Case Name: Linda Cambareri v. Apple, Inc.

Case No.: 18CV333345

I. Background

This is a dispute between Plaintiff Linda Cambareri (“Plaintiff”) and Defendants Apple, Inc. (“Apple”) and Filemaker, Inc., Plaintiff’s alleged former employers, stemming from allegations that Plaintiff was subjected to discrimination (on the basis of sex and/or age) and retaliation in the workplace before being terminated.

Plaintiff’s original complaint was filed on August 15, 2018 stating claims for (1) discrimination in violation of FEHA, (2) retaliation in violation of FEHA, and (3) unpaid wages. There were no allegations of harassment or wrongful termination in violation of FEHA stated in the original complaint. The operative first amended complaint (“FAC”) was filed on October 16, 2019 and states claims for (1) Discrimination and Harassment (with the harassment allegation added for the first time in October 2019) in violation of FEHA; (2) retaliation in violation of FEHA; (3) unpaid wages, and; (4) wrongful termination (also newly added in October 2019). Plaintiff alleges that her employment ended in October 2015. (See original complaint at ¶6-7; FAC at ¶10-11.) The FAC alleges that Plaintiff complied with all administrative exhaustion requirements by filing a complaint with the California DFEH on October 4, 2016, and that she received a right to sue letter from the DFEH “[o]n or about October 5, 2017.” (See FAC at ¶¶48-49.) The FAC also represents that a copy of the letter is attached as an exhibit, but there are no exhibits to the copy of the FAC on file with the Court. A copy of a right to sue letter from the DFEH is attached as exhibit 1 to the original complaint. That letter is dated September 25, 2017 and states in pertinent part that any civil action alleging a FEHA violation “must be filed within one year from the date of this letter.”

Before the Court is the demurrer to the FAC brought by Defendants Apple and Claris International, Inc. (“Defendants”).

II. Demurrer

As an initial matter Plaintiff’s “objection” to Defendants’ demurrer is without statutory basis and is disregarded. Plaintiff’s motion to strike the demurrer papers (which is not accompanied by a meet and confer declaration as required by CCP §435.5) is DENIED. The Court finds that the demurrer papers adequately comply with Rules of Court 3.1112, 3.1113 and 3.1320(a). The Court also finds that the demurrer adequately complies with CCP §430.60.

To the extent Plaintiff also argues that the demurrer should be struck simply because the demurrer papers were not served electronically as required by Local General Rule 6, the Court declines to do so. The demurrer papers were timely filed and served (by mail) on November 20, 2019. Plaintiff has not established (or even argued) that service in this manner prejudiced her ability to oppose the demurrer and it appears that Plaintiff’s counsel did not raise this issue with Defense Counsel at any point between November 20, 2019 and the filing of Plaintiff’s opposition papers. The Court notes that Plaintiff was able to timely file papers opposing the demurrer on February 19, 2020. The Court further notes that Plaintiff’s opposition to the demurrer exceeds the page limits set forth in Rule of Court 3.1113(d). The Court has exercised its discretion to consider the entire opposition despite this failure, rather than disregard it in the same manner as a late-filed document.

In ruling on a demurrer the Court treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) Where a demurrer is to an amended complaint, the Court “may consider the factual allegations of prior complaints, which a plaintiff may not discard or avoid by making contradictory averments, in a superseding, amended pleading.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 (internal quotations omitted.)

Allegations are not accepted as true on demurrer if they contradict facts judicially noticed. (See Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1474 [rejecting allegation contradicted by judicially noticed facts]; Witkin, California Evidence (4th Ed., 2000) 1 Judicial Notice §3(3) [“It has long been established in California that allegations in a pleading contrary to judicially noticed facts will be ineffectual; i.e., judicial notice operates against the pleader.”]) In ruling on a demurrer the Court may not consider extrinsic evidence. (See Smiley v. Citibank (South Dakota) N.A. (1995) 11 Cal.4th 138, 146 [“[T]he trial court generally confines itself to the complaint and accepts as true all material facts alleged therein… [and] may extend its consideration to matters that are subject to judicial notice.”]) Accordingly, except to the extent it describes Defendants’ required meet and confer efforts, the Court has not considered the declaration from Defense Counsel Michael Leggieri.

A. Request for Judicial Notice in Support of Demurrer

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evidence Code §450.) A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.) Defendants have submitted a request for judicial notice of six documents in support of their demurrer, attached as exhibits A through F to the request. Plaintiff’s “objection” to the request is without statutory basis and is disregarded. The Court simply considers the request for judicial notice to be opposed by Plaintiff. Defendants’ request is GRANTED in part and DENIED in part as follows.

