Preview
1 XAVIER BECERRA
Attorney General of California
2 PETER D. HALLORAN 7/24/2020
Supervising Deputy Attorney General
3 JERRY J. DESCHLER
Deputy Attorney General
4 State Bar No. 215691
1300 I Street, Suite 125
5 P.O. Box 944255
Sacramento, CA 94244-2550
6 Telephone: (916) 2 10-7871
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 California "), 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,
17
v. MEMORANDUM OF POINTS AND
18 AUTHORITIES IN SUPPORT OF
DEFENDANTS' MOTION FOR
19 TRUSTEES OF THE CALIFORNIA JUDGMENT ON THE PLEADINGS AS
STATE UNIVERSITY, STATE OF TO PLAINTIFF'S SECOND AMENDED
20 CALIFORNIA, AND CYNTHIA DALEY, COMPLAINT
AN INDIVIDUAL, AND DEBRA LARSON,
21 AN INDIVIDUAL, Date: September 9, 2020
Time: 9:00 a.m.
22 Defendants. Dept: 10
Judge: Robert A. Glusman
23 Trial Date: none
24
25
26
27
28
Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to
Pia inti fI' s Second Amended Complaint ( l 9CVO 1226)
1 TABLE OF CONTENTS
2 Page
3 Introduction .............................................. .. ..................................................................................... 6
Factual and Procedural Background ............................................................................................... 7
4
I. Overview of Complaint Allegations ............................... :....................................... 7
5 II. Causes of Action in the SAC ............................................... .. ................................. 8
6 III. Defendants Attempted to Meet and Confer with Randolph .................................... 8
Standard of Review ... ................................................................................. ..... ................................ 9
7
Argument ............................................................ ... .... ............................. :..................................... 10
8 I. The Eighth Cause of Action for "Wrongful Termination/Constructive
Discharge" Should Be Dismissed Because Such Claim May Not Be
9 Maintained Against a Public Entity As a Matter of Law ...................................... 10
10 II. The Ninth Cause of Action for Intentional Infliction of Emotional Distress
Should Be Dismissed Because the Claim Lacks Sufficieht Factual
11 Allegations ............................................................................................................
12
III. The Eleventh Cause of Action for Defamation Should Be Dismissed
12
Because Randolph Failed to Comply ·with the Government Tort Claims Act
and the Facts Pleaded Do Not State a Valid Cause of Action .............................. 14
13
IV. The Twelfth Cause of Action for Invasion of Privacy Should Be Dismissed
14 Because Randolph Failed to Comply with the Government Tort Claims
Act. ........................................................................................................................
17
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Conclusion ................................................................ :................................................................... 17
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Memorandum of Points and Authorities in Support of Defendants' Motion for'Judgment on the Pleadings as to
Plaintiffs Second Amended Complaint ( 19CVO 1226)
1 TABLE OF AUTHORITIES
2
3 CASES
4 Buscemi v. McDonnel Douglas Corp.
(9th Cir. 1984) 736 F.2d 1348 ............................. :..................................................................... 13
5
Caldwell v. Paramount Unif. Sch. Dist.
6
(1995) 41 Cal.App.4th 189 ................................. .............................. ,................................... 9,
12
7
Cloud v. Northrop Grumman Corp.
8 (1998) 67 Cal.App.4th 995 ......................................................................................................... 9
9 Dwan v. Dixon
(1963) 216 Cal.App.2d 260 .......................... ... .................................. :......................................... 9
10
Fisher v. San Pedro Peninsula Hospital
11
(1989) 214 Cal.App.3d 590 ................................. :..................................................................... 12
12
Gong v. City of Rosemead
13 (2014)226Cal.App.4th363 ............................................................. :................................. 15,
17
14 Goodman v. Kennedy .
(1976) 18 Cal.3d 335 ................................................................................................................ 14
15
Green v. Grimes-Stassforth S. Company
16 (1940) 39 Cal.App.2d 52 ............ ........ .. ..................................................................................... 12
17
Green v. Ralee Eng. Co.
18 (1998) 19 Cal.4th 66 ................................................................................... ..... ......................... 11
19 Heritage Pac. Fin 'l, LLC v. Monroy
(2013) 215 Cal.App.4th 972 ................................................ ... ........ .......................................... 14
20
Hill v. National Collegiate Athletic Ass 'n
21 (1994) 7 Cal.4th 16 ................................................................................................................... 17
22 Hughes v. Pair
23 (2009) 46 Cal.4th 1035 ............................................................................................................. 12
24 Hunt v. County ofShasta
( 1990) 225 Cal.App.3d 432 ...................................... ................................................................... 9
25
Jenson v. Hewlett-Packard Co.
26 (1993) 14 Cal.App.4th 958 ............................................................................................... .. ...... 16
27 Jones v. Oxnard Sch. Dist.
28 (1969) 270 Cal.App.2d 587 ................................................................................................. 13 , 14
3
Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to
,Plaintiff's Second Amended Complaint (19CVO 1226)
1 TABLE OF AUTHORITIES
(continued)
2
3 Lawler v. Montblanc North America, LLC
(9th Cir. 2013) 704 F.3d 1235 ................................................................................................... 13
4
Miklosy v. Regents of the University of Calif.
5 (2008) 44 Cal.4th 876 ......................................................................................................... 10,
11
6
Nygard, Inc. v. Uusi-Kerttula
7 (2008) 159 Cal.App.4th 1027 ...................................................................................................16
8 Ocean Services Corp. v. Ventura Port Dist.
(1993) 15 Cal.App.4th 1762 ...................................................... ............................................... 15
9
Rand v. Andreatta
10 (1964) 60 Cal.2d 846 ................................................................................................................ 15
11
Rotolo v San Jose Sports & Entertainment, LLC
12 (2007) 151 Cal.App.4th 307 ............................................................. :··· ....................... .12,
16, 17
13 Schonfeld! v. State of Calif.
(1998) 61 Cal.App.4th 1462 ............................... :......................................................... 11, 16, 17
14
Shoemaker v. Myers
15 (1990) 52 Cal.3d 1 .................................................................................................................... 13
16 State of California v. Sup. Ct. (Bodde)
17 (2004) 32 Cal.4th 1234 ....................................... ,..................................................................... 15
18 Templo v. State ofCalif.
(2018) 24 Cal.App.5th 730 ..................................................... ...... .... :.............. ...... ........... ...... ... .9
19
Turner v. Anheuser-Busch, Inc.
