2011-00111027-CU-WT

Joshua Franks vs. Michael N. Douglas Investments

Nature of Proceeding: Hearing on Demurrer

Filed By: Kass, Bradley

Defendant Michael N. Douglas Investments’ Demurrer to Plaintiff’s First Amended
Complaint is OVERRULED.

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Plaintiff’s First Amended Complaint (“FAC”) sets forth three causes of action: the 1 for
Retaliation; Government Code §12940(h), the 2nd for Failure to Prevent Retaliation;

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Government Code §12940(k) and the 3 for Wrongful Termination in Violation of
Public Policy. Defendant demurs both on the grounds that each cause of action fails
to state facts sufficient to constitute a cause of action and on the ground of
uncertainty.

A demurrer for uncertainty is disfavored, and will be sustained only where the
complaint is so bad that the defendant cannot reasonably respond. Ambiguities can be
clarified under modern discovery procedures. 1 Weil & Brown, Civil Procedure Before
Trial (The Rutter Group 2008) § 7:84, p. 7(I)-37; Khoury v. Maly’s of California, Inc.
(1993)14 Cal.App.4th 612, 616.

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Demurrer to the 1 for Retaliation is OVERRULED.

Defendant asserts that the demurrer must be sustained because plaintiff did not allege
that he timely serve the defendant with the DFEH complaint. Although plaintiff did not
specifically allege the date on which he served the defendant with the DFEH complaint
and notice of case closure and right to sue letter, his pleading is sufficiently detailed to
adequately allege exhaustion of his administrative remedies. (FAC, para. 19.) Additionally, defendant demurs on the grounds that the facts alleged in the cause of
action for retaliation, are insufficient to state a cause of action for sexual harassment.

To establish a prima facie case of retaliation, the plaintiff must show (1) he engaged in
a protected activity; (2) the employer subjected the employee to an adverse
employment action; and (3) a causal link between the protected activity and the
employer’s action. Akers v. County of San Diego (2002) 95 Cal. App. 4th 1441, 1453.

Plaintiff’s FAC alleges that he engaged in protected activity when he complained to
human resources about Douglas’ inappropriate behavior.

It is well established that a retaliation claim may be brought by an employee who has
complained of or opposed conduct that the employee reasonably believes to be
discriminatory, even when a court later determines the conduct was not actually
prohibited by the FEHA. Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1043.

The causal link between the complaint on May 17, 2010 and defendant’s termination of
plaintiff on May 18, 2010 may be inferred from the temporal proximity of the two
events.

Demurrer to the 2nd for Failure to Prevent Retaliation; Government Code §12940(k) is
OVERRULED.

To establish a prima facie case of failure to prevent retaliation, a plaintiff must allege
(1) that he was an employee of defendant, (2) that he was subjected to retaliation, (3)
that defendant failed to take reasonable steps to prevent the retaliation, (4) that plaintiff
was harmed, and (5) that defendant’s failure to take reasonable steps to prevent
retaliation was a substantial factor in causing plaintiffs harm. CACI 2527.

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Moving party relies upon the same arguments as the 1 cause of action, emphasizing
that the offensive language and conduct of Douglas was not directed towards plaintiff
personally.

Again, the retaliation is the basis for the cause of action, not sexual harassment of
plaintiff.

The Court finds that plaintiff has alleged sufficient facts to state a cause of action.

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Demurrer to the 3 for Wrongful Termination in Violation of Public Policy is
OVERRULED.

The elements are wrongful termination are :(1) That plaintiff was employed by
defendant; (2) That defendant discharged plaintiff ; (3) That plaintiff’s termination was
motivated by a violation of public policy, and (4) That the discharge caused plaintiff
harm. CACI 2430

Here, the defendant’s wrongful motivation for termination in violation of public policy is
alleged by the logical inference that must be drawn from the allegations that plaintiff
was terminated for his protected conduct in submitting a formal written complaint,

Defendant shall file and serve his Answer to the First Amended Complaint not later than Friday, Nov. 22, 2013.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 12 2011-00111027-CU-WT

Joshua Franks vs. Michael N. Douglas Investments

Nature of Proceeding: Motion to Strike

Filed By: Kass, Bradley

Defendant Michael N. Douglas Investments’ Motion to Strike the Punitive Damage
Allegations of Plaintiff’s First Amended Complaint is GRANTED.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the
Sacramento Superior Court are available on the Court’s website at
Counsel for moving party is
ordered to notify opposing party immediately of the tentative ruling system and to be
available at the hearing, in person or by telephone, in the event opposing party
appears without following the procedures set forth in Local Rule 1.06(B).

Plaintiff has failed to allege facts sufficient to support allegations that the defendant
has been guilty of oppression, fraud, or malice, so that the plaintiff, in addition to the
actual damages, is entitled to recover damages for the sake of example and by way of
punishing the defendant. Civil Code § 3294. In order to survive a motion to strike an
allegation of punitive damages, the ultimate facts showing an entitlement to such relief
must be pled by a plaintiff. ( Grieves v. Superior Court (1984) 157 Cal. App. 3d 159,
166. In assessing such a motion, the Court notes that the allegations of a pleading
subject to a motion to strike is read as a whole, all parts in their context, and assumed
to be true. (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal. App. 4th
1504, 1519; Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 91; see Cal. Judges
Benchbook, Civil Proceedings Before Trial (1995) Attacks on Pleadings, § 12.94, p.
611.) In ruling on a motion to strike, courts do not read allegations in isolation. Perkins
v. Superior Court (1981) 117 Cal. App. 3d 1, 6 .

Defendant shall file and serve his Answer to the First Amended Complaint (with the
punitive damage allegations and prayer stricken) not later than Friday, Nov. 22, 2013.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.