Demurrer (Mary E. Arand)

Case Name:??? Tamara Ruth v. Hewlett-Packard Company, et al.

Case No.:??????? 2015-1-CV-288526? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ??

  1. Introduction

??????????? This is an action for wrongful termination and violations of the California Fair Employment and Housing Act (?FEHA?) brought by plaintiff Tamara Ruth (?Plaintiff?) against defendant Hewlett-Packard Company (?HP?).? In her original complaint, Plaintiff alleged causes of action for retaliation in violation of the FEHA and wrongful termination in violation of public policy based on her FEHA claim.? HP demurred to the complaint on the ground Plaintiff failed to allege facts sufficient to constitute any cause of action.? The Court sustained the demurrer to both causes of action with leave to amend, finding Plaintiff failed to allege any protected conduct within the meaning of the statute as required to support her claims.

Subsequently, Plaintiff filed the first amended complaint (?FAC?) based on the same underlying facts and conduct alleged in her original complaint.? She reasserted the two causes of action previously pled, and added a cause of action for discrimination in violation of the FEHA.

According to the allegations in the FAC, Plaintiff worked for HP from December 1997 until June 2012.? (FAC, ??5.)? Most recently, she worked as a Program Manager II in HP?s Laser Jet Enterprise Solutions group.? (FAC, ??5.)? Plaintiff alleges her first 8 years at HP went well as evidenced by her performance, positive relationships with colleagues, and admittance into HP?s focused development program for women and minority employees.? (FAC, ??8-11.)? Plaintiff alleges problems first arose in 2005 when she began working with a new supervisor, Erica Hausheer (?Hausheer?).? (FAC, ? 13.)

Plaintiff claims Hausheer expressed discriminatory animus towards one of their team members based on the employee?s sexual orientation and subsequently expressed racial animus towards her.? (FAC, ?? 14-16.)? In one particular instance in which Hausheer was trying to assemble a project webpage with photos of team members, Plaintiff asked if she could submit a cartoon photo instead of an actual photo of herself.? (FAC, ? 16.)? According to Plaintiff, Hausheer responded with words to the effect of: ?No.? I?m working really hard to support HP?s Diversity and Inclusion policies, even though I have two young sons at home that will grow up to be perfectly fine white men.? I need your face on my website.?? (FAC, ? 16.)? Plaintiff disclosed this comment to her mentor in the focused development program, who thereafter reported the comment to human resources without Plaintiff?s knowledge.? (FAC, ? 17.)? Plaintiff further claims that by cancelling one-on-one meetings and double booking team meetings, Hausheer engaged in conduct that was openly hostile to her.? (FAC, ? 19.)? In 2006, Hausheer terminated Plaintiff, stating her ?services were no longer needed.?? (FAC, ? 20.)

Subsequently ?[t]he situation resolved? when HP rehired Plaintiff to work on a different project.? (FAC, ? 22.)? Plaintiff claims her career was back on track and she performed well in her new placement until she began working with another supervisor, Cathy Rosing (?Rosing?).? (FAC, ? 22.)? In December 2010, Rosing, who Plaintiff alleges ?was known to be emotionally erratic . . . [and] had mental health issues,? gave her a negative performance review.?? (FAC, ??29.)? Plaintiff addressed the negative review with Rosing who indicated she could not change the rating, but could amend the written comments.? (FAC, ? 30.)? Rosing then ?gave her a raise and/or stock options in an attempt to cover for the disparate treatment.?? (FAC, ? 30.)? Plaintiff expressed her belief that the performance review was erroneous to human resources in the fall of 2011.? (FAC, ? 32.)

