Case No.: 1-13-CV-239315
DATE: April 10, 2014
TIME: 9:00 a.m.
DEPT.: 3

The request for judicial notice by Defendant Board of Trustees of the California State University (“CSU,” “Defendant”) of Plaintiff’s original Complaint filed Jan. 11, 2013 and Plaintiff’s operative Third Amended Complaint (“TAC”) filed Feb. 25, 2014, is GRANTED pursuant to Evid. Code §452(d). On its own motion the Court also takes notice of Plaintiff’s First Amended Complaint (“FAC”), the Aug. 12, 2013 Order of the Court (Hon. Arend) on Defendant’s demurrer to the FAC’s 2nd, 3rd and 5th causes of action, Plaintiff’s Second Amended Complaint (“SAC”), and the Feb. 14, 2014 Order of the Court granting Plaintiff’s motion for leave to file the TAC pursuant to Evid. Code §452(d).

As an initial matter the Court notes the following: First, in ruling on a demurrer or motion to strike considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted. The Court cannot consider extrinsic evidence in ruling on a demurrer or motion to strike. Accordingly, the Court has not considered the declaration of Plaintiff’s Counsel Phyllis E. Andelin. Second, Plaintiff’s Opposition exceeds the page limits set forth in Rule of Court 3.1113(d). While the Court has exercised its discretion to consider the full opposition, Plaintiff is instructed to conform to the page limits in the future.

The Joinder to the Demurrer by Defendants Carrie Medders and Marie DeGuevara is GRANTED.

Defendant’s Demurrer to the TAC’s 1st cause of action (“Wrongful Constructive Discharge”), alleged only against CSU, on the ground that it fails to state sufficient facts against it is SUSTAINED.

The 1st cause of action fails as a matter of law as alleged against this Defendant as it is a common law claim alleged against a public entity without a statutory basis. Government Code § 815 sets forth the general rule that “a tort action may not be maintained against a public entity unless the claim is based on a statute providing for liability.” Chester v. State of California (1994) 21 Cal.App.4th 1002, 1004-1005. “The Government Claims Act (§ 810 et seq.) establishes the limits of common law liability for public entities, stating: ‘Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.’ (§ 815, subd. (a), italics added.) The Legislative Committee Comment to section 815 states: ‘This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. …’ (Legis. Com. com., 32 West’s Ann. Gov. Code (1995) foll. § 815, p. 167, italics added.) Moreover, our own decisions confirm that section 815 abolishes common law tort liability for public entities.” Miklosy v. Regents of University of California (2008) 44 Cal 4th 876, 899, emphasis in original. See also McAllister v. Los Angeles Unified Sch. Dist. (2013) 216 Cal App 4th 1198, 1219 (“Miklosy made it clear that a claim for wrongful discharge may not be brought against a public entity.”)

Public entity immunity aside the 1st cause of action still fails to state sufficient facts. The TAC admits that Plaintiff was not terminated, but resigned. Plaintiff must properly plead that she was constructively discharged at all before the question of whether such discharge was wrongful as in violation of public policy arises. See CACI 2432, 2510. “Standing alone, constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is ostensibly a resignation into a firing.” Turner v. Anheuser-Busch, Inc. (1994) 7 Cal 4th 1238, 1251. “The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.” Id. at 1246. “In order to amount to constructive discharge, adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable. In general, ‘[s]ingle, trivial, or isolated acts of [misconduct] are insufficient’ to support a constructive discharge claim. Moreover, a poor performance rating or a demotion, even when accompanied by a reduction in pay, does not by itself trigger a constructive discharge.” Id. at 1247, internal citations omitted. “[T]he standard by which a constructive discharge is determined is an objective one—the question is ‘whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.’” Id. at 1248, internal citations omitted, emphasis added. “The mere existence of illegal conduct in a workplace does not, without more, render employment conditions intolerable to a reasonable employee.” Id. at 1254.

The allegations in the TAC that from Oct. 14, 2011 to Dec. 2011 Defendant did not comply with Plaintiff’s “right to know” requests to identify what pesticide her co-employee (not Defendant) had sprayed in the workplace in violation of the SJSU Workplace Safety Handbook and Hazard Communication Plan, instructed Plaintiff to stop discussing the incident and issued her a written reprimand—leading Plaintiff to first chose to take a leave of absence and then chose to resign rather than return do not, under the objective reasonable employee standard, establish a constructive discharge.

