Demurrer__without_motion_to_strikeMotionCal. Super. - 2nd Dist.July 19, 2018Electroni ~ 10 12 13 14 16 17 18 19 Cl - - ally FILED by Superior Court of California, County of Los Angeles on 02/14/2019 12:38 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hun BRAD A. MOKRI, SBN: 208213 LAW OFFICES OF MOKRI & ASSOCIATES 1851 E. First Street, Suite 900 Santa Ana, California 92705 Telephone No.: (714) 619-9395 Facsimile No.: (888)342-1406 Attorney for Defendant: APOLLO COURIERS, INC. SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES - UNLIMITED JURISDICTION Case No: BC714542 [Assigned for All Purposes to Hon. Elizabeth R. Feffer/ Dept. 39] DERRICK RIGSBY, an individual, Plaintiff, VS. NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC., TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRAD A. MOKRI PER CCP SECTION 430.41 APOLLO COURIERS, INC. and Does 1 through 100, inclusive, Defendants. Hearing Information: Date: April 22,2019 Time: 9:00 a.m. Dept.: 39 Judge: Elizabeth Fiffer Reservation No.: 881253442454 L L a i TO THE ABOVE-ENTITLED COURT, AND TO ALL PARTIES, AND THEIR ATTORNEYS OF RECORD IF ANY: | PLEASE TAKE NOTICE THAT on or about April 22, 2019, at 9:00 a.m. in Department 39 of the above-entitled Court located at 111 N. Hill Street, Los Angeles, California 90012, Defendant APOLLO COURIERS, INC.'s Demurrer to Plaintiff DERRICK RIGSBY's NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC., TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES -1 ,Deputy Clerk 12 13 14 15 16 17 18 19 20 21 Complaint for Disability Discrimination (1%), Failure to Accommodate 2"), Failure to Engage in Good Faith Interactive Process (3), Retaliation in Violation of the Fair Employment and Housing Act (4), Retaliation in Violation of California Labor Code Section 98.6 (5%), Failure to Provide Meal and Rest Periods (6%), Failure to Pay Minimum Wage (7%), Failure to Pay Overtime (8), Failure to Issue Accurate Itemized Wage Statements (9%), Failure to Reimburse for Work Related Expenses (10), Failure to Pay Wages Upon Termination and Waiting Time Penalties (11), and Wrongful Termination in Violation of Public Policy (12%), will be heard. This demurrer shall be based upon the grounds outlined more specifically in the Demurrer, and more generally on the basis that the Complaint fails to state facts sufficient to constitute a cause of action and is uncertain as against this demurring Defendant. The demurrer is based on this notice, the Memorandum of Points and Authorities attached hereto, the concurrently filed Declaration of Brad A. Mokri, and upon all of the records, pleadings and files in this matter, and upon such further arguments and evidence that may be presented at the time of the hearing of this Demurrer. WHEREFORE, Plaintiff prays that this demurrer be sustained, that Plaintiff take nothing by the Complaint, and that Defendant have judgment for its costs, and for all other relief this Court deems proper. Date: February 13, 2019 Respectfully submitted, LAW OFFICES OF MOKRI & ASSOCIATES w Lf Brad A. Moki, Esq. Attorney for Defendant APOLLO COURIERS, INC. NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC., TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES -2 no 10 11 12 13 14 17 18 19 THE DEMURRER Defendant, APOLLO COURIERS, INC. (hereinafter "APOLLQO") asserts the following grounds for demurrer to the Complaint: I. The First Cause of Action for Disability Discrimination is subject to demurrer pursuant to CCP Section 430.010(e) because Plaintiff has failed to state facts sufficient to constitute a cause of action in light of the absence of allegations that Plaintiff was qualified for the position he sought or was performing competently in the position he held. 2. The Seventh (Failure to Pay Minimum Wage), Eighth (Failure to Pay Overtime), Tenth (Failure to Reimburse for Work Related Expenses), and Eleventh (Failure to Pay Wages Upon Termination and Waiting Time Penalties) Causes of Action are subject to demurrer pursuant to CCP Section 430.010(e) and (f) because where Plaintiff is seeking redress of compensatory issues in the form of overtime wages, wages at the time of discharge from employment, reimbursement of expenses, the allegations must be specific. 3. ~The First (Disability Discrimination), Second (Failure to Accommodate), Fourth (Retaliation in Violation of the Fair Employment and Housing Act) and Twelfth (Wrongful Termination in Violation of Public Policy) Causes of Action are subject to demurrer pursuant to CCP Section 430.010(e) because Plaintiff has failed to state facts sufficient to support the allegation that as to each cause of action Plaintiff has exhausted his administrative remedies prior to filing the Complaint. The Twelfth Cause of Action (Wrongful Termination in Violation of Public Policy) is also subject to demurrer per CCP Section 430.010(e) for failure to state facts sufficient to constitute a cause of action because Plaintiff has failed to provide facts in support of termination from employment and violation of public policy. 