Demurrer With Motion To Strike Ccp 43010

Motion

Cal. Super. - 2nd Dist.February 13, 2020

Electronically FILED by Supgfior Court of California, County of Los Angeles on 04/08/2020 11:14 AM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk 1 || Vince M. Verde, CA Bar No. 202472 vince.verde @ogletree.com Nardo J. Catahan, CA Bar No. 285741 nardo.catahan @ogletree.com Zachary Glantz, CA Bar No. 298936 zachary.glantz@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Park Tower, Fifteenth Floor 695 Town Center Drive Costa Mesa, CA 92626 Telephone: ~~ 714-800-7900 7 || Facsimile: 714-754-1298 AN hn B W 8 || Attorneys for Defendant GENERAL MOTORS, LLC 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF LOS ANGELES 12 STANLEY MOSK COURTHOUSE DIVISION 13 [| CAMILLE MOSELEY, Case No. 20STCV06095 14 Plaintiff, DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND 15 VS. DEMURRER TO PLAINTIFF’S COMPLAINT FOR DAMAGES 16 || GENERAL MOTORS, LLC; GENERAL MOTORS OF CALIFORNIA; DUTTON [Assigned for all purposes to The Honorable 17 I MOTOR COMPANY; CRESTVIEW Daniel S. Murphy, Dept. 32] CADILLAC; and DOES 1 through 100, 18 Defendant. Date: June 12, 2020 19 Time: 8:30 a.m. Place: Dept. 32 20 RES. ID: 656702663269 21 Action Filed: February 13, 2020 Trial Date: None Set 22 23 24 25 26 42446552 _1.docx 27 28 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFF CAMILLE MOSELEY AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 12, 2020 at 8:30 a.m. in Department 32 of this Court, located at 111 N. Hill St., Los Angeles, CA 90010, Defendant GENERAL MOTORS, LLC (“General Motors” or “Defendant”) will and hereby does demur to the causes of action asserted against it in the Complaint for Damages (the “Complaint”) filed by Plaintiff CAMILLE MOSELEY (“Plaintiff”) pursuant to California Code of Civil Procedure section 430.10(e) on the following grounds: 1. Plaintiff’s First Cause of Action for “Discrimination on the Basis of Gender” fails to state sufficient facts to constitute a cause of action against Defendant. 2. Plaintiff’s Second Cause of Action for “Discrimination on the Basis of Race” fails to state sufficient facts to constitute a cause of action against Defendant. % Plaintiff’s Third Cause of Action for “Failure to Take Reasonable Steps to Prevent Discrimination and Harassment” fails to state sufficient facts to constitute a cause of action against Defendant. 4. Plaintiff’s Fourth Cause of Action for “Hostile Work Environment” fails to state sufficient facts to constitute a cause of action against Defendant. This Demurrer is made pursuant to California Code of Civil Procedure section 430.10(e) and is based on this Notice of Demurrer and Demurrer; the supporting Memorandum of Points and Authorities; the pleadings, records, papers, and other documents on file in this action; and upon such further oral and documentary evidence and argument as may be presented at or prior to the hearing on this matter. Prior to filing the instant demurrer, Defendant’s counsel met and conferred with Plaintift’s counsel pursuant to California Code of Civil Procedure section 430.41(a) regarding the subject of this demurrer. (Concurrently filed Declaration of Nardo J. Catahan, 2.) 111 vy 111 vy 2 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: April 8, 2020 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. A A | &£= - 1 4 By: 7 Vince M. Verde Nardo J. Catahan Zachary Glantz Attorneys for Defendant GENERAL MOTORS, LLC 3 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER Defendant GENERAL MOTORS, LLC (“General Motors” or “Defendant”) demurs to the causes of action asserted against it in the Complaint for Damages (the “Complaint”) filed by Plaintiff CAMILLE MOSELEY (“Plaintiff”) on the following grounds: DEMURRER TO FIRST CAUSE OF ACTION 1. Defendant demurs to the First Cause of Action for “Discrimination on the Basis of Gender” pursuant to Code of Civil Procedure 430.10(e) on the grounds that the Complaint fails to state sufficient facts to constitute a cause of action against Defendant. DEMURRER TO SECOND CAUSE OF ACTION 2. Defendant demurs to the Second Cause of Action for “Discrimination on the Basis of Race” pursuant to Code of Civil Procedure 430.10(e) on the grounds that the Complaint fails to state sufficient facts to constitute a cause of action against Defendant. DEMURRER TO THIRD CAUSE OF ACTION 3. Defendant demurs to