Plaintiff’s sole argument against the demurrer to this cause of action is her objection that Defendant failed to include this (essentially identically alleged) cause of action in its demurrer to the FAC in August of 2013 and has thus waived the argument. This is incorrect. While piecemeal demurrers are disfavored, and a waste of both the parties’ and the Court’s time, failure to state sufficient facts is never waived as an objection to a cause of action or affirmative defense through inaction. See CCP §430.80. The filing of the TAC allowed Defendant to file another timely demurrer as opposed to a motion for judgment on the pleadings, which would otherwise still have been available against the 1st cause of action.

As Plaintiff fails to make any other argument in opposition to the demurrer to this claim or demonstrate how the claim could be cured through amendment, leave to amend is DENIED. See Medina v. Safe-Guard Products (2008) 164 Cal App 4th 105, 112 fn. 8 (“As the Rutter practice guide states: ‘It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.’”)

Defendant’s demurrer to the TAC’s 2nd cause of action (formerly the 3rd cause of action in the FAC) for Retaliation under Labor Code §6310 on the ground that it fails to state sufficient facts is SUSTAINED in part and OVERRULED in part.

The demurrer is SUSTAINED without leave to amend as alleged against Individual Defendants Carrie Medders and Maria DeGuevara. Even in a FEHA claim (which Plaintiff has not alleged), the Supreme Court has held that while an employer can be liable for retaliation under Gov. Code, § 12940(h), nonemployer individuals are not personally liable for their role in that retaliation. See Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal 4th 1158, 1173. There is no indication that a retaliation claim brought under Labor Code §6310 is to be treated differently, particularly as §6310(b) limits liability to the employer. See also Labor Code §§6304, 3300 (defining “employer”).

Furthermore, Defendants are correct that the addition of Medders and DeGuevara as Individual Defendants purportedly in substitution for Does One and Two (see TAC at 5) is not a proper Doe amendment under CCP §474. “A further and nonprocedural requirement for application of the section 474 relation-back doctrine is that [Plaintiff] must have been genuinely ignorant of [Defendant’s] identity at the time she filed her original complaint. The omission of the defendant’s identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474.” Woo v. Superior Court (1999) 75 Cal App 4th 169, 177, internal citation omitted, brackets added. “If the defendant cannot be identified from readily identifiable information, then section 474 is available; if the defendant can be identified from the readily available information, then section 474 is unavailable. This rule retains meaning to the actual ignorance requirement of section 474.” Id. at 180. Here it is apparent from the judicially noticed Original Complaint filed Jan. 11, 2013 that Plaintiff was at that time aware of the Individual Defendants’ identities, positions and roles in the alleged wrong done to her as she clearly identifies them and their alleged conduct from October to December 2011 while claiming to be “ignorant of the true names and capacities of defendants sued herein as Does 1-150 inclusive . . .” Original Complaint at 5.

Plaintiff’s argument in the Opposition that the addition of Medders and DeGuevara in substitution for Does 1 and 2 was already examined and approved by the Court is incorrect. The Feb. 14, 2014 Order of the Court (Hon. McKenney) granting Plaintiff’s motion for leave to file the TAC expressly stated that “by granting this particular motion, this court has not addressed the merits of plaintiff’s new claims against new defendants.”

The demurrer to the 2nd cause of action is OVERRULED as to Defendant CSU. While Plaintiff has failed to establish that she was constructively discharged this does not end the analysis. Labor Code §6310 states in pertinent part: (a) No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: (1) Made any oral or written complaint to . . . his or her employer, or his or her representative . . . (b) Any employee who is discharged . . . or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has made a bona fide oral or written complaint to . . . his or her employer, or his or her representative, of unsafe working conditions, or work practices, in his or her employment or place of employment . . . shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.” Emphasis added. Accordingly Plaintiff’s allegations that she was told to cease making inquiries regarding the pesticide used in the workplace by a fellow employee (on the employee’s own initiative and not at the direction of Defendant) and given a written reprimand despite her alleged “right to know” under CSU’s own policies and the relevant collective bargaining agreement can be considered “discrimination” for purposes of §6310 at the pleading stage. The fact that Plaintiff’s damages under this cause of action are expressly limited to “reinstatement and reimbursement for lost wages and work benefits” does not establish a failure to state sufficient facts. Defendant’s claim that Plaintiff has already rejected an offer of reinstatement is outside of the pleadings and irrelevant on demurrer, as is the question of whether Plaintiff can prove her allegations.

