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1 FAGEN FRIEDMAN & FULFROST, LLP 8/19/2020 2:26 PM
Milton E. Foster III, SBN 250357 Superior Court of California
2 mfoster@f3law.com County of Stanislaus
Devin Finlayson, SBN 324784 Clerk of the Court
3 dfinlayson@f3law.com By: Mouang Saechao, Deputy
4160 Temescal Canyon Road, Suite 610
4 Corona, California 92883 $435 EXEMPT
Phone: 951-215-4900 $435 EXEMPT
5 Fax: 951-215-4911 $435 EXEMPT
6 Attorneys for Turlock Unified School District,
Dana Trevethan and Barney Gordon
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF STANISLAUS
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11 MICHAEL TRAINOR, individually, CASE NO. CV-20-002940
Fagen Friedman & Fulfrost, LLP
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12 Plaintiff, DEFENDANTS TURLOCK UNIFIED
SCHOOL DISTRICT, DANA
Corona, California 92883
13 vs. TREVETHAN AND BARNEY GORDON
NOTICE OF DEMURRER AND
14 TURLOCK UNIFIED SCHOOL DISTRICT; DEMURRER TO COMPLAINT OF
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DANA TREVETHAN, an individual; PLAINTIFF MICHAEL TRAINOR;
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15 BARNEY GORDON, an individual; AND MEMORANDUM OF POINTS AND
DOES 1 through 25, inclusive, AUTHORITIES
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Defendants. Filed concurrently with Motion to Strike
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Judge: Hon. Stacy Speiller
18 Date: September 24, 2020
Time: 8:30 a.m.
19 Dept.: 22
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Action Filed: July 8, 2020
21 Trial Date: None Set
22 TO MICHAEL TRAINOR AND HIS COUNSEL OF RECORD:
23 PLEASE TAKE NOTICE THAT on September 24, 2020, at 8:30 a.m., or as soon
24 thereafter as counsel may be heard, in Department 22 of the above-captioned Court, located at 800
25 11th Street, Modesto, CA 95354, Defendants Turlock Unified School District ("District"), Dana
26 Trevethan and Barney Gordon (collectively "Defendants") will and hereby do demur to the
27 Complaint filed by Plaintiff Michael Trainor pursuant to Sections 430.10, et seq., of California
28 Code of Civil Procedure.
Case No. CV-20-002940
DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
1 DATED: August 19, 2020 FAGEN FRIEDMAN & FULFROST, LLP
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By:
4 Milton E. Foster III
Devin Finlayson
5 Attorneys for Turlock Unified School District,
Dana Trevethan and Barney Gordon
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Fax 951-215-4911
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DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
1 TABLE OF CONTENTS
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3 I. INTRODUCTION ..................................................................................................................8
4 II. RELEVANT FACTS AS ALLEGED IN THE COMPLAINT .............................................9
5 III. STANDARD OF REVIEW FOR DEMURRER .................................................................10
6 IV. ARGUMENT .......................................................................................................................10
7 A. First Cause of Action: Violation of Education Code § 44110 et seq. .....................10
8 B. Fifth Cause of Action: Violation of Labor Code §§ 1101 and 1102 ........................12
9 C. Seventh Cause of Action: Intentional Interference with Contract ...........................12
10 D. Eighth Cause of Action: Breach of Implied Covenant of Good Faith and
Fair Dealing ..............................................................................................................14
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V. CONCLUSION ....................................................................................................................15
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1 TABLE OF AUTHORITIES
2 Page
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CASES
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Blank v. Kirwan (1985) 39 Cal.3d. 311........................................................................................... 10
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C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055 ............................................. 10
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Cal. Teachers Ass'n v. Governing Bd. (1996) 45 Cal.App.4th 1383............................................... 12
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Caldwell v. Montoya (1995) 10 Cal.4th 972 ................................................................................... 13
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Conn. v. W. Placer Unified Sch. Dist. (2010) 186 Cal.App.4th 1163 ............................................. 11
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Goodman v. Kennedy (1976) 18 Cal.3d 335 ................................................................................... 10
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Guarino v. County of Siskiyou (2018) 21 Cal.App.5th 1170 .......................................................... 13
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McAllister v. L.A. Unified Sch. Dist. (2013) 216 Cal.App.4th 1198 ............................................... 14
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Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876 ............................................................. 14
Corona, California 92883
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Osborne v. Huntington Beach Union High Sch. Dist. (1970) 5 Cal.App.3d 510............................ 13
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Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089 ........................................... 12, 14
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Reeves v. Hanlon (2004) 33 Cal.4th 1140 ....................................................................................... 13
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Shoemaker v. Meyers (1990) 52 Cal.3d 1 ................................................................................. 13, 15
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Stanley v. Univ. of S. Cal. (1999) 178 F.3d 1069 ............................................................................ 14
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State of Cal. v. Superior Court (2004) 32 Cal.4th 1234.................................................................. 12
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Young v. Gannon (2002) 97 Cal.App.4th 209 ................................................................................. 10
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OTHER AUTHORITIES
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Cal. Code Civ Proc. § 430.10 ............................................................................................................ 6
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Cal. Code Civ. Proc. § 430.10(e) ...................................................................................................... 6
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Cal. Code Civ. Proc. § 430.10(g) .......................................................................................... 6, 12, 14
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Cal. Educ. Code § 44112(a) ............................................................................................................ 11
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Cal. Educ. Code § 44113 ........................................................................................................... 10, 11
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Cal. Gov. Code § 815 ...................................................................................................................... 14
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1 Cal. Gov. Code § 820.2 ................................................................................................................... 13
2 Cal. Gov. Code § 905 .................................................................................................................. 6, 12
3 Cal. Gov. Code § 911.2 ............................................................................................................... 6, 12
4 Cal. Gov. Code § 945 .................................................................................................................. 6, 12
5 Cal. Gov. Code § 950.2 ............................................................................................................... 6, 12
6 Educ. Code §§ 44110 et seq. ............................................................................................................. 6
7 Labor Code § 1101 .................................................................................................................. 6, 8, 12
8 Labor Code § 1102 ...................................................................................................................... 8, 12
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1 DEMURRER
2 Pursuant to Sections § 430.10, et seq., of the California Code of Civil Procedure,
3 Defendants Turlock Unified School District ("District"), Dana Trevethan and Barney Gordon
4 (collectively "Defendants") generally demur to the Complaint filed by Plaintiff Michael Trainor on
5 the following grounds:
6 DEMURRER TO FIRST CAUSE OF ACTION
7 Pursuant to Code of Civil Procedure section 430.10(e), Defendants generally demur to
8 Plaintiffs’ First Cause of Action for Violation of Education Code §§ 44110 et seq., on the basis
9 that it fails to state sufficient facts to constitute a cause of action against Defendants (Cal. Educ.
