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1 XAVIER BECERRA EXEMPT
Attorney General of California Gov. Code § 6103
2 PETER D. HALLORAN
Supervising Deputy Attorney General
3 JERRY J. DESCHLER
Deputy Attorney General
4 State Bar No. 215691
1300 I Street, Suite 125 7/25/2019
5 P.O. Box 944255
Sacramento, CA 94244-2550
6 Telephone: (916) 210-7871
Fax: (916) 324-5567
7 E-mail: Jerry.Deschler@doj.ca.gov
Attorneys for Defendants
8 Board of Trustees of the California State University,
which is the State of California acting in its higher
9 education capacity (erroneously sued as "Trustees
of the California State University, State of
10 California"), Cynthia Daley, and Debra Larson
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF BUTTE
13 CIVIL DIVISION
14
15
TERESA RANDOLPH, Case No. 19CV01226
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Plaintiff, DEFENDANTS' AMENDED NOTICE OF
17 RESCHEDULED DEMURRER AND
V, DEMURRER TO FIRST AMENDED
18 COMPLAINT
19 TRUSTEES OF THE CALIFORNIA Original Hrg. Date: August 28, 2019
STATE UNIVERSITY, STATE OF New Hrg. Date: Sep. 11, 2019
20 CALIFORNIA, AND CYNTHIA DALEY, Time: 9:00 a.m.
AN INDIVIDUAL, AND DEBRA LARSON, Dept: 10
21 AN INDIVIDUAL, Judge: Robert A Glusman
Trial Date: none
22 Defendants. Action Filed: April 24, 2019
23
24 TO PLAINTIFF AND HER ATTORNEY OF RECORD:
25 PLEASE TAKE NOTICE that Defendants Board of Trustees of the California State
26 University, which is the State of California acting in its higher education capacity (erroneously
27 sued as "Trustees of the California State University, State of California"), Cynthia Daley, and
28 Debra Larson (collectively "Defendants") hereby demur to Plaintiff Teresa Randolph's
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Defendants' Amended Notice of Rescheduled Demurrer and Demurrer to First Amended Complaint (19CV01226)
1 ("Randolph") First Amended Complaint (the "PAC"). The demurrer is scheduled for hearing on
2 September 11, 2019, at 9:00 a.m., in Dept. 10 at the Superior Court of California in and for the
3 County of Butte, located at 1775 Concord Ave, Chico, California 95928. Please take further
4 notice that the hearing has been rescheduled from August 28, 2019. Counsel for Randolph is
5 unavailable for hearing on that date and requested that the hearing be moved to September 11,
6 2019, to which Defendants agreed.
7 The demurrer will be based on this notice of demurrer and demurrer, the memorandum of
8 points and authorities in support of the demurrer, the request for judicial notice and attachments
9 thereto, the pleadings and papers on file in this action, and upon any such other evidence as may
10 be presented at the hearing.
11 PLEASE ALSO TAKE NOTICE that pursuant to Local Rule 2.9, the court follows the
12 tentative ruling procedure set forth in California Rules of Court, rule 3.1308(a)(l). Tentative
13 rulings on law and motion matters will be available on the Court's website at
14 www.l)yttecourt.ca.gov and by telephone at (530) 532-7022 by 3:00 p.m. on the court day
15 preceding the hearing.
16 DEMURRER
17 Defendants hereby demur to the FAC, filed on May 29, 2019. This demurrer is brought
18 pursuant to Code of Civil Procedure Section 430.10, subdivision (e). At the hearing, Defendants
19 will move for an order granting its demurrer to the FAC on the following separate and
20 independent grounds:
21 1. Second Cause of Action: "Retaliation Based on Disability" under the California Fair
22 Employment and Housing Act ("PEHA"). The demurrer to the second cause of action should be
23 sustained because no such cause of action exists by regulation or statute. California Code of
24 Regulations, Title 2, section 11021 does not provide for a private right of action. Additionally,
25 neither the PEHA nor the interpretive regulations support a cause of action for "retaliation based
26 on disability."