20 (1994) 7 Cal.4th 1238 ......................................... :............................................................... 10, 11
21 Watson v. State of Calif ,
( 1993) 21 Cal.App.4th 836 ................................................................................................. 15, 17
22
23 Williams v. Horvath .
(1976) 16 Cal.3d 834 ............... ..................................................................................... ............ 15
24
STATUTES
25
California Fair Employment and Housing Act .................................. ............................................... 8
26
California Family Rights Act .. .......... ....... ........ ................................................................. ... ............. 8
27
28
4
Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to
Plaintiffs Second Amended Complaint (19CVOl226)
1 TABLE OF AUTHORITIES
(continued)
2
3 Code of Civil Procedure
§ 425.10, subd. (a) ........................... .................... :.............. .................................. .... ............. 9,
12
4 § 425.10, subd. (e) ..................................................................................................................... 12
5
6
1:~~·.:.~: : : : : : : : : : : : : : : : : : : : : : : : : : : : : :: ::: : : : : : : : : : : : : : :: : : : : : : : : : : : : : : : : : : : : :~
§ 438, subd. (d) .............................................. ........................................................................... ..9
7 Government Code
§ 81 l .2 ............ ........................................................................................... ................................ 15
8 § 815 .................. .... .......... ........................................................... ....... :................. ................ 10,
11
§ 905.2 ...... .. .... .. ................................................................................................................... l 5,
17
9
§ 91 l .2 ....................................................................................................................................... 15
10 § 915, subd. (b)(l) ................. ............. ................. :.. .. .............................. .. ... .............................. 15
§ 915, subd. (b)(2) .............................. ...... ................................. ........................... .. ................... 15
11 § 945.4 ......................................................................... ............ .......... \................................. 15,
17
§ 12940 ............................. ....... ...... .. ..... .... .................................... ....................................... 10,
11
12
Government Tort Claims Act .............. ...................... ,.................. ........................................... passim
13
Labor Code
14
§ 1102.5 .............................................................................................1............................. 8,
10, 11
15
OTHER AUTHORITIES
16
CACI
17 1600 ..................................................................................................................... ..... ................. 12
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Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to
Plaintifrs Second A~ended Complaint (19CVOI226)
1 INTRODUCTION
2 The present lawsuit arises out of Plaintiff Teresa Randolph's ("Randolph") employment,
3 and termination from employment, with Defendant Board of Trustees of the California State
4 University, which is the State of California acting in its higher educati~n capacity (erroneously
5 sued as "Trustees of the California State University, State of California") (the Board of Trustees
6 is referred to herein as the "CSU"). On March 1, 20'19, the CSU issued to Randolph a Notice of
7 Pending Disciplinary Action notifying Randolph that her employment was being terminated
8 effective March 15, 2019 for engaging in a pattern of employment misconduct, including
9 dishonesty and intentional sabotage, among other grounds. Four days prior to the effective date
1O of her discharge, Randolph resigned her employment. Randolph claims the bases for her pending
11 termination were "false ," and that the CSU retaliated against her based on her purported
12 "whistleblowing" activity and accommodation requests during the period from August 2018 until
13 her resignation the following March.
14 Notwithstanding the simple, straightforward nature of the facts, Randolph's First Amended
15 Complaint (the "FAC") alleged sixteen causes of action against the CSU, Cynthia Daley
16 ("Daley"), and Debra Larson ("Larson") (the CSU, Daley, and Larson are referred to collectively
17 as "Defendants"). Defendants filed a demurrer, which was sustained i~ part, and denied in part.
18 Thereafter, Randolph filed a Second Amended Complaint (the " SAC") that fails to cure several of
19 the defects present in earlier versions of her pleadings. Additionally, since the time Defendants
20 filed their demurrer, Defendants learned that Randolph's Government Tort Claims Act claim,
21 which is a prerequisite to several of her causes of action, fails to set forth any facts or legal
22 theories pertaining to her defamation or invasion of privacy causes of action, and fails to allege
23 any misconduct on the part of Larson.
24 As a result of the above, Defendants move for judgment on the pleadings as to the
25 following cause of action in the SAC: eighth (wrongful termination in violation of public policy),
26 ninth (intentional infliction of emotional distress), eleventh (defamation), and twelfth (invasion of
27 privacy). Most or all of the deficiencies cannot be cured by amendment. Consequently, the Court
28 should dismiss these causes of action without leave to amend.
6
Memorandum of Points and Authorities in Support of Defendants' Motion for 'Judgment on the Pleadings as to
Plaintiffs Second Amended Complaint (19CVOl226)
1 FACTUAL AND PROCEDURAL BACKGROUND
2 I. OVERVIEW OF COMPLAINT ALLEGATIONS
3 Randolph began working for the CSU June 9, 1997. (SAC,, 7.) Since 2006, Randolph
4 worked on the CSU's annual Sustainability Conference ("Conference") as part of her duties.
5 (SAC, ii 11.)
6 Randolph claims to have sustained a work-related injury to her back in 2007. (SAC, ,i 9.)
7 In May 2018, the California State University newspaper, the Orion, posted an article
8 describing university budget cuts and the potential that some jobs at the CSU could be eliminated
9 as a result. Randolph claims she understood the article to mean that her job was in jeopardy.
10 (SAC, ii 14.)
11 In August 2018, Randolph was reassigned to report to individual defendant Daley as part of
12 a departmental reorganization. (SAC, ,i,i 17-18.) The FAC then alleges a variety of purported
13 conflicts between Randolph and Daley during the August through December 2018 timeframe.
14 (SAC, iii! 20-68.)
15 On December 19, 2018, the CSU placed Randolph on paid administrative leave after she
16 failed to attend a meeting with Daley regarding the upcoming Sustainability Conference. (SAC, ,r
17 69.) While Randolph was on paid administrative leave, the CSU twice requested that she
18 participate in interviews related to the CSU' s discov'ery of, and investigation into, apparent efforts
19 by Randolph to sabotage the Sustainability Conference, including delet,ion of University files and
20 contact information relating to the Conference, insubordination, and other misconduct. (SAC, ,i,i
21 58, 72, 74, 80, 81.) Randolph declined to attend the'investigatory interviews. (SAC, ,i,i 72, 74.)
22 On March 1, 2019, the CSU issued a Notice of Pending Discipli~ary Action notifying
23 Randolph that her employment was to be terminated effective March 15, 2019 for dishonesty,
24 unprofessionalism, insubordination, intentional sabotage and maliciousness, and other failure or
25 refusals to perform the duties of her position. (SAC, ,i 80.) On March 11, 2019, Randolph
26 tendered her resignation. (SAC, ,r 83.)
