Memorandum of Points and Authorities

Cal. Super. - 5th Dist.March 18, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) ROB BONTA Attorney General of California WILLIAM T. DARDEN Supervising Deputy Attorney General NORA MARIE NACHTSHEIM Deputy Attorney General State Bar No. 221618 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 210-6094 Fax: (916) 324-5567 E-mail: Nora.Nachtsheim@doj.ca.gov Attorneys for Defendant State of California, acting by and through the California Department of Corrections and Rehabilitation Exempt from filing fees per Government Code § 6103 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO RUDY RAMOS, Plaintiff, v. STATE OF CALIFORNIA; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; ROBERT DOWNEY JR, individually and as a Captain for State of California, California Department of Corrections and Rehabilitation, and DOES 1 THROUGH 10, Defendants. Case No. 21CECG00784 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT Date: January 4, 2022 Time: 3:30 p.m. Dept: 502 Judge: Hon. Rosemary McGuire Trial Date: TBD Action Filed: March 18, 2021 E-FILED 5/20/2021 10:21 AM Superior Court of California County of Fresno By: E Alvarado, Deputy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page 2 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) Introduction ..................................................................................................................................... 6 Argument ........................................................................................................................................ 6 I. Moving Party’s Counsel Attempted in Good Faith to Meet and Confer with Plaintiff’s Counsel ................................................................................................... 6 II. This Court Has Authority to Sustain Defendant’s Demurrer to the Third, Fourth, Fifth, and Sixth Causes of Action in Plaintiff’s Complaint ....................... 7 A. The Third Cause of Action in Plaintiff’s Complaint Fails to State Facts Sufficient to Constitute a Cause of Action and is Uncertain ............. 8 1. As a public entity, Defendant CDCR is immune from liability for a common law negligence claim. ................................. 8 2. Plaintiff has failed to allege presentation of his tort claim in compliance with the Government Claims Act. ............................... 8 3. The third cause of action is uncertain as to the allegations against CDCR. ................................................................................ 9 B. The Fourth Cause of Action in Plaintiff’s Complaint Fails to State Facts Sufficient to Constitute a Cause of Action and is Uncertain ........... 10 1. Plaintiff has failed to allege presentation of his tort claim in compliance with the Government Claims Act. ............................. 10 2. The fourth cause of action is uncertain. ........................................ 10 C. The Fifth Cause of Action in Plaintiff’s Complaint Fails to State Facts Sufficient to Constitute a Cause of Action and is Uncertain ........... 11 1. As a public entity, Defendant CDCR is immune from liability for a common law negligence claim. ............................... 11 2. Plaintiff has failed to allege presentation of his tort claim in compliance with the Government Claims Act. ............................. 11 3. The fifth cause of action is uncertain. ........................................... 12 D. The Sixth Cause of Action in Plaintiff’s Complaint Fails to State Facts Sufficient to Constitute a Cause of Action and is Uncertain ........... 13 1. Plaintiff has not alleged exhaustion of administrative remedies. ....................................................................................... 13 2. Plaintiff’s legal conclusions fail to state facts sufficient to constitute a cause of action under FEHA. ..................................... 13 Conclusion .................................................................................................................................... 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page 3 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) CASES Adelman v. Associated Intern. Ins. Co. (2001) 90 Cal. App. 4th 352 ...........................................................................................7, 12, 13 Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627 .......................................................................................................12 Gibson v. City of Pasadena (1978) 83 Cal.App.3d 651 .....................................................................................................8, 11 Grant v. Comp USA, Inc. (2003) 135 Cal.Rptr.2d 177 ......................................................................................................13 Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317 ...............................................................................................................14 Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17 ....................................................................................................................15 Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal. App. 3d 1103 .....................................................................................................7 Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367 ...................................................................................................15 Kelley v. The Conco Companies (2011) 196 Cal. App. 4th 191 ...................................................................................................15 Ladd v. County of San Mateo (1996) 12 Cal.4th 913 ...............................................................................................................12 Lopez v. S. Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780 ....................................................................................................10, 12, 13 Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App. 4th 592 .......................................................................................................7 Martell v. Antelope Valley Hosp. Med. Ct. (1998) 67 Cal.App.4th 978 .........................................................................................................8 Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1 ...............................................................................................10, 12, 13 Morgan v. Regents of University of Cal. (2000) 105 Cal.Rptr.2d 652 ......................................................................................................13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page 4 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814 .............................................................................................10, 12, 13 Reno v. Baird (1998)18 Cal.4th 645 ................................................................................................................14 Roby v. McKesson (2009) 47 Cal. 4th 686 ..............................................................................................................14 San Diego Unified Port Dist. v. Superior Court (Marriott Corp.) (1988) 197 Cal.App.3d 843 .........................................................................................................8 Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986 ...................................................................................................14 Semole v. Sansoucie (1972) 28 Cal. App. 3d 714 .........................................................................................................7 Shields v. County of San Diego (1984) 155 Cal.App.3d 103 ...........................................................................................10, 12, 13 Shirk v. Vista Unified Sch. Dist. (2007) ........................................................................................................................................10 Shirk v. Vista Unified Sch. Dist. (2007) 42 Cal.4th 201 ...........................................................................................................9, 11 State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234 ...............................................................................................................9 Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803 ...........................................................................................10, 12, 13 STATUTES California Code of Civil Procedure § 430.10 .......................................................................................................................................7 § 430.10(e)-(f) .............................................................................................................................7 § 430.30 .......................................................................................................................................7 § 1708.5 .....................................................................................................................................10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page 5 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) California Government Code § 810-966.6 ...........................................................................................................................9, 11 § 815 ............................................................................................................................................8 § 815(a) .......................................................................................................................................8 § 945.4 .........................................................................................................................................8 §12940 .......................................................................................................................................13 § 12940, subd. (a) ......................................................................................................................14 California Penal Code § 243.4 .......................................................................................................................................10 OTHER AUTHORITIES 4 Cal. L. Rev’n Comm’n Reports 1008 (1963) .................................................................................8 3 Witkin, Cal.Procedure (2d ed. 1971) § 465 ..........................................................................................................................................10 § 466 ..........................................................................................................................................10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) INTRODUCTION