Demurrer Without Motion To Strike

Motion

Cal. Super. - 2nd Dist.March 3, 2020

Electronically FILED by Superior Court of California, County of Los Angeles on 07/22/2020 02:19 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 HOWARD B. GOLDS, Bar No. 112626 Howard.Golds@bbklaw.com THOMAS M. O’CONNELL, Bar No. 298457 Thomas.OConnell@bbklaw.com BEST BEST & KRIEGER LLP 3390 University Avenue, Sth Floor P.O. Box 1028 Riverside, California 92502 Telephone: (951) 686-1450 Facsimile: (951) 686-3083 Attorneys for Defendants CITY OF WEST COVINA, LLOYD JOHNSON, TONY WU, GLENN KENNEDY, and DAVID CARMANY EXEMPT FROM FILING FEES PURSUANT TO GOVERNMENT CODE § 6103 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES LARRY WHITHORN, Case No. 20STCV08916 Plaintiff, Hon. Anthony Mohr, Department 96 DEFENDANTS CITY OF WEST COVINA, Vv. LLOYD JOHNSON, TONY WU, GLENN KENNEDY, and DAVID CARMANY THE CITY OF WEST COVINA, WEST NOTICE OF DEMURRER AND COVINA FIRE DEPARTMENT, LLOYD DEMURRER TO PLAINTIFF LARRY JOHNSON, an individual, TONY WU, an WHITHORN’S SECOND AMENDED individual, GLENN KENNEDY, an COMPLAINT individual, DAVID CARMANY, an individual, and DOES 1 to 100, inclusive, [Filed contemporaneously with: Defendants. I. Declaration of Thomas M. O’Connell.] Hearing on Defendants’ Demurrer 46683.00001\33031126.1 Date: February 11, 2021 Time: 9:15 a.m. Dept.: 96 Reservation No. 960066858475 DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 IL. III. IV. TABLE OF CONTENTS Page INTRODUCTION .....oiiiiiiiiiiiiieiteeiee eee eee see eee see sees e e 1 FACTUAL BACKGROUND .......otiiiiiiiiiiiieiiieeniee sees eev e 2 A. Relevant AMISH, TOES wom oxime oom 00 500. 655.05.550.555 08 55.5005 55065005 550 455.05 55 50555580 555 055550 2 B. Meet And Confer Efforts .........cocooiiiiiiiiiiiiicceec ee 5 IRE TINT Tsao osm BS 6 A. Plaintiff Fails To Allege Any Cognizable Causes Of Action Against The Individual Defendants. ............ccoceoiiiiiiiiiiiniiiee 7 B. Plaintiff Fails To Allege The Necessary Elements To State Any Cognizable CCATISES OF PATTI ct. 505500... 5558 5, R58 5050, 53 9.558 8 CONCLUSION... eee sees eee este esas 15 _i- DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 TABLE OF AUTHORITIES Page Federal Cases Brown v. Lucky Stores, Inc. (2001) 246 F.3d T1182. eee eee eee eee eee eee eee eee eee 10 Jadwin, D.O. v. County of Kern (2009) GLO Bo SUPT 2 § TED) 555.0005 0050055000550 500.0500 550 5 0 5.500 0 5.258 5 25 10 State Cases Aguilar v. Avis Rent A Car System, Inc. (1999) 21 CaliAth 121i eee eee eee teehee eee eee ene e abe e sane eaees 9 Akers v. County of San Diego (2002) 95 Cal APP.Ath 1441 ooo eases 10 Blanty v. New York Times Co. (1986) 42 Cal.3d 1033. ee eee eben eee eben 6 Davis v. Consolidated Freightways (1994) TO CA ANITA FIL) 5.055550 0 cs 5,5 0.505500, 5.50 55. 6545.5 550.50 58 5 0.588 14 Dudley v. Department of Transportation (2017) 90 Cal APP.Ath 255 eee eee ee eee eee sbeebs eee 11 Dumm v. Pacific Valves (1956) 146 Cal APP-2A 792 eee eee eee eee eaters 8 Etter v. Veriflo Corp. (1998) OT Ea APT ATT ST on, ssa, soot, somo, smn, 000 S050 ST, SE GT, ER, SS ENE 9 Guz v. Bechtel National, Inc. (2000) 24 CaliAth 317 cee eee beets eben anes 8 Hanson v. Lukcy Stores, Inc. (1999) TA Cal APP-Ath 215 ooo eset e eee e ease e eee eebaee ee enraeeeeenes 2 Hendy v. Losse (1991) 54 Cal.3d 723. eee eee eee esate sees enna 6 Hughes v. Pair (2009) 46 Cal.dth 1035... eee eee eee sbeebs seers eae ene 14 Nygard, Inc. v. Uusi-Kerttula (2008) FD Co ATTIRE, LUTZ sc 50,3005, 500 550. 0.550.505.0508 550.585 14 = ql. = DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 TABLE OF AUTHORITIES (continued) Page Patten v. Grant Joint Union High Sch. Dist. (2005) 184 Cal. Apdithi. 1578 wu some comsums sommes commen comms omonsss coos, ema, coisas, Sms, asin, Sons uses 12 Perkins v. Superior Court (1981) L17 Cal APD.3A 1a e eee e eee iba eee estaba ease sbaeeeeenes 8 Phillips v. TLC Plumbing, Inc. (2009) 172 Cal APP.Ath 1133 oe eee eee eee e eee e eee nbae ease nbaeee as 15 Scotch v. Art Inst. of Cal.-Orange County (2009) 173 CalLAPP.Ath O80 ...coooieiiieeee eee eee eee eee eee e eee e eee eaaeeees 10 Smith v. Maldonado (1999) T2 Cal APPA 037 eee eee eee eee eee ease nara e eee naaae ae ene 14 Soukup v. Law Offices of Herbert Hafif (2006) BD CoA ZEED DBT 550.15 5055550100... 5.5055 5 5 55. 7.55 0 SS BSA E595 12 Thompson v. City of Monrovia (2010) 186 Cal. APP.Ath 860 .....ccoiiiiiiiiiiiie ieee eee eee eee eee eee ebb e eee e ease nbae eee anes 9 Trujillo v. North County Transit Dist. (1998) 63 Cal APP-Ath 280 ...eeieeeiiiiie eee eee eee eee eee eee e esate e eee e eee naaae ae eaen 11 Youngman v. Nevada Irrigation Dist. (1999) TO CAT ZA) m0, s006mm0m, sm, sont, mn, 0 0 SS, A SSS, SE GT, CE, SSSA 8 State Statutes Code of Civil Procedure § 430.10 ......coooiiiiiiiiiiiiee cece e ssere eee ess s 6 Code of Civil Procedure § 430.10 (£) ..oovviieeeiiiiiee eee eee eee eases eee ees 8 Code of Civil Procedure § 430.41(a) .....ccceeeuuiriiiiieeeeeeeciieee eee eects eee eee eas s 6 Government Code § 3254(C) uveitis eee eee eee eee e eee eee e eee aaa eens 12 Government Code § 12945. 2(Q) ...uuveiieiiiiiieeeeii ieee eee eee 2 Government Code § 12945.2(6)(3)(C) & 12945. 2(C)(8) ous ssncssumsnnsssss m s ses sss nsus sss soins s s sas ass sass 9 Labor Code § 1102.5 o.oo eee eee eee eee eee eee e eee eset e eee eases eabr be ae eee e ee eeaens 12 - iii - DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 NOTICE OF DEMURRER TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February 11, 2021, at 9:15 a.m., or as soon thereafter as the matter may be heard in Department 96 of the above-entitled Court, located at 111 North Hill Street, Los Angeles, California, Defendants the City of West Covina (the “City”), Lloyd Johnson (“Johnson”), Tony Wu (“Wu”), Glenn Kennedy (“Kennedy”), and David Carmany (“Carmany’’) (collectively, the “Defendants’) will, and hereby do, move the Court for an order sustaining their Demurrer to Plaintiff Larry Whithorn’s (“Plaintiff”) Second Amended Complaint. Defendants demur to the entirety of Plaintiff’s Second Amended Complaint pursuant to California Code of Civil Procedure 430.10(e) and pursuant to California Code of Civil Procedure 430.10(f) on the grounds that each cause of action fails to state facts sufficient to constitute cognizable causes of action and that the cause of action alleged against