4. The Third Cause of Action for Failure to Engage in Good Faith Interactive Process is subject to demurrer per CCP Section 430.010(e) because Plaintiff has failed to state facts sufficient to support the allegations of 42. 111 111 111 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC., TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES -3 15 16 17 18 WHEREFORE, Defendant prays that the demurrer be sustained without leave to amend. Date: February 13, 2019 Respectfully submitted, LAW OFFICES OF MOKRI & ASSOCIATES By: 7 ea” Brad A. Mokri, Esq. Attorney for Defendant APOLLO COURIERS, INC. NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC., TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES -4 13 14 15 16 17 18 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This action arises from claims made by Plaintiff against APOLLO for certain alleged violations of California’ Labor Code and wage orders. Plaintiff's charging pleading provides twelve (12) causes of action, of which Defendant has brought this demurrer to the First, Second, Third, Fourth, while this one cause of action is broken down into ten (10) different sections. This in itself is confusing enough because each individual section is actually a separate cause of action, while the identified First Cause of Action dubbed "For Civil Penalties Pursuant to California Labor Code §§2698, et seq." is more properly a remedy rather than a cause of action, although California law recognizes it as a viable cause of action, at least in form. It is APOLLO's position that based on applicable law, the foregoing causes of action have; not been sufficiently alleged and are also uncertain for the following reasons: IL. ARGUMENT A. Function of A Demurrer Demurring party recognizes that, for purposes of the present demurrer, the Court may take as true well-pleaded allegations of fact. [5 Witkin, Cal. Procedure (3d ed. 1985 & Supp. 1994) Pleading §895.] Thus, for the purpose of testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts properly pleaded. [Serrano v. Priest (1971) 5 Cal.3d 584,591.] However, this principle is inapplicable to contentions, deductions, or conclusions of fact or law. [Id.] C.C.P. §430.10(e) and (f) provide that: "The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer, as provided in Section 430.30, to the pleading on any one or more of the following grounds: "(e) The pleading does not state facts sufficient to constitute a cause of action. "(f) The complaint or cross-complaint is “uncertain” (i.e., ambiguous and unintelligible)." It is axiomatic that a demurrer tests the legal sufficiency of the complaint. The court NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC., TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES -1 considers the pleading on its face, or those matters which may or must be judicially noticed. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. A demurrer tests the legal sufficiency of the complaint. In evaluating a demurrer, a court accepts Defendants’ (or cross-complainants”) facts properly pleaded in a complaint as true, but "it does not admit contentions, deductions, or conclusions of fact or law alleged therein." [Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.] In ruling on a demurrer, a court may properly take judicial notice of statutes, legislative acts, and other matters which are subject to judicial notice under the Evidence Code. [People v. Oakland Water Front Co. (1897) 118 Cal, 234, 245; County of Fresno v. Lehman (1991) 229 Cal. App. 3d. 340,344-5.] Accordingly, a demurrer should be sustained if there is no factual basis for relief under any theory reasonably contemplated by the pleadings. [Sher v. Leiderman (1986) 181 Cal. App 3d. 867, 885.] Given the foregoing standard of review, Plaintiff's Complaint is subject to APOLLO's demurrer. B. The Seventh (Failure i Pay Minimum Wage), Eighth (Failure to Pay Overtime), Tenth (Failure to Reimburse for Work Related Expenses), and Eleventh (Failure to Pay Wages Upon Termination and Waiting Time Penalties) Causes of Action The crux of the pleading problem with the Complaint as to the Seventh, Eighth, Tenth, and Eleventh Causes of Action is that Plaintiff fails to allege the amount of wages the employee earned or the amount due at the time of his discharge, and for that matter the amount of compensation to which Plaintiff feels entitled, or at least a range of sums representing such compensation. In Oppenheimer v. Robinson (1957) 150 Cal.App.2d 420, an employee