Case Number: BC596949??? Hearing Date: May 31, 2016??? Dept: 37
CASE NAME:Burke v. Wynn
CASE NO.:BC596949
HEARING DATE:5/31/16
CALENDAR NO.:8
DEPARTMENT:37
TRIAL DATE:1/24/17
NOTICE:OK
SUBJECT:Demurrer and Motion to Strike
DEMURRING/
MOVING PARTY:Defendant James Wynn
OPPOSING PARTY:Plaintiff Geraldine Burke
COURT?S TENTATIVE RULING
The demurrer to the second and fourth causes of action is sustained with 20 days leave to amend. The motion to strike is denied as to paragraphs 8, 16, 17, 18, 19, 20, 21, 22, 25, 26, 27, 28, 31, 35, 37, 44, 50, 56, 81, 85, and as to prayer for relief No. 6 (i.e., punitive damages). The motion to strike is moot as to paragraphs 43, 55, and as to prayer for relief No. 5 (i.e., attorney fees). Counsel for Defendant to give notice.
STATEMENT OF THE CASE
This action arises out of Plaintiff Geraldine Burke?s alleged employment relationship with Defendant James Wynn. As set forth in the First Amended Complaint (FAC), the facts of the case are as follows. Plaintiff alleges that from April 2008 until September 2015, when Wynn terminated her employment, Plaintiff worked as Wynn?s property manager and secretary/assistant with respect to two residential real properties owned by Wynn in Los Angeles. Plaintiff brings causes of action for violations of the Labor Code, violations of the Fair Employment and Housing Act (FEHA), slander, and intentional infliction of emotional distress. Wynn demurs to the second and fourth causes of action based on the FEHA, and he moves to strike the allegations in support of the requests for punitive damages and attorney fees.
DISCUSSION
I.Demurrer
A.Legal Standard
A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., ? 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading ?by raising questions of law.? (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) ?In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.? (Code Civ. Proc., ? 452.) The court ? ? ?treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .? ? ? (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)
B.Exhaustion of Administrative Remedies (Second and Fourth Causes of Action)
Plaintiff brings the second and fourth causes of action under the FEHA, alleging that she was terminated and wrongfully evicted by Wynn because she opposed his racial discrimination against certain prospective tenants and because she testified truthfully on behalf of Stacey Rosen, a tenant who filed a civil lawsuit against Wynn asserting violations of California?s fair housing laws. (FAC ?? 16, 41, 53.) Wynn contends that these causes of action fail as a matter of law because Plaintiff failed to exhaust her administrative remedies under the FEHA, a prerequisite to filing suit. As the California Supreme Court has advised, ?Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing (Department) and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. [Citations.] The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.? (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 492.)
In the complaint, Plaintiff does not allege that she has obtained a right-to-sue letter from the Department, and in her opposition to the demurrer, she acknowledges that she has not yet obtained a right-to-sue letter. Instead, she argues that if discovery in this action were to reveal that Wynn employs five or more individuals, and therefore qualifies as an employer subject to the FEHA, she will request and obtain a right-to-sue letter.
The demurrer is sustained with 20 days leave to amend on the ground that Plaintiff fails to allege exhaustion of administrative remedies. ?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), and ?it is ?plaintiff?s burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with [DFEH] and obtaining a right-to-sue letter? ? (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345-1346). Therefore, Plaintiff must allege facts demonstrating that she exhausted her administrative remedies to bring a civil action under the FEHA.
II.Motion to Strike
A.Legal Standard
Motions to strike are used to challenge defects in the pleadings not subject to demurrer. Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., ? 435, subd. (b)(1).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Id. ? 437, subd. (a).) The court may strike out any irrelevant, false, or improper matter inserted in any pleading, and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., ? 436.) An ?irrelevant? matter includes any ?demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.? (Id. ? 431.10, subds. (b)(3), (c); see also Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1036-1042.)
B.Punitive Damages
Wynn moves to strike fourteen allegations of fact concerning the conduct he is alleged to have engaged in, six allegations of punitive damages and the request for punitive damages in the prayer for relief, and two allegations of attorney fees and the request for attorney fees in the prayer for relief. However, Plaintiff alleges causes of action on which a request for punitive damages may be based (e.g., wrongful termination in violation of public policy, slander, intentional infliction of emotional distress), and the fourteen allegations of fact directly support her contention that Wynn engaged in oppressive and malicious conduct. (Civ. Code, ? 3294, subd. (a).) Accordingly, the fourteen allegations of fact are relevant to the pleading and requested relief. The motion is denied as to these fourteen allegations.
To survive a motion to strike a claim of punitive damages, ?the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.? (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; accord, Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.) ?Pleading in the language of the statute is not objectionable when sufficient facts are alleged to support the allegation.? (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.) Plaintiff alleges, among other things, that Wynn engaged in discriminatory, retaliatory, and slanderous conduct, and she provides detailed allegations demonstrating racist and other improper behavior. The allegations are sufficient at this stage to establish oppression or fraud to support a claim of punitive damages. Therefore, the motion is denied as to the six allegations of punitive damages and the request for punitive damages in the prayer for relief.
C.Attorney Fees
Plaintiff?s request for attorney fees is based on the FEHA (FAC ?? 43, 55), which as discussed, requires Plaintiff to allege facts showing that she has exhausted her administrative remedies. Accordingly, the motion to strike these allegations and the prayer for attorney fees is moot.