the Third Cause of Action for “Failure to Take Reasonable Steps to Prevent Discrimination and Harassment” pursuant to Code of Civil Procedure 430.10(¢) on the grounds that the Complaint fails to state sufficient facts to constitute a cause of action against Defendant. DEMURRER TO FOURTH CAUSE OF ACTION 4. Defendant demurs to the Fourth Cause of Action for “Hostile Work Environment” pursuant to Code of Civil Procedure 430.10(e) on the grounds that the Complaint fails to state sufficient facts to constitute a cause of action against Defendant. WHEREFORE Defendant prays that this Court: 1. sustain its demurrers to the First, Second, Third, and Fourth Causes of Action in the Complaint; 2s dismiss the First, Second, Third, and Fourth Causes of Action against Defendant; 3. dismiss Defendant from this action; and 4. issue such other and further relief to Defendant as the Court deems just and proper. 4 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 1 DATED: April 8, 2020 OGLETREE, DEAKINS, NASH, SMOAK & 2 STEWART, P.C. 3 AA - A JE -_ 4 4 By: _| 3 Vince M. Verde Nardo J. Catahan 6 Zachary Glantz 7 Attorneys for Defendant g GENERAL MOTORS, LLC 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 42446552 _1.docx 27 28 5 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In this lawsuit brought against Defendant General Motors, LLC (“General Motors” or “Defendant”) by Plaintiff Camille Moseley (“Plaintiff”), Plaintiff alleges that she was the subject of discrimination and harassment due to her gender and race. However, Plaintiff’s own allegations demonstrate that she was terminated for her failure to follow Defendant’s rules and procedures. Plaintiff admits in her Complaint that multiple car dealerships complained to her of misconduct by another dealership, but she failed to report those complaints to her supervisor. With nothing more than speculation and unfounded assumptions, Plaintiff attempts to build a case out of what is at bottom a routine and entirely justified termination decision. Plaintiff’s Complaint is utterly devoid of facts demonstrating any action taken against Plaintiff by Defendant because of Plaintiff’s gender, race, or any other characteristic. Plaintiff speculates that the complaining dealerships acted out of racial bias and then asserts that Defendant terminated her because of those dealerships’ biases. Plaintiff also alleges that white, male employees went unpunished for similar conduct, but these employees actually were not similarly situated to Plaintiff: there is no indication that Defendant knew that any such employees knew of but failed to report allegations of dealer fraud to their supervisors as Plaintiff admits that she did. Such allegations are insufficient to state a claim against Defendant. Plaintiff also fails to allege any facts demonstrating that she was the subject of legally actionable harassment during her employment with Defendant. And because Plaintiffs discrimination and harassment claims fail, her failure-to-prevent claim must fail. Contrary to Plaintiff’s Complaint, General Motors views diversity and inclusion as a strength, based on its ability as an organization to recognize, value, and draw upon unique perspectives to help drive innovation. General Motors appreciates what each individual brings to its team, including background, education, gender, race, ethnicity, working and thinking styles, sexual orientation, gender identity, veteran status, religious background, age, generation, disability, cultural expertise, technical skill, and, importantly, diversity of thought. General Motors believes that its ability to meet the needs and expectations of an increasingly diverse and global customer base is tied to innovation, DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and innovation is best driven through workplace diversity and inclusion. General Motors continues to be among the most diverse automotive employers globally, from the boardroom to the plant floor. General Motors vehemently denies Plaintiffs allegations, and it intends to vigorously defend against Plaintiff’s baseless claims in the event that Plaintiff is able to submit a legally adequate complaint. However, even under California’s liberal pleading standards, the Complaint’s allegations are grossly insufficient and thus subject to demurrer. Accordingly, and as further provided below, Defendant respectfully