Exhibits A, B and C to Defendants’ request are copies of documents filed by Apple and Claris International with the California Secretary of State. Defendants assert that these documents are noticeable under Evidence Code §452(c) and (h).

Notice of exhibits A-C under Evidence Code §452 (c) (official acts) is DENIED as information supplied by private parties to public agencies does not constitute official acts of those agencies. (See Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 607-608 [applications and supporting documents filed by private parties with Department of Insurance were not official acts of department subject to judicial notice]; People v. Thacker (1985) 175 Cal.App.3d 594, 598-599 [copies of articles of incorporation, statement by domestic corporation, and notice of issuance of shares were materials prepared by private person, merely on file with state agencies, and not official acts].)

Notice of exhibits A-C under Evidence Code §452(h) is also DENIED as it has no application to these documents. (See Gould v. Md. Sound Indus. (1995) 31 Cal.App.4th 1137, 1145 [“Judicial notice under Evidence Code section 452, subdivision (h) is intended to cover facts which are not reasonably subject to dispute and are easily verified. These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.”])

Exhibit D is a copy of Plaintiff’s responses to Defendant Filemaker’s request for admissions (“RFAs”), set 1. “The court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court. The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605, emphasis added.)

Defendants contend that a single one of Plaintiff’s responses (to RFA no. 2) should be noticed because it contradicts the allegations in ¶5 of the FAC. (See Defs.’ memorandum of points and authorities in support of demurrer at p. 11:3-23) This contention is incorrect and notice of exhibit D is therefore DENIED. Paragraph 5 of the FAC alleges in pertinent part: “Plaintiff claims that Apple was her employer after Plaintiff was first employed by Defendant FileMaker on or about December 4, 2006. After Apple acquired FileMaker and during the relevant times when the wrongful conduct occurred, Apple has done business under the fictitious business name ‘FileMaker. Plaintiff recalls receiving pay stubs and other documents showing that Apple was her employer on them. Plaintiff and other employees were told and believed they were Apple employees. They received their benefits from Apple, their Stock ESPP from Apple, and their discounts. Plaintiff’s badge worked at Apple HQ. Plaintiff received documents regarding Cobra showing Apple, Inc. as her employer.” The factual allegations in ¶5 are accepted as true on demurrer and Plaintiff’s ability to prove them is not a relevant consideration.

Defendants in their papers mischaracterize the response to RFA no. 2 (asking Plaintiff to admit that her paystubs “from December 4, 2006 through October 23, 2015, listed Filemaker as your employer”) as stating an inability to recall and referring to documents, claiming that Plaintiff “admits she cannot remember what entity was on her pay stubs, and she has no basis other than speculation to assert that it was Apple.” (Defs.’ Memo. at p. 11:12-13.) Plaintiff’s response to RFA no. 2 actually states the following: “I am unable to admit or deny this because I do not have the pay stubs, I recall that I had pay stubs showing Apple on them. We were Apple employees. We received our benefits from Apple, our Stock ESPP from Apple and our discounts. My badge worked at Apple HQ. I have some documents regarding Cobra with Apple, Inc. as the employer. Thus, without the paystubs themselves, I deny this request.” The response is not inconsistent with ¶5 of the FAC nor does the allegation that Apple was Plaintiff’s employer rest solely on an allegation regarding paystubs.

Exhibit E consists of over 70 pages of extrinsic evidence, redacted copies of what Defendants represent are copies of Plaintiff’s paystubs from “Filemaker, Inc.” Defendants claim judicial notice can be taken of this material on the basis that it is incorporated into the FAC by reference because ¶5 of the FAC references paystubs and because they assert the material contradicts Plaintiff’s responses to RFA no. 2.

Judicial Notice of this extrinsic material is DENIED. The FAC’s allegation that both Filemaker and Apple were Plaintiff’s employers is accepted as true on demurrer and, as explained above, the allegation that Apple was one of Plaintiff’s employers does not rest solely on an allegation regarding paystubs. Therefore the Court will not take judicial notice of material that not only is extrinsic evidence but also extrinsic evidence that has been altered (redacted) by Defendants. A demurrer cannot be turned into an evidentiary hearing through attempts to have the Court take judicial notice of contents of documents. “For a court to take judicial notice of the meaning of a document submitted by a demurring party based on the document alone, without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document, would be improper. A court ruling on a demurrer therefore cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer. In short, a court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114-115, internal citations omitted.)

Exhibit F is a copy of Plaintiff’s “Complaint of Employment Discrimination” filed with the DFEH. No filing date is evident on the document but the certification by Plaintiff’s counsel on Plaintiff’s behalf is dated October 18, 2016. Defendants request judicial notice of this document under Evidence Code §452(d).