In December 2011, Plaintiff began working in a new department under the supervision of James O?Hara (?O?Hara?).? (FAC, ? 35.)? Shortly after she began working for O?Hara, she emailed him to advise of the erroneous nature of Rosing?s negative performance evaluation.? (FAC, ? 35.)? Plaintiff also alleges her problems with Rosing continued even after she began working for O?Hara. (FAC, ? 36.)? Plaintiff claims in March 2012, Rosing sent her Kindereggs, a type of chocolate confection not available in the United States, which appeared to be tampered with.? (FAC, ? 37.)? Plaintiff reported this to the police as well as to human resources.? (FAC, ?? 37-40.)? Although HP confirmed the chocolates were probably harmless, Plaintiff feared for her safety.? (FAC, ?? 37-41.)

Despite that incident, Plaintiff continued to work for HP, with O?Hara as her supervisor, in a temporary position as a Business Analyst.? (FAC, ? 44.)? Plaintiff felt she was overqualified for this position yet was not given the resources to successfully complete her job duties.? (FAC, ?? 44-48.)? O?Hara encouraged Plaintiff to apply for a Chief of Staff position.? (FAC, ? 50.)? Although she applied, she felt she was overqualified because she did not want to be employed ?fetching candy for the CEO.?? (FAC, ?? 50-52.)

In the meantime, Plaintiff remained in her Business Analyst position.? She alleges O?Hara then reviewed her personnel file and indicated she should look for another job.? (FAC, ? 53.)? Plaintiff was terminated on June 19, 2012.? (FAC, ? 54.)? Her position was eliminated on June 29, 2012.? (FAC, ? 54.)? Plaintiff alleges a position O?Hara ?had previously identified? as her position and to which she applied for in May 2012 continued to be listed as a job opening.? (FAC, ? 54.)? Thereafter, ?HP filled her position with a Caucasian male from Brazil named Luciano Rocha.?? (FAC, ? 54.)

Currently before the Court is HP?s demurrer to each cause of action in the FAC.? The parties met and conferred prior to the filing of the demurrer in compliance with Code of Civil Procedure section 430.41.?

  1. Request for Judicial Notice[1]

??????????? HP requests judicial notice of the original complaint, the Court?s order sustaining the demurrer to the complaint, and the FAC.? (See Emmert Decl., Exhs. 1-3). Plaintiff does not oppose HP?s request as to these documents, which are relevant to evaluating the instant demurrer.? The Court will therefore take judicial notice of these court records.? (See Evid. Code, ??452, subd. (d).)

HP also requests judicial notice of the administrative complaint Plaintiff submitted to the California Department of Fair Employment and Housing (?DFEH?) and the right-to-sue letter issued thereafter.? (See?Emmert Decl., Exhs. 4-7.)? Plaintiff does not object to the Court taking judicial notice of the existence of these documents or the dates they were filed or issued.? However, she states ?[t]hese facts are disputed insofar as they support the legal conclusions that Defendants wishes [sic] this Court to make.?? (Troutman Decl., ? 8.)? She does not identify what ?these facts? is referring to, or otherwise clearly articulate her objection.? A court may take judicial notice of state agency records.? (Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750.)? Accordingly, the Court will take judicial notice of the existence the DFEH records.

Finally, HP requests judicial notice of two tolling agreements executed by the parties, which purport to toll the statute of limitations on Plaintiff?s claims from June 1, 2015 to December 9, 2015.? A court may take judicial notice of facts not reasonably subject to dispute and ?capable of immediate and accurate verification by resort to sources of reasonably indisputable accuracy.?? (Evid. Code, ? 452, subd. (h).)? Although Plaintiff does not object to the request for judicial notice of the tolling agreements, a Court may not take judicial notice of private contracts between the parties.? (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.)? Accordingly, they are not proper subjects for judicial notice.

In conclusion, HP?s request for judicial notice is GRANTED as to the court records and DFEH records, but DENIED as to the tolling agreements.

III.?????? Demurrer

??????????? HP demurs to each cause of action on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action.? HP additionally demurs to the FEHA claims on the ground of lack of subject matter jurisdiction.

  1. Uncertainty

In its notice of demurrer and demurrer, HP indicates it is demurring to each cause of action on the ground of uncertainty.? HP?s supporting memorandum of points and authorities, however, is devoid of any discussion of this ground.? The demurrer is therefore defective.

