Demurrer and Motion to Strike (Judge Elaine Lu)

Case Number: 20STCV06099    Hearing Date: August 30, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26









Case No.:  20STCV06099


Hearing Date:  August 30, 2022





Procedural Background

            On February 13, 2020, plaintiff Daniel Girch (“Plaintiff”) filed the instant employment discrimination action against defendants Lockheed Martin Corporation (“Lockheed”), Courtney Magil (“Magil”), and Brittany Albertson (“Albertson”) (collectively, “Defendants”)

            On March 1, 2022, the Court granted Plaintiff’s motion for leave to file an amended complaint, which Plaintiff filed on the same day.

On May 5, 2022 and by stipulation of the parties, Plaintiffs filed the operative Second Amended Complaint (“SAC”) against Defendants, alleging the following causes of action: (1) Age Discrimination; (2) Gender Discrimination; (3) Race Discrimination; (4) Unlawful Harassment/Hostile Environment Based on Age; (5) Retaliation; (6) Failure to Prevent Discrimination, Retaliation and Harassment; (7) Wrongful Termination in Violation of Public Policy; (8) Slander; (9) Libel; and (10) Intentional Infliction of Emotional Distress.

            On May 24, 2022, Defendants filed the instant demurrer to and motion to strike the SAC in a single filing. On August 10, 2022, Plaintiff filed an opposition both to the demurrer and motion to strike.  On August 15, 2022, Defendants filed their reply papers.

Allegations of the Operative Complaint

The SAC alleges as follows:

Plaintiff was employed by Defendant Lockheed in May 2010 and was consistently rated as “exceeding expectations.” (SAC ¶ 12.) “During his employment with Lockheed, Plaintiff was subjected to discriminatory and harassing comments based on his age, including but not limited to being told that he was “old school,” that there was a “generational gap” between him and his younger co-workers, and that one of his co-workers had to act as the “generational mediator” between him and his younger co-workers. Plaintiff was also subjected to discriminatory and harassing comments based on his disability by his co-workers who criticized him for taking time off because of his disability.” (SAC ¶ 13.) “During his employment with Lockheed, Lockheed exhibited a preference towards younger employees. Plaintiff’s superiors and human resources made this preference clear to Plaintiff by directing him to only hire recent college graduates.” (SAC ¶ 14.)

“Plaintiff advised his immediate leadership and human resources on numerous occasions that he felt harassed and discriminated against by several co-workers and human resources personnel at Lockheed because of his age and/or disability, but his complaints were ignored. Plaintiff is informed and believes that Lockheed employees to whom he complained about harassment and unfair treatment also participated in the training program which was denigrating to white males, and older white males.” (SAC ¶ 19.) “In or about February 2019, Defendants Magill and Albertson made knowingly false oral and written statements to Lockheed’s human resources and ethics departments falsely alleging that Plaintiff engaged in inappropriate behavior (Defendant Magill and Albertson), retaliation (Defendant Magill), favoritism (Defendants Magill and Albertson) and mischarging, i.e., stealing time (Defendant Albertson).” (SAC ¶ 20.) “Instead of investigating Plaintiff’s complaints of discrimination and harassment, Lockheed commenced an investigation of Plaintiff based on Defendant Magill’s and Albertson’s defamatory accusations.” (SAC ¶ 21.) “Throughout the investigation, multiple additional knowingly false statements were made about Plaintiff including but not limited to the following: that Plaintiff was “being sneaky” (Magill); that Plaintiff told employees to lie to Lockheed’s investigators (Magill and Albertson); that Plaintiff hindered investigations (Magill); that Plaintiff was so angry he would hit Defendant Magill (Magill); that Plaintiff engaged in favoritism (Magill and Albertson); that Plaintiff engaged in retaliation (Magill); that Defendant Magill’s health issues were because of Plaintiff (Magill); that Defendants Albertson and Magill were terrified of Plaintiff; that Plaintiff had no filter (Magill); that Plaintiff shares personal information about pay and performance (Magill); that Plaintiff treated male employees differently (AJ Dornis); that Plaintiff thinks he is above the law (Barry Linder). The foregoing statements were knowingly false and Lockheed’s investigators lacked reasonable grounds to believe any of the foregoing statements were true.” (SAC ¶ 23.) “Lockheed’s Ethics Officers, including Danielle Bartos, Darren Hill, Brenda Portzen and potentially other Lockheed employees, went on to prepare a report of the investigation which was full of false and defamatory statements about Plaintiff and which statements were used to support purported findings that Plaintiff engaged in ‘favoritism,’ ‘retaliation’ and ‘unacceptable leadership behaviors.’” (SAC ¶ 25.)

