Demurrer Without Motion To StrikeMotionCal. Super. - 2nd Dist.December 5, 2017Electronically FILED W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 y Superior Court of California, County of Los Angeles on 04/06/2020 09:33 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clg TRACY NEAL-LOPEZ (SBN 225367) NEAL-LOPEZ LAW GROUP PC 5150 Pacific Coast Highway Suite 200 PMB# 677 Long Beach, CA 90804 Tel: (562) 269-4325 Fax: (563) 473-4544 Attorneys for Defendants Metrolab, Inc. and Teresa Izaguirre (erroneously sued as Theresa Izaguirre), and Behrouz Tavakoli SUPERIOR COURT OF THE STATE OF CALIFORNIA, THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT VANESSA HERRERA, an Individual; Plaintiff, Vv. METROLAB, INC. a California Corporation; THERESA IZAGUIRRE, an Individual; and DOES 1 through 20, Inclusive, Defendants. CASE NO. BC685771 [Complaint filed: December 5, 2017] [Dept.71 -Honorable Monica Bachner] DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF TRACY NEAL- LOPEZ REGARDING COMPLIANCE WITH MEET AND CONFER REQUIREMENTS OF CODE OF CIVIL PROCUDURE §430.41 Date: July 31, 2020 Time: 8:30 a.m. Dept.: 71 RESERVATION. ID: 262365836835 TO PLAINTIFF, VANESSA HERRERA, AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 31, 2020 at 8:30 a.m., or soon after that as the] matter can be heard in Department 71 of the above-entitled Court located at 111 N. Hill Street, 1 rk DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 Los Angeles, California 90012, Defendants Metrolab, Inc., Teresa Izaguirre (erroneously sued as Theresa Izaguirre), and Behrouz Tavakoli (hereinafter referred to collectively as “Defendants”) will and do demur to the Second Amended Complaint of Plaintiff Vanessa Herrera (“Plaintiff”). This Demurrer is based upon this Notice, the attached Demurrer and Memorandum of] Points and Authorities, all records, papers, and pleadings on file in this action, such oral argument] as the Court may consider at the hearing of this Demurrer, and any matters of which the Court may or must take judicial notice. NEAL-LOPEZ LAW GROUP PC Dated: April 6, 2020 acy Weal Lopeg By: TRACY NEAL-LOPEZ Attorneys for Defendants Metrolab, Inc. and Teresa Izaguirre (erroneously sued as Theresa Izaguirre), and Behrouz Tavakoli 2 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 Defendants hereby demurer to Plaintiff’s Second Amended Complaint as to the first, second, third, fourth, fifth, sixth, eighth, and eleventh causes of action, as follows: FIRST CAUSE OF ACTION I. The First Cause of Action fails to state facts sufficient to constitute a cause of action for disability discrimination under the Fair Employment and Housing Act (“FEHA”). Code of Civil Procedure §430.10(e). 2 Plaintiff’s First Cause of Action for disability discrimination in violation of FEHA is uncertain, ambiguous, and/or unintelligible such that it fails to state a cause of action. Code of Civil Procedure §430.10((f). SECOND CAUSE OF ACTION 3. The Second Cause of Action fails to state facts sufficient to constitute a cause of action for disability harassment under FEHA. Code of Civil Procedure §430.10(e). 4. Plaintiff’s Second Cause of Action for disability harassment in violation of FEHA is uncertain, ambiguous, and/or unintelligible such that it fails to state a cause of action. Code of Civil Procedure §430.10((f). THIRD CAUSE OF ACTION 5. The Third Cause of Action fails to state facts sufficient to constitute a cause of action for retaliation in violation of FEHA. Code of Civil Procedure §430.10(e). 6. Plaintiff’s Third Cause of Action for retaliation in violation of FEHA is uncertain, ambiguous, and/or unintelligible such that it fails to state a cause of action. Code of Civil Procedure §430.10((f). FOURTH CAUSE OF ACTION 7. The Fourth Cause of Action fails to state facts sufficient to constitute a cause of action for failure to prevent discrimination, harassment and retaliation in violation of FEHA. Code of Civil Procedure §430.10(e). 8. Plaintiff’s Fourth Cause of Action for failure to prevent discrimination, harassment and retaliation in violation of FEHA is uncertain, ambiguous, and/or unintelligible such that it fails to state a cause of action. Code of Civil Procedure §430.10((f). 3 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 FIFTH CAUSE OF ACTION 9. The Fifth Cause of Action fails to state facts sufficient to constitute a cause of action for failure to provide reasonable accommodations in violation of FEHA. Code of Civil Procedure §430.10(¢). 10. Plaintiff's Fifth Cause of Action for failure to provide reasonable accommodations in violation of FEHA is uncertain, ambiguous, and/or unintelligible such that it fails to state a cause of action. Code of Civil Procedure §430.10((f). SIXTH CAUSE OF ACTION 11. The Sixth Cause of Action fails to state facts sufficient to constitute a cause of action for failure to engage in interactive process in violation of FEHA. Code of Civil Procedure §430.10(e). 12. Plaintiff’s Sixth Cause of Action for failure to engage in good faith interactive process in violation of FEHA is uncertain, ambiguous, and/or unintelligible such that it fails to state a cause of action. Code of Civil Procedure §430.10((f). EIGHTH CAUSE OF ACTION 13. The Eighth Cause of Action fails to state facts sufficient to constitute a cause of action for wrongful termination in violation of FEHA. Code of Civil Procedure §430.10(e). 14. Plaintiff's Eighth Cause of Action for wrongful termination in violation of public policy (FEHA) is uncertain, ambiguous, and/or unintelligible such that it fails to state a cause of action. Code of Civil Procedure §430.10((f). ELEVENTH CAUSE OF ACTION 15. The Eleventh Cause of Action fails to state facts sufficient to constitute a cause of action for retaliation in violation of Labor Code §1102.5. Code of Civil Procedure §430.10(e). 