Articles Posted in Sexual Harassment

(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.)

Several California cases strongly encourage the Court to exercise its discretion liberally to permit amendments of the pleadings. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939. In fact, the judicial policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified:

[w]hile a Motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court…it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may be properly present his case… If the motion to amend is timely made and the granting of the Motion will not prejudice the opposing party, it is error to refuse permission to amend; and, where the refusal also results in a party being deprived of their right to assert a meritorious defense, it is not only error but an abuse of discretion (emphasis added). Calif. Cas. Gen. Ins. Co. v. Superior Court. (1985) 173 Cal.App.3d 275, 278; Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.

Moreover, under California Code of Civil Procedure § 426.50, leave to amend the pleading to assert a new cause of action must be given if the party who failed to plead the cause of action has acted in good faith. California Code of Civil Procedure § 426.50 specifically provides that it should be liberally construed to avoid forfeiture of causes of action.

In Hirsa v. Superior Court, the court expressly held that because trial courts are vested with the discretion to allow amendments to pleadings in furtherance of justice, they are to liberally permit such amendments, at any stage of the proceedings. (1981) 118 Cal.App.3d 486. This well-established California policy rests on the fundamental policy that cases should be decided on their merits. (Id.)

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(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.)

PLAINTIFFS MAY RECOVER DISGORGEMENT OF PROFITS OR RESTITUTION UNDER BUSINESS AND PROFESSIONS CODE § 17200

Injunctions and restitutionary relief (disgorgement of money or property unlawfully obtained) are available under the Unfair Competition Law. See Herr v. Nestle U.S.A., Inc., supra, 109 CA4th at 789, 135 CR2d at 485, fn 5 – employer engaging in age discrimination in violation of FEHA was subject to prohibitory injunction under Unfair Competition Law. Therefore, Plaintiff is allowed to recover disgorgement of profits or restitution under Business and Professions Code § 17200 since their causes of action are brought under FEHA.

D. IN THE ALTERNATIVE, PLAINTIFF REQUESTS THIS COURT GRANT LEAVE TO FILE ITS FIRST AMENDED COMPLAINT.

If Plaintiffs Complaint is deficient in any way, several California Code of Civil Procedure provisions both permit and strongly encourage the Court to grant Plaintiffs leave to amend their Complaint. Under California Code of Civil Procedure § 473, the court may in furtherance of justice, and on any terms as may be proper, allow any party to amend any pleading or proceeding. Under California Code of Civil Procedure § 576, any judge at any time before or after commencement of a trial, in furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading…. Under California Code of Civil Procedure § 426.50:
[A]ny party who fails to plead a cause of action subject to the requirements of this article whether through oversight, inadvertence, mistake, neglect or other cause, may apply to the court for leave to amend his pleadings…to assert such cause at any time during the course of the action.

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(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.

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(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.)

PLAINTIFF’S SEVENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS NOT BARRED

In some exceptional circumstances a separate civil action may lie where the employee’s injury results from employer conduct that is outside the normal risk of employment. The Workers’ Compensation Act does not preempt such actions. Charles J. Vacanti, M.D., Inc. v. State Comp., Ins. Fund (2001) 24 Cal.4th 800, 819-820. Sexual harassment in the workplace is not a normal incident of employment. Therefore, a claim for damages based on sexual harassment is not preempted by the Worker’s Compensation Act. Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347; Murray v. Oceanside Unified School Dist., (2000) 79 Cal.App.4th 1338, 1363.

Similarly, discrimination on the basis of race, religion, age or gender is not a normal incident of employment, and therefore workers’ compensation is not the exclusive remedy for injury from such discriminatory conduct. Jones v. Los Angeles, Comm. College District (1988) 198 Cal.App.3d 794, 802 (holding that a claim for emotional and psychological damages is not barred where distress was allegedly caused by employer’s illegal discriminatory practices.) Discrimination in employment is not a normal incident of employment. A claim for damages under the Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq.) is not preempted by the workers’ compensation act. Accardi v. Superior Court, 17 Cal. App. 4th 341, (1993). Here Plaintiff is the victim of sex discrimination. See Accardi at p. 347.

The Legislature …did not intend that an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices. Id. at 353. Thus, a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer’s illegal discriminatory practices. Id. … [S]ection 132a does not provide an exclusive remedy and does not preclude an employee from pursuing FEHA and common law wrongful discharge remedies. Moorpark v. Sup. Ct., 18 Cal. 4th 1143, 1998.

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(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.)

C. DEFENDANTS’ DEMURRER FAILS TO CITE TO THE CORRECT LAW
PLAINTIFF HAS PLED A PRIMA FACIE CLAIM FOR RETALIATION AGAINST THE INDIVIDUAL DEFENDANT AND THE MANAGERIAL PRIVILEGE DOES NOT BAR HER CLAIM

Defendants have demurred to Plaintiffs Third Cause for Retaliation against Defendant Mr. Jones without any legal or factual basis. The law on retaliation is clear. Contrary to Defendants’ assertions, an employee (supervisor) the Fair Employment and Housing Act makes it unlawful for “any employer or person to retaliate against an employee for protected activities.” Government Code §12940(h). Supervisors are subject to personal liability for retaliation under FEHA. Page v. Superior Court, (1995) 31 Cal.App.4th 1206, 1211-1212.