This action arises out of plaintiff Rudy Ramos’ claims that he was sexually and physically assaulted and battered by individually named defendant Robert Downey Jr. at work, while both plaintiff and defendant Downey were employed by the moving party, defendant California Department of Corrections and Rehabilitation. (A true and correct copy of said Complaint is attached to the accompanying Declaration of Nora M. Nachtsheim (“Nachtsheim Decl.”) as Exhibit A). Defendant California Department of Corrections and Rehabilitation (“CDCR”) hereby submits its memorandum of points and authorities in support of its Demurrer to the Third through Sixth Causes of Action in Plaintiff’s Complaint. CDCR’s Demurrer to the Third through Sixth Causes of Action in Plaintiff’s Complaint must be sustained for the fundamental reasons that: (1) Plaintiff Rudy Ramos (“Plaintiff”) has failed to allege that he exhausted his administrative remedies, and, (2) there is no common law government tort liability in California. ARGUMENT I. MOVING PARTY’S COUNSEL ATTEMPTED IN GOOD FAITH TO MEET AND CONFER WITH PLAINTIFF’S COUNSEL After copies of the summons and complaint were delivered via mail with a notice and acknowledgement of receipt request to CDCR, CDCR’s defense counsel attempted to contact Plaintiff’s counsel by telephone on Friday, April 23, 2021. (Nachtsheim Decl., ¶¶ 3 - 4.) A voice message was left by CDCR’s counsel with a request for a return call from Plaintiff’s counsel. (Nachtsheim Decl., ¶ 4.) On Tuesday, April 27, 2021, CDCR’s counsel returned the acknowledgment of receipt of summons by email and regular mail to Plaintiff’s counsel. (Nachtsheim Decl., ¶ 5, Ex. B.) On April 28, 2021, CDCR’s counsel sent a detailed letter to Plaintiff’s counsel via email and regular mail in attempt to meet and confer about the deficiencies in the Complaint, with a further request for telephone contact. (Nachtsheim Decl., ¶ 6, Ex. C.) On May 10, 2021, Plaintiff’s counsel provided a very brief letter that responded to only a portion of the issues raised in CDCR’s counsel’s letter about the Complaint. (Nachtsheim Decl., ¶ 7, Ex. D.) CDCR’s counsel responded on the same date of May 10, 2021 to request that Plaintiff’s counsel meet and confer regarding the remainder of issues. (Nachtsheim Decl., ¶ 8, Ex. E.) On 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) May 17, 2021, CDCR’s counsel telephoned plaintiff’s counsel to verbally meet and confer in attempt to resolve the issues raised in CDCR’s counsel’s April 28, 2021 letter (Nachtsheim Decl., Ex. C), but plaintiff’s counsel’s response was that the complaint would not be amended before a demurrer was filed. (Nachtsheim Decl., ¶ 9.) II. THIS COURT HAS AUTHORITY TO SUSTAIN DEFENDANT’S DEMURRER TO THE THIRD, FOURTH, FIFTH, AND SIXTH CAUSES OF ACTION IN PLAINTIFF’S COMPLAINT Section 430.10 of the Code of Civil Procedure provides the following, in pertinent part: The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: . . . (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. . . . Cal. Civ. Proc. Code § 430.10(e)-(f). A cardinal rule of pleading is that only the ultimate facts need be alleged. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 719; Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App. 4th 592, 606.) The function of a demurrer is to test the legal sufficiency of a pleading. (Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal. App. 3d 1103, 1111.) In reviewing the sufficiency of a complaint against a general demurrer, the court treats the demurrer as admitting all material facts properly pleaded, as well as matters which may be judicially noticed. However, contentions, deductions or conclusions of fact or law are insufficient to constitute a cause of action. (Adelman v. Associated Intern. Ins. Co. (2001) 90 Cal. App. 4th 352, 359.) Pursuant to Cal. Civ. Proc. Code § 430.10(e)-(f), on the grounds stated herein, moving party defendant CDCR hereby demurs to the Third, Fourth, Fifth and Sixth Causes of Action in Plaintiff’s Complaint. /// /// /// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) A. The Third Cause of Action in Plaintiff’s Complaint Fails to State Facts Sufficient to Constitute a Cause of Action and is Uncertain 1. As a public entity, Defendant CDCR is immune from liability for a common law negligence claim. The Third Cause of Action in Plaintiff’s Complaint is entitled “Negligence (Against All Defendants).” As Plaintiff Rudy Ramos (“Plaintiff”) alleges in ¶ 3 of his Complaint, defendant CDCR is a state agency. Government Code §815 provides: Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. Cal. Gov't Code § 815(a). There is no common law governmental tort liability in California and a public entity is not liable for any act or omission of itself, a public employee, or any other person unless otherwise provided by statute. (Gibson v. City of Pasadena (1978) 83 Cal.App.3d 651, 655.) In sum, public entity tort liability is exclusively statutory and the CDCR is not subject to suit for common law negligence claims. Accordingly, since Plaintiff has not set forth any statute imposing liability upon CDCR for the conduct alleged in the complaint, the claim fails. 