Lucero De La Torre vs. Dreamcatchers International, Inc.OppositionCal. Super. - 4th Dist.February 2, 2017OO 0 9 a N nn bh W N ee N O N O N O N O N O N O N RN O N mm o m e m em p m pa d e R e S m d 0 NN A N h b W N =H S Y N N N R W = O AEGIS LAW FIRM, PC SAMUEL A. WONG, State Bar No. 217104 KEVIN H. SUN, State Bar No. 276539 9811 Irvine Center Drive, Suite 100 ELECTRONICALLY FILED Irvine, California 92618 Superior Baurt of Galifamia. Telephone: (949) 379-6250 SUPLPED MnEE Facsimile: (949) 379-6251 1127/2017 at 05:02:00 Pi swong@aegislawfirm.com Clerk of the Superior Court ksun@aegislawfirm.com By e Clerk, Deputy Clerk Attorneys for Plaintiff, LUCERO DE LA TORRE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER LUCERO DE LA TORRE, an individual, Case No. 30-2017-00901049-CU-OE-CJC oo Assigned for all purposes to: Plaintify Hon. Melissa McCormick (Dept. C13) VS. PLAINTIFF LUCERO DE LA TORRE’S DREAMCATCHERS INTERNATIONAL, | OPPOSITION TO DEFENDANT INC., a California corporation; and DOES 1 | pREAMCATCHERS INTERNATIONAL 4] through 20 inclusive, INC.’S DEMURRER TO THE SECOND AMENDED COMPLAINT Defendants. Date: December 8, 2017 Time: 1:30 p.m. Dept.: C13 Action Filed: February 2, 2017 Trial Date: ~~ Not Yet Set MEMORADUM OF POINTS AND AUTHORITIES I. INTRODUCTION Rather than addressing the issues regarding pleading, Defendant Dreamcatchers International, Inc. (“Defendant”) instead seeks to bring in over 2 pages of extraneous facts in hopes of swaying this Court. However, at the core of it all, Defendant’s Demurrer to Plaintiff Lucero De La Torre’s (“Plaintiff”) second amended complaint (“SAC”) fails because (1) it does not comply with Cal. Code Civ. Proc. § 430.60 and (2) the SAC pleaded sufficient facts with certainty for each cause of action. -1- PLAINTIFE’S OPPOSITION TO DEFENDANT’S DEMURRER TO SAC HS W O N NO 0 1 S N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. LEGAL ARGUMENT A. Defendant’s Demurrer Failed To Comply With the Code of Civil Procedure And Rules of Court In Distinctly Stating The Grounds And Should Be Disregarded “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” (Cal. Code Civ. Proc. § 430.60.) “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” (Cal. Rules of Court, Rule 3.1320(a)). Here, Defendant’s Demurrer fails to state in separate paragraphs the specific grounds for its objections to each of Plaintiff’s causes of action. Rather, Defendant combines various grounds and bases for those grounds into a single convoluted sentence and leaves Plaintiff to guess as to Defendant’s position. For example, Defendant’s demurrer for Plaintiff’s first cause of action states: “This First Cause of Action is uncertain, states virtually no facts other than allude to phantom employees hired as replacements left unnamed, describes no accommodations requested nor the accommodation not provided, lacks any specificity, and as a consequence fails to state a claim.” (Demurrer, p. 3). It is unclear on how many different grounds Defendant is demurring and the basis for Defendant’s position. Plaintiff assumes that Defendant demurs to the first cause of action based on (1) uncertainty, (2) lack of specificity, and (3) failure to state a cause of action. However, it is unclear what the remaining liniguage of the demurrer signify. Are they additional grounds or bases for the above-mentioned grounds? If they are bases for the above-mentioned grounds, which grounds do they support? Plaintiff cannot determine Defendant’s position from reading the Demurrer. Thus, Defendant’s Demurrer to the first cause of action fails to comply with Cal. Code Civ. Proc. § 430.60 and Cal. Rules of Court, Rule 3.1320(a) because Plaintiff is forced to guess as to why her SAC is objectionable. Similarly, Defendant’s Demurrer to Plaintiff’s second, third, seventh, and eighth causes of action are also flawed as they are identical to Defendant’s Demurrer to Plaintiff's first cause of action. (Demurrer, pp. 3-5). In addition, Defendant’s demurrer to Plaintiff’s fourth, fifth and sixth 2 PLAINTIFF’S OPPOSITION TO DEFENDANT’S DEMURRER TO SAC OO 0 N N N nn RR W N = N N N N N N N N N = e m e e e m e m e m e m e d e l 0 N N Wn A W N = O w N N R W N e e © causes of action fails to state any of the enumerated grounds stated in Cal. Code Civ. Proc. § 430.10. (Demurrer, pp. 3-5). Accordingly, Defendant’s demurrer to Plaintiff’s first, second, third, fourth, fifth, sixth, seventh, and