11 11 11 11 11 4 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 16. Plaintiff’s Eleventh Cause of Action for retaliation for disclosing violations of law - Labor Code §1102.5 is uncertain, ambiguous, and/or unintelligible such that it fails to state a cause of action. Code of Civil Procedure §430.10((f). NEAL-LOPEZ LAW GROUP PC Dated: April 6, 2020 By: 7aacy Weal Lopey TRACY NEAL-LOPEZ Attorneys for Defendants Metrolab, Inc. and Teresa Izaguirre (erroneously sued as Theresa Izaguirre), and Behrouz Tavakoli 5 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 TABLE OF CONTENT MEMORANDUM OF POINTS AND AUTHORITIES LI INTRODUCTION IL. SUMMARY OF ALLEGATIONS III. ARGUMENT A. DEMURRER STANDARD B. PLAINTIFF FAILS TO PROPERLY PLEAD CAUSES OF ACTION FOR DISABILITY DISCRIMINATION, FAILURE TO ACCOMMODATE OR FAILURE TO ENGAGE IN A GOOD FAITH INTERACTIVE PROCESS 1. Plaintiff Has Failed to Plead She Suffered a Qualifying Disability 2. Plaintiff Has Failed to Plead Defendants Knew of Any Disability 3 Plaintiff Failed to Plead Facts Sufficient to State a Cause of Action for Failure to Accommodate and Engage in Interactive Process C. PLAINTIFF'S SAC FAILS TO PLEAD SUFFICIENT FACTS TO CONSTITUTE DISABILITY HARASSMENT D. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION FOR RETALIATION IN VIOLATION OF GOVERNMENT CODE §12940 E. PLAINTIFF'S FOURTH CAUSE OF ACTION ALSO FAILS TO STATE A CAUSE OF ACTION E. PLAINTIFF'S WRONGFUL TERMINATION CLAIM FAILS TO STATE A CAUSE OF ACTION IN VIOLATION OF PUBLIC POLICY G. PLAINTIFF'S ELEVENTH CAUSE OF ACTION FOR VIOLATION OF WHISTLEBLOWER LAW (LABOR CODE §1102.5) FAILS TO STATE A CAUSE OF ACTION IV. IN ORDER TO AVOID THIS COURT SUSTAINING A DEMURRER WITHOUT LEAVE TO AMEND, PLAINTIFF MUST SHOW IN WHAT MANNER SHE CAN AMEND HER SAC V. CONCLUSION i PAGE Oo oO a N 11 13 15 16 17 17 18 21 21 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 TABLE OF AUTHORITIES STATE CASES Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal. App.3d 531 Arteaga v. Brink's, Inc. (2009) 163 Cal. App.4™ 327 Aubry v. TriCity Hospital District (1992) 2 Cal.4™ 962 Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4™" 1237 Barton v. United Motor Manuf., Inc. (1996) 43 Cal. App.4™h 1200 Blank v. Kirwan (1985) 39 Cal.3d 311 Brundage v. Hahn (1997) 57 Cal. App.4™ 228 Cassista v. Community Foods, Inc. (1993) 5 Cal.4™ 1050 Davaloo v. State Farm Ins. Co. (2005) 135 Cal. App.4™ 409 Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 600 Flaitv. North American Watch Corp. (1992) 3 Cal.App.4th 467 Gelfo v. Lockheed Martin Corp. (2006)140 Cal. App.4™ 34 Goodman v. Kennedy (1976) 18 Cal.3d 335 Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 Green v. State of California (2007) 42 Cal.4th 254 i PAGE(S) 11 9,11, 13-14 10 13 11 10 10, 15 16 14 21 18 11 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App.4th 215 Hastings v. Dept. of Correction (2003) 110 Cal. App.4" 963 Heckendorn v City of San Marino (1986) 42 Cal.3d 481 Hood v. Hacienda La Puente Unified Sch. Dist. (1998) 65 Cal. App.4" 435 Lawrence v. Bank of America (1985) 163 Cal.App.3d 431 Mokler v. County of Orange (2007) 157 Cal. App.4th 121 Prilliman v. United Air Lines, Inc. (1997) 53 Cal. App.4™ 935 Shapiro v. Wells Fargo Realty Advisors (1984) 152 Cal. App.3d 467 Schonfeldt v. State of California (1998) 61 Cal. App.4™ 1462 Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986 Serrano v. Priest (1971) 5 Cal.3d 584 Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 Trujillo v. North Co. Trans. Dist. (1998) 63 Cal.App.4th 280 Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238 Williams v. Beechnut Nutrition Corp. (1986) 183 Cal.App.3d 135 Yanowitz v. Loreal USA, Inc. (2005) 36 Cal.4th 1028 iil 18 12 10 10 10 19 14 10 10 13 17 17 18 11 16 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 FEDERAL CASES Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544 Blackburn v. Trs of Guilford Tech. Cmty. College 822 F.Supp. 2d 539 (M.D.N.C. 2010 Blanton v. Blanton v. Winston Printing Co. (M.D.N.C. 1994) 868 F.Supp. 804 Branscomb v. Group USA, Inc. (9 Cir. 2012) 475 F.App’x 134 Garcia v. Qwest Corp. (D. Ariz. 2008) 2008 U.S. Dist. LEXIS 101840 Ling La v. San Mateo City Transit Dist. (N.D. Cal. Sept. 16, 2014) 2014 U.S. Dist. LEXIS 131316 Morgan v. Goodwill Indust. of Denver, Inc. (D. Colo. July 19,2013) 2013 U.S. Dist. LEXIS 178769 Rakestraw v. Carpenter Co. (N.D. Miss. 1995) 898 F.Supp. 386 Rebarchek v. Farmers Co-op Elevator & Mercantile Ass'n (D. Kan. 1999) 60 F.Supp.2d 1145 Sanders v. Arneson Prods., Inc. (9th Cir. 1996) 91 F.3d 1351 Starr v. Baca (9th Cir 2011) 652 F.3d 1202 Toyota Motor Mfg. Ky, Inc. v. Williams (2002) 534 U.S. 184 STATUTES Civ. Proc. Code § 430.010 Civ. Proc. Code § 430.41 Government Code § 12940(a) Government Code § 12940(h) 1v 19 12 12 11 12 19 12 12 12 11-13 19 11 11 16 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 Government Code § 12940(k) 17 Labor Code § 1102.5 18-19 Labor Code § 1102.5(b) 18 OTHER CACI Instruction 2540 11 v DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In her Second Amended Complaint (“SAC”), Plaintiff Vanessa Herrera (“Plaintiff”) has alleged that Defendants discriminated against and harassed her based on her alleged “disability” in violation the Fair Employment and Housing Act (“FEHA”). However, her SAC fails once again to set forth the essential facts to survive demurrer. Indeed, the facts set forth by Plaintiff make clear that she has no cause of action under FEHA for disability, discrimination, or any related cause of action, because Plaintiff does not allege to have been disabled or perceived to be disabled. The facts provide - that Plaintiff fractured her hand and for the first time she claims that she was terminated as a result, which facts are not sufficient to state a cause of action against Defendants. II. SUMMARY OF ALLEGATIONS On or about October 25, 2019, Defendants’ motion for judgment on the pleadings as to Plaintiff’s first, second, third, fourth, fifth, sixth, eighth, and eleventh causes of action, was sustained, with leave to amend. On or about November 15, 2019, Plaintiff filed and served her First Amended Complaint (“FAC”). Inresponse, Defendants filed a Demurer to Plaintiff’s FAC first, second, third, fourth, fifth, sixth, eighth, and eleventh causes of action. The Court once again agreed with Defendants; the Court sustained their demurrer, without leave to amend as to Plaintiff’s first, third, fifth, sixth, and eleventh causes of action. However, after oral argument, the Court gave Plaintiff a second opportunity to cure the various defects in connection with her FEHA claims. Specifically, the Court states in its ten-page ruling (02/26/20) wherein in it sustained Defendants’ demurrer to Plaintiff’s FAC, that Plaintiff’s FEHA claims are deficient as follows: e Disability Discrimination/ Failure to Accommodate/Failure to Engage in Interactive Process: “Plaintiff did not allege facts suggesting she could perform the essential functions of her