 Cal.App.4th 922, 933, 56 Cal.Rptr.3d 262, 269 (holding termination of teacher was not protected by section 1102.5 where teacher disclosed to athletic director that a coach recommended a protein shake to a student because “the information disclosed by Carter did not ‘disclose[ | a violation of state or federal 299 statute, or a violation or noncompliance with a state or federal rule or regulation’”); Love v. 16 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 Motion Indus., Inc. (N.D. Cal. 2004) 309 F. Supp. 2d 1128, 1135 (granting summary judgment to employer on section 1102.5 claim where “Plaintiff does not cite any statute, rule, or regulation that may have been violated by the disclosed conduct. Rather, he argues simply that he reasonably believed that the activity violated some unnamed statute, rule, or regulation.”); La v. San Mateo Cty. Transit Dist. (N.D. Cal. Sept. 16, 2014) No. 14-CV-01768-WHO, 2014 WL 4632224, at *6 (dismissing section 1102.5 claim because “[i]n most instances, [plaintiff] completely fails to connect the misconduct she allegedly disclosed to a specific rule, regulation or statute. In other instances, [plaintiff] connects her disclosures to rules that are insufficient to support a whistleblower retaliation claim under section 1102.5(b).”).) Finally, this cause of action cannot be sustained against Defendants Ko and Wolfe. Courts consistently hold that Labor Code section 1102.5 does not authorize a cause of action against individuals. The 2014 amendments to section 1102.5 do not change this. (See, e.g., Labor Code 1105 (injured employees recover damages from employer); Tillery v. Lollis (E.D. Cal. Aug. 13,2015) 2015 WL 4873111, at *9 (engaging in lengthy analysis in determining that section 1102.5 does not provide for individual liability post-amendment); Vera v. Con-way Freight, Inc. (C.D. Cal., Apr. 6, 2015) No. CV 15-874 AJW, 2015 WL 1546178, at *1 (“No case has held that section 1102.5 creates personal liability for individual employees.”); Reno v. Baird (1998) 18 Cal.4th 640, 645, 76 Cal.Rptr.2d 499 (affirming no individual liability exists under FEHA based on the statute’s definition of “employer” to include “any person acting as an agent of an employer....”); Jones v. Lodge at Torrey Pines P’ ship (2008) 42 Cal.4th 1158, 1162, 72 Cal.Rptr.3d 624 (holding use of the word “person” in Government Code section 12940(h)- which forbids retaliation by making it unlawful for “any employer ... or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part”-does not compel “the conclusion that all persons who engage in prohibited retaliation are personally liable, not just the employer”); United States ex rel. Lupo v. Quality Assurance Servs., Inc. (S.D. Cal. 2017) 242 F. Supp. 3d 1020, 1030 (“Based on Reno and Jones, the court concludes that if the California Supreme Court were ever to consider the issue, it would hold that there can be no individual liability under section 1102.5.) 17 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 B. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION UNDER LABOR CODE SECTION 98.6 In order to state a claim brought under Labor Code §98.6, Plaintiff must show: (1) she engaged in protected activity; (2) she was subject to an adverse employment action; and (3) the existence of a causal link between the two. (Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 86-89.) Section 98.6 provides that an employer shall not retaliate against an employee because the employee filed a “bona fide complaint or claim” with the Labor Commissioner, or “caused to be instituted any proceeding under or relating to his rights, which are under the jurisdiction of the Labor Commissioner;” made a complaint for unpaid wages; engaged in any conduct delineated in Labor Code §§1101, 1102 and 1102.5; initiated action pursuant to the Private Attorneys General Act [Labor Code Section 2699]; “or has testified or is about to testify in a proceeding pursuant to that section, or because of the exercise by the employee or applicant for employment on behalf of himself, herself, or others of any rights afforded him or her.” Plaintiff alleges no such facts here. Plaintiff does not allege any claims for unpaid wages, that she made any complaints to the Labor Commissioner, that she engaged in political activity, that she instituted any actions under the Private Attorneys General Act, or that she testified in any proceedings. Plaintiff only alleges she raised internal concerns of “financial irregularities” to Defendant Ko or Karen Aceves were made. (SAC Pars. 30, 35.) As discussed above, this does not constitute protected activity under Labor Code §1102.5, and, therefore, cannot constitute protected activity under section 98.6. In addition, sharing concerns internally does not constitute protected activity under section 98.6. (See Hollie v. Concentra Health Servs., Inc. (N.D. Cal. Mar. 23, 2012) C 10- 5197 PJH, 2012 WL 993522, at *6-7.) (“[T]he court finds as a matter of law that neither the verbal/e-mail protests, nor the protests “by conduct,” were activities protected under § 98.6, because they do not fall within the categories set forth in that statute.”); Weingand v. Harland Fin. Sols., Inc. (N.D. Cal. Aug. 14, 2012) No. C-11-3109 EMC, 2012 WL 3537035, at *6-7 (“[ T]he Court agrees that Plaintiff has failed to state a § 98.6 claim for failure to allege that he engaged in protected activity . . . Plaintiff merely alleges that he complained of his employer's 18 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 conduct within the company itself, conduct the Hollie court found unprotected under the Labor Code.”). Recent case law confirms that Section 98.6 does not apply to only internal complaints. (See McGill v. Comcast Cable Commc’ns Mgmt., LLC (N.D. Cal. Oct. 30, 2017) No. 16-CV- 05202-NC, 2017 WL 4877449, at *6 (“McGill claims only that he informally complained to his supervisors. Despite its seemingly broad reference to “the exercise ... of any rights,” Labor Code § 98.6 does not protect against retaliation for this type of informal complaint.”); Grinzi v. San Diego Hospice Corp. (2004) 120 Cal. App.[4th 72, 87, 14 Cal.Rptr.3d 893, 904 (recognizing §98.6 requires alleging a “termination occurred because she exercised a right protected by the Labor Code”).) Because Plaintiff has not engaged in protected activity for the reasons discussed above, this cause of action fails. C. PLAINTIFF CANNOT STATE A CLAIM FOR WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY AGAINST THE CITY Plaintiff’s third cause of action for wrongful termination in violation of public policy against the City fails as a matter of law as this claim is barred against public agencies. Public entities are immune for tort liability in the absence of a statute stating otherwise. (Govt. Code § 815, subd. (a); Legis. Comm. Comment to Gov. C. § 815; see In re Groundwater Cases (2007) 154 Cal. App.4th 659, 688, 64 Cal.Rptr.3d 827, 848-49.) Wrongful discharge claims are common law torts, and as such cannot proceed against public entities. (Miklosy v. Regents of the Univ. of Cal. (2008) 44 Cal.4th 876, 899-900.) This cause of action fails as a matter of law. D. PLAINTIFF FAILS TO STATE ANY CAUSE OF ACTION FOR VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT 1. Plaintiff’s Age Discrimination Claim Fails In order to assert a claim for age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence 19 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 that the plaintiff was replaced by someone significantly younger than the plaintiff. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. App.4th 297, 321.) Plaintiffs age discrimination fails because she has not alleged any facts suggesting discriminatory animus. Plaintiff does not allege any comments based on her age or any facts whatsoever suggesting she was discriminated against based on her age. The only adverse actions alleged by Plaintiff within the statute of limitations is Plaintiffs layoff, and there is no allegation suggesting it was taken with any discriminatory animus. Plaintiff’s paid administrative leave is outside the statute of limitations. (SAC Pars. 37, 38, 41, see infra D(4).) Mr. Lewis’s investigation of Plaintiff is not an actionable adverse action and in any event, is also outside the statute of limitations. (See id; McRae v. Dep't of Corr. & Rehab. (2006) 142 Cal.App.4th 377, 382 (finding internal affairs investigation was not an adverse employment action because “the investigation itself, irrespective of the reasons for its initiation or its outcome, made no material change in the terms or conditions of Dr. McRae’s employment”); Meclnnis v. Town of Weston (D. Conn. 2005) 375 F. Supp. 2d 70, 85 (holding internal affairs investigation was not an adverse employment action to support retaliation claim).) 2. Plaintiff’s Age Harassment Claim Fails To plead a cause of action for hostile work environment harassment, a plaintiff must allege facts demonstrating that: (1) she belongs to a protected class; (2) she was subjected to unwelcome harassment; (3) the alleged harassment was based on the protected classification; and (4) the harassment was sufficiently pervasive so as to alter the conditions of employment. (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal. App.3d 590, 608.) Under FEHA, an employee must show harassing conduct was “severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [protected characteristic].” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) “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.” (Fisher, supra, 214 Cal.App.3d at 610.) Here, there are no allegations of harassing conduct related to Plaintiff’s age, and personnel matters are not harassment. The SAC alleges no comments showing age bias. 20 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 Moreover, even if there were, this cause of action cannot be maintained against Defendants Ko and Wolfe. As public employees, Wolfe and Ko were performing acts within the scope of their authority vested in them as City Manager and Interim Finance Director and thus are immune from liability for their discretionary acts pursuant to Government Code section 820.2. (See Government Code §820.2; see also Caldwell v. Montoya (1995) 10 Cal.4th 972, 979-980.) For all of these reasons, Plaintiff’s harassment claim should be dismissed against all Defendants. 3. Plaintiff’s Claim for Failure to Prevent under FEHA Fails Plaintiff’s claim for failure to prevent discrimination and harassment fails because Plaintiff fails to plead harassment or discrimination as discussed above. FEHA does not create a stand-alone tort, and therefore an employee has no cause of action, for a failure to prevent unlawful harassment actionable misconduct occurred. (Dickson v. Burke Williams, Inc. (2016) 234 Cal.App.4th 1307, 1315-1317 (citing Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280 and Scotch v. Art Institute of Cal. (2009) 173 Cal.App.4th 986).) 4. Allegations that Occurred One Year Before Plaintiff’s Filing of a DFEH Claim are Barred by the Statute of Limitations A Charge of Discrimination with the Department of Fair Employment and Housing (“DFEH”) can only include allegations and claims that pre-date the filing of the charge by 12 months. (See Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319; Romano v. Rockwell Internet, Inc. (1996) 14 Cal.4th 479, 492; Gov. Code §12960(d).) Once the DFEH issues a right- to-sue letter, a lawsuit must be filed within one year from the issuance of that letter. (Gov. Code §12965(b).) Pursuant to Government Code section 12960(d), “[n]o complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred.” (Gov. Code §12960, subd. (d).) Here, Plaintiff alleges she filed her DFEH complaint on November 25, 2019. (SAC Par. 75.) Thus, the only actionable adverse employment actions/harassment for her FEHA claims that fall within the statute of limitations are from November 25, 2018 through November 25, 2019. Plaintiff, however, alleges conduct beginning in November 2017 in her SAC. (SAC {{ 13, 15, 21, 24, 25, 28, 31, 35-37, 39, 41-43, 46.) All alleged FEHA violations which occurred prior to 21 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 November 25, 2018 are barred by the limitations period and cannot be the basis for FEHA claims. E. PLAINTIFF’S CLAIMS FOR SLANDER PER SE, DEFAMATION, AND FALSE LIGHT FAIL 1. The Claims are Time Barred The statute of limitations for slander, defamation, and false light have a one-year statute of limitations. (See Cal. Civ. Proc. Code § 340 (c¢) (“An action for libel, slander, false imprisonment” is one year); Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246, 80 P.3d 676, 685 99 CC (recognizing “the statute of limitations for defamation” “requires that an action be filed within one year of accrual of the cause of action”); Johnson v. Harcourt, Brace, Jovanovich, Inc. (1974) 43 Cal. App.3d 880, 895-896; 6A Cal. Jur. 3d Assault and Other Willful Torts § 177 (“The one- year statute of limitations applicable to torts such as libel, slander, and false imprisonment has been held to be applicable to an action for invasion of privacy”); lon Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 880 (“The statute of limitations in which to commence an action for invasion of privacy is one year”); Lauter v. Anoufrieva (C.D. Cal. 2009) 642 F.Supp.2d 1060, 1105) (“one-year statute of limitation applies to claims for false light invasion of privacy”).) Plaintiff alleges she learned after January 23, 2019, that Defendants DeWolfe and Ko made false statements about her on September 14, 2018 and October 10, 2018. (SAC Par. 180.) The Complaint was not filed until January 21, 2020, so these alleged defamatory statements are time-barred. While Plaintiff alleges she did not discover the alleged defamatory conduct until “Shortly after January 23, 2019” (see, e.g., SAC Par. 180) that cannot save Plaintiff’s claims from being time-barred. As recognized by the