2012-00134576-CU-WT

Sabrina Clark vs. Speedee Oil Change & Tune Up

Nature of Proceeding: Hearing on Demurrer

Filed By: Kelley, Ian

Defendant Speedee Worldwide Corporation’s (“SWC”) demurrer to the complaint is
construed as a motion for judgment on the pleadings and is GRANTED with leave to
amend, as follows.

Moving counsel is admonished for failing to comply with CRC Rule 3.1110(b)(3)-(4).

This action arises out of plaintiff’s previous employment as a cashier for an automotive
service shop in Fair Oaks, California. The complaint purports to allege causes of
action for sexual harassment, sexual discrimination, retaliation, failure to prevent
discrimination, negligence, wrongful termination and intentional infliction of emotional
distress.

Defendant SWC was not specifically named in the original complaint filed on
10/30/2012 but was only added as a Doe Defendant on 3/19/2013. Defendant SWC
filed a demurrer challenging the allegations of the original complaint on the ground it
fails to allege exhaustion of remedies which is otherwise required for claims brought
under the Fair Employment and Housing Act (“FEHA”). More specifically, while the
complaint expressly alleges plaintiff timely filed with the Department of Fair
Employment and Housing (“DFEH”) charges of harassment, discrimination, etc.
against two particular defendants and received a right-to-sue letter, plaintiff has not
made any similar allegation with respect to filing with the DFEH an administrative
FEHA complaint against defendant SWC.

In opposition, plaintiff asserts that this demurrer is untimely since defendant SWC filed
an answer to the original complaint in July 2013 and that she should be deemed to
have exhausted administrative remedies under FEHA since she did not know the
identity of defendant SWC until after this lawsuit was commenced.

At the outset, the Court must agree that this demurrer is untimely in light of the answer
previously filed in July 2013 in response to the complaint. However, in light of the
grounds asserted by defendant SWC and the requirement that plaintiff allege
exhaustion of administrative remedies under the FEHA, the Court hereby construes
the demurrer as a motion for judgment on the pleadings.
Turning to the merits, it cannot be disputed that the complaint expressly alleges
exhaustion of administrative remedies against only two particular defendants neither of
which is defendant SWC. Because exhaustion of administrative remedies is a
jurisdictional prerequisite to asserting in this action claims under the FEHA and
because there is currently no allegation of exhaustion with respect to defendant SWC,
the motion for judgment on the pleading must be and hereby is granted.

Since this is the first challenge to the complaint, leave to amend is granted. Plaintiff
may file and serve an amended complaint no later than 5/12/2014. Although not
required by court rule or statute, plaintiff is directed to present a copy of this
order when the amended complaint is presented for filing.

Defendant SWC to respond within 10 days if the amended complaint is personally
served, 15 days if served by mail.

If any defendant intends to demur to the amended complaint or move to strike, it shall
determine if any other defendant who has appeared in this action also intends to
demur or move to strike. If so, all such defendants shall coordinate a single hearing
date for the demurrers and motions to strike. Additionally, a copy of the amended
complaint shall be included with the moving papers.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)