To the extent HP believes the arguments advanced in its memorandum somehow implicate the ground of uncertainty, it is mistaken.? To avoid a demurrer for uncertainty, a pleading merely needs to ? ?set forth the essential facts of [the] case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of [the] cause of action.? [Citations.]? (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.) ?A special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made.? (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) ?A demurrer for uncertainty ?should not be sustained if the allegations are sufficiently clear to apprise the defendant of the issues that must be met, even if the allegations of the complaint may not be as clear and as detailed as might be desired.? (Merlino v. West Coast Macaroni Mfg. Co. (1956) 90 Cal.App.2d 106, 108.)? The specific arguments asserted by HP do not demonstrate that Plaintiff?s causes of action are fatally uncertain under applicable standards.

For these reasons, the demurrer to the first, second, and third causes of action on the ground of uncertainty is OVERRULED.

  1. Lack of Subject Matter Jurisdiction

In its notice of demurrer and demurrer, HP indicates it is demurring to the first and second causes of action for violation of the FEHA on the ground of lack of subject matter jurisdiction.? HP, however, does not specifically discuss this ground in its supporting memorandum of points and authorities.? The demurrer is therefore defective.

To the extent the demurrer for lack of subject matter jurisdiction relates to HP?s contention that Plaintiff failed to exhaust her administrative remedies before filing suit, the demurrer is misguided.

?Subject matter jurisdiction is conferred by constitutional or statutory law. ?The California Supreme Court has defined subject matter jurisdiction thusly: Subject matter jurisdiction ? is the power of the court over a cause of action or to act in a particular way. ?By contrast, the lack of subject matter jurisdiction means the entire absence of power to hear or determine a case; i.e., an absence of authority over the subject matter.? ?(Cummings v. Stanley (2009) 177 Cal.App.4th 493, 503 [internal quotation marks and citations omitted]; see also Miller-Leigh LLC v. Henson (2007) 152 Cal.App.4th 1143, 1148-1149.) ?Thus, ?[t]he principle of ?subject matter jurisdiction? relates to the inherent authority of the court involved to deal with the case or matter before it.? ?(Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1343-1344.) ?A typical example of a California court lacking subject matter jurisdiction is where the action is based on claims over which federal courts have exclusive jurisdiction. ?(See Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238 [lack of subject matter jurisdiction over claims arising under federal patent laws].)

With respect to FEHA claims, some California courts have characterized the requirement of exhausting administrative remedies before filing suit as a ?jurisdictional prerequisite.?? (See Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.)? ?But ?jurisdictional prerequisite? does not mean subject matter jurisdiction in the context of exhaustion of administrative remedies.? (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1347.)? Thus, fundamental subject matter jurisdiction is not implicated by Plaintiff?s purported failure to exhaust her administrative remedies.

In consideration of the foregoing, the demurrer to the first and second causes of action on the ground of lack of subject matter jurisdiction is OVERRULED.

  1. Failure to State Sufficient Facts

HP advances several arguments in support of its demurrer on the ground of failure to state sufficient facts.? First, HP contends the second cause of action for discrimination in violation of the FEHA is subject to demurrer because its inclusion in the FAC was improper.? Second, HP contends the first and second causes of action for violation of the FEHA are defective because Plaintiff failed to exhaust her administrative remedies through DFEH.? Third, HP maintains the first and third causes of action lack sufficient factual support.? Lastly, HP contends the second and third causes of action are time-barred.

  1. Improper Inclusion of Second Cause of Action

As an initial matter, HP argues the Court should sustain the demurrer to the second cause of action because Plaintiff failed to seek leave to include it in the FAC.

When a court sustains a demurrer with leave to amend, a party may only amend the existing causes of action for which leave to amend was granted.? (People ex rel. Dept. of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785.)? It is improper to add entirely new causes of action in response to an order sustaining a demurrer with leave to amend.? (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.)