10 Code § 44113(c)) and on the grounds that Plaintiff failed to exhaust this claim as required under
11 the Government Claims Act. (Cal. Gov. Code §§ 905, 911.2, 945, 950.2.)
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12 DEMURRER TO SECOND CAUSE OF ACTION
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13 Pursuant to Code of Civil Procedure section 430.10(e), Defendants generally demur to
14 Plaintiffs’ Fifth Cause of Action for Discrimination and Retaliation on the Basis of Political
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15 Affiliation in violation of Labor Code sections 1101 and 1102 on the ground that it fails to state
16 sufficient facts to constitute a cause of action against Defendants.
17 DEMURRER TO THIRD CAUSE OF ACTION
18 Pursuant to Code of Civil Procedure section 430.10(e), Defendants generally demur to
19 Plaintiffs’ Seventh Cause of Action for Intentional Interference with Contract on the ground that it
20 fails to state sufficient facts to constitute a cause of action against Defendants. Pursuant to Code
21 of Civil Procedure section 430.10(g), Defendants generally demur on the grounds that based on
22 the pleadings it cannot be ascertained whether the alleged contract is written, is oral, or is implied
23 in conduct.
24 DEMURRER TO FOURTH CAUSE OF ACTION
25 Pursuant to Code of Civil Procedure section 430.10(e), Defendants generally demur to
26 Plaintiffs’ Eighth Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing
27 on the ground that it fails to state sufficient facts to constitute a cause of action against Defendants.
28 Pursuant to Code of Civil Procedure section 430.10(g), Defendants generally demur on the
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1 grounds that based on the pleadings it cannot be ascertained whether the alleged contract is
2 written, is oral, or is implied in conduct.
3 WHEREFORE, Moving Party prays that:
4 1. The Demurrer be sustained without leave to amend;
5 2. The court enter an order dismissing the action;
6 3. Moving Party be awarded the costs of this action; and
7 4. The Court grant such other and further relief as the Court may deem proper.
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9 DATED: August 19, 2020 FAGEN FRIEDMAN & FULFROST, LLP
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Fagen Friedman & Fulfrost, LLP
Fax 951-215-4911
By:
4160 Temescal Canyon Road, Suite 610
12 Milton E. Foster III
Devin Finlayson
Corona, California 92883
13 Attorneys for Turlock Unified School District,
Dana Trevethan and Barney Gordon
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendants Turlock Unified School District (“District”), Dana Trevethan in her individual
4 capacity, and Barney Gordon in his individual capacity (collectively, "Defendants") demur to
5 Plaintiff Michael Trainor's ("Plaintiff”) Complaint based on pleading deficiencies and improper
6 causes of action. Notably, the complaint on its face weaves a story that was altogether different
7 than reality. In short, Defendants completely reject Plaintiff's claims and unsupported assertions
8 of wrongdoing. To the contrary, Plaintiff received significant support from the District during his
9 tenure and ultimately voluntarily, on his own, requested a demotion. Nevertheless, at this time,
10 this motion will address the deficiencies in the Complaint itself.
11 Plaintiff’s first cause of action, for violation of Education Code §§ 44110 et seq., must fail
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12 for three reasons. First, while it is directed towards all of the Defendants, neither the District nor
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13 Mr. Gordon are proper defendants for this cause of action. The District is not an "employee" and
14 there are no allegations that Mr. Gordon was Plaintiff's supervisor. Second, regarding
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15 Superintendent Trevethan, this cause of action must fail because Plaintiff fails to allege any basis
16 to infer that she took any action for the purpose of preventing a disclosure of information by
17 Plaintiff to her, the Board, the County Superintendent of Schools, or the State Superintendent of
18 Public Instruction. Third, this cause of action was not exhausted as required under the
19 Government Claims Act.
20 Plaintiff's fifth cause of action, for discrimination and retaliation on the basis of political
21 affiliation in violation of Labor Code §§ 1101 and 1102, must be dismissed as these statutes are
22 inapplicable to public school districts.
23 Plaintiffs' seventh cause of action, for intentional interference with contract,1 must be
24 dismissed for three reasons. First, it cannot be ascertained from the Complaint whether Plaintiff
25 refers to a written, oral, or contract implied by conduct. Second, Plaintiff has not alleged the
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Defendants note that Plaintiff refers to this cause of action as "tortious interference with
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economic interests" on the cover page of his Complaint. Regardless of its title, this cause of action
28 should be dismissed for the reasons stated above.
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1 existence of a contract with any entity other than the District and, as agents of the District, neither
2 Superintendent Trevethan nor Mr. Gordon may be held liable for inducing a breach of a District
3 contract. Third, under the Government Claims Act, both Superintendent Trevethan and Mr.
4 Gordon are immune from this claim as to any discretionary acts and Plaintiff pleads no others.
5 Plaintiff's eighth cause of action, for breach of implied covenant of good faith and fair
6 dealing must fail for four reasons. First, it cannot be ascertained from the Complaint whether
7 Plaintiff refers to a written, oral, or contract implied by conduct. Second, under the Government
8 Claims Act, the District is immune from this claim. Third, even if it were not immune, Plaintiff
9 references no express terms of a contract by which any breach of the implied covenant may be
10 ascertained. Fourth, Plaintiff cannot state a cause of action for breach of implied covenant of good
11 faith and fair dealing since in the employment context, it cannot support an award of tort damages
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12 and Plaintiff does not identify any contract damages.
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13 For these reasons and as set forth below, Defendants' Demurrer must be sustained without
14 leave to amend as these enumerated pleading deficiencies and improper causes of action cannot be
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15 cured by way of amendment.
16 II. RELEVANT FACTS AS ALLEGED IN THE COMPLAINT
17 Plaintiff is a longtime District employee. (Compl. ¶ 21.) Approximately midway through
18 the 2018-19 school year, Plaintiff requested to transition from his Assistant Superintendent
19 position to a P.E. teaching role. (Id. at ¶ 72.) He characterizes the District granting his request as
20 discrimination, retaliation, and a violation of implied common law contract rights.
21 Plaintiff alleges he was retaliated against because he vocally opposed various instances of
22 alleged wrongdoing in multiple forums from 2016 through 2019. (e.g., Compl. ¶¶ 37, 44, 47, 83.)
