285310658 Demurrer to Cross Complaint of Robledo and Niebla Temps On Time
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JUSTIN H. SANDERS (SBN 211488) [email protected] REGINALD ROBERTS, JR. (SBN 216249) [email protected] SANDERS ROBERTS LLP 355 South Grand Avenue, Suite 2450 Los Angeles, California 90071 Telephone: 213-943-1314 Facsimile: 213-234-4581 Attorneys for Plaintiff and Cross-Defendant TEMPS ON TIME, INC. and KATHERINE KIDD
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF LOS ANGELES
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NORTH CENTRAL DISTRICT, BURBANK COURTHOUSE
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TEMPS ON TIME,
) ) Plaintiff, ) ) vs. ) ) ROSE & SHORE, INC., a California ) corporation, RITE-WAY MEAT PACKERS, ) INC., a California corporation, JUDITH ) ROBLEDO, an individual, CARMEN ) NIEBLA, an individual, PARTNERSHIP ) STAFFING, LLC, a California Limited ) Liability Company, and DOES 1 to 10, ) ) Defendants. ) ) JUDITH ROBLEDO, an individual, ) CARMEN NIEBLA, an individual, ) ) Cross-Complainants, ) ) vs. ) ) TEMPS ON TIME, a business organization of ) unknown form, KATHERINE KIDD, an ) individual, and ROES 1 to 10, ) ) Cross-Defendants. ) )
Case No. EC058809 [Assigned to Judge Donna Fields Goldstein, Dept. NC”B”] CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S NOTICE OF DEMURRER AND DEMURRER TO THE CROSS-COMPLAINT OF DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Filed concurrently with Cross-Defendants Temps On Time and Katherine Kidd’s Motion To Strike Cross-Complaint Of CrossComplainants’Judith Robledo and Carmen Niebla, and [Proposed] Order] Date: Time: Dept.
December 19, 2012 8:30 a.m. NC “B”
26 27 28 - 1CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN:
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PLEASE TAKE NOTICE THAT that on December 19, 2012, at 8:30 a.m. or as soon
3
thereafter as the matter may be heard in Department B of the above-captioned Court, located at
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300 East Olive Ave. Burbank, CA 91502, Defendant Plaintiff and Cross-Defendants Temps On
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Time and Katherine Kidd, by and through their counsel of record herein, will demur to the
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Cross-Complaint of Defendants and Cross-Complainants Judith Robledo and Carmen Niebla
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(“Cross-Complainants”).
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This Demurrer is based upon this Notice of Demurrer and Demurrer, the attached Memorandum of Points and Authorities in Support Thereof, the pleadings and papers on file
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herein, and on such other oral and documentary evidence as may be presented at the time of the
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hearing on this Demurrer.
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Dated: October 12, 2012
SANDERS ROBERTS LLP By: REGINALD ROBERTS, JR. Attorneys for Plaintiff and Cross-Defendant TEMPS ON TIME, INC., and KATHERINE KIDD
17 18 19 20 21 22 23 24 25 26 27 28 - 2CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
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TABLE OF CONTENTS
2
TABLE OF AUTHORITIES ........................................................................................................... i
3
MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 3
4
I.
INTRODUCTION ............................................................................................................... 3
5
II.
STANDARD ON DEMURRERS........................................................................................ 4
6
III.
ARGUMENT ....................................................................................................................... 5
7
A.
CROSS-COMPLAINANTS FAIL TO ALLEGE FACTS SUFFICIENT TO SUPPORT THEIR CLAIMS OF UNPAID WAGES AND UNFAIR COMPETITION ..................................................................................................... 5
B.
CROSS-COMPLAINANTS’ CLAIMS FOR DISCRIMINATION AND HARASSMENT IN VIOLATION OF FEHA FAIL AS A MATTER OF LAW .. 6
8 9 10
1.
Cross-Complainants Failed to Exhaust Their Administrative Remedies ... 6
2.
Cross-Complainants’ Second Cause Of Action Fails Because Harassment And Discrimination Under FEHA Are Two Separate And Distinct Claims ..................................................................................................................... 7
3.
Cross-Complainants’ Cause Of Action For Unlawful Harassment Fails Because It Lacks Factual Pleadings Regarding The Conduct Of CrossDefendants. ................................................................................................. 8
4.
Cross-Complainants Do Not Plead Facts Sufficient To Sustain A Cause Of Action For Unlawful Discrimination. ......................................................... 8
11 12 13 14 15 16 17
C.
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IV.
CROSS-COMPLAINANTS FAIL TO ALLEGE SUFFICIENT FACTS AGAINST MS. KIDD TO SUPPORT A CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ...................................................... 10
CONCLUSION .................................................................................................................. 12
20 21 22 23 24 25 26 27 28 - iTABLE OF CONTENTS
TABLE OF AUTHORITIES
1 2
FEDERAL CASES
3
Burlington Northern & Santa Fe Ry.Co. v. White, 126 S.Ct. 2405 (2006) ................................................................................................................. 9
4 5
STATE CASES
6
A.F. Arnold & Co. v. Pacific Professional Insurance, Inc., 27 Cal. App. 3d 710 (1972) ...................................................................................................... 11
7 8
Acres v. County of San Diego, 95 Cal. App. 4th 1441 (2002) ................................................................................................... 10
9
Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th 962 (1992) .............................................................................................................. 4, 5
10 11
Blank v. Kirwan, 39 Cal.3d 311 (1985) ................................................................................................................ 11
12
Caldwell v. Paramount Unified School District, 41 Cal. App. 4th 189 (1995) ................................................................................................. 9, 10
13 14
Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148 (1987) .......................................................................................................... 12, 13
15
Cooper v. National Railroad Passenger Cor., 45 Cal. App. 3d 389 (1975) ...................................................................................................... 11
16 17
Donabedian v. Mercury Ins. Co., 116 Cal. App. 4th 968 (2004) ..................................................................................................... 4
18
Feldesman v. McGovern, 44 Cal. App. 2d 566 (1941) ........................................................................................................ 5
19 20
Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718 (1994) ....................................................................................................... 6
21
Melikian v. Truck Ins. Exch., 133 Cal. App. 2d 113 (1955) ...................................................................................................... 5
22 23
Okoli v. Lockheed Technical Operations Co., 36 Cal.App.4th 1607 (1995) ....................................................................................................... 7
24
Reno v. Baird, 18 Cal. 4th 640 (1998) ................................................................................................................ 8
25 26
Roby v. McKesson Corp., 46 Cal. 4th 686 (2009) ............................................................................................................ 7, 8
27
Single v. U.S. Gypsum Code, 140 Cal.App. 4th 1547, 45 Cal. Rptr. 3d 597 (2006).................................................................. 9
28
Wilhelm v. Pray, Price, Williams & Russell, 186 Cal. App. 3d 1324 (1986) .................................................................................................... 5 - iTABLE OF AUTHORITIES
1
STATE STATUTES
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California Code of Civil Procedure § 430.10 ....................................................................... 4, 5, 11
3
California Code of Civil Procedure § 430.10(e) ................................................................. 1, 2, 4, 9
4
California Code of Civil Procedure § 430.10(f) ..................................................................... 1, 2, 4
5
California Code of Civil Procedure § 430.10(g) ......................................................................... 1, 2
6
California Government Code § 12901 ............................................................................................ 6
7
California Government Code § 12925 ............................................................................................ 7
8
California Government Code § 12940 ............................................................................................ 1
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California Government Code § 12940(a) ....................................................................................... 8
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California Government Code § 12960 ........................................................................................ 1, 6
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - iiTABLE OF AUTHORITIES
Demurrer To Complaint
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Plaintiff Temps On Time (“Plaintiff” or “Cross-Defendant”) and Katherine Kidd (“Ms.
2 3
Kidd)(collectively referenced herein as “Cross-Defendants”) hereby demurrer to the Cross-
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Complaint of Defendants and Cross-Complainants Judith Robledo and Carmen Niebla (“Cross-
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Complainants”) on file herein in its entirety on each of the following grounds: Demurrer To First Cause of Action For Failure to Pay Earned Wages
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1.
The First Cause of Action fails to state facts sufficient to state a cause of action
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against Plaintiff and Cross-Defendant. California Code of Civil Procedure (“CCP”) §§430.10(e);
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430.10(f); 430.10(g). Demurrer To Second Cause of Action For Racial Discrimination and Harassment
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2.
The Second Cause of Action fails to state facts sufficient to state a cause of action
12
against Plaintiff and Cross-Defendant as the Complaint contains no facts or specific allegations
13
that Cross-Defendant violated Cal. Gov’t Code § 12940. California Code of Civil Procedure
14
(“CCP”) §§430.10(e); 430.10(f); 430.10(g).