27 III
28 III
7
Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to
Plaintiffs Second Amended Complaint (19CV01226)
1 II. CAUSES OF ACTION IN THE SAC
2 The SAC alleges that the CSU's Notice of Disciplinary Action was in retaliation for
3 Randolph's alleged "whistleblowing" regarding her belief that Daley violated campus policy and
4 various laws, and for Randolph' s purported attempts to have the defendants "comply with her
5 physician ordered reasonable accommodations." (SAC, 180.) Yet, the SAC compounds these
6 basic allegations into twelve causes of action, 1 as follows: (1) discrimip.ation based on disability,
7 under the California Fair Employment and Housing Act ("FEHA"); (2) retaliation for opposing
g illegal practices (FEHA); (3) harassment based on disability (FEHA); (4) failure to prevent
9 harassment and discrimination (FEHA); (5) failure to provide reasonab~e accommodation
10 (FEHA); (6) failure to engage in interactive process (FEHA); (7) whistleblower retaliation (Labor
11 Code, § 1102.5); (8) wrongful termination; (9) intentional infliction of emotional distress;
12 (10) retaliation, under the California Family Rights Act; (11) defamation; and (12) invasion of
13 privacy.
14 III. DEFENDANTS ATTEMPTED TO MEET AND CONFER WITH RANDOLPH
15 As set forth in Defendants' demurrer to the FAC, Defendants met and conferred with
16 Randolph prior to filing a demurrer (which was sustained in part, with leave to amend).
17 (Deschler Deel.,~ 2.)
18 Defendants further met and conferred with Randolph regarding the defects in the SAC. On
19 October 2, 2019, Defendants sent a letter setting forth the specific defects, and the legal authority
20 supporting the deficiencies in Randolph's eighth, ni1.1.th, eleventh, and twelfth causes of action.
21 (Deschler Deel., ,i 5, Exh. E.) Defendants noted that many of the defects present were identical or
22 at least similar to defects identified in Defendants' prior demurrer, and 'which the Court identified
23 as bases for sustaining the demurrer. (Ibid)
24 On October 10, 2019, Defendants further discussed the defects in the SAC, and were told
25 by Randolph's counsel to "go ahead and file" because he was not willing to cure the defects
26 voluntarily. (Deschler Deel.,, 6.) Defendants subsequently emailed a copy of Randolph's
27
1 The Court sustained Defendants' demurrer to four of the caus~s of action in the FAC
28 without leave to amend.
8
Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to
'Plaintiffs Second Amended Complaint (19CVOI 226)
1 Government Tort Claims Act fonn to Randolph's counsel to demonstrate that Randolph failed to
2 perfect her tort claim prior to filing a civil lawsuit, which is fatal to her.eleventh and twelfth
3 causes of action. (Deschler Deel., 1 6, Exh. E.) Defendants received no further response.
4 (Deschler Deel.,, 7.)
5 Defendants filed a motion for judgment on the pleadings prior to filing an answer to the
6 SAC. The Court denied the motion on the grounds the pleadings were not yet at issue because
7 Defendants had not yet answered. Defendants subsequently filed an answer to the SAC.
8 Defendants once more attempted to meet and confer via email, a letter, and phone call.
9 Randolph's counsel responded that he was unwilling to further discuss the pleadings, and that
10 Defendants should file a motion. (Deschler Deel., 1-8, Exh. F.)
11 STANDARD OF REVIEW
12 A motion for judgment on the pleadings, like a demurrer, lies where the complaint shows
13 on its face that it does not state facts sufficient to col).stitute a cause of action. (See Hunt v.
14 County ofShasta (1990) 225 Cal.App.3d 432, 440.) Except as provided by Code of Civil
15 Procedure, section§ 438, the rules governing demurrers apply to motions for judgment on the
16 pleadings. (Cloud v. Northrop Grumman Corp. (19?8) 67 Cal.App.4th 995, 999; Templo v. State
17 of Calif (2018) 24 Cal.App.5th 730, 735 ["motion for judgment on the pleadings is equivalent to
18 a demurrer" (internal quotes omitted)].) The basic sufficiency of the pfeading rule is
19 straightforward: a complaint shall contain a statement of the facts constituting the cause of
20 action. (Code Civ. Proc., § 425.10, subd. (a).) The plaintiff must plead a prima facie case in
21 order to defeat a demurrer or motion for judgment on the pleadings. (Caldwell v. Paramount
22 Unif. Sch. Dist. (1995) 41 Cal.App.4th 189,202, n. 7.)
23 The Court can consider judicially noticeable matters in addition to the material facts
24 pleaded. (Code Civ. Proc., § 430.70.) A complaint sufficient on its face is nevertheless subject to
25 demurrer when factsjudicia11y noticed render it defective. (Dwan v. Dixon (1963) 216
26 Cal.App.2d 260, 265.) The grounds for a motion for judgment on the pleadings must appear on
27 the face of the challenged pleading or be based on facts which the court may judicially notice.
28 Code Civ. Proc., § 438, subd. (d).)
9
Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to
Plaintiffs Second Amended Complaint (l 9CV01226)
1 ARGUMENT
2 I. THE EIGHTH CAUSE OF ACTION FOR "WRONGFUL TERMINATION/CONSTRUCTIVE
DISCHARGE" SHOULD BE DISMISSED BECAUSE SUCH CLAIM MAY NOT BE
3 MAINTAINED AGAINST A PUBLIC ENTITY As,\ MATTER OF LAW.
4 The common law claim of wrongful termination in violation of public policy is barred by
s the state's sovereign immunity, and may never be alleged against a public entity as a matter of
6 law. (Gov. Code,§ 815; see also, e.g., Miklosy v. R~gents of the University of Calif. (2008) 44
7 Cal.4th 876 899 [affirming judgment sustaining demurrer]; see also Gov. Code,§ 815.) As the
8 California Supreme Court explained in Miklosy, the state may be sued, but only for violations of
9 statutes that permit government liability:
10 "Except as otherwise provided by statute: (a) a public entity is not liable for
an injury, whether such injury arises out of an act or omission of the public
11 entity or a public employee or any other person." [citation] The Legislative
Committee Comment to section 815 states: "This section abolishes all
12 common law or judicially declared forms of liability for public entities, except
for such liability as may be required by the state or federal constitution, e.g.,
13 inverse condemnation . ..."
14 (Miklosy, at 899 [internal citations omitted; emphasis in original].) Tellingly, Randolph has never
IS cited any legal authority holding to the contrary or providing any exception to this well-
16 established rule.
