2018-00237021-CU-OE

Casey Westover vs. P.M.L.G.E.

Nature of Proceeding: Hearing on Demurrer

Filed By: Terhorst, Michael A.

Defendants P.M.L.G.E. dba Green Rose and William Brewer’s (collectively, “Defendants”) demurrer to plaintiff Casey Westover’s (“Plaintiff”) unverified First Amended Complaint (“FAC”) is OVERRULED.

Defendants’ requests for judicial notice are 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 [“[W]hile the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in those documents, including the factual findings of the judge who was sitting as the trier of fact, is not entitled to notice.”]; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1562-1570.)

Plaintiff filed her FAC on July 31, 2018, alleging the following seven causes of action:

(1) hostile work environment harassment in violation of FEHA; (2) discrimination in violation of FEHA; (3) constructive discharge in violation of public policy; (4) failure to prevent discrimination, harassment, and retaliation in violation of FEHA; (5) nonpayment of wages; (6) nonpayment of overtime; and (7) violation of California Labor Code § 2698 et seq. (PAGA).

Defendants now demur to each cause of action on the grounds that each fails to state a cause of action and/or is uncertain.

The pleading rules applicable to demurrers are now familiar and well established. Pleadings are to be liberally construed. (Code Civ. Proc. § 452) 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.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal. App. 4th 726.)

The demurrer for uncertainty is OVERRULED. The allegations are not so uncertain that Defendants cannot frame a response. Demurrers for uncertainty are disfavored and are only granted where the complaint is so muddled that the defendant cannot reasonably respond. The favored approach is to clarify theories in the complaint through discovery. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; 1 Weil & Brown, Civil Procedure Before Trial (Rutter 2014), sec. 7:85, p. 7(l)-39.)

The gravamen of Defendants’ argument in support of the demurrer is that Plaintiff has alleged an ownership relationship with Defendants, rather than that of an employer-employee relationship. Therefore, as argued, her employment claims, all of which require the existence of an employment relationship, fail. Specifically, Defendants point to the following allegations. FAC ¶ 13 alleges “On or around February 2017, Ms. Westover started the business with William Brewer (“Mr. Brewer”).” (emphasis added.) FAC ¶ 14 alleges a disagreement occurred “after forming the company and signing paperwork” and that Mr. Brewer demanded that Plaintiff let Mr. Brewer be in charge. FAC ¶ 21 alleges “Mr. Brewer and Ms. Westover were discussing business ideas.” FAC ¶¶ 34, 35, 39 and 42 concern Plaintiff’s concerns she raised to Mr. Brewer about company liability. FAC ¶ 42 references a statement Plaintiff made regarding “the employees.” Defendants contend the foregoing language in the FAC constitutes “owner language” and argue only an owner would have concerns about company liability and would refer to “the employees.”

However, elsewhere in the FAC Plaintiff has alleged she “commenced her employment with [Defendants] on or around February 2017” as the Treasurer and Secretary. (FAC ¶12.) The FAC also alleges multiple places that Plaintiff “was an employee of [Defendants].” (FAC ¶¶ 1, 9, 15, 55, 70, 80, 94.)

On demurrer, the Court must accept the truth of all material facts property pled and liberally construe the complaint in favor of Plaintiff. Here, Plaintiff has alleged she was an employee of Defendants. While the FAC uses language that could imply Plaintiff may have had some sort of ownership interest in the business, it is possible that an employee could be concerned about company liability simply because she is an employee. It is also possible that Plaintiff could have assisted Mr. Brewer in starting the business, but only have a role in the company as an employee. On demurrer, the Court cannot disregard the plain allegations that Plaintiff was an employee of Defendants.

Further, Defendant’s argument that Plaintiff also used “owner language” in a petition for a restraining order against Mr. Brewer is no basis upon which to sustain the demurrer. As noted above, in taking judicial notice of the restraining order documents the Court simply accepts the fact of their existence, not the truth of their contents. Therefore, the language used in any restraining order petition is inapposite and not relevant to this demurrer.

The Court finds Plaintiff’s allegations allege an employer-employee relationship sufficient to maintain all of her employment causes of action.

Further, Defendants contend Plaintiff’s first, second, and fourth causes of action under FEHA fail to state a cause of action because the FAC does not allege that Defendants are “employers” under FEHA in that they employ five or more persons. However, the FAC does alleges “at all times herein, Defendants were employers within the meaning of the California Fair Employment and Housing Act (Government Code § 12940 et seq. [hereafter, “FEHA”]) … .” (FAC ¶ 70.) This is sufficient for pleading purposes.

Based on the foregoing, Defendants’ demurrer is OVERRULED.

Defendants shall file and serve their answers no later than January 28, 2019.

Defendants have indicated the incorrect address in its notice of motion. The correct address for Department 53 of the Sacramento County Superior Court is 813 6th Street, Sacramento, California 95814. Defendants shall notify Plaintiff immediately.

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

Item 25 2018-00237021-CU-OE

Casey Westover vs. P.M.L.G.E.

Nature of Proceeding: Motion to Strike Portions of the 1st Amended Complaint

Filed By: Terhorst, Michael A.

Defendants P.M.L.G.E. dba Green Rose and William Brewer’s (collectively, “Defendants”) motion to strike the punitive damages provisions of plaintiff Casey Westover’s (“Plaintiff”) First Amended Complaint (“FAC”) is DENIED.

Defendants’ request for judicial notice 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 [“[W]hile the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in those documents, including the factual findings of the judge who was sitting as the trier of fact, is not entitled to notice.”]; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1562-1570.)

Defendants move to strike the punitive damages provisions in the FAC on the grounds that Plaintiff petitioned this Court for a restraining order against Mr. Brewer, which the Court denied after hearing. Defendants contend that because Plaintiff’s petition for a restraining order was denied, her claims for punitive damages based upon her sexual harassment allegations are not credible. This argument is rejected.

The Court is not persuaded that the denial of Plaintiff’s prior petition for a civil harassment restraining order somehow prevents her from pursuing punitive damages pursuant to this entirely separately civil action based on alleged violations of FEHA. It does not have this effect. Indeed, Defendants have set forth no legal authority that would support its contention. Moreover, in taking judicial notice of the restraining order documents, the Court simply accepts the fact of their existence, not the truth of their

contents. The factual findings therein are not entitled to judicial notice. Further, the criteria for obtaining a restraining order and pursuing civil claims under FEHA and the Labor Code are completely different and have no bearing on one another.

Under 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).)

Motions to strike are disfavored. Courts considering such motions must presume the allegations contained therein are true and must consider those allegations in context. ( Clauson v Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The use of the motion to strike should be cautious and sparing. It should not be a procedural “line item veto” for the civil defendant. (PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1683.) An allegation that is not essential to the statement of a claim or defense is an immaterial allegation that is subject to be stricken as irrelevant matter (Code Civ. Proc. §§ 431.10(b)(1), (c), 436(a)).

The Court finds Defendants have failed to set forth any sufficient basis upon which Plaintiff’s punitive damages claims should be stricken. Defendants’ motion to strike is
DENIED.

Defendants have indicated the incorrect address in its notice of motion. The correct address for Department 53 of the Sacramento County Superior Court is 813 6th Street, Sacramento, California 95814. Defendants shall notify Plaintiff immediately.

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