Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)
E. DEFENDANTS’ DEMURRER MUST FAIL BECAUSE PLAINTIFFS’ HAVE SUFFICIENTLY STATED A CAUSE OF ACTION FOR VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200 ET SEQ.
PLAINTIFFS’ COMPLAINT SUFFICIENTLY ALLEGES AN ONGOING VIOLATION.
To sufficiently plead a cause of action under this statute, Plaintiff must plead with specificity 1) an act or practice, 2) that is unfair or unlawful. See e.g., Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. 20 Cal 4th at 187; see also Motors, Inc. v Times-Mirror Co., 102 Cal. App. 3d at 740 (ruling that rarely, if ever… should an unfair UCL claim be decided by demurrer ). The statute defines unfair competition broadly as any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1.
The Court has broad discretion to determine what business acts are considered unfair under Bus. & Prof. C. § 17200. See e.g., Motors, Inc. v. Times Mirror Co. (1980) 102 CA3d 735, 740. Single acts are actionable under Bus. & Prof. C. § 17200. Klein v. Earth Elements. Inc. (1997) 59 Cal. App.4th 965, 969, fn. 3 (stating that the plain meaning of the [1992] amendment, as enacted, is that the [Unfair Competition Act] now covers single acts of misconduct. ); see also Podolsky v. First Healthcare Corp., Cal. App. 4th at 653-54, 58 Cal. Rptr.2d at 102; Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 C4th 553, 570. Under Bus. & Prof. C. § 17204, any board, officer, person, corporation or association or… any person who has suffered injury in fact and has lost money or property as a result of such unfair competition can be a Plaintiff. Under Bus. & Prof. C. § 17201, any person or organization be a Defendant.
A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him. Khoury v. Maly’s of Calif.. Inc. (1993) 14 Cal.APp.4th 612, 616. Demurrers for uncertainty will almost certainly be overruled where the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable by invoking discovery procedures are not dispositive of one or more causes of action. Id. Furthermore, a demurrer made on the ground of uncertainty must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears.
Here, Plaintiffs have pled in detail how Defendants engaged in unfair competition in violation of California Business and Professions Code § 17200 et. seq., by maintaining a workplace rife with harassment, discrimination and retaliation on the basis of sex and wage and hour violations. Plaintiffs’ have pled specific examples of Defendants wrongful acts. Defendants’ wrongful acts were not limited to Plaintiff. Defendants have maintained a business where such harassment and discrimination is a regular course of conduct. There is no doubt that this wrongful conduct affects the public at large. Gina Smith qualifies as a Plaintiff under Bus. & Prof. C. § 17204, and Defendants qualify as a Defendants under Bus. & Prof. C. § 17201. As pled, Defendants’ conduct more than constitutes an ongoing violation of unfair business practices as defined under Bus. & Prof. C. § 17200. Thus, Defendants’ Demurrer must be denied on these grounds. (See Part 6 of 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.