27 2. Ninth Cause of Action: "Wrongful Termination/Constructive Discharge." The
28 demurrer to the ninth cause of action should be sustained because the common law claim of
2
Defendants' Amended Notice of Rescheduled Demurrer and Demurrer lo First Amended Complaint (19CV01226)
1 "wrongful termination/constructive discharge" is barred by the state's sovereign immunity. (Gov.
2 Code,§ 815; see alsoMiklosy v. Regents of the University of Calif (2008) 44 Cal.4th 876,899
3 [affirming judgment sustaining demurrer].)
4 3. Tenth Cause of Action: Intentional Infliction of Emotional Distress. The demurrer
5 to the tenth cause of action should be sustained because the tort of intentional infliction of
6 emotional distress is barred by the exclusivity provision of the Workers' Compensation Act
7 codified at Labor Code section 3200 et. seq. Additionally, the FAC fails to state facts sufficient
8 to sustain a cause of action for intentional infliction of emotional distress. A complaint must
9 "state facts sufficient to constitute a cause of action." (Code Civ. Proc.,§§ 425.10, subd. (a),
10 430.10, subd. (e).)
11 4. Twelfth Cause of Action: Defamation. The demurrer to the twelfth cause of action
12 should be sustained because the facts pleaded do not state a cause of action. (Code Civ. Proc., §
13 430, subd. (e).) The alleged statement attributed to individual defendant Larson does not satisfy
14 any of the elements of a defamation cause of action and is not defamatory. (Jensen v. Hewlett
15 Packard Co. (1993) 14 Cal.App.4th 958,965 [statements that employee "had been the subject of
16 some third party complaints, was not carrying his weight, had a negative attitude in dealing with
17 others, evidenced a lack of direction in his project activities and was unwilling to take
18 responsibility for the projects he oversaw" were statements of opinion].) The alleged statement
19 attributed to individual defendant Daley, if made, is privileged. (Civ. Code, § 47, subd. (c); see
20 King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440-42 [employer conveying
21 reasons an employee was fired to other employee drivers was privileged].)
22 5. Thirteenth Cause of Action: Invasion of Privacy. The demurrer to the thirteenth
23 cause of action should be sustained because the facts pleaded do not state a cause of action.
24 (Code Civ. Proc.,§ 430, subd. (e).) The sole communication alleged as the basis of the thirteenth
25 cause of action neither seeks nor reveals any information protected by a privacy interest. No facts
26 exist or are alleged establishing the requisite "egregious breach of the social norms underlying the
27 privacy right." (Hill v. National Collegiate Athletic Ass 'n (1994) 7 Cal.4th 16, 37.)
28 / II
3
Defendants' Amended Notice of Rescheduled Demurrer and Demurrer to First Amended Complaint (19CV01226)
1 6. Fourteenth Cause of Action: Meal and Rest Period Violations (Lab. Code, §§
2 226.7, 512. The demurrer to the fourteenth cause of action should be sustained because public
3 entities are exempt from and immune to the Labor Code claims alleged in Randolph's FAC.
4 (Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729 [sustaining demurrer
5 to complaint].)
·-- 6 7. Fifteenth Cause of Action: Waiting Time Penalties (Lab. Code,§ 203. The
7 demurrer to the fifteenth cause of action should be sustained because it is derivative of and
8 wholly dependent on Randolph's fifteenth cause of action, which is improper as a matter of law.
9 (Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729.[sustaining demurrer
10 to complaint].)
11 8. Sixteenth Cause of Action: Breach of Contract. The demurrer to the sixteenth cause
12 of action should be sustained because Randolph fails to allege facts sufficient to state a claim.
13 (Code Civ. Proc.,§ 430, subd. (e).) Randolph does not and cannot allege the existence of a
14 written employment contract because employment with the State of California is held by statute
15 and not by contract. (Kim v. Regents of the University of California (2000) 80 Cal.App.4th 160,
16 164 [citing Miller v. State of California (1977) 18 Cal.3d 808, 813].) Moreover, even if Randolph
17 could state a claim based on "policies" as stated in the FAC, a public entity (or its public
18 employees) cannot be sued based on implied promises, implied in law contracts, or quasi-
19 contracts. (Miller v. McKinnon (1942) 20 Cal.2d 83, 88; Lundeen Coating Corporation v.
