Electronically FILED by Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 Jennifer M. Rosner, Bar No. 227676 jrosner@lcwlegal.com Allen. F. Acosta, Bar No. 326688 aacosta@lcwlwegal.com Liebert Cassidy Whitmore A Professional Law Corporation 6033 West Century Boulevard, 5th Floor Los Angeles, California 90045 Telephone: ~~ 310.981.2000 Facsimile: 310.337.0837 Attorneys for Defendant City of Santa Monica Superior Court of California, County of Los Angeles on 06/26/2020 05:15 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY O Bridget Cade, an individual, Plaintiff, V. City of Santa Monica and Does 1 through 50, inclusive, Defendant. F LOS ANGELES Case No.: 20STCV11832 [ASSIGNED FOR ALL PURPOSES TO MICHELLE WILLIAMS COURT, DEPT. 74] Complaint Filed: March 24, 2020 FAC Filed: April 30, 2020 DECLARATION OF JENNIFER M. ROSNER IN SUPPORT OF DEFENDANT CITY OF SANTA MONICA’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT Time: TBD Dept. 74 Reservation No.: TBD (*Exempt from filing fees pursuant to Gov. Code, § 6103.) I, Jennifer M. Rosner, declare and state as follows: 1. I am an attorney at law duly licensed to practice in all courts of the State of California. Iam an attorney in the law firm Liebert Cassidy Whitmore, attorneys of record for Defendant City of Santa Monica (“City”) in the above-captioned matter. I am familiar with the 1 Declaration of JENNIFER M. ROSNER In Support of Defendant City of Santa Monica’s Demurrer to Plaintiff’s First Amended Complaint and Motion to Strike Portions of Plaintiff’s First Amended Complaint 9308232.1 SA530-220 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 papers and files in this case, and I have personal knowledge of all facts set forth herein. If called upon to testify to the same, I could and would so testify. 2. Plaintiff filed her Complaint on March 24, 2020, but did not serve the City. 3. Plaintiff filed her First Amended Complaint (“FAC”) on April 30, 2020, and served City on May 12, 2020. 4, On June 1, 2020, I emailed Plaintiff’s counsel, Mika Hilaire, requesting a two- week extension of time to file a responsive pleading to June 26, 2020. On June 4, 2020, Ms. Hillaire agreed to this request. 5. On June 12, 2020, I sent a letter by email to Plaintiff’s counsel, Mika Hilaire, to meet and confer about the City’s intention to demur and move to strike portions of the FAC. This letter set forth the grounds for the City’s anticipated demurrer and motion to strike. The meet and confer letter identified the causes of action in the FAC that were subject to demurrer and identified with legal support the basis of the deficiencies. The letter also identified grounds for striking portions of the FAC. I requested that Ms. Hillaire contact me on Monday, June 15, 2020, to meet and confer regarding the demurrer and motion to strike. A true and correct copy of my letter to counsel for Plaintiff is attached hereto as Exhibit A. 6. On June 15, 2020, Plaintiff’s counsel and I had a telephone discussion. In response to the City’s meet and confer by letter and telephone discussion concerning the FAC, Ms. Hillaire agreed to notify me by June 19, 2020 as to whether Plaintiff would agree to file a second amended complaint. I did not receive a response on that date or any time before the execution of this declaration. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 26th day of June, 2020 at Los Angeles, California. /s/]) ennifer M. Rosner Jennifer M. Rosner 2 Declaration of Jennifer M. Rosner In Support of Defendant City of Santa Monica’s Demurrer to Plaintiff’s First Amended Complaint and Motion to Strike Portions of Plaintiff’s First Amended Complaint 9308232.1 SA530-220 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 EXHIBIT A 3 Declaration of Jennifer M. Rosner In Support of Defendant City of Santa Monica’s Demurrer to Plaintiff’s First Amended Complaint and Motion to Strike Portions of Plaintiff’s First Amended Complaint 9308232.1 SA530-220 LCW LieBerT CAssiDy WHITMORE 6033 WEST CENTURY BOULEVARD, 5TH FLOOR LOS ANGELES, CALIFORNIA 90045 T: 310.981.2000 F:310.337.0837 jrosner@lcwlegal.com 310.981.2081 June 12, 2020 VIA EMAIL mika @hmpclaw.com Ms. Mika Hilaire Hilaire McGriff, PC 15233 Ventura Blvd., Suite 420 Sherman Oaks, CA 91403 Re: Bridget Cade v. City of Santa Monica Client-Matter: SA530/220 Dear Ms. Hilaire: We have reviewed plaintiff Bridget Cade’s (“Plaintiff”) First Amended Complaint (“FAC”) and note that there are several pleading deficiencies. We are writing to inform you that Defendant City of Santa Monica (“City”) intends on filing a demurrer to the FAC under California