OppositionOppositionCal. Super. - 4th Dist.May 20, 2019AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ERIC P. LAMPEL, SBN: 94066 THE LAMPEL FIRM, P.C. 19200 Von Karman Ave.; Suite 400 Irvine, CA 92612 Tel: 949-261-8877 Fax: 949-261-8878 Attorneys for Defendants SHALINI KUMAR GUPTA; NEERAJ GUPTA SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER LUMENZ21, INC., a Nevada Corporation, Case No. 30-2019-01071430-CU-BT-CJC Plaintiff, Hon. Glenn Salter Dept. C-22 VS. SHALINI GUPTA AND NEERAJ GUPTA’S SHALINI KUMAR GUPTA aka SHALINI OPPOSITION TO DEMURRER TO CROSS- KUMAR; NEERAJ GUPTA; and DOES 1-20, | COMPLAINT Defendants. Date: January 23, 2019 Time: 1:30 p.m. Dept.: C-22 Date Action Filed: 5/20/2019 Trial Date: None Set SHALINI GUPTA, NEERAJ GUPTA, Cross-Complainants, VS. LUMENZ21, INC., a Nevada Corporation, and ROES 1-25, Cross-Defendant. Cross-Complainants Shalini Gupta and Neeraj Gupta submit the following opposition to Cross-Defendant LUMEN21, Inc.’s (“LUMEN21") demurrer to Cross-Complaint. -1- OPPOSITION TO DEMURRER TO CROSS-COMPLAINT AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LL CONTROLLING LAW. To survive demurrer, a complaint or cross-complaint need only contain “a statement of facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10(a).) In ruling on a demurrer, a court is to deem all material facts admitted, and to “give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Rader Co. v. Stone (1986) 178 Cal. App. 3d 10, 20.) In accordance with California’s liberal construction policy, where allegations are subject to different reasonable interpretations, courts must draw “inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal. App. 4th 1228, 1238.) The test on demurrer is whether the complaint states any valid claim entitling the plaintiff to relief, whatever the nature of the case or legal theory actually pleaded. (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal. 4th 26, 28; see also Taylor v. S&M Lamp Co. (1961) 190 Cal. App. 2d 700, 704 [“All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief.”].) It is the policy of California courts “to construe pleadings liberally, to the end that cases will be tried on their merits rather than disposed of on technicalities of pleadings.” (Id. at 703.) IL. THE DEMURRER SHOULD BE OVERRULED. A. At Demurrer, The Allegations Pled Are Assumed True. Whether under the doctrine of liberal construction or the rule of specificity, the factual allegations are assumed to be true when challenged by a demurrer. A demurrer admits the truth of all material facts properly pled. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The Court must accept as true the properly pled allegations of fact in the complaint and also any true facts which may be inferred from those factual allegations expressly pled. (Cundiff v. GTE Calif. Inc. (2002) 101 Cal. App.4th 1395, 1404-1405 [“We do not concern ourselves with whether the plaintiffs will be able to prove the facts which they allege in their complaint.”] Id. at p. 1405.) B. Cross-Complainants’ Cross- Complaint is not uncertain, ambiguous, or unintelligible. LUMENZ21 argues, in the absence of legal authority, that the Cross-Complaint is ambiguous, uncertain, and unintelligible. This argument is vastly overbroad and far-reaching, and, once again, 2 OPPOSITION TO DEMURRER TO CROSS-COMPLAINT AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supported by nothing more than LUMEN21’s argument. LUMEN21 essentially argues that it is improper for a plaintiff to plead allegations in the alternative, but cite zero legal authority to support this proposition. C. Plaintiff’s Second Cause of Action for Intentional Infliction of Emotional Distress is Not Barred by Workers’ Compensation Exclusivity. Apparently, LUMEN21 is unaware of the many cases (even though some were cited in the pleadings, meet and confer communications, and discovery responses in this case) that establish well- known and lesser known exceptions to the workers’ compensation exclusivity rule found at Labor Code, Section 3600, including, but not limited to the following: (1). Harassment, discrimination, retaliation, and wrongful termination based upon a person’s filing of a worker’s compensation disability claim - Labor Code, Section 132 a - and/or based upon other aspects of the employee’s “disability” and/or request for a timely, good faith, interactive process and reasonable accommodation is not barred by the exclusivity provisions of the workers’ compensation laws. (City of Moorpark v. Superior Court (1998)18 Cal 4m 1143, 1158; see also Prue v. Brady Co (2015) 242 Cal.App.4th 1367 distinguishing Dutra v. Mercy Medical Center Mt. Shasta (2012) 209 Cal. App.4th 750)); (2). Harassment, discrimination, retaliation, and wrongful termination based upon other protected categories under FEHA, including sex, gender, race, color, ancestry, national origin, and association with such categories. (3) The California Supreme court recognized in Shoemaker v. Myers that: “the exclusive provisions are not applicable under certain circumstances, sometimes variously identified as ‘conduct where the employer or insurer stepped out of their proper roles [citations omitted], or ‘conduct of an employer having a “questionable” relationship to the employment’ [citations omitted], but which may be essentially defined as not stemming from a risk reasonably encompassed within the compensation bargain.” [citations omitted]. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16). (4). Conduct in violation of FEHA (Huffman v. Interstate Brands Corporation (2nd Dist. 2004) 121 Cal.App.4th 679), public policy and conduct, and conduct exceeding “exceeds the risks inherent in the employment relationship” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1097-1101(overruled in part on in part on different grounds) Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 754) - this would include causes of action, including, but not limited to, Labor Code, Section 6310 and 6400 (complaining about and/or opposing Be OPPOSITION TO DEMURRER TO CROSS-COMPLAINT AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 health and safety violations), Labor Code, Section 1102.5 (complaining about and/or opposing unlawful conduct in general), Government Code, Section 12653 (complaining about and/or opposing false claims); Government Code, Section 12940 et. seq. (FEHA), and other claims. The allegations of “outrageous conduct” establish that each and every factual allegation supporting such fall within an exception to the worker’s compensation exclusivity provisions here. As such, this claim must not fail. D. Cross-Complainants have Pled Sufficient Contracts to Support their Claim for Breach of Implied Covenant of Good Faith and Fair Dealing The California Supreme Court has held that Demurrers for “uncertainty” fail as to “matters presumptively within the knowledge of the defendant” including matters which can be determined from their own records. (Citation Omitted)” (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 25, 157 Cal.Rptr. 706.) “All agreements have some degree of indefiniteness and some degree of uncertainty” and “the law leans against the destruction of contracts because of uncertainty;” as such, Demurrers for “uncertainty” of “contract terms” only lie where basis of breach of contract cannot be determined. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770 [23 Cal.Rptr.2d 810]) “ ‘In considering expressions of agreement, the court must not hold the parties to some impossible, or ideal, or unusual standard. It must take language as it is and people as they are. All agreements have some degree of indefiniteness and some degree of uncertainty.” ” (Rivers v. Beadle (1960) 183 Cal.App.2d 691, 695 [7 Cal.Rptr. 170].) (Moncada v. West Coast Quartz Corp. (2013) 221 Cal. App.4th 768, 775; [164 Cal.Rptr.3d 601). As set forth in the Cross-Complainant, LUMEN?21 has agreed to numerous contract provisions implied by law. The contractual provisions argued to be “uncertain” are implied by and well defined by statute, including implied and express certifications that LUMEN21 does and will follow all employment laws (including those sued upon here and others) and have and follow certain delineated procedures set up to insure LUMEN21 follows all such employment laws. LUMEN21’s many breaches of those laws and breaches concerning its failure to have and follow the specified procedures are also alleged with the requisite degree of certainty. Therefore, this claim has been properly pled. 4- OPPOSITION TO DEMURRER TO CROSS-COMPLAINT AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. The Seventh Cause of Action Is Properly Pled Pursuant to Section IIB above, the Complaint and this cause of action is also properly pled. LUMENZ21 engaged in unlawful and unfair business practices that Cross-Complainants can seek damages for under this cause of action. III. CONCLUSION. For the foregoing reasons, Cross-Complainants respectfully requests that the Court overrule LUMEN21’s Demurrer to the Second Cause of Action for Intentional Infliction of Emotional Distress, Third Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing, and Seventh Cause of Action for Unlawful/Unfair Business Practices. If and to the extent the Court is inclined to sustain the demurrer, Cross-Complainants respectfully request the opportunity to amend in order to address the Court’s concerns. A court may, “in furtherance of justice,” allow amendment of any pleading. CODE CIv. PROC. § 473(a)(1). Dated: January 13, 2020 THE LAMPEL FIRM, P.C. By: /s/ Eric P. Lampel ERIC P. LAMPEL Attorneys for Cross-Complainants Neeraj Gupta, Shalini Gupta -5- OPPOSITION TO DEMURRER TO CROSS-COMPLAINT AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA) COUNTY OF ORANGE ) I 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; my business address is 19200 Von Karman Avenue Ste #400, Irvine, CA 92612. On January 14, 2020, I served the foregoing documents described as: SHALINI GUPTA AND NEERAJ GUPTA’S OPPOSITION TO DEMURRER TO CROSS-COMPLAINT on the interested parties in this action placing true and correct copies thereof in a sealed envelope addressed as follows: Jeffrey A. Cohen 15338 Central Avenue Chino, CA 91710 jeff@lawofficeofjeffreyacohen.com Ms. Kathleen M. Hartman CALLAHAN, THOMPSON, SHERMAN & CAUDILL 2601 Main Street, Suite 800 Irvine, CA 92614 [x] (BY MAIL) I am “readily familiar: with the firm’s practice of collection and processing correspondence for mailing. Under such practice, it would be deposited with the U.S. postal Service on that same day with postage thereon fully prepaid at Rancho Mirage, CA in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [1] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the offices of the addressee. [] (BY EMAIL) I caused each document to be sent by EMAIL to the following addresses: [1 (BY FAX) I caused each document to be sent by FAX to the following number: [x] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on January 14, 2020 /s/ ERIC LAMPEL -6- OPPOSITION TO DEMURRER TO CROSS-COMPLAINT