23 He claims that in October 2018, at least two years after he began this in-person vocal opposition
24 with Superintendent Trevethan, she scheduled him for a "mid-year" performance evaluation. (See
25 Compl. Exhibit A, p. 2:18-20.)
26 In addition, Plaintiff's only reference to the existence of an employment contract is one by
27 which "TUSD could terminate him upon receipt of two poor performance evaluations." (Id. at ¶
28 60.) Finally, he alleges the individual defendants prevented his performance "under the contract,
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1 or made his performance more expensive or difficult." (Id. at ¶ 147.)
2 III. STANDARD OF REVIEW FOR DEMURRER
3 Code of Civil Procedure section 430.30, subd. (a) authorizes a demurrer when any ground
4 for objection to a complaint appears on the face thereof, or from any matter of which the court is
5 required to or may take judicial notice. In determining whether the complaint alleges facts
6 sufficient to state a cause of action, the court may treat the demurrer as admitting all material facts
7 properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan
8 (1985) 39 Cal.3d. 311, 318 (“Blank”).) Doubt in the Complaint may be resolved against Plaintiff
9 and facts not alleged are presumed not to exist. (C & H Foods Co. v. Hartford Ins. Co. (1984) 163
10 Cal.App.3d 1055, 1062.) Also, “[i]n determining whether the complaint states facts sufficient to
11 constitute a cause of action, the trial court may consider all material facts pleaded in the complaint
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12 and those arising by reasonable implication therefrom...” (Young v. Gannon (2002) 97
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13 Cal.App.4th 209, 220.)
14 Plaintiff must show that there is a reasonable possibility that the defect can be cured by
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15 amendment. (Blank, supra, 39 Cal.3d at p. 319.) Thus, the burden is on Plaintiff to show in what
16 manner the Complaint can be amended and how that amendment will change the legal effect of the
17 pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) If Plaintiff cannot do so, sustaining
18 a demurrer without leave to amend is proper. (Blank, supra, 39 Cal.3d at p. 319.)
19 IV. ARGUMENT
20 A. First Cause of Action: Violation of Education Code § 44110 et seq.
21 California Education Code § 44113 ("Section 44113") states:
22 (a) An employee may not directly or indirectly use or attempt to use the
official authority or influence of the employee for the purpose of
23 intimidating, threatening, coercing, commanding, or attempting to
intimidate, threaten, coerce, or command any person for the purpose of
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interfering with the right of that person to disclose to an official agent
25 matters within the scope of this article.
(b) For the purpose of subdivision (a), “use of official authority or
26 influence” includes. .. affecting or threatening to affect any reprisal; or
taking, directing others to take, recommending, processing, or approving
27 any personnel action . . . .
(c) For the purpose of subdivision (a), “official agent” includes a school
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administrator, member of the governing board of a school district or county
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1 board of education, county superintendent of schools, or the Superintendent
of Public Instruction.
2 (d) An employee who violates subdivision (a) may be liable in an action for
civil damages brought against the employee by the offended party.
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4 In addition, while "an employee" may be liable under this statutory provision, Section
5 44113 extends civil liability to those employees acting in a supervisory capacity but not to
6 "management" employees generally. (Conn. v. W. Placer Unified Sch. Dist. (2010) 186
7 Cal.App.4th 1163.)
8 As pleaded, neither the District nor Mr. Gordon can be liable under this statute or article.
9 The District cannot be liable because it is not an "employee" as defined by the article. (Id.; see also
10 Cal. Educ. Code § 44112(a).) Mr. Gordon cannot be liable as the Complaint does not allege he
11
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exercised supervisory authority over Mr. Trainor. (Conn. v. W. Placer Unified Sch. Dist. (2010)
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12 186 Cal.App.4th 1163.)
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13 For Superintendent Trevethan to be liable, the Complaint must allege she used retaliated or
14 threatened to retaliate against him for the purpose of interfering with Plaintiff's right to disclose
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15 something to a school administrator, a Board member, the county Superintendent, or California's
16 Superintendent of Public Instruction. (Cal. Ed. Code § 44113.) There are no such allegations that
17 anyone interfered with Plaintiff's right to disclose any information. There are no allegations that
18 Plaintiff was even interested in disclosing information to any specific school administrator, Board
19 member, or Superintendent. Rather, the Complaint explains in detail how Mr. Trainor was not
20 prevented from sharing any disclosures on a variety of topics with whomever he chose (E.g.,
21 Compl. ¶ 37). All of his disclosures are the purported basis for his retaliation claims.
22 In addition, Plaintiff alleges he opposed various alleged improper governmental activities.
23 (Id. at ¶¶ 44, 83.) He alleges he opposed some of these activities from 2016 through 2019. (Id. at
24 ¶ 47.) He also alleges that Superintendent Trevethan scheduled him for a "mid-year" performance
25 evaluation in October 2018. (See Compl. Exhibit A, p. 2:18-20). What he fails to allege,
26 however, is any basis to infer that in October 2018, Ms. Trevethan sought to prevent any
27 disclosures that Plaintiff alleges he had been making – allegedly to her – for three years.
28 Likewise, he fails to provide any basis to infer that all the disclosures articulated in the Complaint
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1 had not already been made by the time Superintendent Trevethan scheduled the mid-year
2 evaluation.
3 Finally, this cause of action was not exhausted as required under the Government Claims
4 Act. There were no allegations in Mr. Trainor's government claim notice that encompass this
5 claim nor is it listed as an exception to the Government Claims Act requirements. (See Compl.
6 "Exhibit B"; Cal. Gov't Code §§ 905, 911.2, 945, 950.2.) The first time the District became aware
7 of this cause of action was when Mr. Trainor filed his Complaint. Failure to plead facts
8 demonstrating compliance with the claims filing requirements subjects a claim to demurrer; failure
9 to exhaust such a claim bars it as a matter of law. (State of Cal. v. Superior Court (2004) 32
10 Cal.4th 1234, 1238-39.)
11 Accordingly, Defendants demurrer as to this First Cause of Action should be sustained.
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12 Because this cause of action cannot be repaired by amendment due to Plaintiff's failure to exhaust,
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13 it should be sustained without leave to amend.
14 B. Fifth Cause of Action: Violation of Labor Code §§ 1101 and 1102
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15 Plaintiff's Fifth Cause of Action is directed towards the District and alleges discrimination
16 and retaliation on the basis of political affiliation. On their face, Labor Code sections §§ 1101 and
17 1102 apply to all public employees. However, these statutes are inapplicable to public school
18 districts. (Cal. Teachers Ass'n v. Governing Bd. (1996) 45 Cal.App.4th 1383.)
19 Accordingly, Defendants' demurrer as to this Fifth Cause of Action should be sustained.
20 C. Seventh Cause of Action: Intentional Interference with Contract
21 Plaintiff's Seventh Cause of Action is directed towards Superintendent Trevethan and Mr.
22 Gordon. It alleges that one or both of them tortuously interfered with Mr. Trainor's employment
23 "contract." This cause of action must fail for multiple reasons.