Defendant’s demurrer to the TAC’s 4th cause of action, “Violation of Plaintiff’s Constitutional and Statutory Rights,’ on the ground that it fails to state sufficient facts is SUSTAINED. The facts underlying this claim are the same as the 2nd cause of action: Plaintiff’s allegations that she was ordered to stop requesting information on her co-employee’s use of pesticide. “Plaintiff’s reports and complaints were protected communications under the First Amendment of the United States Constitution, Article 1, Section 2 of the California Constitution, and the California Occupational Safety and Health Act, Labor Code §§6300 et seq.” TAC at 54. The Court’s Aug. 12, 2013 Order already ruled that Plaintiff had no cause of action under Civ. Code §52.1 and had not established a claim for injunctive relief (a claim that despite leave to amend being granted was subsequently abandoned by Plaintiff in both the SAC and the TAC).

There is no direct private right of action for an alleged violation of the Federal First Amendment. The vehicle for asserting claims that persons acting under color of state law have violated an individual’s federal civil rights is 42 U.S.C. §1983. As Defendant correctly points out California Supreme Court precedent states that, in contrast to local governments and their affiliated agencies (such as police departments), neither states, state agencies nor state officials acting in their official capacities are “persons” within the meaning of 42 U.S.C. §1983 when sued for damages. The state and arms of the state are not subject to suit under 42 U.S.C. §1983 in either federal court or state court. “Hence, neither can be sued for damages under 42 U.S.C.S. § 1983, even in state court.” Pitts v. County of Kern (1998) 17 Cal. 4th 340, 348 (ruling that a County District Attorney was an “arm” of the State and could not be subject to a 1983 action in state court). Defendant CSU is indisputably an arm of the State of California and the TAC at 5 alleges that both Individual Defendants were acting within the course and scope of their employment. Accordingly Plaintiff cannot bring a claim against these Defendants for alleged violation of her federal First Amendment rights.

Article 1 Section 2(a) of the California Constitution also does not provide a private right of action under the facts alleged here. The recent decision in McAllister v. Los Angeles Unified Sch. Dist. (2013) 216 Cal App 4th 1198 (cited by both sides) accurately summarizes current California law. McAllister notes that the California Supreme Court, in its companion decisions in Katzberg v. Regents of the University of California (2002) 29 Cal 4th 300 and Degrassi v. Cook (2002) 29 Cal 4th 333, set forth the applicable analysis. “The Degrassi court undertook a two-step procedure in concluding that Constitution, section 2(a) did not create a private right of action for damages in that case. First, the court analyzed whether the language or legislative history of the provision disclosed an intent to include a damages remedy. After undergoing this analysis, the high court concluded, ‘there is no indication in the language of article I, section 2(a), nor any evidence in the history of that provision, from which we may find, within that provision, an implied right to seek damages for a violation of the free speech right set out therein. However, this analysis did not end the inquiry. The high court then proceeded to consider ‘ ‘whether a constitutional tort action for damages to remedy the asserted constitutional violation should be recognized.’ ’ Applying the factors set forth in Katzberg, the court declined to recognize such a remedy for the asserted violation alleged in the case before it. The Katzberg factors are (1) the adequacy of existing remedies; (2) the extent to which a constitutional tort action would change established tort law; (3) the nature of the provision and the significance of the purpose that it seeks to effectuate; and (4) whether the creation of a damages action might produce adverse policy consequences or practical problems of proof.” McAllister, supra, at 1214-1215, internal citations omitted.

Applying the Katzberg factors to Plaintiff’s allegations here, the analysis ends at the first step. Labor Code §6310 is an adequate existing statutory remedy expressly provided to address precisely what Plaintiff alleges occurred: discrimination by an employer against an employee for exercising his/her rights related to employee safety or health in the workplace. As was the case in McAllister, the second Katzberg factor also weighs against recognizing any private right of action under Art. I, Sec. 2(a): “As set forth in Degrassi, California tort law does not support recognition of a constitutional tort action for damages under this provision. Thus, recognition of a constitutional tort action would significantly change established tort law.” McAllister, supra, at 1215, internal citation omitted.

Finally, Plaintiff cannot state a cause of action by simply referring to “the California Occupational Safety and Health Act, Labor Code §§6300 et seq.” As the prior Aug. 12, 2013 Order informed Plaintiff (while also noting that as a former employee she had not pled any basis for injunctive relief), statutory claims must be pled with particularity. To the extent Plaintiff has a remedy under the Labor Code for her allegations, it is provided in Labor Code §6310.

Leave to amend is DENIED as there is no indication that the claim can be amended to state any cause of action that is not simply duplicative of the 2nd cause of action.