2016-00203087-CU-OE

Bailey Radford vs. American River Orthodontics

Nature of Proceeding: Hearing on Demurrer and Motion to Strike 1st Amended Complaint

Filed By: Duggan, Jennifer E.

Defendants American River Orthodontics (“ARO”) and Michael H. Payne’s (“Mr. Payne”) (collectively, “Defendants”) Demurrer and Motion to Strike Plaintiff’s First Amended Complaint is UNOPPOSED and is OVERRULED in part and GRANTED in part, with leave to amend.

Defendants’ request for judicial notice of the Statement of Information filed by Michael H. Payne, D.D.S., M.S.D. A Dental Corporation and Plaintiff’s 2012, 2013, and 2014 W -2 forms is GRANTED. In taking judicial notice of these documents, the court accepts the fact of their existence, not the truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal. 4th 543, 590 [judicial notice of findings of fact does not mean that those findings of fact are true]; Steed v. Department of Consumer Affairs (2012) 204 Cal. App. 4th 112, 120-121; Sosinsky v. Grant (1992) 6 Cal. App. 4th 1548, 1562-1570.)

Plaintiff Bailey Radford filed her original complaint on November 8, 2016, naming ARO, Mr. Payne, and Cheryl Winckel as defendants. After meet and confer communications regarding Plaintiff’s failure to properly name her employer, Plaintiff amended her complaint on September 27, 2017. Plaintiff’s First Amended Complaint (“FAC”) names only ARO and Mr. Payne as defendants and alleges causes of action for violation of FEHA and wrongful termination in violation of public policy.

The parties met and conferred again about Plaintiff’s failure to properly name her employer as a defendant, as well as her inclusion of irrelevant matters in the First Amended Complaint (“FAC”). (Declaration of Jennifer Duggan (“Duggan Decl.”) at ¶¶ 2, 3.) The parties were unable to reach an agreement and this instant motion followed.

Demurrer

Defendants demur to the FAC on the grounds that the causes of action fail to state a cause of action. (Code Civ. Proc. § 430.10(e).)

As to both causes of action, Defendants contend these claims fail because Plaintiff’s employer is not ARO, but rather Michael H. Payne, D.D.S., M.S.D. A Dental Corporation (“Payne, Inc.”). As a result, Defendants argue Plaintiff’s FEHA and wrongful termination claims fail because non-employers and individuals cannot be liable for these purported violations. Assuming this is an accurate statement of the law, Defendants’ demurrer fails. A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal. 3d 584, 591.) A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . , we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal. App. 3d 690, 696-697.)

While Defendants purport to offer the Statement of Information and Plaintiff’s W-2 forms as evidence of Plaintiff’s true employer (i.e., Payne, Inc.), the Court may only take judicial notice of the fact that these documents exist, not the truth of their contents. The existence of these documents does not establish the true identity of Plaintiff’s employer.

Plaintiff has pled her employers were ARO and Mr. Payne. (FAC ¶¶ 5-6, 26.) Whether Plaintiff may be able to prove these allegations is not an issue to be tested on demurrer.

Defendants also contend Plaintiff’s claim for wrongful termination fails because Plaintiff has failed to plead a violation of an underlying public policy as her FEHA claim fails and because Plaintiff fails to allege a violation of Labor Code section 6310. The Court fineds Plaintiff’s FEHA claims do not fail and the allegations are sufficient. Therefore, the FAC does allege a violation of an underlying public policy – violation of FEHA.

For the foregoing reasons, Defendants demurrer to the FAC is OVERRULED.

Motion to Strike

Defendants also move to strike paragraph 16, line 24, through paragraph 19 of the FAC on the grounds that the material includes allegations of pregnancy disability leave and Plaintiff’s return to work following her leave that are unrelated to Plaintiff’s claims of discrimination and retaliation based on her need to pump breast milk.

Under Code of Civil Procedure section 436, the court may “[s]trike out any irrelevant,

false, or improper matter inserted in any pleading” as well as “all or part of any pleading not drawn or filed in conformity with the laws of this state.” (Code Civ. Proc, § 436, subds. (a) and (b).)

Defendants’ motion to strike paragraph 16, line 24, through paragraph 19 of the FAC is unopposed and is GRANTED with leave to amend.

Defendants further move to strike all four references to “harassment” in the FAC on the grounds that they are irrelevant as Plaintiff pleads no facts to support a claim of harassment, including the essential elements of such a claim. Defendants’ motion to strike these references is unopposed and is GRANTED with leave to amend.

Because this is the Court’s first ruling on a motion to strike brought by Defendants, the Court grants Plaintiff leave to amend.

No later than March 6, 2018, and only to the extent leave to amend is granted, Plaintiff may file a Third Amended Complaint (“TAC”). The responsive pleading shall be due filed and served 10 days thereafter (15 days if service is by mail).

Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the TAC to facilitate the filing of the pleading.