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3.
The Second Cause of action lacks the requisite specificity because Discrimination
16
and harassment are two separate and distinct causes of action and Cross-Complainants fail to
17
plead facts sufficient to support either claim. Cal. Gov’t Code § 12940; CCP §§430.10(e);
18
430.10(f); 430.10(g).
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4.
The claims and contentions of Cross-Complainants as alleged in the Cross-
20
Complaint are barred by virtue of the fact that Cross-Complainants failed to exhaust
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administrative remedies available to them. Cal. Gov’t Code § 12960. Demurrer To Third Cause of Action For Intentional Infliction of Emotional Distress
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5.
The Third Cause of Action for Intentional Infliction of Emotional Distress fails to
24
state facts sufficient to constitute a cause of action against Cross-Defendant. CCP §§430.10(e);
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430.10(f); 430.10(g).
26
///
27
///
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/// - 1CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
Demurrer to Fourth Cause of Action For Unfair Competition
1 2 3
6.
The Fourth Cause of Action fails to state facts sufficient to state a cause of action
against Cross-Defendant. CCP §430.10(e)).
4 5 6 7 8 9
Dated: October 12, 2012
SANDERS ROBERTS LLP By: REGINALD ROBERTS, JR. Attorneys for Plaintiff and Cross-Defendant TEMPS ON TIME, INC., and KATHERINE KIDD
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES
1 2 3
I.
INTRODUCTION This case involves Defendants and Cross-Complainants Judith Robledo (“Robledo”) and
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Carmen Niebla (“Niebla”) (collectively referenced herein as “Cross-Complainants”) secretive
5
breach of their contract with Plaintiff Temps On Time and Cross-Defendant Katherine Kidd
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(“Cross-Defendants”). Unfortunately for Cross-Complainants, their unlawful acts were
7
uncovered. Now Cross-Complainants attempt to avoid the consequences of their acts and divert
8
attention from their wrongdoing by alleging that they we subjected to harassment and
9
discrimination by Cross-Defendants.
10
From approximately November 2009 to 2012, Plaintiff and Cross-Defendant Temps On
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Time employed Defendant Robledo as a Sales and Recruiting associate. From November 2010
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to 2012, Plaintiff and Cross-Defendant employed Defendant Niebla as an Account Management
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and Recruiting Associate. Temps On Time’s company policy forbade employees to operate
14
competitive businesses or to solicit Plaintiff’s clientele. In or about the beginning of 2012,
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Robledo and Niebla secretly started a new company, defendant Partnership Staffing Solutions.
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Like Temps On Time, and not by coincidence, Partnership Staffing Solutions provides temporary
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or temporary-to-permanent employees.
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In or about 2012, Robledo and Niebla contacted Defendants Rose & Shore, Inc. (“Rose &
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Shore”) and Rite-Way Meat Packers, Inc. (“Rite-Way”) and encouraged them to breach their
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Contract with Plaintiff. Further, Robledo and Niebla encouraged Defendants to hire the very
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same workers provided to Defendants by Plaintiff, but to hire those employees using the services
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of Defendant Partnership Staffing Solutions, rather than Plaintiff.
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In or about May 2012, Rose & Shore and Rite-Way terminated the Contract with
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Plaintiff. At or about the same time, Rose & Shore and Rite-Way began employing the very
25
same workers provided by Temps On Time purportedly through Cross-Complainants in violation
26
of the terms of the Contract between Cross-Complainants and Temps On Time.
27 28
Despite their misconduct, Cross-Complainants now run to the court steps and file the Cross-Complaint that is the subject of this Demurrer without taking even the first steps to - 3CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
establish valid claims for discrimination or harassment against Cross-Defendants. The Cross-
2
Complaint is nothing more than an ill-conceived diversion. No discrimination or harassment
3
occurred and Cross-Complainants did not exhaust their administrative remedies before filing the
4
cross-claim. Accordingly, the claims fail as a matter of law.
5
The Cross-Complaint in this matter lists four causes of action against Cross-Defendants:
6
(1) Failure to Pay Earned Wages; (2) Racial Discrimination and Harassment; (3) Intentional
7
Infliction of Emotional Distress; and (4) Unfair Competition. The Cross-Complaint in this case
8
fails to state facts that Cross-Complainants filed claims with the Department of Fair Employment
9
and Housing (“DFEH”), Equal Employment Opportunity Commission (“EEOC”) or with the
10
Labor Board. Indeed, Cross-Complainants did not obtain a Right to Sue Notice, which is a
11
procedural prerequisite to filing a civil complaint and bars Cross-Complainant’s claims.
12
II.
STANDARD ON DEMURRERS
13
A demurrer tests the legal sufficiency of a complaint. Donabedian v. Mercury Ins. Co.,
14
116 Cal. App. 4th 968, 994 (2004). A complaint or cause of action is subject to demurrer when
15
it fails to state facts sufficient to constitute a cause of action or is uncertain, ambiguous, or
16
unintelligible. Code of Civil Procedure (“CCP”) §§ 430.10(e) and (f). Code of Civil Procedure
17
§ 430.10 states, in pertinent part:
18
20
The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: ...
21
(e)
22
(f)
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The pleading does not state facts sufficient to constitute a cause of action. The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.
23 24 25
CCP § 430.10; see also, Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th 962, 966-967 (1992). In ruling on a demurrer, “the presumptions are always against the pleader, and all doubts
26
are to be resolved against him, for it is to be presumed that he stated his case as favorably as
27
possible to himself.” Melikian v. Truck Ins. Exch., 133 Cal. App. 2d 113, 115 (1955), citing
28
Feldesman v. McGovern, 44 Cal. App. 2d 566, 571 (1941). Leave to amend is “properly denied - 4CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
when the facts are not in dispute and the nature of the claim is clear, but there is no liability
2
under substantive law.” Wilhelm v. Pray, Price, Williams & Russell, 186 Cal. App. 3d 1324,
3
1330 (1986).
4
Cross-Complainants stated their case as favorably as possible against Temps On Time
5
and Ms. Kidd and did not set forth a viable claim against either. Cross-Complainants cannot
6
cure the fatal flaws in their pleading through amendment. Accordingly, the Court must sustain
7
this Demurrer to the Cross-Complaint without leave to amend.
8
III.
ARGUMENT A.
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CROSS-COMPLAINANTS FAIL TO ALLEGE FACTS SUFFICIENT TO
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SUPPORT THEIR CLAIMS OF UNPAID WAGES AND UNFAIR
11
COMPETITION
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Cross-Complainants fail to plead any facts regarding amounts of wages allegedly earned
13
but not paid by Temps On Time. Cross-Complainants do not specify what wages were allegedly
14
earned individually by Robledo or Niebla that Temps On Time failed to pay upon Cross-
15
Complainants’ termination of their employment relationship with Temps On Time. Such vague
16
claims are subject to demurrer. CCP § 430.10; see also, Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th
17
962, 966-967 (1992).
18
Cross-Complainants fail to plead facts to establish a viable claim against Temps On Time
19
for failure to pay wages and even plead facts that establish that the claim is not valid. Cross-
20
Complainants allege that Temps On Time “denied the amount or validity of wages due to Cross-
21
Complainants” falsely. (Cross-Complaint ¶23:11.) They allege only that “Cross-Defendants
22
failed and refused to pay Cross-Complainants all wages earned as required by the Labor Code
23
and other applicable laws and regulations.” (Cross-Complaint ¶ 22.) This limited pleading
24
amounts to nothing more than a legal conclusion. Cross-Complainants offer no specific facts
25
regarding amounts of wages earned individually by Niebla or Robledo that allegedly remain
26
unpaid.
27 28
The Fourth Cause of Action for Unfair Competition depends entirely on the claim that Temps On Time did not pay all wages due and owing to Cross-Complainants upon their - 5CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
departure from the company. Based on the facts and argument set forth above, that claim fails as
2
a matter of law. Accordingly, the Unfair Competition allegations fail also. Cross-Complainants
3
offer no additional factual substance to support their Fourth Cause of Action and allege again
4
legal conclusions not sufficient to pass even basic pleading standards.
5 6 7
Based on the foregoing, Cross-Defendants demurrer to the First and Fourth Causes of Action as alleged in the Cross-Complaint. B.
CROSS-COMPLAINANTS’ CLAIMS FOR DISCRIMINATION AND
8
HARASSMENT IN VIOLATION OF FEHA FAIL AS A MATTER OF
9
LAW
10 11
1.
Cross-Complainants Failed to Exhaust Their Administrative Remedies
Cross-Complainants’ claims against Temps On Time fail because they rushed to the
12
courthouse steps with baseless claims of discrimination and harassment without first exhausting
13
their administrative remedies.