job and that she was terminated because of her disability.” In her FAC she alleged that she could “perform her essential duties, including writing, typing and processing lab samples, ‘as long as she was offered 6 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 accommodations . . . [which] could have included. . . modified expectations with respect to timeliness for completion of tasks, assistance from other employees [in processing samples], [or] a brief medical leave.”” However, the Court found that “Plaintiff’s FAC does not allege these accommodations would have enabled her to complete the essential functions of her job.!” [February 26, 2020 Tentative Ruling, at pgs. 3-4, 7, 8]. ® Retaliation: The Court ruled that Plaintiff did not allege facts suggesting a causal link between her protected activity and her termination. Plaintiff argued that her “termination came within a short time of her request for accommodations, which is enough to demonstrate causation.” However, “Plaintiff did not allege facts suggesting she actually requested accommodations.?” [February 26, 2020 Tentative Ruling, at pgs. 6, 7]. o Violation of Labor Code § 1102.5: The Court ruled that Plaintiff did not allege facts suggesting her refusal to operate the machine involved any reporting of reasonably based suspicions” of illegal activity, nor did she show a causal link between her alleged protected activity of complaining about having insufficient breaks and rest periods and her termination. [February 26, 2020 Tentative Ruling, at pgs. 9-10]. Although the Court described the above deficiencies in its ruling, Plaintiff’s SAC still does not contain facts sufficient to cure the various defects. Plaintiff still relies on the very same facts she pled in her FAC, which facts the Court ruled are insufficient. More importantly, Plaintiff has failed to allege that she suffered a qualifying “disability” under FEHA. The factual allegations on which Plaintiff bases her FEHA causes of action are set for in paragraphs 25-31, 33 of the SAC. To wit: 925. On November 13, 2015, Plaintiff fractured her hand, and when she showed up to work in a sling, Defendants [zaguirre and Tavakoli instructed her to seek medical attention. "As for termination, the Court ruled that Plaintiff did not plead facts to suggest that she was terminated because of her disability as the only facts she alleged was that she refused to perform tests on a machine she was not licensed to operate, not that she could not operate the machine because of disability. [February 26, 2020 Tentative Ruling, at pgs. 3-4, 7, 8]. 2 In opposition to Defendants’ demurrer to Plaintiff’s FAC, Plaintiff argued that she could amend her FAC to allege that in December 2015, she complained to Defendants regarding Izaguirre’s harassment, including Izaguirre’s harassment of another employee based on his age, which facts the Court determined did not cure the pleading defect suggesting a causation between Plaintiff’s protected activity and her termination. [February 26, 2020 Tentative Ruling, at pgs. 6, 7]. 7 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 926. Thereafter, Plaintiff was placed in a cast and was told by her doctor not to frequently use her right hand, which she verbally relayed to Defendants. 927 Plaintiff had difficulty performing her essential functions. She typed and wrote more slowly since she had to use her left hand (non-dominant hand), which also presented challenges for Plaintiff when handling specimens with one hand. 9 28 Plaintiff was nevertheless able to perform her essential functions with or without reasonable accommodations. 929 Plaintiff informed Izaguirre of her difficulties performing her essential functions. However, [zaguirre failed to report the issue to Tavakoli and failed to offer any accommodations or engage in the interactive process. 930 Instead, [zaguirre constantly harassed Plaintiff because of her disability; she made comments such as “what are you here for? You can’t even do anything?” “When are you getting that thing off already?” and, “You’re working too slowly. 931 In early December 2015, Plaintiff complained to Owner Tavakoli regarding the hostile work environment created by Izaguirre, including ageist comments she made to another worker. However, no corrective action was taken. 933 On December 10, 2015, Izaguirre demanded that Plaintiff operate the lab machines, which Plaintiff refused to run because she believed that she could not legally run them without a license. In response, Izaguirre shouted “It’s fucking easy, even my little son can do this.” Plaintiff protested and told Izaguirre to stop yelling. However, [zaguirre persisted in yelling and swearing at Plaintiff based on her refusal to run the machine, and for the first time Plaintiff alleges that Izaguirre also told her that day that she was “useless” and “lazy” and called her a “bitch.” Izaguirre then told Plaintiff to “Get out and don’t come back!” After Plaintiff sought medical treatment for her injured hand, per the instruction of Defendants, Plaintiff did not provide any doctor note with work restrictions or any other medical documentation which set forth her disability, if any, including any accommodations Plaintiff may, need. Nor did Plaintiff request any accommodations, including time off for treatment or a medical leave of absence to recover. The fact that she told her employer that she cannot use her injured hand frequently is not an accommodation. 8 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 Additionally, the fact that an employer knew an employee was injured or had a condition does not mean it knew she had a “disability.” (Avila v. Continental Airlines (2008) 165 al. App.4" 1237, 1249). Here, absent a qualifying “disability” under FEHA, Plaintiff’s disability discrimination, and related claims fail. Plaintiff has failed to plead, and cannot plead, sufficient facts to support her causes of action against Defendants. The moving party has complied with the with the meet and confer requirements of Code of Civil Procedure § 430.41as shown by the Declaration of Tracy Neal-Lopez. For these reasons and those described below, Defendants’ Demurrer should be sustained, without leave to amend. 