Preview
1
Thomas Dimitre, Attorney at Law
2 CSB 276924 2/16/2021
dimitre@mind.net
3 PO Box 801
Ashland, OR 97520
4 Telephone: 541-890-5022
Attorney for Plaintiff
5
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
6
COUNTY OF BUTTE
7
)
8 TERESA RANDOLPH, an individual, ) Case No. 19CV01226
)
9 Plaintiff ) PLAINTIFF, TERESA RANDOLPH’S
) RESPONSE IN OPPOSITION TO
10 vs. ) DEFENDANTS’ MOTION FOR
) JUDGMENT ON THE PLEADINGS
11 )
TRUSTEES OF THE CALIFORNIA
)
12 STATE UNIVERSITY, STATE OF )
CALIFORNIA, CYNTHIA DALEY, AND )
13 DEBRA LARSON )
)
14 )
)
15 Defendants )
)
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17
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This is Plaintiff, Teresa Randolph’s Response in Opposition to Defendants’ Motion for
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Judgment on the Pleadings.
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22 1. STANDARD FOR MOTION FOR JUDGMENT ON THE PLEADINGS
23 A motion for judgment on the pleadings, like a general demurrer, challenges the
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sufficiency of the plaintiff's cause of action and raises the legal issue, regardless of the existence
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of triable issues of fact, of whether the complaint states a cause of action. [Citation.]" Brownell v.
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Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 793, 5 Cal.Rptr.2d 756.) The
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PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ 1
MOTION FOR JUDGMENT ON THE PLEADINGS
1 standard of review for a motion for judgment on the pleadings is the same as that for a general
2 demurrer.
3
Baughman v. State of California (1995) 38 Cal.App.4th 182, 187, 45 Cal.Rptr.2d 82.) Cited in
4 Ellerbee v. County of Los Angeles, 187 Cal.App.4th 1206, 114 Cal.Rptr.3d 756 (Cal. App. 2010)
cited in Bezirdjian v. O'Reilly, 183 Cal.App.4th 316 (Cal. App. 2010)
5
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Therefore, here, the court must DENY Defendants’ Motion for Judgment on the
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Pleadings if Plaintiff has stated a cause of action.
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10 2. EIGHTH CAUSE OF ACTION – WRONGFUL
TERMINATION/CONSTRUCTIVE DISCHARGE – THE COURT MUST DENY
11 DEFENDANTS’ MOTION
12
13 Plaintiff has pled that she was wrongfully terminated by Defendants, and that Defendants
14 violated California Labor Code 1102.5 and California Government Code 12940, and that these
15
violations were injurious in themselves. The Court should DENY Defendants’ motion for
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judgment on the pleadings on this claim.
17
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19 3. ELEVENTH CAUSE OF ACTION – DEFAMATION – THE COURT MUST
DENY DEFENDANTS’ MOTION
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A claim for defamation has the following elements:
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"The tort of defamation ‘involves (a) a publication that is (b) false, (c) defamatory, and
23 (d) unprivileged, and that (e) has a natural tendency to injure or that causes special
damage."
24
25 Taus v. Loftus, (2007) 40 Cal.4th 683, 720, 54 Cal.Rptr.3d 775, 151 P.3d 1185, quoting 5 Witkin,
Summary of Cal. Law (10th ed. 2005) Torts, § 529, p. 782.) Cited in Lemke v. Sutter Roseville
26 Med. Ctr., 8 Cal.App.5th 1292, 216 Cal.Rptr.3d 343 (Cal. App. 2017)
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PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ 2
MOTION FOR JUDGMENT ON THE PLEADINGS
1 Here it is properly alleged that Larson made a publication to Pittman and Hansen, that the
2 comments that Larson made were false, that they were defamatory and knowing false, that the
3
comments were unprivileged (Note that the court has already ruled that the comments were not
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privileged), and that the comments injured Plaintiff’s business reputation. When a business
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reputation is harmed, it is assumed that there are damages. Plaintiff meets all of the elements of
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7 a defamation case against Larson.
