Case Number: BC689248 Hearing Date: February 13, 2020 Dept: 26

Superior Court of California
County of Los Angeles
Department 26

DANIEL MARSHALL,

Plaintiff,

v.

FILMON TV NETWORKS INC, et al.,

Defendants.

Case No.: BC689248

Hearing Date: February 13, 2020

[TENTATIVE] order RE:

DEFENDANT Filmon tv networks inc’s motion for judgment on the pleadings

Background

This is a wrongful termination action in which Plaintiff Daniel Marshall (“Plaintiff”) alleges that he was terminated because of his disability and/or medical condition by defendants Filmon TV Networks Inc (“Moving Defendant”) and Alki David Productions Inc. Plaintiff alleges thirteen causes of action: (1) disability discrimination in violation of the Fair Employment and Housing Act (“FEHA”), (2) failure to prevent harassment and discrimination in violation of FEHA, (3) failure to engage in the interactive process in violation of FEHA, (4) failure to accommodate in violation of FEHA, (5) retaliation in violation of public policy, (6) wrongful termination in violation of public policy, (7) intention infliction of emotional distress, (8) failure to pay minimum wages, (9) failure to pay overtime wages, (10) failure to provide accurate itemized wage statements, (11) failure to provide mandated meal and rest periods, (12) failure to pay compensation due upon separation of employment, and (13) unfair, unlawful, and fraudulent business practices.

On January 14, 2020 — on the eve of trial — Moving Defendant filed the instant motion for judgment on the pleadings as to the first four causes of action (the FEHA claims) and the fifth cause of action for retaliation in violation of public policy. On January 29, 2020, Plaintiff filed an opposition. On February 5, 2020, Moving Defendant filed a reply.

Legal Standard

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. (CCP § 438(f).) Except as provided by statute, the rules governing demurrers apply. (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.) “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Id. at 1013.) In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.)

CCP § 438(c)(1) provides a motion for judgment on the pleading may only made on one of the following grounds:

(A) “[i]f the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint;

(B) If the moving party is a defendant, that either of the following conditions exist:

i. The court has no jurisdiction of the subject of the cause of action alleged in the complaint;

ii. The complaint does not state facts sufficient to constitute a cause of action against that defendant.

Discussion

Meet and Confer

Per CCP section 439(a), before filing a judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion for judgment on the pleadings…” (CCP § 439(a).) The moving party shall file and serve with the motion for judgment on the pleadings a declaration concerning the parties meet and confer efforts. (CCP § 439(a)(3).)

Defendant has satisfied this requirement. (Kaltgard Decl. ¶ 2, Ex. A.)

Failure to Exhaust Administrative Remedies for FEHA Claims

Moving Defendant contends that the FEHA causes of action are barred because Plaintiff has failed to exhaust administrative remedies with respect to Moving Defendant.

“In order to bring a civil action under FEHA, the aggrieved person must exhaust the administrative remedies provided by law.” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121; accord Romano v. Rockwell Int’l, Inc. (1996) 14 Cal.4th 479, 492.) Exhaustion in this context requires filing a written charge with DFEH within one year of the alleged unlawful employment discrimination and obtaining notice from DFEH of the right to sue. (Romano, supra, 14 Cal.4th at 492; Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) The scope of the written administrative charge defines the permissible scope of the subsequent civil action. (Yurick, supra, 209 Cal.App.3d at 1121–23.) These procedural requirements, as with all provisions of FEHA, are to “be construed liberally for the accomplishment of the purposes [of FEHA].” (Cal. Gov’t Code § 12993(a).)

No judicial notice has been requested. Therefore, the Court must look solely to the complaint as to whether it alleges on its face that Plaintiff has satisfied the exhaustion of remedies against Moving Defendant. (See Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) In doing so the Court must “accept[] as true the factual allegations that the plaintiff makes.” (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.) Further, the Court must give the pleadings “a liberal construction.” (Ibid.)

The only part of the complaint that refers to exhaustion of administrative remedies states that: “Plaintiff exhausted his administrative remedies by filing complaints with the California Department of Fair Employment and Housing, and thereafter, received a ‘right to sue’ letter. A true and correct copy of such right to sue letter is attached hereto as Exhibit ‘A.’ Plaintiff has duly exhausted all of the required administrative proceedings and now properly files this Complaint for Damages in this Court”. (Complaint ¶ 13.)

Moving Defendant contends that the right to sue letter attached to the complaint is defective as it refers to Filmon.TV Inc. rather than Filmon.TV Network Inc., the moving defendant. (Id., Ex. A.) However, in reviewing the complaint, it is not clear on the face of the complaint that Filmon.TV Inc. is not the same as Filmon.TV Network, Inc. In liberally reviewing the complaint, the court finds that the complaint implies that Filmon.TV Inc. may just be incorporated as Filmon.TV Network, Inc. or that they are one and the same.

Further, under rules of equity, Moving Defendant may be liable under possible alter-ego theories despite the issue Moving Defendant raises. (See Carr v. Barnabey’s Hotel Corp. (1994) 23 Cal.App.4th 14, as modified (Mar. 22, 1994) [holding that although there was insufficient evidence that named defendant was the alter ego of employment discrimination plaintiff’s true employer, equitable principles warranted amendment of judgment to add true employer as judgment debtor on ground that it was alter ego of named defendant despite argument that true identity of employer was ascertainable from employee’s W–2 forms; named defendants conducted themselves as though they were the proper defendants and sought to use plaintiff’s mistake to shield entity which should have been named.]; see also Mayberry v. Coca Cola Bottling Co. (1966) 244 Cal.App.2d 350; Cuadros v. Superior Court (1992) 6 Cal.App.4th 671.)

Accordingly, Moving Defendant’s motion for judgment on the pleadings is DENIED as to the FEHA causes of actions.

Fifth Cause of Action: Retaliation in Violation of Public Policy

Moving Defendant contends that the common law claim for Retaliation in Violation of Public Policy does not state a cause of action as there is no common law cause of action for retaliation. The Court agrees.

“[T]he Legislature has made clear its intent to ‘occupy the field of regulation of [discrimination] in employment” by virtue of the FEHA.’” (Ficalora v. Lockheed Corp. (1987) 193 Cal.App.3d 489, 492, [Holding that there is no common law claim for retaliation as FEHA preempts it.].) Plaintiff’s opposition does not address this issue. Accordingly, the Court grants Moving Defendants motion on the pleading as to this cause of action.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of a successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the responding party to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)

Here it is clear that the fifth cause of action can be amended to state a cause of action under the statutory claim for retaliation under FEHA. Accordingly, leave to amend is granted.

CONCLUSION

Moving Defendant Filmon TV Networks Inc.’s motion for judgment on the pleading is GRANTED WITH TWO DAYS LEAVE TO AMEND as to the fifth cause of action. Defendant Filmon TV Network Inc.’s motion for judgment on the pleadings is otherwise DENIED.

//

Plaintiff is to file an amended complaint as to the fifth cause of action within 2 court days.

Moving Parties are ordered to provide notice of this order and file proof of service of such.

DATED: February 13, 2020 ___________________________

Elaine Lu

Judge of the Superior Court