the Johnson, Wu, Kennedy, and Carmany fail for uncertainty. Defendants base this Demurrer upon this Notice, the Demurrer, the accompanying Memorandum of Points and Authorities, the Declaration of Thomas M. O’Connell, all papers and records on file in this action, and on such other matters as the court may consider at the time of the hearing. Dated: July 22, 2020 BEST BEST & KRIEGER LLP HOWARD B. GOLDS THOMAS M. O’CONNELL Attorneys for Defendants CITY OF WEST COVINA, LLOYD JOHNSON, TONY WU, GLENN KENNEDY, and DAVID CARMANY 46683.00001\33031126.1 -1v - DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 DEMURRER Defendants the City of West Covina (the “City”), Lloyd Johnson (“Johnson”), Tony Wu (“Wu”), Glenn Kennedy (“Kennedy”), and David Carmany (“Carmany”) (collectively, the “Defendants”) hereby generally and specially demurs to Plaintiff Larry Whithorn’s (“Plaintiff”) Second Amended Complaint pursuant to California Code of Civil Procedure 430.10(e) and pursuant to California Code of Civil Procedure 430.10(f) as follows: 1. The first cause of action for discrimination on the bases of age and disability and requesting accommodation fails to state facts sufficient to constitute a cognizable cause of action against the City. 2. The second cause of action for hostile work environment harassment on the bases of age and disability and requesting accommodation fails to state facts sufficient to constitute a cognizable cause of action against the City. The second cause of action for hostile work environment harassment on the bases of age and disability and requesting accommodation also fails to state facts sufficient to constitute a cognizable cause of action against Johnson and Kennedy and fails for uncertainty. 3. The third cause of action for retaliation for engaging in protected activity fails to state facts sufficient to constitute a cognizable cause of action against the City. 4. The fourth cause of action for failure to provide reasonable accommodation fails to state facts sufficient to constitute a cognizable cause of action against the City. 5. The fifth cause of action for failure to engage in the interactive process fails to state facts sufficient to constitute a cognizable cause of action against the City. 6. The sixth cause of action for failure to prevent discrimination, harassment, and retaliation fails to state facts sufficient to constitute a cognizable cause of action against the City. The sixth cause of action for failure to prevent discrimination, harassment, and retaliation fails to state facts sufficient to constitute a cognizable cause of action against Johnson, Wu, Kennedy, and Carmany (collectively, the “Individual Defendants”) and fails for uncertainty. 11 46683.00001\33031126.1 -V - DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 7 The seventh cause of action for violation of the California Family Rights Act fails to state facts sufficient to constitute a cognizable cause of action against the City. 8. The eighth cause of action for whistleblower retaliation fails to state facts sufficient to constitute a cognizable cause of action against the City because. 9. The ninth cause of action for violation of the Firefighter Bill of Rights fails to state facts sufficient to constitute a cognizable cause of action against the City. 10. The tenth cause of action for wrongful termination in violation of public policy fails to state facts sufficient to constitute a cognizable cause of action against the City. 11. The eleventh cause of action for intentional infliction of emotional distress fails to state facts sufficient to constitute a cognizable cause of action against the City. The eleventh cause of action for intentional infliction of emotional distress also fails to state facts sufficient to constitute a cognizable cause of action against the Individual Defendants and fails for uncertainty. 12. The twelfth cause of action for negligent infliction of emotional distress fails to state facts sufficient to constitute a cognizable cause of action against the City. The twelfth cause of action for negligent infliction of emotional distress also fails to state facts sufficient to constitute a cognizable cause of action against the Individual Defendants and fails for uncertainty. 13. The thirteenth cause of action for defamation fails to state facts sufficient to constitute a cognizable cause of action against the City. The thirteenth cause of action for defamation fails to state facts sufficient to constitute a cognizable cause of action against Kennedy, Wu, and Carmany and fails for uncertainty. 14. The fourteenth cause of action for coerced self-publication defamation fails to state facts sufficient to constitute a cognizable cause of action against the City. The fourteenth cause of action for coerced self-publication defamation also fails to state facts sufficient to constitute a cognizable cause of action against the Individual Defendants and fails for uncertainty. 11 11 11 46683.00001\33031126.1 -Vi- DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 15. The fifteenth cause of action for negligent hiring, supervision, and retention fails to state facts sufficient to constitute a cognizable cause of action against the City. Dated: July 22, 2020 BEST BEST & KRIEGER LLP 5d J HOWARD B. GOLDS THOMAS M. O’CONNELL Attorneys for Defendants CITY OF WEST COVINA, LLOYD JOHNSON, TONY WU, GLENN KENNEDY, and DAVID CARMANY By: 46683.00001\33031126.1 - Vil - DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Larry Whithorn’s (“Plaintiff”) bases his Second Amended Complaint against Defendants the City of West Covina (the “City”), Lloyd Johnson (“Johnson”), Tony Wu (“Wu”), Glenn Kennedy (“Kennedy”), and David Carmany (“Carmany”) (collectively, the “Defendants’) entirely on ambiguous, confusing, and ultimately incoherent allegations concerning individuals who did not terminate his employment and fails to plead many, if not most, of the elements necessary to satisfy the requirements of any of his fifteen causes of action. Indeed, during the preceding three months and on no less than three separate occasions, Defendants provided Plaintiff with an extensive description of the elements that Plaintiff failed to allege in his various causes of action alleged in his two prior complaints. Nonetheless, the causes of action asserted in Plaintiff’s current Second Amended Complaint fail to