Preview
1 XAVIER BECERRA EXEMPT
Attorney General of California Gov. Code§ 6103
2 PETER D. HALLORAN
Supervising Deputy Attorney General
3 JERRY J. DESCHLER
Deputy Attorney General
4 State Bar No. 215691
1300 I Street, Suite 125 7/18/2019
5 P.O. Box 944255
Sacramento, CA 94244-2550
6 Telephone: (916) 210-7871
Fax: (916) 324-5567
7 E-mail: Jerry.Deschler@doj.ca.gov
Attorneys for Defendants
8 Board of Trustees of the California State University,
which is the State of California acting in its higher
9 education capacity (erroneously sued as "Trustees
of the California State University, State of
10 Cal/fornia"), Cynthia Daley, and Debra Larson
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF BUTTE
13 CIVIL DIVISION
14
15
TERESA RANDOLPH, Case No. 19CV01226
16
Plaintiff, DEFENDANTS' NOTICE OF
17 DEMURRERANDDEMURRERTO
v. FIRST AMENDED COMPLAINT
18
Date: August 28, 2019
19 TRUSTEES OF THE CALIFORNIA Time: 9:00 a.m.
STATE UNIVERSITY, STATE OF Dept: 10
20 CALIFORNIA, AND CYNTHIA DALEY, Judge: Robert A Glusman
AN INDIVIDUAL, AND DEBRA LARSON, Trial Date: none
21 AN INDIVIDUAL, Action Filed: April 24, 2019
22 Defendants.
23
24 TO PLAINTIFF AND HER ATTORNEY OF RECORD:
25 PLEASE TAKE NOTICE that Defendants Board of Trustees of the California State
26 University, which is the State of California acting in its higher education capacity (erroneously
27 sued as "Trustees of the California State University, State of California"), Cynthia Daley, and
28 Debra Larson (collectively "Defendants") hereby demur to Plaintiff Teresa Randolph's
1
Defendants' Notice of Demurrer and Demurrer lo First Amended Complaint (19CV01226)
1 ("Randolph") First Amended Complaint (the "FAC"). The demurrer is scheduled for hearing on
2 August 28, 2019, at 9:00 a.m., in Dept. 10 at the Superior Court of California in and for the
3 County of Butte, located at 1775 Concord Ave, Chico, California 95928.
4 The demurrer will be based on this notice of demurrer and demurrer, the memorandum of
5 points and authorities in support of the demurrer, the request for judicial notice and attachments
6 thereto, the pleadings and papers on file in this action, and upon any such other evidence as may
7 be presented at the hearing.
8 PLEASE ALSO TAKE NOTICE that pursuant to Local Rule 2.9, the court follows the
9 tentative ruling procedure set forth in California Rules of Court, rule 3.1308(a)(l). Tentative
10 rulings on law and motion matters will be available on the Court's website at
11 www.buttecourt.ca.gQY_ and by telephone at (530) 532-7022 by 3:00 p.m. on the court day
12 preceding the hearing.
13 DEMURRER
14 Defendants hereby demur to the FAC, filed on May 29, 2019. This demurrer is brought
15 pursuant to Code of Civil Procedure Section 430.10, subdivision (e). At the hearing, Defendants
16 will move for an order granting its demurrer to the FAC on the following separate and
17 independent grounds:
18 1. Second Cause of Action: "Retaliation Based on Disability" under the California Fair
19 Employment and I-lousing Act ("FEI-IA''). The demurrer to the second cause of action should be
20 sustained because no such cause of action exists by regulation or statute. California Code of
21 Regulations, Title 2, section 11021 does not provide for a private right of action. Additionally,
22 neither the FEI-IA nor the interpretive regulations suppo1t a cause of action for "retaliation based
23 on disability."
24 2. Ninth Cause of Action: "Wrongful Termination/Constructive Discharge." The
25 demurrer to the ninth cause of action should be sustained because the common law claim of
26 "wrongful termination/constructive discharge" is barred by the state's sovereign immunity. (Gov.