2. Plaintiff has failed to allege presentation of his tort claim in compliance with the Government Claims Act. Government Code section 945.4 provides that no suit for damages may be brought against a public entity until a written claim therefor has been presented to the public entity and been acted upon by the board or deemed to have been rejected. Claims presentation requirements, according to the Law Revision Commission, serve two basic purposes (4 Cal. L. Rev’n Comm’n Reports 1008 (1963)): First, they give the governmental entity an opportunity to settle just claims before suit is brought. Second, they permit the entity to make an early investigation of the facts on which a claim is based, thus enabling it to defend itself against unjust claims and to correct the conditions or practices which gave rise to the claim. (See Martell v. Antelope Valley Hosp. Med. Ct. (1998) 67 Cal.App.4th 978, 981; San Diego Unified Port Dist. v. Superior Court (Marriott Corp.) (1988) 197 Cal.App.3d 843, 847.) Compliance with the statutory claim presentation requirements constitutes an element of a cause 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) of action against a public entity; failure to satisfy the claim presentation requirement is fatal to a claim. (See State v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239.) The plaintiff must allege facts showing compliance with or excuse from the Government Claims Act (Gov’t Code §§ 810-966.6), and the failure to do so is grounds for demurrer. (Shirk v. Vista Unified Sch. Dist. (2007) 42 Cal.4th 201, 209.) Here, Plaintiff Rudy Ramos has not alleged that he complied with the requirement to present his claim prior to filing suit in accordance with the Government Claims Act. Therefore, his claim is subject to demurrer. 3. The third cause of action is uncertain as to the allegations against CDCR. Although the Third Cause of Action contains a label that indicates it is asserted “against all Defendants,” there are no allegations within this cause of action that identify defendant CDCR. In other words, there are simply no allegations of wrongdoing on the part of the CDCR under this cause of action. Thus, the CDCR cannot possibly be adequately on notice of the claims being asserted against it in this cause of action. As explained above, the demurrer to the Third Cause of Action must be sustained for multiple reasons, including that it fails to state facts sufficient to constitute a cause of action and is uncertain. In summary, defendant’s demurrer to the Third Cause of Action for Negligence should be sustained without leave to amend for the reasons that: CDCR is immune from common law tort liability; Plaintiff has not even alleged that he attempted prior to filing suit to present this claim in compliance with the Government Claims Act; and, Plaintiff has failed to allege any facts of wrongdoing on the part of the CDCR under this cause of action. B. The Fourth Cause of Action in Plaintiff’s Complaint Fails to State Facts Sufficient to Constitute a Cause of Action and is Uncertain 1. Plaintiff has failed to allege presentation of his tort claim in compliance with the Government Claims Act. Under the Fourth Cause of Action in his Complaint, Plaintiff Rudy Ramos alleges “Negligence Per Se (Against all Defendants).” Again, however, Plaintiff’s Complaint is devoid of any mention of presentation of his claim to the public entity prior to filing this lawsuit. The 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) plaintiff must allege facts showing compliance with or excuse from the Government Claims Act (Govt C 810-966.6), and the failure to do so is grounds for demurrer. (Shirk v. Vista Unified Sch. Dist. (2007) 42 C4th 201, 209.) As Plaintiff Rudy Ramos has not alleged he complied with the requirement to present his claim of “Negligence Per Se” prior to filing suit against CDCR in accordance with the Government Claims Act, the Fourth Cause of Action is subject to demurrer. 2. The fourth cause of action is uncertain. Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty. (3 Witkin, Cal.Procedure (2d ed. 1971) §§ 465, 466, pp. 2119-2120.) However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, “to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 113; Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809; Lopez v. S. Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) Here, Plaintiff alleges that Defendant Downey violated California Civil Code section 1708.5 and Penal Code section 243.4. Plaintiff has not alleged that defendant CDCR violated any statute. Nor has Plaintiff alleged any facts in support of any alleged wrongdoing on the part of CDCR. The only mention of CDCR within the Fourth Cause of Action is to a CDCR policy that Plaintiff alleges Defendant Downey had a duty to comply with as an employee of the CDCR. (Complaint, ¶ 28.) Thus, the Fourth Cause of Action in Plaintiff’s Complaint is not pleaded with particularity as to the allegations against defendant CDCR and is, therefore, subject to demurrer for uncertainty. Even if Plaintiff were to amend this cause of action to assert allegations in support of a viable theory of liability on the part of the CDCR, Plaintiff cannot succeed if he did not properly present his claim in compliance with the Government Claims Act. Therefore, defendant’s demurrer to the Fourth Cause of Action should be sustained without leave to amend. /// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) C. The Fifth Cause of Action in Plaintiff’s Complaint Fails to State Facts Sufficient to Constitute a Cause of Action and is Uncertain 1. As a public entity, Defendant CDCR is immune from liability for a common law negligence claim. The Fifth Cause of Action in Plaintiff’s Complaint is another claim asserted under a general negligence theory of liability. However, there is no common law governmental tort liability in California and a public entity is not liable for any act or omission of itself, a public employee, or any other person unless otherwise provided by statute. (Gibson v. City of Pasadena (1978) 83 Cal.App.3d 651, 655.) In sum, it is well-established that the CDCR is simply not subject to suit for common law negligence. 