include the material allegations necessary to present even a single cognizable claim. Plaintiff's failure to allege the facts and elements necessary to allege any legally sufficient cause of action, despite his three attempts to do so, demonstrates that Plaintiff cannot cure the defects by further amendment and Defendants’ demurrer as to each cause of action against should be sustained without leave to amend. In addition to the aforementioned fatal defects, Plaintiff’s five causes of action alleged against Johnson, Wu, Kennedy, and Carmany (collectively, the “Individual Defendants”) also fail for uncertainty. In thirty two pages, Plaintiff includes less than seven factual allegations that specifically reference any of the Individual Defendants and only a single allegation concerning Carmany-the sole individual who had the power to and did terminate Plaintiff. These allegations include nothing more than (i) allegations regarding a dispute with Kennedy-a co- worker-because Kennedy allegedly believed Plaintiff should be terminated and (ii) allegations that Plaintiff discussed with each of the Individual Defendants that he was concerned he was going to be terminated due to complaints by many within the City including the entirety of his fire department employees. Nothing in these few ambiguous allegations actually apprise the Individual Defendants of how the causes of action for hostile work environment, intentional infliction of emotional distress, negligent infliction of emotional distress, defamation, and coerced 46683.00001\33031126.1 =1= DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 self-publication can be brought against them. Therefore, and in addition to the reasons stated more fully above, Plaintiff’s Second Amended Complaint against the Individual Defendants also fails for uncertainty. II. FACTUAL BACKGROUND A. Relevant Alleged Facts 1. Plaintiff’s Leaves of Absence In December 2014, the City selected Plaintiff as its Fire Chief. (Second Amended Complaint (“SAC”), 4 12.) After the City selected him as its Fire Chief, Plaintiff alleges that he requested and was granted accommodations in the form of several medical leaves for “his actual and/or perceived disability and/or the actual and/or perceived disability of a relative.” (SAC, 9 13.d-e.) Specifically, Plaintiff alleges that: e he had surgery for a “serious medical condition” in early 2016 which required him to go on leave for some unspecified time (SAC, 9 13.b); e he had another surgery for a “serious medical condition” which required him to go on leave from December 2016 through April 2017 (SAC, 9 13.e and 14.b.); e he extended his leave related to a knee injury he sustained while on leave for that surgery (SAC, 9 13.¢e.); e he went on leave again from June to September 2017 for “the same serious medical conditions” (SAC, q 13.b & 14.b); and e he took additional leaves to care for his “seriously ill relative” in January, August, and September 2018 (SAC, q 13.d) for some unspecified period of time. Plaintiff alleges that during his June to September 2017 leave-well after Plaintiff had taken more than 12 workweeks of leave during a 12 month period (Gov't Code § 12945.2(a))-an unidentified “supervisor” informed Plaintiff that he “was getting pressure to either get [Plaintiff] to come back or get someone else in [Plaintiff's] position.” (SAC, 9 14.b.)* As a result, Plaintiff alleges that the Councilmember Johnson, Councilmember Wu, and Commissioner Kennedy, and "In spite of Defendants’ multiple requests as part of the meet and confer process, Plaintiff's Second Amended Complaint does not identify what “serious medical condition” he allegedly was suffering from that merited his repeated leaves of absence. (See SAC.) * An employer is not required to wait indefinitely for an employee’s condition to improve. (Hanson v. Lukcy Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227.) 46683.00001\33031126.1 =D = DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 City Manager Carmany (collectively, “Individual Defendants”) started a rumor that Plaintiff was an “absentee fire chief” (SAC, q 14.j), that all Defendants claimed that “[h]is leave was a sham” (SAC, 9 15.£1), and his “leaves caused [Plaintiff] to be viewed by many in the [fire] department as an ‘absentee’ fire chief” (SAC, § 14.b). As noted by Plaintiff, the City Manager-not any of these individuals-could terminate him. (SAC, 4 14.h & m.) 2. Plaintiff’s Alleged Complaints of Misconduct While on leave in August 2017, Plaintiff claims he first began complaining to the City’s Human Resources Director about “corruption in politics” and that Kennedy was trying to get Plaintiff fired.” (SAC, 14.c, 14.i, & 15.£2-3). In or around May 2018, Plaintiff claims that he “learned” that Wu was trying to gain a majority on the City Council in order to terminate him. (SAC, q 14.2) In November 2018, Plaintiff claims that “Wu won the City Council majority” but “couldn’t make any firings until after his first 90 days.” (SAC, q 14.k.) Thereafter, in January 2019, Plaintiff attended a meeting with the newly elected council members where they did not deny the rumors that the new City Councilmembers planned on firing Plaintiff. (SAC, 414.1.) In February 2019, Johnson told Plaintiff that the City Council was “going to change the municipal code so they could fire [Plaintiff].” (SAC, q 14.m.)° Plaintiff also alleges that Johnson asked Plaintiff, “How old are you, Chief ... are you 50 yet? How much longer do you have to retire, 1 year ... 2 years?” and that Johnson “made comments to [Plaintiff] about his leave and questioned whether [Plaintiff] could return to work because of his medical issues.” (SAC, 9 14.m.) Plaintiff ? Plaintiff misidentifies City Manager Carmany as spreading this rumor in 2017 even though Carmany did not work for the City until he became acting City Manager in 2019. (SAC, § 14.0.) * Plaintiff alleges that after Wu was elected to the City Council in 2015, “he offered [Plaintiff] to be his ‘bank’ so that he could move back to West Covina.” (SAC, § 14.a.) > Thereafter, Plaintiff allegedly complained that Kennedy told some unspecified person in April 2018 that “I’m here to get the chief fired” (SAC, q 14.1) and that Kennedy “verbally taunted” Plaintiff in August 2018 when Kennedy stated that Plaintiff hates Kennedy. (SAC, 14.i.) Plaintiff vaguely alleges at a later point in his Complaint that “Defendants” defamed him by stating that Plaintiff “does not get along with people” and that Plaintiff “hates defendant Kennedy.” (SAC, 9 15.