20 Department of Water and Power (1991) 232 Cal.App.3d 816, 832.)
21 The demurrer to the second, ninth, tenth, fourteenth, fifteenth, and sixteenth causes of
22 action should be sustained without leave to amend because the defects identified as to those
23 II I
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25 Ill
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Defendants' Amended Notice of Rescheduled Demurrer and Demurrer to First Amended Complaint (19CV01226)
1 causes of action are purely issues of law and cannot be cured. (See Rotolo v San Jose Sports &
2 Entertainment, LLC (2007) 151 Cal.App.4th 307, 321.)
3 Dated: July 25, 2019 Respectfully Submitted,
4 XAVIER BECERRA
Attorney General of California
5 PETER D. HALLORAN
Supervising Deputy Attorney General
6
7
8
JERRY J. DESCHLER
9 Deputy Attorney General
Attorneys for D efendants
10 Board of Trustees of the California State
University, which is the State of California
11 acting in its higher education capacity
(erroneously sued as "Trustees of the
12 California State University, State of
California ''), Cynthia Daley, and Debra
13 Larson
14 SA2019102196
13952481.docx
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Defendants' Amended Notice of Rescheduled Demurrer and Demurrer to First Amended Complaint (19CV01226)
DECLARATION OF SERVICE BY U.S. MAIL
Case Name: Teresa Randolph v. Trustees of the California State University, et al.
Case No.: 19CV01226
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter; my business address is 1300 I Street, Suite 125, P.O. Box
944255, Sacramento, CA 94244-2550.
On July 25, 2019, I served the attached DEFENDANTS' AMENDED NOTICE OF
RESCHEDULED DEMURRER AND DEMURRER TO FIRST AMENDED
COMPLAINT by placing a true copy thereof enclosed in a sealed envelope with postage
thereon fully prepaid, in the United States Mail at Sacramento, California, addressed as
follows:
Thomas Dimitre, Esq.
PO Box 801
Ashland, OR 97520
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on July 25, 2019, at Sacramento, California.
Jenny Thirakul
Declarant mf.ature
Si\201 9102 1%
13952757.tlucx
Preview
1 XAVIER BECERRA EXEMPT Attorney General of California Gov. Code § 6103 2 PETER D. HALLORAN Supervising Deputy Attorney General 3 JERRY J. DESCHLER Deputy Attorney General 4 State Bar No. 215691 1300 I Street, Suite 125 7/25/2019 5 P.O. Box 944255 Sacramento, CA 94244-2550 6 Telephone: (916) 210-7871 Fax: (916) 324-5567 7 E-mail: Jerry.Deschler@doj.ca.gov Attorneys for Defendants 8 Board of Trustees of the California State University, which is the State of California acting in its higher 9 education capacity (erroneously sued as "Trustees of the California State University, State of 10 California"), Cynthia Daley, and Debra Larson 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF BUTTE 13 CIVIL DIVISION 14 15 TERESA RANDOLPH, Case No. 19CV01226 16 Plaintiff, DEFENDANTS' AMENDED NOTICE OF 17 RESCHEDULED DEMURRER AND V, DEMURRER TO FIRST AMENDED 18 COMPLAINT 19 TRUSTEES OF THE CALIFORNIA Original Hrg. Date: August 28, 2019 STATE UNIVERSITY, STATE OF New Hrg. Date: Sep. 11, 2019 20 CALIFORNIA, AND CYNTHIA DALEY, Time: 9:00 a.m. AN INDIVIDUAL, AND DEBRA LARSON, Dept: 10 21 AN INDIVIDUAL, Judge: Robert A Glusman Trial Date: none 22 Defendants. Action Filed: April 24, 2019 23 24 TO PLAINTIFF AND HER ATTORNEY OF RECORD: 25 PLEASE TAKE NOTICE that Defendants Board of Trustees of the California State 26 University, which is the State of California acting in its higher education capacity (erroneously 27 sued as "Trustees of the California State University, State of California"), Cynthia Daley, and 28 Debra Larson (collectively "Defendants") hereby demur to Plaintiff Teresa Randolph's 1 Defendants' Amended Notice of Rescheduled Demurrer and Demurrer to First Amended Complaint (19CV01226) 1 ("Randolph") First Amended Complaint (the "PAC"). The demurrer is scheduled for hearing on 2 September 11, 2019, at 9:00 a.m., in Dept. 10 at the Superior Court of California in and for the 3 County of Butte, located at 1775 Concord Ave, Chico, California 95928. Please take further 4 notice that the hearing has been rescheduled from August 28, 2019. Counsel for Randolph is 5 unavailable for hearing on that date and requested that the hearing be moved to September 11, 6 2019, to which Defendants agreed. 