Notice of Exhibit F is GRANTED. While the Court in taking judicial notice of the document does not assume the truth of its contents, it does take notice of what was and was not stated within it. The DFEH complaint clearly asserts discrimination on the basis of gender and age. It also implies, but does not assert as a separate violation, that Plaintiff was terminated in retaliation for complaining of actions she perceived as motivated by gender and age discrimination, which would be a wrongful termination. The DFEH complaint does not allege that Plaintiff suffered any harassment on the basis of gender or age.

Defendants’ “supplemental” request for judicial notice submitted with their reply is DENIED. The document submitted as Exhibit G (potentially noticeable under §452(d) only) is not relevant to the material issue before the Court (whether Plaintiff’s FEHA claims are time-barred) as it is dated February 12, 2018 and in any event it could not be noticed as to the truth of its contents under §452(d) as it is neither a court order nor a judgment.

B. Analysis of Demurrer

Defendants’ demur to the FAC on the following grounds. First, Defendants assert that the entire FAC fails to state sufficient facts as to Apple because Plaintiff has “failed to plead facts to show that Apple was her employer, which is an essential element for all her causes of action.” (Notice of Demurrer and Demurrer at p. 2:10-12.). Second, Defendants assert that the newly added harassment claim is barred by Plaintiff’s failure to exhaust administrative remedies, is time-barred, and otherwise fails to state sufficient facts. (See Notice of Demurrer and Demurrer at pp. 2:18-3:22.) Third, Defendants argue that the FAC’s newly added fourth cause of action for FEHA wrongful termination is time-barred. (See Notice of Demurrer and Demurrer at pp. 3:23-4:3.)

i. Demurrer to entire FAC:

Apple’s demurrer to the entire FAC on the basis that Plaintiff has failed to plead facts to show that Apple was her employer is OVERRULED. A demurrer to an entire pleading can be sustained only if no cause of action states facts sufficient to entitle plaintiffs to relief on any theory. (See Warren v. Atchison, Topeka & Santa Fe Ry. (1971) 19 Cal.App.3d 24, 29 [trial court’s sustention of demurrer to entire pleading reversed on ground that cause of action was stated].) This ground for demurrer depends upon extrinsic evidence that the Court declines to take judicial notice of and is otherwise based on the erroneous argument that ¶5 of the FAC must be disregarded as contradicted by Plaintiff’s discovery responses. As discussed above, ¶5 is not contradicted by the only cited discovery response and the allegation that Apple was an employer of Plaintiff is accepted as true on demurrer and is not based solely on allegations regarding paystubs.

ii. Demurrer to FEHA harassment and wrongful termination claims

FEHA claims are governed by two statutory deadlines. (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1411 [“Acuna”].) First, the employee must exhaust statutory administrative remedies by filing a complaint with the DFEH within one year of “the date upon which the alleged unlawful practice or refusal to cooperate occurred,” e.g. the date of the employee’s termination. (Gov. Code § 12960(d); Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492-493; Acuna, supra, at p. 1412.) Second, the civil action based on the claims asserted in the DFEH complaint must be commenced within one year of the date of the DFEH’s notice of the right to sue. (Gov. Code, § 12965(d); Acuna, supra, at p. 1413.) Defendants generally do not dispute that Plaintiff complied with the first deadline, as she filed a complaint with the DFEH on October 18, 2016, within one year of the end of her employment. They do argue that claims not included in the DFEH complaint or the original Complaint in this civil action are clearly time-barred.

Harassment (1st cause of action): Defendants’ demurrer to the harassment claim on the basis that it fails to state sufficient facts and is time-barred is SUSTAINED as follows.

A claim for harassment in violation of FEHA is a separate and distinct cause of action from a claim for employment discrimination in violation of FEHA and must be pled as such. Accordingly the Court will treat the harassment allegations added to the first cause of action for the first time in the FAC as a separate claim for purposes of this demurrer. FEHA prohibits harassment “because of” sex in the workplace, which is defined to include “sexual harassment” and “gender harassment.” (Gov. Code, § 12940, subd. (j)(1) & (4)(C).) Such a claim may be based on either “quid pro quo harassment” or “hostile work environment.” (Singleton v. U.S. Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557.) Quid pro quo requires a showing that a term of employment is “conditioned upon submission to unwelcome sexual advances.” (Id.) Plaintiff did not allege that any sexual advances were made to her in the initial complaint and has not added such allegations to the FAC. Thus, she has not stated a claim for quid pro quo harassment.