£.2-3.) § Plaintiff states that he “complained and opposed” changing the municipal code to his supervisor. (SAC, q 14.0.) 46683.00001\33031126.1 =3 = DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 claims that he complained to some unspecified person about these comments but was correctly told that only the City Manager could terminate him. (SAC, 9 14.m.) On March 4, 2019, the City announced that then City Manager Chris Freeland was resigning. (SAC, q 14.0.) Plaintiff claims that he was informed by some unspecified person that Kennedy responded to this news by saying, “I got one. I have two more on my list and they know 12? who they are!” (SAC, 9 14.0.) Plaintiff also claims that the interim Human Resources Director responded to this news by asking Plaintiff, “Hey, Chief, how old are you? When can you retire?” (SAC, § 14.0.) A day later, Plaintiff claims he heard Kenney loudly say “60 more days” to Fire Department personnel. (SAC, 9 14.p.) Plaintiff assumes that Kennedy made this statement because this was the amount of time that it would take to change the municipal code to allow the City Council to terminate him and potentially go through the recruitment process of a new department head. (SAC, § 14.p.) Plaintiff allegedly complained about Kennedy’s comment to Johnson. (SAC, § 14.p.) On March 19, Plaintiff filed a grievance with acting City Manager Carmany alleging that Kennedy was “harassing him, disparaging his name, verbally assaulting him, and campaigning to get rid of him.” (SAC, 9 14.r.) Either separately or as part of this grievance, Plaintiff also complained that the City Council was changing the municipal code regarding the recruitment process of a new department head. (SAC, 9 14.r.) Later that month, an unspecified city attorney allegedly informed Plaintiff that his grievance was denied because “technically he cannot file one.” (SAC, 9 14.r-s.) When discussing the denial of his grievance with the city attorney and with the City’s Human Resources Director, both of them allegedly asked Plaintiff how old he was and when he was planning on retiring. (SAC, 99 14.r-s.) Again, neither the unspecified city attorney nor the City’s Human Resources Director could terminate him. (SAC, 9 14.h & m.) 3. Plaintiff’s Termination On April 22, 2019, Plaintiff alleges that City Manager Carmany,” City Attorney Scott Porter (“Porter”), and City Attorney Jamaar Boyd-Weatherby (“Boyd-Weatherby”) met with 7 Plaintiff alleges that Carmany had been harassing him since he was appointed to the Interim City Manager position on or after March 4, 2019. (SAC, § 15.a.) Plaintiff does not state he made any complaints regarding Carmany’s alleged harassment. (See SAC.) 46683.00001\33031126.1 4 = DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Plaintiff and asked him to resign. (SAC, q 15.a.) When Plaintiff chose not to resign, Carmany- and Carmany alone-sent Plaintiff an official termination letter stating that his termination was effective “immediately.” (SAC, 9 15.a.) On April 25, 2019, Plaintiff filed an appeal of his termination. (SAC, q 15.b.) On April 28, the City set a hearing for his appeal. (SAC, § 15.c.) Plaintiff alleges that his appeal was not proper because his hearing was on short notice, he was not given the option of having his hearing as an open or closed hearing, and the unspecified decision makers of his appeal were “involved in the unlawful conduct or were associated with the individuals who committed it.” (SAC, 9915.c-d.) Plaintiff alleges that after the Carmany terminated him, he has been “compelled” to repeat certain allegedly false statements-including “other comments not yet discovered”-to prospective employers and “in dealings with economic opportunities.” (SAC, § 15.f-g.). B. Meet And Confer Efforts Plaintiff served Defendants with a copy of the original Complaint by substituted service on March 17, 2020. (O’Connell Decl., § 2.) On April 8, Defendants’ counsel sent an email to Plaintiff’s counsel initiating the meet and confer process. (/bid., 3.) On April 24, Defendants’ counsel sent a letter to Plaintiff’s counsel detailing the basis of Defendants’ potential motion to strike and demurrer related to all of Plaintiff’s causes of action. (/bid., 4, Exh. A.) Five days later, on April 29, Defendants’ counsel and Plaintiff's counsel spoke by telephone regarding Defendants’ counsel’s April 24 letter and, per that conversation, Plaintiff’s counsel agreed to file an amended complaint that would clarify certain factual allegations and address the defects Defendants’ counsel had identified in its April 24 letter. (/bid., 9 5.) On May 6, Plaintiff filed his First Amended Complaint. (/bid., 4 6.) As before, on May 20, Defendants’ counsel sent a letter to Plaintiff’s counsel detailing the basis of Defendants’ potential motion to strike and demurrer related to all of Plaintiff’s causes of action. (/bid., q 7, Exh. B.) The following day, on May 21, Defendants’ counsel and Plaintiff’s counsel spoke by telephone regarding Defendants’ counsel’s May 20 letter and, per that conversation, Plaintiff’s counsel agreed to (i) submit a notice of errata correcting allegation in Plaintiff’s First Amended 46683.00001\33031126.1 -5- DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Complaint that sought punitive damages against the City and (ii) dismiss the West Covina Fire Department without prejudice. (/bid., § 8.) On May 21, Plaintiff filed his Second Amended Complaint, did not submit a notice of errata, and did not dismiss the West Covina Fire Department. (Zbid., | 9-10, Exh. C.) On June 17, Defendants’ counsel spoke by telephone with Plaintiff's counsel and Plaintiff’s counsel stated that she expected an additional meet and confer effort regarding Plaintiff's Second Amended Complaint. (/bid., § 11.) On the afternoon of June 17, Defendants’ counsel contemporaneously filed a declaration of good faith attempt to meet and confer and sent a letter to Plaintiff’s counsel reasserting the basis of Defendants’ potential demurrer related to all of Plaintiff’s causes of action. (/bid., § 12, Exh. D.) Four days later, on June 21, Defendants’ counsel spoke by telephone with Plaintiff's counsel regarding Plaintiff’s filing of the Second Amended Complaint