14
In Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718 (1994), the court
15
explained that in the context of the FEHA, exhaustion of the administrative remedy is a
16
jurisdictional prerequisite to resort to the courts: “Under California law ‘an employee must
17
exhaust the ... administrative remedy’ provided by the Fair Employment and Housing Act, by
18
filing an administrative complaint with the [DFEH] (Gov’t. Code, § 12960; cf. id. §§ 12901,
19
12925, subd. (b)) and obtaining DFEH’s notice of right to sue (id. § 12965, subd. (b)), ‘before
20
bringing suit on a cause of action under the act or seeking the relief provided therein....” Okoli v.
21
Lockheed Technical Operations Co., 36 Cal.App.4th 1607, 1613 (1995).
22
Before filing suit on a statutory employment discrimination claim under state law, the
23
aggrieved employees must have exhausted their administrative remedies. The employee must
24
have filed a timely and sufficient charge with the appropriate administrative agency and obtained
25
a “right-to-sue” letter from that agency. Failure to obtain a right-to-sue letter from the DFEH
26
precludes any civil action by an employee based on FEHA. Id.
27 28
Cross-Complainants herein do not allege that they satisfied the necessary prerequisites to filing their claims for harassment and discrimination against Cross-Defendants. This failure by - 6CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
Cross-Complainants proves fatal to their harassment and discrimination claims.1
2
2.
Cross-Complainants’ Second Cause Of Action Fails Because Harassment
3
And Discrimination Under FEHA Are Two Separate And Distinct Claims
4
Cross-Complainants lump two different claims together in their Second Cause of Action
5
that require separate pleading of facts to satisfy the distinct legal standards that apply to each
6
claim. “In the FEHA, the terms “discriminate” and “harass” appear in separate provisions and
7
define distinct wrongs.” Roby v. McKesson Corp., 46 Cal. 4th 686, 705 (2009).
8
Because the FEHA treats harassment in a separate provision, courts do not treat the
9
FEHA’s prohibition against discrimination broadly to include harassment. California case law
10
“makes clear that the FEHA’s discrimination provision addresses only explicit changes in the
11
“terms, conditions, or privileges of employment”; that is, changes involving some official action
12
taken by the employer. (emphasis in original) Reno v. Baird, 18 Cal. 4th 640, 645-647 (1998);
13
Govt. Code § 12940(a). “In the case of an institutional or corporate employer, the institution or
14
corporation itself must have taken some official action with respect to the employee, such as
15
hiring, firing, failing to promote, adverse job assignment, significant change in compensation or
16
benefits, or official disciplinary action.” Roby v. McKesson Corp., 46 Cal. 4th 686, 706 (2009).
17
“By contrast, harassment often does not involve any official exercise of delegated power on
18
behalf of the employer.” Id.
19
Cross-Complainants fail to allege any specific facts that demonstrate that Temps On
20
Time engaged in any official action that resulted in a material change in the employment status
21
of Cross-Complainants. Furthermore, Cross-Complainants do not distinguish the harassment and
22
discrimination causes of actions as required by applicable legal standards. See Roby v.
23
McKesson Corp., 46 Cal. 4th 686, 705 (2009). Temps On Time cannot be held liable for
24
harassment and Cross-Complainants claims fail for multiple reasons set forth above.
25 26
Accordingly, Cross-Defendants urge this Court respectfully to sustain this Demurrer without leave to amend. Cross-Complainants cannot cure the defects in their Cross-Complaint
27 1
28
Cross-Complainants’ base their Third Cause of Action for Intentional Infliction of emotional Distress entirely on their claims of harassment and discrimination. This cause of action fails as a matter of law along with the Second Cause of Action. - 7CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
through amendment. Specifically, their failure to exhaust their administrative remedies before
2
filing the Cross-Complaint proves fatal to their harassment and discrimination claims.
3
3.
Cross-Complainants’ Cause Of Action For Unlawful Harassment Fails
4
Because It Lacks Factual Pleadings Regarding The Conduct Of Cross-
5
Defendants.
6
Cross-Complainants’ claim of Harassment lacks factual allegations regarding the alleged
7
conduct of Ms. Kidd. (See Cross-Complaint ¶¶ 25-28.) Indeed, Cross-Complainants do not
8
name Ms. Kidd as a Cross-Defendant in this cause of action and do not allege a single fact
9
concerning Ms. Kidd related to this claim.2 Furthermore, Cross-Complainants do not plead any
10
facts concerning actions in the workplace that would amount to unlawful harassment regardless
11
of who engaged in the conduct. Such pleadings are subject to demurrer. C.C.P. § 430.10(e).
12
To show a hostile or offensive working environment that constitutes harassment in
13
violation of the Fair Employment & Housing Act (“FEHA”), Cross-Complainants must prove
14
that Cross-Defendants’ conduct would have interfered with reasonable employees’ work
15
performance and would have seriously affected the psychological wellbeing of a reasonable
16
employee and that Cross-Complainants were actually offended. Single v. U.S. Gypsum Code,
17
140 Cal.App. 4th 1547, 1557, 45 Cal. Rptr. 3d 597, 603 (2006). Cross-Complainants fail to
18
allege a single fact against Cross-Defendant, or to satisfy any element of a cause of action for
19
harassment. Based on the foregoing, Cross-Defendants’ Demurrer to Cross-Complainants’ cause
20
of action for unlawful harassment should be sustained without leave to amend.
21
4.
22
Cross-Complainants Do Not Plead Facts Sufficient To Sustain A Cause Of Action For Unlawful Discrimination.
23
Cross-Complainants’ Second Cause of Action for Unlawful Discrimination is not
24
supported by sufficient factual pleadings. It is well established that an essential element of
25
pleading a prima facie case of race discrimination under FEHA is that Plaintiff was subjected to
26
adverse employment action. Caldwell v. Paramount Unified School District, 41 Cal. App. 4th
27 28
2
Cross-Complainants cannot plead a viable claim of harassment under FEHA against Temps On Time. Roby v. McKesson Corp., 46 Cal. 4th 686, 706 (2009). - 8CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
189, 200 (1995). Plaintiff must show that “a reasonable employee would have found the
2
challenged action materially adverse.” Burlington Northern & Santa Fe Ry.Co. v. White, 126
3
S.Ct. 2405 (2006).
4
In the case at bar, Cross-Complainants’ allegations that Ms. Kidd made a few random
5
comments about their attire and about persons of Mexican descent believing that they are entitled
6
to certain rights and work opportunities cannot support a claim for discrimination. (Cross-
7
Complaint ¶ 19.) These limited statements, even if true, did not constitute “substantial adverse
8
change in the terms and conditions of [Cross-Complainants’] employment” as required pursuant
9
to Acres v. County of San Diego, 95 Cal. App. 4th 1441, 1455 (2002).
10
The cause of action for discrimination based on race requires that Cross-Complainants
11
plead specific facts that Cross-Defendant engaged in discriminatory conduct which was
12
motivated by Cross-Complainants’ membership in a protected class. Indeed, pursuant to
13
Caldwell v. Paramount Unified School District, 41 Cal. App. 4th 189, 200 (1995), Cross-
14
Complainants must establish that (1) they are members of a protected class; (2) they are
15
performing in a satisfactory manner; (3) they were subjected to an adverse employment decision;
16
(4) they were replaced by an employee outside of their protected class with equal or inferior
17
qualifications.
18
The Cross-Complaint lacks factual pleadings to support any of the four prima facie
19
elements of Cross-Complainants’ claim for Unlawful Discrimination. Even the most liberal
20
interpretation of the pleadings does not reveal that Cross-Complainants are members of a
21
protected class.3 However, Cross-Complainants do not contend that they were performing their
22
jobs in a satisfactory manner, that they were subjected to an adverse employment decisions, or
23
that they were replaced by someone outside of their protected class with equal or inferior
24
qualifications. In fact, Cross-Complainants left voluntarily and tried to take clients of Temps On
25
Time, and use its employees for their own new company, all in violation of their contractual
26
agreements with Temps On Time.
27 3
28
While Cross-Complainants could cure this defect through amendment, they cannot satisfy the remaining three elements of their claim for discrimination regardless of the number of opportunities given to modify their complaint. - 9CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
Cross-Complainants’ broad assertion that Cross-Defendants made comments about their
2
attire or about persons of Mexican descent did not even amount to a trivial slight based on the
3
standard set forth in Acres v. County of San Diego, 95 Cal. App. 4th 1441, 1455 (2002).