2. Plaintiff has failed to allege presentation of his tort claim in compliance with the Government Claims Act. Under the Fifth Cause of Action in his Complaint, Plaintiff Rudy Ramos alleges “Negligence (Against Defendant State of California: California Department of Corrections and Rehabilitation and Does 1-10).” Again, however, Plaintiff’s Complaint is devoid of any mention of presentation of his tort claim to the public entity prior to filing this lawsuit. The plaintiff must allege facts showing compliance with or excuse from the Government Claims Act (Gov’t Code §§ 810-966.6), and the failure to do so is grounds for demurrer. (Shirk v. Vista Unified Sch. Dist. (2007) 42 Cal.4th 201, 209.) As Plaintiff Rudy Ramos has not alleged he complied with the requirement to present his claim prior to filing suit against CDCR in accordance with the Government Claims Act, the Fifth Cause of Action in his Complaint is subject to demurrer. 3. The fifth cause of action is uncertain. The Fifth Cause of Action is subject to demurrer for the reason that the allegations are entirely conclusory. Contentions, deductions or conclusions of fact or law are insufficient to constitute a cause of action. (Adelman v. Associated Intern. Ins. Co. (2001) 90 Cal. App. 4th 352, 359.) “[T]o state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 113; Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5; Susman 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809; Lopez v. S. Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) The Fifth Cause of Action in Plaintiff’s Complaint is for “Negligence.” “The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “The element of causation requires there to be a connection between the defendant's breach and the plaintiff's injury.” (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 645.) Here, Plaintiff alleges that defendant CDCR “had actual knowledge of Plaintiff’s report of sexual assault and battery by Defendant Downey and failed to act reasonably in response.” (Complaint, ¶ 34). However, Plaintiff does not allege facts in support of how it is that defendant CDCR allegedly failed to act reasonably in response to the report of a sexual assault and battery. Nor, has Plaintiff alleged facts to support a resulting injury or damage. Without even ultimate facts being pled, this cause of action is subject to demurrer for uncertainty. As the Fifth Cause of Action in Plaintiff’s Complaint fails to state facts sufficient to constitute a cause of action and is uncertain, Defendant CDCR’s Demurrer to the Fifth Cause of Action should be sustained without leave to amend. D. The Sixth Cause of Action in Plaintiff’s Complaint Fails to State Facts Sufficient to Constitute a Cause of Action and is Uncertain 1. Plaintiff has not alleged exhaustion of administrative remedies. The Sixth Cause of Action in Plaintiff’s Complaint is entitled “Fair Employment and Housing Act Govt. Code §12940.” However, the Sixth Cause of Action contains no allegation that Plaintiff exhausted the administrative remedy that is required by law as a precondition to bringing a civil suit on a claim under the Fair Employment and Housing Act (FEHA). (Grant v. Comp USA, Inc. (2003) 135 Cal.Rptr.2d 177, 181.) In order to file an action under the FEHA, the employee must first exhaust administrative remedies by filing a complaint with the Department of Fair Employment and Housing (DFEH) and obtaining a notice of right to sue. (Morgan v. Regents of University of Cal. (2000) 105 Cal.Rptr.2d 652, 661.) As Plaintiff’s Complaint does 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) not allege that Plaintiff filed a complaint with the DFEH and obtained a notice of right to sue, this Demurrer to the Sixth Cause of Action brought under FEHA must be sustained. 2. Plaintiff’s legal conclusions fail to state facts sufficient to constitute a cause of action under FEHA. The Sixth Cause of Action is also subject to demurrer for the reason that the allegations are entirely conclusory and fail to state facts sufficient to constitute a cause of action under the Fair Employment and Housing Act, Government Code § 12940. Contentions, deductions or conclusions of fact or law are insufficient to constitute a cause of action. (Adelman v. Associated Intern. Ins. Co. (2001) 90 Cal. App. 4th 352, 359.) “[T]o state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 113; Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809; Lopez v. S. Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) Plaintiff has failed in his Complaint to state facts sufficient to constitute a claim for discrimination and/or harassment under FEHA. Plaintiff’s Complaint fails to allege any facts at all in support of some required legal elements, and only states legal conclusions as to others. For example, there is no allegation that plaintiff suffered an adverse employment action. As the California Supreme Court stated in Roby v. McKesson (2009) 47 Cal. 4th 686, 705-06: [O]ur case law makes clear that the FEHA's discrimination provision addresses only explicit changes in the “terms, conditions, or privileges of employment” (§ 12940, subd. (a)); that is, changes involving some official action taken by the employer. (Reno v. Baird (1998)18 Cal.4th 645, 645-647.) In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action. (Roby v. McKesson Corp. (2009) 47 Cal. 4th 686, 705-06.) Plaintiff makes no allegation of an official action taken by the employer against Plaintiff. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 MPAS ISO DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT (21CECG00784) In the case of Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1004, the court set forth the elements of a claim of discrimination as follows: Under the McDonnell Douglas test, the plaintiff has the initial burden of establishing a prima facie case of discrimination. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354.) To meet this burden, the plaintiff must, at a minimum, show the employer took actions from which, if unexplained, it can be inferred that it is more likely than not that such actions were based on a prohibited discriminatory criterion. (Id. at p. 355.) A prima facie case generally means the plaintiff must provide evidence that (1) the plaintiff was a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position held, (3) the plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests a discriminatory motive. (Ibid.) (Scotch v. Art Inst. of California (2009) 173 Cal. App. 4th 986, 1004.) Here, Plaintiff did not allege any of the required discriminatory criterion. Plaintiff did not allege that he is a member of a protected class. Plaintiff did not allege that he was qualified for the position he sought or was performing competently in the position held. Plaintiff alleged no facts to support a discriminatory motive on the part of defendant CDCR. Additionally, Plaintiff has failed to state facts sufficient to constitute a cause of action for harassment. In the case of Kelley v. The Conco Companies (2011) 196 Cal. App. 4th 191, 202-03. the court explained: Claims of a hostile or abusive working environment due to sexual harassment arise when a workplace is “permeated with ‘discriminatory intimidation, ridicule, and insult[ ]’ [citation] that is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment[citation]....” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21.) “The elements of such a cause of action are: ‘(1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.’ [Citation.]” (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377.) (Kelley v. The Conco Companies (2011) 196 Cal. App. 4th 191, 202-03.) Again, there are no facts in the Complaint alleging that plaintiff belongs to a protected group. Nor, are there any facts specific enough to put the defendant adequately on notice of the pervasiveness element. As the Sixth Cause of Action in Plaintiffs Complaint fails to state facts sufficient to 2 constitute a cause of action and is uncertain, Defendant CDCR's Demurrer to the Sixth Cause of 3 Action should be sustained. 4 CONCLUSION 5 As explained herein, Defendant CDCR's demurrer to the Third through Sixth Causes of 6 Action is based on solid grounds. Plaintiff has utterly failed to plead that he complied with his 7 duty to exhaust administrative remedies prior to filing this lawsuit. Outside of the initial factual 8 allegation, Plaintiff's Complaint is bare-boned and fails to put defendant CDCR on adequate 9 notice of the claims asserted against it. As a public entity, CDCR is immune from common law 10 negligence claims. For all of the reasons stated above, CDCR' s demurrer to the Third through 11 Sixth Causes of Action in Plaintiffs Complaint should be sustained without leave to amend. 12 Dated: May 20, 2021 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SA202 I301866 3 5122182.docx 15 Respectfully Submitted, ROB BONTA Attorney General of California WILLIAM T. DARDEN Supervising Deputy Attorney General k.iA NORA MARIE NACHTSHEIM Deputy Attorney General Attorneys for Defendant State of California, acting by and through the California Department of Corrections and Rehabilitation MPAS ISO DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT (21 CECG00784) DECLARATION OF SERVICE BY ELECTRONIC MAIL AND U.S. MAIL Case Name: Case No.: I declare: Rudy Ramos v. CDCR, Robert Downey, Jr. 21CECG00784 I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On May 20, 2021, I served the attached MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT by transmitting a true copy via electronic mail. In addition, I placed a true copy thereof enclosed in a sealed envelope, in the internal mail system of the Office of the Attorney General, addressed as follows: Brittany A. Broms Adams, Ferrone & Ferrone 4333 Park Terrace Drive, Suite 200 Westlake Village, CA 91361 BBroms@adamsferrone.com Attorney for Plaintiff I declare under penalty of perjury under the laws of the te of California and the United States of America the foregoing is true and correct and that is de aration w 2021, at Sacramento, California. SA2021301866 35124963.docx Sondra R. Bushey Declarant