requests that this Court sustain Defendant’s demurrer in its entirety. II. RELEVANT FACTS Plaintiff filed her Complaint in Los Angeles County Superior Court on February 13, 2020, asserting causes of action for: (1) “Discrimination on the Basis of Gender” under the Fair Employment and Housing Act (“FEHA”); (2) “Discrimination on the Basis of Race” under FEHA; (3) “Failure to Take Reasonable Steps to Prevent Discrimination and Harassment” under FEHA; (4) “Hostile Work Environment” under FEHA; and (5) “Intentional Interference with Prospective Economic Advantage.” The first four causes of action are asserted against Defendant and “General Motors of California,” while the fifth cause of action is asserted against two dealerships. Starting in 2016, Plaintiff was Cadillac NorthStar District Sales Manager Los Angeles DMA for Defendant. (Compl. J19(e).) In this capacity, Plaintiff “worked as a high-level liaison between [Defendant] and its Southern California Chevy, Buick, and Cadillac dealers.” (Id. 1.) As relevant here, in late 2018, two such dealerships complained to Plaintiff about alleged misconduct by a third dealership. (/d. qq 4, 38-47.) The allegedly wrongdoing dealership was minority-owned, while the two complaining dealerships were not. (See id.) Defendant subsequently learned of the alleged misconduct by the minority-owned dealership. (Compl. 47, 50, 53.) On January 8, 2019, Plaintiff was asked about her knowledge of the alleged misconduct, and Plaintiff stated that one dealership had specifically complained to her of the alleged misconduct while another dealer complained of some misconduct but did not elaborate. (Id. 48, 50-52.) Plaintiff admitted that she had not informed her supervisor of these complaints. (Id. 55.) A short while later, Plaintiff was informed that “she was being suspended with pay for ‘not reporting fraud,” and she was terminated the following week. (Id. 56-57.) Plaintiff was informed that she 7 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was being terminated because she was “aware of the fraudulent activity and [she] did not raise the issue and that violates [Defendant’s] code of conduct.” (Id. 57; see also id. 6.) Notably, even though Plaintiff alleges that she denied being aware of fraud and not reporting it, she also admits that she received complaints of fraudulent activity that she did not elevate within the company. (See id. 4st, 55-57.) III. LEGAL STANDARD A defendant may demur to a complaint where the complaint fails to state facts sufficient to constitute a cause of action against it. See Cal. Code Civ. Proc. § 430.10(e). A demurrer asks the court to evaluate whether the plaintiff has alleged sufficient facts to justify any relief pursuant to a particular cause of action. See B&P Devel. Corp. v. City of Saratoga, (1986) 185 Cal. App. 3d 949, 952-53. A demurrer will be sustained if, assuming all facts alleged are true, the plaintiff is not entitled to relief as a matter of law. See Songer v. Cooney (1989) 214 Cal. App. 3d 387, 390. Although courts must accept the facts alleged in a complaint as true, conclusions of law or fact are insufficient to state a cause of action. Stearn v. County of San Bernardino (2009) 170 Cal. App. 4th 434, 439-40. The complaint must contain facts sufficient to establish every element of a cause of action, and so a court should sustain the demurrer if “the defendants negate any essential element of a particular cause of action.” Cantu v. Resolution Tr. Corp. (1992) 4 Cal. App. 4th 857, 879-80 (emphasis in the original). Where a cause of action is based on a statute, “the general rule [is] that facts in support of each of the requirements of [the] statute upon which [the] cause of action is based must be specifically pled.” Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal. App. 3d 590, 604. IV. LEGAL ARGUMENT A. Plaintiff Fails to State Facts Sufficient to Constitute Her First Cause of Action for “Discrimination on the Basis of Gender” FEHA makes it unlawful “[f]Jor an employer, because of the . . . gender . . . of any person, to [among other things] . . . discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” Cal. Gov’t Code § 12940(a). “The phrase ‘because of’ means there must be a causal link between the employer’s 8 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consideration of a protected characteristic and the action taken by the employer.” Harris v. City of Santa Monica, 56 Cal. 4th 203, 215 (2013). Plaintiff alleges that she as an individual was discriminated against because of her gender, i.e., that she was subject to disparate treatment discrimination. (See Compl. {q 64-70.) In order to establish a prima facie case of disparate treatment discrimination, Plaintiff must show that: (1) she belongs to a protected class; (2) she was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests a discriminatory motive. Guz v. Bechtel Nat'l Inc. (2000) 24 Cal.4th 317, 355. A discrimination claim must be supported by allegations suggesting “that it is more likely than not that [adverse employment] actions were based on a prohibited discriminatory criterion.” See id. (alteration and internal quotation marks omitted) (quoting Ibarbia v. Regents of Univ. of Cal. (1987) 191 Cal. App. 3d 1318, 1327-28). Here, Plaintiff alleges that Defendant “discriminated against [Plaintiff] on the basis of her female gender” without any supporting facts. (Compl. 67.) The Complaint occasionally mentions Plaintiff’s gender only in passing; nowhere does it allege that Defendant or anyone else took any action with respect to Plaintiff because of her gender. Indeed, Plaintiff’s First Cause of Action stands in stark contrast to her Second Cause of Action, which, although also deficient, at least identifies ways in which Plaintiff allegedly was discriminated against because of her race. (See id. 74.) The Complaint includes a brief passage about white, male employees who allegedly were not penalized for conduct similar to that leading to Plaintiff’s termination (id. 59-63), but a few passing mentions that these employees were male fall far short of establishing that Plaintiff was penalized due to her gender. Moreover, as more fully explained in the next section, Plaintiff’s allegations fail to demonstrate that these white, male employees were similarly situated to her as would suggest any impermissible discrimination with respect to Plaintiff. The inclusion of this cause of action is nothing more than a brazen attempt to drastically expand the scope of discovery, and the Court should not allow it. Accordingly, the Court should sustain Defendant’s demurrer as to Plaintiff’s First Cause of Action for “Discrimination on the Basis of Gender.” 9 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Plaintiff Fails to State Facts Sufficient to Constitute Her Second Cause of Action for “Discrimination on the Basis of Race” Plaintiff also alleges a claim for disparate treatment discrimination on the basis of her race. (See Compl. 71-79.) FEHA also makes it unlawful for an employer to take the aforementioned prohibited actions “because of the race . . . color, national origin, [or] ancestry . .. of any person.” Cal. Gov’t Code § 12940(a). Plaintiff alleges that Defendant discriminated against her in three ways: (1) “by making assumptions of wrong-doing not grounded in any facts or investigated evidence, but through reliance on invidious and incorrect racial stereotypes”; (2) “by reacting to pressure from non-minority dealers alleging that [Defendant] favored its minority dealers without any investigation”; and (3) by imposing disparate and adverse treatment on [Plaintiff], when white males who engaged in comparable alleged fraudulent conduct were not disciplined.” (Compl. §74.) Each of these is unsupported by any factual allegations, if not contradicted by the facts alleged. First, the Complaint does not identify any manner in which Defendant made assumptions based on racial stereotypes. Instead, the Complaint alleges that “non-minority owned dealers” hold beliefs “based on [a] racial affiliation and loyalty stereotype.” (See id. |] 4-5, 30-37.) The Complaint includes one conclusory assertion that Defendant “adopted the racist view articulated by [two dealers] which became a substantial factor in deciding to terminate [Plaintiff’s] employment” (id. 94), but no facts to support it. Second, while Plaintiff speculates that Defendant reacted to pressure from some of its dealerships, she fails to explain what that pressure was, or could have been. Plaintiff alleges that “[s]ince the 1980’s, non-minority new car Cadillac dealers in the greater Los Angeles area have expressed concern that [Defendant] provides financial support for minority dealers which is not made available to dealers” and that the ‘“non-minority dealers have harbored resentment against [Defendant] and the minority owned dealers because of this perceived favoritism.” (Id. 26-27.) ! Defendant believes that these comments are superfluous and is an attempt to make salacious statements when Plaintiffs real alleged discrimination is her termination. Indeed, all three of these comments are Plaintiff’s mere speculation as to why she was terminated. 