17 This Court already sustained Defendants' demurrer to the same cause of action on this
18 ground. 2 The allegations in the SAC are identical to those in the FAC. However, Randolph now
19 attempts to circumvent the Court' s ruling sustaining demurrer by simply renaming the cause of
20 action as "wrongful termination/constructive discharge/retaliation in violation of statute," and
21 invoking Labor Code section 1102.5 and Government Code section 12940 as the basis for her
22 claim. (SAC, at p. 41, 11. 1-4.) However, there is no such cause of action for "wrongful
23 termination in violation of statute." The wrongful termination tort alleged by Randolph is what is
24 commonly referred to as a "Tameny claim." (See, e.g., Turner v. Anheuser-Busch, Inc. (1994) 7
25 Cal.4th 1238, 1252 [constructive discharge].) Indeed, as the California Supreme Court explained
26
2 Randolph' s wrongful termination in violation of public policy cause of action was
27 pleaded as the ninth cause of action in the FAC. Because the second cause of action was
dismissed without leave to amend, the wrongful termination in violation of public policy cause of
28 action now appears as the eighth cause of action in the SAC.
10
Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to
Plaintiff's Second Amended Complaint (19CVO 1226)
1 in Turner, constructive discharge is not a separate tort, but merely a doctrine for satisfying the
2 "termination" element of a wrongful termination claim where the employee is forced to resign
3 rather than being affirmatively terminated by her employer. (Id., at 1251-52 ["constructive
4 discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is
5 ostensibly a resignation into a firing"].) No matter how a plaintiff names her cause of action for
6 wrongful termination in violation of public policy (i.e., a Tameny claim), the plaintiff is always
7 required to allege a statute or constitutional provision giving rise to the.public policy violated by
8 the plaintiffs alleged wrongful termination, such as, for example, the Fair Employment and
9 Housing Act or Labor Code section 1102.5. (Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 79
IO [Tameny actions are limited to "those claims finding support in an important public policy based
11 on a statutory or constitutional provision."].) The fact that Randolph has simply renamed her
12 cause of action wrongful termination/constructive di'scharge/retaliation in violation of statute"
13 does not transform it into anything other than a Tameny claim. As set forth above, the California
14 Supreme Court has unequivocally held that Government Code "section 815 bars Tameny actions
15 against public entities." (Miklosy, at 899-900.)
16 Randolph's creative wording is merely a thinly veiled attempt to disguise her Tameny claim
17 as something it is not. Again, there is no separate tort for "wrongful termination in violation of
18 statute." To the extent Randolph's eighth cause of action is intended to simply allege a statutory
19 cause of action under Labor Code section 1102.5 or Government Code section 12940, this is
20 duplicative of her second and seventh causes of action. This Court already sustained Defendants'
21 demurrer to the FAC where Randolph attempted to include a then-numbered "second cause of
22 action" for "retaliation based on disability," which was likewise simply duplicative of another
23 cause of action in the FAC. For the same reasons, Randolph's eighth cause of action here should
24 be dismissed without leave to amend.
25 Courts have properly held that leave to amend should be denied where, as here, the issue
'
26 raised on the motion for judgment on the pleadings is strictly a legal one and no further
27 amendment can affect that issue. (Schonfeld! v. Stat~ of Calif (1998) 61 Cal.App.4th 1462, 1464
28 ["If there is no liability as a matter oflaw, leave to amend should not be granted."] ; see also See
1I
Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to
Plaintiffs Second Amended Complaint (I 9CV01226)
I Rotolo v San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 321 [same standard
2 for demurrer].) Because this is purely an issue oflaw, and a Tameny claim cannot be maintained
3 against a public entity, leave to amend cannot cure the defects and would be futile. Therefore,
4 leave to amend should be denied.
5 II. THE NINTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS SHOULD BE DISMISSED BECAUSE THE CLAIM LACKS SUFFICIENT
6 FACTUAL ALLEGATIONS.
7 Randolph' s ninth cause of action for intentional infliction of emotional distress fails to state
8 facts sufficient to sustain a cause of action.
9 A complaint must "state facts sufficient to constitute a cause of a~tion." (See Code Civ.
10 Proc., § 438, subd. (c).) Randolph is thus required to specifically plead facts to support each of
11 the elements of the essential "wrongs" upon which each cause of action is based. (Fisher v. San
12 Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) In other words, she must plead a
13 prima facie case in order to survive a demurrer or motion for judgment on the pleadings.
14 (Caldwell v. Paramount Unif. Sch. Dist., supra, 41 Cal.App.4th, at 202, fn. 7; Green v. Grimes-
15 Stassforth S. Company (1940) 39 Cal.App.2d 52, 56.)
16 To state a claim of intentional infliction of emotional distress, Randolph must allege facts
17 demonstrating: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or
18 reckless disregard of the probability of causing emotional distress; (3) severe emotional distress;
19 and (4) actual and proximate causation of the emotional distress. (See Hughes v. Pair (2009) 46
20 Cal.4th 1035 1050; see also CACI 1600.) The Court sustained Defendants' demurrer to this
21 same cause of action in the FAC, but granted leave to amend to allow Randolph the opportunity
22 to plead additional facts to salvage her claim:
23 [T]he conduct alleged in the First Amended Complaint does not rise to
the level of extreme and outrageous conduct necessary to plead a cause
24 of action for intentional infliction of emotional distress.
25 (Order, dated September 11, 2019 [emphasis added].)