27 Code, § 815; see also Miklosy v. Regents of the University of Calif (2008) 44 Cal.4th 876, 899
28 [affirming judgment sustaining demurrer].)
2
Defendants' Notice of Demurrer and Demurrer to First Amended Complaint (19CV01226)
1 3. Tenth Cause of Action: Intentional Infliction of Emotional Distress. The demurrer
2 to the tenth cause of action should be sustained because the tort of intentional infliction of
3 emotional distress is barred by the exclusivity provision of the Workers' Compensation Act
4 codified at Labor Code section 3200 et. seq. Additionally, the FAC fails to state facts sufficient
5 to sustain a cause of action for intentional infliction of emotional distress. A complaint must
6 "state facts sufficient to constitute a cause of action." (Code Civ. Proc.,§§ 425.10, subd. (a),
7 430.10, subd. (e).)
8 4. Twelfth Cause of Action: Defamation. The demurrer to the twelfth cause of action
9 should be sustained because the facts pleaded do not state a cause of action. (Code Civ. Proc., §
10 430, subd. (e). ) The alleged statement attributed to individual defendant Larson does not satisfy
11 any of the elements of a defamation cause of action and is not defamatory. (Jensen v. Hewlett
12 Packard Co. (1993) 14 Cal.App.4th 958,965 [statements that employee "had been the subject of
13 some third party complaints, was not carrying his weight, had a negative attitude in dealing with
14 others, evidenced a lack of direction in his project activities and was unwilling to take
15 responsibility for the projects he oversaw" were statements of opinion].) The alleged statement
16 attributed to individual defendant Daley, if made, is privileged. (Civ. Code,§ 47, subd. (c); see
17 King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440-42 [employer conveying
18 reasons an employee was fired to other employee drivers was privileged].)
19 5. Thirteenth Cause of Action: Invasion of Privacy. The demurrer to the thirteenth
20 cause of action should be sustained because the facts pleaded do not state a cause of action.
21 (Code Civ. Proc.,§ 430, subd. (e).) The sole communication alleged as the basis of the thirteenth
22 cause of action neither seeks nor reveals any information protected by a privacy interest. No facts
23 exist or are alleged establishing the requisite "egregious breach of the social norms underlying the
24 privacy right." (Hill v. National Collegiate Athletic Ass 'n (1994) 7 Cal.4th 16, 37.)
25 6. Fourteenth Cause of Action: Meal and Rest Period Violations (Lab. Code, §§ ·
26 226.7, 512. The demurrer to the fourteenth cause of action should be sustained because public
27 entities are exempt from and immune to the Labor Code claims alleged in Randolph's FAC.
28
3
Defendants' Notice of Demurrer and Demurrer to First Amended Complaint (19CV01226)
1 (Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729 [sustaining demurrer
2 to complaint].)
3 7. Fifteenth Cause of Action: Waiting Time Penalties (Lab. Code, § 203. The
4 demurrer to the fifteenth cause of action should be sustained because it is derivative of and
5 wholly dependent on Randolph's fifteenth cause of action, which is improper as a matter of law.
6 (Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729 [sustaining demurrer
7 to complaint].)
8 8. Sixteenth Cause of Action: Breach of Contract. The demurrer to the sixteenth cause
9 of action should be sustained because Randolph fails to allege facts sufficient to state a claim.
10 (Code Civ. Proc.,§ 430, subd. (e).) Randolph does not and cannot allege the existence of a
11 written employment contract because employment with the State of California is held by statute
12 and not by contract. (Kim v. Regents of the University of California (2000) 80 Cal.App,4th 160,
13 164 [citing Miller v. State of California (1977) 18 Cal.3d 808, 813].) Moreover, even if Randolph
14 could state a.claim based on "policies" as stated in the FAC, a public entity (or its public
15 employees) cannot be sued based on implied promises, implied in law contracts, or quasi-
16 contracts. (Miller v. McKinnon (1942) 20 Cal.2d 83, 88; Lundeen Coating Corporation v.
