Preview
1 SANDRA L. McDONOUGH (SBN 193308)
sandy.mcdonough@quarles.com
2 AARON J. SCHU (SBN 299701)
aaron.schu@quarles.com
3 QUARLES & BRADY LLP
101 West Broadway, Ninth Floor
4 San Diego, California 92101-8285
Telephone: 619-237-5200
5 Facsimile: 619-615-0700
6 Attorneys for Defendants THE REGENTS OF
THE UNIVERSITY OF CALIFORNIA,
7 XAVIER PROCHASKA, DAVID SUGG,
BRANT ROBERTSON, ENRICO RAMIREZ-
8 RUIZ, JOSE SANCHEZ, SUSAN FELLOWS,
PURAGRA GUHA THAKURTA,
9 CONSTANCE ROCKOSI
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF SANTA CRUZ
12
13
MARIJANA SMAILAGIC, Case No. 22CV01841
14
Plaintiff, MEMORANDUM OF POINTS AND
15 AUTHORITIES IN SUPPORT OF THE
v. REGENTS OF THE UNIVERSITY OF
16 CALIFORNIA’S SPECIAL MOTION TO
REGENTS OF THE UNIVERSITY OF STRIKE PLAINTIFF’S SECOND
17 CALIFORNIA, Xavier Prochaska, David AMENDED VERIFIED COMPLAINT
Sugg, Brant Robertson, Enrico Ramirez- Ruiz,
18 Jose Sanchez, Susan Fellows, Puragra (Raja) Date: December 21, 2023
Guha Thakurta, Constance (Connie) Rockosi, Time: 8:30 a.m.
19
Defendants. Judge: Timothy Volkmann
20 Dept.: 5
Action Filed: August 25, 2022
21 Trial Date: Not Set
22 EXEMPT FROM FEES
GOVT. CODE § 6103
23
24
25
26
27
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO
STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
1 I. INTRODUCTION1
2 Plaintiff Marijana Smailagic (“Plaintiff”) was a graduate student at the University of
3 California, Santa Cruz (“The Regents” or the “University”) in the Department of Astronomy and
4 Astrophysics, who was dismissed from the University for failure to make sufficient academic
5 progress in her program and after failing to meet the terms of her academic probation. She brings
6 this action against The Regents and eight of her former professors, advisors, and University
7 investigators/human resources employees, including: Xavier Prochaska, David Sugg, Brant
8 Robertson, Enrico Ramirez-Ruiz, Jose Sanchez, Susan Fellows, Puragra Guha Thakurta, and
9 Constance Rockosi (the “Individual Defendants”).
10 Following this Court’s ruling sustaining in part, and overruling in part, the Individual
11 Defendants’ demurrer to Plaintiff’s First Amended Verified Complaint (“FAC”), Plaintiff filed a
12 Second Amended Verified Complaint (“SAC”). The SAC continues to suffer from multiple
13 defects that subject several portions of the SAC to a motion to strike. Specifically, the harassment
14 and discrimination claims that have been re-pleaded in the SAC still fail, as they did with the last
15 demurrer, to the extent they incorporate the Unruh Act because, as this Court has already ruled,
16 The Regents is not a business establishment under the Unruh Act. Moreover, this Court has
17 already ruled that the harassment claim is time barred. The following portions of the SAC should
18 thus be stricken:
19 • Plaintiff, Marijana Smailagic, brings this action in her own name to remedy
violations of the California Fair Employment and Housing Act (Government Code,
20 § 12900 et seq.) and Unruh Civil rights Act (Civ. Code, §§ 51, 52), and related
violations, by Defendant Regents of the University of California (“the University”),
21 as well as by individual Defendants Xavier Prochaska, David Sugg, Brant
Robertson, Enrico Ramirez-Ruiz, Jose Sanchez, Susan Fellows, Puragra (Raja)
22 Guha Thakurta, Constance (Connie) Rockosi (SAC preamble);
23 • In violation of FEHA and Unruh Civil Rights Act, the University failed to
reasonably accommodate Plaintiff’s physical and mental disability and denied
24 Plaintiff full and equal accommodations, advantages, facilities, privileges and/or
services because of her mental disability (SAC ¶ 180; COA 5);
25
26
This motion to strike is being brought together with The Regents’ demurrer to Plaintiff’s SAC, and the
1
27 Individual Defendants’ demurrer to SAC, filed concurrently herewith. This motion to strike addresses only
the references to the Unruh Act, and does not address the remaining deficiencies that are fully briefed in the
28 accompanying demurrers, but incorporates those arguments by reference.