filed a complaint to recover unpaid wages. The company filed a special demurrer alleging that the complaint was uncertain and ambiguous because it did not allege the amount of wages the employee earned nor the amount due at the time of his discharge. The employee argued that the precise amount of NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC., TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES -2 3% ] 12 13 14 15 16 17 18 19 20 26 27 28 wages due was an evidentiary matter that did not need to be pled with specificity in the complaint. The trial court sided with the employer and the Court of Appeal agreed. "The mere allegation that plaintiff was damaged in the sum of § 6,000 by reason of the failure to pay the wages earned is meaningless in the absence of any allegation as to the amount of wages due plaintiff. That allegation is an obvious attempt to claim a sum as damages that would give the superior court jurisdiction of the action, while suppressing facts that would determine whether the action was within the jurisdiction of the superior court. The court was not required to give any effect to the allegation of damage in the absence of the allegation of facts showing liability in damages, nor to proceed further in the action in the face of the refusal of plaintiff to plead essential jurisdictional facts." Seventh, Eighth, Tenth, and Eleventh Causes of Action are subject to APOLLO'S Demurrer because Plaintiff fails to allege facts identifying the sum sought or a range of amounts sought by Plaintiff. The allegations for each of these causes of action are in fact quite general and conclusory in nature. Applying the Oppenheimer holding to Plaintiff's Complaint, it becomes apparent that nowhere in any of the allegations of the Seventh, Eighth, Tenth, and Eleventh Causes of Action has Plaintiff alleged a specific amount or at least a range of sums with reference to the amount of] wages Plaintiff is seeking. As such, APOLLO's Demurrer to the Seventh, Eighth, Tenth, and Eleventh Causes of Action should be sustained without leave to amend. Cs The First Cause of Action For Disability Discrimination To state a claim for disability discrimination under FEHA, the plaintiff must allege "that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 355; MecCaskey v. California State Automobile Assn. (2010) 189 Cal. App. 4th 947, 979.) NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC., TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES -3 Plaintiff's fails to allege facts sufficient with respect to the second element of the First Cause of Action, namely that he was qualified for the position he sought or was performing competently in the position he held. In the body of the Complaint, Plaintiff has completely missed alleging any facts in support of the second element of this cause of action. As such, the demurrer to the First Cause of Action should be sustained without leave to amend. D. The Third Cause of Action for Failure to Engage in Good Faith Interactive Process. At paragraph 42 of the Complaint under the Third Cause of Action for Failure to Engage in Good Faith Interactive Process, Plaintiff alleges that Defendant acted in a grossly reckless, careless, negligent, oppressive and/or intentional malicious, and bad faith manner. The first problem with this cause of action is that it is couched in general and conclusory terms. The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA; (2) the plaintiff is qualified to perform the essential functions of the position; and (3) the employer failed to reasonably accommodate the plaintiff's disability. Scotch v. Art Institute of California (2009) 173 Cal. App.4™ 986, 1003. It is evident from the allegations of the Complaint and the third cause of action that Plaintiff has failed to allege any facts for element 2 of the cause of action. As such, the pleading is not sufficient per CCP Section 430.010(e). The second problem is that the cause of action is couched in terms more akin to an intentional tort such as fraud. However, the allegations lack the specificity required for such a cause of action, especially where Plaintiff is seeking punitive damages. The pleading standard for a cause of action which is praying punitive damages as an additional measure of damages must meet the specificity required per Civil Code Section 3294(c). Nothing in the allegations of the third cause of action even come close to the specificity requires. As such, the demurrer to the Third Cause of Action should be sustained without leave to amend. NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC., TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES -4 17 18 19 20 E. The First (Disability Discrimination), Second (Failure to Accommodate Fourth (Retaliation in Violation