8 First, Defendants alleges that Plaintiff had not complied with the Government Tort
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Claims Act in regard to her defamation claim.
10
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The Court has already denied Defendant’s demurrer regarding Plaintiff’s claim of
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defamation in her Tort Claim Notice. It is Improper for Defendants to now make a Motion
13 for Judgment on the Pleadings. The Motion should be DENIED.
14
Plaintiff has previously argued that the Court has already ruled on this claim – and
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16 DENIED Defendant’s demurrer. See Plaintiff’s Response in Opposition to Defendants’ Third
17 Motion for Partial Judgment on the Pleadings, dated July 31, 2020. Exhibit 1.
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19
And as result of that pleading, on September 20, 2020, the Court issued a tentative ruling
20
that stated the following:
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“As to the Eleventh Cause of Action (Defamation), the Court finds that the Claim Form
23 submitted by Plaintiff prior to filing suit does include facts indicating that she was or
would be making a claim for defamation and thus Plaintiff has satisfied the
24 Government Tort Claims Act and the Motion is denied on that basis. However, it does
25 not appear as though there are sufficient facts stated in the Second Amended Complaint
to support such a cause of action against Defendant Larson and the motion is granted as
26 to the Eleventh Cause of Action without leave to amend as to Defendant Larson.”
Ex. 2.
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PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ 3
MOTION FOR JUDGMENT ON THE PLEADINGS
1 Though it appears that there was no order issued on that tentative ruling, the Court has
2 already ruled on Plaintiff’s defamation claim in her Second Amended Complaint and has already
3
found that Plaintiff has adequately made a defamation claim on her Government Tort Claims Act
4
from. Therefore, the Court should DENY Defendants’ third attempt knock out this claim, as the
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Court has already ruled on this issue.
6
7
8 The Court Has already denied Defendants’ Demurrer – stating that Plaintiff has made an
adequate claim regarding defamation by Daley. It is Improper for Defendants to make a
9
Motion for Judgment on the Pleadings. The Motion should be DENIED.
10
11 In the September 20, 2020 ruling, the Court found that Plaintiff had adequately pled her
12
defamation claim as to Defendant Daley (see above). Therefore, the Court should DENY
13
Defendants’ Motion for Judgment on the Pleadings as to Defendant Daley. The Court has
14
already ruled on that matter.
15
16
17 Defendants’ Motion on the Pleadings Regarding Plaintiff’s Defamation Claim against
Larson should be DENIED
18
19
Since the Court already ruled that the Tort Claims Notice was adequate, the only issue
20
remaining regarding Defendant Larson is whether Plaintiff has adequately pled a defamation
21
22 claim against Larson.
23 Plaintiff has added language to the Third Amended Complaint (TAC) that properly
24 pleads a defamation claim. See elements above.
25
Plaintiff has stated the following regarding her defamation claim against Daley in
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paragraph 60 of the TAC:
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28
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ 4
MOTION FOR JUDGMENT ON THE PLEADINGS
1 “Michal Hanson, lead conference student, asked Plaintiff what she could do regarding the
Conference website being shut down and decided to include the topic on the Campus
2 Sustainability Committee agenda, which she was a member of. She later told Plaintiff
that when she brought up the conference and asked why Ms. Daley had shut it and the
3
conference website down, Provost Larson and Ms. Daley very angrily cut her off,
4 feigning that they didn’t know what had happened or why. Larson and Daley
blamed Plaintiff and told the students that Plaintiff had cancelled the world
5 renowned conference. Larson and Daley both knew that this was not true. Ms.
Daley immediately texted Plaintiff and accused her of causing a “shit storm.” Again,
6
Plaintiff’s anxiety, stress and back pain increased.”