without leave to amend. (/bid., § 13.) Based thereon, the Parties’ agreed to file a joint stipulation granting Plaintiff leave to file the Second Amended Complaint and dismissing the West Covina Fire Department. (/bid.) The Parties further agreed that they were at an impasse regarding the defects Defendants’ counsel had previously identified in Plaintiff's Second Amended Complaint. (/bid.) As such, pursuant to California Code of Civil Procedure, Section 430.41(a), Defendants have met and conferred with Plaintiff prior to filing this Demurrer to the Second Amended Complaint. III. ARGUMENT A demurrer tests whether a complaint states facts that constitute a cognizable cause of action. (Code Civ. Proc., § 430.10; Quelimane Co., Inc. v. Stewart Title Guaranty Co. 91998) 19 Cal.4th 26.) When a cause of action is defective, the plaintiff bears the burden of showing how it can be cured by amendment. (Blanty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040-1041.) If the plaintiff does not do so, or if it is clear the defect cannot be cured, the demurrer is properly sustained without leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742-743.) Here, Defendants advised Plaintiff on no less than in three letters and in three discussions that Plaintiff's allegations against them plainly do not include the facts necessary to constitute any cognizable causes of action. (O’Connell Decl., 49 2-13.) Indeed, in their letters and as part of 46683.00001\33031126.1 = 6: = DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 their discussions, Defendants provided Plaintiff with a list of the elements necessary for Plaintiff to plead all of his causes of action, identified each of the facts that were either entirely missing and/or so vague as to render them ambiguous or unintelligible, and allowed Plaintiff to amend his complaint twice. (O’Connell Decl., Exh. A, B, & D.) As demonstrated through the insignificant changes Plaintiff made in his two amendments and Plaintiff’s failure to add even the simplest of allegations necessary to establish numerous causes of action-particularly allegations concerning Carmany, the person that actually terminated him-Plaintiff cannot cure his complaint by amendment and Defendants’ demurrer of the causes of action against them should be sustained without leave to amend. A. Plaintiff Fails To Allege Any Cognizable Causes Of Action Against The Individual Defendants Plaintiff’s Second Amended Complaint includes within it 15 causes of action comprised of 134 allegations. Therein, it includes a total of five factual allegations that reference Councilmember Johnson (SAC, 9 14.f, 14.1, 14}, 14.m, & 14.p), five factual allegations that reference Councilmember Wu (SAC, qq 14.a, 14.g, 14.h, 14}, & 14.k), seven factual allegations that reference Commissioner Kennedy (SAC, 99 14.c, 14.f, 14.i, 14.j, 14.0, 14.p, & 14.1), and only two factual allegations that reference Carmany (SAC, 9 14. & 15.a). Concerning Carmany-the only individual who could (SAC, 4 14.m) and did actually terminate Plaintiff (SAC, 9 15.a)-he mistakenly alleges that Carmany started rumors about Plaintiff in 2017 (SAC, 9 14.J) even though Carmany did not start working for the City until he became acting City Manager in 2019 (SAC, 9 14.m). Thus, the only “substantive” allegation against Carmany is as follows: On April 22, 2019, defendant Carmany, City Attorney Scott Porter (“Porter”), and Jamaar Boyd-Weatherby met with Whithorn and asked him to resign. Defendant Carmany had been harassing Whithorn since Carmany was appointed to the Interim City Manager position. The harassment Whithorn experienced from Carmany includes, but is not limited to, comments alluding to Whithorn’s termination from the moment defendant met Whithorn, chastising his performance, berating Whithorn in front of his coworkers and direct reports and in private, and refusing to work with Whithorn. After Whithorn refused to resign, defendant Carmany emailed Whithorn his official termination letter stating 46683.00001\33031126.1 =] = DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 that his termination was effective “immediately.” Although a hearing was set for only a few days later, Whithorn was denied the proper appeal process as is required for a Fire Chief. (SAC, § a. Said differently, Plaintiff's Second Amended Complaint includes within it only 1 vague allegation and conclusory allegation concerning the individual that actually had the power to and did terminate him and the remaining 133 allegations are irrelevant. In spite of this single allegation related to Carmany and these few, ambiguous and overlapping references to the Individual Defendants, Plaintiff’s Second Amended Complaint still alleges five causes of action against some or all of them: (1) second cause of action for hostile work environment harassment on the bases of age and disability and requesting accommodation; (2) eleventh cause of action for intentional infliction of emotional distress; (3) twelfth cause of action for negligent infliction of emotional distress; (4) thirteenth cause of action for defamation; and (5) fourteenth cause of action for coerced self-publication. These few ambiguous and unintelligible allegations regarding the Individual Defendants are not sufficiently clear to apprise them of the basis upon which Plaintiff is seeking relief for the causes of action that were seemingly indiscriminately brought against all of them. (Code Civ. Proc., § 430.10, subdivision (f); Perkins v. Superior Court (1981) 117 Cal. App.3d 1, 6 [citing Youngman v. Nevada Irrigation Dist. (1999) 70 Cal.2d 240]; Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.) Therefore, Plaintiff’s Second Amended Complaint against the Individual Defendants fails for uncertainty. B. Plaintiff Fails To Allege The Necessary Elements To State Any Cognizable Causes Of Action 1. First Cause of Action for Discrimination on the Bases of Age and Disability and Requesting Accommodation To establish a prima facie case of discrimination, a plaintiff must plead: (1) he was a member of a protected class; (2) he was otherwise performing competently; (3) he suffered an adverse employment action; and, (4) “some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-355.) Plaintiff completely fails to plead 46683.00001\33031126.1 =8 = DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 these elements. Rather, Plaintiff imprecisely states that he suffered from a “serious medical condition” without providing enough information to determine whether that condition constitutes a cognizable disability (Gov't Code § 12945.2(c)(3)(C) & 12945.2(c)(8)), states that his own employees viewed him as an absentee fire chief and even called for his termination to save the fire department, fails to identify any discrimination he allegedly faced based on his age or alleged disability other than sporadic questions of whether he would retire, fails to identify a single accommodation the City did not provide him, and fails to allege any circumstance that suggests the Carmany had a discriminatory motive to recommend his termination based on his age or his alleged disability. Consequently, Plaintiff does not state a cognizable discrimination action. 