Case Number: 19STCV10479 Hearing Date: September 17, 2019 Dept: 37

HEARING DATE: September 17, 2019

CASE NUMBER: 19STCV10479

CASE NAME: Anthony Guytan v. Swift Transportation Co. of Arizona, LLC

TRIAL DATE: Unassigned

PROOF OF SERVICE: OK

DEFENDANT’S DEMURRER TO THE COMPLAINT

MOVING PARTY: Defendants Swift Transportation Co. of Arizona, LLC; Swift Transportation Services, LLC; Swift Transportation, Co. Inc.; and Swift Transportation Company

OPPOSING PARTY: Plaintiff Anthony Guytan

MOTION: Filed July 2, 2019

OPPOSITION: Filed September 4, 2019

REPLY: Filed September 10, 2019

TENTATIVE: The demurrer to the complaint is OVERRULED. Counsel for the demurring party to give notice.

BACKGROUND

This is action arises from Anthony Guytan’s (“Plaintiff”) employment with Swift Transportation from 2015-2016. The Complaint alleges that during his employment, Plaintiff engaged in activities protected under the public policies, regulations, and laws of the State of California and that as a result of Plaintiff’s protected activity and complaints, Swift Transportation launched into a retaliatory campaign against Plaintiff that culminated in his termination. The Complaint further alleges that after Plaintiff’s termination, he filed a lawsuit against Swift Transportation alleging Fair Employment and House Act claims for discrimination, harassment and retaliation, California Family Right Act violations, whistleblower retaliation, wrongful termination, Labor Code violations, assault and battery and that the lawsuit was resolved in 2017. The Complaint further alleges that in December 2018, Plaintiff was hired by US 1 Logistics and that when it checked Plaintiff’s job references, it was furnished with false information that Plaintiff had refused to take a legitimate drug test while employed by Swift Transportation.

The Complaint alleges causes of action against Swift Transportation Co. of Arizona, LLC, Swift Transportation Services, LLC, Swift Transportation Co, Inc., Swift Transportation Company, (Collectively, “Swift Transportation”) and Lee Stevens for (1) violation of the Fair Employment and Housing Act; (2) violation of California Labor Code section 1050 et seq.; (3) intentional interference with prospective economic relation; and (4) defamation.

Swift Transportation demurs on the grounds that each cause of action was released pursuant to a Release and Settlement Agreement entered into on October 10, 2017 and are barred under doctrine of Res Judicata. The demurrer is opposed by Plaintiff.
MEET AND CONFER REQUIREMENT

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. § 430.41 subd. (a).) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. (Id. § 430.41 subd. (a)(1).) The demurring party shall file and serve with the demurrer a declaration stating either of the following:

(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.

(Id. § 430.41 subds. (a)(3)(A)-(B).)

In support of the subject demurrer, Swift Transportation filed the Declaration of Kimberly Dennis, which states that on June 6, 2019, she met and confer with Plaintiff’s counsel by telephone. (Dennis Decl. ¶ 2.) The Declaration states that during the conference, the declarant explained Plaintiff’s counsel the grounds for Swift Transportation’s subject demurrer but in response Plaintiff’s counsel offered no legal support for Plaintiff’s position that the Complaint is legally sufficient and did not offer to amend the pleadings. (Id. ¶ 3.) While Plaintiff’s counsel should have offered legal authority in support of its position that the Complaint is legally sufficient, failure to meet and confer is not grounds to deny the subject demurrer. (Code Civ. Proc. ¶ 430.41 subd. (a)(4).)
REQUEST FOR JUDICIAL NOTICE

When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. (Code Civ. Proc. § 430.30.) When the ground of demurrer is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the demurrer, or in the supporting points and authorities for the purpose of invoking such notice, except as the court may otherwise permit. (Id. § 430.70.)

Here, Swift Transportation requests the court to take judicial notice of the following documents which are filed as exhibits to the Declaration of Kimberly Dennis:

Exhibit A: Complaint and exhibits filed February 7, 2017 in Anthony Guytan v. Swift Transportation Co. of Arizona, LLC et al., No. CVlDSl 702299 (San Bernardino Sup. Ct.);

Exhibit B: Confidential Release and Settlement Agreement signed October 10, 2017 in Guytan I;

Exhibit C: Joint Stipulation to Dismiss with Prejudice filed October 26, 2017 in Guytan I;

Exhibit D: Order Dismissing Case with Prejudice, filed November 2, 2017 in Guytan I;

Exhibit E: Complaint and exhibits filed March 27, 2019 in Anthony Guytan v. Swift Transportation Co. of Arizona, LLC et. al., No. 19STCVI0479 (Los Angeles Sup. Ct.) (“Guytan II”); and

Exhibit F: Deposition of Anthony Guytan in Guytan I, dated September 7, 2017;

The request for judicial notice is GRANTED with respect to Exhibits A, C, and D. The existence and legal effect of these documents are judicially noticeable; reasonably disputable assertions of fact contained therein are not. (Evid. Code, § 452, subds. (d).) The court does not need to take judicial notice of the complaint that is the subject of this demurrer.