California Supreme Court in Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246-47, the statute of limitations accrues at the time of publication: In a claim for defamation, as with other tort claims, the period of limitations commences when the cause of action accrues. As we have discussed, in general a cause of action in tort accrues at the time of injury, and a cause of action for defamation accrues at the time the defamatory statement is “published” (using the term “published” in its technical sense). (Shivley, supra, 31 Cal.4th at 1246-47.) As noted, in defamation actions the general rule is that publication occurs when the defendant communicates the defamatory statement to a person other 22 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 than the person being defamed. In Shively, the California Supreme Court rejected the discovery rule to toll the statute of limitations for public defamatory statements: But, as one court explained, although application of the discovery rule may be justified when the defamation was communicated in confidence, that is “in an inherently secretive manner,” the justification does not apply when the defamation occurred by means of a book, magazine, or newspaper that was distributed to the public. (Id. at 1250-51; see also McGuiness v. Motor Trend Magazine (1982) 129 Cal.App.3d 59, 63 (rejecting discovery rule for negligence claim; “Regardless of the label which plaintiff chooses, the action is in substance one for libel, and more importantly, it arises out of a mass communication governed by the Uniform Single Publication Act, which applies to a cause of action for ‘libel or slander or invasion of privacy or any other tort founded upon any single publication.’”); Civ. Code, § 3425.3.) In addition, Plaintiff alleges no facts concerning the nature of when the September 14, 2018 and October 10, 2018 statements were made, such as where or to whom to suggest they were made in a secretive matter. Plaintiff only alleges that she learned of these alleged statements “shortly after January 23, 2019” by “employees” who attended a meeting and told her that they were “informed that the union representatives were repeating lies that had been told to them by City managers, including Defendant Ko.” (SAC Par. 181.) Plaintiff also alleges that at the January 23, 2019 “Union Meeting of South Pasadena City Workers” that a Union representative stated Plaintiff was “laid off due to her committing ‘financial improprieties,”” and that the “Union Reps had been led to believe” by Defendants Ko and DeWolfe that she “committed criminal act.” (SAC Par. 52.) Plaintiff offers no facts to suggest any alleged defamatory statements were communicated in a secretive manner; since many individuals including members of Plaintiff’s union were present. Thus, there are no allegations showing a secretive publication to support tolling the statute of limitations. Thus, Plaintiff’s claims are time barred and subject to demurer. 2. The SAC Fails to State a Cause of Action for the Seventh, Eighth, and Ninth Causes of Action The tort of defamation requires: (1) a defamatory statement, and (2) publication of that 23 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 statement “to some third person who understands both the defamatory meaning of the statement and its application to the person to whom reference is made.” (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165.) A defamatory statement must be both false and have a natural tendency to injure or cause special damage. (Id. at 1179.) Defamation is an intentional tort; the defendant must have intended publication and have actually published a defamatory statement. (5 Witkin, Cal. Torts (10th Ed. 2005) § 535, p.782; Nguyen-Lam v. Cao (2009) 171 Cal. App.4th 858, 867 (“Slander is a species of defamation.”); Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242 (“Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander.”); see Civ. Code §§ 45, 46.) Here, Plaintiff fails to identify with any specificity any alleged defamatory statements made by Defendants DeWolfe or Ko against her, much less that any such statement was published. Plaintiff alleges Defendants DeWolfe and Ko made false statements about her on September 14, 2018 and October 10, 2018, but fails to specify the alleged statements. Moreover, Plaintiff alleges that at the January 23, 2019 “Union Meeting of South Pasadena City Workers” that a Union representative stated Plaintiff was “laid off due to her committing ‘financial improprieties,”” and that the “Union Reps had been led to believe” by Defendants Ko and DeWolfe that she “committed criminal act.” (SAC Par. 