2. Second Cause of Action for Hostile Work Environment on the Bases of Age and Disability and Requesting an Accommodation To establish a hostile work environment claim, a plaintiff must plead: (1) that he was subjected to verbal or physical conduct; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment. (Etter v. Veriflo Corp. (1998) 67 Cal. App.4th 457, 465; Thompson v. City of Monrovia (2010) 186 Cal. App.4th 860, 876; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121.) Again, Plaintiff does not meet this pleading requirement. As stated above, Plaintiff fails to identify any harassment he allegedly faced based on his age or alleged disability other than sporadic questions of whether he would retire by individuals who were not his supervisor or had control over his employment and, again, Plaintiff fails to identify any accommodation that he was not provided for his alleged disability. Accordingly, the conduct Plaintiff complains of is not sufficiently severe or pervasive enough to alter the conditions of Plaintiff’s employment and create an abusive work environment. As such, Plaintiff cannot state cognizable hostile work environment claim.® ® Plaintiff's hostile work environment claim also fails against the Individual Defendants as Plaintiff did not plead that he included the Individual Defendants in the DFEH Complaint. (See SAC.) 46683.00001\33031126.1 =9< DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 3. Third Cause of Action for Retaliation for Engaging in Protected Activity In order to establish a claim for retaliation, a plaintiff must plead that: (1) he engaged in a protected activity; (2) the employer subjected plaintiff to an adverse employment action; and (3) a causal link exists between the protected activity and the employer’s action. (Akers v. County of San Diego (2002) 95 Cal. App.4th 1441, 1453.) Here, the foundation of Plaintiff’s retaliation action is his claim that he made a “complaint less than two months before his termination [by Carmany] and retaliatory conduct by defendants occurred after and as a result of requesting and [sic] accommodation and taking a medical leave.” (SAC, 940.) As stated above, Plaintiff does not identify a single instance where his requests for medical leave were not accommodated (SAC, 9 13)-even though such medical leave was well in excess of his allotted time-and the “complaint” that Plaintiff appears to be referencing is that he opposed the City Council lawfully changing the municipal code in February 2019 to terminate him-a tautological claim that (i) would result in any complaint by an employee of its prospective termination preventing that employee’s termination out of fear of a retaliation claim and (ii) was prior to Carmany becoming City Manager (SAC, 4 14). Thus, Plaintiff’s claim neither establishes he engaged in protected activity nor does it establish that there is a causal link between that activity and his termination by Carmany and, therefore, Plaintiff does not state a cognizable retaliation claim. 4. Fourth Cause of Action for Failure to Provide Reasonable Accommodation and Fifth Cause of Action for Failure to Engage in the Interactive Process In order to establish a claim for failure to provide reasonable accommodation, a plaintiff must plead that at the time of the alleged failure: (1) he had a disability of which the employer was aware; (2) he was able to perform the essential functions of the job at issue with or without accommodation; and (3) the employer failed to reasonably accommodate for his disability. (See Jadwin, D.O. v. County of Kern (2009) 610 F. Supp. 2d 1129, 1175-1176). Moreover, it is the plaintiff’s responsibility to initiate the interactive process if he felt he needed an accommodation (Brown v. Lucky Stores, Inc. (2001) 246 F.3d 1182, 1188) and the plaintiff must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred (Scotch v. Art Inst. of Cal.-Orange County (2009) 173 Cal. App.4th 986, 46683.00001\33031126.1 -10 - DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 1018-1019). As stated above, Plaintiff does not identify with the requisite specificity his actual or perceived disability, he does not plead that the City-particularly Carmany-was aware of that purported disability, he does not plead he could perform the essential functions of his job with or without an accommodation, he does not identify a single instance where the City failed to accommodate him, he does not state that he ever tried to initiate the interactive process, and he does not plead that there was a reasonable accommodation that would have been available at the time the interactive process should have occurred. 