Discussion
I. LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747 (Hahn).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 (Doe).) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 (Poizner).) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
II. ANALYSIS

Swift Transportation demurs to each cause of action in the operative complaint on the grounds that Plaintiff released his right to enforce the causes of action against Swift Transportation pursuant to a Release and Settlement Agreement entered into on October 10, 2017 and that the causes of action are barred under the doctrine of Res Judicata. (Dem. at p. 2.)

The Release and Settlement Agreement that Swift Transportation’s argument relies upon is attached as Exhibit B to the Declaration of Kimberly Dennis. Exhibit B to the Declaration of Kimberly Dennis is a document titled Confidential Settlement Agreement that appears to be executed by Plaintiff Anthony Guytan and Swift Transportation. (See Dennis Decl. Exhibit B.) The Dennis Declaration attests that she obtained the document after it was collected from the “docket” in the prior federal action. Exhibit B does not bear any indication that it was filed with the court in that action. Plaintiff argues, without admissible evidentiary support, that the document was not filed. There is no proper authentication of the documents.

Nevertheless, even if it were authenticated, it does not support the demurrer. The terms of the document include a section titled Guytan’s General Release of Claim, which, in relevant part, states:

Upon Guytan signing this Agreement, Guytan . . . release[s] and forever discharge[s] [Swift Transportation] and its constituents . . . from any and all liabilities . . . and legal responsibilities arising in law, equity or otherwise . . . whether known or unknown . . . which any of the Releasing Parties now own or hold, or have at any time heretofore owned or held or may at any time own or hold by reason of any matter or thing arising from any cause whatsoever prior to the date of execution of this Agreement . . .

(Dennis Decl. Exhibit B § 2.)

Swift Transportation argues that this Release and Settlement Agreement encompasses Plaintiff’s causes of action in this case because each cause of action is based on the allegation that U.S. 1 Logistics fired him when it learned of the reasons for Plaintiff’s termination from Swift Transportation on March 11, 2016. (Dem. at pp. 8-9.) Swift Transportation argues that because it is undisputed that Plaintiff’s termination from Swift Transportation on March 11, 2016 occurred prior to his execution of the Release and Settlement Agreement on October 10, 2017, the broad scope of the Release and Settlement Agreement bars Plaintiff’s claims. (Ibid.) In addition, Swift Transportation further argues that “[e]ven if the Release and Settlement Agreement does not release the current claims (which, as a matter of law, it does), Plaintiffs claims are barred by the doctrine of res judicata which precludes re-litigation of issues previously litigated in Guytan I and precludes litigation of those issues which could have been brought in Guytan I action.” (Id. at p. 10.)

Here, the Complaint alleges that:

In December 2018, Plaintiff was hired by US 1 Logistics (“US 1 Logistics”). When US 1 Logistics checked Plaintiffs job references, it was furnished with false information that Plaintiff had refused to take a legitimate drug test while employed by Swift Transportation. [Swift Transportation] falsely and with retaliatory motive and intent to injury Plaintiff and interfere with his livelihood, informed US 1 Logistics that Plaintiff refused a legitimate drug test. As a result of Swift Transportation’s false report against Plaintiff, US 1 Logistics fired Plaintiff.

(Compl. ¶ 15 (emphasis added).) This allegation establishes that the basis for Plaintiff’s causes of action are not his refusal to take a legitimate drug test in March 11, 2016, as Swift Transportation contends. Rather, Plaintiff’s causes of action are premised upon the allegation that Swift Transportation made false report to US 1 Logistics about Plaintiff’s refusal, which caused Plaintiff to be fired by US 1 Logistics. The issue raised by Swift Transportations demurrer therefore is whether the Release and Settlement Agreement and the doctrine of Res Judicata bar claims arising out of Swift Transportation’s allegedly false report about Plaintiff to US 1 Logistics.

Here, the Release and Settlement Agreement that Swift Transportation relies upon for this demurrer limits the scope of the General Release of Claims to that Plaintiff holds against Swift Transportation “by reason any matter or thing arising from any cause whatsoever prior to the date of execution of this Agreement.” (Dennis Decl. Exhibit B § 2 (emphasis added).) Accordingly, the Release and Settlement Agreement can only bar Plaintiff’s causes of action if the false report by Swift Transportation that caused Plaintiff to be fired was made prior to the execution of the agreement on October 9, 2019. Further, Defendant’s reply memo quotes from Villacres v. ABM Indus. Inc. (2010) 189 Cal.App.4th 562, 584 as follows: “any and all claims that were or could have been asserted by [the plaintiff] in the [present lawsuit] constitute a waiver of . . . all ‘claims based on events occurring prior to the date of the release.’” (Rep. p. 5 (emphasis added).)

The Complaint alleges that Plaintiff was hired by US 1 Logistics in December 2018 and that Plaintiff was fired some time thereafter. The allegation that Swift Transportation made false reports about Plaintiff to US 1 Logistics in 2018 is an event that occurred after the settlement. It is not a claim that was unknown at the time of the settlement, which would have been released, but a claim that had not yet happened. Thus, by its terms, the settlement agreement does not release such claims.

Accordingly, based on the foregoing, the demurrer to the complaint is OVERRULED. Counsel for the moving party to give notice.