26 Significantly, Randolph' s SAC fails to plead any additional facts to support this cause of
27 action. As with the FAC, Randolph's SAC essentially alleges that she was unhappy with a
28 restructuring of her department that resulted in her working under a new supervisor, that
12
Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to
'Plaintiff's Second Amended Complaint (19CV01226)
1 discussions of the restructuring and potential elimination of her position caused her stress, that
2 she had personality conflicts with her new supervisor, that the University allegedly did not
3 accommodate her disability, and that she was disciplined for attempting to undermine the
4 University's ability to conduct its annual Sustainability Conference. (See SAC, 'i['i[ 20-80.) Such
5 allegations are insufficient to establish the first and second elements of her claim. (See, e.g. ,
6 Shoemaker v. Myers (1990) 52 Cal.3d 1, 25 [supervisor's alleged statement that he wanted to
7 cause plaintiff "as much grief as possible" insufficient]; Lawler v. Montblanc North America,
8 LLC (9th Cir. 2013) 704 F.3d 1235, 1245-1246 [applying Calif. Law] [CEO's gruff, abrupt and
9 intimidating manner of communicating criticisms did not qualify as "outrageous" where conduct
10 and criticisms related to store's business operations ~d employee' s conduct as manager];
Preview
1 XAVIER BECERRA Attorney General of California 2 PETER D. HALLORAN 7/24/2020 Supervising Deputy Attorney General 3 JERRY J. DESCHLER Deputy Attorney General 4 State Bar No. 215691 1300 I Street, Suite 125 5 P.O. Box 944255 Sacramento, CA 94244-2550 6 Telephone: (916) 2 10-7871 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 California "), 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, 17 v. MEMORANDUM OF POINTS AND 18 AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR 19 TRUSTEES OF THE CALIFORNIA JUDGMENT ON THE PLEADINGS AS STATE UNIVERSITY, STATE OF TO PLAINTIFF'S SECOND AMENDED 20 CALIFORNIA, AND CYNTHIA DALEY, COMPLAINT AN INDIVIDUAL, AND DEBRA LARSON, 21 AN INDIVIDUAL, Date: September 9, 2020 Time: 9:00 a.m. 22 Defendants. Dept: 10 Judge: Robert A. Glusman 23 Trial Date: none 24 25 26 27 28 Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to Pia inti fI' s Second Amended Complaint ( l 9CVO 1226) 1 TABLE OF CONTENTS 2 Page 3 Introduction .............................................. .. ..................................................................................... 6 Factual and Procedural Background ............................................................................................... 7 4 I. Overview of Complaint Allegations ............................... :....................................... 7 5 II. Causes of Action in the SAC ............................................... .. ................................. 8 6 III. Defendants Attempted to Meet and Confer with Randolph .................................... 8 Standard of Review ... ................................................................................. ..... ................................ 9 7 Argument ............................................................ ... .... ............................. :..................................... 10 8 I. The Eighth Cause of Action for "Wrongful Termination/Constructive Discharge" Should Be Dismissed Because Such Claim May Not Be 9 Maintained Against a Public Entity As a Matter of Law ...................................... 10 10 II. The Ninth Cause of Action for Intentional Infliction of Emotional Distress Should Be Dismissed Because the Claim Lacks Sufficieht Factual 11 Allegations ............................................................................................................ 12 III. The Eleventh Cause of Action for Defamation Should Be Dismissed 12 Because Randolph Failed to Comply ·with the Government Tort Claims Act and the Facts Pleaded Do Not State a Valid Cause of Action .............................. 14 13 IV. The Twelfth Cause of Action for Invasion of Privacy Should Be Dismissed 14 Because Randolph Failed to Comply with the Government Tort Claims Act. ........................................................................................................................ 17 15 Conclusion ................................................................ :................................................................... 17 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Memorandum of Points and Authorities in Support of Defendants' Motion for'Judgment on the Pleadings as to Plaintiffs Second Amended Complaint ( 19CVO 1226) 1 TABLE OF AUTHORITIES 2 3 CASES 4 Buscemi v. McDonnel Douglas Corp. (9th Cir. 1984) 736 F.2d 1348 ............................. :..................................................................... 13 5 Caldwell v. Paramount Unif. Sch. Dist. 6 (1995) 41 Cal.App.4th 189 ................................. .............................. ,................................... 9, 12 7 Cloud v. Northrop Grumman Corp. 8 (1998) 67 Cal.App.4th 995 ......................................................................................................... 9 9 Dwan v. Dixon (1963) 216 Cal.App.2d 260 .......................... ... .................................. :......................................... 9 10 Fisher v. San Pedro Peninsula Hospital 11 (1989) 214 Cal.App.3d 590 ................................. :..................................................................... 12 12 Gong v. City of Rosemead 13 (2014)226Cal.App.4th363 ............................................................. :................................. 15, 17 14 Goodman v. Kennedy . (1976) 18 Cal.3d 335 ................................................................................................................ 14 15 Green v. Grimes-Stassforth S. Company 16 (1940) 39 Cal.App.2d 52 ............ ........ .. ..................................................................................... 12 17 Green v. Ralee Eng. Co. 18 (1998) 19 Cal.4th 66 ................................................................................... ..... ......................... 11 19 Heritage Pac. Fin 'l, LLC v. Monroy (2013) 215 Cal.App.4th 972 ................................................ ... ........ .......................................... 14 20 Hill v. National Collegiate Athletic Ass 'n 21 (1994) 7 Cal.4th 16 ................................................................................................................... 17 22 Hughes v. Pair 23 (2009) 46 Cal.4th 1035 ............................................................................................................. 12 24 Hunt v. County ofShasta ( 1990) 225 Cal.App.3d 432 ...................................... ................................................................... 9 25 Jenson v. Hewlett-Packard Co. 26 (1993) 14 Cal.App.4th 958 ............................................................................................... .. ...... 16 27 Jones v. Oxnard Sch. Dist. 28 (1969) 270 Cal.App.2d 587 ................................................................................................. 13 , 14 3 Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to ,Plaintiff's Second Amended Complaint (19CVO 1226) 1 TABLE OF AUTHORITIES (continued) 2 3 Lawler v. Montblanc North America, LLC (9th Cir. 2013) 704 F.3d 1235 ................................................................................................... 13 4 Miklosy v. Regents of the University of Calif. 5 (2008) 44 Cal.4th 876 ......................................................................................................... 