5. Sixth Cause of Action for Failure to Prevent Discrimination, Harassment, and Retaliation “[TThere’s no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn’t happen, for not having a policy to prevent discrimination when no discrimination occurred.” (7rujillo v. North County Transit Dist. (1998) 63 Cal. App.4th 280). As demonstrated above, Plaintiff does not plead a cognizable action for discrimination, harassment, or retaliation. Consequently, this cause of action for failure to prevent discrimination, harassment, and retaliation cannot lie. 6. Seventh Cause of Action for Violation of California Family Rights Act In order to establish a claim for violation of the California Family Rights Act (“CFRA”), a plaintiff must plead: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised his right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action because of his exercise of her right to CFRA leave.” (Dudley v. Department of Transportation (2017) 90 Cal. App.4th 255, 261.) Again, Plaintiff does not specifically identify his alleged disability. As such, Plaintiff cannot establish that he took leave for a qualifying CFRA purpose, that he was unable to perform he functions of his job, or that there was any connection between a qualifying leave and his termination by Carmany. Accordingly, Plaintiff does not state a cognizable cause of action for violation of CFRA. 46683.00001\33031126.1 -11 - DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 7. Eighth Cause of Action for Whistleblower Retaliation In order to establish a claim for whistleblower retaliation under Labor Code § 1102.5, a plaintiff must show that he engaged in a protected activity, that he was thereafter subjected to adverse employment action by his employer, and there was a causal link between the two. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287-88.) To qualify as a protected disclosure, a plaintiff must disclose information to a government or law enforcement agency that was a violation of state or federal statute. (Patten v. Grant Joint Union High Sch. Dist. (2005) 134 Cal. App.4th 1378, 1386.) In spite of Defendants repeated requests for Plaintiff to identify such a protected disclosure, Plaintiff’s Second Amended Complaint still does not include one and he does not identify that Carmany had knowledge of his imperceptibly alleged whistleblowing. Accordingly, Plaintiff cannot establish that there was a causal link between a protected disclosure and his termination by Carmany so he cannot sustain his whistleblower retaliation claim. 8. Ninth Cause of Action for Violation of the Firefighter Bill of Rights In relevant part, the Firefighter Bill of Rights states the following: A fire chief shall not be removed by a public agency or appointing authority without providing that person with written notice, the reason or reasons for removal, and an opportunity for administrative appeal. For purposes of this subdivision, the removal of a fire chief by a public agency or appointing authority, for the purpose of implementing the goals or policies, or both, of the public agency or appointing authority, or for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration, shall be sufficient to constitute “reason or reasons.” (Gov’t Code § 3254(c).) While Plaintiff makes numerous vague and conclusory allegations regarding the City’s alleged violations of the Firefighter Bill of Rights, the only allegation in which Plaintiff provides any specificity relates to his termination. (SAC, 99 86-90.) In doing so, however, Plaintiff does not claim that he was not provided with written notice, he was not provided with the reason or reasons for removal, or that he was not provided with an opportunity for administrative appeal. 46683.00001\33031126.1 «12 = DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Consequently, Plaintiff does not allege the facts necessary to for a cause of action for violation of the Firefighter Bill of Rights. 9. Tenth Cause of Action for Wrongful Termination in Violation of Public Policy In support of this cause of action, Plaintiff relies on the following conclusory factual allegations: 97. Plaintiff complained to Defendants about his harassment, discrimination, as well as violations of the Fire Fighter Bill of Rights, West Covina Commissioner Handbook, West Covina Municipal Code, ICMA Code of Ethics, and California Business and Professions Code. 98. On the basis of the above, Plaintiff believes and alleges that his age, disability, association with someone with a disability/medical condition, and good faith complaints of illegal activity in violation of the FEHA, Fire Fighter Bill of Rights, FEHA, ICMA Ethics Code, Commissioner Handbook, and West Covina Municipal Code were substantial motivating reasons in Defendants’ termination of his employment. As noted above, Plaintiff’s alleged complaints regarding harassment, discrimination, and/or the Firefighter Bill of Rights are not cognizable and nowhere in his Second Amended Complaint does Plaintiff even claim he complained about violations of FEHA, West Covina Commissioner Handbook, West Covina Municipal Code, ICMA Code of Ethics, or the California Business and Professions Code. Accordingly, the fundamental premise upon which Plaintiff bases his cause of action for wrongful termination is fatally flawed. 10. Eleventh Cause of Action for Intentional Infliction of Emotional Distress and Twelfth Cause of Action for Negligent Infliction of Emotional Distress Like several of Plaintiff’s other causes of action, Plaintiff’s claims for both intentional and negligent infliction of emotional distress rely exclusively on the success of Plaintiff’s claims of discrimination, hostile work environment, and retaliation. (SAC, 9 102 and 108.) As Defendants demonstrate above, each of those causes of action are defective and, as a result, Plaintiff cannot maintain these causes of action.’ ? Nevertheless, even if Plaintiff could correct his discrimination, hostile work environment, or retaliation causes of action, Plaintiff does not allege anywhere close to extreme or outrageous conduct by any of the Defendants with the intention of causing, or reckless disregard of the probability of causing, emotional distress necessary to sustain either 46683.00001\33031126.1 = 13 < DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 11. Thirteenth Cause of Action for Defamation In order to establish a claim for defamation, a plaintiff must show the defendant made an intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage. (Smith v. Maldonado (1999) 72 Cal. App.4th 637, 645.) Relevant here, the statement at issue must be “provably false.” (Nygard, Inc. v. Uusi- Kerttula (2008) 159 Cal. App.4th 1027, 1048.) “Statements do not imply a provably false factual 6 < assertion and thus cannot form the basis of a defamation action if they cannot “ ‘reasonably [be] interpreted as stating actual facts' about an individual.” [Citations.] Thus, “rhetorical hyperbole,” “vigorous epithet[s],” “lusty and imaginative expression[s] of ... contempt,” and language used “in a loose, figurative sense” have all been accorded constitutional protection. (Id. [citations omitted].) Here, Plaintiff attempts to base his defamation action on (i) Kennedy’s alleged statement that Plaintiff’s leave was a sham, (ii) Kennedy and Wu’s alleged statement that Plaintiff does not get along with people, and (iii) Kennedy’s alleged statement that Plaintiff hates Kennedy. These statements simply do not establish a defamation claim because they are not provably false, unprivileged, or have a natural tendency to cause special damages to the Plaintiff. 