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO
STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
1 • (If Plaintiff’s experiences raise to the level of national origin harassment, Plaintiff
also pleads cause of action Harassment Because of National Origin, Gov. Code, §
2 12923; Gov. Code, § 12940(j); Ed. Code, §§ 220 and 66270 et seq.; Unruh Civil
Rights Act – Civ. Code, §§ 51, 52. In such case, Plaintiff also includes (c) and (i)
3 events from the cause of action Harassment Because of Disability.) (SAC ¶ 205;
COA 6).
4
5 For these reasons, The Regents requests that this Court grant its motion to strike the above
6 referenced paragraphs (or portions thereof) from the SAC.
7 II. RELEVANT PROCEDURAL HISTORY
8 On August 25, 2022, Plaintiff filed her Complaint. Plaintiff subsequently amended and
9 filed the FAC on December 14, 2022. The FAC asserted the following claims: a) discrimination
10 based on mental/physical disabilities under the Fair Employment and Housing Act (“FEHA”)
11 (COAs 1, 3, 4, 5), the Unruh Civil Rights Act (COA 9), and Government Code section 11135
12 (COA 10); b) failure to accommodate under FEHA and the Unruh Civil Rights Act (COA 6); c)
13 national origin discrimination under FEHA and the Unruh Civil Rights Act (COAs 8, 9); d)
14 harassment under FEHA, Education Code section 220, and the Unruh Civil Rights Act (COA 7);
15 e) retaliation under FEHA (COA 11); f) failure to prevent discrimination/harassment under FEHA
16 and Education Code section 220 (COA 12); g) breach of contract (COA 13); h) estoppel and
17 reliance (COA 14); i) defamation and false light (COA 15); j) negligence (COA 16); k) intentional
18 infliction of emotional distress (COA 17); and l) violation of COVID-Supplemental Paid Sick
19 Leave (COA 2).
20 On or about July 14, 2023, this Court issued a tentative ruling regarding The Regents’
21 demurrer to the FAC, which was adopted on or about July 27, 2023, with modifications. (See
22 Court’s July 27, 2023 Order on Demurrer [“Order”]; see also July 14, 2023 Tentative Ruling
23 (“TR”).) Specifically: The Regents’ demurrer was sustained (without leave to amend) as to
24 Plaintiff’s claims based on the Unruh Act, Plaintiff’s cause of action related to harassment, her
25 claim for violation of COVID-19 supplemental paid sick leave, and her claim for defamation/false
26 light.2
27
28
2
This motion to strike does not address the fact that The Regents’ demurrer to the FAC was granted as to
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO
STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
1 On or about August 14, 2023, Plaintiff filed a SAC asserting the following claims: FEHA
2 discrimination (COA 1); FEHA failure to engage in the interactive process (COA 2); disparate
3 impact disability discrimination (COA 3); physical disability discrimination (COA 4); FEHA
4 failure to reasonably accommodate disability (COA 5); national origin discrimination (COA 6);
5 discrimination based on status as recipient of state funding (COA 7); FEHA retaliation (COA 8);
6 FEHA failure to prevent discrimination, retaliation and harassment (COA 9); breach of contract
7 (COA 10); promissory estoppel and reliance (COA 11); negligence (COA 12); and IIED (COA
8 13).3
9 III. LEGAL STANDARD ON MOTION TO STRIKE
10 Any party may file a motion to strike a pleading, including a cross-complaint, if the
11 pleading is defective. (Code Civ. Proc., § 435.) “Any party, within the time allowed to respond to
12 a pleading may serve and file a Notice of Motion to Strike the whole or any part thereof…” (Code
13 Civ. Proc., § 435(b)(1).) This motion has been filed within the time prescribed for pleading to the
14 Complaint. (Code Civ. Proc., § 586(a)(l).) Further, a court may grant a motion to strike “in its
15 discretion . . . all or any part of any pleading not drawn or filed in conformity with the laws of this
16 state, a court rule, or an order of the court.” (Code Civ. Proc., § 436(b).)
