2018-00226011-CU-WT

Sindy Buford vs. Matheson Trucking, Inc.

Nature of Proceeding: Hearing on Demurrer to the 2nd Amended Complaint

Filed By: Jenkins, Nathaniel H.

Defendants Matheson Trucking, Inc. Matheson Flight Extenders, Inc., Matheson Mail Transportation, Inc. and Matheson Postal Services, Inc. (collectively, the “Matheson Defendants”) demurrer to plaintiff Sindy Buford’s (“Plaintiff”) Second Amended Complaint (“SAC”) is SUSTAINED with leave to amend.

Plaintiff filed her First Amended Complaint (“FAC”) against the Matheson Defendants, as well as Plaintiff’s former supervisor, Shirley Curran, on January 24, 2018, alleging the following eight causes of action: (1) Breach of Contract; (2) Breach of the Covenant of Good Faith and Fair Dealing; (3) Retaliation in Violation of Labor Code § 1102.5; (4) Retaliation in Violation of Labor Code § 6310; (5) Retaliation in Violation of the California Fair Employment and Housing Act (“FEHA”); (6) Wrongful Termination in Violation of Public Policy; (7) Intentional Infliction of Emotional Distress; and (8) Defamation.

Defendants demurred to the FAC on June 15, 2018. The demurrer was sustained with leave to amend on Plaintiff’s causes of action for FEHA retaliation, IIED, and defamation. (ROA 32.)

Plaintiff filed her SAC on August 10, 2018. Plaintiff once again names the same five Defendants, but alleges seven causes of action (minus the IIED claim): (1) Breach of Contract; (2) Breach of the Covenant of Good Faith and Fair Dealing; (3) Retaliation in Violation of Labor Code § 1102.5; (4) Retaliation in Violation of Labor Code § 6310; (5) Retaliation in Violation of the California Fair Employment and Housing Act (“FEHA”); (6) Wrongful Termination in Violation of Public Policy; and (7) Defamation.

The Matheson Defendants hereby demur to the fifth and seventh causes of action for FEHA retaliation and defamation on the grounds that they fail to state a cause of action. (CCP § 430.10(e).) The Matheson Defendants contend Plaintiff has failed to cure the legal deficiencies identified by the Court when it sustained Defendants’ demurrer to the FAC.

Legal Standard

The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) 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.)

Fifth Cause of Action for FEHA Retaliation

To establish a prima facie case of retaliation, the plaintiff must show (1) she 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.)

In particular, Government Code § 12940(h) prohibits an employer from discharging or “discriminat[ing] against any person because the person has opposed any practices forbidden under this part [relating to the Department of Fair Employment and Housing] or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”

Defendants contend that while the SAC alleges Plaintiff was “exposed to various discriminatory incidents and practices,” and that she “opposed and raised concerns about these practices,” the SAC fails to specifically allege how Plaintiff opposed these discriminatory practices. For example, Defendants argue the SAC lacks allegations as to when, where, or to whom Plaintiff allegedly communicated her opposition or concerns. As a result, the Matheson Defendants contend they are unfairly forced to draw inferences about how Plaintiff opposed the discriminatory practices. The Court agrees.

Plaintiff’s argument that the reasonable inferences that arise from the allegations are that Plaintiff communicated her opposition to the Matheson Defendants in some way. This is too vague. Plaintiff, as the one who opposed and raised concerns about the alleged discriminatory practices, should be able to provide more details as to how she opposed and raised her concerns. Defendants should not be forced to assume or infer how they think Plaintiff opposed and raised her concerns.

On reply, the Matheson Defendants argue briefly for the first that Plaintiff also failed to allege causal connection. This was not raised on the moving papers and has not, and will not, be considered by the Court on this motion.

The Matheson Defendants’ demurrer to the fifth cause of action is, therefore, SUSTAINED with leave to amend.

Eighth Cause of Action for Defamation

The Matheson Defendants demur on the grounds the SAC fails to allege which defendant made a defamatory statement and to whom an alleged defamatory statement was made.

“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage. Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith v.

Maldonado

(1999) 72 Cal.App.4th 637, 645 (citations and quotation marks omitted) (citing Civ. Code § 45, 46; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts § 471, pp. 557-558.)

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. [Citation.]'” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.) Under California law, when a plaintiff seeks damages for another’s words, such as in a defamation claim, those words “must be specifically identified, if not pleaded verbatim, in the complaint.” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612; see, e.g., Hecimovich v. Encinal Sch. Parent Teacher Org. (2012) 203 Cal.App.4th 450, 457; see also Gilbert v. Skyes (2007) 147 Cal.App.4th 13, 31.)

The SAC alleges “Defendants represented to co-workers and prospective employers that Plaintiff had engaged in misconduct. Defendants stated that Plaintiff had violated company policy.” (FAC ¶ 79.)

The Matheson Defendants contend the foregoing is insufficient because there are no alleged facts regarding who specifically made the alleged statement, when the alleged statement was made, where the alleged statement was made, or to whom the alleged statement was made. The Court agrees, in part. There are multiple named defendants in this action and it is vague to allege that all four entity defendants “made the alleged statement.” Plaintiff also fails to allege any facts as to when the alleged statement was made.

In opposition, Plaintiff relies on the case of Okun v. Superior Court (1981) 29 Cal.3d 442, 458, for the proposition that less particularity is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense. Plaintiff also relies on Okun for the proposition that slander can be charged by alleging the substance of the defamatory statement and that the exact words of the alleged slander need not be pled. (Ibid.)

The Court agrees that while the exact words of the alleged slander need not be pled, Plaintiff’s SAC does not clearly allege who made the alleged statements regarding Plaintiff having engaged in misconduct and violating company policy and when any statements were made. In this regard, the FAC is insufficient.

Moving Defendants’ demurrer to the eighth cause of action is SUSTAINED with leave to amend.

Conclusion

The demurrer to the fifth cause of action for FEHA retaliation and the seventh cause of action for defamation is SUSTAINED with leave to amend.

Plaintiff may file and serve an amended complaint, where leave to amend has been granted, no later than November 5, 2018.

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