“On or about April 18, 2019, based on Defendants Magill’s and Albertson’s knowingly false and defamatory accusations, Lockheed terminated Plaintiff’s employment, falsely stating that Plaintiff had engaged in ‘inappropriate behavior,’ ‘unacceptable leadership behaviors, favoritism, and retaliation.’” (SAC ¶ 27.) When Plaintiff was terminated, he was 62 years of age. (SAC ¶ 28.)

Legal Standard

Demurrer Standard 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahnsupra, 147 Cal.App.4th at 747.)


Motion to Strike Standard

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.).  (See CCP §§ 435-437.)  A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading, however, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended.  (CCP §§ 435(b)(1), 435(c).)

A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (CCP § 436.)  The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice.  (CCP § 437.)

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and 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 resolve the objections to be raised in the demurrer.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).)  There is a similar meet and confer requirement for motions to strike.  (CCP § 435.5.)

Defendants have fulfilled the meet and confer requirement.  (Wilburn Decl. ¶¶ 2-5, Exh. A.)[1]

Discussion – Demurrer

Eighth through Tenth Causes of Action: Libel, Slander, and Intentional Infliction of Emotional Distress, Respectively – Statute of Limitations

Defendants contend that the eighth through tenth causes of action for libel, slander, and intentional infliction of emotional distress, respectively, fail because the alleged acts occurred outside of the applicable statute of limitations period. (Notice at pg. 2.)

For claims involving libel and slander, the applicable statute of limitations is one year. (Code Civ. Proc. § 340(c).) For a cause of action for intentional infliction of emotional distress, the statute of limitations is two years. (Code Civ. Proc. § 335.1.)

“The criterion of relation back is whether the original complaint gave the defendant enough notice of the nature and scope of the plaintiff’s claim that he shouldn’t have been surprised by the amplification of the allegations of the original complaint in the amended one.” (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 279.) “In determining whether the amended complaint alleges facts that are sufficiently similar to those alleged in the original complaint, the critical inquiry is whether the defendant had adequate notice of the claim based on the original pleading. ‘The policy behind statutes of limitations is to put defendants on notice of the need to defend against a claim in time to prepare a fair defense on the merits. This policy is satisfied when recovery under an amended complaint is sought on the same basic set of facts as the original pleading.’” (Id. at 277.) “Additionally, in applying the relation-back analysis, courts should consider the strong policy in this state that cases should be decided on their merits.” (Id.)

Here, Defendants argue that the SAC inserts new allegations as asserted in paragraphs 23, 25, and 110 that are beyond the applicable statute of limitations period because they occurred in 2019 and were not alleged in the original complaint. (Demurrer at pg. 3.) Defendants further assert that the statements alleged therein do not relate back to the original complaint because they involve different incidents than those initially pleaded. (Id.)

In opposition, Plaintiff argues that the allegations in question are proper because they relate back to Plaintiff’s wrongful discharge. (Opposition at pg. 2, relying on Pointe, supra, 195 Cal.App.4th at 277 and Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960.)

In reply, Defendants contend that each defamatory statement is separately actionable and gives rise to a separate cause of action. (Reply at pg. 4, relying on Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242-1243.) Defendants further argue that Plaintiff’s reliance on Honig is inapplicable under the circumstances and that other courts have declined to follow Honig. (Reply at pg. 6, relying on Lee v. Bank of America (1994) 27 Cal. App.4th 197.)

