Ana L. Bidoglio vs. Plutos Sama, LLCDemurrer to ComplaintCal. Super. - 4th Dist.September 15, 2017Oo 00 JI A N Ln BA W N ND N N N N N N N O N E m em e m e m e m e m e m co NN A N Un RA W I N D = D O O N N N RE W N = O ELECTRONICALLY FILED Superior Court of California, County of Orange Marc Y. Lazo, SBN 215998 04/20/2018 at 03:43:00 Pi Clerk of the Superior Court Lisbeth Bosshart Merrill, SBN 201822 By Jeanette Tomes-hendoza, Deputy Clerk WILSON KEADJIAN BROWNDOREF, LLP 1900 Main Street, 6th Floor Irvine, CA 92614 Tel: (949) 274-7842 Fax: (949) 234-6254 Attorneys for Defendants Plutos Sama, LLC, Wilson Keadjian Browndorf, LLP, Michele Stover, and Matthew Browndorf SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER ANA L. BIDOGLIO; Case No. 30-2017-00943907-CU-HR-CJC NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFEF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Plaintiff, Vv. PLUTOS SAMA, LLC; WILSON KEADJIAN BROWNDOREF, LLP; MICHELE STOVER; MATTEW BROWNDOREF; DOES 1-10, Date: June 4, 2018 Time: 10:00 a.m. Dept.: C10 Defendants. Reservation No. 72797568 N r N N N e N e N e N N N N N N N N TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on June 4, 2018, at 10:00 a.m., or as soon thereafter as this matter may be heard in Department C10 of the above-entitled Court, located at 700 Civic Center Drive West, Santa Ana, California, Defendants PLUTOS SAMA, LLC; WILSON KEADIJIAN BROWNDORF, LLP; MICHELE STOVER; and MATTEW BROWNDORF (“Defendants”) will demurrer to the Complaint of Plaintiff ANA L. BIDOGLIO (“Plaintiff”) on the following grounds: 1 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = N N N N N N N N N mm e m e m e m e m e m e m e m e m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O 1" In 1" 1" 10. 11. 12, Plaintiff’s First Cause of Action for “Disability Discrimination” fails to state facts sufficient to constitute a cause of action. Plaintiff’s Second Cause of Action for “Harassment” fails to state facts sufficient to constitute a cause of action. Plaintiff’s Third Cause of Action for “Gender Discrimination” fails to state facts sufficient to constitute a cause of action. Plaintiff’s Fourth Cause of Action for “Failure to Remit Taxes” fails to state facts sufficient to constitute a cause of action Plaintiff’s Fifth Cause of Action for “Overtime and Break Premiums” fails to state facts sufficient to constitute a cause of action. Plaintiff’s Sixth Cause of Action for “Failure to Reimburse Expenses” fails to state facts sufficient to constitute a cause of action. Plaintiff’s Seventh Cause of Action for “Conversion” fails to state facts sufficient to constitute a cause of action. Plaintiff’s Eighth Cause of Action for “Wage Continuation Penalty” fails to state facts sufficient to constitute a cause of action. Plaintiff’s Ninth Cause of Action for “Retaliation” fails to state facts sufficient to constitute a cause of action. Plaintiff’s Tenth Cause of Action for “Failure to Prevent Harassment, etc.” fails to state facts sufficient to constitute a cause of action. Plaintiff’s Eleventh Cause of Action for “Wrongful Termination” fails to state facts sufficient to constitute a cause of action. Plaintiff’s Twelfth Cause of Action for “Unfair Business Practices” fails to state facts sufficient to constitute a cause of action. 2 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = ND N N N N N N N O N E m E m e m e m e m e m p m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O This Demurrer will be based upon this Notice, the Memorandum of Points and Authorities attached hereto, all the pleadings, records and files in this action and upon such further oral and documentary evidence as may be presented at the hearing of this Demurrer. Dated: April 20, 2018 WILSON KEADJIAN BROWNDOREF, LLP By: M ~Tazo Attorneys for Defendant 3 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = ND N N N N N N N O N E m E m e m e m e m e m p m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION Plaintiff’s Complaint contains twelve causes of action against Defendants for claims arising out of Plaintiff’s employment with Defendants. Each of the causes of action against Defendant fails as a matter of law. Plaintiff’s first and third causes of action for discrimination fail because there are no facts alleging a causal link between Defendants’ actions and Plaintiff’s physical condition. Plaintiff's second cause of action for harassment is defective because Plaintiff fails to allege severe or pervasive conduct on Defendants’ part. Plaintiff’s fourth cause of action for failure remit taxes is flawed because Plaintiff completely fails to allege any