52.) But just stating Defendants Ko and DeWolfe led union representatives to believe she committed a criminal act, without specifying any direct statements, is insufficient to state a cause of action. Moreover, to the extent that Defendants DeWolfe or Ko were communicating internally about the reasons for Plaintiff’s lay off, such communications are privileged and cannot form a defamation claim. (See King v. UPS, Inc. (2007) 152 Cal. App.4th 426, 440 (internal communications about reasons for employee’s termination privileged); see also Ghebreselassie v. Coleman Security Service (9th Cir. 1987) 829 F.2d 892, 898 (investigator’s report to employer held privileged under Civil Code section 47, subdivision (c)).) Further, statements of opinion are similarly not actionable. (See Banks v. Dominican College (1995) 35 Cal.App.4th 1545, 1554.) In addition, the ninth cause of action is duplicative and barred under the single publication rule of Cal. Civ. Code § 3425.3: 24 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. (Cal. Civ. Code § 3425.3; see also Selleck v. Globe Int’l, Inc. (1985) 166 Cal.App.3d 1123, 1136 (dismissing false light claim as “surplusage” because “plaintiffs libel claim provides him with a complete remedy for any damages he has suffered by the publication of the article, including damages for injury to his personal feelings which are recoverable in a false light action”); Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 692 (“Depending on the specific allegations in a case, causes of action for false light and intentional infliction of emotional distress may be redundant to a defamation cause of action and subject to dismissal on demurrer for that reason.”); 4 Witkin, Cal. Proc. 5th Plead § 53 (2020) (“A person may not have more than one cause of action for damages for libel, slander, invasion of privacy, or any other tort founded on a single publication, exhibition, or utterance.”).) For all of these reasons, Plaintiff’s seventh through ninth causes of action fail to state a cause of action and the demurrers should be sustained. F. PLAINTIFF’S CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FAILS 1. Defendants are Immune from Claims for Intentional Infliction of Emotional Distress The Government Claims Act provides immunity for intentional tortious conduct. (See Gates v. Superior Court (1995) 32 Cal. App.4th 481, 510; Richardson-Tunnell v. School Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1062.) Several courts have expressly extended governmental immunity to causes of action for intentional infliction of emotional distress. (See e.g., Wright v. State (2004) 122 Cal. App.4th 659, 672; Davison ex rel. Sims v. Santa Barbara High School Dist. (C.D. Cal. 1998) 48 F.Supp.2d 1225, 1231-32 (school district and employees immune from cause of action for intentional infliction of emotional distress); Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1435-1437; Gillan v. City of San Marino (2007) 147 Cal. App.4th 1033, 1048, as modified on denial of reh’g (Feb. 21, 25 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 2007); Javor v. Taggart (2002) 98 Cal.App.4th 795, 807-08, as modified (May 23, 2002).) Moreover, this cause of action cannot be maintained against Defendants Ko and Wolfe. As public employees, Wolfe and Ko were performing acts within the scope of their authority vested in them as City Manager and Interim Finance Director and thus are immune from liability for their discretionary acts pursuant to Government Code section 820.2. (See Government Code §820.2; see also Caldwell v. Montoya (1995) 10 Cal.4th 972, 979-980.) Accordingly, the demurrers to the tenth cause of cause of action should be sustained for all Defendants. 2. The ITED Claim is Barred by the Single Publication Rule To the extent Plaintiff is relying on any alleged defamatory conduct to support her IIED claim, it fails based on the single publication rule of Cal. Civ. Code § 3425.3. (See IV(E)(2).) 3. The SAC Fails to State a Cause of Action for Intentional Infliction of Emotional Distress As for all Defendants, Plaintiff lacks sufficient allegations to maintain an IIED claim. To state a claim for IIED, Plaintiff must show: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050; Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal. App.4th 819, 832.) The California Supreme Court requires a plaintiff to show “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it. [Citation].” (Hughes, supra, 46 Cal.4th at 1051.) Plaintiff’s allegations do not amount to “extreme or outrageous” conduct; rather the essence of the conduct alleged by Defendants is that she was “overwhelmed” with work and had a “stressful investigation.” (SAC Pars. 18, 46.) Plaintiff’s actions are nowhere near “extreme” or “outrageous.” They certainly do not exceed all bounds of that tolerated by a civilized society. 