17 Code of Civil Procedure section 436 allows for a motion to strike “any irrelevant, false, or
18 improper matter asserted in any pleading” or portion of a pleading “not drawn or filed in
19 conformity with the laws of this state.” A motion to strike is proper “when a substantive defect is
20 clear from the face of a complaint.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680,
21 1682-83.) A motion to strike is the appropriate procedural device when challenging a portion of a
22 cause of action. (Caliber Bodyworks, Inc. v. Super. Ct. (2005) 134 Cal.App.4th 365, 385
23 (disapproved on other grounds).)
24
25
several claims with leave to amend, as those are separately addressed in the corresponding demurrer to
26 SAC, filed concurrently herewith.
3
27 All thirteen claims are brought against The Regents; only COAs 12-13 are also brought against Individual
Defendants. However, COAs 10-11 are impliedly brought against Individual Defendant Ruiz by reference
28 only.
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO
STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
1 IV. PLAINTIFF’S SAC INAPPROPRIATELY ATTEMPTS TO SNEAK IN A CLAIM
2 FOR HARASSMENT WHICH THE COURT ALREADY ADJUDICATED IN THE
3 REGENTS’ FAVOR.
4 This Court previously ruled that:
5 Plaintiff’s claims based in the Unruh Act (Civil Code §§51, 52) fail since Regents
is not a business entity covered by the statutory scheme. Brennon B. v. Superior
6 Court (2020) 57 Cal.App.5th 367, 379. The Court sustains the demurrer as to the
9th cause of action without leave to amend. Plaintiff’s cause of action related to
7 harassment by the University is time-barred…the FAC fails to show any allegations
related to harassment past early 2019. Therefore, the Court sustains the demurrer
8 without leave to amend.” (TR at p. 12.)
9 Despite this clear order, Plaintiff realleges her claim for harassment (stemming partly from
10 the Unruh Act) embedded within her claim for national origin discrimination (COA 6) as follows:
11 “(If Plaintiff’s experiences raise to the level of national origin harassment, Plaintiff also
12 pleads cause of action Harassment Because of National Origin, Gov. Code, § 12923; Gov.
13 Code, § 12940(j); Ed. Code, §§ 220 and 66270 et seq.; Unruh Civil Rights Act – Civ. Code, §§
14 51, 52. In such case, Plaintiff also includes (c) and (i) events from the cause of action Harassment
15 Because of Disability.)” (SAC ¶ 205; COA 6 (emphasis added).)
16 Plaintiff’s attempt to re-assert her harassment claim should fail, and paragraph 205 should
17 be stricken in its entirety, because as this Court ruled, Plaintiff’s harassment claim is time barred:
18 “…[T]he Court finds that Plaintiff’s harassment claims are time barred…Plaintiff’s FAC describes
19 the harassing conduct at para. 53-66 (details include dates of conduct) and 192-205 (allegations do
20 not refer to dates). The harassing events appear to have occurred in Fall 2017 and Winter 2018.
21 Plaintiff was required to file a FEHA complaint within one year of that, which would have been
22 Winter 2019…and Plaintiff’s cause of action related to harassment by the University is time-
23 barred. As described above, the FAC fails to show any allegations related to harassment past early
24 2019. Therefore, the Court sustains the demurrer without leave to amend.” (TR at 8-9, 12.) The
25 SAC does not allege any (new) facts related to harassment, following 2019. The claim remains
26 time barred and should be stricken.
27 / / /
28 / / /
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO
STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
1 Plaintiff’s veiled attempt to reintroduce her harassment cause of action also fails to the
2 extent it relies on the Unruh Civil Rights Act, as further discussed in section V below.
3 V. PLAINTIFF’S SAC STILL RELIES ON THE UNRUH ACT DESPITE THIS
4 COURT’S CLEAR INSTRUCTION OTHERWISE
5 Plaintiff also references the Unruh Act in her claim alleging disability discrimination and
6 failure to accommodate as follows: “In violation of FEHA and Unruh Civil Rights Act, the
7 University failed to reasonably accommodate Plaintiff’s physical and mental disability and denied
8 Plaintiff full and equal accommodations, advantages, facilities, privileges and/or services because
9 of her mental disability.” (SAC ¶ 180; COA 5 (emphasis added).)