of the Fair Employment and Housing Act) and Twelfth (Wrongful Termination in Violation of Public Policy) Causes of Action As to the First, Second, Fourth and Twelfth Causes of Action, Plaintiff has alleged, in substance, in each case that he has "exhausted his administrative remedies under the California Fair Employment and Housing Act by filing charges that Defendants violated the California Fain Employment and Housing Act and was issued the Notice of Case Closure/Right-to-Sue Letter granting Plaintiff the right to bring suit against Defendants." The problem with the foregoing allegation is that Plaintiff has failed to append a copy of the Complaint he filed with the DFEH and the Right to Sue Letter he allegedly received from the DFEH. A claimant must exhaust the administrative remedies available before resorting to the courts. This fundamental rule of procedure binds all courts. (dbelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 293.) The exhaustion requirement applies to statutory administrative remedies and also to internal grievance procedures of public and private organizations. (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 474-477, Moreno v. Cairns (1942) 20 Cal.2d 531, 535.) Generalized comments, bland references and unelaborated objections are not sufficient to exhaust administrative remedies. (Coalition for Student Action v. City of Fullerton (1984) 153 Cal. App.3d 1194, 1197-1198; Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal. App.4th 515, 528 ("CREED").) It is plaintiffs’ burden to demonstrate that the issues raised in the trial court were first raised at the administrative level. (Sierra Club v. City of Orange (2008) 163 Cal. App.4th 523, 535.) Defendant has no way of knowing from the allegations of the Complaint if Plaintiff has indeed exhausted his administrative remedies prior to bringing the Complaint because beyond the oft repeated statement in the First, Second, Fourth, and Twelfth Causes of Action, Plaintiff has failed to attach a copy of an administrative complaint, a letter directed to the DFEHA, and NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC., TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES -5 10 11 12 13 14 15 16 17 18 for that matter a copy of the right to sue letter from the DFEHA. Defendant has no way of knowing if the contents of the administrative claims mirror the allegations of the Complaint. The absence of such documentary support at the pleading stage creates doubt that Plaintiff has even standing to bring this action because the Court may not have jurisdiction to hear the case if Plaintiff has indeed failed to exhaust his administrative remedies. Campbell v. Regents of University of California (2005) 35 Cal.4" 311, 321; McDonald v. State of California (2013) 219 Cal.App.4“ 67, 72. Applying the foregoing authorities to the Complaint in this action, Apollo is unable to determine if Plaintiff has indeed exhausted his administrative remedies from a general and conclusive blurb that has been repeated verbatim under the First, Second, Fourth, and Twelfth Causes of Action. As such, these causes of action are subject to demurrer. The Twelfth Cause of Action for Wrongful Termination in violation of Public Policy is also subject to demurrer because to prevail on a claim for wrongful termination in violation of public policy, a plaintiff must show that (1) the plaintiff was employed by the defendant, (2) the defendant discharged the plaintiff, (3) a violation of public policy was a motivating reason for the discharge, and (4) the discharge harmed the plaintiff. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641; CACI No. 2430.) The public policy supporting a claim of wrongful termination must meet the following four criteria: "First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be ‘public’ in the sense that it 'inures to the benefit of the public’ rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be 'fundamental’ and substantial." " (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889-890, fn. omitted.) Administrative regulations implementing a statute may also be a source of fundamental public policy. (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79-80, 82 (Green).) The determination whether the public policy exception applies "depends in large part on whether the public policy alleged is sufficiently clear to provide the basis for such a potent remedy." (Gantt NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC,, TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES -6 16 17 18 19 20 v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090 (Gantt), disapproved on another ground in Green, supra, at p. 80, fn. 6.) The allegations of the Twelfth Cause of Action do not satisfy the public policy prong because