4
Based on the foregoing, Cross-Complainants fail to plead facts sufficient to sustain their
5
Second Cause of Action for Unlawful Discrimination against Cross-Defendants and this
6
Demurrer should be sustained without leave to amend. C.
7
CROSS-COMPLAINANTS FAIL TO ALLEGE SUFFICIENT FACTS
8
AGAINST MS. KIDD TO SUPPORT A CLAIM OF INTENTIONAL
9
INFLICTION OF EMOTIONAL DISTRESS
10 11
Cal. Code Civ. Proc. § 430.010 states that a party against whom a complaint has been filed may object demurrer to the pleading on any one or more of the following grounds:
12
(d) There is a defect or misjoinder of parties.
13
(e) The pleading does not state facts sufficient to constitute a cause of action.
14
(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes
15
ambiguous and unintelligible. Cal. Code Civ. Proc. §430.010.
16
In reviewing the sufficiency of a complaint against a demurrer, the court treats the
17
demurrer as admitting all material facts properly pled, but not contentions, deductions, or
18
conclusions of fact or law. Blank v. Kirwan, 39 Cal.3d 311, 318 (1985). Where a complaint fails
19
to allege sufficient facts to establish a cause of action, a general demurrer is proper. Cooper v.
20
National Railroad Passenger Cor., 45 Cal. App. 3d 389, 393 (1975). In addition, a demurrer
21
may lie if a cause of action is uncertain in that it fails to plead certain material facts to properly
22
state a cause of action. A.F. Arnold & Co. v. Pacific Professional Insurance, Inc., 27 Cal. App.
23
3d 710, 718 (1972).
24
Cross-Complainants fail to allege sufficient facts against Ms. Kidd, and, therefore, the
25
Court must sustain this demurrer. The Cross-Complaint refers to Ms. Kidd in only two
26
paragraphs which do not provide facts sufficient to sustain any claim against her or Temps On
27
Time. (See Cross-Complaint ¶¶ 9 and 19.)4 Surely, Cross-Complainants do not plead any facts
28 4
Ms. Kidd is only listed in the caption of the Third Cause of Action for Intentional Infliction of Emotional - 10CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
to support their legal conclusion that Ms. Kidd intentionally inflicted emotional distress on them.
2
Cross-Complainants make baseless claims, that amount to little more than legal conclusions,
3
against Ms. Kidd, in direct contravention of pleading standards. Surely Cross-Complainants do
4
not allege facts or actions by Ms. Kidd that amount to the intentional infliction of extreme
5
emotional distress.
6
Cross-Complainants’ trivial complaints of harassment and discrimination, barred by their
7
failure to exhaust their administrative remedies, do not provide a valid basis for their intentional
8
infliction of emotional distress (“IIED”) claim against Ms. Kidd. In order to prove their claims
9
of IIED, Cross-Complainants must offer admissible evidence that: (1) Ms. Kidd’s conduct was
10
outrageous; (2) Ms. Ms. Kidd intended to cause Cross-Complainants emotional distress;
11
(3) Cross-Complainants suffered severe emotional distress; and (4) Ms. Kidd’s conduct was a
12
substantial factor in causing Plaintiff’s severe emotional distress. CACI 1600.
13 14
An essential element of an IIED claim is a pleading of outrageous conduct beyond the bounds of human decency. Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148, 155 (1987).
15
Managing personnel is not outrageous conduct beyond the bounds of human decency, but
16
rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel
17
management activity is insufficient to support a claim of intentional infliction of emotional
18
distress, even if improper motivation is alleged. If personnel management decisions are
19
improperly motivated, the remedy is a suit against the employer for discrimination. Janken v.
20
GM Hughes Electronics, 46 Cal.App.4th 55, 80 (1996).
21
Both state and federal courts have long followed this analysis of IIED claims in the
22
context of a discrimination or wrongful termination lawsuit. In Buscemi v. McDonnell Douglas
23
Corp., 736 F.2d 1348 (1984), plaintiff alleged “that he was fired on a pretext, and he assert[ed]
24
that it is ‘apparent that [his] emotional distress resulted from the callous and insensitive manner
25
of his termination.’” The court found that the allegation “is no more than a claim that Buscemi
26 27 28
Distress and hereby demurrers to that cause of action as the only claim plead against her. To the extent that Cross-Complainants contend that any other cause of action is plead against Ms. Kidd, she demurs to those claims as well based on Cross-Complainants’ failure to plead facts against her to support any cause of action. - 11CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
was fired without good cause and that as a result he suffered emotional distress. These
2
allegations do not support a tort claim under state law for intentional infliction of emotional
3
distress.” Id. at. 1352.
4
Here, Cross-Complainants’ IIED claim fail because: (1) they cannot establish that Ms.
5
Kidd’s conduct was outrageous; or (2) that the cause of action is based on anything more than
6
their claims that Ms. Kidd allegedly commented that Mexicans think they are entitled to the same
7
benefits as citizens or that Mexicans come to the United States and take jobs. Surely, claims that
8
Ms. Kidd told Robledo that she looked like she was dressed for a Cinco de Mayo parade do not
9
amount to extreme or outrageous conduct based on the standard set by this Court. See, Cole,
10
supra, 43 Cal.3d at 155. Cross-Complainants also failed to establish that they suffered severe
11
emotional distress as a result of the alleged conduct of Ms. Kidd.
12 13 14 15
Accordingly, Cross-Complainants’ IIED claims fail. IV.
CONCLUSION Based on the foregoing, Cross-Defendants Temps On Time and Ms. Kidd urge the Court
respectfully to sustain this Demurrer to the Cross-Complaint without leave to amend.
16 17 18 19 20 21
Dated: October 12, 2012
SANDERS ROBERTS LLP By: REGINALD ROBERTS, JR. Attorneys for Plaintiff and Cross-Defendant TEMPS ON TIME, INC., and KATHERINE KIDD
22 23 24 25 26 27 28 - 12CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
PROOF OF SERVICE
2
I, Sandy Bell, declare as follows: I am a citizen of the United States, over 18 years of age and am not a party to the within action. My place of employment and business address is 355 S. Grand Ave., Suite 2450, Los Angeles, CA 90071, which is located in the County of Los Angeles where the service took place.
3 4
On October 12, 2012, I served a copy of the following entitled document(s): 5
7
CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S NOTICE OF DEMURRER AND DEMURRER TO THE CROSS-COMPLAINT OF DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
8
on the following interested party(s) in said cause:
6
9 10 11 12 13 14
Alan G Novodor, Esq. LAW OFFICES OF ALAN G. NOVODOR 11835 W. Olympic Blvd, Suite 1125 E Los Angeles, CA 90064-5001 PH: (310) 479-9387/FAX (310) 479-9388 Email: [email protected]
Attorneys for Defendants ROSE & SHORE, INC; RITE-WAY MEAT PACKERS, INC.
Gene J. Goldsman, Esq. LAW OFFICES OF GENE J. GOLDSMAN 501 Civic Center Drive West Santa Ana, California 92701 PH (714) 541-3333 /FAX (714) 541-0456
Attorney for Defendants PARTNERSHIP STAFFING, LLC, JUDITH ROBLEDO and CARMEN NIEBLA
15 16 17 18 19 20 21 22 23 24 25 26
VIA FACSIMILE I caused such document to be transmitted via facsimile to the addressee(s) from the facsimile machine of Sanders Roberts LLP whose fax number is (213) 234-4581 . No error was reported by the machine and pursuant to Rule 2008(e)(3), I caused the machine to print a record of the transmission. VIA ELECTRONIC MAIL I caused the documents to be sent to all interested parties in this action as set forth above. I did not receive, within a reasonable time after transmission, any electronic message or other indication that the transmission(s) were unsuccessful. VIA MAIL I am readily familiar with this office’s practice for collection and processing of correspondence for mailing with the U.S. Postal Service. Per that practice the within correspondence will be deposited with the U.S. Postal Service on the same day shown on this affidavit in a sealed envelope with postage fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in this affidavit. VIA OVERNIGHT DELIVERY (FEDERAL EXPRESS) I caused the attached document(s) to be delivered via overnight delivery by depositing copies with the Federal Express service located at 355 S. Grand Ave., Suite 2450, Los Angeles, CA 90071. The envelope was marked for overnight delivery, with the delivery charged to the sender’s account. VIA PERSONAL SERVICE I caused to be delivered by hand the attached documents to the office(s) of the addressee.
27 28 - 1PROOF OF SERVICE
1 2
I certify and declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on October 12, 2012, at Los Angeles, California.