10, 11 6 Nygard, Inc. v. Uusi-Kerttula 7 (2008) 159 Cal.App.4th 1027 ...................................................................................................16 8 Ocean Services Corp. v. Ventura Port Dist. (1993) 15 Cal.App.4th 1762 ...................................................... ............................................... 15 9 Rand v. Andreatta 10 (1964) 60 Cal.2d 846 ................................................................................................................ 15 11 Rotolo v San Jose Sports & Entertainment, LLC 12 (2007) 151 Cal.App.4th 307 ............................................................. :··· ....................... .12, 16, 17 13 Schonfeld! v. State of Calif. (1998) 61 Cal.App.4th 1462 ............................... :......................................................... 11, 16, 17 14 Shoemaker v. Myers 15 (1990) 52 Cal.3d 1 .................................................................................................................... 13 16 State of California v. Sup. Ct. (Bodde) 17 (2004) 32 Cal.4th 1234 ....................................... ,..................................................................... 15 18 Templo v. State ofCalif. (2018) 24 Cal.App.5th 730 ..................................................... ...... .... :.............. ...... ........... ...... ... .9 19 Turner v. Anheuser-Busch, Inc. 20 (1994) 7 Cal.4th 1238 ......................................... :............................................................... 10, 11 21 Watson v. State of Calif , ( 1993) 21 Cal.App.4th 836 ................................................................................................. 15, 17 22 23 Williams v. Horvath . (1976) 16 Cal.3d 834 ............... ..................................................................................... ............ 15 24 STATUTES 25 California Fair Employment and Housing Act .................................. ............................................... 8 26 California Family Rights Act .. .......... ....... ........ ................................................................. ... ............. 8 27 28 4 Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to Plaintiffs Second Amended Complaint (19CVOl226) 1 TABLE OF AUTHORITIES (continued) 2 3 Code of Civil Procedure § 425.10, subd. (a) ........................... .................... :.............. .................................. .... ............. 9, 12 4 § 425.10, subd. (e) ..................................................................................................................... 12 5 6 1:~~·.:.~: : : : : : : : : : : : : : : : : : : : : : : : : : : : : :: ::: : : : : : : : : : : : : : :: : : : : : : : : : : : : : : : : : : : : :~ § 438, subd. (d) .............................................. ........................................................................... ..9 7 Government Code § 81 l .2 ............ ........................................................................................... ................................ 15 8 § 815 .................. .... .......... ........................................................... ....... :................. ................ 10, 11 § 905.2 ...... .. .... .. ................................................................................................................... l 5, 17 9 § 91 l .2 ....................................................................................................................................... 15 10 § 915, subd. (b)(l) ................. ............. ................. :.. .. .............................. .. ... .............................. 15 § 915, subd. (b)(2) .............................. ...... ................................. ........................... .. ................... 15 11 § 945.4 ......................................................................... ............ .......... \................................. 15, 17 § 12940 ............................. ....... ...... .. ..... .... .................................... ....................................... 10, 11 12 Government Tort Claims Act .............. ...................... ,.................. ........................................... passim 13 Labor Code 14 § 1102.5 .............................................................................................1............................. 8, 10, 11 15 OTHER AUTHORITIES 16 CACI 17 1600 ..................................................................................................................... ..... ................. 12 18 19 20 21 22 23 24 25 26 27 28 5 Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to Plaintifrs Second A~ended Complaint (19CVOI226) 1 INTRODUCTION 2 The present lawsuit arises out of Plaintiff Teresa Randolph's ("Randolph") employment, 3 and termination from employment, with Defendant Board of Trustees of the California State 4 University, which is the State of California acting in its higher educati~n capacity (erroneously 5 sued as "Trustees of the California State University, State of California") (the Board of Trustees 6 is referred to herein as the "CSU"). On March 1, 20'19, the CSU issued to Randolph a Notice of 7 Pending Disciplinary Action notifying Randolph that her employment was being terminated 8 effective March 15, 2019 for engaging in a pattern of employment misconduct, including 9 dishonesty and intentional sabotage, among other grounds. Four days prior to the effective date 1O of her discharge, Randolph resigned her employment. Randolph claims the bases for her pending 11 termination were "false ," and that the CSU retaliated against her based on her purported 12 "whistleblowing" activity and accommodation requests during the period from August 2018 until 13 her resignation the following March. 14 Notwithstanding the simple, straightforward nature of the facts, Randolph's First Amended 15 Complaint (the "FAC") alleged sixteen causes of action against the CSU, Cynthia Daley 16 ("Daley"), and Debra Larson ("Larson") (the CSU, Daley, and Larson are referred to collectively 17 as "Defendants"). Defendants filed a demurrer, which was sustained i~ part, and denied in part. 18 Thereafter, Randolph filed a Second Amended Complaint (the " SAC") that fails to cure several of 19 the defects present in earlier versions of her pleadings. Additionally, since the time Defendants 20 filed their demurrer, Defendants learned that Randolph's Government Tort Claims Act claim, 21 which is a prerequisite to several of her causes of action, fails to set forth any facts or legal 22 theories pertaining to her defamation or invasion of privacy causes of action, and fails to allege 23 any misconduct on the part of Larson. 24 As a result of the above, Defendants move for judgment on the pleadings as to the 25 following cause of action in the SAC: eighth (wrongful termination in violation of public policy), 26 ninth (intentional infliction of emotional distress), eleventh (defamation), and twelfth (invasion of 27 privacy). Most or all of the deficiencies cannot be cured by amendment. Consequently, the Court 28 should dismiss these causes of action without leave to amend. 6 Memorandum of Points and Authorities in Support of Defendants' Motion for 'Judgment on the Pleadings as to Plaintiffs Second Amended Complaint (19CVOl226) 1 FACTUAL AND PROCEDURAL BACKGROUND 2 I. OVERVIEW OF COMPLAINT ALLEGATIONS 3 Randolph began working for the CSU June 9, 1997. (SAC,, 7.) Since 2006, Randolph 4 worked on the CSU's annual Sustainability Conference ("Conference") as part of her duties. 5 (SAC, ii 11.) 6 Randolph claims to have sustained a work-related injury to her back in 2007. (SAC, ,i 9.) 