7 The demurrer will be based on this notice of demurrer and demurrer, the memorandum of 8 points and authorities in support of the demurrer, the request for judicial notice and attachments 9 thereto, the pleadings and papers on file in this action, and upon any such other evidence as may 10 be presented at the hearing. 11 PLEASE ALSO TAKE NOTICE that pursuant to Local Rule 2.9, the court follows the 12 tentative ruling procedure set forth in California Rules of Court, rule 3.1308(a)(l). Tentative 13 rulings on law and motion matters will be available on the Court's website at 14 www.l)yttecourt.ca.gov and by telephone at (530) 532-7022 by 3:00 p.m. on the court day 15 preceding the hearing. 16 DEMURRER 17 Defendants hereby demur to the FAC, filed on May 29, 2019. This demurrer is brought 18 pursuant to Code of Civil Procedure Section 430.10, subdivision (e). At the hearing, Defendants 19 will move for an order granting its demurrer to the FAC on the following separate and 20 independent grounds: 21 1. Second Cause of Action: "Retaliation Based on Disability" under the California Fair 22 Employment and Housing Act ("PEHA"). The demurrer to the second cause of action should be 23 sustained because no such cause of action exists by regulation or statute. California Code of 24 Regulations, Title 2, section 11021 does not provide for a private right of action. Additionally, 25 neither the PEHA nor the interpretive regulations support a cause of action for "retaliation based 26 on disability." 27 2. Ninth Cause of Action: "Wrongful Termination/Constructive Discharge." The 28 demurrer to the ninth cause of action should be sustained because the common law claim of 2 Defendants' Amended Notice of Rescheduled Demurrer and Demurrer lo First Amended Complaint (19CV01226) 1 "wrongful termination/constructive discharge" is barred by the state's sovereign immunity. (Gov. 2 Code,§ 815; see alsoMiklosy v. Regents of the University of Calif (2008) 44 Cal.4th 876,899 3 [affirming judgment sustaining demurrer].) 4 3. Tenth Cause of Action: Intentional Infliction of Emotional Distress. The demurrer 5 to the tenth cause of action should be sustained because the tort of intentional infliction of 6 emotional distress is barred by the exclusivity provision of the Workers' Compensation Act 7 codified at Labor Code section 3200 et. seq. Additionally, the FAC fails to state facts sufficient 8 to sustain a cause of action for intentional infliction of emotional distress. A complaint must 9 "state facts sufficient to constitute a cause of action." (Code Civ. Proc.,§§ 425.10, subd. (a), 10 430.10, subd. (e).) 11 4. Twelfth Cause of Action: Defamation. The demurrer to the twelfth cause of action 12 should be sustained because the facts pleaded do not state a cause of action. (Code Civ. Proc., § 13 430, subd. (e).) The alleged statement attributed to individual defendant Larson does not satisfy 14 any of the elements of a defamation cause of action and is not defamatory. (Jensen v. Hewlett 15 Packard Co. (1993) 14 Cal.App.4th 958,965 [statements that employee "had been the subject of 16 some third party complaints, was not carrying his weight, had a negative attitude in dealing with 17 others, evidenced a lack of direction in his project activities and was unwilling to take 18 responsibility for the projects he oversaw" were statements of opinion].) The alleged statement 19 attributed to individual defendant Daley, if made, is privileged. (Civ. Code, § 47, subd. (c); see 20 King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440-42 [employer conveying 21 reasons an employee was fired to other employee drivers was privileged].) 