12. Fourteenth Cause of Action for Coerced Self-Publication In order to state a cause of action for coerced self-publication, a plaintiff must establish that he was defamed due the strong compulsion to republish a defamatory statement and the circumstances which create the strong compulsion are known to the originator of the defamatory statement at the time he communicates it to the person defamed. (Davis v. Consolidated Freightways (1994) 29 Cal. App.4th 354, 373.) The element of a “strong compulsion” can only be met if “a job seeker must tell a prospective employer what is in his personnel file in order to explain away a negative job reference” where Plaintiff did not otherwise discuss the accusations against him. (/d.) In addition to Plaintiff's failure to establish any cognizable defamatory statements were made about him as shown above, Plaintiff also fails to plead that any of the Defendants have control over his personnel file, that any of the Defendants have given Plaintiff a negative reference, that Plaintiff has been asked to explain away such a negative reference, or that cause of action. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) 46683.00001\33031126.1 -14 - DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff did not otherwise discuss the accusations against him. Each of these failures independently defeat Plaintiff’s cause of action for coerced self-publication. 13. Fifteenth Cause of Action for Negligent Hiring, Supervision, and Retention The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate or legal cause between the breach and the plaintiff’s injury. (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal. App.4th 1133, 1139 [citation omitted].) An employer may only be liable for negligent hiring or retention if the employer knew or should have known that hiring or retaining the employee created a particular risk or hazard and that particular harm materializes. (/d. [citation omitted].) Here, Plaintiff alleges that the City breached its duty to Plaintiff by “hiring and retaining defendants Kennedy, Carmany, Wu, and Johnson” even though (i) as council members, City did not hire or retain Wu or Johnson, (ii) Plaintiff does not allege that the City knew of a particular risk or harm when it allegedly “hired” the Individual Defendants, (iii) Plaintiff does not plead a breach of its duty of care, and (iv) Plaintiff cannot allege that there is a causal nexus between the alleged “investigation that revealed unethical and unfit conduct” and any of the alleged injuries that Plaintiff suffered (none of which are cognizable). Based thereon, and like all of Plaintiff’s other causes of action, Plaintiff’s cause of action for negligent hiring, supervision, and retention must fail. IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court sustain their demurrer to Plaintiff’s Second Amended Complaint without leave to amend. BEST BEST & KRIEGER LLP i” By ZZ oA HOWARD B. GOLDS THOMAS M. O’CONNELL Attorneys for Defendants CITY OF WEST COVINA, LLOYD JOHNSON, TONY WU, GLENN KENNEDY, and DAVID CARMANY Dated: July 22, 2020 46683.00001\33031126.1 =15< DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PROOF OF SERVICE At the time of service I was over 18 years of age and not a party to this action. My business address is 3390 University Avenue, 5th Floor, P.O. Box 1028, Riverside, California 92502. On July 22, 2020, I served the following document(s): DEFENDANTS CITY OF WEST COVINA, LLOYD JOHNSON, TONY WU, GLENN KENNEDY, and DAVID CARMANY NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT Ll Ll By fax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed below. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses listed below (specify one): [] Deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. [] Placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business'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. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Riverside, California. By personal service. At _____ a.m./p.m., I personally delivered the documents to the persons at the addresses listed below. (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. By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed below and providing them to a professional messenger service for service. A Declaration of Messenger is attached. 46683.00001\33031126.1 -16 - DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT L A W O F F I C E S OF B E S T B E S T & K R I E G E R LL P 3 3 9 0 U N I V E R S I T Y A V E N U E , 5 T H F L O O R P. O. B O X 1 0 2 8 R I V E R S I D E , C A L I F O R N I A 9 2 5 0 2 a ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. [] 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 persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. Carney R. Shegerian Melissa Cardenas SHEGERIAN & ASSOCIATES, INC. 145 S. Springs Street, Suite 400 Los Angeles, CA 90012 Attorney for Plaintiff Larry Whithorn Ph: (310) 860-0770 Fx: (310) 860-0771 Email: cshegerian@shegerianlaw.com mcardenas@shegerianlaw.com anguyven(@shegerianlaw.com calendarclerk@shegerianlaw.com I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 22, 2020, at Riverside, California. payer And] {ort 'ta 46683.00001\33031126.1 = 17 = DEMURRER TO PLAINTIFF LARRY WHITHORN’S SECOND AMENDED COMPLAINT ---- . - od Journal Technologies Court Portal lof l Court Reservation Receipt Reservation Reservation ID: 960066858475 Reservation Type: Demurrer - without Motion to Strike Case Number: 205TCV08916 Filing Party: The City Of West Covina (Defendant) Date/Time: February 11th 2021, 9:15AM Fees Description Demurrer - without Motion to Strike *** Fees Exempted by Gov Code 6103.1 *** TOTAL Payment Amount: $0.00 Copyright © Journal Technologies, USA. All rights reserved. Status: RESERVED Number of Motions: 1 Case Title: LARRY WHITHORN vs THE CITY OF WEST COVINA, et al. Location: Stanley Mosk Courthouse - Department 96 Confirmation Code: CR-UXPZCWCV7QD9BXLUS Fee Qty Amount 60.00 1 0.00 $0.00 Type: GOVT_EXEMPT 7/22/2020, 12:23 PM