24 First, as pleaded, it cannot be ascertained whether the contract to which Plaintiff refers is
25 written, oral, or implied by conduct. (Cal. Code Civ. Proc. 430.10(g).) To the extent Plaintiff
26 does not refer to the terms of a bilateral employment contract, "a public entity cannot be held
27 liable on an implied-in-law or quasi-contract theory."(Pasadena Live v. City of Pasadena (2004)
28 114 Cal.App.4th 1089, 1094).) While it cannot be ascertained, it is noteworthy that Plaintiff
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1 brings no cause of action for breach of contract and makes no reference to any express contractual
2 provision.
3 Second, for Plaintiff to eventually prevail on an intentional interference with contract
4 claim, he must be able to show (1) the existence of a valid contract between him and a third party,
5 (2) defendants' knowledge of the contract, (3) intentional acts designed to induce a breach or to
6 disrupt a contractual relationship, (4) actual breach or disruption of the contractual relationship,
7 and (5) resulting damage. (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.) At the same time,
8 absent an express bi-lateral agreement, it is "well-settled" that public employment is not held by
9 contract but by statute and that public employees have no vested contractual right in the terms of
10 his or her employment. (Guarino v. County of Siskiyou (2018) 21 Cal.App.5th 1170.) Further,
11 "[i]t is axiomatic . . . that there can be no action for inducement of breach of contract against the
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12 other party to the contract. (Shoemaker v. Meyers (1990) 52 Cal.3d 1, 24.) Neither the District nor
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13 its agents and employees acting on its behalf may be held liable for inducing a breach of a District
14 contract. (Id. at 24-25.)
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15 Plaintiff pleads nothing that can support this cause of action. As noted above, the form of
16 Plaintiff's alleged contract cannot be ascertained from the Complaint. In addition, Plaintiff has not
17 alleged the existence of a bilateral contract or a contract between him and any third party. Plaintiff
18 has failed to articulate any intentional act taken by anyone to interfere with this alleged contract.
19 He has failed to identify any non-agents or non-employees of the District that induced this alleged
20 interference. He merely concludes that some contractual relationship existed and was disrupted.
21 That is not enough.
22 Third, California's Government Claims Act immunizes both Superintendent Trevethan and
23 Mr. Gordon from claims based on the exercise of their official discretion. (Gov. Code § 820.2;
24 Caldwell v. Montoya (1995) 10 Cal.4th 972, 979-980.) Section 820.2 provides: “Except as
25 otherwise provided by statute, a public employee is not liable for an injury resulting from his act
26 or omission where the act or omission was the result of the exercise of the discretion vested in
27 him, whether or not such discretion be abused.” (See Osborne v. Huntington Beach Union High
28 Sch. Dist. (1970) 5 Cal.App.3d 510, 514 [“A public official or public employee is not liable for
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1 injury caused by an act which was the result of the exercise of discretion vested in him”].) Plaintiff
2 has failed to allege any non-discretionary acts by either of the individual defendants sufficient to
3 overcome their statutory immunity.
4 For all of the foregoing reasons, Defendants demurrer as to this Seventh Cause of Action
5 should be sustained. Because this cause of action cannot be repaired by amendment due to
6 Plaintiff's failure to exhaust, it should be sustained without leave to amend.
7 D. Eighth Cause of Action: Breach of Implied Covenant of Good Faith and Fair
8 Dealing
9 Plaintiff's Eighth Cause of Action is directed towards the District and alleges it breached
10 the implied covenant of good faith and fair dealing by taking various actions to prevent Mr.
11 Trainor from receiving benefits under his alleged employment "contract." Like Plaintiff's Seventh
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12 Cause of Action, this claim should be dismissed for multiple reasons.
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13 First, as pleaded, it cannot be ascertained whether the contract to which Plaintiff refers is
14 written, oral, or implied by conduct. (Cal. Code. Civ. P. 430.10(g).) Further, "a public entity
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15 cannot be held liable on an implied-in-law or quasi-contract theory."(Pasadena Live v. City of
16 Pasadena (2004) 114 Cal.App.4th 1089, 1094).)
17 Second, under California's Government Claims Act (Cal. Gov. Code § 815), the District
18 cannot be liable for any common law cause of action or judicially declared form of liability
19 "except as provided by statute." (Cal. Gov. Code § 815; see also McAllister v. L.A. Unified Sch.
20 Dist. (2013) 216 Cal.App.4th 1198, 1217-18) (citing Miklosy v. Regents of Univ. of Cal. (2008) 44
21 Cal.4th 876, 899.) Plaintiff has failed to identify any statutory basis for this claim.
22 Third, even if the District could be liable, a cause of action for Breach of Implied Covenant
23 of Good Faith and Fair Dealing depends upon the existence of a valid contract (Stanley v. Univ. of
24 S. Cal. (1999) 178 F.3d 1069, 1078) and only applies to "the express terms . . . ." (Pasadena Live,
25 114 Cal.App.4th at 1094) (emphasis in original). The Complaint fails to establish the existence of
26 a valid contract or identify a single one of its express terms.
27 Fourth, Plaintiff cannot state a cause of action for breach of implied covenant of good faith
28 and fair dealing "since that cause of action, in the employment context, cannot support an award of
14 Case No. CV-20-002940
DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
1 tort damages." (Shoemaker v. Meyers (1990) 52 Cal.3d 1, 23-24.) As noted above, Plaintiff has
2 failed to identify any contract damages (or even the existence of a bilateral agreement) and instead
3 seeks only tort damages associated with this claim. (See Compl. ¶¶ 150, 152, 162.) Accordingly,
4 he has failed to state a claim upon which relief could be granted, and has failed to establish the
5 appropriate relief for such a claim, and Defendants' demurrer as to this cause of action should be
6 sustained.