10 The harassment4 and discrimination claims (COAs 5-6) fail to the extent they incorporate
11 the Unruh Act because, as this Court has already ruled, The Regents is not a business
12 establishment under the Unruh Act. (See TR at 12.)
13 Plaintiff’s harassment and discrimination claims, COAs 5 and 6, are brought in part, based
14 on the Unruh Civil Rights Act, which requires Plaintiff to prove that The Regents is a “business
15 establishment” for purposes of the Unruh Act. (Civ. Code, § 51; SAC ¶¶ 180, 205.) As this Court
16 has recognized, however, The Regents, is not a “business establishment” under the Unruh Act and
17 is thus not liable under its provisions. (Brennon, 57 Cal.App.5th at 397, aff’d sub nom, 13 Cal.5th
18 662, reh’g denied (Aug. 31, 2022) [public school districts are not “business establishments” under
19 the Unruh Act]; Hart v. Cult Awareness Network (1993) 13 Cal.App.4th 777, 788-789 [group that
20 educates the public about cults is not a “business”; membership was “largely discretionary, highly
21 restricted and selective”].) The Unruh Act prohibits discrimination by “business establishments.”
22 (Civ. Code, § 51(a).) Although the term “business” is “not necessarily limited to activities
23 engaged in for profit . . . , it is nevertheless confined to activities engaged in by private entities,
24 unless a contrary intent is apparent from the statutory language.” (Sacramento Mun. Util Dist. v.
25 County of Solano (1977) 54 Cal.App.4th 1163, 1169.)
26 / / /
27
28
4
The harassment claim is also time barred, as discussed extensively in The Regents’ demurrer to SAC.
6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO
STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
1 The Unruh Act makes no mention of application to public entities, and does nothing to
2 rebut the presumption that it is inapplicable to public entities. Indeed, the Court of Appeal has
3 specifically found that “there is nothing in the legislative history of the Unruh Act, itself, that
4 suggests the Act was intended to reach discriminatory conduct by state agents, such as public
5 school districts and, again, there is much to indicate otherwise.” (Brennon, supra, 57 Cal.App.5th
6 at p. 379.) Further, courts have routinely suggested the Unruh Act was only intended to cover
7 private business establishments. (Isbister v. Boys’ Club of Santa Cruz (1985) 40 Cal.3d 72, 75
8 [“The Act is this state’s bulwark against arbitrary discrimination in places of public
9 accommodation. Absent the principle it codifies, thousands of facilities in private ownership, but
10 otherwise open to the public, would be free under state law to exclude people for invidious reasons
11 like sex, religion, age, and even race”].)
12 What’s more, various Courts of Appeal have held that Unruh Act claims against specific
13 public entities failed, concluding those particular public entities were not business establishments
14 within the meaning of the Unruh Act. (Spanish Speaking Citizens’ Found. v. Low (2000) 85
15 Cal.App.4th 1179, 1240 [holding that “the Department [of Insurance] is not a ‘business
16 establishment’ within the meaning of the Unruh Civil Rights Act”]; Burnett v. San Francisco
17 Police Dep’t (1995) 35 Cal.App.4th 1177, 1191-1192 [Unruh Act cannot be used to state a claim
18 against “legislative bodies”].)
19 This motion to strike should be granted on these separate grounds as well.
20 VI. CONCLUSION
21 Thus, because the Unruh Act is inapplicable to public entities, and because The Regents is
22 not a “business establishment” under the Unruh Act, Plaintiff’s COAs 5-6 against The Regents
23 alleging Unruh Act violations still fail as a matter of law. All references to the Unruh act should
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO
STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
1 be stricken from those portions of the SAC. Paragraph 205 should also be stricken in its entirety
2 because any claim for harassment is time barred.