4. IIED preempted by Workers’ Compensation Act The Workers’ Compensation Act bars actions against an employer for personal injury that is a normal part of the employment relationship - “even if such conduct may be characterized as 26 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 intentional, unfair or outrageous.” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 25.) Severe emotional distress that arises from outrageous conduct in the normal course of employment, even when based on conduct alleged to be whistleblower retaliation, falls within the exclusive province of workers’ compensation. (Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876, 902; Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal. App.4th 338, 366-67.) For all of these reasons, the demurrer to the tenth cause of action should be sustained. V. THE DEMURRER SHOULD BE SUSTAINED WITHOUT LEAVE TO AMEND As this is Plaintiff’s third attempt at presenting a viable complaint, Defendants respectfully requests that its demurrer be sustained without leave to amend. Plaintiff has had three chances to state her claims. Moreover, Defendants informed Plaintiff of the defects in the FAC, and met and conferred with respect to this demurrer, so Plaintiff had ample opportunity to cure them. (Kalinski Decl. {[J4-10.) Rather, Plaintiff made minimal revisions from the First Amended Complaint. Accordingly, leave to amend should be denied. VI. CONCLUSION For all the reasons set forth above, Defendants respectfully request that the demurrer to Plaintiff’s Second Amended Complaint be sustained without leave to amend. Dated: June 23, 2020 Respectfully submitted, LIEBERT CASSIDY WHITMORE By: /s/ Alison R. Kalinski Elizabeth T. Arce Alison R. Kalinski Attorneys for Defendants CITY OF SOUTH PASADENA, STEPHANIE DEWOLFE and MARIAM LEE KO 27 Defendants’ Notice of Demurrer and Demurrer to Plaintiff’s Second Amended Complaint SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is: 6033 West Century Boulevard, Sth Floor, Los Angeles, California 90045. On June 23, 2020, I served the foregoing document(s) described as DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT in the manner checked below on all interested parties in this action addressed as follows: Vincent Miller Law Offices of Vincent Miller 16255 Ventura Blvd., Suite 625 Encino, CA 91436 Tel: 213.948.5702 Email: vincent@vincentmillerlaw.com LI BY US. MAIL) Iam “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, 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. Ll BY FACSIMILE) Iam personally and readily familiar with the business practice of Liebert Cassidy Whitmore for collection and processing of document(s) to be transmitted by facsimile. I arranged for the above-entitled document(s) to be sent by facsimile from facsimile number 310.337.0837 to the facsimile number(s) listed above. The facsimile machine I used complied with the applicable rules of court. Pursuant to the applicable rules, I caused the machine to print a transmission record of the transmission, to the above facsimile number(s) and no error was reported by the machine. A copy of this transmission is attached hereto. [1 (BY OVERNIGHT MAIL) By overnight courier, I arranged for the above-referenced document(s) to be delivered to an authorized overnight courier service, FedEx, for delivery to the addressee(s) above, in an envelope or package designated by the overnight courier service with delivery fees paid or provided for. M (BY ELECTRONIC SERVICE) By electronically mailing a true and correct copy through Liebert Cassidy Whitmore’s electronic mail system from sito @lcwlegal.com to the email address(es) set forth above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 28 Proof of Service SO140\117\9277355.v6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 LJ (BY ELECTRONIC SERVICE PROVIDER) I am readily familiar with the firm’s practice for filing electronically. Through use of OneLegal, an electronic service provider, I arranged a true and correct copy of the above-reference documents to be electronically served to the e-mail address(es) registered with the court this day in the ordinary course of business following ordinary business practices. LJ (BY PERSONAL DELIVERY) I delivered the above document(s) by hand to the addressee listed above. Executed on June 23, 2020, at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. /s/ Susie Ito Susie Ito 29 Proof of Service SO140\117\9277355.v6