7 In May 2018, the California State University newspaper, the Orion, posted an article 8 describing university budget cuts and the potential that some jobs at the CSU could be eliminated 9 as a result. Randolph claims she understood the article to mean that her job was in jeopardy. 10 (SAC, ii 14.) 11 In August 2018, Randolph was reassigned to report to individual defendant Daley as part of 12 a departmental reorganization. (SAC, ,i,i 17-18.) The FAC then alleges a variety of purported 13 conflicts between Randolph and Daley during the August through December 2018 timeframe. 14 (SAC, iii! 20-68.) 15 On December 19, 2018, the CSU placed Randolph on paid administrative leave after she 16 failed to attend a meeting with Daley regarding the upcoming Sustainability Conference. (SAC, ,r 17 69.) While Randolph was on paid administrative leave, the CSU twice requested that she 18 participate in interviews related to the CSU' s discov'ery of, and investigation into, apparent efforts 19 by Randolph to sabotage the Sustainability Conference, including delet,ion of University files and 20 contact information relating to the Conference, insubordination, and other misconduct. (SAC, ,i,i 21 58, 72, 74, 80, 81.) Randolph declined to attend the'investigatory interviews. (SAC, ,i,i 72, 74.) 22 On March 1, 2019, the CSU issued a Notice of Pending Discipli~ary Action notifying 23 Randolph that her employment was to be terminated effective March 15, 2019 for dishonesty, 24 unprofessionalism, insubordination, intentional sabotage and maliciousness, and other failure or 25 refusals to perform the duties of her position. (SAC, ,i 80.) On March 11, 2019, Randolph 26 tendered her resignation. (SAC, ,r 83.) 27 III 28 III 7 Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to Plaintiffs Second Amended Complaint (19CV01226) 1 II. CAUSES OF ACTION IN THE SAC 2 The SAC alleges that the CSU's Notice of Disciplinary Action was in retaliation for 3 Randolph's alleged "whistleblowing" regarding her belief that Daley violated campus policy and 4 various laws, and for Randolph' s purported attempts to have the defendants "comply with her 5 physician ordered reasonable accommodations." (SAC, 180.) Yet, the SAC compounds these 6 basic allegations into twelve causes of action, 1 as follows: (1) discrimip.ation based on disability, 7 under the California Fair Employment and Housing Act ("FEHA"); (2) retaliation for opposing g illegal practices (FEHA); (3) harassment based on disability (FEHA); (4) failure to prevent 9 harassment and discrimination (FEHA); (5) failure to provide reasonab~e accommodation 10 (FEHA); (6) failure to engage in interactive process (FEHA); (7) whistleblower retaliation (Labor 11 Code, § 1102.5); (8) wrongful termination; (9) intentional infliction of emotional distress; 12 (10) retaliation, under the California Family Rights Act; (11) defamation; and (12) invasion of 13 privacy. 14 III. DEFENDANTS ATTEMPTED TO MEET AND CONFER WITH RANDOLPH 15 As set forth in Defendants' demurrer to the FAC, Defendants met and conferred with 16 Randolph prior to filing a demurrer (which was sustained in part, with leave to amend). 17 (Deschler Deel.,~ 2.) 18 Defendants further met and conferred with Randolph regarding the defects in the SAC. On 19 October 2, 2019, Defendants sent a letter setting forth the specific defects, and the legal authority 20 supporting the deficiencies in Randolph's eighth, ni1.1.th, eleventh, and twelfth causes of action. 21 (Deschler Deel., ,i 5, Exh. E.) Defendants noted that many of the defects present were identical or 22 at least similar to defects identified in Defendants' prior demurrer, and 'which the Court identified 23 as bases for sustaining the demurrer. (Ibid) 24 On October 10, 2019, Defendants further discussed the defects in the SAC, and were told 25 by Randolph's counsel to "go ahead and file" because he was not willing to cure the defects 26 voluntarily. (Deschler Deel.,, 6.) Defendants subsequently emailed a copy of Randolph's 27 1 The Court sustained Defendants' demurrer to four of the caus~s of action in the FAC 28 without leave to amend. 8 Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to 'Plaintiffs Second Amended Complaint (19CVOI 226) 1 Government Tort Claims Act fonn to Randolph's counsel to demonstrate that Randolph failed to 2 perfect her tort claim prior to filing a civil lawsuit, which is fatal to her.eleventh and twelfth 3 causes of action. (Deschler Deel., 1 6, Exh. E.) Defendants received no further response. 4 (Deschler Deel.,, 7.) 5 Defendants filed a motion for judgment on the pleadings prior to filing an answer to the 6 SAC. The Court denied the motion on the grounds the pleadings were not yet at issue because 7 Defendants had not yet answered. Defendants subsequently filed an answer to the SAC. 8 Defendants once more attempted to meet and confer via email, a letter, and phone call. 9 Randolph's counsel responded that he was unwilling to further discuss the pleadings, and that 10 Defendants should file a motion. (Deschler Deel., 1-8, Exh. F.) 11 STANDARD OF REVIEW 12 A motion for judgment on the pleadings, like a demurrer, lies where the complaint shows 13 on its face that it does not state facts sufficient to col).stitute a cause of action. (See Hunt v. 14 County ofShasta (1990) 225 Cal.App.3d 432, 440.) Except as provided by Code of Civil 15 Procedure, section§ 438, the rules governing demurrers apply to motions for judgment on the 16 pleadings. (Cloud v. Northrop Grumman Corp. (19?8) 67 Cal.App.4th 995, 999; Templo v. State 17 of Calif (2018) 24 Cal.App.5th 730, 735 ["motion for judgment on the pleadings is equivalent to 18 a demurrer" (internal quotes omitted)].) The basic sufficiency of the pfeading rule is 19 straightforward: a complaint shall contain a statement of the facts constituting the cause of 20 action. (Code Civ. Proc., § 425.10, subd. (a).) The plaintiff must plead a prima facie case in 21 order to defeat a demurrer or motion for judgment on the pleadings. (Caldwell v. Paramount 22 Unif. Sch. Dist. (1995) 41 Cal.App.4th 189,202, n. 7.) 23 The Court can consider judicially noticeable matters in addition to the material facts 24 pleaded. (Code Civ. Proc., § 430.70.) A complaint sufficient on its face is nevertheless subject to 25 demurrer when factsjudicia11y noticed render it defective. (Dwan v. Dixon (1963) 216 26 Cal.App.2d 260, 265.) The grounds for a motion for judgment on the pleadings must appear on 27 the face of the challenged pleading or be based on facts which the court may judicially notice. 28 Code Civ. Proc., § 438, subd. (d).) 9 Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to Plaintiffs Second Amended Complaint (l 9CV01226) 1 ARGUMENT 2 I. THE EIGHTH CAUSE OF ACTION FOR "WRONGFUL TERMINATION/CONSTRUCTIVE DISCHARGE" SHOULD BE DISMISSED BECAUSE SUCH CLAIM MAY NOT BE 3 MAINTAINED AGAINST A PUBLIC ENTITY As,\ MATTER OF LAW. 4 The common law claim of wrongful termination in violation of public policy is barred by s the state's sovereign immunity, and may never be alleged against a public entity as a matter of 6 law. (Gov. Code,§ 815; see also, e.g., Miklosy v. R~gents of the University of Calif. (2008) 44 7 Cal.4th 876 899 [affirming judgment sustaining demurrer]; see also Gov. Code,§ 815.) As the 8 California Supreme Court explained in Miklosy, the state may be sued, but only for violations of 9 statutes that permit government liability: 10 "Except as otherwise provided by statute: (a) a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public 11 entity or a public employee or any other person." [citation] The Legislative Committee Comment to section 815 states: "This section abolishes all 12 common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., 13 inverse condemnation . ..." 