10 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Armed with nothing more than conjecture, Plaintiff asserts that a non-minority dealer tried to “set [her] up . .. by implicating her in . . . alleged . . . fraudulent activity” by a minority-owned dealer,’ and that Defendant ultimately “terminated [her] only to appease [the non-minority owned dealers] because of their complaints that [Defendant] was unfairly favoring minority dealers.” (Id. {{43, 58.) But according to the Complaint, Defendant simply learned of one dealership’s alleged fraudulent that others had complained about, and Plaintiff admitted that she had received such complaints but did not report them herself. (See id. 46-47, 50-55.) The Complaint includes a passing comment that the dealers, “[w]ithout any supporting evidence, . .. told [Defendant] that [Plaintiff] was covering up [the minority-owned dealer’s alleged misconduct].” (Id. (4; see also id. 5.) But even if this is true, there is no allegation that Defendant knew or should have known that the dealers’ claim was unfounded, let alone based on racial biases. Whether or not the dealers acted improperly as a result of Plaintiff’s race, there is no basis for attributing that motivation to Defendant. Finally, Plaintiff’s alleged disparate treatment from white male employees is refuted by her own allegations. The Complaint alleges one incident in which her supervisor informed her that he would not disrupt a fraudulent scheme allegedly perpetrated by some dealers. (Compl. {J 59-63.) Importantly, however, Plaintiff’s Complaint establishes that she was terminated for not reporting alleged dealer misconduct to her supervisor. (See id. 54-57.) Plaintiff’s supervisor’s action or inaction with respect to other misconduct is irrelevant; it was Plaintiff’s admitted failure to report misconduct that violated company policy and resulted in her termination. Moreover, her supervisor did take action: he directed a non-employee from an advertising agency to discuss the alleged scheme with the Buick and GMC dealers involved, even though such dealers did not fall under his purview. (See id. 59, 62; see also id. {55 (noting that Samara was the “Western Regional Director of Cadillac” (emphasis added)).) Plaintiff alleges in conclusory fashion that some white, male 2 As supposed evidence of this scheme, Plaintiff alleges that the dealer “deliberately misdirected the call to [Plaintiff] when complaining about misconduct with respect to sales of Buick and GMC vehicles. (Compl. qq 42-43.) But here again, Plaintiff’s own allegations belie her claims: Plaintiff alleges that her job was to serve as liaison with, among others, Defendant’s Southern California Buick dealers. (Id. J 1.) Moreover, the alleged improper sales also included Cadillac vehicles, and Plaintiff does not dispute that such a complaint was properly directed to her as a Cadillac District Sales Manager. (See id. {{ 1, 19, 38, 41.) 11 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employees who were aware of that alleged fraudulent scheme went unpunished (e.g., id. {] 6, 63), but there is no allegation that Defendant knew of any employees-white, male, or otherwise-who knowingly failed to report fraud but declined to punish them. Accordingly, Defendant’s course of conduct with respect to these other employees fails to establish any improper discrimination with respect to Plaintiff: Plaintiff was terminated for failing to report allegations of fraudulent activity, whether true or not, that had been brought to her attention. Accordingly, the Court should sustain Defendant’s demurrer as to Plaintiff’s Second Cause of Action for “Discrimination on the Basis of Race.” C. Plaintiff Fails to State Facts Sufficient to Constitute Her Third Cause of Action for “Failure to Take Reasonable Steps to Prevent Discrimination and Harassment” FEHA makes it unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Cal. Gov’t Code § 12940(k). Importantly, a claim under this provision requires that there first be a valid underlying claim for discrimination or harassment. See Scotch v. Art Inst. of Cal.