eighth causes of action should be disregarded and/or overruled. B. Legal Standard For Demurrer A demurrer is concerned solely with the sufficiency of the allegations of the complaint, not with evidence or other extrinsic matters and lies only where the defects appear on the face of the pleading or may be judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70). It is therefore | inappropriate for a court to rule on a demurrer by considering matters not disclosed in the pleadings. (lon Equipment Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881). All that is required of a complaint in terms of pleading is that it sets forth sufficient facts to put the defendant on notice about what the plaintiff is complaining and what remedies are being sought. (Signal Hill Aviation Co. v. Stroppe (1979) 96 Cal. App. 3d 627, 636.) A plaintiff is not required to plead more facts than elements of a cause of action. (Thompson v. County of Fresno (1963) 59 Cal. 2d. 686, 690). A demurrer raises issues of law, not fact, regarding the contents of the pleading. (Cal. Code Civ. Proc. §§ 422.10, 589; see also Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) The sole issue raised by a demurrer is whether the facts pleaded state a valid cause of action - not whether they are true. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal. App. 4th 1020, 1034.) Thus, for the purpose of testing the sufficiency of the cause of action, a demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal. 4th 962, 967; Serrano v. Priest (1971) 5 Cal. 3d 584, 591; Adelman v. Assoc. Intel. Ins. Co. (2001) 90 Cal. App. 4th 352, 359.) i. Special Demurrer for Failure to State a Cause of Action A special demurrer for failure to state a cause of action will be sustained only if the facts alleged in the complaint do not state any valid cause of action. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal. 4th 992, 998; Adelman v. Associated Intel. Ins. Co. (2001) 90 Cal. App. 4th 352, 359.) If the facts alleged support any cause of action, even a cause of action plaintiff did not intend to allege, the demurrer for failure to state a cause of action must be overruled. (Id; see also Amestoy, Inc. v. Elect. Rapid Transit Co. (1892) 95 Cal. 311). PLAINTIFF’S OPPOSITION TO DEFENDANT'S DEMURRER TO SAC NO 0 N N N nn RR W N N o N N N N = = = e e e e e e d e d e d C. Plaintiff Adequately Pleaded Her First Cause Of Action For Sex/Pregnancy Discrimination As seen above, Defendant has seemingly demurred to Plaintiff's first cause of action on the ground that it fails to state a cause of action. To establish a prima facie case of discrimination based on sex, Plaintiff must show: (1) she is a member of a protected group, (2) she was subjected to an adverse employment action, (3) she was qualified for the position, and (4) she was replaced by a person outside the protected class, or similarly situated non-protected employees were treated more favorably. (Jones v. L.A. Community College District (1988) 198 Cal. App. 3d 794, 807). Pregnancy discrimination is considered discrimination based on sex under Fair Employment and Housing Act (“FEHA”). (Government Code §12926(r)(1)). Plaintiff must also show that Defendant knew she was pregnant and prove that Defendant had a discriminatory motive based on her pregnancy. (Kelly v. Stamps.com Inc. (2005) 135 Cal. App. 4th 1088, 1101). An inference of unlawful discrimination may be made from circumstances surrounding adverse employment action. (4smo v. Keave, Inc. (6th Cir. 2006) 471 F.3d 588, 592; Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal. App. 4th 189, 195). Here, Plaintiff has sufficiently pleaded facts to constitute a cause of action for sex/pregnancy discrimination: (1) Plaintiff was an employee of Defendant. (SAC, 912). (2) Plaintiff was pregnant and informed Defendant of her pregnancy in or about September 2016. (SAC, 120). (3) Plaintiff was subjected to negative comments about her pregnancy by the owner of the company, Chris Volek. (SAC, 23). (4) Plaintiff was required to train her replacement shortly after she informed Defendant of her pregnancy and was demoted after she finished the training. (SAC, 22.) (5) Plaintiff was terminated by Defendant on December 20, 2016. (SAC, 424). (6) Plaintiff is aware of another employee, Kiana Lutz, who was terminated after Defendant became aware or suspected her to be pregnant. (SAC, §27). 