7 V. CONCLUSION
8 Based upon the foregoing, Defendants' Demurrer must be sustained without leave to amend.
9 DATED: August 19, 2020 FAGEN FRIEDMAN & FULFROST, LLP
10
11
Fagen Friedman & Fulfrost, LLP
Fax 951-215-4911
By:
4160 Temescal Canyon Road, Suite 610
12 Milton E. Foster III
Preview
[Exempt From Filing Fee Government Code § 6103] Electronically Filed 1 FAGEN FRIEDMAN & FULFROST, LLP 8/19/2020 2:26 PM Milton E. Foster III, SBN 250357 Superior Court of California 2 mfoster@f3law.com County of Stanislaus Devin Finlayson, SBN 324784 Clerk of the Court 3 dfinlayson@f3law.com By: Mouang Saechao, Deputy 4160 Temescal Canyon Road, Suite 610 4 Corona, California 92883 $435 EXEMPT Phone: 951-215-4900 $435 EXEMPT 5 Fax: 951-215-4911 $435 EXEMPT 6 Attorneys for Turlock Unified School District, Dana Trevethan and Barney Gordon 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF STANISLAUS 10 11 MICHAEL TRAINOR, individually, CASE NO. CV-20-002940 Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 12 Plaintiff, DEFENDANTS TURLOCK UNIFIED SCHOOL DISTRICT, DANA Corona, California 92883 13 vs. TREVETHAN AND BARNEY GORDON NOTICE OF DEMURRER AND 14 TURLOCK UNIFIED SCHOOL DISTRICT; DEMURRER TO COMPLAINT OF • DANA TREVETHAN, an individual; PLAINTIFF MICHAEL TRAINOR; Main 951-215-4900 15 BARNEY GORDON, an individual; AND MEMORANDUM OF POINTS AND DOES 1 through 25, inclusive, AUTHORITIES 16 Defendants. Filed concurrently with Motion to Strike 17 Judge: Hon. Stacy Speiller 18 Date: September 24, 2020 Time: 8:30 a.m. 19 Dept.: 22 20 Action Filed: July 8, 2020 21 Trial Date: None Set 22 TO MICHAEL TRAINOR AND HIS COUNSEL OF RECORD: 23 PLEASE TAKE NOTICE THAT on September 24, 2020, at 8:30 a.m., or as soon 24 thereafter as counsel may be heard, in Department 22 of the above-captioned Court, located at 800 25 11th Street, Modesto, CA 95354, Defendants Turlock Unified School District ("District"), Dana 26 Trevethan and Barney Gordon (collectively "Defendants") will and hereby do demur to the 27 Complaint filed by Plaintiff Michael Trainor pursuant to Sections 430.10, et seq., of California 28 Code of Civil Procedure. Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 DATED: August 19, 2020 FAGEN FRIEDMAN & FULFROST, LLP 2 3 By: 4 Milton E. Foster III Devin Finlayson 5 Attorneys for Turlock Unified School District, Dana Trevethan and Barney Gordon 6 7 8 9 10 11 Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 12 Corona, California 92883 13 14 Main 951-215-4900 • 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 TABLE OF CONTENTS Page 2 3 I. INTRODUCTION ..................................................................................................................8 4 II. RELEVANT FACTS AS ALLEGED IN THE COMPLAINT .............................................9 5 III. STANDARD OF REVIEW FOR DEMURRER .................................................................10 6 IV. ARGUMENT .......................................................................................................................10 7 A. First Cause of Action: Violation of Education Code § 44110 et seq. .....................10 8 B. Fifth Cause of Action: Violation of Labor Code §§ 1101 and 1102 ........................12 9 C. Seventh Cause of Action: Intentional Interference with Contract ...........................12 10 D. Eighth Cause of Action: Breach of Implied Covenant of Good Faith and Fair Dealing ..............................................................................................................14 11 Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 V. CONCLUSION ....................................................................................................................15 12 Corona, California 92883 13 14 Main 951-215-4900 • 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 TABLE OF AUTHORITIES 2 Page 3 CASES 4 Blank v. Kirwan (1985) 39 Cal.3d. 311........................................................................................... 10 5 C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055 ............................................. 10 6 Cal. Teachers Ass'n v. Governing Bd. (1996) 45 Cal.App.4th 1383............................................... 12 7 Caldwell v. Montoya (1995) 10 Cal.4th 972 ................................................................................... 13 8 Conn. v. W. Placer Unified Sch. Dist. (2010) 186 Cal.App.4th 1163 ............................................. 11 9 Goodman v. Kennedy (1976) 18 Cal.3d 335 ................................................................................... 10 10 Guarino v. County of Siskiyou (2018) 21 Cal.App.5th 1170 .......................................................... 13 11 Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 McAllister v. L.A. Unified Sch. Dist. (2013) 216 Cal.App.4th 1198 ............................................... 14 12 Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876 ............................................................. 14 Corona, California 92883 13 Osborne v. Huntington Beach Union High Sch. Dist. (1970) 5 Cal.App.3d 510............................ 13 14 • Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089 ........................................... 12, 14 Main 951-215-4900 15 Reeves v. Hanlon (2004) 33 Cal.4th 1140 ....................................................................................... 13 16 Shoemaker v. Meyers (1990) 52 Cal.3d 1 ................................................................................. 13, 15 17 Stanley v. Univ. of S. Cal. (1999) 178 F.3d 1069 ............................................................................ 14 18 State of Cal. v. Superior Court (2004) 32 Cal.4th 1234.................................................................. 12 19 Young v. Gannon (2002) 97 Cal.App.4th 209 ................................................................................. 10 20 21 OTHER AUTHORITIES 22 Cal. Code Civ Proc. § 430.10 ............................................................................................................ 6 23 Cal. Code Civ. Proc. § 430.10(e) ...................................................................................................... 6 24 Cal. Code Civ. Proc. § 430.10(g) .......................................................................................... 6, 12, 14 25 Cal. Educ. Code § 44112(a) ............................................................................................................ 11 26 Cal. Educ. Code § 44113 ........................................................................................................... 10, 11 27 Cal. Gov. Code § 815 ...................................................................................................................... 14 28 4 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 Cal. Gov. Code § 820.2 ................................................................................................................... 13 2 Cal. Gov. Code § 905 .................................................................................................................. 6, 12 3 Cal. Gov. Code § 911.2 ............................................................................................................... 6, 12 4 Cal. Gov. Code § 945 .................................................................................................................. 6, 12 5 Cal. Gov. Code § 950.2 ............................................................................................................... 