3 4 5
Sandy Bell
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2PROOF OF SERVICE
JUSTIN H. SANDERS (SBN 211488) [email protected] REGINALD ROBERTS, JR. (SBN 216249) [email protected] SANDERS ROBERTS LLP 355 South Grand Avenue, Suite 2450 Los Angeles, California 90071 Telephone: 213-943-1314 Facsimile: 213-234-4581 Attorneys for Plaintiff and Cross-Defendant TEMPS ON TIME, INC. and KATHERINE KIDD
7 8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF LOS ANGELES
10
NORTH CENTRAL DISTRICT, BURBANK COURTHOUSE
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
TEMPS ON TIME,
) ) Plaintiff, ) ) vs. ) ) ROSE & SHORE, INC., a California ) corporation, RITE-WAY MEAT PACKERS, ) INC., a California corporation, JUDITH ) ROBLEDO, an individual, CARMEN ) NIEBLA, an individual, PARTNERSHIP ) STAFFING, LLC, a California Limited ) Liability Company, and DOES 1 to 10, ) ) Defendants. ) ) JUDITH ROBLEDO, an individual, ) CARMEN NIEBLA, an individual, ) ) Cross-Complainants, ) ) vs. ) ) TEMPS ON TIME, a business organization of ) unknown form, KATHERINE KIDD, an ) individual, and ROES 1 to 10, ) ) Cross-Defendants. ) )
Case No. EC058809 [Assigned to Judge Donna Fields Goldstein, Dept. NC”B”] CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S NOTICE OF DEMURRER AND DEMURRER TO THE CROSS-COMPLAINT OF DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Filed concurrently with Cross-Defendants Temps On Time and Katherine Kidd’s Motion To Strike Cross-Complaint Of CrossComplainants’Judith Robledo and Carmen Niebla, and [Proposed] Order] Date: Time: Dept.
December 19, 2012 8:30 a.m. NC “B”
26 27 28 - 1CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN:
2
PLEASE TAKE NOTICE THAT that on December 19, 2012, at 8:30 a.m. or as soon
3
thereafter as the matter may be heard in Department B of the above-captioned Court, located at
4
300 East Olive Ave. Burbank, CA 91502, Defendant Plaintiff and Cross-Defendants Temps On
5
Time and Katherine Kidd, by and through their counsel of record herein, will demur to the
6
Cross-Complaint of Defendants and Cross-Complainants Judith Robledo and Carmen Niebla
7
(“Cross-Complainants”).
8 9
This Demurrer is based upon this Notice of Demurrer and Demurrer, the attached Memorandum of Points and Authorities in Support Thereof, the pleadings and papers on file
10
herein, and on such other oral and documentary evidence as may be presented at the time of the
11
hearing on this Demurrer.
12 13 14 15 16
Dated: October 12, 2012
SANDERS ROBERTS LLP By: REGINALD ROBERTS, JR. Attorneys for Plaintiff and Cross-Defendant TEMPS ON TIME, INC., and KATHERINE KIDD
17 18 19 20 21 22 23 24 25 26 27 28 - 2CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
TABLE OF CONTENTS
2
TABLE OF AUTHORITIES ........................................................................................................... i
3
MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 3
4
I.
INTRODUCTION ............................................................................................................... 3
5
II.
STANDARD ON DEMURRERS........................................................................................ 4
6
III.
ARGUMENT ....................................................................................................................... 5
7
A.
CROSS-COMPLAINANTS FAIL TO ALLEGE FACTS SUFFICIENT TO SUPPORT THEIR CLAIMS OF UNPAID WAGES AND UNFAIR COMPETITION ..................................................................................................... 5
B.
CROSS-COMPLAINANTS’ CLAIMS FOR DISCRIMINATION AND HARASSMENT IN VIOLATION OF FEHA FAIL AS A MATTER OF LAW .. 6
8 9 10
1.
Cross-Complainants Failed to Exhaust Their Administrative Remedies ... 6
2.
Cross-Complainants’ Second Cause Of Action Fails Because Harassment And Discrimination Under FEHA Are Two Separate And Distinct Claims ..................................................................................................................... 7
3.
Cross-Complainants’ Cause Of Action For Unlawful Harassment Fails Because It Lacks Factual Pleadings Regarding The Conduct Of CrossDefendants. ................................................................................................. 8
4.
Cross-Complainants Do Not Plead Facts Sufficient To Sustain A Cause Of Action For Unlawful Discrimination. ......................................................... 8
11 12 13 14 15 16 17
C.
18 19
IV.
CROSS-COMPLAINANTS FAIL TO ALLEGE SUFFICIENT FACTS AGAINST MS. KIDD TO SUPPORT A CLAIM OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ...................................................... 10
CONCLUSION .................................................................................................................. 12
20 21 22 23 24 25 26 27 28 - iTABLE OF CONTENTS
TABLE OF AUTHORITIES
1 2
FEDERAL CASES
3
Burlington Northern & Santa Fe Ry.Co. v. White, 126 S.Ct. 2405 (2006) ................................................................................................................. 9
4 5
STATE CASES
6
A.F. Arnold & Co. v. Pacific Professional Insurance, Inc., 27 Cal. App. 3d 710 (1972) ...................................................................................................... 11
7 8
Acres v. County of San Diego, 95 Cal. App. 4th 1441 (2002) ................................................................................................... 10
9
Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th 962 (1992) .............................................................................................................. 4, 5
10 11
Blank v. Kirwan, 39 Cal.3d 311 (1985) ................................................................................................................ 11
12
Caldwell v. Paramount Unified School District, 41 Cal. App. 4th 189 (1995) ................................................................................................. 9, 10
13 14
Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148 (1987) .......................................................................................................... 12, 13
15
Cooper v. National Railroad Passenger Cor., 45 Cal. App. 3d 389 (1975) ...................................................................................................... 11
16 17
Donabedian v. Mercury Ins. Co., 116 Cal. App. 4th 968 (2004) ..................................................................................................... 4
18
Feldesman v. McGovern, 44 Cal. App. 2d 566 (1941) ........................................................................................................ 5
19 20
Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718 (1994) ....................................................................................................... 6
21
Melikian v. Truck Ins. Exch., 133 Cal. App. 2d 113 (1955) ...................................................................................................... 5
22 23
Okoli v. Lockheed Technical Operations Co., 36 Cal.App.4th 1607 (1995) ....................................................................................................... 7
24
Reno v. Baird, 18 Cal. 4th 640 (1998) ................................................................................................................ 8
25 26
Roby v. McKesson Corp., 46 Cal. 4th 686 (2009) ............................................................................................................ 7, 8
27
Single v. U.S. Gypsum Code, 140 Cal.App. 4th 1547, 45 Cal. Rptr. 3d 597 (2006).................................................................. 9
28
Wilhelm v. Pray, Price, Williams & Russell, 186 Cal. App. 3d 1324 (1986) .................................................................................................... 5 - iTABLE OF AUTHORITIES
1
STATE STATUTES
2
California Code of Civil Procedure § 430.10 ....................................................................... 4, 5, 11
3
California Code of Civil Procedure § 430.10(e) ................................................................. 1, 2, 4, 9
4
California Code of Civil Procedure § 430.10(f) ..................................................................... 1, 2, 4
5
California Code of Civil Procedure § 430.10(g) ......................................................................... 1, 2
6
California Government Code § 12901 ............................................................................................ 6
7
California Government Code § 12925 ............................................................................................ 7
8
California Government Code § 12940 ............................................................................................ 1
9
California Government Code § 12940(a) ....................................................................................... 8
10
California Government Code § 12960 ........................................................................................ 1, 6
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - iiTABLE OF AUTHORITIES
Demurrer To Complaint
1
Plaintiff Temps On Time (“Plaintiff” or “Cross-Defendant”) and Katherine Kidd (“Ms.
2 3
Kidd)(collectively referenced herein as “Cross-Defendants”) hereby demurrer to the Cross-
4
Complaint of Defendants and Cross-Complainants Judith Robledo and Carmen Niebla (“Cross-
5
Complainants”) on file herein in its entirety on each of the following grounds: Demurrer To First Cause of Action For Failure to Pay Earned Wages
6 7
1.
The First Cause of Action fails to state facts sufficient to state a cause of action
8
against Plaintiff and Cross-Defendant. California Code of Civil Procedure (“CCP”) §§430.10(e);
9
430.10(f); 430.10(g). Demurrer To Second Cause of Action For Racial Discrimination and Harassment
10 11
2.
The Second Cause of Action fails to state facts sufficient to state a cause of action
12
against Plaintiff and Cross-Defendant as the Complaint contains no facts or specific allegations
13
that Cross-Defendant violated Cal. Gov’t Code § 12940. California Code of Civil Procedure
14
(“CCP”) §§430.10(e); 430.10(f); 430.10(g).
15
3.