111. ARGUMENT A. DEMURRER STANDARD “[TThe use of the demurrer to dispose of an action without additional trial court, attorney, or litigant time and effort is an efficient, appropriate, and well-accepted procedure.” (Barton v. United Motor Manuf., Inc. (1996) 43 Cal.App.4™ 1200, 1210). When a complaint does not state facts to state a cause of action, the entire complaint, or any cause of action therein, is subject to demurrer. Civ. Proc. Code § 430.010. It is well-established that a demurrer, while assuming that all the material facts led are true, does not admit contentions, deductions or conclusions of fact or law. (Aubry v. TriCity Hospital District (1992) 2 Cal.4" 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591). “It is settled law that a pleading must allege facts and not conclusions, and that material facts must be alleged directly and not by way of recital.” Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537 (emphasis added). “[I]n pleading, the essential facts upon which a determination of the controversy depends should be stated with clearness and precision so that nothing is left to surmise.” (/d.) “[R]ecitals, references to, or allegations of material facts which are left to surmise are subject to special demurrer for uncertainty.” (/d.). Conclusory allegations, without facts to support them, are ambiguous. (/d.). 9 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 Boilerplate or generalized allegations do not state a claim as a complaint must “set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of [the] cause of action. (Davaloo v. State Farm Ins. Co. (2005) 135 Cal. App.4™ 409, 428). This requires that the plaintiff “articulate . .. the specifics of the dispute with the [defendant] ....” (Id. at 420) (affirming demurrer where plaintiffs provided only “generic allegations” without “specifics of any kind”). If there is no reasonable possibility that the plaintiff can cure a defective claim by amendment, the court should sustain the demurrer without lave to amend. (Heckendorn v City of San Marino (1986) 42 Cal.3d 481, 486). Specifically, “[I]eave to amend should be denied where the facts are not in dispute and the nature of the claims clear, but no liability exists under substantive law.” (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 36; Schonfeldt v. State of California (1998) 61 Cal. App.4™ 1462, 1465 (leave to amend should not be granted where there is no liability as a matter of law)). The burden of proving the pleading defects can be cured “is squarely upon the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). B. PLAINTIFF FAILS TO PROPERLY PLEAD CAUSES OF ACTION FOR DISABILITY DISCRIMINATION, FAILURE TO ACCOMMODATE OR FAILURE TO ENGAGE IN A GOOD FAITH INTERACTIVE PROCESS It is well-settled that “statutory causes of action must be pleaded with particularity. (Hood v. Hacienda La Puente Unified Sch. Dist. (1998) 65 Cal. App.4™ 435, 439 (emphasis added)). Thus, to state a claim under FEHA, “facts in support of each of the requirements of [the statute] must be specifically pled.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 600, 604 (emphasis added) (sustaining demurrer to FEHA claim where complaint did not plead sufficient detail)).? 11 3 The Court of Appeal in Fisher stated that “[t]he material facts alleged in the second amended complaint are not significantly different from the facts alleged in the first amended complaint. Normally, we would presume that plaintiffs have stated their case as strongly as it can be stated and would resolve all ambiguities and uncertainties against them. (Shapiro v. Wells Fargo Realty Advisors(1984) 152 Cal.App.3d 467, 474.). Here, the facts alleged in support of Plaintiff’s FEHA claims in her SAC are not significantly different than the facts pled in her FAC, which facts this Court previously ruled were insufficiently plead. 10 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 1. Plaintiff Has Failed to Plead She Suffered a Qualifying Disability To state a cause of action for disability discrimination, Plaintiff must allege that she was aj qualified individual with a disability, that her employer knew that she had a disability, that she was able to perform the essential job functions with or without accommodation, that Defendant employer discharged the Plaintiff, that Plaintiff's disability was a substantial motivating reason for the decision to discharge the Plaintiff, that Plaintiff was harmed and that Defendant’s conduct was a substantial factor in causing Plaintiff's harm. (CACI Instruction 2540; Cal. Gov’t Code § 12940(a); Green v. State of California (2007) 42 Cal.4th 254, 257-58, 262-63). Here Plaintiffs allegations in her SAC do not even come close to stating a cause of action for disability discrimination under FEHA. Plaintiff alleges that she fractured her hand and that she sought medical treatment per the instruction of her employer. (SAC, 25). But under 299 FEHA, “’[n]ot every illness qualifies as [a] disability . ...”” (Avila v. Continental Airlines, Inc. (2008) 165 Cal. App.4th 1237, 1249 (“Avila”); Arteaga v. Brink's, Inc. (2009) 163 Cal. App.4™* 327, 344). “[T]he touchstone of a qualifying [physical] disability [under FEHA] is an actual or perceived physiological disorder which affects a major body system and limits the individual’s ability to participate in one or more major life activities.” (Cassista v. Community Foods, Inc. (1993) 5 Cal.4™ 1050, 1061). In determining whether a medical condition constitutes a disability, courts consider the nature and severity of the impairment, the duration of the impairment, and the permanent or long-term impact of the impairment. “Merely having an impairment does not make one disabled....” (Toyota Motor Mfg. Ky, Inc. v. Williams (2002) 534 U.S. 184, 195). Transient, nonpermanent conditions or temporary, non-chronic impairments of short duration fall short of the minimum standard for establishing a disability. (See, Avila at 1249) (3-day hospitalization coupled with ability to return to work several days later without restrictions or accommodations does not establish a disability); Branscomb v. Group USA, Inc. (9 Cir. 2012) 475 F.App’x 134, 136-137)(the fact that plaintiff had surgery on pituitary tumor did not substantiate plaintiff's disability claim where she was able to return to work without restrictions); Sanders v. Arneson Prods., Inc. (9" Cir. 1996) 91 F.3d 1351, 1354 (“Sanders”) 11 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 (psychological condition lasting four months and having no residual effects is not an actionable disability).