The elements of a claim for sexual harassment in violation of FEHA based on hostile work environment are “(1) plaintiff belongs to a protected group; (2) plaintiff was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive 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 Cal.App.3d 590, 608.) There are no such allegations in the FAC and therefore Plaintiff has also not stated a claim for hostile work place sexual harassment. The FAC also does not include any allegations that Plaintiff was harassed on the basis of her age.

Simply alleging that “Plaintiff was discriminated and harassed in violation of FEHA because [of] age and/or sex or gender because she suffered adverse employment actions in which age and/or gender were motivating factors in the decisions made as alleged above,” (FAC at ¶52) fails to state a claim for harassment in violation of FEHA. California law is clear that generally, personnel actions- like promotional and salary decisions- cannot form the basis of a harassment claim. As the Supreme Court explained in Reno v. Baird (1998) 18 Cal.4th 640, 646-647: “[C]ommonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These actions are of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personal management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.”

As Plaintiff’s October 18, 2016 complaint with the DFEH did not include any allegations of harassment as defined under the FEHA, and the allegations were added for the first time in the FAC filed October 16, 2019 the claim is also clearly time-barred and there can be no argument that equitable tolling applies to a FEHA claim not included in the DFEH complaint. Therefore leave to amend is appropriately DENIED as futile and the demurrer to the 1st cause of action for harassment is SUSTAINED WITHOUT LEAVE TO AMEND.

Wrongful Termination (4th cause of action): Defendants’ demurrer to this claim on the basis that it is time-barred because it was first alleged in the October 16, 2019 FAC is SUSTAINED.

Generally, a wrongful termination claim is governed by the two-year limitations period provided by CCP §335.1. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1205-1206 [applying the limitations period proscribed by former CCP section 340(3) to a claim for wrongful termination]; Stats. 2002, ch. 448, §§ 2-3 [amending CCP §340 and adding CCP §335.1 to extend the limitations period to two years]; CCP §335.1.) That being said, the wrongful termination claim alleged in the FAC is expressly based on FEHA. (See FAC at ¶¶64-65.) When a wrongful termination claim is based on a statutory prohibition, the limitations applicable to the statute apply to the common law wrongful termination claim. (Acuna, supra, at p. 1420.)

Under either statute the claim is time-barred. If not construed as a FEHA violation claim, the two year limitations period ended by the end of October 2017 as Plaintiff alleges her employment ended in October 2015. (See original complaint at ¶6-7; FAC at ¶10-11.) If not construed as a FEHA-based claim the running of the limitations period would not be tolled while Plaintiff awaited her right-to-sue letter as nothing prevented her from filing a civil action immediately upon the termination of her employment. (See Wassmann v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 853 [“The statute of limitations on common law claims is not tolled while DFEH charges are pending because the aggrieved employee can simultaneously pursue statutory and common law remedies. An aggrieved employee may proceed directly to court on common law claims without receiving a right to sue notice from the DFEH.”])

If treated as a FEHA-based claim (which the Court finds is clearly the more reasonable interpretation as that is what the FAC expressly alleges), the claim became time-barred after September 25, 2018 (one year after the right-to-sue letter) given that no claim for wrongful termination was alleged in the original complaint filed August 15, 2018.

Plaintiff’s argument in the opposition to the demurrer that the wrongful termination claim is saved from either statute of limitation by the doctrine of equitable tolling is unpersuasive. Equitable tolling applies “occasionally and in special situations” “to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.” (Addison v. State of California (1978) 21 Cal.3d 313, 319.) “Broadly speaking, the doctrine of equitable tolling applies when an injured person has several remedies and reasonably and in good faith pursues one.” (McDonald v. Antelope Valley Community College (2008) 45 Cal.4th 88, 100, internal quotations omitted.) Equitable tolling requires a showing of three elements: (1) timely notice to the defendant; (2) lack of prejudice to the defendant; and (3) reasonable and good faith conduct on the part of the plaintiff. (Id. at p. 102.) Even if Plaintiff’s DFEH complaint could be reasonably construed as putting Defendants on notice that Plaintiff considered her termination to be wrongful as an act of retaliation in violation of the FEHA, Plaintiff’s decision to not include a wrongful termination claim in her original complaint was not reasonable and Defendants will arguably suffer prejudice in facing such a claim for the first time four years after Plaintiff’s employment ended. More importantly, application of equitable tolling here is not an appropriate use of the doctrine. “The doctrine ‘focuses primarily on the plaintiff’s excusable ignorance of the limitations period. [It] is not available to avoid the consequences of one’s own negligence.’” [Footnote. Citation.] (Sagehorn v. Engle (2006) 141 Cal.App.4th 452, 460 [internal citation omitted].)