willful or fraudulent conduct by Defendants. Plaintiff’s fifth cause of action for failure to pay overtime premiums fails because Plaintiff was an exempt employee under Labor Code section 515, subdivision (a). Plaintiffs sixth cause of action for failure reimburse expenses is baseless because Plaintiff fails to allege losses incurring as a direct consequence of the discharge of her duties. Plaintiff’s seventh cause of action for conversion fails for several reasons, including Plaintiff’s failure to properly allege ownership over the payments she is claiming and for the fact that general monetary amounts are fungible. Plaintiff’s eighth cause of action for wage continuation penalty is defective because it fails to allege what payments were unpaid or how those payments qualify under any of the sections enumerated by Labor Code section 203. Plaintiff’s ninth cause of action for retaliation cannot stand because Plaintiff fails to sufficiently allege that Defendants engaged any unlawful employment practices or that there was a causal link between Plaintiff’s actions and Defendants’ conduct. Plaintiff’s tenth cause of action for failure to prevent harassment, discrimination, and retaliation is based on the same operative facts alleged in her previous causes of action. Because Plaintiff’s claims for discrimination, harassment, and retaliation fail as a matter of law, so must her claim for failure to prevent the same. 4 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = ND N N N N N N N O N E m E m e m e m e m e m p m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O Likewise, Plaintiff’s eleventh cause of action for wrongful termination in violation of public policy fails as a matter of law because Plaintiff’s underlying discrimination, harassment, and retaliation claims are defective. Finally, Plaintiff's twelfth cause of action must fail because it rests upon all of her previous unfounded and defective claims against Defendant. For these and all of the following reasons, the Court should sustain Defendants’ Demurrer in its entirety and dismiss all of Plaintiff’s aforementioned claims without leave to amend. II. ARGUMENT A. Legal Standard The function of a demurer is to test the sufficiency of the allegations of the complaint. (Code Civ. Proc., § 589; Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) A demurrer is appropriate where the complaint “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A court is to “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.” Blank v. Kirwan (1985) 39 Cal.3d 311, 318. B. Plaintiff’s First Cause of Action for “Disability Discrimination” and Third Cause of Action for “Gender Discrimination” Fail to State Sufficient Facts Plaintiff asserts causes of action for disability and gender discrimination. The elements of a discrimination cause of action under the Fair Employment and Housing Act (“FEHA”) are “‘(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.” McCaskey v. California State Automobile Assn. (2010) 189 Cal. App.4th 947, 979. Here, Plaintiff's claim for discrimination is defective because she fails to allege a discriminatory animus on the part of Defendants or a causal link between the alleged discriminatory animus and Plaintiff’s termination. Here, Plaintiff does not allege that her physical condition was a substantial motivating factor for any animus on Defendants’ part. Instead, Plaintiff merely alleges 5 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = ND N N N N N N N O N E m E m e m e m e m e m p m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O that Defendants’ denial of her request for an ergonomic chair caused her certain indirect harms that did not affect the terms, conditions, or privileges of Plaintiff's employment. Moreover, Plaintiff fails to allege a causal link between any actionable conduct on the part of Defendants and the damages Plaintiff alleges she suffered. For example, Plaintiff alleges that Defendants engaged in gender discrimination and then immediately proceeds to complain of various harms without explaining how this alleged discrimination contributed to such harms. (Complaint at 10:8-15.) As such, there can be no actionable claim for discrimination. (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) For these reasons, Plaintiff’s first cause of action fails to state facts sufficient to constitute a cause of action against Defendants. C. Plaintiff’s Second Cause of Action for “Harassment” Fails to State Facts Sufficient to Constitute a Cause of Action The California Supreme Court interpreted a hostile work environment harassment claim under FEHA as requiring