*> In other words, an injury or ailment which causes only temporary impairment does not qualify as a disability under the law. In Sanders, for example, the Ninth ¢Circuit determined that the plaintiff was not disabled because his condition lasted approximately three months and had no residual effects. (Sanders at 1354). Thus, the Court found the plaintiff was not impaired for a sufficient duration to constitute a disability. (/d.) The Court noted that “temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities. Such impairments may include, but are not limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza.” (Id). (emphasis added). Thus, the wealth of case law on this point confirms that temporal injuries and illness without residual effects are not the sort of conditions that disability discrimination laws were intended to protect. The condition must endure such that there is a limitation on the individual’s ability to engage in activities of daily living, including the ability to work, on a sustained basis or with the potential for such limitation to occur intermittently in the future. To permit a more * In considering whether an impairment constitutes a disability under FEHA, courts have looked to the ADA and decisions interpreting the ADA for guidance. (Hastings v. Dept. of Correction (2003) 110 Cal. App.4™ 963,973, fn12). > See also, Garcia v. Qwest Corp. (D. Ariz. 2008) 2008 U.S. Dist. LEXIS 101840, 32 (2-3 month impairment does not qualify under ADA); Rakestraw v. Carpenter Co. (N.D. Miss. 1995) 898 F.Supp. 386, 390 (back injury completely cured by surgery was not a disability); Blanton v. Blanton v. Winston Printing Co. (M.D.N.C. 1994) 868 F.Supp. 804, 808 (knee injury which flared up for several months but afterword only impaired ability to run well was not a disability); Blackburn v. Trs of Guilford Tech. Cmty. College 868 F.Supp. 804 (M.D.N.C. 2010)(*“‘Ordinarily, a temporary impairment due to an injury or illness, including recuperation from surgery, is not sufficient to qualify as a disability under ADA.”); Rebarchek v. Farmers Co- op Elevator & Mercantile Ass’n (D. Kan. 1999) 60 F.Supp.2d 1145, 1151-52 (back injury requiring surgery was not a disability where no evidence that condition was expected to result in a permanent long-term impairment). ® While Sanders was decided before the ADA Amendments Act, its reasoning that temporary conditions are insufficient to constitute a disability has since been upheld. (See, Morgan v. Goodwill Indust. of Denver, Inc. (D. Colo. July 19, 2013) 2013 U.S. Dist. LEXIS 178769, *12). Moreover, although the ADA regulations no longer provide an express list of excluded conditions, the considerations remain the same; the severity of the impairment, duration of impairment and long-term impact of the impairment. 12 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 expansive definition of disability would eviscerate the goal of providing job security for those individuals who the law was meant to protect - the truly disabled. In the present action, Plaintiff has failed to allege facts to demonstrate that her fractured hand was anything more than a temporary impairment with no residual effects. Plaintiff has not alleged her condition was permanent in nature or was expected to have any long-term impact on her ability to perform any activities of daily living, including working. Plaintiff did not provide any doctor note or medical document from her treating physician, which states she suffered from a disability, what work restrictions were prescribed, if any, and when her cast was to be removed. Simply being treated for a temporary medical condition without residual effects is not a qualifying disability under FEHA. (See, Avila at 1249; Sanders at 1354). Because Plaintiff has not alleged facts sufficient to establish that she was disabled in November 2015, she cannot maintain a cause of action for disability discrimination, and related claims. Accordingly, the Court should sustain Defendants’ demurrer in its entirety. 2. Plaintiff Has Failed to Plead Defendants Knew of Any Disability To be labile for discrimination, an employer must know of the disability. Scotch v. Art Institute of California (2009) 173 Cal.App4th 986. “Vague or conclusory statements revealing unspecified incapacity are not sufficient to put an employer on notice of [a disability] [Citation]. Id. (quoting Brundage v. Hahn (1997) 57 Cal. App.4™" 228, 237). Here, Plaintiff alleges Defendants were aware she had fractured her hand and received treatment. Plaintiff further alleges that she verbally conveyed to Defendants that her doctor told her not to use her injured hand frequently. Neither of these allegations is sufficient to put Defendants on notice of a disability. Moreover, it does not appear that Defendants perceived Plaintiff to be disabled. Thus, because Plaintiff fails to plead Defendants knew she had a “disability” within the meaning of FEHA, which is a necessary element, her FEHA claims must be dismissed. 3. Plaintiff Failed to Plead Facts Sufficient to State a Cause of Action for Failure to Accommodate and Engage in Interactive Process A demurer on grounds of uncertainty should be sustained where a complaint fails to clearly and understandably state the cause of action alleged particularly where the ambiguity 13 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 substantially impacts the defendant’s ability to understand the claims against it. (See, Williams v. Beechnut Nutrition Corp. (1986) 183 Cal.App.3d 135, 139 n. 2). "Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.]" (Gelfo v. Lockheed Martin Corp., 140 Cal. App.4™ 34 (2006)”) (Avila at 1252-53). (“[TThe employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge. . . ." [Citation.]" (Prilliman v. United Air Lines, Inc.