4- PLAINTIFF'S OPPOSITION TO DEFENDANT’S DEMURRER TO SAC B W L D Oo 0 3 O n Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (7) While Defendant claims to have terminated Plaintiff based on poor job performance, Plaintiff had positive job performance and was instead terminated due to her pregnancy and request | for time off for her pregnancy. (SAC, §26). Thus, Plaintiff has met its burden and Defendant’s demurrer should be overruled. D. Plaintiff Adequately Pleaded Her Second Causes Of Action For Disability Discrimination Defendant demurs to the Plaintiff's second causes of action with the exact same language as the demurrer to the first cause of action. (See Demurrer, p. 3). To establish a prima facie case of disability discrimination, Plaintiff must show: (1) that Defendant was an employer within the meaning of Government Code §§ 12900 ef seq. (“FEHA”); (2) that Plaintiff was Defendant’s employee; (3) that Defendant knew Plaintiff has or had a history of having a physical condition that limited a major life activity; (4) that Plaintiff was able to perform the essential job duties with reasonable accommodation of her physical condition; (5) that Defendant subjected Plaintiff to adverse employment action (including termination); (6) that Plaintiff’s physical condition was a substantial motivating reason for Defendant’s decision to subject Plaintiff to adverse employment action; (7) that Plaintiff was harmed; and (8) that Defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 2540). California Code of Regulations §11035(f) also provides that an employee may be considered to be “disabled by pregnancy” if she is suffering from or needs to take time off for, among other things, “prenatal or postnatal care” and “bed rest.” Again, Plaintiff has pleaded more than enough facts to state a cause of action: (1) Defendant is an employer within the meaning of the Government Code. (SAC, 7 2-5). (2) Plaintiff was Defendant’s employee. (SAC, 9 12). 3) Defendant knew that Plaintiff had a disability that limited a major life activity because Plaintiff informed Defendant of her pregnancy and the conditions which limited her ability to perform a major life activity, i.e. work. (SAC, 9 18-21, 54). (4) Plaintiff also sought time off work due to doctor visits and the recommended bed rest during her pregnancy. (SAC, §Y 20-22). -5- PLAINTIFF’S OPPOSITION TO DEFENDANTS DEMURRER TO SAC DO 0 0 ~ ~ O N wn hs WwW N = N O N O N ND N N N N N = m m e m e m e k R E e m e a Co O ~ 1 O N Wn Ae W N R D S W N S N nn B R E W N = OO (5) Plaintiff was willing and able to perform her essential job duties with a reasonable accommodation, namely time off for her pregnancy and related conditions. (SAC, 9 21-22, 61). (6) Defendant subjected Plaintiff to an adverse employment action by demoting her after she had finished training her replacement and then terminating her employment on or about December 20, 2016. (SAC, 1 55-57). (7) Plaintiff’s pregnancy related conditions were substantial motivating reasons for her termination because (a) she was terminated shortly after informing Defendant of her pregnancy, (b) she was seeking time off for doctor’s visits and bed rest, (¢) she was required to train her replacement, (d) she was demoted and ultimately terminated after she trained her replacement, (e) Defendant made a derogatory comment regarding Plaintiff’s pregnancy at the company Christmas party, and (f) Defendant’s reasons for her termination, namely her job performance, was pretextual as Plaintiff was a good performer and was never informed that she had any performance issues or was in danger of being terminated. (SAC, Y 53-61). (8) Plaintiff was harmed by Defendant’s conduct (SAC, YY 43-45, 64-67). Plaintiff has pleaded more than enough facts to support her cause of action for disability discrimination and, therefore, Defendant’s Demurrer should be overruled. E. Plaintiff Adequately Pled Her Third Cause Of Action For Failure To Accommodate Again, Defendant demurs to the Plaintiff's third cause of action with the exact same language as the demurrer to the first and second causes of action. (See Demurrer, p. 3). The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability. (Scotch v. Art Institute of California (2009) 173 Cal. App. 4th 986, 1009-1010). A leave of absence may be required as a reasonable accommodation. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App.4th 215, 226; Cehrs v. Northeast Ohio Alzheimers Research Center (6th Cir. 1989) 155 F. 3d 775, 782-83; California Code of Regulation §11068). As seen above, Plaintiff has pled sufficient facts to establish all of these elements: -6- PLAINTIFF'S OPPOSITION TO DEFENDANT’S DEMURRER TO SAC Lo Re NN NY Lh B R A W N N O N N N N N N N O N mm e m e m em e m p d e a p m pe pe ® N A LM RE W N =, S O Na U R E W N = O (1) Defendant knew that Plaintiff had a disability that limited a major life activity because Plaintiff informed Defendant of her pregnancy and the conditions which limited her ability to perform a major life activity, i.e. work. (SAC, 9 18-21, 71). | (2) Plaintiff sought time off work due to doctor visits and the recommended bed rest during her pregnancy as well as for her pregnancy leave (SAC, §9 20-22, 73). | (3) Plaintiff was willing and able to perform her essential job duties with a reasonable accommodation, namely time off for her pregnancy and related conditions. (SAC, { 72-73). (4) Rather than granting Plaintiff’s request for accommodation, Defendants terminated Plaintiff’s employment on or about December 20, 2016. (SAC, § 73). Defendant also seeks to introduce extraneous information, most of which is untrue, to improperly litigate the case. (Demurrer, p. 19). Rather than making an argument on demurrer, Defendant seeks to try the case on paper. Defendant seems to forget that a demurrer deals not with its defenses to the case, but the sufficiency of the SAC. Interestingly, Defendant admits that there was an accommodation that was sought by Plaintiff, which would be grounds to overrule Defendant’s demurrer to this cause of action. (/d.). Thus, Defendant’s demurrer to this cause of action must be overruled. F. Plaintiff Adequately Pled Her Fourth Cause Of Action For Failure To Engage In The Interactive Process Defendant’s Demurrer erroneously claims that “[t}he purported Fourth Cause of Action for Failure to Engage in Interactive Process fails to state any facts.” (See Demurrer, p. 4). Again, it is unclear on what grounds Defendant demurs on. Plaintiff assumes that Defendant’s demurrer to her Fourth Cause of Action is on the grounds that it fails to state a cause of action. Where an employer knows of the disability of an employee, the employer has an affirmative duty to engage in a timely, good faith, interactive process with an employee to determine effective reasonable accommodations or make known to the employee other suitable job opportunities with the employer. Cal. Gov. Code § 12940(n). To prove a cause of action for failure to engage in the interactive process, Plaintiff must show that (1) Defendant was an employer within the meaning FEHA, (2) Plaintiff was an employee of Defendant, (3) Plaintiff had a physical -7- PLAINTIFF'S OPPOSITION TO DEFENDANT’S DEMURRER TO SAC Lo ww N N N hh BR W N = N O N O N N N O N N O N O N m = mm e m fe w mm mm e m m t pe ed p d 0 3 AN Wn B R A W N = D Y N R W = O condition that limited a major life activity, (4) Plaintiff requested that Defendant make a reasonable accommodation for her physical condition so that she would be able to perform the essential job requirements, (5) Plaintiff was willing to participate in an interactive process to determine whether reasonable accommodation could be made so that she would be able to perform the essential job requirements, (6) Defendant failed to participate in a timely good-faith interactive process with Plaintiff to determine whether reasonable accommodations could be made, (7) Plaintiff was harmed, and (8) Defendant’s failure to engage in a good-faith interactive process was a substantial factor in causing plaintiff’s harm. (CACI 2546). Plaintiff has clearly pleaded sufficient facts that establish Defendant’s failure to engage in interactive process: (1) Defendant is an employer for within the meaning of the Government Code. (SAC, 2-5). Plaintiff was Defendant’s employee. (SAC, § 12). (2) Plaintiff had a disability that limited a major life activity and had informed Defendant of her pregnancy and the conditions which limited her ability to perform a major life activity, i.e. work. (SAC, 91 18-21). (3) Plaintiff also sought time off work due to doctor visits and the recommended bed rest during her pregnancy. (SAC, 91 20-22). (4) Plaintiff further sought time off work for her pregnancy leave. (SAC, 25). (5) Plaintiff was willing and able to perform her