an employee to “show that the harassing conduct was ‘severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.” [Citations.] There is no recovery ‘for harassment that is occasional, isolated, sporadic, or trivial.” Hughes v. Pair (2009) 46 Cal.4th 1035, 1043. No such conduct is alleged to have occurred in this case. Here, Plaintiff makes sweeping general allegations of “harassment” such as Defendant Stover making “gender-related comments.” (Complaint at 4:21-22.) Simply referring to Plaintiff’s gender does not arise to the level of severe harassment sufficient to alter the conditions of Plaintiff’s employment. Moreover, most of Plaintiff’s alleged harassment is a result of her confusing instances of Defendants’ refusal of certain unentitled benefits for “harassment.” (See, e.g., id. at 5:8-11 [“A serious increase in STOVER’s harassment of Plaintiff coincided with this increase in job duties . . . STOVER took it upon herself to refuse to issue a Firm credit card to Plaintiff.”].) As such, Plaintiff has not alleged the requisite elements that Defendants severely or pervasively harassed her throughout her employment. For these reasons, Defendants’ Demurrer should be sustained as to Plaintiff’s second cause of action. 6 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = ND N N N N N N N O N E m E m e m e m e m e m p m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O D. Plaintiff’s Fourth Cause of Action for “Failure to Remit Taxes” Fails to State Facts Sufficient to Constitute a Cause of Action Plaintiff’s fourth cause of action is for “Failure to Remit Taxes.” In support, Plaintiff cites California Labor Code sections 225.5 and 227. (Complaint at 11:15-19.) Labor Code section 225.5 states, “every person who unlawfully withholds wages . . . shall be subject to a civil penalty.” Here, Plaintiff does not allege that Defendants withheld her wages. Rather, Plaintiff alleges that she was “underpaid.” (Complaint at 14.) If every employee who felt “underpaid” for their work were entitled to an actionable claim against their employer, then courts would be flooded with tenuous employment litigation. Plaintiff has the burden of proving that Defendants withheld specific wages that she was entitled to. Because Plaintiff offers no such specific allegations, this cause of action must fail. Additionally, Labor Code section 227 states: Whenever an employer has agreed with any employee to make payments to a health or welfare fund, pension fund or vacation plan, or other similar plan for the benefit of the employees, or a negotiated industrial promotion fund, or has entered into a collective bargaining agreement providing for these payments, it shall be unlawful for that employer willfully or with intent to defraud to fail to make the payments required by the terms of that agreement. (Italics added.) Here, Plaintiff completely fails to allege any willful or fraudulent conduct on Defendants’ part relating to withholding “funds to government agencies.” (Complaint at 11:17-19.) For the forgoing reasons, Plaintiff’s cause of action is fatally flawed and must fail. E. Plaintiff’s Fifth Cause of Action for Failure to Pay for Overtime Work and Untaken Break Fails to State Facts Sufficient to Constitute a Cause of Action Plaintiff complains of several pay periods where she worked “overtime” but was not compensated above her salaried paycheck. (Complaint at 12:10-13.) Labor Code section 515, subdivision (a) exempts “executive, administrative, and professional employees” from overtime pay requirements provided for by Labor Code sections 510 and 511 so long as their salary is no less than two times the state minimum wage for full-time employment. During Plaintiff’s employment, this salary threshold fluctuated between $40,000 and $50,000. In her complaint, Plaintiff admits that compensation for her employment was, inter alia, “[a]nnual salary of $75,000.” Plaintiff was clearly 7 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = ND N N N N N N N O N E m E m e m e m e m e m p m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O an exempt employee earning above the salary threshold throughout her employment with Defendants. Being exempt from statutory overtime pay, Plaintiff was not entitled to the additional wages that she has claimed. As such, her fifth cause of action fails to state sufficient facts to maintain her claim. F. Plaintiff’s Sixth Cause of Action for “Failure to Reimburse Expenses” Fails to State Facts Sufficient to Constitute a Cause of Action Labor Code section 2802, subdivision (a) states, “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” (Italics