7 TAC, paragraph 60.
8
Clearly, Plaintiff has properly alleged a defamation claim against Defendant Larson, and
9
10 the Court should therefore DENY Defendant’s motion for judgment on the pleadings on this
11 claim.
12
For all of the reasons stated above, the Court should DENY Defendants’ motion for
13
judgment on the pleadings regarding all Defendants on the defamation claim.
14
15
16 Thomas Dimitre Attorney at Law LLC
17 By: /s/ Thomas Dimitre
________________
18
Thomas Dimitre
19 Attorney for Plaintiff
Teresa Randolph
20
21
Dated: January 22, 2021
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PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ 5
MOTION FOR JUDGMENT ON THE PLEADINGS
1 CERTIFICATE OF SERVICE
2 I, Thomas Dimitre, declare as follows:
3
I am an employee of Thomas Dimitre, Attorney at Law, over the age of eighteen years
4
and not a party to this action. My business address is PO BOX 801, Ashland,
5
Oregon 97520. My business telephone number is (541) 890-5022, and my fax number is
6
7 (541)488-4601.
8 On February 15, 2021 I served the foregoing document(s) described as:
9
1. Plaintiff’s Response in Opposition to Defendants’ Motion for Judgment on the Pleadings,
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by placing true copies thereof in sealed envelopes with postage thereon fully prepaid, in
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the United States mail at ASHLAND, OR addressed as shown below:
12
13 Jerry Deschler Jr.
Deputy Attorney General IV
14 1300 I Street
Sacramento, CA 95814
15
16 The document was also emailed to Mr. Deschler at Jerry.Deschler@doj.ca.gov
17 I declare, under penalty of perjury under the laws of the State of California, that
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the foregoing is true and correct. Executed on February 15, 2021 at Ashland OR.
19
20
/s/ Thomas Dimitre
21 _________________
22 Thomas Dimitre
Attorney for Plaintiff
23 Teresa Randolph February 15, 2021
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PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ 6
MOTION FOR JUDGMENT ON THE PLEADINGS
1 Thomas Dimitre SBN 276924
Thomas Dimitre Attorney at Law LLC
2 PO Box 801
Ashland, OR 97520
3
Tel: 541 890 5022
4 Fax: 541 488 4601
Email: dimitre@mind.net
5
6
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
FOR THE COUNTY OF BUTTE
8
9
10
11
TERESA RANDOLPH, Case No. 19CV01226
12
13 Plaintiff
SWORN DECLARATION OF THOMAS
14 and DIMITRE
15
16 TRUSTEES OF THE CALIFORNIA
STATE UNIVERSITY, STATE OF
17 CALIFORNIA, CYNTHIA DALEY, AND
DEBRA LARSON
18
19 Defendants
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1
1
I, Thomas Dimitre, resident and am employed in Oregon, declare and state as follows:
2
3
1. I am the Plaintiff’s attorney in this case.
4 2. I am personally aware of all of the facts, and am competent to testify about each fact as
5 set forth in this declaration. All of my statements are based on my personal knowledge.
6
I am competent to testify to these facts.
7
3. Exhibit 1 is a true and correct copy of Plaintiff’s Response In Opposition to
8
Defendants’ Third Motion for Partial Judgment on the Pleadings, and is attached
9
10 hereto.
11 4. Exhibit 2 is a true and correct copy of the Court’s Tentative Ruling on September 16,
12
2020, and is attached hereto.
13
5. I swear, under the penalty of perjury, under the laws of the State of California, that
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the foregoing is true and correct.
15
16 s/s Thomas Dimitre
____________________ Date: February 15, 2021
17 Thomas Dimitre
Attorney for Plaintiff
18
Teresa Randolph
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2
1 Thomas Dimitre, Attorney at Law L.L.C.
CSB # 276924
2 dimitre@mind.net
PO Box 801
3
Ashland, OR 97520
4 Telephone: 541-890-5022
Attorney for Plaintiff
5
6
STATE OF CALIFORNIA
7
COUNTY OF BUTTE
8
9
10
TERESA RANDOLPH, an individual Case No. 19CV01226
11
Plaintiff EXHIBIT 1
12
13 v.
