Case Name:   Sunkett v. Olam Americas, Inc., et al.

Case No.:       1-14-CV-262125

After full consideration of the arguments and the authorities submitted by each party, the court makes the following rulings:

Defendant Olam Americas, Inc. d.b.a. Olam Spices and Vegetables (“Defendant”) demurs to the first amended complaint (“FAC”) on the ground of failure to allege sufficient facts to constitute a cause of action, and moves to strike portions of the FAC.  (See Code Civ. Proc. [“CCP”], §§ 430.10, subd. (e) & 435-436.)  Defendants also bring a request for judicial notice in support of its demurrer and motion to strike.

Defendant’s request for judicial notice of the FAC and of the Equal Employment Opportunity Commission’s (“EEOC”) charge of discrimination by plaintiff Kevin L. Sunkett (“Plaintiff”) against Defendant is GRANTED.  (See Evid. Code, § 452, subds. (c)-(d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].)  That being said, the Court does not take judicial notice of the truth of the contents of the EEOC charge of discrimination because the truth of such facts is reasonably subject to dispute.  (See C.R. v. Tenet Healthcare Corp. (2009) 169 Cal. App. 4th 1094, 1103-1104.)

This is a wrongful termination action.  In the FAC, Plaintiff alleges that he worked for Defendant in 2013, and further alleges that he was charged with a crime on June 18, 2013.  (FAC, ¶¶ 3 & 6.)  Plaintiff alleges, on information and belief, that Defendant learned he had been charged with a crime sometime before June 28, 2013, and on June 28, 2013, Defendant terminated him because he had been charged with a crime.  (Id., ¶¶ 7-8.)  Plaintiff asserts a cause of action for wrongful termination in violation of Labor Code section 432.7.

Labor Code section 432.7 only applies to situations where an employer asks an applicant for employment for information regarding an arrest or detention that did not result in a conviction.  (Labor Code, § 432.7, subd. (a).)  It is unclear whether this provision would also apply to a situation where an employer allegedly learned that an employee was charged with a crime, and terminated him for that reason.  It is also unclear whether Labor Code section 432.7 gives rise to a public policy that could support a wrongful termination claim.  Nevertheless, in support of its demurrer, Defendant only raises the arguments set forth in detail below.

Defendant contends that Plaintiff fails to allege sufficient facts because the allegation that Defendant learned of Plaintiff’s criminal charge is based on information and belief, but Plaintiff does not specifically allege how he acquired the information or formed the belief upon which the allegation is based.  Defendant cites Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, footnote 5 (“Doe”) for the proposition that a plaintiff must allege facts showing the information or belief at issue.  In Doe, the Supreme Court held that the words “knew or had reason to know,” as used in CCP section 340.1, subdivision (b)(2) (authorizing a victim of sexual abuse over age 26 to assert claims against a defendant who was not a perpetrator so long as the defendant “knew or had reason to know” that the perpetrator had engaged in past unlawful sexual conduct with a minor) means actual knowledge or constructive knowledge as measured by the reason to know standard.  (Doe, supra, at p. 552.)  The reasoning set forth in Doe does not apply to allegations based on information and belief in general, and thus, Defendant’s reliance on Doe is misplaced.

Next, Defendant insists that since Plaintiff’s EEOC charge does not state that Defendant informed Plaintiff that it was terminating him because of his criminal charge, it follows that Plaintiff’s allegation based on information and belief should be disregarded.  As discussed above, the truth of the contents of the EEOC charge of discrimination is not subject to judicial notice.  (See Hall v. Great Western Bank (1991) 231 Cal.App.3d 713, 719, fn.7 [“[a] court will not consider facts which have not been alleged in the complaint unless they may be reasonably inferred from the matters which have been pled or are proper subjects of judicial notice”].)  Moreover, contrary to Defendant’s argument, an allegation based on information and belief is accepted as true on demurrer.  (Wuest v. Wuest (1942) 53 Cal.App.2d 339, 344.)  Accordingly, Defendant’s argument lacks merit.

Lastly, Defendant argues that its demurrer should be sustained because Plaintiff does not allege sufficient facts in support of his punitive damages claim.  This argument is not well-taken, as a motion to strike, not a demurrer, is the procedure to challenge an improper remedy.  (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562.)

In light of the foregoing, Defendant’s demurrer to the FAC is OVERRULED.

Defendant moves to strike the portions of the FAC related to Plaintiff’s punitive damages claim.[1]  Defendant also moves to strike paragraph 14 of the FAC (stating that “Plaintiff is entitled to recover statutory damages and attorney’s fees”) and paragraphs 4 and 5 from the prayer for relief in the FAC.

With respect to paragraph 14 in the FAC and paragraphs 4 and 5 in the prayer for relief, Plaintiff does not oppose the motion to strike the language pertaining to attorney’s fees and statutory penalties, but opposes the motion to the extent Defendant moves to strike the words “costs of suit” from paragraph 5 of the prayer for relief.  In its reply papers, Defendant withdraws its motion to the extent it pertains to the words “costs of suit” in paragraph 5 of the prayer for relief.  Therefore, Defendant’s motion to strike is GRANTED WITHOUT LEAVE TO AMEND as to paragraph 14 in the FAC, paragraph 4 in the prayer for relief, and the words “reasonable attorney’s fees” from paragraph 5 of the prayer for relief.  The motion to strike is DENIED as to the words “costs of suit” in paragraph 5 of the prayer for relief.

Turning to the punitive damages claim, “[a] notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.”  (Cal. Rules of Court, rule 3.1322(a).)  Defendant does not specify, either in the notice of motion or elsewhere in its moving or reply papers, what portions of the complaint pertaining to the punitive damages claim it seeks to have stricken.  Since Defendant’s motion to the extent it seeks to strike portions of the complaint pertaining to the punitive damages allegations does not comply with the Rules, it is DENIED.

The Court will prepare the order.