essential job duties with a reasonable accommodation, namely time off for her pregnancy and related conditions. (SAC, 1921-22, 61). (6) Defendant failed to engage in the interactive process to determine the accommodations Plaintiff needed. (SAC, 82). (7) Instead, Defendant terminated Plaintiff’s employment on or about December 20, 2016. (SAC, | 82). (8) Plaintiff suffered harm due to Defendant’s conduct. (SAC, 783-86). Defendant’s sole argument seems to be that Plaintiff is required to plead with more specificity than in the SAC. However, Defendant fails to provide any authority to support is -8- PLAINTIFF'S OPPOSITION TO DEFENDANT'S DEMURRER TO SAC Oo 00 NN NN nn B R A W N = N O N S ND ) N S N o N o N o N o N o f - p- - r t p k p k p k p t f k © ~ J O N Ln BA W N R E O O e N Y W E B R E W = o argument. As required, Plaintiff has pleaded a sufficient cause of action, and Defendant’s Demurrer should be overruled. G. Plaintiff Adequately Pled Her Fifth Cause Of Action For Violation Of The Pregnancy Disability Leave Law And California Family Rights Act Defendant demurs to Plaintiff’s fifth cause of action for Violation of the Pregnancy Disability Leave law (“PDL”) and the California Family Rights Act (“CFRA”) on the erroneous contention that the SAC “provides no facts.” (See Demurrer, p. 4). Again, itis not clear the ground on which Defendant’s demurrer is based on. Plaintiff assumes that the demurrer for failure to state a cause of action. PDL allows a female employee who is disabled by pregnancy to take a leave for a reasonable period of time not to exceed four (4) months and ensures that she is reinstated to a comparable position at her employment. (Cal. Gov. Code § 12945 et seq. and Cal. Code Regs. tit. 2, §§ 11042 - 11043). Similarly, the CFRA requires an employer to allow an employee up to twelve (12) weeks of leave for the birth of a child and for the purposes of bonding with that child. (Cal. Gov. Code § 12945 et seq.) Plaintiff has pled sufficient facts to support this cause of action: (1) Plaintiff informed Defendant of her pregnancy and disability. (SAC, | 18-21, 54). (2) Plaintiff sought time off work due to doctor visits and the recommended bed rest during her pregnancy. (SAC, 97 20-22). (3) Plaintiff sought time off for her pregnancy pursuant to PDL and/or CFRA. (SAC, 97). (4) However, rather than granting Plaintiff's leave, Defendant terminated Plaintiff's employment on or about December 20, 2016. (SAC, 11 96-99). (5) Plaintiff further pleaded that she believes Defendant terminated her employment due, among other things, her request for pregnancy leave. (SAC, § 100). (6) Plaintiff was harmed by Defendant’s conduct. (SAC, 9 101-104). Defendant seems to argue that Plaintiff is required to provide a motive for discrimination, but again fails to provide any authority that discriminatory motive is a required element. Accordingly, Plaintiff properly pled sufficient facts to constitute her fifth cause of action for 9- PLAINTIFE’S OPPOSITION TO DEFENDANTS DEMURRER TO SAC OO 0 N N B R O W N N O N O N N O N O N O N O N O N m m o m e m = e m e e e e e m C0 N A A Wn hs W N = O D e N Y N B R W N = O Defendant’s violation of the PDL and CFRA. Defendant’s Demurrer to this cause of action should therefore be overruled. H. Plaintiff Adequately Pled Her Sixth Cause Of Action For Retaliation Defendant demurred to Plaintiff's sixth cause of action for retaliation on the ground that “[t]he Sixth Cause of Action for Breach of Fiduciary Duty is uncertain, lacks specificity, and fails to state a claim, because it fails to state what action Plaintiff took that is being “retaliated” against and for.” (Demurrer, p. 4). It is unclear whether Defendant’s demurrer is address the correct cause of action. Defendant, in her demurrer to the SAC, also cites to Plaintiff's FAC paragraph 85 in support of its argument. (/d.). Thus, Defendant’s demurrer to this cause of action is defective. However, assuming it is not defective, Plaintiff has pleaded sufficient facts, with certainty, to support her cause of action for retaliation. Defendant further does not explain why this cause of action requires any type of specificity beyond what is generally required. Section 12940 et seq. of the Government Code makes it unlawful for an employer to retaliate against an employee on the basis of a disability, sex, or pregnancy, and on the basis of an employee requesting an