22 5. Thirteenth Cause of Action: Invasion of Privacy. The demurrer to the thirteenth 23 cause of action should be sustained because the facts pleaded do not state a cause of action. 24 (Code Civ. Proc.,§ 430, subd. (e).) The sole communication alleged as the basis of the thirteenth 25 cause of action neither seeks nor reveals any information protected by a privacy interest. No facts 26 exist or are alleged establishing the requisite "egregious breach of the social norms underlying the 27 privacy right." (Hill v. National Collegiate Athletic Ass 'n (1994) 7 Cal.4th 16, 37.) 28 / II 3 Defendants' Amended Notice of Rescheduled Demurrer and Demurrer to First Amended Complaint (19CV01226) 1 6. Fourteenth Cause of Action: Meal and Rest Period Violations (Lab. Code, §§ 2 226.7, 512. The demurrer to the fourteenth cause of action should be sustained because public 3 entities are exempt from and immune to the Labor Code claims alleged in Randolph's FAC. 4 (Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729 [sustaining demurrer 5 to complaint].) ·-- 6 7. Fifteenth Cause of Action: Waiting Time Penalties (Lab. Code,§ 203. The 7 demurrer to the fifteenth cause of action should be sustained because it is derivative of and 8 wholly dependent on Randolph's fifteenth cause of action, which is improper as a matter of law. 9 (Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729.[sustaining demurrer 10 to complaint].) 11 8. Sixteenth Cause of Action: Breach of Contract. The demurrer to the sixteenth cause 12 of action should be sustained because Randolph fails to allege facts sufficient to state a claim. 13 (Code Civ. Proc.,§ 430, subd. (e).) Randolph does not and cannot allege the existence of a 14 written employment contract because employment with the State of California is held by statute 15 and not by contract. (Kim v. Regents of the University of California (2000) 80 Cal.App.4th 160, 16 164 [citing Miller v. State of California (1977) 18 Cal.3d 808, 813].) Moreover, even if Randolph 17 could state a claim based on "policies" as stated in the FAC, a public entity (or its public 18 employees) cannot be sued based on implied promises, implied in law contracts, or quasi- 19 contracts. (Miller v. McKinnon (1942) 20 Cal.2d 83, 88; Lundeen Coating Corporation v. 20 Department of Water and Power (1991) 232 Cal.App.3d 816, 832.) 21 The demurrer to the second, ninth, tenth, fourteenth, fifteenth, and sixteenth causes of 22 action should be sustained without leave to amend because the defects identified as to those 23 II I 24 II I 25 Ill 26 27 28 4 Defendants' Amended Notice of Rescheduled Demurrer and Demurrer to First Amended Complaint (19CV01226) 1 causes of action are purely issues of law and cannot be cured. (See Rotolo v San Jose Sports & 2 Entertainment, LLC (2007) 151 Cal.App.4th 307, 321.) 3 Dated: July 25, 2019 Respectfully Submitted, 4 XAVIER BECERRA Attorney General of California 5 PETER D. HALLORAN Supervising Deputy Attorney General 6 7 8 JERRY J. DESCHLER 9 Deputy Attorney General Attorneys for D efendants 10 Board of Trustees of the California State University, which is the State of California 11 acting in its higher education capacity (erroneously sued as "Trustees of the 12 California State University, State of California ''), Cynthia Daley, and Debra 13 Larson 14 SA2019102196 13952481.docx 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Defendants' Amended Notice of Rescheduled Demurrer and Demurrer to First Amended Complaint (19CV01226) DECLARATION OF SERVICE BY U.S. MAIL Case Name: Teresa Randolph v. Trustees of the California State University, et al. Case No.: 19CV01226 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550. On July 25, 2019, I served the attached DEFENDANTS' AMENDED NOTICE OF RESCHEDULED DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at Sacramento, California, addressed as follows: Thomas Dimitre, Esq. PO Box 801 Ashland, OR 97520 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on July 25, 2019, at Sacramento, California. Jenny Thirakul Declarant mf.ature Si\201 9102 1% 13952757.tlucx