The Second Cause of action lacks the requisite specificity because Discrimination
16
and harassment are two separate and distinct causes of action and Cross-Complainants fail to
17
plead facts sufficient to support either claim. Cal. Gov’t Code § 12940; CCP §§430.10(e);
18
430.10(f); 430.10(g).
19
4.
The claims and contentions of Cross-Complainants as alleged in the Cross-
20
Complaint are barred by virtue of the fact that Cross-Complainants failed to exhaust
21
administrative remedies available to them. Cal. Gov’t Code § 12960. Demurrer To Third Cause of Action For Intentional Infliction of Emotional Distress
22 23
5.
The Third Cause of Action for Intentional Infliction of Emotional Distress fails to
24
state facts sufficient to constitute a cause of action against Cross-Defendant. CCP §§430.10(e);
25
430.10(f); 430.10(g).
26
///
27
///
28
/// - 1CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
Demurrer to Fourth Cause of Action For Unfair Competition
1 2 3
6.
The Fourth Cause of Action fails to state facts sufficient to state a cause of action
against Cross-Defendant. CCP §430.10(e)).
4 5 6 7 8 9
Dated: October 12, 2012
SANDERS ROBERTS LLP By: REGINALD ROBERTS, JR. Attorneys for Plaintiff and Cross-Defendant TEMPS ON TIME, INC., and KATHERINE KIDD
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES
1 2 3
I.
INTRODUCTION This case involves Defendants and Cross-Complainants Judith Robledo (“Robledo”) and
4
Carmen Niebla (“Niebla”) (collectively referenced herein as “Cross-Complainants”) secretive
5
breach of their contract with Plaintiff Temps On Time and Cross-Defendant Katherine Kidd
6
(“Cross-Defendants”). Unfortunately for Cross-Complainants, their unlawful acts were
7
uncovered. Now Cross-Complainants attempt to avoid the consequences of their acts and divert
8
attention from their wrongdoing by alleging that they we subjected to harassment and
9
discrimination by Cross-Defendants.
10
From approximately November 2009 to 2012, Plaintiff and Cross-Defendant Temps On
11
Time employed Defendant Robledo as a Sales and Recruiting associate. From November 2010
12
to 2012, Plaintiff and Cross-Defendant employed Defendant Niebla as an Account Management
13
and Recruiting Associate. Temps On Time’s company policy forbade employees to operate
14
competitive businesses or to solicit Plaintiff’s clientele. In or about the beginning of 2012,
15
Robledo and Niebla secretly started a new company, defendant Partnership Staffing Solutions.
16
Like Temps On Time, and not by coincidence, Partnership Staffing Solutions provides temporary
17
or temporary-to-permanent employees.
18
In or about 2012, Robledo and Niebla contacted Defendants Rose & Shore, Inc. (“Rose &
19
Shore”) and Rite-Way Meat Packers, Inc. (“Rite-Way”) and encouraged them to breach their
20
Contract with Plaintiff. Further, Robledo and Niebla encouraged Defendants to hire the very
21
same workers provided to Defendants by Plaintiff, but to hire those employees using the services
22
of Defendant Partnership Staffing Solutions, rather than Plaintiff.
23
In or about May 2012, Rose & Shore and Rite-Way terminated the Contract with
24
Plaintiff. At or about the same time, Rose & Shore and Rite-Way began employing the very
25
same workers provided by Temps On Time purportedly through Cross-Complainants in violation
26
of the terms of the Contract between Cross-Complainants and Temps On Time.
27 28
Despite their misconduct, Cross-Complainants now run to the court steps and file the Cross-Complaint that is the subject of this Demurrer without taking even the first steps to - 3CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
establish valid claims for discrimination or harassment against Cross-Defendants. The Cross-
2
Complaint is nothing more than an ill-conceived diversion. No discrimination or harassment
3
occurred and Cross-Complainants did not exhaust their administrative remedies before filing the
4
cross-claim. Accordingly, the claims fail as a matter of law.
5
The Cross-Complaint in this matter lists four causes of action against Cross-Defendants:
6
(1) Failure to Pay Earned Wages; (2) Racial Discrimination and Harassment; (3) Intentional
7
Infliction of Emotional Distress; and (4) Unfair Competition. The Cross-Complaint in this case
8
fails to state facts that Cross-Complainants filed claims with the Department of Fair Employment
9
and Housing (“DFEH”), Equal Employment Opportunity Commission (“EEOC”) or with the
10
Labor Board. Indeed, Cross-Complainants did not obtain a Right to Sue Notice, which is a
11
procedural prerequisite to filing a civil complaint and bars Cross-Complainant’s claims.
12
II.
STANDARD ON DEMURRERS
13
A demurrer tests the legal sufficiency of a complaint. Donabedian v. Mercury Ins. Co.,
14
116 Cal. App. 4th 968, 994 (2004). A complaint or cause of action is subject to demurrer when
15
it fails to state facts sufficient to constitute a cause of action or is uncertain, ambiguous, or
16
unintelligible. Code of Civil Procedure (“CCP”) §§ 430.10(e) and (f). Code of Civil Procedure
17
§ 430.10 states, in pertinent part:
18
20
The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: ...
21
(e)
22
(f)
19
The pleading does not state facts sufficient to constitute a cause of action. The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.
23 24 25
CCP § 430.10; see also, Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th 962, 966-967 (1992). In ruling on a demurrer, “the presumptions are always against the pleader, and all doubts
26
are to be resolved against him, for it is to be presumed that he stated his case as favorably as
27
possible to himself.” Melikian v. Truck Ins. Exch., 133 Cal. App. 2d 113, 115 (1955), citing
28
Feldesman v. McGovern, 44 Cal. App. 2d 566, 571 (1941). Leave to amend is “properly denied - 4CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
when the facts are not in dispute and the nature of the claim is clear, but there is no liability
2
under substantive law.” Wilhelm v. Pray, Price, Williams & Russell, 186 Cal. App. 3d 1324,
3
1330 (1986).
4
Cross-Complainants stated their case as favorably as possible against Temps On Time
5
and Ms. Kidd and did not set forth a viable claim against either. Cross-Complainants cannot
6
cure the fatal flaws in their pleading through amendment. Accordingly, the Court must sustain
7
this Demurrer to the Cross-Complaint without leave to amend.
8
III.
ARGUMENT A.
9
CROSS-COMPLAINANTS FAIL TO ALLEGE FACTS SUFFICIENT TO
10
SUPPORT THEIR CLAIMS OF UNPAID WAGES AND UNFAIR
11
COMPETITION
12
Cross-Complainants fail to plead any facts regarding amounts of wages allegedly earned
13
but not paid by Temps On Time. Cross-Complainants do not specify what wages were allegedly
14
earned individually by Robledo or Niebla that Temps On Time failed to pay upon Cross-
15
Complainants’ termination of their employment relationship with Temps On Time. Such vague
16
claims are subject to demurrer. CCP § 430.10; see also, Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th
17
962, 966-967 (1992).
18
Cross-Complainants fail to plead facts to establish a viable claim against Temps On Time
19
for failure to pay wages and even plead facts that establish that the claim is not valid. Cross-
20
Complainants allege that Temps On Time “denied the amount or validity of wages due to Cross-
21
Complainants” falsely. (Cross-Complaint ¶23:11.) They allege only that “Cross-Defendants
22
failed and refused to pay Cross-Complainants all wages earned as required by the Labor Code
23
and other applicable laws and regulations.” (Cross-Complaint ¶ 22.) This limited pleading
24
amounts to nothing more than a legal conclusion. Cross-Complainants offer no specific facts
25
regarding amounts of wages earned individually by Niebla or Robledo that allegedly remain
26
unpaid.
27 28
The Fourth Cause of Action for Unfair Competition depends entirely on the claim that Temps On Time did not pay all wages due and owing to Cross-Complainants upon their - 5CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
departure from the company. Based on the facts and argument set forth above, that claim fails as
2
a matter of law. Accordingly, the Unfair Competition allegations fail also. Cross-Complainants
3
offer no additional factual substance to support their Fourth Cause of Action and allege again
4
legal conclusions not sufficient to pass even basic pleading standards.
5 6 7
Based on the foregoing, Cross-Defendants demurrer to the First and Fourth Causes of Action as alleged in the Cross-Complaint. B.
CROSS-COMPLAINANTS’ CLAIMS FOR DISCRIMINATION AND
8
HARASSMENT IN VIOLATION OF FEHA FAIL AS A MATTER OF
9
LAW
10 11
1.
Cross-Complainants Failed to Exhaust Their Administrative Remedies
Cross-Complainants’ claims against Temps On Time fail because they rushed to the
12
courthouse steps with baseless claims of discrimination and harassment without first exhausting
13
their administrative remedies.