17 Department of Water and Power (1991) 232 Cal.App.3d 816, 832.)
18 The demurrer to the second, ninth, tenth, fourteenth, fifteenth, and sixteenth causes of
19 action should be sustained without leave to amend because the defects identified as to those
20 causes of action are pure! y issues of law and cannot be cured. (See Rotolo v San Jose Sports &
21 Entertainment, LLC (2007) 151 Cal.App.4th 307, 321.)
22
23
24
25
26
27
28
4
Defendants' Notice of Demurrer and Demurrer to First Amended Complaint (19CV01226)
1 Dated: July 18, 2019 Respectfully Submitted,
2 XAVIER BECERRA
Attorney General of California
3 P ETER D. HALLORAN
Supervising Deputy Attorney General
4
5
6
JERRY J. DESCHLER
7 Deputy Attorney General
Attorneys for Defendants
8 Board of Trustees of the California State
University, which is the State of California
9 acting in its higher education capacity
(erroneously sued as "Trustees of the
10 California State University, State of
California ''), Cynthia Daley, and Debra
11 Larson
12 SA2019102196
13899512.docx
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
Defendants' Notice of Demurrer and Demurrer lo First Ame nded Complain t (19CV01226)
DECLARATION OF SERVICE BY FIRST CLASS MAIL
(Separate Mailings)
Case Name: Teresa Randolph v. Trustees of the California State University, et al.
Case No .: 19CV01226
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailing with the United
States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service with postage thereon fully prepaid that same day in the ordinary course of
business.
On July 18, 2019, I served the attached DEFENDANTS' NOTICE OF DEMURRER AND
DEMURRER TO FIRST AMENDED COMPLAINT by placing a true copy thereof
enclosed in a sealed envelope as certified mail with return receipt requested, and another true
copy of the DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO FIRST
AMENDED COMPLAINT was enclosed in a second sealed envelope as first class mail in
the internal mail collection system at the Office of the Attorney General at 1300 I Street,
Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows
Thomas Dimitre, Esq.
PO Box 801
Ashland, OR 97520
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on July 18, 2019, a Sacramento, California.
Jenny Thirakul
Declarant
SA20 l9l02l9G
l 393048R.docx
Preview
1 XAVIER BECERRA EXEMPT Attorney General of California Gov. Code§ 6103 2 PETER D. HALLORAN Supervising Deputy Attorney General 3 JERRY J. DESCHLER Deputy Attorney General 4 State Bar No. 215691 1300 I Street, Suite 125 7/18/2019 5 P.O. Box 944255 Sacramento, CA 94244-2550 6 Telephone: (916) 210-7871 Fax: (916) 324-5567 7 E-mail: Jerry.Deschler@doj.ca.gov Attorneys for Defendants 8 Board of Trustees of the California State University, which is the State of California acting in its higher 9 education capacity (erroneously sued as "Trustees of the California State University, State of 10 Cal/fornia"), Cynthia Daley, and Debra Larson 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF BUTTE 13 CIVIL DIVISION 14 15 TERESA RANDOLPH, Case No. 19CV01226 16 Plaintiff, DEFENDANTS' NOTICE OF 17 DEMURRERANDDEMURRERTO v. FIRST AMENDED COMPLAINT 18 Date: August 28, 2019 19 TRUSTEES OF THE CALIFORNIA Time: 9:00 a.m. STATE UNIVERSITY, STATE OF Dept: 10 20 CALIFORNIA, AND CYNTHIA DALEY, Judge: Robert A Glusman AN INDIVIDUAL, AND DEBRA LARSON, Trial Date: none 21 AN INDIVIDUAL, Action Filed: April 24, 2019 22 Defendants. 23 24 TO PLAINTIFF AND HER ATTORNEY OF RECORD: 25 PLEASE TAKE NOTICE that Defendants Board of Trustees of the California State 26 University, which is the State of California acting in its higher education capacity (erroneously 27 sued as "Trustees of the California State University, State of California"), Cynthia Daley, and 28 Debra Larson (collectively "Defendants") hereby demur to Plaintiff Teresa Randolph's 1 Defendants' Notice of Demurrer and Demurrer lo First Amended Complaint (19CV01226) 1 ("Randolph") First Amended Complaint (the "FAC"). The demurrer is scheduled for hearing on 2 August 28, 2019, at 9:00 a.m., in Dept. 10 at the Superior Court of California in and for the 3 County of Butte, located at 1775 Concord Ave, Chico, California 95928. 