3 Dated: November 27, 2023 QUARLES & BRADY LLP
4
By:
5
SANDRA L. McDONOUGH
6 AARON J. SCHU
Attorneys for Defendants THE REGENTS OF THE
7 UNIVERSITY OF CALIFORNIA, XAVIER
PROCHASKA, DAVID SUGG, BRANT
8
ROBERTSON, ENRICO RAMIREZ- RUIZ, JOSE
9 SANCHEZ, SUSAN FELLOWS, PURAGRA
GUHA THAKURTA, CONSTANCE ROCKOSI
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO
STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT
Preview
1 SANDRA L. McDONOUGH (SBN 193308) sandy.mcdonough@quarles.com 2 AARON J. SCHU (SBN 299701) aaron.schu@quarles.com 3 QUARLES & BRADY LLP 101 West Broadway, Ninth Floor 4 San Diego, California 92101-8285 Telephone: 619-237-5200 5 Facsimile: 619-615-0700 6 Attorneys for Defendants THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, 7 XAVIER PROCHASKA, DAVID SUGG, BRANT ROBERTSON, ENRICO RAMIREZ- 8 RUIZ, JOSE SANCHEZ, SUSAN FELLOWS, PURAGRA GUHA THAKURTA, 9 CONSTANCE ROCKOSI 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SANTA CRUZ 12 13 MARIJANA SMAILAGIC, Case No. 22CV01841 14 Plaintiff, MEMORANDUM OF POINTS AND 15 AUTHORITIES IN SUPPORT OF THE v. REGENTS OF THE UNIVERSITY OF 16 CALIFORNIA’S SPECIAL MOTION TO REGENTS OF THE UNIVERSITY OF STRIKE PLAINTIFF’S SECOND 17 CALIFORNIA, Xavier Prochaska, David AMENDED VERIFIED COMPLAINT Sugg, Brant Robertson, Enrico Ramirez- Ruiz, 18 Jose Sanchez, Susan Fellows, Puragra (Raja) Date: December 21, 2023 Guha Thakurta, Constance (Connie) Rockosi, Time: 8:30 a.m. 19 Defendants. Judge: Timothy Volkmann 20 Dept.: 5 Action Filed: August 25, 2022 21 Trial Date: Not Set 22 EXEMPT FROM FEES GOVT. CODE § 6103 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT 1 I. INTRODUCTION1 2 Plaintiff Marijana Smailagic (“Plaintiff”) was a graduate student at the University of 3 California, Santa Cruz (“The Regents” or the “University”) in the Department of Astronomy and 4 Astrophysics, who was dismissed from the University for failure to make sufficient academic 5 progress in her program and after failing to meet the terms of her academic probation. She brings 6 this action against The Regents and eight of her former professors, advisors, and University 7 investigators/human resources employees, including: Xavier Prochaska, David Sugg, Brant 8 Robertson, Enrico Ramirez-Ruiz, Jose Sanchez, Susan Fellows, Puragra Guha Thakurta, and 9 Constance Rockosi (the “Individual Defendants”). 10 Following this Court’s ruling sustaining in part, and overruling in part, the Individual 11 Defendants’ demurrer to Plaintiff’s First Amended Verified Complaint (“FAC”), Plaintiff filed a 12 Second Amended Verified Complaint (“SAC”). The SAC continues to suffer from multiple 13 defects that subject several portions of the SAC to a motion to strike. Specifically, the harassment 14 and discrimination claims that have been re-pleaded in the SAC still fail, as they did with the last 15 demurrer, to the extent they incorporate the Unruh Act because, as this Court has already ruled, 16 The Regents is not a business establishment under the Unruh Act. Moreover, this Court has 17 already ruled that the harassment claim is time barred. The following portions of the SAC should 18 thus be stricken: 19 • Plaintiff, Marijana Smailagic, brings this action in her own name to remedy violations of the California Fair Employment and Housing Act (Government Code, 20 § 12900 et seq.) and Unruh Civil rights Act (Civ. Code, §§ 51, 52), and related violations, by Defendant Regents of the University of California (“the University”), 21 as well as by individual Defendants Xavier Prochaska, David Sugg, Brant Robertson, Enrico Ramirez-Ruiz, Jose Sanchez, Susan Fellows, Puragra (Raja) 22 Guha Thakurta, Constance (Connie) Rockosi (SAC preamble); 23 • In violation of FEHA and Unruh Civil Rights Act, the University failed to reasonably accommodate Plaintiff’s physical and mental disability and denied 24 Plaintiff full and equal accommodations, advantages, facilities, privileges and/or services because of her mental disability (SAC ¶ 180; COA 5); 25 26 This motion to strike is being brought together with The Regents’ demurrer to Plaintiff’s SAC, and the 1 27 Individual Defendants’ demurrer to SAC, filed concurrently herewith. This motion to strike addresses only the references to the Unruh Act, and does not address the remaining deficiencies that are fully briefed in the 28 accompanying demurrers, but incorporates those arguments by reference. 