-Orange Cnty., Inc. (2009) 173 Cal. App. 4th 986, 1021 (“An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination . . ..”); Trujillo v. N. Cnty. Transit Dist. (1998) 63 Cal. App. 4th 280, 288-89 (“We do not believe the statutory language supports recovery on such a private right of action where there has been a specific factual finding that no such discrimination or harassment actually occurred at the plaintiff’s work-place.”). Plaintiff alleges that Defendant “failed to take any reasonable steps (or any steps at all) in preventing . . . discrimination and harassment from the Non-African American dealers who were targeting [Plaintiff] because of her race.” (Compl. q 82; see also id. 84.) As already discussed, Plaintiff fails to establish that she was the subject of any such discrimination by Defendant, and the Complaint’s allegations due not support claims of gender discrimination by anyone. For the reasons discussed in the following section, Plaintiff fails to allege sufficient facts to state a cause of action for harassment due to hostile work environment. Without any viable cause of action for discrimination or harassment, Plaintiff cannot state a cause of action for failure to prevent 12 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discrimination or harassment. See Scotch, 173 Cal. App. 4th at 1021; Trujillo, 63 Cal. App. 4th at 288-89. Accordingly, the Court should sustain Defendant’s demurrer as to Plaintiff’s Third Cause of Action for “Failure to Take Reasonable Steps to Prevent Discrimination and Harassment.” D. Plaintiff Fails to State Facts Sufficient to Constitute Her Fourth Cause of Action for “Hostile Work Environment” FEHA prohibits an employer, “because of [among other things,] race[ or]... gender| from] . . . harass[ing] an employee.” Cal. Gov’t Code § 12940(j)(1). “An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, . .. if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” Id. In order to state a cause of action for harassment under FEHA, Plaintiff must allege: (1) she was subjected to unwelcome conduct or comments; (2) the harassment complained of was based on her race; and (3) the harassment was so severe or pervasive as to alter the conditions of employment and create a hostile or offensive working environment. See Aguilar v. Avis Rent a Car Sys., Inc. (1999) 21 Cal. 4th 121, 129-31; Etter v. Veriflo Corp. (1998) 67 Cal. App. 4th 457, 462-67. “Whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether itis physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Beyda v. City of Los Angeles (1998) 65 Cal. App. 4th 511, 517 (alteration and internal quotation marks omitted) (quoting Harris v. Forklift Sys., Inc. (1993) 510 U.S. 17, 23). Here, the Complaint fails to allege any facts suggesting that Plaintiff was subject to harassment by Defendant’s employees, or anyone else. Plaintiff alleges only that certain dealerships complained to her about another dealership; Plaintiff had some communications with those dealerships about their complaints; and Plaintiff later was terminated for reasons relating to those complaints. (See Compl. 3-6, 30-58.) Although the dealerships’ complaints allegedly were racially motivated, it is not alleged that they were made to Plaintiff because of her race. Additionally, 13 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the dealerships’ complaints about other dealerships, even if offensive to Plaintiff, fall far short of the hostile or abusive conduct necessary to establish a hostile work environment. Finally, the fact that the dealerships’ conduct led to Plaintiff's fermination does not mean that it created a hostile environment for Plaintiff while she was working. The Complaint’s allegations fail to support any of the elements of a harassment claim. Accordingly, the Court should sustain Defendant’s demurrer as to Plaintiff’s Fourth Cause of Action for “Hostile Work Environment.” Vv. CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court sustain this demurrer in its entirety. DATED: April 8, 2020 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1 ee-- By: +7 Vince M. Verde Nardo J. Catahan Zachary Glantz Attorneys for Defendant GENERAL MOTORS, LLC 14 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Camille