The Court sustained HP?s previous demurrer with the leave to amend as to the only causes of action asserted in the original complaint ? retaliation in violation of the FEHA and wrongful termination in violation of public policy.? The permissible scope of amendment was thus limited to those two causes of action.? Plaintiff?s discrimination cause of action is new and was not part of the original complaint.? Accordingly, her inclusion of that cause of action was beyond the scope of amendment and therefore improper.? Plaintiff concedes she should have sought leave to amend to add a new cause of action.

Even so, this impropriety is not a basis for sustaining a demurrer on the ground of failure to state sufficient facts.? That ground is concerned with the substance of the cause of action.? In?contrast, a motion to strike is a vehicle for addressing situations where a pleading or portion thereof is ?not drawn or filed in conformity with the laws of this state, a court rule or order of court.?? (Code Civ. Proc., ? 436, subd. (b).)

While HP could have moved to strike the second cause of action, it did not do so.? The unauthorized inclusion of the cause of action for discrimination in violation of the FEHA, therefore, is not a proper basis for sustaining the demurrer.

  1. Exhaustion of Administrative Remedies

??????????? HP argues Plaintiff has not stated a viable claim for retaliation or discrimination in violation of the FEHA because she failed to exhaust her administrative remedies.

  1. Waiver

Plaintiff preliminarily argues HP waived its right to raise the issue of exhaustion of administrative remedies because it did not raise this point in its demurrer to the original complaint.? In support, Plaintiff cites Code of Civil Procedure section 430.41, subdivision (b).[2]

Section 430.41, subdivision (b) states: ?A party demurring to a pleading that has been amended after a demurrer to an earlier 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 demurrer to the earlier version of the complaint, cross-complaint, or answer.?

First, Plaintiff?s second cause of action for discrimination in violation of the FEHA is new.? Thus, HP could not have previously demurred to that cause of action on any grounds as it did not yet exist.? HP has therefore not waived any grounds for demurrer as to the second cause of action.

Second, HP demurred to the FEHA retaliation claim in the original complaint and the FAC on the same ground.? Specifically, HP demurred to both pleadings on the ground Plaintiff failed to state facts sufficient to constitute a cause of action.? The language of the statute states a party may not demur based on a ground that could have been raised, not a specific argument that could have been raised in support of a ground for a demurrer.? Thus, HP did not waive any right to demur on the ground of failure to state a claim on the basis of Plaintiff?s failure to exhaust her administrative remedies.? The Court will therefore consider HP?s argument on its merits.

  1. Merits of Exhaustion Argument

?Exhaustion of administrative remedies is ?a jurisdictional prerequisite to resort to the courts.??? (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70, quoting Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293, original italics.)? An employee must timely file an administrative complaint with DFEH and obtain a right-to-sue letter in order to maintain a civil action for damages under the FEHA.? (See Gov. Code ? 12965, subd. (b); Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213-14 [must obtain right-to-sue letter prior to commencing civil suit FEHA].)? A plaintiff must affirmatively plead compliance with that requirement in his or her complaint.? (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345-46.)

In the administrative complaint, the plaintiff must specify the unlawful acts and ?shall set forth the particulars thereof.?? (Gov. Code, ? 12960, subd. (b); see also Foster v. Bank of America, N.A. (?Foster?) (E.D.Cal. Aug.?14, 2014, No. 1:13-CV-1188-LJO-BAM) 2014 WL 4092311, *3, citing Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.)? The DFEH complaint must ?identify with specificity the discrimination alleged and the facts supporting it.?? (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 630, disapproved on another ground.)? A plaintiff will not be deemed to have exhausted his or her administrative remedies when the administrative complaint contains a blank statement of facts.? (See Foster, supra, at p. *3-4.)

