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 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. Even 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.) Moreover, a hearing on a demurrer cannot be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (Unruh-Haxton v. Regents of Univ. of Cal. (2008) 162 Cal.App.4th 343, 365.)

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 second cause of action for wrongful termination in violation of public policy fails based on the same argument above. That is Plaintiff has incorrectly named her employer and as a result she has not alleged a sufficient violation of public policy (i.e., violation of FEHA). As discussed above, the Court is not persuaded by this argument and, therefore, it is also not a basis upon which the second cause of action fails.

Defendants further contend Plaintiff’s second cause of action fails because Plaintiff fails to allege a violation of Labor Code section 6310. Labor Code § 6310 provides that no person shall discriminate against an employee in any manner because the employee made complaints regarding employee safety or health. (Labor Code §6310

(a); see also Cuevas v. SkyWest Airlines (2014) 17 F.Supp.3d 956, 963.) Plaintiff alleges she complained to Defendants about her safety concerns regarding her co-worker bringing her pit-bull in to the office and that she was retaliated against for raising these concerns. (FAC ¶¶ 14, 22, 33.) The Court finds these allegations are sufficient at this stage of the case. See, e.g. Cabesuela v. Browning-Ferris Industries of California (1998) 68 Cal.App.4th 101, 108-109.

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).)

In opposition, Plaintiff contends the allegations are relevant as they provide context for Plaintiff’s FEHA and wrongful termination claims. Specifically, the allegations suggest Defendants retaliated against Plaintiff after she voiced safety concerns by attempting to shorten the amount of her disability leave and pressured her to find another job.

Defendants’ motion to strike paragraph 16, line 24, through paragraph 19 of the FAC is DENIED. The Court finds these allegations are relevant to Plaintiff’s claims.

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.

In opposition, Plaintiff generally contends these references are relevant and provide context, but Plaintiff fails to provide any reasoning beyond this conclusion. Plaintiff also contends Defendants cannot challenge these references by way of a motion to strike and instead Defendants should have demurred to any potential cause of action for harassment in violation of FEHA. Yet, Plaintiff does not contend she is alleging a cause of action for harassment in violation of FEHA.

The Court is persuaded these four references to “harassment” are irrelevant and should be stricken. The references are generally used in the “factual allegations,” yet Plaintiff only specifically alleges two causes of action, neither of which are for harassment in violation of FEHA. Accordingly, Defendants’ motion to strike these references is granted.

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 27, 2018, and only to the extent leave to amend is granted, Plaintiff may file a Second Amended Complaint (“SAC”). 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 SAC to facilitate the filing of the pleading.