4 The demurrer will be based on this notice of demurrer and demurrer, the memorandum of 5 points and authorities in support of the demurrer, the request for judicial notice and attachments 6 thereto, the pleadings and papers on file in this action, and upon any such other evidence as may 7 be presented at the hearing. 8 PLEASE ALSO TAKE NOTICE that pursuant to Local Rule 2.9, the court follows the 9 tentative ruling procedure set forth in California Rules of Court, rule 3.1308(a)(l). Tentative 10 rulings on law and motion matters will be available on the Court's website at 11 www.buttecourt.ca.gQY_ and by telephone at (530) 532-7022 by 3:00 p.m. on the court day 12 preceding the hearing. 13 DEMURRER 14 Defendants hereby demur to the FAC, filed on May 29, 2019. This demurrer is brought 15 pursuant to Code of Civil Procedure Section 430.10, subdivision (e). At the hearing, Defendants 16 will move for an order granting its demurrer to the FAC on the following separate and 17 independent grounds: 18 1. Second Cause of Action: "Retaliation Based on Disability" under the California Fair 19 Employment and I-lousing Act ("FEI-IA''). The demurrer to the second cause of action should be 20 sustained because no such cause of action exists by regulation or statute. California Code of 21 Regulations, Title 2, section 11021 does not provide for a private right of action. Additionally, 22 neither the FEI-IA nor the interpretive regulations suppo1t a cause of action for "retaliation based 23 on disability." 24 2. Ninth Cause of Action: "Wrongful Termination/Constructive Discharge." The 25 demurrer to the ninth cause of action should be sustained because the common law claim of 26 "wrongful termination/constructive discharge" is barred by the state's sovereign immunity. (Gov. 27 Code, § 815; see also Miklosy v. Regents of the University of Calif (2008) 44 Cal.4th 876, 899 28 [affirming judgment sustaining demurrer].) 2 Defendants' Notice of Demurrer and Demurrer to First Amended Complaint (19CV01226) 1 3. Tenth Cause of Action: Intentional Infliction of Emotional Distress. The demurrer 2 to the tenth cause of action should be sustained because the tort of intentional infliction of 3 emotional distress is barred by the exclusivity provision of the Workers' Compensation Act 4 codified at Labor Code section 3200 et. seq. Additionally, the FAC fails to state facts sufficient 5 to sustain a cause of action for intentional infliction of emotional distress. A complaint must 6 "state facts sufficient to constitute a cause of action." (Code Civ. Proc.,§§ 425.10, subd. (a), 7 430.10, subd. (e).) 8 4. Twelfth Cause of Action: Defamation. The demurrer to the twelfth cause of action 9 should be sustained because the facts pleaded do not state a cause of action. (Code Civ. Proc., § 10 430, subd. (e). ) The alleged statement attributed to individual defendant Larson does not satisfy 11 any of the elements of a defamation cause of action and is not defamatory. (Jensen v. Hewlett 12 Packard Co. (1993) 14 Cal.App.4th 958,965 [statements that employee "had been the subject of 13 some third party complaints, was not carrying his weight, had a negative attitude in dealing with 14 others, evidenced a lack of direction in his project activities and was unwilling to take 15 responsibility for the projects he oversaw" were statements of opinion].) The alleged statement 16 attributed to individual defendant Daley, if made, is privileged. (Civ. Code,§ 47, subd. (c); see 17 King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440-42 [employer conveying 18 reasons an employee was fired to other employee drivers was privileged].) 19 5. Thirteenth Cause of Action: Invasion of Privacy. The demurrer to the thirteenth 20 cause of action should be sustained because the facts pleaded do not state a cause of action. 