(1997) 53 Cal. App.4" 935, 954) Here, Plaintiff alleges that on November 13, 2015, she sustained a fractured hand, and that Defendants instructed her to receive medical attention. (SAC, 9 25). Apparently, Plaintiff followed the advice of Defendants as she was placed in a cast and she was supposedly given work restrictions “to not frequently use her right hand.” (SAC, 9 26). Plaintiff alleges that she had difficulty performing some of her daily tasks such as writing with her left hand, typing and working with urine and blood specimen collection and processing. (SAC, 427). She claims that she was not offered any accommodations as she was forced to attempt to process blood samples with one hand. (SAC, 927). However, Plaintiff does not plead which specific accommodations she requested, when she requested the accommodation(s) and when such accommodation(s) was denied. Instead, Plaintiff merely identifies accommodations Defendants could have offered her, none of which she actually requested. For instance, Plaintiff alleges that “Defendants could have,” (1) adjusted her goals or modified her duties to account for her working slowly and having difficulties with some of her job duties, (2) provided her assistance when it came to processing samples if they wanted the task completed faster, (3) offered her temporary medical leave for recover of her disabilities. (SAC, § 28). The accommodations Plaintiff claims Defendants could have offered her, which she did not request, are ambiguous and uncertain in that Plaintiff does not identify any goals that Defendants imposed on her, which she could not 14 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 meet because she was slow or which specific job duties she had difficulty performing, other than processing specimens. With respect to processing specimens, which is not an essential duty of a receptionist, Plaintiff does not identify the assistance she required so she could process samples faster. There is no allegation that Defendants disciplined Plaintiff during the time period of November 13, 2015 and December 10, 2015 because she was not processing samples fast and/or that she was performing her duties slowly. Further, Plaintiff has not alleged that with assistance she could process specimens with one hand. Simply put, Plaintiff has not alleged any facts to suggest that she requested an accommodation or that the need for accommodation of a disability was known to Defendant - essential elements to failure to accommodate claim. Nor has she alleged that she suffered a qualifying disability under FEHA. For the same reasons, Plaintiff’s claim for failure to engage in interactive process fails. Plaintiff has not alleged any facts to suggest that she attempted to engage Defendants in an interactive process, but that Defendants refused to engage in an interactive process or was otherwise responsible for a breakdown of the interactive process. Nor has Plaintiff alleged that the duty to engage in an interactive process was known to Defendants because of Plaintift’s disability. These are essential elements to a failure to engage in interactive process claim. Moreover, as stated above, there is no evidence to support the essential element of Plaintiff’s claim that she was disabled or perceived to be disabled, such that an interactive process was required. Thus, Defendants’ demurrer should be sustained, without leave to amend. Cc. PLAINTIFE’S SAC FAILS TO PLEAD SUFFICIENT FACTS TO CONSTITUTE DISABILITY HARASSMENT A prima facie case for harassment requires the following elements: (1) Plaintiff belongs to a protected group; (2) plaintiff as subjected to unwelcome harassment; (3) the harassment complained of was based on a protected status; (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. (Fisher v. San Pedro Peninsula Hospital (1989) 214 CalApp.3d 590, 608). Here, Plaintiff cannot establish the first element of this cause of action, that she belongs to a protected group. As stated above, Plaintiff’s SAC fails to allege facts that she was disabled 15 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 or perceived to be disabled. Absent belonging to a protected group, Plaintiff's harassment claim fails. Thus, Defendants’ demurrer should be sustained, without leave to amend. D. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION FOR RETALIATION IN VIOLATION OF GOVERNMENT CODE §12940 The Fair Employment and Housing Act (“FEHA”) prohibits an employer from taking adverse employment action against an employee in retaliation for the employee’s opposition to or filing of a grievance complaining of unlawful employment practices. (Gov. Code, § 12940, subd. (h).) “To establish a prima facie case, the plaintiff must show that he [or she] engaged in a protected activity, his [or her] employer subjected him [or her] to adverse employment action, and there is a causal link between the protected activity and the employer’s action.” (Flait v. North American Watch Corp. (1992) 3 Cal. App.4th 467, 476; see also Yanowitz v. Loreal USA, Inc. (2005) 36 Cal.4th 1028, 1065-66). Here, Plaintiff alleges during her employment with Defendant Metrolab she was required to run lab machines she believed was illegal to operate without a license. (SAC, 432). On December 10, 2015, Plaintiff alleges that she refused to operate a lab machine which she believed was illegal for her to operate (Plaintiff does not identify the name of the lab machine even though she worked for Metrolab for nearly five years) without a license. In response, Plaintiff alleges that Defendant Izaguirre shouted “It’s fucking easy, even my little son can do this.” For the first time, Plaintiff alleges in her SAC that Defendant Izaguirre “persisted in yelling and swearing at [her] based upon . . . Plaintiff’s slower pace of work resulting from her disabilities,” telling her that she is useless, lazy, a bitch and to “Get out and don’t come back!”. (SAC, q 33). Plaintiff has not plead any facts that she suffered from a qualifying disability or facts supporting her allegation that she was performing at a slower pace. Merely having an injury which makes it difficult to perform her job functions is not enough. Moreover, at paragraph 31 of Plaintiffs SAC, she also alleges that in early December 2015 she complained to Owner Tavakoli about the hostile environment created by [zaguirre, including ageist comments Izaguirre allegedly told to another worker. In opposition to Defendants’ demurrer to Plaintiff’s FAC, Plaintiff informed the Court that she could amend her FAC to allege these facts (the facts in paragraph 31) to cure the defect. The Court determined 16 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 that these facts did not cure the pleading defect suggesting a causation between Plaintiff’s protected activity and her termination.” Despite the Court’s determination, Plaintiff alleged the facts nonetheless, which as the Court correctly ruled the first time, does not cure the pleading defect; there are insufficient allegations to constitute a retaliation claim under FEHA. Based on the