14 TRUSTEES OF THE CALIFORNIA
STATE UNIVERSITY, STATE OF
15
CALIFORNIA, AND CYNTHIA DALEY,
16 AN INDIVIDUAL, AND DEBRA
LARSON, AN INDIVIDUAL
17
Defendants
18
19
20
21
22
23
24
25
26
27
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1
1
Thomas Dimitre, Attorney at Law
2 CSB 276924
dimitre@mind.net
3 PO Box 801
Ashland, OR 97520
4 Telephone: 541-890-5022
Attorney for Plaintiff
5
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
6
COUNTY OF BUTTE
7
)
8 TERESA RANDOLPH, an individual, )
)
9 Plaintiff )
)
10 vs. )
) Case No. 19CV01226
11 )
TRUSTEES OF THE CALIFORNIA
) PLAINTIFF’S RESPONSE IN
12 STATE UNIVERSITY, STATE OF ) OPPOSITION TO DEFENDANTS’ THIRD
CALIFORNIA, CYNTHIA DALEY, AND ) MOTION FOR PARTIAL JUDGMENT
13 DEBRA LARSON ) ON THE PLEADINGS
)
14 )
)
15 Defendants )
)
16 HEARING DATE: September 9, 2020
17
HEARING TIME: 9:00 AM
JUDGE: HONORABLE ROBERT
18 GLUSMAN
DEPT: 10
19 TRIAL DATE: NONE
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PLAINTIFF’S RESPONSE TO THIRD DEMURRER 1
1 TABLE OF CONTENTS
2 1. Defendant Failed to Meet and Confer Regarding This –
His Third Demurrer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3
4 2. Defendants Violate CCP 430.41(b) by Bringing Demurrers on the Invasion of
Privacy Claim and Defamation Claim for a Second Time & Third Time . . . . . .4
5
3. 8th cause of action - Wrongful Termination/Constructive
6 Discharge/Retaliation in Violation of a Statute- The Court should DENY
Defendants’ Demurrer on this Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
7
8
4. 9th Cause of Action – Intentional Infliction of Emotional Distress –
The Court should DENY Defendants’ Demurrer on This Claim . . . . . . . . . . . .8
9
5. 11th Cause of Action - Defamation The Court Should DENY
10 Defendants’ Demurrer on this claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
11
6. 12th Claim – Invasion of Privacy - The Court Should DENY Defendants’
12 Demurrer on this Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
13 7. Conclusion
14
15
16
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23
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PLAINTIFF’S RESPONSE TO THIRD DEMURRER 2
1 TABLE OF AUTHORITIES
2 Aguilar v. Atlantic Richfield,
107 Cal.Rptr.2d (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
3
Alcorn v. Anbro Engineering, Inc.
4 (1970) 2 Cal.3d 493, 499 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.8, 13
5 Barot v. City of Berkeley,
(Cal. App. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
6
Christensen v. Superior Cour,t
7 (1991) 54 Cal.3d 868 . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8 City of San Jose v. Superior Court,
(1974) 12 Cal.3d 447 . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
9
Derby v. City of Pittsburg,
10 No. 16-cv-05469-SI, 2017 U.S. Dist. LEXIS 25660, at *23
(N.D. Cal. Feb. 23, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
11
Eastburn v. Regional Fire Protection Authority,
(2003) 31 Cal.4th 1175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. .4
12
Elias v. San Bernardino County Flood Control District,
13
(1977) 68 Cal.App3d 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
14
Felix v. Fernandez,
(Cal. App., 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8, 13
15
in Light v. Cal. Dep't of Parks & Recreation,
16
221 Cal.Rptr.3d 668 (Cal. App., 2017) ................................. . . . .8, 9
17
Loehr v. Ventura County Community College Dist.,
147 Cal.App.3d 1071 (Cal. App., 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
18
Miklosy v. Regents of Univ. of California,
19
188 P.3d 629 (Cal., 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. .4
20
Rulon-Miller v. International Business Machines Corp.,
208 Cal. Rptr. 524 (Cal. Ct. App. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . .9
21
Searcy v. Hemet Unified School Dist,
22 177 Cal.App.3d 79 (Cal. App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .
6
23 Shoemaker v. Myers,
4 Cal.Rptr.2d 203 (Cal. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 15
24
Trerice v. Blue Cross of California,
25 209 Cal.App.3d 878, (Cal. App., 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
26 Wang v. City of Clear Lake,
(N.D. Cal. 2020) Case No. 19-cv-05370-EMC at page 15 . . . . . . . . . . . . . . . . . . . . . . . .7
27
Zelig v. County of Los Angeles,
28 (2002) 27 Cal.4th 1112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . .4
PLAINTIFF’S RESPONSE TO THIRD DEMURRER 3
1 This is Plaintiff, Teresa Randolph’s Response to Defendants’ Third Demurrer.
2 Defendants’ first demurrer was denied in part and Plaintiff was given leave to amend in part.
3
Defendants’ second demurrer was denied due to a procedural defect. Defendant has not
4
demurred against Plaintiff’s first, second, third, fourth, fifth, sixth, seventh, or tenth claims.
5
Defendant demurrers to only Plaintiff’s eighth, ninth, eleventh and twelfth claims.
6
7
8 1. Defendant failed to Meet and Confer regarding this – his Third Demurrer
9
Though Defendant has a long discussion regarding his alleged meet and confer with
10
Plaintiff’s counsel regarding a demurrer in his brief, he is referring to his first and second
11
demurrers. There was no meet and confer for this Third Demurrer. California Code of Civil
12
13 Procedure 430.41(a):
14
430.41.
15
“(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and
16 confer in person or by telephone with the party who filed the pleading that is subject to
demurrer for the purpose of determining whether an agreement can be reached that would
17 resolve the objections to be raised in the demurrer. If an amended complaint, cross-
complaint, or answer is filed, the responding party shall meet and confer again with the
18
party who filed the amended pleading before filing a demurrer to the amended pleading.”
19
20 Defendant did not attempt to contact Plaintiff’s attorney by telephone or in person prior
21 to filing this demurrer. Defendants have failed to comply with CCP 430.41. See Sworn
22
Declaration of Thomas Dimitre, attached.
23
24 Defendants’ own sworn declaration shows that he last discussed his demurrer with
25 Plaintiff’s counsel in October 2019. Deschler Sworn Declaration at 7. That was prior to the
26 Court denying Defendant’s second demurrer.
27
28
PLAINTIFF’S RESPONSE TO THIRD DEMURRER 4
1 There has been no attempt by Defendant to contact Plaintiff’s counsel regarding his third
2 demurrer, ever.
3
2. Defendants Violate CCP 430.41(b) by Bringing Demurrers on the Invasion of
4 Privacy Claim and Defamation Claim for a Second Time
5
6 Defendants have already brought demurrers against the invasion of privacy claim and
7 defamation claim and been denied. Now, Defendants are attempting to bring demurrers on these
8
two claims again, and for a different reason. CCP 430.41(b) clearly prohibits Defendants
9
bringing a second demurrer for a new reason when the Court has overruled the demurrer
10
previously.
11
12 California Code of Civil Procedure 430.41(b) states:
13
“(b) A party demurring to a pleading that has been amended after a demurrer to an earlier
14 version of the pleading was sustained shall not demur to any portion of the amended
complaint, cross-complaint, or answer on grounds that could have been raised by
15 demurrer to the earlier version of the complaint, cross-complaint, or answer.”