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT 1 • (If Plaintiff’s experiences raise to the level of national origin harassment, Plaintiff also pleads cause of action Harassment Because of National Origin, Gov. Code, § 2 12923; Gov. Code, § 12940(j); Ed. Code, §§ 220 and 66270 et seq.; Unruh Civil Rights Act – Civ. Code, §§ 51, 52. In such case, Plaintiff also includes (c) and (i) 3 events from the cause of action Harassment Because of Disability.) (SAC ¶ 205; COA 6). 4 5 For these reasons, The Regents requests that this Court grant its motion to strike the above 6 referenced paragraphs (or portions thereof) from the SAC. 7 II. RELEVANT PROCEDURAL HISTORY 8 On August 25, 2022, Plaintiff filed her Complaint. Plaintiff subsequently amended and 9 filed the FAC on December 14, 2022. The FAC asserted the following claims: a) discrimination 10 based on mental/physical disabilities under the Fair Employment and Housing Act (“FEHA”) 11 (COAs 1, 3, 4, 5), the Unruh Civil Rights Act (COA 9), and Government Code section 11135 12 (COA 10); b) failure to accommodate under FEHA and the Unruh Civil Rights Act (COA 6); c) 13 national origin discrimination under FEHA and the Unruh Civil Rights Act (COAs 8, 9); d) 14 harassment under FEHA, Education Code section 220, and the Unruh Civil Rights Act (COA 7); 15 e) retaliation under FEHA (COA 11); f) failure to prevent discrimination/harassment under FEHA 16 and Education Code section 220 (COA 12); g) breach of contract (COA 13); h) estoppel and 17 reliance (COA 14); i) defamation and false light (COA 15); j) negligence (COA 16); k) intentional 18 infliction of emotional distress (COA 17); and l) violation of COVID-Supplemental Paid Sick 19 Leave (COA 2). 20 On or about July 14, 2023, this Court issued a tentative ruling regarding The Regents’ 21 demurrer to the FAC, which was adopted on or about July 27, 2023, with modifications. (See 22 Court’s July 27, 2023 Order on Demurrer [“Order”]; see also July 14, 2023 Tentative Ruling 23 (“TR”).) Specifically: The Regents’ demurrer was sustained (without leave to amend) as to 24 Plaintiff’s claims based on the Unruh Act, Plaintiff’s cause of action related to harassment, her 25 claim for violation of COVID-19 supplemental paid sick leave, and her claim for defamation/false 26 light.2 27 28 2 This motion to strike does not address the fact that The Regents’ demurrer to the FAC was granted as to 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT 1 On or about August 14, 2023, Plaintiff filed a SAC asserting the following claims: FEHA 2 discrimination (COA 1); FEHA failure to engage in the interactive process (COA 2); disparate 3 impact disability discrimination (COA 3); physical disability discrimination (COA 4); FEHA 4 failure to reasonably accommodate disability (COA 5); national origin discrimination (COA 6); 5 discrimination based on status as recipient of state funding (COA 7); FEHA retaliation (COA 8); 6 FEHA failure to prevent discrimination, retaliation and harassment (COA 9); breach of contract 7 (COA 10); promissory estoppel and reliance (COA 11); negligence (COA 12); and IIED (COA 8 13).3 9 III. LEGAL STANDARD ON MOTION TO STRIKE 10 Any party may file a motion to strike a pleading, including a cross-complaint, if the 11 pleading is defective. (Code Civ. Proc., § 435.) “Any party, within the time allowed to respond to 12 a pleading may serve and file a Notice of Motion to Strike the whole or any part thereof…” (Code 13 Civ. Proc., § 435(b)(1).) This motion has been filed within the time prescribed for pleading to the 14 Complaint. (Code Civ. Proc., § 586(a)(l).) Further, a court may grant a motion to strike “in its 15 discretion . . . all or any part of any pleading not drawn or filed in conformity with the laws of this 16 state, a court rule, or an order of the court.” (Code Civ. Proc., § 436(b).) 