2013-00140132-CU-OE

Holly Danna vs. Nextmed

Nature of Proceeding:   Hearing on Demurrer to First Amended Complaint

Filed By:  Sommerfeld, Amanda C.

The demurrer of Defendants NME3, LLC, NM Golden State Services, LLC and Todd
Pierce (collectively “Defendants”) to Plaintiff Holly Danna’s (“Danna”) first amended
complaint (“FAC”) is SUSTAINED with and without leave to amend as follows:

This case presents an employment dispute, including allegations of sexual harassment
and wrongful termination.  The FAC contains six causes of action for FEHA violations,
wrongful termination in violation of public policy, violation of the Unruh Civil Rights Act,
defamation and breach of the implied covenant of good faith and fair dealing.
Defendants now demur to the entire FAC on grounds that the allegations fail to state
facts sufficient to state a valid cause of action.

In her Opposition, Danna makes some concessions.  First, she concedes that the
Third Cause of Action of Violation of the Unruh Act is not viable.  Accordingly, the
demurrer to that cause of action is SUSTAINED without leave to amend.

Danna also concedes that the FAC misstates the date on which she was allegedly
terminated.  She acknowledges that this error bears upon Defendants’ arguments that
all of the causes of action are barred by statutes of limitations.  However, she asserts
that her correction of the inaccurate date in a prospective second amended complaint
(“SAC”) will remedy the deficiency.

Danna further concedes that some of her allegations are vague.  Especially with
respect to her statutory causes of action, which must be pleaded with specificity, the
court agrees.

Finally, Danna concedes that she must fortify her allegations that she exhausted
administrative remedies.

Given Danna’s concessions, the court SUSTAINS Defendants’ demurrers to the first,
second and fourth through sixth causes of action, albeit with leave to amend.  In
granting leave to amend, the court expresses no opinion about the sufficiency of the
proposed SAC attached to the Opposition as an exhibit; provided, however, that
Danna may not add a new cause of action without first filing a motion for leave to
amend in compliance with CRC 3.1324.

In granting leave to amend, the court is aware of Defendants’ arguments that certain
allegations in the proposed SAC do not remedy all the defects in the FAC.  Because
the court does not assume that Danna will file the proposed SAC attached to the              Opposition, and because the court generally grants leave to amend the first time it
rules on a pleading challenge, Defendants’ arguments do not persuade the court to
deny leave to amend any cause of action other than the third cause of action, which
Danna has abandoned.  Danna, however, may wish to consider the arguments in the
Reply before deciding whether she is able in good faith to state all the causes of action
she contemplates for the SAC.

Conclusion

Defendants’ demurrer to the third cause of action is sustained without leave to amend.

The balance of the demurrers are sustained with leave to amend.

No later than July 7, 2014, Danna may file and serve an SAC; Defendants to file and
serve their responsive pleading(s) within 14 days thereafter, 19 days if the SAC is
served by mail.  (Although not required by any statute or rule of court, Danna is
requested to attach a copy of the instant minute order to the SAC to facilitate the filing
of the pleading.)

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.