Case Name: Arthur James Sullivan, Jr. v. RMR Financial, LLC, dba Princeton Capital
Case No.: 1-14-CV-263576
Demurrer and Motion to Strike by Defendant RMR Financial, LLC, dba Princeton Capital, to the First Amended Complaint of Plaintiff Arthur James Sullivan, Jr.
Request for Judicial Notice
Defendant’s request for judicial notice is GRANTED. (See Evid. Code § 452, subd. (d); see also Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1055 [court may take judicial notice that pleadings were filed containing certain allegations and arguments, but may not take judicial notice of the truth of the facts alleged].)
Demurrer and Motion to Strike to the First Amended Complaint
Defendant’s demurrer to the First Amended Complaint (“FAC”) on the ground of uncertainty is OVERRULED. In general, “a demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the moving papers are devoid of any legal arguments to support the demurrer for uncertainty.
With respect to the first cause of action for wrongful termination in violation of public policy, Plaintiff alleges that Defendant terminated Plaintiff in violation of his constitutional right to privacy. (See FAC at ¶¶ 22-25, 32, 34, and 35.)
Defendant notes that the first cause of action in the complaint was based on a violation under Business and Professions Code section 16600. The court previously sustained the demurrer to the first cause of action on the ground that Plaintiff failed to allege facts to support a violation under section 16600. In the FAC, Plaintiff now claims that Defendant violated his right to privacy to support the first cause of action. Defendant argues that Plaintiff amended the pleading to avoid the defects under the original complaint, and that under the rules of sham pleading, the court should disregard Plaintiff’s new factual allegations.
“Under the sham-pleading doctrine, admissions in an original complaint that has been superseded by an amended pleading remain within the court’s cognizance and the alteration of such statements by amendment designed to conceal fundamental vulnerabilities in a plaintiff’s case will not be accepted.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1043, fn. 25.) Alternatively stated, “plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised on demurrers…” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) “If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations.” (Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151.) The sham pleading doctrine is intended to enable courts to prevent an abuse of process. (Deveny, supra, 139 Cal.App.4th at p. 426.)
Here, the essential facts of the first cause of action in the FAC have hardly changed from the initial complaint. Rather, Plaintiff has simply amended his pleading to allege a violation of privacy under the California Constitution instead of Business and Professions Code section 16600. The law is clear that the sham pleading doctrine is inapplicable “to alternative or even inconsistent pleading of the legal effect of the same facts.” (Lim v. The TV Corp. Internat. (2002) 99 Cal.App.4th 684, 690.) Thus, the sham pleading doctrine does not apply under the circumstances presented.
Alternatively, Defendant argues that Plaintiff fails to allege the essential elements of his wrongful termination cause of action. More specifically, Defendant claims that there are no facts to establish a claim for invasion of privacy to support the first cause of action.
To sustain a claim for wrongful discharge in violation of fundamental public policy, the plaintiff must plead and prove that his dismissal violated a policy that is (1) fundamental, (2) beneficial for the public, and (3) embodied in a statute or constitutional provision. (See Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1307.) Thus, “courts in wrongful discharge actions may not declare public policy without a basis in either constitutional or statutory provisions.” (Parada v. City of Colton (1994) 24 Cal.App.4th 356, 363.)
“[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40.)
“The first essential element of a state constitutional cause of action for invasion of privacy is the identification of a specific, legally protected privacy interest…Legally recognized privacy interests are generally of two classes: (1) interest in precluding the dissemination or misuse of sensitive and confidential information (‘information privacy’); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’).” (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 35.)
Here, Plaintiff alleges that Defendant violated his right to privacy by inquiring into his relationship with Renee Morgan, questioning Plaintiff on whether he intended to attend Morgan’s reception, and by sneaking into Morgan’s reception to determine if Plaintiff attended the reception. (See FAC at ¶ 35.) However, according to the FAC, Defendant already had knowledge about Plaintiff’s relationship with Morgan. (Id. at ¶ 23.) Also, the pleading fails to allege facts showing that Defendant made inquiries into his relationship with Morgan. Furthermore, even if Defendant’s attendance at the reception implicated a privacy interest, Plaintiff had no reasonable expectation of privacy since he told Defendant that he intended to attend the event. (Id. at ¶¶ 21-22; see Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 36 [even when a legally cognizable privacy interest is present, advance notice of an impending action may serve to limit an intrusion upon personal dignity and security that would otherwise be regarded as serious].) Finally, as Defendant had knowledge of Plaintiff’s relationship with Morgan and his intent to attend the reception, Plaintiff fails to allege facts amounting to a serious invasion of his privacy rights. (Id. at p. 37 [actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right].) Having failed to allege the essential elements of a fundamental public policy, Plaintiff has not stated a cause of action for wrongful termination.
Therefore, Defendant’s demurrer to the first cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.
With respect to the second cause of action for intentional infliction of emotional distress, Defendant argues that the claim is barred by the California Workers’ Compensation Act. (See Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.) In opposition, Plaintiff correctly points out that the exclusive remedy of worker’s compensation does not apply to a claim for wrongful termination in violation of public policy. (See Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083, 1100 [overruled on other grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66].) However, as stated above, Plaintiff has not alleged a valid claim for wrongful termination to defeat the demurrer and support recovery of emotional distress damages.
Therefore, Defendant’s demurrer to the second cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.
For the reasons stated above with respect to the demurrer to the second cause of action, Defendant’s demurrer to the third cause of action for negligent infliction of emotional distress is also SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.
With respect to the fourth cause of action for intentional interference with prospective economic advantage and the fifth cause of action for negligent interference with prospective economic advantage, Defendant argues that Plaintiff fails to allege any independently wrongful conduct to support his interference claims.
To state a claim for interference, a plaintiff must show that the defendant engaged in an independently wrongful act. (See San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544.) “An act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Id. at p. 1545.) “An act must be wrongful by some legal measure, rather than merely a product of an improper, but lawful, purpose or motive.” (Ibid.)
Here, Plaintiff’s opposition concedes that his interference claims are based on his constitutional right to privacy alleged in the first cause of action. (See OPP at p. 13.) However, as stated above, Plaintiff has not alleged a valid cause of action for wrongful termination based on his constitutional right to privacy to support his claims for interference.
Therefore, Defendant’s demurrer to the fourth and fifth causes of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.
Defendant’s motion to strike the sixth cause of action for slander per se is GRANTED. Following an order sustaining a demurrer with leave to amend, the plaintiff may amend his or her complaint only as authorized by the trial court’s order. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785 [leave to amend complaint does not constitute leave to amend to add new defendant].) Plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (Harris v. Wachovia Mortgage, Inc. (2010) 185 Cal.App.4th 1018, 1023.) Here, the order sustaining the demurrer to the complaint is devoid of any language suggesting that Plaintiff could allege a new cause of action for slander per se. (See Defendant’s Request for Judicial Notice at Exhibit C.) Accordingly, the sixth cause of action is hereby STRICKEN.
Given the ruling on the motion to strike, the demurrer to the sixth cause of action is MOOT.
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