17 Code of Civil Procedure section 436 allows for a motion to strike “any irrelevant, false, or 18 improper matter asserted in any pleading” or portion of a pleading “not drawn or filed in 19 conformity with the laws of this state.” A motion to strike is proper “when a substantive defect is 20 clear from the face of a complaint.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 21 1682-83.) A motion to strike is the appropriate procedural device when challenging a portion of a 22 cause of action. (Caliber Bodyworks, Inc. v. Super. Ct. (2005) 134 Cal.App.4th 365, 385 23 (disapproved on other grounds).) 24 25 several claims with leave to amend, as those are separately addressed in the corresponding demurrer to 26 SAC, filed concurrently herewith. 3 27 All thirteen claims are brought against The Regents; only COAs 12-13 are also brought against Individual Defendants. However, COAs 10-11 are impliedly brought against Individual Defendant Ruiz by reference 28 only. 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT 1 IV. PLAINTIFF’S SAC INAPPROPRIATELY ATTEMPTS TO SNEAK IN A CLAIM 2 FOR HARASSMENT WHICH THE COURT ALREADY ADJUDICATED IN THE 3 REGENTS’ FAVOR. 4 This Court previously ruled that: 5 Plaintiff’s claims based in the Unruh Act (Civil Code §§51, 52) fail since Regents is not a business entity covered by the statutory scheme. Brennon B. v. Superior 6 Court (2020) 57 Cal.App.5th 367, 379. The Court sustains the demurrer as to the 9th cause of action without leave to amend. Plaintiff’s cause of action related to 7 harassment by the University is time-barred…the FAC fails to show any allegations related to harassment past early 2019. Therefore, the Court sustains the demurrer 8 without leave to amend.” (TR at p. 12.) 9 Despite this clear order, Plaintiff realleges her claim for harassment (stemming partly from 10 the Unruh Act) embedded within her claim for national origin discrimination (COA 6) as follows: 11 “(If Plaintiff’s experiences raise to the level of national origin harassment, Plaintiff also 12 pleads cause of action Harassment Because of National Origin, Gov. Code, § 12923; Gov. 13 Code, § 12940(j); Ed. Code, §§ 220 and 66270 et seq.; Unruh Civil Rights Act – Civ. Code, §§ 14 51, 52. In such case, Plaintiff also includes (c) and (i) events from the cause of action Harassment 15 Because of Disability.)” (SAC ¶ 205; COA 6 (emphasis added).) 16 Plaintiff’s attempt to re-assert her harassment claim should fail, and paragraph 205 should 17 be stricken in its entirety, because as this Court ruled, Plaintiff’s harassment claim is time barred: 18 “…[T]he Court finds that Plaintiff’s harassment claims are time barred…Plaintiff’s FAC describes 19 the harassing conduct at para. 53-66 (details include dates of conduct) and 192-205 (allegations do 20 not refer to dates). The harassing events appear to have occurred in Fall 2017 and Winter 2018. 21 Plaintiff was required to file a FEHA complaint within one year of that, which would have been 22 Winter 2019…and Plaintiff’s cause of action related to harassment by the University is time- 23 barred. As described above, the FAC fails to show any allegations related to harassment past early 24 2019. Therefore, the Court sustains the demurrer without leave to amend.” (TR at 8-9, 12.) The 25 SAC does not allege any (new) facts related to harassment, following 2019. The claim remains 26 time barred and should be stricken. 27 / / / 28 / / / 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT 1 Plaintiff’s veiled attempt to reintroduce her harassment cause of action also fails to the 2 extent it relies on the Unruh Civil Rights Act, as further discussed in section V below. 3 V. PLAINTIFF’S SAC STILL RELIES ON THE UNRUH ACT DESPITE THIS 4 COURT’S CLEAR INSTRUCTION OTHERWISE 5 Plaintiff also references the Unruh Act in her claim alleging disability discrimination and 6 failure to accommodate as follows: “In violation of FEHA and Unruh Civil Rights Act, the 7 University failed to reasonably accommodate Plaintiff’s physical and mental disability and denied 8 Plaintiff full and equal accommodations, advantages, facilities, privileges and/or services because 9 of her mental disability.” (SAC ¶ 180; COA 5 (emphasis added).) 