14 (Miklosy, at 899 [internal citations omitted; emphasis in original].) Tellingly, Randolph has never IS cited any legal authority holding to the contrary or providing any exception to this well- 16 established rule. 17 This Court already sustained Defendants' demurrer to the same cause of action on this 18 ground. 2 The allegations in the SAC are identical to those in the FAC. However, Randolph now 19 attempts to circumvent the Court' s ruling sustaining demurrer by simply renaming the cause of 20 action as "wrongful termination/constructive discharge/retaliation in violation of statute," and 21 invoking Labor Code section 1102.5 and Government Code section 12940 as the basis for her 22 claim. (SAC, at p. 41, 11. 1-4.) However, there is no such cause of action for "wrongful 23 termination in violation of statute." The wrongful termination tort alleged by Randolph is what is 24 commonly referred to as a "Tameny claim." (See, e.g., Turner v. Anheuser-Busch, Inc. (1994) 7 25 Cal.4th 1238, 1252 [constructive discharge].) Indeed, as the California Supreme Court explained 26 2 Randolph' s wrongful termination in violation of public policy cause of action was 27 pleaded as the ninth cause of action in the FAC. Because the second cause of action was dismissed without leave to amend, the wrongful termination in violation of public policy cause of 28 action now appears as the eighth cause of action in the SAC. 10 Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to Plaintiff's Second Amended Complaint (19CVO 1226) 1 in Turner, constructive discharge is not a separate tort, but merely a doctrine for satisfying the 2 "termination" element of a wrongful termination claim where the employee is forced to resign 3 rather than being affirmatively terminated by her employer. (Id., at 1251-52 ["constructive 4 discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is 5 ostensibly a resignation into a firing"].) No matter how a plaintiff names her cause of action for 6 wrongful termination in violation of public policy (i.e., a Tameny claim), the plaintiff is always 7 required to allege a statute or constitutional provision giving rise to the.public policy violated by 8 the plaintiffs alleged wrongful termination, such as, for example, the Fair Employment and 9 Housing Act or Labor Code section 1102.5. (Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 79 IO [Tameny actions are limited to "those claims finding support in an important public policy based 11 on a statutory or constitutional provision."].) The fact that Randolph has simply renamed her 12 cause of action wrongful termination/constructive di'scharge/retaliation in violation of statute" 13 does not transform it into anything other than a Tameny claim. As set forth above, the California 14 Supreme Court has unequivocally held that Government Code "section 815 bars Tameny actions 15 against public entities." (Miklosy, at 899-900.) 16 Randolph's creative wording is merely a thinly veiled attempt to disguise her Tameny claim 17 as something it is not. Again, there is no separate tort for "wrongful termination in violation of 18 statute." To the extent Randolph's eighth cause of action is intended to simply allege a statutory 19 cause of action under Labor Code section 1102.5 or Government Code section 12940, this is 20 duplicative of her second and seventh causes of action. This Court already sustained Defendants' 21 demurrer to the FAC where Randolph attempted to include a then-numbered "second cause of 22 action" for "retaliation based on disability," which was likewise simply duplicative of another 23 cause of action in the FAC. For the same reasons, Randolph's eighth cause of action here should 24 be dismissed without leave to amend. 25 Courts have properly held that leave to amend should be denied where, as here, the issue ' 26 raised on the motion for judgment on the pleadings is strictly a legal one and no further 27 amendment can affect that issue. (Schonfeld! v. Stat~ of Calif (1998) 61 Cal.App.4th 1462, 1464 28 ["If there is no liability as a matter oflaw, leave to amend should not be granted."] ; see also See 1I Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to Plaintiffs Second Amended Complaint (I 9CV01226) I Rotolo v San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 321 [same standard 2 for demurrer].) Because this is purely an issue oflaw, and a Tameny claim cannot be maintained 3 against a public entity, leave to amend cannot cure the defects and would be futile. Therefore, 4 leave to amend should be denied. 5 II. THE NINTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS SHOULD BE DISMISSED BECAUSE THE CLAIM LACKS SUFFICIENT 6 FACTUAL ALLEGATIONS. 7 Randolph' s ninth cause of action for intentional infliction of emotional distress fails to state 8 facts sufficient to sustain a cause of action. 9 A complaint must "state facts sufficient to constitute a cause of a~tion." (See Code Civ. 10 Proc., § 438, subd. (c).) Randolph is thus required to specifically plead facts to support each of 11 the elements of the essential "wrongs" upon which each cause of action is based. (Fisher v. San 12 Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) In other words, she must plead a 13 prima facie case in order to survive a demurrer or motion for judgment on the pleadings. 14 (Caldwell v. Paramount Unif. Sch. Dist., supra, 41 Cal.App.4th, at 202, fn. 7; Green v. Grimes- 15 Stassforth S. Company (1940) 39 Cal.App.2d 52, 56.) 16 To state a claim of intentional infliction of emotional distress, Randolph must allege facts 17 demonstrating: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or 18 reckless disregard of the probability of causing emotional distress; (3) severe emotional distress; 19 and (4) actual and proximate causation of the emotional distress. (See Hughes v. Pair (2009) 46 20 Cal.4th 1035 1050; see also CACI 1600.) The Court sustained Defendants' demurrer to this 21 same cause of action in the FAC, but granted leave to amend to allow Randolph the opportunity 22 to plead additional facts to salvage her claim: 23 [T]he conduct alleged in the First Amended Complaint does not rise to the level of extreme and outrageous conduct necessary to plead a cause 24 of action for intentional infliction of emotional distress. 25 (Order, dated September 11, 2019 [emphasis added].) 26 Significantly, Randolph' s SAC fails to plead any additional facts to support this cause of 27 action. As with the FAC, Randolph's SAC essentially alleges that she was unhappy with a 28 restructuring of her department that resulted in her working under a new supervisor, that 12 Memorandum of Points and Authorities in Support of Defendants' Motion for Judgment on the Pleadings as to 'Plaintiff's Second Amended Complaint (19CV01226) 1 discussions of the restructuring and potential elimination of her position caused her stress, that 2 she had personality conflicts with her new supervisor, that the University allegedly did not 3 accommodate her disability, and that she was disciplined for attempting to undermine the 4 University's ability to conduct its annual Sustainability Conference. (See SAC, 'i['i[ 20-80.) Such 5 allegations are insufficient to establish the first and second elements of her claim. (See, e.g. , 6 Shoemaker v. Myers (1990) 52 Cal.3d 1, 25 [supervisor's alleged statement that he wanted to 7 cause plaintiff "as much grief as possible" insufficient]; Lawler v. Montblanc North America, 8 LLC (9th Cir. 2013) 704 F.3d 1235, 1245-1246 [applying Calif. Law] [CEO's gruff, abrupt and 9 intimidating manner of communicating criticisms did not qualify as "outrageous" where conduct 10 and criticisms related to store's business operations ~d employee' s conduct as manager];