added.) Here, Plaintiff claims that she “was required to use her cell phone, cell service, laptop, automobile, and other personal items for the benefit of the Firm and was either not reimbursed at all or inadequately reimbursed.” (Complaint at 13:9-11, italics added.) Instead of alleging expenditures or losses incurred as a direct consequence of her duties, Plaintiff admittedly lists “personal items” and only claims that they were used to the “benefit of the Firm.” This pleading falls well short of alleging any losses incurred through direct consequences of her duties because use of these personal items would have only offered an indirect, if any, benefit to Defendants. For example, Plaintiff’s use of her automobile to commute to work could be considered for the “benefit of the Firm,” but does not amount to a direct consequence of the discharge of Plaintiff’s duties. Without alleging how her use of these personal items amounted to losses incurring as a direct consequence of the discharge of her duties, Plaintiff has failed to meet her burden for this cause of action. As such, Defendants’ demurrer as to Plaintiff’s “Failure to Reimburse Expenses” claim must be sustained. G. Plaintiff’s Seventh Cause of Action for Conversion Fails to State Facts Sufficient to Constitute a Cause of Action The elements of a conversion claim in California are: 1) Plaintiff's ownership or right to possession to the property at the time of the conversion; 2) Defendants’ conversion by a wrongful act or disposition of property rights; and 3) damages. Plummer v. Day/Eisenberg, LLP (2010) 184 8 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = ND N N N N N N N O N E m E m e m e m e m e m p m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O Cal.App.4th 38, 45. A cause of action for conversion must allege that “plaintiff’s ownership of the property is properly alleged and there is an averment that the defendant converted the same . . .” Baird v. Olsheski (1929) 102 Cal.App. 452, 454. Here, Plaintiff bases her conversion action on her previous claims that Defendants failed to pay expenses, wages, and overtime amounts owed to Plaintiff. (See Complaint at 14.) As discussed above, Plaintiff has not sufficiently alleged her entitlement to any additional expenses, wages, or overtime pay. Therefore, Plaintiff is unable to establish the first, and fundamental, element of conversion that she has ownership or rights to possess any of the payments that she is claiming. Additionally, a conversion cause of action is improper when the property at issue is a general sum of money because money is fungible, making it impossible for Plaintiff is to identify the exact bills or coins that she is entitled to possess. Fischer v. Machado (1996) 50 Cal.App.4th 1069, 1072 (“[M]oney cannot be the subject of an action for conversion unless a specific sum capable of identification is involved . . .”) Plaintiff is unable to assert either a general or specific property right over the payments that she claims she is entitled to. Thus, Defendants’ demurrer to Plaintiffs cause of action for conversion must be sustained. H. Plaintiff’s Eighth Cause of Action for “Labor Code Section 203 Wage Penalties” Fails to State Facts Sufficient to Constitute a Cause of Action Plaintiff brings her eighth cause of action pursuant to Labor Code section 203 for “Wage Penalties.” Labor Code section 203, subdivision (a) states: “If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced[.]” Here, Plaintiff’s sole allegation to support this cause of action asserts, “Defendants failed to pay all wages due to Plaintiff at the end of her employment.” (Complaint at 15:6.) This statement is insufficient to support Plaintiff’s cause of action because it does not allege what payments were unpaid or how those payments qualify under any of the sections enumerated by 9 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = ND N N N N N N N O N E m E m e m e m e m e m p m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O Labor Code section 203. Further, Plaintiff fails to allege any willful conduct on the part of Defendants. Plaintiff’s claims here fail to allege several critical elements required under Labor Code section 203 such as: what wages were unpaid; how the unpaid wages qualify under the statute; and that Defendants’ failure to pay was willful. Therefore, Plaintiff must fail on her cause of action for wage penalties. L Plaintiff’s Ninth Cause of Action for “Retaliation in Violation of FEHA, FLSA, and Labor Code” Fails to State Facts Sufficient to Constitute a Cause of Action “To establish a prima facie case of retaliation, a plaintiff must show that she engaged in a protected activity, that she was thereafter subjected to adverse employment action by her employer and there was a causal link between the two.” Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614. “For protection . . ., an employee must have opposed an employment practice made unlawful by the statute.” Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 381 (Citation omitted.) As explicated above, Plaintiff has failed to sufficiently allege that Defendants engaged any unlawful employment practices; thus, she is unable to show that she engaged in a protected activity here. Further, assuming, arguendo, that Plaintiff did engage in a protected activity, she fails to allege a causal link between this and Defendants’ conduct. Plaintiff alleges no comments to indicate that Defendants’ conduct was in response to any “protected activity,” nor does she so much as allege a circumstantial timeline indicating Defendants’ conduct was around the same time as any “protected activity.” Instead, Plaintiff draws a bare legal conclusion that “Defendants retaliated against Plaintiff by subjecting her to adverse job actions|[.]” (Complaint at 15:20.) Taken alone, this assertion fails to allege the existence of a causal link as required by California law. Similar to a majority of Plaintiff's complaint, her allegations here draw unfounded legal conclusions insufficient to satisfy the basic legal requirements for her cause of action. As such, Defendants respectfully ask the Court to sustain their demurrer as to Plaintiff’s eighth cause of action. 1" 10 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = ND N N N N N N N O N E m E m e m e m e m e m p m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O J. Plaintiff’s Tenth Cause of Action for “Failure to Prevent Discrimination, Harassment or Retaliation in Violation of FEHA” Fails to State Facts Sufficient to Constitute a Cause of Action “An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: ‘Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.” Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1021; Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880 (Because section 12940, subdivision (j)(1) “does not create a stand-alone tort, the employee has no cause of action for a failure to investigate unlawful harassment or retaliation, unless actionable misconduct occurred.”) Here, Plaintiff is unable to state a claim for failure to prevent discrimination as a matter of law because as demonstrated in this Demurrer, Plaintiff’s claims for discrimination, harassment, and retaliation are wholly defective. See Sneddon v. ABF Freight Sys. (2007) 489 F.Supp.2d 1124, 1132 (Because “[t]he Court has found no viable claim of discrimination . . . there can be no independent cause of action for failure to prevent discrimination under FEHA.”) Because Plaintiff does not have an actionable claim for discrimination, harassment, or retaliation, her derivative claim for failure to prevent discrimination, harassment, or retaliation must also fail. Accordingly, Defendants’ Demurrer to Plaintiff’s tenth cause of action should be sustained without leave to amend. K. Plaintiff’s Eleventh Cause of Action for “Wrongful Termination in Violation of Public Policy” Fails to State Facts Sufficient to Constitute a Cause of Action Plaintiff also asserts a cause of action for “Wrongful Termination in Violation of Public Policy.” Similar to her tenth cause of action, Plaintiff’s eleventh cause of action for wrongful termination also fails as a matter of law because Plaintiff is unable to establish a violation of an underlying statute or constitutional right. (See, e.g., Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 632.) “[Wlhen a plaintiff relies upon a statutory prohibition to support a common law cause of action for wrongful termination in violation of public policy, the common law claim is subject to 11 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = ND N N N N N N N O N E m E m e m e m e m e m p m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O statutory limitations affecting the nature and scope of the statutory prohibition.” Stevenson v. Superior Court (1997) 16 Cal.4th 880, 904. “In other words, the viability of [the] plaintiff's tort claim is tethered to the meaning of the FEHA.” Estes v. Monroe (2004) 120 Cal. App.4th 1347, 1355; Hanson v. Lucky Stores, Inc. (199) 74 Cal.App.4th 215, 229 (Where plaintiff’s “FEHA claim fails, his claim for wrongful termination in violation of public policy fails.”) Here, Plaintiff’s wrongful termination claim is based on the same operative facts as her fatal