accommodation, regardless of whether it was granted. To establish a prima facie case of retaliation, Plaintiff must show that (1) she engaged in a protected activity, (2) the employer subjected her to an adverse employment action, and 3) a causal link between the protected activity and the employer’s action. (4dkers v. County of San Diego (2002) 95 Cal. App.4th 1441, 1453). A request for accommodation, such as pregnancy leave, is considered protected activity under California law. (Cal. Gov. Code § 12940(1)(4); see Castro-Ramierz v. Dependable Highway Express, Inc. (2016) 2 Cal. App. 5th 1028, 1049). Here, Plaintiffs facts and allegations addresses each element of the applicable law and states facts sufficient to constitute this cause of action: (1) Plaintiff engaged in protected activity, i.e., being disabled by her pregnancy and requesting accommodation, time off to see the doctor and pregnancy leave, for it (SAC, § 107). (2) Rather than granting Plaintiffs leave, Defendant terminated Plaintiff’s employment on or about December 20, 2016. (SAC, 9 107). -10- PLAINTIFF'S OPPOSITION TO DEFENDANT’S DEMURRER TO SAC o e a9 S N nn B R A W N N O N N N N G mm m m m e ee e m e d e m (3) Defendant also demoted Plaintiff after making her train her replacement, Breanna Vandersord. (SAC, 110). (4) Plaintiff believes that she was terminated for taking time her pregnancy and related disability and her request for time off, including pregnancy leave. (SAC, 9 113). It is clear that Plaintiff has pled sufficient facts to constitute her cause of action for Retaliation. Thus, Defendant’s Demurrer to Plaintiff’s sixth cause of action for Retaliation should therefore be overruled. I. Plaintiff Adequately Pled Her Seventh Cause Of Action For Failure To Prevent Discrimination And Retaliation Defendant demurs to this cause of action based on the same grounds as the demurrer to the first, second, and third causes of action. To prove a cause of action for failure to prevent discrimination and retaliation, Plaintiff] must show that (1) Plaintiff was an employee of Defendant, (2) Plaintiff was subject to discrimination and/or retaliation in the course of employment, (3) Defendant failed take all reasonable steps to prevent the discrimination and/or retaliation, (4) Plaintiff was harmed, and (5) Defendant’s failure to take all reasonable steps to prevent discrimination and/or retaliation was a substantial factor in causing Plaintiff’s harm. (CACI 2527; Cal. Gov't Code § 12940(i)). “The employer's duty to prevent harassment and discrimination is affirmative and mandatory.” (Nazir v. United Airlines, Inc, (2009) 178 Cal. App.4th 243, 288, 100 Cal. Rptr. 3d 296, 333). Here, Plaintiff properly pled sufficient facts with certainty to constitute this cause of action: (1) Plaintiff was Defendant’s employee. (SAC, q 12). (2) Defendant demoted Plaintiff after making her train her replacement, Breanna Vandersord. (SAC, 110). (3) Defendant also terminated Plaintiff’s employment on or about December 20, 2016. (SAC, 11 107). (4) Plaintiff suffered harm due to Defendant’s conduct. (SAC, 120-124). Thus, Plaintiff has pleaded this cause of action sufficiently and Defendant’s Demurrer should therefore be overruled. J1= PLAINTIFF’S OPPOSITION TO DEFENDANTS DEMURRER TO SAC o e N N n t RA W N AN N O N N N =m m e e m e a e m ee e m e a J. Plaintiff Adequately Pled Her Eighth Cause Of Action For Wrongful Termination In Violation Of Public Policy Defendant demurs to this cause of action based on the same grounds as the demurrer to the first, second, third and seventh causes of action. It is the public policy of the State of California to prohibit terminations made on unlawful grounds, including terminations in violation of FEHA and other statutes. (See, e.g., Angell v. Peterson Tractor, Inc. (1994) 21 Cal. App. 4th 981, 987). Cal. Gov. Code § 12920 makes it a violation of California’s public policy when an employer discriminates in the terms of a person’s employment on account of, inter alia, physical disability, medical condition, sex, gender, and disability. To prove a cause of action for wrongful termination in violation of public policy, Plaintiff must show that (1) Plaintiff was employed by Defendant, (2) Defendant terminated Plaintiff, (3) the violation of public policy was a substantial and motivating reason for terminating Plaintiff, and (4) Plaintiff was harmed. (CACTI 2430). Here, Plaintiff