foregoing, Defendants’ demurrer as to Plaintiff’s retaliation claim should be sustained, without leave to amend. E. PLAINTIFF'S FOURTH CAUSE OF ACTION ALSO FAILS TO STATE A CAUSE OF ACTION Plaintiff’s fourth cause of action for failure to prevent discrimination and harassment also fails to state a cause of action. California Government Code section 12940(k) states that an employer is required to take all reasonable steps necessary to prevent unlawful harassment and discrimination from occurring. Notably, there can be no liability under this statute where no unlawful harassment, discrimination or retaliation has, in fact, occurred or been reported. (Trujillo v. North Co. Trans. Dist. (1998) 63 Cal. App.4th 280, 289). “(T)here’s no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that [did not] happen or for not having a policy to prevent discrimination when no discrimination occurred.” (Id. at 284). Plaintiff's failure to set forth a cause of action for disability discrimination or harassment also renders her fourth cause of action deficient. F. PLAINTIFF'S WRONGFUL TERMINATION CLAIM FAILS TO STATE A CAUSE OF ACTION IN VIOLATION OF PUBLIC POLICY A former employee may maintain a tort action against an employer when the basis for the employee’s discharge violates a statute or “fundamental principles of public policy.” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170). To establish a wrongful termination claim, a plaintiff must allege and prove: (1) an employer/employee relationship; (2) termination or other adverse employment action; (3) termination of plaintiff’s employment was a violation of a public policy; (4) a “nexus” between 7 February 26, 2020 Tentative Ruling, at pgs. 6, 7. 17 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 the termination and the employee’s protected activity; and (5) damages. (Turner v. Anheuser- Busch, Inc. (1994) 7 Cal.4th 1238, 1258-59). A cause of action for wrongful termination in violation of public policy is limited to wrongful discharge claims involving important public policies stated in statutory or constitutional mandates, or in administrative regulations serving a statutory objective. (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79-80). Where a wrongful termination claim is based on a statutory claim and the statutory claim fails, the wrongful termination must also fail. (See e.g. Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App.4th 215, 229). Here, Plaintiff’s wrongful termination claim is based on allegations that pursuant to FEHA and the “fundamental policy of the State of California” Defendants were required to refrain from “discriminating against any employee on the basis of perceived disability and/or disability, engagement in protected activity, medical condition and from retaliating against any employee who engages in protected activity.” (SAC, qq 110-111). Other than FEHA, Plaintiff does not allege which fundamental public policy of the State of California was violated by the termination of Plaintiff’s employment. If Plaintiff’s wrongful termination claim in violation of public policy is derivative of a statutory claim for violation of FEHA, it fails with the FEHA claims. (See, Hanson v. Lucky Stores, Inc. (1999) 74 Cal. App. 4 215, 229). G. PLAINTIFF'S ELEVENTH CAUSE OF ACTION FOR VIOLATION OF WHISTLEBLOWER LAW (LABOR CODE §1102.5) FAILS TO STATE A CAUSE OF ACTION Regarding the eleventh cause of action, Plaintiff still has not properly alleged a cause of action for “violation of the whistleblower law.” Labor Code Section 1102.5 prohibits retaliation for disclosing information to those with authority over the employee or authority to investigate, discover or correct an employer’s violation or non-compliance, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. (Cal. Lab. Code § 1102.5(b); see also Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 77). To establish a prima facie case of retaliation, a plaintiff must show (1) she engaged in a protected activity, (2) her employer 18 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 subjected her to an adverse employment action, and (3) there is a causal link between the two. (Mokler v. County of Orange (2007) 157 Cal. App.4th 121, 138). In the present action, Plaintiff alleges that she was retaliated against and terminated because she purportedly refused to operate a lab machine which she believed required a license to operate; that it would be illegal for her to do so. (SAC, q 33). However, Plaintiff’s allegations in support of her section 1102.5 claim fails to identify any local, state, or federal rule or regulation on which she bases her clam. If she intends to base her claim on California Business and Professions Code section 1200, et seq.,® she has not identified any specific statute in that statutory scheme. Plaintiffs bringing section 1102.5 claims must allege the specific rule, regulation, or statute they reasonably believed would have been violated, and the factual basis for] their reasonable belief. (Ling La v. San Mateo City Transit Dist. (N.D. Cal. Sept. 16, 2014) 2014 U.S. Dist. LEXIS 131316, at * 15 (“Ling”)). In order to meet the minimum pleading requirements, Plaintiff’s 1102.5 claim must provide Defendant Metrolab with “fair notice of what the . . . claim is and the grounds on which it rests” to “enable the opposing party to defend itself effectively.” (Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544, 555; Starr v. Baca (9 Cir 2011) 652 F.3d 1202, 1216 (“Twombly”)). Simply citing to these codes and a regulation in the SAC does not support a claim that Plaintiff refused to perform a task because she believed it was illegal in violation of, or ever complained about, a specific violation of any provision of the law. Further, Plaintiff also alleges 17 Cal. Code Reg. section 102 in support of her 1102.5 claim; however, the regulation has nothing to do with lab machines, who can run them, etc. - the regulation pertains to Public Health - Hospital District Loans. Clearly, Plaintiff is reaching for straws to try and cure the defects in her 1102.5 claim. It is impossible to determine whether Plaintiff actually reported a violation of a law to Defendants, which she believed would be violated should she operate the lab machine or was she simply making vague statements in effort to protect herself from any reprimand based on her work performance, including insubordination. 