Plaintiff is seeking an individual rather than a public benefit for defendant's failure to accommodate his work schedule as a result of Plaintiff's alleged shoulder injury. Granted, paragraph 103 of the Complaint contains all the buzz words, but it is replete with conclusory allegations rather than factual allegations. In the absence of more specific allegations and supporting documentation for the exhaustion of administrative remedies allegation, as well as more specific factual allegations supporting the public policy prong of the Twelfth Cause of Action, the demurrer to the First, Second, Fourth, and Twelfth Causes of Action should be sustained without leave to amend. Im. CONCLUSION Based on the foregoing points and authorities, it is respectfully requested that the Court sustain APOLLO's Demurrer to the First, Second, Third, Fourth, Seventh, Eighth, Tenth, Eleventh and Twelfth Causes of Action of the Complaint without leave to amend. Date: February 13, 2019 Respectfully submitted, LAW OFFICES OF MOKRI & ASSOCIATES . y/ iL Brad A. Mokri, Esq. Attorney for Defendant APOLLO COURIERS, INC. NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC., TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES -7 no 10 11 i3 14 16 17 18 19 20 21 22 23 27 28 PROOF OF SERVICE I am employed in the County of Orange, State of California. 1am over the age of 18 and not a party to the within action; my business address is 1851 E. First Street, Suite 900, Santa Ana, California 92705. On February 14, 2019, 1 served the foregoing document(s) described as NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC., TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRAD A. MOKRI PER CCP SECTION 430.410n the interested parties in this action by placing a true ( X ) copy ( ) original thereof enclosed in a sealed envelope addressed as follows: Attorneys for Plaintiff DERRICK RIGSBY Zev Abramson, Esq. Nissim Levin, Esq. / E-mail: nissim@abramsonlabor.com Christina Begakis, Esq. / E-mail:christina@abramsonlabor.com ABRAMSON LABOR GROUP 3580 Wilshire Blvd, Suite 1260 Los Angeles, California 90010 / Fax No.: (213)382-4083 J BY U.S.MAIL BY OVERNITE EXPRESS Vv 1deposited such envelope(s), with postage thereon fully prepaid in the mail at Santa Ana, California. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it is deposited with the U.S. Postal Services on that same day with postage thereon fully prepaid at Santa Ana, CA, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal collection date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY ELECTRONIC SERVICE TRANSMISSION: Pursuant to the Court’s Electronic filing system, and registration as a user constitutes consent to electronic service through the Court’s transmission facilities, The court’s system sends an e-mail notification of the filing to the parties and counsel of record listed above who arg registered with the Court’s System. BY PERSONAL SERVICE - I delivered such envelope(s), by hand to the offices of the addressee(s). a BY FACSIMILE - I caused such copy to be facsimiled to the person(s) set forth above. The facsimile machine I used complied with California Rules of Court, Rule 2003 and no error was reported by the machine, Pursuant to California Rules of Court, 2006(d), I caused the machine to print a transmission record of the] transmission, a copy of which is attached to this declaration. V_ (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (Federal) I declare that I am employed in the office of a member of the bar of this court at Whose Direction the services is made. Executed on: February 14, 2019, at Santa Ana, California. yy “Gissou Mokri NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT APOLLO COURIERS, INC.,, TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES -1 Journal Technologies Court Portal Make a Reservation DERRICK RIGSBY VS APOLLO COURIERS INC ET AL Case Number: BC714542 Case Type: Civil Unlimited Category: Other Employment Complaint Case Date Filed: 2018-07-19 Location: Stanley Mosk Courthouse - Department 39 Reservation Case Name: DERRICK RIGSBY VS APOLLO COURIERS INC ET AL Type: Demurrer - without Motion to Strike Filing Party: Apollo Couriers Inc. (Defendant) Date/Time: 04/22/2019 9:00 AM Reservation ID: 881253442454 Fees Description First Paper Fees (Unlimited Civil} Credit Card Percentage Fee (2.75%) TOTAL Payment Amount: $446.96 Account Number: XXXX2003 PtPrint Receipt ~~ = Reserve Another Hearing Copyright © Journal Technologies, USA. All rights reserved. CasENERbER BC714542 Status; RESERVED Location: Stanley Mosk Courthouse - Department 39 Number of Motions; 1 Confirmation Code: CR-EJOOE2NGA3TJHZHRTK Feel ) ay ) 435.00 1 11.96 ; 1 Type: AmericanExpress Autharization: 191173 2 View My Reservations Amount 43500 11.96 - $446.96