16
17 Here, Defendants’ now claim that Plaintiff did not adequately notify them of her
18 defamation claim in her tort claim notice. Defendant should have raised these new issues
19
regarding the Tort Notice in the first Demurrer, and did not. They did not make these claims
20
previously, in their first demurrer, so it should be considered waived, per 430.41(b).
21
On the Defamation claim (now the 11th claim)– the Court overruled the demurrer for
22
23 Cynthia Daley. The Court also overruled the demurrer on the Invasion of Privacy Claim (now the
24 12th claim). The Defendants now are now, again, demurring to these claims – claims that have
25
already been decided by the Court. Defendants cannot, again, demurrer to these claims due to
26
CCP 430.41(b). The Court should DENY the demurrers to these two claims base due to this
27
statute alone.
28
PLAINTIFF’S RESPONSE TO THIRD DEMURRER 5
1 3. 8th cause of action - Wrongful Termination/Constructive Discharge/Retaliation in
Violation of a Statute- The Court should DENY Defendants’ Demurrer on this
2 Claim
3
The Court granted Plaintiff’s request for leave to amend on this issue because the Court
4
believed that there is a Wrongful termination/constructive discharge claim in violation of statute
5
that can be brought against a public entity. Unlike the insinuation in Defendant’s Third
6
7 Demurrer, the Court granted leave to amend. If the Court believed that Plaintiff could not have
8 made a proper claim out of it, the Court would not have granted leave to amend.
9
In the SAC, Plaintiff has added statutory claims to go with the wrongful/constructive
10
discharge claim.
11
A public employee cannot assert a wrongful termination/constructive discharge based on
12
13 a public policy action against a public employer.
14 “The Legislative Committee Comment to section 815 states: "This section abolishes all
common law or judicially declared forms of liability for public entities, except for such
15
liability as may be required by the state or federal constitution, e.g., inverse
16 condemnation. ..." (Legis. Com. com., 32 West's Ann. Gov.Code (1995), foll. § 815, p.
167, italics added.) Moreover, our own decisions confirm that section 815 abolishes
17 common law tort liability for public entities.”
See Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175 1179, 7 Cal.Rptr.3d
18
552, 80 P.3d 656; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127-1128, 119
19 Cal.Rptr.2d 709, 45 P.3d 1171, cited in Miklosy v. Regents of Univ. of California, 188 P.3d 629,
80 Cal.Rptr.3d 690, 44 Cal.4th 876 (Cal., 2008).
20
A Tameny “ cause of action' is a common law, judicially created tort.” Miklosy v.
21
22 Regents of Univ. of California, 188 P.3d 629, 80 Cal.Rptr.3d 690, 44 Cal.4th 876 (Cal., 2008).
23 But California courts have allowed Tameny claims that are attached to statutory
24 violations.
25
In Shoemaker v Myers, Plaintiff, a public safety employee sued individual defendants,
26
and the State of California for wrongful termination due to his whistleblowing. Shoemaker v.
27
28
Myers, 4 Cal.Rptr.2d 203 (1992). Defendants defended by stating that Plaintiff could not bring a
PLAINTIFF’S RESPONSE TO THIRD DEMURRER 6
1 wrongful termination against the State. The Court held that Plaintiff could bring his wrongful
2 termination claim against the State based on the whistleblower (Calif. Labor Code 1102.5) claim.
3
The Court held that Labor Code section 1102.5 “reflects a broad public policy interest,” and “[i]t
4
does evince a strong public interest in encouraging employee reports of illegal activity in the
5
workplace.” Id. at 209. In our case, Plaintiff has also filed a section 1102.5 claim.
6
7 The Court also found that Plaintiff’s alleged violations of the Officers Right Act also
8 supported a Tameny Claim. Id. at 211.