10 The harassment4 and discrimination claims (COAs 5-6) fail to the extent they incorporate 11 the Unruh Act because, as this Court has already ruled, The Regents is not a business 12 establishment under the Unruh Act. (See TR at 12.) 13 Plaintiff’s harassment and discrimination claims, COAs 5 and 6, are brought in part, based 14 on the Unruh Civil Rights Act, which requires Plaintiff to prove that The Regents is a “business 15 establishment” for purposes of the Unruh Act. (Civ. Code, § 51; SAC ¶¶ 180, 205.) As this Court 16 has recognized, however, The Regents, is not a “business establishment” under the Unruh Act and 17 is thus not liable under its provisions. (Brennon, 57 Cal.App.5th at 397, aff’d sub nom, 13 Cal.5th 18 662, reh’g denied (Aug. 31, 2022) [public school districts are not “business establishments” under 19 the Unruh Act]; Hart v. Cult Awareness Network (1993) 13 Cal.App.4th 777, 788-789 [group that 20 educates the public about cults is not a “business”; membership was “largely discretionary, highly 21 restricted and selective”].) The Unruh Act prohibits discrimination by “business establishments.” 22 (Civ. Code, § 51(a).) Although the term “business” is “not necessarily limited to activities 23 engaged in for profit . . . , it is nevertheless confined to activities engaged in by private entities, 24 unless a contrary intent is apparent from the statutory language.” (Sacramento Mun. Util Dist. v. 25 County of Solano (1977) 54 Cal.App.4th 1163, 1169.) 26 / / / 27 28 4 The harassment claim is also time barred, as discussed extensively in The Regents’ demurrer to SAC. 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT 1 The Unruh Act makes no mention of application to public entities, and does nothing to 2 rebut the presumption that it is inapplicable to public entities. Indeed, the Court of Appeal has 3 specifically found that “there is nothing in the legislative history of the Unruh Act, itself, that 4 suggests the Act was intended to reach discriminatory conduct by state agents, such as public 5 school districts and, again, there is much to indicate otherwise.” (Brennon, supra, 57 Cal.App.5th 6 at p. 379.) Further, courts have routinely suggested the Unruh Act was only intended to cover 7 private business establishments. (Isbister v. Boys’ Club of Santa Cruz (1985) 40 Cal.3d 72, 75 8 [“The Act is this state’s bulwark against arbitrary discrimination in places of public 9 accommodation. Absent the principle it codifies, thousands of facilities in private ownership, but 10 otherwise open to the public, would be free under state law to exclude people for invidious reasons 11 like sex, religion, age, and even race”].) 12 What’s more, various Courts of Appeal have held that Unruh Act claims against specific 13 public entities failed, concluding those particular public entities were not business establishments 14 within the meaning of the Unruh Act. (Spanish Speaking Citizens’ Found. v. Low (2000) 85 15 Cal.App.4th 1179, 1240 [holding that “the Department [of Insurance] is not a ‘business 16 establishment’ within the meaning of the Unruh Civil Rights Act”]; Burnett v. San Francisco 17 Police Dep’t (1995) 35 Cal.App.4th 1177, 1191-1192 [Unruh Act cannot be used to state a claim 18 against “legislative bodies”].) 19 This motion to strike should be granted on these separate grounds as well. 20 VI. CONCLUSION 21 Thus, because the Unruh Act is inapplicable to public entities, and because The Regents is 22 not a “business establishment” under the Unruh Act, Plaintiff’s COAs 5-6 against The Regents 23 alleging Unruh Act violations still fail as a matter of law. All references to the Unruh act should 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT 1 be stricken from those portions of the SAC. Paragraph 205 should also be stricken in its entirety 2 because any claim for harassment is time barred. 3 Dated: November 27, 2023 QUARLES & BRADY LLP 4 By: 5 SANDRA L. McDONOUGH 6 AARON J. SCHU Attorneys for Defendants THE REGENTS OF THE 7 UNIVERSITY OF CALIFORNIA, XAVIER PROCHASKA, DAVID SUGG, BRANT 8 ROBERTSON, ENRICO RAMIREZ- RUIZ, JOSE 9 SANCHEZ, SUSAN FELLOWS, PURAGRA GUHA THAKURTA, CONSTANCE ROCKOSI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE REGENTS’ SPECIAL MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED VERIFIED COMPLAINT