6, 12 6 Educ. Code §§ 44110 et seq. ............................................................................................................. 6 7 Labor Code § 1101 .................................................................................................................. 6, 8, 12 8 Labor Code § 1102 ...................................................................................................................... 8, 12 9 10 11 Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 12 Corona, California 92883 13 14 Main 951-215-4900 • 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 DEMURRER 2 Pursuant to Sections § 430.10, et seq., of the California Code of Civil Procedure, 3 Defendants Turlock Unified School District ("District"), Dana Trevethan and Barney Gordon 4 (collectively "Defendants") generally demur to the Complaint filed by Plaintiff Michael Trainor on 5 the following grounds: 6 DEMURRER TO FIRST CAUSE OF ACTION 7 Pursuant to Code of Civil Procedure section 430.10(e), Defendants generally demur to 8 Plaintiffs’ First Cause of Action for Violation of Education Code §§ 44110 et seq., on the basis 9 that it fails to state sufficient facts to constitute a cause of action against Defendants (Cal. Educ. 10 Code § 44113(c)) and on the grounds that Plaintiff failed to exhaust this claim as required under 11 the Government Claims Act. (Cal. Gov. Code §§ 905, 911.2, 945, 950.2.) Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 12 DEMURRER TO SECOND CAUSE OF ACTION Corona, California 92883 13 Pursuant to Code of Civil Procedure section 430.10(e), Defendants generally demur to 14 Plaintiffs’ Fifth Cause of Action for Discrimination and Retaliation on the Basis of Political Main 951-215-4900 • 15 Affiliation in violation of Labor Code sections 1101 and 1102 on the ground that it fails to state 16 sufficient facts to constitute a cause of action against Defendants. 17 DEMURRER TO THIRD CAUSE OF ACTION 18 Pursuant to Code of Civil Procedure section 430.10(e), Defendants generally demur to 19 Plaintiffs’ Seventh Cause of Action for Intentional Interference with Contract on the ground that it 20 fails to state sufficient facts to constitute a cause of action against Defendants. Pursuant to Code 21 of Civil Procedure section 430.10(g), Defendants generally demur on the grounds that based on 22 the pleadings it cannot be ascertained whether the alleged contract is written, is oral, or is implied 23 in conduct. 24 DEMURRER TO FOURTH CAUSE OF ACTION 25 Pursuant to Code of Civil Procedure section 430.10(e), Defendants generally demur to 26 Plaintiffs’ Eighth Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing 27 on the ground that it fails to state sufficient facts to constitute a cause of action against Defendants. 28 Pursuant to Code of Civil Procedure section 430.10(g), Defendants generally demur on the 6 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 grounds that based on the pleadings it cannot be ascertained whether the alleged contract is 2 written, is oral, or is implied in conduct. 3 WHEREFORE, Moving Party prays that: 4 1. The Demurrer be sustained without leave to amend; 5 2. The court enter an order dismissing the action; 6 3. Moving Party be awarded the costs of this action; and 7 4. The Court grant such other and further relief as the Court may deem proper. 8 9 DATED: August 19, 2020 FAGEN FRIEDMAN & FULFROST, LLP 10 11 Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 By: 4160 Temescal Canyon Road, Suite 610 12 Milton E. Foster III Devin Finlayson Corona, California 92883 13 Attorneys for Turlock Unified School District, Dana Trevethan and Barney Gordon 14 Main 951-215-4900 • 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Defendants Turlock Unified School District (“District”), Dana Trevethan in her individual 4 capacity, and Barney Gordon in his individual capacity (collectively, "Defendants") demur to 5 Plaintiff Michael Trainor's ("Plaintiff”) Complaint based on pleading deficiencies and improper 6 causes of action. Notably, the complaint on its face weaves a story that was altogether different 7 than reality. In short, Defendants completely reject Plaintiff's claims and unsupported assertions 8 of wrongdoing. To the contrary, Plaintiff received significant support from the District during his 9 tenure and ultimately voluntarily, on his own, requested a demotion. Nevertheless, at this time, 10 this motion will address the deficiencies in the Complaint itself. 11 Plaintiff’s first cause of action, for violation of Education Code §§ 44110 et seq., must fail Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 12 for three reasons. First, while it is directed towards all of the Defendants, neither the District nor Corona, California 92883 13 Mr. Gordon are proper defendants for this cause of action. The District is not an "employee" and 14 there are no allegations that Mr. Gordon was Plaintiff's supervisor. Second, regarding Main 951-215-4900 • 15 Superintendent Trevethan, this cause of action must fail because Plaintiff fails to allege any basis 16 to infer that she took any action for the purpose of preventing a disclosure of information by 17 Plaintiff to her, the Board, the County Superintendent of Schools, or the State Superintendent of 18 Public Instruction. Third, this cause of action was not exhausted as required under the 19 Government Claims Act. 20 Plaintiff's fifth cause of action, for discrimination and retaliation on the basis of political 21 affiliation in violation of Labor Code §§ 1101 and 1102, must be dismissed as these statutes are 22 inapplicable to public school districts. 23 Plaintiffs' seventh cause of action, for intentional interference with contract,1 must be 24 dismissed for three reasons. First, it cannot be ascertained from the Complaint whether Plaintiff 25 refers to a written, oral, or contract implied by conduct. Second, Plaintiff has not alleged the 26 1 Defendants note that Plaintiff refers to this cause of action as "tortious interference with 27 economic interests" on the cover page of his Complaint. Regardless of its title, this cause of action 28 should be dismissed for the reasons stated above. 8 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 existence of a contract with any entity other than the District and, as agents of the District, neither 2 Superintendent Trevethan nor Mr. Gordon may be held liable for inducing a breach of a District 3 contract. Third, under the Government Claims Act, both Superintendent Trevethan and Mr. 4 Gordon are immune from this claim as to any discretionary acts and Plaintiff pleads no others. 5 Plaintiff's eighth cause of action, for breach of implied covenant of good faith and fair 6 dealing must fail for four reasons. First, it cannot be ascertained from the Complaint whether 7 Plaintiff refers to a written, oral, or contract implied by conduct. Second, under the Government 8 Claims Act, the District is immune from this claim. Third, even if it were not immune, Plaintiff 9 references no express terms of a contract by which any breach of the implied covenant may be 10 ascertained. Fourth, Plaintiff cannot state a cause of action for breach of implied covenant of good 11 faith and fair dealing since in the employment context, it cannot support an award of tort damages Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 12 and Plaintiff does not identify any contract damages. Corona, California 92883 13 For these reasons and as set forth below, Defendants' Demurrer must be sustained without 14 leave to amend as these enumerated pleading deficiencies and improper causes of action cannot be Main 951-215-4900 • 15 cured by way of amendment. 