pled sufficient facts to establish this cause of action: (1) Defendant’s termination of Plaintiff’s employment on the basis of her sex, pregnancy, disability, request for reasonable accommodations, and seeking a leave of absence is a violation of public policy. (SAC, 126). (2) Defendant terminated Plaintiffs employment on those bases. (SAC, 9 127-128). (3) Defendant did so with conscious disregard of Plaintiff’s rights and in violation thereof (SAC, 1129-130). (4) As a consequence, Plaintiff suffered harm. (SAC, 9 131-134). Again, Defendant argues that discriminatory intent must be pleaded. However, no such requirement exists for this cause of action. Even the elements of this cause of action required discriminatory intent, Plaintiff has pleaded more than enough facts to show discriminatory intent. Thus, Defendant’s Demurrer must be overruled. " I" " -12- PLAINTIFF’S OPPOSITION TO DEFENDANT’S DEMURRER TO SAC Oo 00 ~ ~ ] NN wn RA W N = nN N N N N N m m mE e m e m e d = e e em K. Plaintiffs Demurrer To Plaintiff’s First, Second, Third, Sixth, Seventh, And Eighth Causes Of Action Based On Uncertainty Should Be Overruled Because Defendant Has Knowledge Of The Uncertain Facts A demurrer for uncertainty will be overruled as to (1) inconsequential matters or (2) facts that may be presumed to be within the knowledge of the demurring party. (Gressley v. Williams (1961) 193 Cal. App. 2d 636, 643; Strozier v. Williams (1960) 187 Cal. App. 2d 528, 532). Here, Defendant’s special demurrer for uncertainty should also fail because, as the employer, Defendant would be the party with the knowledge regarding Plaintiff's employment, the identity of the individuals replacing Plaintiff’s employment, the reasonable accommodations Plaintiff requested from Defendant and also what accommodations Defendant provided to Plaintiff. As the employer, not only would Defendant have knowledge regarding Plaintiffs employment, Defendant would also likely have better documentation as it was required by law to keep business records. Also, as seen above, Plaintiff has sufficiently pleaded these facts and there is no uncertainty in the SAC. Thus, Defendant’s Demurrer to Plaintiff’s first, second, third, sixth, seventh, and eighth causes of action based on uncertainty should be overruled. L. Plaintiff’s Second Amended Complaint Corrects Ambiguous/Exroneous Allegations And Is Not A Sham Pleading “Under the sham pleading doctrine, plaintiffs are precluded from amended complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc. (2006) 139 Cal. App. 4th 408, 425). However, “[t]he sham pleading doctrine is not ‘intended to prevent honest complainants from correcting erroneous allegations... or to prevent correction of ambiguous facts.” (Id. at 426). “Instead, it is intended to enable courts ‘to prevent an abuse of process.” (Id). Here, Defendant argues that Plaintiff’s SAC, pleaded with further detail, is a sham pleading because of the correction of ambiguous or erroneous facts. However, the facts in Plaintiffs SAC are corrections to previously ambiguous or erroneous facts. Plaintiff simply clarified the facts. The first allegation that Defendant claims is contradictory is the statement “In or about October 2016, Plaintiff informed Defendants that she was pregnant.” (First Amended Complaint -13- PLAINTIFF’S OPPOSITION TO DEFENDANT’S DEMURRER TO SAC Ov 0 1 o N nn B R A W N = N O N O N N N N N N RN = mm e m em e m e m ee e m a Ww ~~ AN WL BR W O N , DO C X N N B R A W N = O (“FAC”), 118). The allegation was amended to “In or about September 2016, Plaintiff informed Defendants that she was pregnant.” (SAC, 420). Plaintiff corrected the approximate date that she had informed Defendant about her pregnancy. Defendant fails to explain how this correction contradicts what was previously stated. The change in the approximate date is immaterial to the | case since it does not affect any of the other events, e.g., Plaintiff's termination in December 2016. Nor is Defendant denying it had notice of her pregnancy. As to the other three allegations concerning Plaintiff training two new employees, Plaintiff corrected these erroneous/ambiguous allegations. Due a miscommunication, Plaintiff’s counsel had assumed that the individuals trained by Plaintiff prior to her termination were new hires. When the identities of the individuals were determined to be Tiffany Grant and Breanna Vandersord, it was discovered