8 The SAC refers generally to the entire statutory scheme found in California Business and Professions Code section 1200, et seq. (Chapter 3), which contains several Articles and Sections covering a vast range of topics; Plaintiff has not specified which Article and Section are applicable to this case. 19 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 In addition to the foregoing, Plaintiff does not identify in her SAC which machines she was allegedly asked to operate which required a license. There are several lab machines used by Defendant Metrolab, and generally stating in a conclusory manner that she refused to operate “a lab machine” does not put Defendants on adequate notice to defend itself. Plaintiff alleges for the first time in her SAC that an inspector at some unknown time period during her employment told her that “she could not operate ‘some’ of the machines in the lab.” (SAC, 932). Without identification of the laboratory machines Plaintiff was allegedly required to operate which required a license, the details of the supposed inspection and what was told to her regarding certain lab machines, it is impossible to determine whether a violation occurred or could have occurred. Moreover, Plaintiff has not established a causal connection between her termination and her supposed refusal to operate unidentified laboratory machines and her termination. Plaintiff claims that on one occasion on December 10, 2015 when she refused to operate a laboratory machine which she believed required a license to run, Defendant I1zaguirre shouted “It’s fucking easy, even my little one can do this,” and was told to “get out and don’t come back.” (SAC, q 33.). Again, Plaintiff does not identify the machines which required a license, nor does she identify the machinery that Izaguirre requested she run on December 10, 2015 which required a license. For instance, was she asked to merely start a machine by pushing a button, use only her left hand to perform any tasks on the machine, including the nature of the tasks. Plaintiff must plead specific details of what she was asked to do in connection with the lab machine she alleges she was asked to run on December 10, 2015. A conclusory statement that she refused to “run” a lab machine which she believed required a license is not sufficient; Defendants are left to guess and read Plaintiff’s mind, which violates Ling and Twombly. Based on the foregoing, Plaintiff’s Labor Code 1102.5 claim is not sufficient plead. As such, Defendants’ demurrer should be sustained, without leave to amend. 11 11 11 20 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 IV. IN ORDER TO AVOID THIS COURT SUSTAINING A DEMURRER WITHOUT LEAVE TO AMEND, PLAINTIFF MUST SHOW IN WHAT MANNER SHE CAN AMEND HER SAC The California Supreme Court has ruled that a plaintiff seeking to avoid the sustaining of a demurrer without leave to amend to a complaint for a defect in pleading must show in what manner he can amend his complaint and how that amendment will change the effect of his pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). Because Plaintiff’s first, second, third, fourth, fifth, sixth, eighth, and eleventh causes of action in the FAC are deficient, Defendants contend that this Court should sustain their demurrer without leave to amend. However, in the event that the Court is inclined to grant leave to amend, Defendants request that the Court require Plaintiff to show in what manner she can amend the second amended complaint, and how that amendment will change the effect of her complaint. V. CONCLUSION Based on the foregoing facts, arguments, and points of law, the Court is respectfully urged to grant demurrer as to the First, Second, Third, Fourth, Fifth, Sixth, Eighth, and Eleventh causes of action, without leave to amend, or in the event that the Court is inclined to grant leave to amend, that the Court require Plaintiff to show how she can amend her First Amended Complaint, and how that amendment will change the effect of her First Amended Complaint. NEAL-LOPEZ LAW GROUP PC Dated: April 6, 2020 Tracy Weal Lopey TRACY NEAL-LOPEZ Attorneys for Defendants Metrolab, Inc. and Teresa Izaguirre (erroneously sued as Theresa Izaguirre), and Behrouz Tavakoli By: 21 DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 bE; 24 25 26 27 28 PROOF OF SERVICE (CCP § 1013(a) and 2015.5) I, the undersigned, am employed in the County of Los Angeles, State of California. I am| over the age of 18 and not a party to the within action; by business address is 5150 Pacific Coast Highway, Suite 200 PMB #677, Long Beach, California 90804. On April 6, 2020, I served the foregoing document entitled DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF TRACY NEAL-LOPEZ REGARDING COMPLIANCE WITH MEET AND CONFER REQUIREMENTS OF CODE OF CIVIL PROCUDURE §430.41 in 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: Kaveh S. Elihu Attorney for Plaintiff Thomas L. Dorogi David C. Hopper EMPLOYEE JUSTICE LEGAL GROUP 3055 Wilshire Blvd., Suite 1120 Los Angeles, California 90010 Tel: (213) 382-2222 Fax: (213) 382-2230 XX [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. Od [by FAX] - I caused the aforementioned document(s) to be telefaxed to the aforementioned facsimile number(s). The machine printed a record of the transmission, and no error was reported by the machine. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed April 6, 2020, at Long Beach, California. Tracy Neal-Lopez By: ’ 7 eal Lopes 2) DEFENDANTS’ DEMURER TO SECOND AMENDED COMPLAINT Make a Reservation | Journal Technologies Court Portal 4/6/20, 4:31 PM Journal Technologies Court Portal Make a Reservation VANESSA HERRERA VS METROLAB INC ET AL Case Number: BC685771 Case Type: Civil Unlimited Category: Wrongful Termination Date Filed: 2017-12-05 Location: Stanley Mosk Courthouse - Department 71 Reservation Case Name: Case Number: VANESSA HERRERA VS METROLAB INCET AL BC685771 Type: Status: Demurrer - without Motion to Strike RESERVED Filing Party: Location: Metrolab, Inc. (Defendant) Stanley Mosk Courthc Date/Time: Number of Motions: 07/31/2020 8:30 AM 1 Reservation ID: Confirmation Code: 262365836835 CR-UENV98JHZSGP( Fees Description Demurrer - without Motion to Strike Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: Type: $61.65 Visa Account Number: Authorization: os -=-- ~~ nm mm https://portal-lasc.journaltech.com/public-portal/?g=calendar/reserve Page 1 of 2