Moseley v. General Motors, LLC, et al. Case No. 20STCV06095 I am and was at all times herein mentioned over the age of 18 years and not a party to the action in which this service is made. At all times herein mentioned I have been employed in the County of Orange in the office of a member of the bar of this court at whose direction the service was made. My business address is Park Tower, Fifteenth Floor, 695 Town Center Drive, Costa Mesa, CA 92626. On April 8, 2020, I served the following document(s): DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT FOR DAMAGES by placing [1 (the original) Xl (a true copy thereof) in a sealed envelope addressed as stated on the attached service list. BY MAIL: I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. Od BY MAIL: I deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid at Park Tower, Fifteenth Floor, 695 Town Center Drive, Costa Mesa, CA 92626. 0 BY OVERNIGHT DELIVERY: I placed the sealed envelope(s) or package(s) designated by the express service carrier for collection and overnight delivery by following the ordinary business practices of Ogletree, Deakins, Nash, Smoak & Stewart P.C., Costa Mesa, California. I am readily familiar with Ogletree, Deakins, Nash, Smoak & Stewart P.C.’s practice for collecting and processing of correspondence for overnight delivery, said practice being that, in the ordinary course of business, correspondence for overnight delivery is deposited with delivery fees paid or provided for at the carrier’s express service offices for next-day delivery. 0 BY MESSENGER SERVICE: (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney’s office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party’s residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening. a BY FACSIMILE by transmitting a facsimile transmission a copy of said document(s) to the following addressee(s) at the following number(s), in accordance with: O the written confirmation of counsel in this action: [ [State Court motion, opposition, or reply only] Code of Civil Procedure section 1005(b): 15 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the person(s) at the e-mail addresses listed on the attached service list. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. (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 8, 2020, at Costa Mesa, California. 1 / ll fain Loe Mon ianna Kinnamon 16 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES 42446552_1.docx AN hn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Evan Selik, Esq. Attorneys for Plaintiff Christine Zaouk, Esq. Camille Moseley McCATHERN LLP 523 West Sixth Street, Suite 830 Los Angeles, California 90014 Telephone: Facsimile: 213-225-6150 213-225-6151 eselik@mccathernlaw.com ezaouk @mcathernlaw.com Michael L. Pitt, Esq. Attorneys for Plaintiff Robin Wagner, Esq. Camille Moseley PITT MCGEHEE PALMER & RIVERS PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 Telephone: Facsimile: 248-398-9800 248-398-9804 mpitt@pittlawpc.com rwagner @pittlawpwc.com 17 42446552.1 DEFENDANT GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES Make a Reservation | Journal Technologies Court Portal Page 1 of 2 Journal Technologies Court Portal Make a Reservation CAMILLE MOSLEY vs GENERAL MOTORS, LLC, et al. Case Number: 20STCV06095 Case Type: Civil Unlimited Category: Wrongful Termination Date Filed: 2020-02-13 Location: Stanley Mosk Courthouse - Department 32 Reservation Case Name: CAMILLE MOSLEY vs GENERAL MOTORS, LLC, Case Number: etal. 20STCV06095 Type: Status: Demurrer - with Motion to Strike (CCP 430.10) RESERVED Filing Party: Location: GENERAL MOTORS, LLC (Defendant) Stanley Mosk Courthouse - Department 32 Date/Time: Number of Motions: 06/12/2020 8:30 AM 1 Reservation ID: Confirmation Code: 656702663269 CR-BFERFW5NWG6UFSXDZW Fees Description Fee Qty Amount First Paper Fees (Unlimited Civil) 435.00 1 435.00 Demurrer - with Motion to Strike (CCP 430.10) 60.00 1 60.00 Credit Card Percentage Fee (2.75%) 13.61 1 13.61 TOTAL $508.61 Payment Amount: Type: $508.61 Visa Account Number: Authorization: XXXX0196 063306 https://portal-lasc.journaltech.com/public-portal/?q=calendar/reserve 4/7/2020 Make a Reservation | Journal Technologies Court Portal Page 2 of 2 = Print Receipt = Reserve Another Hearing Copyright © Journal Technologies, USA. 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