Demurrer to Second Amended Complaint (Judge Robert D. Foiles)


DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT BY DEFENDANT ASSOCIATION OF FLIGHT ATTENDANTS-CWA, AFL-CIO

TENTATIVE RULING:

The Demurrer of Defendant Association of Flight Attendants-CWA, AFL- CIO (“Defendant”) to the Second Amended Complaint (“FAC”) by Plaintiff Mitchell F. Toole (“Plaintiff”) is ruled on as follows:

(1) Demurrer to the First Cause of Action for Intentional Misrepresentation, Second Cause of Action for Negligent Misrepresentation, Third Cause of Action for Interference with Economic Advantage and Opportunity, and Fourth Cause of Action for Intentional Interference with Contractual Relationship is OVERRULED on the ground that the collective bargaining agreement (“CBA”) between Defendant and United Airlines, Inc. (“United”) governs these claims such that they are preempted by the Railway Labor Act (“RLA”).

The Court previously overruled Defendant’s Demurrer on this same ground as to the First Amended Complaint, and also denied the request for judicial notice of the CBA. (See Court’s July 29, 2022 Minute Order.)

Nevertheless, Defendant once again demurs that these claims are preempted by the RLA and claims that it may once again raise this argument because Plaintiff’s discovery responses clearly show that the CBA applies to Plaintiff’s claims and therefore they are preempted under the RLA. (See Defendant’s Request for Judicial Notice, Exhs. 1- 3.) As a general rule, a demurrer assumes that the facts alleged in the pleading are true no matter how improbable they may be. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, a court “will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed.” (Ibid.) Thus, a court “will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.” (Id. at 604-605.) However, “[t]he hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take  judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.” (Id. at 605.) Accordingly, the Court may properly take judicial notice of Plaintiff’s discovery responses if they contradict the allegations in the SAC.

To that end, Defendant requests that judicial notice be taken of Plaintiff’s responses to Defendant United Airline’s (“United”) Employment Form Interrogatories, Plaintiff’s responses to Defendant’s Request for Admission and Plaintiff’s responses to Defendant’s General Form Interrogatories. (See Defendant’s Request for Judicial Notice, Exhs. 1-3.)

After reviewing these responses though, Defendant has not demonstrated that these discovery responses are inconsistent with the allegations in the SAC. Instead, it appears that Defendant is asking the Court to do what the court in Del E. Webb states should not be done, i.e. to turn this hearing on demurrer into a contested evidentiary hearing under the guise of having the Court take judicial notice of these discovery responses.

Furthermore, Defendant relies on responses to Plaintiff’s form interrogatory responses, but has not provided the form interrogatories that were propounded on Plaintiff. (Id., Exhs. 1-3.) Moreover, Defendant requested judicial notice of the wrong interrogatory responses with its moving papers. (See Defendant’s Notice of Errata.) In the Notice of Errata filed with Defendant’s Reply, Defendant states that it provided the wrong form interrogatory responses as Exhibit 1 to its Request for Judicial Notice, and asks that the Court take judicial notice of a different set of Plaintiff’s interrogatory responses. (See Notice of Errata, Exh. 1.) Defendant did not have an opportunity to respond to this request or to address these responses though.

For all of the above reasons, Defendant’s Request for Judicial is DENIED.

Defendant’s Request for Judicial Notice of the CBA is also DENIED. (See Court’s July 29, 2022 Minute Order.)

Bsaed on the above, Defendant has not demonstrated that Plaintiff’s discovery responses are the proper subject of a request for judicial notice. Accordingly, the Demurrer on this ground is an improper motion for reconsideration.

Defendant also demurs that these claims are also preempted by the RLA and barred by the six-month statute of limitations because they include a breach of the duty of fair representation, and the RLA preempts state law in cases alleging breach of the duty of fair  representation imposed on unions. As Plaintiff points out in opposition though, “[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.” (See C.C.P. § 430.41(b).) Defendant fails to address this argument in reply. Accordingly, the Court does not reach Defendant’s argument based on section 430.41(b).

  • Demurrer to the Fourth Cause of Action for Intentional Interference with Contractual Relationship is SUSTAINED WITH LEAVE TO AMEND based on failure to state facts sufficient to support this claim and uncertainty.

The elements of a claim for intentional interference with contractual relations are: (1) That there was a contract between [name of plaintiff] and [name of third party]; (2) that [name of defendant] knew of the contract; (3) that [name of defendant]’s conduct prevented performance or made performance more expensive or difficult; (4) that [name of defendant] [intended to disrupt the performance of this contract/ [or] knew that disruption of performance was certain or substantially certain to occur]; (5) that [name of plaintiff] was harmed; and (6) that [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm. (CACI 2201.)

Plaintiff fails to allege facts sufficient to support all these elements, including a contract between Plaintiff and United that Defendant’s conduct prevented performance and was a substantial factor in causing Plaintiff harm. Even though the SAC fails to clearly identify the contract in which Defendant interfered, Plaintiff argues in opposition that the contract that Defendant interfered with is set forth in Exhibits A and B to the SAC. These documents are from 2021 though. (SAC, Exhs. A & B) Plaintiff alleges that Defendant interfered with the contract such that he would not have relinquished his position as a flight attendant or given up his seniority, which occurred in 2019 though. (See e.g., SAC ¶¶ 13-15, 76-77.) Thus, these allegations are insufficient and also uncertain.

Plaintiff also alleges in this claim that Defendant refused to permit him to return to his position as a flight attendant without going back to the status of a new employee in a probationary status. (SAC ¶ 78.) However, Plaintiff fails to allege facts sufficient to support all the elements of this claim, including how Defendant’s conduct prevented performance or made performance difficult with respect to Plaintiff’s contract with United as a Customer Service Supervisor in Denver.

Plaintiff is to file and serve the Third Amended Complaint within ten days of service of written notice of entry of order by Defendant. In amending, Plaintiff is limited to amending the Fourth Cause of Action and may not add any new cause of action without court permission. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so].)