Here, Plaintiff alleges: ?Plaintiff duly filed an administrative charge of discrimination herein with the California DFEH.? The DFEH has issued a notice of right to sue thereon authorizing Plaintiff to initiative a civil action against Defendant HP, and Plaintiff has exhausted her administrative remedies as to her FEHA claims.?? (FAC, ?? 69, 82.)? However, while Plaintiff summarily stated she was a victim of racial discrimination and retaliation in the DFEH complaint, the statement of facts was entirely blank.? By failing to set forth any facts or particulars in the administrative complaint itself, she failed to satisfy the requirement of exhausting her administrative remedies.? Plaintiff?s first and second causes of action for retaliation and discrimination in violation of the FEHA therefore fail as a matter of law.

  1. Failure to Allege Prima Facie Violations of the FEHA

??????????? HP demurs to the first and third causes of action on the ground Plaintiff failed to adequately allege the elements of her claims.

  1. First Cause of Action

The FEHA prohibits an employer from taking adverse employment action against an employee in retaliation for the employee?s opposition to or filing of a grievance complaining of unlawful employment practices.? (Gov. Code, ??12940, subd. (h).)? ?To establish a prima facie case, the plaintiff must show that he [or she] engaged in a protected activity, his [or her] employer subjected him [or her] to adverse employment action, and there is a causal link between the protected activity and the employer’s action.?? (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476; see also Yanowitz v. Loreal USA, Inc. (2005) 36 Cal.4th 1028, 1065-66.)

HP argues Plaintiff fails to allege her termination was based on her engaging in protected activity, emphasizing that the prior pleading suffered from the same defect and Plaintiff neglected to make any meaningful changes sufficient to cure that defect.? The Court agrees. Plaintiff alleges she was terminated based on a holistic review of her personnel file.? (FAC, ??53.)? She does not aver she was terminated based on her participation in any particular protected activity or a specific grievance appearing in her personnel file.? (FAC, ?? 53-54.)? Plaintiff therefore failed to state a viable claim for retaliation.

  1. ???????? Third Cause of Action

HP contends the only apparent predicate policies forming the basis for the third cause of action are Government Code section 12940, subdivision (h) and Labor Code section 6310, both of which concern employment retaliation.? Because Plaintiff failed to allege any facts showing she engaged in protected activity to support a retaliation claim, HP concludes the third cause of action must fail.? HP?s argument is flawed.? The third cause of action is clearly predicated not only on the retaliation provision of Government Code section 12940, but also the discrimination provision.? (See FAC, ? 85.)? HP does not argue the third cause of action fails to the extent it is predicated upon the FEHA?s prohibition against discrimination, and the law is well settled that a demurrer cannot lie to only part of a cause of action (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682).? As such, the demurrer to the third cause of action is not sustainable on the basis that Plaintiff failed to adequately allege employment retaliation.

  1. Statute of Limitations

??????????? HP demurs to the second and third causes of action on the ground they are barred by the statute of limitations.

  1. Second Cause of Action

?FEHA claims are governed by two statutory deadlines: [Government Code] section 12960 and section 12965.?? (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1411.)? ?Section 12960 provides that an employee bringing an FEHA claim must exhaust the administrative remedy by filing an administrative complaint with the DFEH within one year after the alleged unlawful action occurred. [Citation.] This code section states that with certain exceptions not applicable here: ?No [administrative] complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred….? [Citations.]?? (Ibid.)? ?Section 12965 concerns a separate statutory deadline applicable after the DFEH issues a right-to-sue notice. The code section provides that after an employee files a complaint and the DFEH does not issue an accusation within a specified period, the DFEH must issue a right-to-sue letter notifying the employee that he or she may bring a civil suit within one year of the date of the notice. [Citation.] This code section establishes a strict ?one-year statute of limitations, commencing from the date of the right-to-sue notice by the [DFEH],? except for certain statutory exceptions. [Citation.]?? (Id. at p. 1413.)