9
In Barot v. City of Berkeley, the Court analyzed a Tameny action. Barot v. City of
10
Berkeley, (Cal. App. 2020). The Barot court cited to Searcy v. Hemet Unified School Dist.:
11
“[i]n California all government tort liability is dependent on the existence of an
12
authorizing statute or 'enactment' (Gov.Code, §§ 815, subd. (a), 815.6; Tolan v. State of
13 California ex rel. Dept. of Transportation, supra, 100 Cal.App.3d 980, 983, 161 Cal.Rptr.
307; Morris v. State of California, supra, 89 Cal.App.3d 962, 964, 153 Cal.Rptr. 117;
14 Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 808, 75 Cal.Rptr. 240), and
to state a cause of action every fact essential to the existence of statutory liability must be
15
pleaded with particularity, including the existence of a statutory duty. (Susman v. City of
16 Los Angeles, supra, 269 Cal.App.2d 803, 809, 75 Cal.Rptr. 240.) Duty cannot be alleged
simply by stating 'defendant had a duty under the law'; that is a conclusion of law, not an
17 allegation of fact. The facts showing the existence of the claimed duty must be alleged.
(Id.; see also Rubinow v. County of San Bernardino (1959) 169 Cal.app.2d 67, 71, 336
18
P.2d 968.) Since the duty of a governmental agency can only be created by statute or
19 'enactment,' the statute or 'enactment' claimed to establish the duty must at the very least
be identified. Searcy v. Hemet Unified School Dist., 223 Cal.Rptr. 206, 177 Cal.App.3d
20 792 (Cal. App. 1986)
Searcy v. Hemet Unified School Dist, 177 Cal.App.3d 792, 802 (Cal. App. 1986).
21
22 The Court in Searcy dismissed the claim, but only because the Plaintiff did not attach the
23 claim to “…the existence of a statutory duty.” Id. 1 In the present case, Plaintiff has attached the
24 claim to two statutes – both 1102.5 and California Government Code 12940.
25
26
1 "Since the duty of a governmental agency can only be created by statute or 'enactment,'
the statute or 'enactment' claimed to establish the duty must at the very least be identified"
27 in a complaint against a public entity. (Searcy v. Hemet Unified School Dist. (1986) 177
Cal.App.3d 792, 802.) Here, the trial court sustained the city's demurrer to Barot's first
28
amended complaint with leave to amend because she had not cited a statute authorizing
PLAINTIFF’S RESPONSE TO THIRD DEMURRER 7
1 In Wang v. City of Clear Lake, the Court held that the Plaintiff did not have a wrongful
2 termination case against the City of Clear Lake, but only because “Ms. Wang has not asserted a
3
wrongful termination claim based on a statute. 2 Wang v. City of Clear Lake, (N.D. Cal. 2020)
4
Case No. 19-cv-05370-EMC at page 15. Again, in the present case, Plaintiff has asserted
5
wrongful termination based on two statutes.
6
7 In her SAC, Plaintiff now states that this claim rests on a violation of Labor Code 1102.5
8 and California Government Code 12940 – the anti harassment, anti discrimination and anti
9
retaliation provision of the CGC.
10
Based on the above, Plaintiff has properly alleged a wrongful termination/constructive
11
discharge/retaliation claim based on a statute.
12
13 The Court should DENY Defendants’ demurrer on this claim. Alternatively, the Court
14 should give Plaintiff leave to amend.
15
16
17
18
19
20
21 her negligence cause of action. No such statute is cited in the second amended complaint
nor on appeal. The court rightly sustained the demurrer without leave to amend. Barot v.
22
City of Berkeley (Cal. App. 2020).