16 II. RELEVANT FACTS AS ALLEGED IN THE COMPLAINT 17 Plaintiff is a longtime District employee. (Compl. ¶ 21.) Approximately midway through 18 the 2018-19 school year, Plaintiff requested to transition from his Assistant Superintendent 19 position to a P.E. teaching role. (Id. at ¶ 72.) He characterizes the District granting his request as 20 discrimination, retaliation, and a violation of implied common law contract rights. 21 Plaintiff alleges he was retaliated against because he vocally opposed various instances of 22 alleged wrongdoing in multiple forums from 2016 through 2019. (e.g., Compl. ¶¶ 37, 44, 47, 83.) 23 He claims that in October 2018, at least two years after he began this in-person vocal opposition 24 with Superintendent Trevethan, she scheduled him for a "mid-year" performance evaluation. (See 25 Compl. Exhibit A, p. 2:18-20.) 26 In addition, Plaintiff's only reference to the existence of an employment contract is one by 27 which "TUSD could terminate him upon receipt of two poor performance evaluations." (Id. at ¶ 28 60.) Finally, he alleges the individual defendants prevented his performance "under the contract, 9 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 or made his performance more expensive or difficult." (Id. at ¶ 147.) 2 III. STANDARD OF REVIEW FOR DEMURRER 3 Code of Civil Procedure section 430.30, subd. (a) authorizes a demurrer when any ground 4 for objection to a complaint appears on the face thereof, or from any matter of which the court is 5 required to or may take judicial notice. In determining whether the complaint alleges facts 6 sufficient to state a cause of action, the court may treat the demurrer as admitting all material facts 7 properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan 8 (1985) 39 Cal.3d. 311, 318 (“Blank”).) Doubt in the Complaint may be resolved against Plaintiff 9 and facts not alleged are presumed not to exist. (C & H Foods Co. v. Hartford Ins. Co. (1984) 163 10 Cal.App.3d 1055, 1062.) Also, “[i]n determining whether the complaint states facts sufficient to 11 constitute a cause of action, the trial court may consider all material facts pleaded in the complaint Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 12 and those arising by reasonable implication therefrom...” (Young v. Gannon (2002) 97 Corona, California 92883 13 Cal.App.4th 209, 220.) 14 Plaintiff must show that there is a reasonable possibility that the defect can be cured by Main 951-215-4900 • 15 amendment. (Blank, supra, 39 Cal.3d at p. 319.) Thus, the burden is on Plaintiff to show in what 16 manner the Complaint can be amended and how that amendment will change the legal effect of the 17 pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) If Plaintiff cannot do so, sustaining 18 a demurrer without leave to amend is proper. (Blank, supra, 39 Cal.3d at p. 319.) 19 IV. ARGUMENT 20 A. First Cause of Action: Violation of Education Code § 44110 et seq. 21 California Education Code § 44113 ("Section 44113") states: 22 (a) An employee may not directly or indirectly use or attempt to use the official authority or influence of the employee for the purpose of 23 intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command any person for the purpose of 24 interfering with the right of that person to disclose to an official agent 25 matters within the scope of this article. (b) For the purpose of subdivision (a), “use of official authority or 26 influence” includes. .. affecting or threatening to affect any reprisal; or taking, directing others to take, recommending, processing, or approving 27 any personnel action . . . . (c) For the purpose of subdivision (a), “official agent” includes a school 28 administrator, member of the governing board of a school district or county 10 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 board of education, county superintendent of schools, or the Superintendent of Public Instruction. 2 (d) An employee who violates subdivision (a) may be liable in an action for civil damages brought against the employee by the offended party. 3 **** 4 In addition, while "an employee" may be liable under this statutory provision, Section 5 44113 extends civil liability to those employees acting in a supervisory capacity but not to 6 "management" employees generally. (Conn. v. W. Placer Unified Sch. Dist. (2010) 186 7 Cal.App.4th 1163.) 8 As pleaded, neither the District nor Mr. Gordon can be liable under this statute or article. 9 The District cannot be liable because it is not an "employee" as defined by the article. (Id.; see also 10 Cal. Educ. Code § 44112(a).) Mr. Gordon cannot be liable as the Complaint does not allege he 11 Fagen Friedman & Fulfrost, LLP exercised supervisory authority over Mr. Trainor. (Conn. v. W. Placer Unified Sch. Dist. (2010) Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 12 186 Cal.App.4th 1163.) Corona, California 92883 13 For Superintendent Trevethan to be liable, the Complaint must allege she used retaliated or 14 threatened to retaliate against him for the purpose of interfering with Plaintiff's right to disclose Main 951-215-4900 • 15 something to a school administrator, a Board member, the county Superintendent, or California's 16 Superintendent of Public Instruction. (Cal. Ed. Code § 44113.) There are no such allegations that 17 anyone interfered with Plaintiff's right to disclose any information. There are no allegations that 18 Plaintiff was even interested in disclosing information to any specific school administrator, Board 19 member, or Superintendent. Rather, the Complaint explains in detail how Mr. Trainor was not 20 prevented from sharing any disclosures on a variety of topics with whomever he chose (E.g., 21 Compl. ¶ 37). All of his disclosures are the purported basis for his retaliation claims. 22 In addition, Plaintiff alleges he opposed various alleged improper governmental activities. 23 (Id. at ¶¶ 44, 83.) He alleges he opposed some of these activities from 2016 through 2019. (Id. at 24 ¶ 47.) He also alleges that Superintendent Trevethan scheduled him for a "mid-year" performance 25 evaluation in October 2018. (See Compl. Exhibit A, p. 2:18-20). What he fails to allege, 26 however, is any basis to infer that in October 2018, Ms. Trevethan sought to prevent any 27 disclosures that Plaintiff alleges he had been making – allegedly to her – for three years. 28 Likewise, he fails to provide any basis to infer that all the disclosures articulated in the Complaint 11 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 had not already been made by the time Superintendent Trevethan scheduled the mid-year 2 evaluation. 3 Finally, this cause of action was not exhausted as required under the Government Claims 4 Act. There were no allegations in Mr. Trainor's government claim notice that encompass this 5 claim nor is it listed as an exception to the Government Claims Act requirements. (See Compl. 6 "Exhibit B"; Cal. Gov't Code §§ 905, 911.2, 945, 950.2.) The first time the District became aware 7 of this cause of action was when Mr. Trainor filed his Complaint. Failure to plead facts 8 demonstrating compliance with the claims filing requirements subjects a claim to demurrer; failure 9 to exhaust such a claim bars it as a matter of law. (State of Cal. v. Superior Court (2004) 32 10 Cal.4th 1234, 1238-39.) 11 Accordingly, Defendants demurrer as to this First Cause of Action should be sustained. Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 12 Because this cause of action cannot be repaired by amendment due to Plaintiff's failure to exhaust, Corona, California 92883 13 it should be sustained without leave to amend. 