Code of Civil Procedure section 430.41, and a motion to strike under California Code of Civil Procedure section 435. Please consider amending the FAC to cure the defects in the pleading, or dismissing those causes of action that cannot be cured. The demurrer and motion to strike will address, among other things, the following: Plaintiff’s first cause of action fails to state facts sufficient to support of cause of action under the Fair Employment and Housing Act (“FEHA”) for discrimination. To state a cause of action for discrimination under FEHA, an employee must generally allege that: “(1) she was a member of a protected class; (2) she was qualified for the position sought or was performing competently in the position held; (3) she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance which suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) The FAC fails to allege facts or circumstances showing a discriminatory motive based on race or gender. At most, Plaintiff’s FAC alleges that she was a member of a protected class and the City did not offer a promotion to Plaintiff when it hired other candidates for vacant positions. These allegations, taken together, do not constitute a viable cause of action for discrimination under FEHA. Plaintiff also fails to allege sufficient facts to establish her second cause of action for retaliation under FEHA. To plead a prima facie case of retaliation, an employee must allege: (1) that she was engaged in a protected activity; (2) the employer subjected her to adverse employment action; and (3) there is a causal link between the protected activity and the employer's action. (Sada v. Robert F. Kennedy Med. Center (1997) 56 Cal.App.4th 138, 155- Los Angeles | San Francisco | Fresno | San Diego! Sacramento www.lcwlegal.com 9291128.3 SA530-220 Ms. Mika Hilaire Re: Bridget Cade v. City of Santa Monica June 12, 2020 Page 2 156.) Aside from conclusory allegations that are insufficient, the FAC fails to allege any facts showing that Plaintiff was engaged in a protected activity, such as complaining of harassment or discrimination or otherwise opposing an unlawful employment practice, and a causal link between the protected activity and the alleged adverse employment action. To the contrary, as the FAC alleges and admits, the City issued a written reprimand to Plaintiff for “not appropriately responding to a sexual harassment complaint” by a former City employee, Heather Walker. (FAC {| 14) Thus, Ms. Walker was the complainant, not Plaintiff. While Plaintiff goes to great lengths to justify Plaintiff’s inaction in response to a Ms. Walker’s complaint and fault other employees for their response, put simply: Plaintiff’s conduct of not reporting a complaint of sexual harassment is not a protected activity. Thus, Plaintiff’s retaliation claim fails. Because Plaintiff failed to adequately plead discrimination or retaliation for the reasons detailed above, the third cause of action for failure to prevent discrimination and retaliation must also fail. FEHA does not provide a stand-alone tort for a failure to prevent unlawful discrimination and retaliation. (Dickson v. Burke Williams, Inc. (2016) 234 Cal.App.4th 1307, 1315-1317.) Rather, a claim under Government Code section 12940, subdivision (k) hinges on whether Plaintiff has an actionable claim of unlawful workplace conduct, such as discrimination, harassment, or retaliation. (Scotch v. Art Inst. of California (2009) 173 Cal.App.4th 986, 1021, (quoting Trujillo v. N. County Transit Dist., 63 Cal.App.4th at 280, 290).) Plaintiff’s fourth cause of action styled as “Race Discrimination and Retaliation” in violation of Lab. Code section 1197.5 (“Equal Pay Act”) does not allege facts to support a cause of action. A prima facie case under the Equal Pay Act requires that an employee first allege that the employer paid the plaintiff lower wages than a male comparator or a comparator of another race or ethnicity for substantially similar work. (See Lab. Code section 1197.5, subds. (a) & (b); see also Hall v. Cnty. of Los Angeles, (2007) 148 Cal.App.4th 318, 324.) And the plaintiff should identify those comparators and specify how the work performed is substantially similar to those whom the plaintiff compares her compensation. (/bid.) First, the essence of Plaintiff’s Equal Pay Act claim is that male or non-African American counterparts were promoted and consequently received pay raises. (FAC 57) But the Equal Pay Act only prohibits pay discrepancies based on gender and race or ethnicity among “persons doing substantially similar work under substantially similar conditions[,]” (Ibid.), not pay discrepancies between employees in different roles that may have resulted from a comparator’s promotion. Second, even if the FAC referred to appropriate comparators, Plaintiff included no information about the identity of purported comparators or the nature of the work they performed beyond generalized allegations that these individuals were neither female nor African-American. (See Davaloo v. State Farm Ins. Co., 135 Cal. App. 4th 409, 417 (2005) [affirming demurrer because plaintiffs provided “generic allegations” lacking “specifics of any kind]; cf. Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 629 [finding that plaintiff established prima facie case under Equal Pay Act where identified male and female construction superintendents were paid unequally for equal work].) For these reasons, this cause of action cannot be maintained. Finally, the prayer for relief in the FAC seeking punitive damages against the City, a public entity, should be stricken. Government Code section 818 provides that “[n]otwithstanding 9291128.3 SA530-220 Ms. Mika Hilaire Re: Bridget Cade v. City of Santa Monica June 12, 2020 Page 3 any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendants.” (See Burden v. County of Santa Clara (2000) 81 Cal.App.4th 244, 247 [motion to strike prayer for punitive damages against a county is proper]; McAllister v. S. Coast Air Quality Mgmt. Dist. (1986) 183 Cal. App.3d 653, 656-61 [no punitive damages allowed against public entities].) We request the opportunity to meet and confer via telephone to discuss the deficiencies with Plaintiff’s FAC as described above under California Code of Civil Procedure sections 430.41 and 435. Please let me know if you are available on Monday at 10 am to discuss. If you are not available on this date and time, please let me know so we can schedule another mutually convenient time. Thank you. Very truly yours, LIEBERT CASSIDY WHITMORE Jennifer M. Rosner JMR :si 9291128.3 SA530-220 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is: 6033 West Century Boulevard, Sth Floor, Los Angeles, California 90045. On June 26, 2020, I served the foregoing document(s) described as DECLARATION OF JENNIFER M. ROSNER IN SUPPORT OF DEFENDANT CITY OF SANTA MONICA’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT in the manner checked below on all interested parties in this action addressed as follows: Ms. Mika Hilaire HilaireMcGriff PC 15233 Ventura Boulevard, Suite 420 Sherman Oaks, CA 91403 telephone: facsimile: email: mika@hmpclaw.com M (BY U.S. MAIL) Iam “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. Ll BY FACSIMILE) Iam personally and readily familiar with the business practice of Liebert Cassidy Whitmore for collection and processing of document(s) to be transmitted by facsimile. I arranged for the above-entitled document(s) to be sent by facsimile from facsimile number 310.337.0837 to the facsimile number(s) listed above. The facsimile machine I used complied with the applicable rules of court. Pursuant to the applicable rules, I caused the machine to print a transmission record of the transmission, to the above facsimile number(s) and no error was reported by the machine. A copy of this transmission is attached hereto. 0 (BY OVERNIGHT MAIL) By overnight courier, I arranged for the above-referenced document(s) to be delivered to an authorized overnight courier service, FedEx, for delivery to the addressee(s) above, in an envelope or package designated by the overnight courier service with delivery fees paid or provided for. 4 Proof of Service 9308232.1 SA530-220 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N wn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 (BY ELECTRONIC SERVICE) By electronically mailing a true and correct copy through Liebert Cassidy Whitmore’s electronic mail system from mrowe @lcwlegal.com to the email address(es) set forth above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. (BY ELECTRONIC SERVICE PROVIDER) I am readily familiar with the firm’s practice for filing electronically. Through use of OneLegal, an electronic service provider, I arranged a true and correct copy of the above-reference documents to be electronically served to the e-mail address(es) registered with the court this day in the ordinary course of business following ordinary business practices. (BY PERSONAL DELIVERY) I delivered the above document(s) by hand to the addressee listed above. Executed on June 26, 2020, at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. /s/Mary A. Rowe Mary A. Rowe > Proof of Service 9308232.1 SA530-220