14
In Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718 (1994), the court
15
explained that in the context of the FEHA, exhaustion of the administrative remedy is a
16
jurisdictional prerequisite to resort to the courts: “Under California law ‘an employee must
17
exhaust the ... administrative remedy’ provided by the Fair Employment and Housing Act, by
18
filing an administrative complaint with the [DFEH] (Gov’t. Code, § 12960; cf. id. §§ 12901,
19
12925, subd. (b)) and obtaining DFEH’s notice of right to sue (id. § 12965, subd. (b)), ‘before
20
bringing suit on a cause of action under the act or seeking the relief provided therein....” Okoli v.
21
Lockheed Technical Operations Co., 36 Cal.App.4th 1607, 1613 (1995).
22
Before filing suit on a statutory employment discrimination claim under state law, the
23
aggrieved employees must have exhausted their administrative remedies. The employee must
24
have filed a timely and sufficient charge with the appropriate administrative agency and obtained
25
a “right-to-sue” letter from that agency. Failure to obtain a right-to-sue letter from the DFEH
26
precludes any civil action by an employee based on FEHA. Id.
27 28
Cross-Complainants herein do not allege that they satisfied the necessary prerequisites to filing their claims for harassment and discrimination against Cross-Defendants. This failure by - 6CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
Cross-Complainants proves fatal to their harassment and discrimination claims.1
2
2.
Cross-Complainants’ Second Cause Of Action Fails Because Harassment
3
And Discrimination Under FEHA Are Two Separate And Distinct Claims
4
Cross-Complainants lump two different claims together in their Second Cause of Action
5
that require separate pleading of facts to satisfy the distinct legal standards that apply to each
6
claim. “In the FEHA, the terms “discriminate” and “harass” appear in separate provisions and
7
define distinct wrongs.” Roby v. McKesson Corp., 46 Cal. 4th 686, 705 (2009).
8
Because the FEHA treats harassment in a separate provision, courts do not treat the
9
FEHA’s prohibition against discrimination broadly to include harassment. California case law
10
“makes clear that the FEHA’s discrimination provision addresses only explicit changes in the
11
“terms, conditions, or privileges of employment”; that is, changes involving some official action
12
taken by the employer. (emphasis in original) Reno v. Baird, 18 Cal. 4th 640, 645-647 (1998);
13
Govt. Code § 12940(a). “In the case of an institutional or corporate employer, the institution or
14
corporation itself must have taken some official action with respect to the employee, such as
15
hiring, firing, failing to promote, adverse job assignment, significant change in compensation or
16
benefits, or official disciplinary action.” Roby v. McKesson Corp., 46 Cal. 4th 686, 706 (2009).
17
“By contrast, harassment often does not involve any official exercise of delegated power on
18
behalf of the employer.” Id.
19
Cross-Complainants fail to allege any specific facts that demonstrate that Temps On
20
Time engaged in any official action that resulted in a material change in the employment status
21
of Cross-Complainants. Furthermore, Cross-Complainants do not distinguish the harassment and
22
discrimination causes of actions as required by applicable legal standards. See Roby v.
23
McKesson Corp., 46 Cal. 4th 686, 705 (2009). Temps On Time cannot be held liable for
24
harassment and Cross-Complainants claims fail for multiple reasons set forth above.
25 26
Accordingly, Cross-Defendants urge this Court respectfully to sustain this Demurrer without leave to amend. Cross-Complainants cannot cure the defects in their Cross-Complaint
27 1
28
Cross-Complainants’ base their Third Cause of Action for Intentional Infliction of emotional Distress entirely on their claims of harassment and discrimination. This cause of action fails as a matter of law along with the Second Cause of Action. - 7CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
through amendment. Specifically, their failure to exhaust their administrative remedies before
2
filing the Cross-Complaint proves fatal to their harassment and discrimination claims.
3
3.
Cross-Complainants’ Cause Of Action For Unlawful Harassment Fails
4
Because It Lacks Factual Pleadings Regarding The Conduct Of Cross-
5
Defendants.
6
Cross-Complainants’ claim of Harassment lacks factual allegations regarding the alleged
7
conduct of Ms. Kidd. (See Cross-Complaint ¶¶ 25-28.) Indeed, Cross-Complainants do not
8
name Ms. Kidd as a Cross-Defendant in this cause of action and do not allege a single fact
9
concerning Ms. Kidd related to this claim.2 Furthermore, Cross-Complainants do not plead any
10
facts concerning actions in the workplace that would amount to unlawful harassment regardless
11
of who engaged in the conduct. Such pleadings are subject to demurrer. C.C.P. § 430.10(e).
12
To show a hostile or offensive working environment that constitutes harassment in
13
violation of the Fair Employment & Housing Act (“FEHA”), Cross-Complainants must prove
14
that Cross-Defendants’ conduct would have interfered with reasonable employees’ work
15
performance and would have seriously affected the psychological wellbeing of a reasonable
16
employee and that Cross-Complainants were actually offended. Single v. U.S. Gypsum Code,
17
140 Cal.App. 4th 1547, 1557, 45 Cal. Rptr. 3d 597, 603 (2006). Cross-Complainants fail to
18
allege a single fact against Cross-Defendant, or to satisfy any element of a cause of action for
19
harassment. Based on the foregoing, Cross-Defendants’ Demurrer to Cross-Complainants’ cause
20
of action for unlawful harassment should be sustained without leave to amend.
21
4.
22
Cross-Complainants Do Not Plead Facts Sufficient To Sustain A Cause Of Action For Unlawful Discrimination.
23
Cross-Complainants’ Second Cause of Action for Unlawful Discrimination is not
24
supported by sufficient factual pleadings. It is well established that an essential element of
25
pleading a prima facie case of race discrimination under FEHA is that Plaintiff was subjected to
26
adverse employment action. Caldwell v. Paramount Unified School District, 41 Cal. App. 4th
27 28
2
Cross-Complainants cannot plead a viable claim of harassment under FEHA against Temps On Time. Roby v. McKesson Corp., 46 Cal. 4th 686, 706 (2009). - 8CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
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189, 200 (1995). Plaintiff must show that “a reasonable employee would have found the
2
challenged action materially adverse.” Burlington Northern & Santa Fe Ry.Co. v. White, 126
3
S.Ct. 2405 (2006).
4
In the case at bar, Cross-Complainants’ allegations that Ms. Kidd made a few random
5
comments about their attire and about persons of Mexican descent believing that they are entitled
6
to certain rights and work opportunities cannot support a claim for discrimination. (Cross-
7
Complaint ¶ 19.) These limited statements, even if true, did not constitute “substantial adverse
8
change in the terms and conditions of [Cross-Complainants’] employment” as required pursuant
9
to Acres v. County of San Diego, 95 Cal. App. 4th 1441, 1455 (2002).
10
The cause of action for discrimination based on race requires that Cross-Complainants
11
plead specific facts that Cross-Defendant engaged in discriminatory conduct which was
12
motivated by Cross-Complainants’ membership in a protected class. Indeed, pursuant to
13
Caldwell v. Paramount Unified School District, 41 Cal. App. 4th 189, 200 (1995), Cross-
14
Complainants must establish that (1) they are members of a protected class; (2) they are
15
performing in a satisfactory manner; (3) they were subjected to an adverse employment decision;
16
(4) they were replaced by an employee outside of their protected class with equal or inferior
17
qualifications.
18
The Cross-Complaint lacks factual pleadings to support any of the four prima facie
19
elements of Cross-Complainants’ claim for Unlawful Discrimination. Even the most liberal
20
interpretation of the pleadings does not reveal that Cross-Complainants are members of a
21
protected class.3 However, Cross-Complainants do not contend that they were performing their
22
jobs in a satisfactory manner, that they were subjected to an adverse employment decisions, or
23
that they were replaced by someone outside of their protected class with equal or inferior
24
qualifications. In fact, Cross-Complainants left voluntarily and tried to take clients of Temps On
25
Time, and use its employees for their own new company, all in violation of their contractual
26
agreements with Temps On Time.
27 3
28
While Cross-Complainants could cure this defect through amendment, they cannot satisfy the remaining three elements of their claim for discrimination regardless of the number of opportunities given to modify their complaint. - 9CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
Cross-Complainants’ broad assertion that Cross-Defendants made comments about their
2
attire or about persons of Mexican descent did not even amount to a trivial slight based on the
3
standard set forth in Acres v. County of San Diego, 95 Cal. App. 4th 1441, 1455 (2002).
4
Based on the foregoing, Cross-Complainants fail to plead facts sufficient to sustain their
5
Second Cause of Action for Unlawful Discrimination against Cross-Defendants and this
6
Demurrer should be sustained without leave to amend. C.