As the wrongful termination claim is clearly time-barred leave to amend is appropriately DENIED as futile and the demurrer to the 4th cause of action for wrongful termination is SUSTAINED WITHOUT LEAVE TO AMEND.

Case Name: Linda Cambareri v. Apple, Inc.

I. Background

This is a dispute between Plaintiff Linda Cambareri (“Plaintiff”) and Defendants Apple, Inc. (“Apple”) and Filemaker, Inc., Plaintiff’s alleged former employers, stemming from allegations that Plaintiff was subjected to discrimination (on the basis of sex and/or age) and retaliation in the workplace before being terminated.

Before the Court is the motion to strike portions of the FAC brought by Defendants Apple and Claris International, Inc. (“Defendants”).

II. Motion to Strike Portions of the FAC

Under CCP §436 a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (CCP §437(a).) As with a demurrer, a court does not consider extrinsic evidence in ruling on a motion to strike. In ruling on a motion to strike, the court reads the complaint as a whole, all parts in their context, and assumes the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255 [“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”]; see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683 [noting that while motions can be brought to strike only part of a claim or certain allegations, “we have no intention of creating a procedural ‘line item veto’ for the civil defendant.”])

A. Request for Judicial Notice in Support of Motion

In support of their motion Defendants have submitted a request for judicial notice of four documents, exhibits A-D to the request. Exhibit A is another copy of the document submitted as exhibit A to the request for judicial notice, and Defendants again claim that the document can be noticed under Evidence Code §§452(c) and (h). Notice of this document is again DENIED for the reasons stated above in the discussion of the demurrer.

Exhibit B is another copy of the document submitted as exhibit D to the request for judicial notice in support of the demurrer, Plaintiff’s responses to RFAs, that Defendants assert can be noticed as contradicting allegations in the FAC. This time Defendants assert that Plaintiff’s response to RFA no. 19 contradicts an allegation made in ¶24 of the FAC. The targeted allegation is made on information and belief and it repeats verbatim an allegation made on information and belief in ¶20 of the original complaint. “Information and belief is a common legal term used to indicate that the allegation is not based on firsthand knowledge of the person making the allegations, but that person nevertheless, in good faith, believes the allegation to be true.” (Magnolia Square Homeowners Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1057 [internal quotation marks omitted].) As the targeted allegation is only made on information and belief and repeats (as Defendants are likely aware) an allegation from the original complaint it is not contradicted by a discovery response providing different information and the request to take notice of Plaintiff’s response to RFA no. 19 is not appropriate and is therefore DENIED.

Exhibits C and D are copies of excerpts from “blog posts” purportedly dated September 14, 2016, which Defendants assert may be noticed under Evidence Code §452(h). Section 452(h) has no application to this material and the request is DENIED.

B. Analysis of Motion to Strike Portions of FAC

Defendants’ motion to strike portions of the FAC is based on three arguments, all of which are dependent upon their unsuccessful request for judicial notice for support. First Defendants seek to strike essentially all mentions of “Apple,” “Apple, Inc.,” etc. from the FAC. (See Notice of Motion at pp. 2:11-3:13 generally.) This is premised on the notion that Court will sustain Apple’s demurrer to the entire FAC on the basis that Plaintiff cannot allege that Apple was one of her employers. “Once the Court dismisses Apple as a named defendant, it should also strike all references to Apple because references to Apple are not essential to the statement of a claim against Filemaker, [Plaintiff’s] former employer.” (Defendants’ memo. of points and authorities in support of the motion at p. 6:21-23, brackets added.) As Defendants have not established this and the demurrer on that ground was overruled, the motion to strike portions of the FAC on this basis is DENIED.

Second, Defendants seek to strike ¶¶35 and 37-44 in their entirety on the basis that they are irrelevant because they “are clearly lifted from a September 14, 2016 blog post on the website mic.com.” (Memo. of points and authorities at p. 7:15-16.) As the request for judicial notice of this “blog post” material has been denied the motion to strike ¶¶35 and 37-44 in their entirety is DENIED.

Third, Defendants seek to strike ¶24 in its entirety “because it is knowingly unsupported (and false).” (Memo. of points and authorities at p. 9:14.) As noted above, an allegation made on information and belief (and first made in August 2018 in the original complaint) is not contradicted by a different discovery response and the request for judicial notice of the response has been denied, leaving the argument unsupported. The motion to strike ¶24 is therefore DENIED. (See PH II, Inc., supra, at p. 1683 [“[W]e have no intention of creating a procedural ‘line item veto’ for the civil defendant.”])