2 See, e.g., Derby v. City of Pittsburg, No. 16-cv-05469-SI, 2017 U.S. Dist. LEXIS 25660, at *23
23
(N.D. Cal. Feb. 23, 2017) (noting that, "[u]nder the Government Claims Act, public entities
24 are not liable for injuries arising from acts or omissions of the public entity except as
provided by statute"; one "statutory exception can be found in Government Code § 815.6,
25
which provides[:] 'Where a public entity is under a mandatory duty imposed by an
26 enactment that is designed to protect against the risk of a particular kind of injury, the
public entity is liable for an injury of that kind proximately caused by its failure to
27 discharge the duty unless the public entity establishes that is exercised reasonable
diligence to discharge the duty'") (emphasis added). Ms. Wang has not asserted a wrongful
28
termination claim based on a statute. Wang v. City of Clear Lake (N.D. Cal. 2020)
PLAINTIFF’S RESPONSE TO THIRD DEMURRER 8
1 4. 9th Cause of Action – Intentional Infliction of Emotional Distress
The Court should DENY Defendants’ Demurrer on This Claim
2
Defendant’s already made a demurrer for this claim and the Court granted leave to
3
4 amend. Plaintiff added more allegations in paragraphs 50, 80, and especially 90 of the SAC that
5 easily met the requirements of this claim.
6
Defendant claims that Plaintiff cannot make a claim of Intentional Infliction of Emotional
7
Distress (“IIED”) because the egregious actions taken by Defendant against her do not rise to the
8
level of IIED.
9
10 IIED is characterized by:
11 “(1) extreme and outrageous conduct by the defendant with the intention of
causing, or reckless disregard of the probability of causing, emotional distress; (2)
12
the plaintiff's suffering severe or extreme emotional distress; and (3) actual and
13 proximate causation of the emotional distress by the defendant's outrageous conduct...."
Conduct to be outrageous must be so extreme as to exceed all bounds of that usually
14 tolerated in a civilized community.’ "
Christensen v. Superior Court (1991) 54 Cal.3d 868, 903, 2 Cal.Rptr.2d 79, 820 P.2d 181 (
15
Christensen ) cited in Light v. Cal. Dep't of Parks & Recreation, 221 Cal.Rptr.3d 668, 14
16 Cal.App.5th 75 (Cal. App., 2017)
17
There are numerous California cases that support a claim of IIED for Plaintiff Randolph.
18
19 First, the Supreme Court has stated, with respect to the tort of intentional infliction of
20 emotional distress, "plaintiff's status as an employee should entitle him to a greater degree of
21 protection from insult and outrage than if he were a stranger to defendants. Alcorn v. Anbro
22
Engineering, Inc. (1970) 2 Cal.3d 493, 499, fn. 2.) cited in Felix v. Fernandez (Cal. App., 2016)
23
Randolph was an employee of the CSU Chico for over 20 years. She had great
24
25
evaluations. She was a great employee. Alcorn applies here.
26 Second, in Light, a case on summary judgment, “the Defendant had ostracized Light in
27 the workplace, encouraged Light to lie to investigators, pursued Light at home and in the office
28
PLAINTIFF’S RESPONSE TO THIRD DEMURRER 9
1 to determine whether Light did so, and verbally and physically attacked Light after Light
2 disobeyed. The trier of fact could conclude this conduct was extreme and outrageous (especially
3
in light of Seals's supervisory position), taken for purposes of retaliation prohibited by FEHA,
4
and intended to cause Light emotional distress. Triable issues of fact therefore preclude summary
5
adjudication of this claim as to Seals. See Aguilar, supra , 25 Cal.4th at p. 850, 107 Cal.Rptr.2d
6
7 841, 24 P.3d 493.) Light v. Cal. Dep't of Parks & Recreation, 221 Cal.Rptr.3d 668, 14
8 Cal.App.5th 75 (Cal. App., 2017). That was a motion for summary judgment. This is simply a
9
demurrer, where Plaintiff only has to plead the claim, not prove it – a lower standard.
10
Third, in Rulon-Miller, the plaintiff was a salesperson working for IBM in San Francisco.
11
At some point, she met and began dating a fellow employee. The employee later left IBM to join
12
13 another company and was transferred out of San Francisco. A year later he returned and once
14 again began dating the plaintiff.
15
IBM management officials were aware that the plaintiff was dating the former IBM
16
employee but IBM had a policy of not interfering in its employee's pr