discrimination, harassment, and retaliation claims. (Complaint at 18:23-24.) Because Plaintiff’s causes of action for discrimination, harassment, and retaliation cannot survive Defendants’ Demurrer, Plaintiff’s claim for wrongful termination fails as a matter of law. L. Plaintiff’s Twelfth Cause of Action for “Unfair Business Practices” Fails to State Facts Sufficient to Constitute a Cause of Action Plaintiff’s twelfth cause of action is for “Unfair Business Practices.” In support, Plaintiff simply lists her previous claims without providing any further support to these already bare legal conclusions. For example, Plaintiff alleges that Defendants committed unfair business practices by “[r]efusing to pay wages;” however, Plaintiff has failed throughout her entire complaint to allege which wages she was entitled to that Defendants failed to pay. Similarly, Plaintiff again claims “[f]ailure to pay overtime premiums” when she was clearly a salaried employee exempt from overtime requirements under California law. Here, Plaintiff continues to rely on baseless and unfounded claims to pursue her frivolous causes of action. As a result, Plaintiff’s cause of action for Unfair Business Practices must also fail. III. LEAVE TO AMEND WOULD BE FUTILE AS TO EACH OF THE AFOREMENTIONED CAUSES OF ACTION A plaintiff has the burden of showing “in what manner [it] can amend [its] complaint and how that amendment will change the legal effect of [its] pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. “[L]eave to amend should not be granted where . . . amendment would be futile.” Vaillette v. Fireman's Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685. It is clear by the blatant defect in Plaintiff’s pleadings that Plaintiff does not know the legal burden and requirements necessary hold defendant accountable for such allegations. As such, there is 12 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = ND N N N N N N N O N E m E m e m e m e m e m p m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O no reasonable possibility that Plaintiff will be able to allege the required facts with sufficient particularity if she is granted leave to file another complaint. Therefore, this Demurrer must be sustained without leave to amend. IV. CONCLUSION Throughout Plaintiff’s entire complaint, she shows a complete lack of effort or regard for satisfying her pleading requirements. Plaintiff jumbles together trace amounts of boilerplate law with unfounded legal conclusions to form an unsupported and incomplete complaint that carries no legal basis. For the foregoing reasons, this Demurrer should be sustained without leave to amend. Dated: April 20, 2018 WILSON KEADJIAN BROWNDOREF, LLP By: M ~LA20 Attorneys for Defendants 13 DEMURRER TO PLAINTIFF'S COMPLAINT © 00 J O N Un Br W N = N N N N N N N N N mm e m e m e m e m e m e m e m e m 0 NN O N Ln kA W N D = OO 0 N Y N R E W D = O PROOF OF SERVICE (C.C.P. Section 1013a and Section 2015.5) I am employed in the County of Orange, State of California; I am over the age of eighteen years and not a party to the within action; my business address is 1900 Main Street, Suite 600, Irvine, California 92614. On April 20, 2018, I served the within NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in said action, by the following means of service: Henry J. Josefsberg, Esq. 4050 East Katella Avenue Suite 205 Los Alamitos, California 90720 henryjjesq@ gmail.com [XX] BY MAIL: I placed a true copy in a sealed envelope addressed as indicated above, on the above-mentioned date. I am familiar with the firm’s practice of collection and processing correspondence for mailing. It is deposited within the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on mention of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit of mailing in affidavit. [] BY PERSONAL SERVICE: 1 placed a true copy in a sealed envelope addressed to each person(s) named at the address(es) shown above and giving same to a messenger for personal delivery before 5:00 p.m. on the above mentioned date. [1] BY ELECTRONIC SERVICE at the email addresses above. [1] BY FACSIMILE: From facsimile number (949) 234-6254, 1 caused each such document to be transmitted by facsimile machine, to the parties and numbers indicated above, pursuant to Rule 2008. The facsimile machine I used complied with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a transmission record of the transmission, a copy of which is attached hereto. I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. Executed on April 20, 2018 at Irvine, California. /s/ CARRIE RUIZ CARRIE RUIZ 14 DEMURRER TO PLAINTIFF'S COMPLAINT