Plaintiff was terminated on June 19, 2012.? (FAC, ? 54.)? As established by HP?s request for judicial notice, she subsequently filed an administrative complaint with the DFEH on June 16, 2013.? (Emmert Decl., Exh.?4.)? It is therefore apparent Plaintiff satisfied the first statutory deadline.

Next, on June 16, 2014, DFEH issued a right-to-sue letter.? (Emmert Decl., Exh. 5.)? Plaintiff added the discrimination cause of action to the FAC more than one year later on March 28, 2016.? Thus, the second cause of action will be deemed untimely unless it relates back to the filing of the original complaint.[3]

If a plaintiff files an amended pleading after the statute of limitations has expired, the plaintiff may avoid a statute of limitations bar if later-filed pleading relates back to the original timely-filed pleading.? (Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1256, 1278.)? In order to relate back to the original complaint, ?the amended complaint must (1) rest on the same general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality, as the original one.?? (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409, original italics.)

Here, Plaintiff?s second cause of action is clearly based on the same general facts pleaded in the original complaint, involves the same injury, and refers to the same instrumentality.? The FAC, inclusive of the second cause of action, therefore relates back to the original complaint.? Plaintiff?s second cause of action, therefore, is not barred by the statute of limitations.

  1. Third Cause of Action

??????????? HP argues the statute of limitations for Plaintiff?s wrongful termination claim ran prior to the filing of the original complaint.

The statute of limitations for a non-statutory tort claim for wrongful termination in violation of public policy is two years.? (Code Civ. Proc., ? 335.1; see also Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1189, fn. 14.)? The statute of limitations runs from the time of termination.? (Mathieu v. Norrell Corp., supra, 115 Cal.App.4th at 1189.)? The limitations period is not tolled while an employee pursues administrative remedies through DFEH.? (Ibid.)

Plaintiff was terminated on June 19, 2012, and did not file her original complaint until more than two years later in 2015.? Accordingly, the third cause of action is time-barred.? Plaintiff does not dispute this point.

  1. Conclusion

??????????? In summary, the demurrer to the first cause of action on the ground of failure to state a claim is sustainable based on Plaintiff?s failure to exhaust administrative remedies and adequately allege a prima facie violation of the FEHA; the demurrer to the second cause of action on the ground of failure to state a claim is sustainable based on Plaintiff?s failure to exhaust administrative remedies; and the demurrer to the third cause of action on the ground of failure to state a claim is sustainable on the basis it is barred by the applicable statute of limitations.

The remaining question is whether leave to amend should be granted.? HP asks the Court to sustain its demurrer to each cause of action without leave to amend.? In evaluating whether to grant leave to amend on demurrer, the plaintiff bears the burden of demonstrating a reasonable possibility the subject defect can be cured by amendment.? (Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1538-1538.)

??????????? As to the third cause of action, the Court cannot conceive how Plaintiff could amend the pleading to circumvent the apparent statute of limitations bar.? Further, Plaintiff essentially concedes she cannot cure the defect, stating she will remove this cause of action if granted leave to amend.? (Troutman Decl., ??3.)? The Court thus concludes the demurrer to the third cause of action should be sustained without leave to amend.

As to the first and second causes of action, the Court similarly cannot determine how Plaintiff could cure the defects in the pleading, particularly with regard to the failure to exhaust administrative remedies. Plaintiff does not dispute that the statement of facts in her DFEH complaint was left blank and does not cite any legal authority suggesting the omission is not fatal.? The Court thus concludes the first and second causes of action should be sustained without leave to amend as well.

In conclusion, the demurrer to the first, second and third causes of action on the ground of failure to state sufficient facts to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The Court will prepare the order.? After Defendants have served notice of entry of the signed order, Defendants shall present a judgment of dismissal.

[1] The request for judicial notice and a declaration of HP?s counsel are combined in a single document.

[2] Plaintiff actually cited Code of Civil Procedure section 431.40 in support of her assertion, but it is clear this was a typographical error and she meant to cite section 430.41.

[3] HP essentially concedes the cause of action would have been timely if included in the original complaint.