that these individuals were not new hires and only Breanna Vandersord was trained by Plaintiff after Plaintiff had informed Defendant of her pregnancy. Upon discovery, Plaintiff corrected those facts. Further, Plaintiff's facts in the SAC are not contradictory to those stated in the FAC. In the FAC, Plaintiff alleges that she had trained two new employees after she had given Defendant her notice of pregnancy. (FAC, 920). In the SAC, Plaintiff clarified that there was only one employee she trained and that employee was Breanna Vandersord. (SAC, § 22). The core of Plaintiff’s allegation has not changed - that she was required to train Defendant’s employee, who then replaced her after the training was complete. Defendant also does not explain why corrections to the allegations are improper. ~ Thus, Defendant’s argument that Plaintiffs original Complaint, FAC, and SAC are sham pleadings is should not be considered. M. Leave To Amend Should Be Granted If Defendant’s Demurrer Is Sustained In the event that a demurrer is sustained, leave to amend is routinely granted. Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent: “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (4dngie M. v. Super. Ct. (1995) 37 Cal. App. 4th 1217, 1227; Stevens v. Super. Ct. (1999) 75 Cal. App. 4th 594, 601; Cal. Code. Civ. Proc. § 576). In fact, “unless the complaint shows on its face that it is incapable of amendment, denial of -14- PLAINTIFF’S OPPOSITION TO DEFENDANT’S DEMURRER TO SAC oo 0 N S nn BR W N N O N N N N N N N RN mm ee e m e m e m e d e R ed e m Co O ~~ O N hh BA W N = D YO N N R W N e OO leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not.” (McDonald v. Super. Ct. (1986) 180 Cal. App. 3d 297, 303-304 ; City of Stockton v. Super. Ct. (2007) 42 Cal. 4th 730, 747). (Emphasis added). It is an abuse of discretion for a court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal. 3d 335, 349; Okun v. Super. Ct. (1981) 29 Cal. 3d 442, 460). If the Court believes that Plaintiff did not allege facts sufficient to constitute her First, Second, Third, Fourth, Fifth, Sixth, Seventh, and/or Eighth causes of action, Plaintiff respectfully requests leave to amend and/or the opportunity to propound additional discovery that might enable Plaintiff to plead any defect with more particularity. (Los Angeles Cemetery Ass'n v. Super. Ct. (1968) 268 Cal. App. 2d 492). Accordingly, if this Court sustains Defendant’s Demurrer at all or in part, Plaintiff ‘respectfully requests leave to amend be granted. Im. CONCLUSION Based on the foregoing, Defendant’s Demurrer to the first, second, third, fourth, fifth, sixth, seventh, and eighth causes of action in Plaintiff’s second amended complaint should be overruled in its entirety. Dated: November 27, 2017 AEGIS LAW FIRM, PC ~ Samuel A. Wong Kevin H. Sun Attorneys for Plaintiff LUCERO DE LA TORRE -15- PLAINTIFF'S OPPOSITION TO DEFENDANT’S DEMURRER TO SAC Oo 0 O N n n W N N N DD N N N D N D N N m = e m e m e e ee e me e m o o NN O Y wn A W N = O D e S N R W NN = O CERTIFICATE OF SERVICE 1, the undersigned, am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; am employed with Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On November 27, 2017, 1 served the foregoing document entitled: e PLAINTIFF LUCERO DE LA TORRE’S OPPOSITION TO DEFENDANT DREAMCATCHERS INTERNATIONAL, INC.’S DEMURRER TO THE SECOND AMENDED COMPLAINT on all the appearing and/or interested parties in this action by placing [| the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Christopher Brainard C.M. Brainard and Associates 1003 South Catalina Avenue, Unit C Redondo Beach, CA 90277 christopherbrainard @gmail.com Attorneys for Defendants: Dreamcatchers International, Inc. PX (BY MAIL) I am 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 Irvine, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(c).) [] (BY OVERNIGHT MAIL) I am personally and readily familiar with the business practice of Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and I caused such document(s) described herein to be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(c); Fed. R. Civ. Proc. 5(c).) 2 (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be served via electronic transmission to the addressee(s) listed above on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on November 27, 2017, at Irvine, California. Grethel Gonzalez = CERTIFICATE OF SERVICE