Upon review of the SAC, the Court finds that the newly added allegations that support the eighth through tenth causes of action are not time-barred because they relate back to the initial complaint. “The rule that each publication of a defamatory statement gives rise to a new cause of action for defamation applies when the original defamer repeats or recirculates his or her original remarks to a new audience.” (Shively, supra, 31 Cal.4th at 1243.) “That rule also applies when a person who heard, read, or saw the original defamatory remark repeats the remark to others.” (Id.) Thus, the defamatory statements communicated to the Ethics Officers and the report prepared by the Ethics Officers based on those statements would technically constitute separate causes of action. (SAC ¶¶ 23, 25.)  Nevertheless, these publications occurred within a short period of time apart from one another, and the alleged harm caused by those statements resulted in Plaintiff’s alleged wrongful termination. (SAC ¶¶ 20-27.) In contrast, in Shively, there were three separate publications at issue, each occurring more than one year before the filing of the complaint, and the question before the Shively Court was whether the delayed discovery rule applied, not the relation back doctrine. (Shively, supra, 31 Cal.4th at 1246-1254.)

Also, the Court finds that Plaintiff’s reliance on Honig is inapplicable, but its inapplicability is not detrimental to Plaintiff’s position. The reason that the Court of Appeal in Lee took issue with the holding in Honig was that the Honig Court applied the relation back doctrine to a claim that accrued only after the original complaint was filed. (Leesupra, 27 Cal. App.4th at pp. 205-206.) In this instance, the defamatory statements were not made after the initial complaint was filed but around the time of the investigation into Plaintiff that ultimately led to his termination.

The Lee Court declined to follow Honig because Honig conflicts with the California Supreme Court’s decision in Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146. (Leesupra, 27 Cal. App.4th at 207.) In Barrington, the California Supreme Court found that the plaintiff’s claim against an IUD maker could not relate back to the initial complaint, involving claims against her doctor and a drug manufacture for tubal-ovarian abscesses and an infection, on the mere basis that the injuries were the same. (Barringtonsupra, 39 Cal.3d at 152.) Those set of facts were understood to be different operative facts. (Id. at 151, 157.) Thus, the Lee Court reasoned that different acts leading to different injuries could not be part of the same general set of facts, even if they were part of the same story. (Lee, supra, 27 Cal.App.4th at 208.) However, as stated above, Plaintiff’s claims relating to the alleged defamatory statement is not merely that they were made and that it caused Plaintiff  reputational harm. Instead, Plaintiff contends that those statements gathered through the Ethics investigation culminated in a published report, and it was based on the findings made therein that resulted in Plaintiff’s termination. (SAC ¶¶ 26-27, 104, 110-111.) Consequently, it was the culminative effect of those statements that caused Plaintiff’s harm. The relation back doctrine applies here because the newly asserted allegations that comprise the eighth through tenth causes of action are part of the same general set of facts of the original complaint.

Accordingly, Defendants’ Demurrer is OVERRULED.

Discussion – Motion to Strike

            Defendants move to strike the following paragraphs from the SAC: Paragraphs 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 26, and 29.

            Defendants contend that the Court should strike these allegations because Plaintiff is improperly relying on evidentiary facts.  In support of this argument, Defendants rely on Doe v. City of Los Angeles (2007) 42 Cal.4th 531 and CA. v. William S. Hart Union High School Dist (2012) 53 Cal.4th 861. Defendants’ reliance on these cases is misplaced.  These cases do not support the proposition asserted. Neither Doe nor Williams S. Hart Union High School Dist. holds that evidentiary facts cannot be asserted in one’s pleadings. Rather, the California Supreme Court held that “evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged,” i.e., that a plaintiff is not required to include evidentiary facts. (Williams S. Hart Union High School Dist, supra, 53 Cal.4th at 872.) Nowhere does the opinion state that a plaintiff may not voluntarily allege evidentiary facts. Similarly, the California Supreme Court stated in Doe that “the complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts.” (Doe, supra, 42 Cal.4th at 550.) The primary requirement for pleading purposes is that the complaint “apprises the defendant of the factual basis for the claim.” (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1376.)

