2013-00142210-CU-WT

Joanna Smith vs. JMK Investments Inc

Nature of Proceeding:     Hearing on Demurrer to First Amended Complaint

Filed By:   Kapson, Michaelene H.

Defendant JMK Investments, Inc.’s (“JMK”) demurrer to the First Amended Complaint
(“1AC”) is SUSTAINED without leave to amend, as follows.

Moving counsel is admonished because the notice of demurrer does not provide notice
of the Court’s tentative ruling system, as required by Local Rule 1.06, and does not
provide the correct address for Dept. 54.  Moving counsel is directed to contact
opposing counsel and advise him/her of Local Rule 1.06 and the Court’s tentative
ruling procedure and the manner to request a hearing.  If moving counsel is unable
to contact opposing counsel prior to hearing, moving counsel is ordered to
appear at the hearing in person or by telephone.

Both moving and opposing counsel are admonished for failing to comply with CRC
Rule 3.1110(b)(3)-(4).

This action arises out of plaintiffs’ employment with defendant JMK.  Plaintiffs are
married and it is alleged that after husband filed a worker compensation claim and
went on disability leave, his wife was terminated.  The 1AC now purports to allege
causes of action (“COA”) for retaliation, wrongful termination, wage and hour
violations, and violation of Business and Professions Code §17200.

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1   COA for Retaliation.  Defendant JMK now demurs to the husband’s COA for
retaliation because there is no allegation he suffered any adverse employment action
and is still employed by JMK.  In opposition, plaintiffs cite the United States Supreme
Court’s decision of Thompson v. North American Stainless, LP (2011) 131 S.Ct. 863.

Plaintiffs’ reliance on this precedent is misplaced because in Thompson, the plaintiff
asserting the retaliation claim was the one whose employment was actually terminated
allegedly as a result of his fiancé’s filing a discrimination claim with the EEOC.  In the
present case, the only plaintiff asserting a retaliation claim is Mr. Smith and he himself
was not terminated and there is no allegation of any other adverse employment action
against him.  Accordingly, the demurrer to the retaliation COA is sustained.

2nd COA for Wrongful Termination.  Defendant JMK also demurs to the wife’s COA
for wrongful termination in violation of public policy on the grounds that the 1AC fails to
identify any established “fundamental” public policy which protects Ms. Smith, as
opposed to her husband, from termination under the facts alleged.  Instead, the 2nd
COA relies solely on a purported public policy protecting from termination those
workers who file worker compensation claims and/or exercise their rights for disability
leave even though Ms. Smith herself never engaged in such protected activities.
In opposition, plaintiffs again cite the 2011 Thompson decision for the proposition that
the “zone of interest” test utilized by the United States Supreme Court applies to the
present case and establishes that Ms. Smith may pursue the 2nd COA because she
falls within the “zone of interest” protected by public policy favoring her husband’s filing
a worker compensation claim and taking disability leave.

The Court again finds plaintiffs’ reliance on  Thompson to be unavailing because there,
the nation’s High Court explained that the “zone of interest” test which was applied
was based on the provisions of Title VII of the Civil Rights Act at 42 U.S.C. §2000 et
seq. (Thompson, at 866, 870.)  However, there is in the present case no claim brought
under Title VII or other analogous federal statute and thus, the “zone of interest” test
remains inapplicable.  Additionally, while the Court notes that decisions relating to Title
VII are considered persuasive authority providing guidance for the application of
California’s Fair Employment and Housing Act (“FEHA”), the 2nd COA at issue here is
not a statutory claim under FEHA but is simply a common law claim which was
developed before FEHA was enacted by the legislature in 1980.  Consequently, the
analysis in Thompson does not advance plaintiffs’ argument here and the demurrer to
the 2nd COA is sustained as well.

Because plaintiffs have failed to demonstrate how the foregoing deficiencies could be
cured and because this Court concludes that plaintiffs do not have a reasonable
probability of curing these defects, leave to amend is denied.

If not already done, defendant JMK to file and serve an answer to complaint within 15
days.

This minute order is effective immediately.  No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)