21 (Code Civ. Proc.,§ 430, subd. (e).) The sole communication alleged as the basis of the thirteenth 22 cause of action neither seeks nor reveals any information protected by a privacy interest. No facts 23 exist or are alleged establishing the requisite "egregious breach of the social norms underlying the 24 privacy right." (Hill v. National Collegiate Athletic Ass 'n (1994) 7 Cal.4th 16, 37.) 25 6. Fourteenth Cause of Action: Meal and Rest Period Violations (Lab. Code, §§ · 26 226.7, 512. The demurrer to the fourteenth cause of action should be sustained because public 27 entities are exempt from and immune to the Labor Code claims alleged in Randolph's FAC. 28 3 Defendants' Notice of Demurrer and Demurrer to First Amended Complaint (19CV01226) 1 (Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729 [sustaining demurrer 2 to complaint].) 3 7. Fifteenth Cause of Action: Waiting Time Penalties (Lab. Code, § 203. The 4 demurrer to the fifteenth cause of action should be sustained because it is derivative of and 5 wholly dependent on Randolph's fifteenth cause of action, which is improper as a matter of law. 6 (Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729 [sustaining demurrer 7 to complaint].) 8 8. Sixteenth Cause of Action: Breach of Contract. The demurrer to the sixteenth cause 9 of action should be sustained because Randolph fails to allege facts sufficient to state a claim. 10 (Code Civ. Proc.,§ 430, subd. (e).) Randolph does not and cannot allege the existence of a 11 written employment contract because employment with the State of California is held by statute 12 and not by contract. (Kim v. Regents of the University of California (2000) 80 Cal.App,4th 160, 13 164 [citing Miller v. State of California (1977) 18 Cal.3d 808, 813].) Moreover, even if Randolph 14 could state a.claim based on "policies" as stated in the FAC, a public entity (or its public 15 employees) cannot be sued based on implied promises, implied in law contracts, or quasi- 16 contracts. (Miller v. McKinnon (1942) 20 Cal.2d 83, 88; Lundeen Coating Corporation v. 17 Department of Water and Power (1991) 232 Cal.App.3d 816, 832.) 18 The demurrer to the second, ninth, tenth, fourteenth, fifteenth, and sixteenth causes of 19 action should be sustained without leave to amend because the defects identified as to those 20 causes of action are pure! y issues of law and cannot be cured. (See Rotolo v San Jose Sports & 21 Entertainment, LLC (2007) 151 Cal.App.4th 307, 321.) 22 23 24 25 26 27 28 4 Defendants' Notice of Demurrer and Demurrer to First Amended Complaint (19CV01226) 1 Dated: July 18, 2019 Respectfully Submitted, 2 XAVIER BECERRA Attorney General of California 3 P ETER D. HALLORAN Supervising Deputy Attorney General 4 5 6 JERRY J. DESCHLER 7 Deputy Attorney General Attorneys for Defendants 8 Board of Trustees of the California State University, which is the State of California 9 acting in its higher education capacity (erroneously sued as "Trustees of the 10 California State University, State of California ''), Cynthia Daley, and Debra 11 Larson 12 SA2019102196 13899512.docx 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Defendants' Notice of Demurrer and Demurrer lo First Ame nded Complain t (19CV01226) DECLARATION OF SERVICE BY FIRST CLASS MAIL (Separate Mailings) Case Name: Teresa Randolph v. Trustees of the California State University, et al. Case No .: 19CV01226 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On July 18, 2019, I served the attached DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT by placing a true copy thereof enclosed in a sealed envelope as certified mail with return receipt requested, and another true copy of the DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT was enclosed in a second sealed envelope as first class mail in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows Thomas Dimitre, Esq. PO Box 801 Ashland, OR 97520 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on July 18, 2019, a Sacramento, California. Jenny Thirakul Declarant SA20 l9l02l9G l 393048R.docx