7
CROSS-COMPLAINANTS FAIL TO ALLEGE SUFFICIENT FACTS
8
AGAINST MS. KIDD TO SUPPORT A CLAIM OF INTENTIONAL
9
INFLICTION OF EMOTIONAL DISTRESS
10 11
Cal. Code Civ. Proc. § 430.010 states that a party against whom a complaint has been filed may object demurrer to the pleading on any one or more of the following grounds:
12
(d) There is a defect or misjoinder of parties.
13
(e) The pleading does not state facts sufficient to constitute a cause of action.
14
(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes
15
ambiguous and unintelligible. Cal. Code Civ. Proc. §430.010.
16
In reviewing the sufficiency of a complaint against a demurrer, the court treats the
17
demurrer as admitting all material facts properly pled, but not contentions, deductions, or
18
conclusions of fact or law. Blank v. Kirwan, 39 Cal.3d 311, 318 (1985). Where a complaint fails
19
to allege sufficient facts to establish a cause of action, a general demurrer is proper. Cooper v.
20
National Railroad Passenger Cor., 45 Cal. App. 3d 389, 393 (1975). In addition, a demurrer
21
may lie if a cause of action is uncertain in that it fails to plead certain material facts to properly
22
state a cause of action. A.F. Arnold & Co. v. Pacific Professional Insurance, Inc., 27 Cal. App.
23
3d 710, 718 (1972).
24
Cross-Complainants fail to allege sufficient facts against Ms. Kidd, and, therefore, the
25
Court must sustain this demurrer. The Cross-Complaint refers to Ms. Kidd in only two
26
paragraphs which do not provide facts sufficient to sustain any claim against her or Temps On
27
Time. (See Cross-Complaint ¶¶ 9 and 19.)4 Surely, Cross-Complainants do not plead any facts
28 4
Ms. Kidd is only listed in the caption of the Third Cause of Action for Intentional Infliction of Emotional - 10CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
to support their legal conclusion that Ms. Kidd intentionally inflicted emotional distress on them.
2
Cross-Complainants make baseless claims, that amount to little more than legal conclusions,
3
against Ms. Kidd, in direct contravention of pleading standards. Surely Cross-Complainants do
4
not allege facts or actions by Ms. Kidd that amount to the intentional infliction of extreme
5
emotional distress.
6
Cross-Complainants’ trivial complaints of harassment and discrimination, barred by their
7
failure to exhaust their administrative remedies, do not provide a valid basis for their intentional
8
infliction of emotional distress (“IIED”) claim against Ms. Kidd. In order to prove their claims
9
of IIED, Cross-Complainants must offer admissible evidence that: (1) Ms. Kidd’s conduct was
10
outrageous; (2) Ms. Ms. Kidd intended to cause Cross-Complainants emotional distress;
11
(3) Cross-Complainants suffered severe emotional distress; and (4) Ms. Kidd’s conduct was a
12
substantial factor in causing Plaintiff’s severe emotional distress. CACI 1600.
13 14
An essential element of an IIED claim is a pleading of outrageous conduct beyond the bounds of human decency. Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148, 155 (1987).
15
Managing personnel is not outrageous conduct beyond the bounds of human decency, but
16
rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel
17
management activity is insufficient to support a claim of intentional infliction of emotional
18
distress, even if improper motivation is alleged. If personnel management decisions are
19
improperly motivated, the remedy is a suit against the employer for discrimination. Janken v.
20
GM Hughes Electronics, 46 Cal.App.4th 55, 80 (1996).
21
Both state and federal courts have long followed this analysis of IIED claims in the
22
context of a discrimination or wrongful termination lawsuit. In Buscemi v. McDonnell Douglas
23
Corp., 736 F.2d 1348 (1984), plaintiff alleged “that he was fired on a pretext, and he assert[ed]
24
that it is ‘apparent that [his] emotional distress resulted from the callous and insensitive manner
25
of his termination.’” The court found that the allegation “is no more than a claim that Buscemi
26 27 28
Distress and hereby demurrers to that cause of action as the only claim plead against her. To the extent that Cross-Complainants contend that any other cause of action is plead against Ms. Kidd, she demurs to those claims as well based on Cross-Complainants’ failure to plead facts against her to support any cause of action. - 11CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
was fired without good cause and that as a result he suffered emotional distress. These
2
allegations do not support a tort claim under state law for intentional infliction of emotional
3
distress.” Id. at. 1352.
4
Here, Cross-Complainants’ IIED claim fail because: (1) they cannot establish that Ms.
5
Kidd’s conduct was outrageous; or (2) that the cause of action is based on anything more than
6
their claims that Ms. Kidd allegedly commented that Mexicans think they are entitled to the same
7
benefits as citizens or that Mexicans come to the United States and take jobs. Surely, claims that
8
Ms. Kidd told Robledo that she looked like she was dressed for a Cinco de Mayo parade do not
9
amount to extreme or outrageous conduct based on the standard set by this Court. See, Cole,
10
supra, 43 Cal.3d at 155. Cross-Complainants also failed to establish that they suffered severe
11
emotional distress as a result of the alleged conduct of Ms. Kidd.
12 13 14 15
Accordingly, Cross-Complainants’ IIED claims fail. IV.
CONCLUSION Based on the foregoing, Cross-Defendants Temps On Time and Ms. Kidd urge the Court
respectfully to sustain this Demurrer to the Cross-Complaint without leave to amend.
16 17 18 19 20 21
Dated: October 12, 2012
SANDERS ROBERTS LLP By: REGINALD ROBERTS, JR. Attorneys for Plaintiff and Cross-Defendant TEMPS ON TIME, INC., and KATHERINE KIDD
22 23 24 25 26 27 28 - 12CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S DEMURRER TO DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA’S CROSS-COMPLAINT
1
PROOF OF SERVICE
2
I, Sandy Bell, declare as follows: I am a citizen of the United States, over 18 years of age and am not a party to the within action. My place of employment and business address is 355 S. Grand Ave., Suite 2450, Los Angeles, CA 90071, which is located in the County of Los Angeles where the service took place.
3 4
On October 12, 2012, I served a copy of the following entitled document(s): 5
7
CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S NOTICE OF DEMURRER AND DEMURRER TO THE CROSS-COMPLAINT OF DEFENDANTS AND CROSS-COMPLAINANTS ROBLEDO AND NIEBLA; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
8
on the following interested party(s) in said cause:
6
9 10 11 12 13 14
Alan G Novodor, Esq. LAW OFFICES OF ALAN G. NOVODOR 11835 W. Olympic Blvd, Suite 1125 E Los Angeles, CA 90064-5001 PH: (310) 479-9387/FAX (310) 479-9388 Email: [email protected]
Attorneys for Defendants ROSE & SHORE, INC; RITE-WAY MEAT PACKERS, INC.
Gene J. Goldsman, Esq. LAW OFFICES OF GENE J. GOLDSMAN 501 Civic Center Drive West Santa Ana, California 92701 PH (714) 541-3333 /FAX (714) 541-0456
Attorney for Defendants PARTNERSHIP STAFFING, LLC, JUDITH ROBLEDO and CARMEN NIEBLA
15 16 17 18 19 20 21 22 23 24 25 26
VIA FACSIMILE I caused such document to be transmitted via facsimile to the addressee(s) from the facsimile machine of Sanders Roberts LLP whose fax number is (213) 234-4581 . No error was reported by the machine and pursuant to Rule 2008(e)(3), I caused the machine to print a record of the transmission. VIA ELECTRONIC MAIL I caused the documents to be sent to all interested parties in this action as set forth above. I did not receive, within a reasonable time after transmission, any electronic message or other indication that the transmission(s) were unsuccessful. VIA MAIL I am readily familiar with this office’s practice for collection and processing of correspondence for mailing with the U.S. Postal Service. Per that practice the within correspondence will be deposited with the U.S. Postal Service on the same day shown on this affidavit in a sealed envelope with postage fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in this affidavit. VIA OVERNIGHT DELIVERY (FEDERAL EXPRESS) I caused the attached document(s) to be delivered via overnight delivery by depositing copies with the Federal Express service located at 355 S. Grand Ave., Suite 2450, Los Angeles, CA 90071. The envelope was marked for overnight delivery, with the delivery charged to the sender’s account. VIA PERSONAL SERVICE I caused to be delivered by hand the attached documents to the office(s) of the addressee.
27 28 - 1PROOF OF SERVICE
1 2
I certify and declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on October 12, 2012, at Los Angeles, California.
3 4 5
Sandy Bell
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2PROOF OF SERVICE