Accordingly, Defendants’ motion to strike is DENIED.


Based on the foregoing, Defendants Lockheed Martin Corporation, Courtney Magil, and Brittany Albertson’s demurrer to the fourth amended complaint is OVERRULED.

Defendants’ motion to strike is DENIED.

Defendants Lockheed Martin Corporation, Courtney Magil, and Brittany Albertson are to file an answer by September 15, 2022.  The parties are ordered to appear for a case management conference on October 4, 2022 at 8:30 am.

The Court notes that there remain Doe defendants , who have not been named and have not been served.  The Court hereby sets an OSC re dismissal of all unnamed defendants and cross-defendants (including all unnamed Does and Roes) for October 4, 2022 at 8:30 am. Any party who opposes the dismissal of all unnamed defendants (including all unnamed Doe defendants) and unnamed cross-defendants (including all unnamed Roe cross-defendants) shall file and serve a written opposition no later than 10 days before the OSC and shall appear at the OSC and show cause why all unnamed defendants and cross-defendants (including all unnamed Does and Roes) should not be dismissed.  The written opposition must identify all efforts made to identify and serve the unnamed and unserved Doe defendants and Roe cross-defendants and explain why that party has not already had sufficient time to pursue discovery in order to identify and serve all Doe defendants and Roe cross-defendants.  Any party who opposes the dismissal of all unnamed and unserved Doe defendants and Roe cross-defendants at this time must also appear on October 4, 2022 at 8:30 am and show cause why all unnamed and unserved Doe defendants and Roe cross-defendants should not be dismissed at that time.  Failure of Plaintiff and Cross-Complainants to appear at the OSC re dismissal will be deemed by the court to be Plaintiff’s and Cross-Complainants’ consent to dismiss all unnamed defendants and cross-defendants (including all unnamed Does and Roes) and shall result in dismissal of all unnamed Defendants and Cross-Defendants (including all unnamed Does and Roes).

            The parties are ordered to meet and confer by real time conversation face-to-face or by telephone in good faith within one week of today regarding their multiple discovery disputes.  If the parties are unable to resolve all of their discovery disputes, the parties may, but are not required to, contact the Court Clerk to schedule an informal discovery conference.  No later than 5 court days before each hearing on a motion to compel further, the parties must file a joint statement summarizing the meet and confer efforts and setting forth all items of discovery that remain in dispute.  For each discovery request still in dispute, the joint statement must include: (1) the text of the request or discovery item in dispute; and (2) all responses, answers, and objections, already provided.  The joint statement must list the remaining issues in dispute, item by item, and include all of the information required above (categories 1-2, inclusive) immediately below the heading for that item of discovery.  The parties are not to provide any argument in the joint statement.  The parties must file one joint statement with regard to each form of discovery.

            For any motion to compel further in this action that has been filed or will be filed in the future, the responding party’s voluntary service of supplemental responses prior to the hearing will moot all issues for the motion except for sanctions.  The parties are ordered to meet and confer regarding sanctions and to file a joint statement within 5 days of the service of supplemental responses; the joint statement must advise that supplemental responses have been served and advise whether the parties have been able to resolve the sole remaining issue of sanctions.  In order to demonstrate that supplemental responses have been served thereby mooting a pending motion to compel further, the responding party must also file and serve a copy of the verified supplemental responses no later than when the opposition is due.  If the moving party deems that the supplemental responses remain deficient and/or non-code compliant, the moving party must timely (within 45 days of service of the supplemental responses) file and serve a new motion to compel further complying with all statutory requirements, including a meet and confer regarding the supplemental responses and a separate statement that includes all responses (original and supplemental).  The moving party may contact Department 26 to request a further informal discovery conference to discuss the remaining disputes following the service of supplemental responses.

            Moving party is to give notice and file proof of service of such.

DATED: August 30, 2022                                                      ___________________________

                                                                                    Elaine Lu

                                                                                    Judge of the Superior Court

[1] The Court notes that the submitted declaration applies to both the demurrer and motion to strike.