14 B. Fifth Cause of Action: Violation of Labor Code §§ 1101 and 1102 Main 951-215-4900 • 15 Plaintiff's Fifth Cause of Action is directed towards the District and alleges discrimination 16 and retaliation on the basis of political affiliation. On their face, Labor Code sections §§ 1101 and 17 1102 apply to all public employees. However, these statutes are inapplicable to public school 18 districts. (Cal. Teachers Ass'n v. Governing Bd. (1996) 45 Cal.App.4th 1383.) 19 Accordingly, Defendants' demurrer as to this Fifth Cause of Action should be sustained. 20 C. Seventh Cause of Action: Intentional Interference with Contract 21 Plaintiff's Seventh Cause of Action is directed towards Superintendent Trevethan and Mr. 22 Gordon. It alleges that one or both of them tortuously interfered with Mr. Trainor's employment 23 "contract." This cause of action must fail for multiple reasons. 24 First, as pleaded, it cannot be ascertained whether the contract to which Plaintiff refers is 25 written, oral, or implied by conduct. (Cal. Code Civ. Proc. 430.10(g).) To the extent Plaintiff 26 does not refer to the terms of a bilateral employment contract, "a public entity cannot be held 27 liable on an implied-in-law or quasi-contract theory."(Pasadena Live v. City of Pasadena (2004) 28 114 Cal.App.4th 1089, 1094).) While it cannot be ascertained, it is noteworthy that Plaintiff 12 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 brings no cause of action for breach of contract and makes no reference to any express contractual 2 provision. 3 Second, for Plaintiff to eventually prevail on an intentional interference with contract 4 claim, he must be able to show (1) the existence of a valid contract between him and a third party, 5 (2) defendants' knowledge of the contract, (3) intentional acts designed to induce a breach or to 6 disrupt a contractual relationship, (4) actual breach or disruption of the contractual relationship, 7 and (5) resulting damage. (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.) At the same time, 8 absent an express bi-lateral agreement, it is "well-settled" that public employment is not held by 9 contract but by statute and that public employees have no vested contractual right in the terms of 10 his or her employment. (Guarino v. County of Siskiyou (2018) 21 Cal.App.5th 1170.) Further, 11 "[i]t is axiomatic . . . that there can be no action for inducement of breach of contract against the Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 12 other party to the contract. (Shoemaker v. Meyers (1990) 52 Cal.3d 1, 24.) Neither the District nor Corona, California 92883 13 its agents and employees acting on its behalf may be held liable for inducing a breach of a District 14 contract. (Id. at 24-25.) Main 951-215-4900 • 15 Plaintiff pleads nothing that can support this cause of action. As noted above, the form of 16 Plaintiff's alleged contract cannot be ascertained from the Complaint. In addition, Plaintiff has not 17 alleged the existence of a bilateral contract or a contract between him and any third party. Plaintiff 18 has failed to articulate any intentional act taken by anyone to interfere with this alleged contract. 19 He has failed to identify any non-agents or non-employees of the District that induced this alleged 20 interference. He merely concludes that some contractual relationship existed and was disrupted. 21 That is not enough. 22 Third, California's Government Claims Act immunizes both Superintendent Trevethan and 23 Mr. Gordon from claims based on the exercise of their official discretion. (Gov. Code § 820.2; 24 Caldwell v. Montoya (1995) 10 Cal.4th 972, 979-980.) Section 820.2 provides: “Except as 25 otherwise provided by statute, a public employee is not liable for an injury resulting from his act 26 or omission where the act or omission was the result of the exercise of the discretion vested in 27 him, whether or not such discretion be abused.” (See Osborne v. Huntington Beach Union High 28 Sch. Dist. (1970) 5 Cal.App.3d 510, 514 [“A public official or public employee is not liable for 13 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 injury caused by an act which was the result of the exercise of discretion vested in him”].) Plaintiff 2 has failed to allege any non-discretionary acts by either of the individual defendants sufficient to 3 overcome their statutory immunity. 4 For all of the foregoing reasons, Defendants demurrer as to this Seventh Cause of Action 5 should be sustained. Because this cause of action cannot be repaired by amendment due to 6 Plaintiff's failure to exhaust, it should be sustained without leave to amend. 7 D. Eighth Cause of Action: Breach of Implied Covenant of Good Faith and Fair 8 Dealing 9 Plaintiff's Eighth Cause of Action is directed towards the District and alleges it breached 10 the implied covenant of good faith and fair dealing by taking various actions to prevent Mr. 11 Trainor from receiving benefits under his alleged employment "contract." Like Plaintiff's Seventh Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 4160 Temescal Canyon Road, Suite 610 12 Cause of Action, this claim should be dismissed for multiple reasons. Corona, California 92883 13 First, as pleaded, it cannot be ascertained whether the contract to which Plaintiff refers is 14 written, oral, or implied by conduct. (Cal. Code. Civ. P. 430.10(g).) Further, "a public entity Main 951-215-4900 • 15 cannot be held liable on an implied-in-law or quasi-contract theory."(Pasadena Live v. City of 16 Pasadena (2004) 114 Cal.App.4th 1089, 1094).) 17 Second, under California's Government Claims Act (Cal. Gov. Code § 815), the District 18 cannot be liable for any common law cause of action or judicially declared form of liability 19 "except as provided by statute." (Cal. Gov. Code § 815; see also McAllister v. L.A. Unified Sch. 20 Dist. (2013) 216 Cal.App.4th 1198, 1217-18) (citing Miklosy v. Regents of Univ. of Cal. (2008) 44 21 Cal.4th 876, 899.) Plaintiff has failed to identify any statutory basis for this claim. 22 Third, even if the District could be liable, a cause of action for Breach of Implied Covenant 23 of Good Faith and Fair Dealing depends upon the existence of a valid contract (Stanley v. Univ. of 24 S. Cal. (1999) 178 F.3d 1069, 1078) and only applies to "the express terms . . . ." (Pasadena Live, 25 114 Cal.App.4th at 1094) (emphasis in original). The Complaint fails to establish the existence of 26 a valid contract or identify a single one of its express terms. 27 Fourth, Plaintiff cannot state a cause of action for breach of implied covenant of good faith 28 and fair dealing "since that cause of action, in the employment context, cannot support an award of 14 Case No. CV-20-002940 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT 1 tort damages." (Shoemaker v. Meyers (1990) 52 Cal.3d 1, 23-24.) As noted above, Plaintiff has 2 failed to identify any contract damages (or even the existence of a bilateral agreement) and instead 3 seeks only tort damages associated with this claim. (See Compl. ¶¶ 150, 152, 162.) Accordingly, 4 he has failed to state a claim upon which relief could be granted, and has failed to establish the 5 appropriate relief for such a claim, and Defendants' demurrer as to this cause of action should be 6 sustained. 7 V. CONCLUSION 8 Based upon the foregoing, Defendants' Demurrer must be sustained without leave to amend. 9 DATED: August 19, 2020 FAGEN FRIEDMAN & FULFROST, LLP 10 11 Fagen Friedman & Fulfrost, LLP Fax 951-215-4911 By: 4160 Temescal Canyon Road, Suite 610 12 Milton E. Foster III