Defendants’ analogy to Janken v. Hughes (1996) 46 Cal.App.4th 55 and Reno v. Baird, (l998) 18 Cal.4th 640, indicating that the actions taken against Plaintiff were common personnel management actions, is undeniably a misstatement of law. In Janken, the court clearly distinguished between a supervisor’s actions that are commonly necessary personnel management actions and allegation of conduct hat violation FEHA. Janken at 62-63. The Janken court concluded that INDIVIDUAL supervisory employees should be held personally liable for conduct which violates FEHA unless their conduct is based solely on managerial decisions that are inherently necessary to perform their supervisory functions. Discussing the discrimination between harassment and discrimination, the Janken court stated, we conclude that the legislature’s differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor’s job performance as contrasted with business or personnel management decisions. Id. The court in Reno confirms Janken’s conclusion that the imposition of indivdual liability is appropriate. Reno at 645. Therefore, Defendant Mr. Jones is individually liable.

Further, individual defendants can be liable for retaliation. Wintaro v. Toshiba America Electronics Components, Inc., (9th Cir. 2001) 274 F3d 1276, 1288. Supervisors are persons and potentially liable for retaliation. Wintaro v. Toshiba America Electronics Components, Inc., (9th Cir. 2001) 274 F3d 1276, 1288. See also Liberto-Blanck v. City of Arroyo Grande (CD CA1999) 33 F. Supp.2d 1241, 1244;; Walrath v. Sprinkel (2002) 99 Cal.App.1237, 1242,

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(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.)

LEGAL ARGUMENT
A. LEGAL STANDARD FOR DEMURRER

The function of a demurrer is to test the sufficiency of a Plaintiffs pleadings by raising questions of law, such that the Plaintiff must show that the Complaint alleges facts sufficient to establish every element of each cause of action. Title Ins. Co. v. Commercial Bank-California (1994) 27 Cal.App.4th 800, 807. The Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of law. Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.

The Court also considers matters that are judicially noticeable under C.C.P. § 430.30(a). The Court must sustain a demurrer only where the Complaint itself is defective, incomplete, or discloses some defense that would bar recovery. C.C.P. §§ 430.10, 430.30, 430.50; Harboring Villas Homeowners Ass’n. v. Superior Court (1998) 63 Cal.App.4th 426, 429.

B. FOR THE PURPOSE OF A DEMURRER. ALL MATERIAL ALLEGATIONS OF PLAINTIFF’S COMPLAINT MUST BE ACCEPTED AS TRUE
The only issue that can be raised by a demurrer is whether the facts pled on the face of the Complaint state a valid cause of action, not whether the allegations are true or whether they can be proven at trial. Serrano v. Priest (1971) 5 Cal.3d 584, 591. Plaintiff’s allegations in the pleadings must be liberally construed with a view to substantial justice between the parties. National Auto & Cas. Ins. Co. v. Payne (1968) 261 Cal.App.2d 403, 408; C.C.P. § 452. This rule applies no matter how unlikely the allegations may be. Dell E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App.3d 593, 604; Meyer v. Graphic Arts Int’l. Union Local No. 63-A, 63-B (1979) 88 Cal.App.3d 176.

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(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.)

Plaintiff Gina Smith’s Opposition to Defendants’ Demurrer to Complaint. This Opposition is based on the accompanying Memorandum of Points and Authorities, the pleadings and records on file herein and upon such other documentary and oral evidence as may be presented at the hearing.

MEMORANDUM OF POINTS & AUTHORITIES
INTRODUCTION

Plaintiff Gina Smith ( Plaintiff ) was employed by Defendants as a Sales Associate at a Sacramento company. Plaintiff worked for Defendants from August 2005 to March 2007. While working for Defendants, Defendants subjected Plaintiff to a hostile work environment based on sex. Defendant Mr. Jones regularly made unwelcome, inappropriate comments and or/suggestive non-verbal signals to Plaintiff. Examples of this include but are not limited to the following:

a. telling PLAINTIFF that she was hired because she was good looking;
b. telling PLAINTIFF to go outside the store and bend over in order to attract more customers;
c. threatening to spank PLAINTIFF;
d. telling PLAINTIFF that he refused to hire male employees;
e. constantly cursing at PLAINTIFF;
f. constantly staring at PLAINTIFF’S breasts;
g. telling PLAINTIFF that her boobs are nice and firm ;
h. asking PLAINTIFF to show more cleavage at work by lowering her shirts;
I. asking PLAINTIFF how her breasts looked;
j. commenting on how nice PLAINTIFF’S manicures and pedicures were;
k. hugging and kissing PLAINTIFF;
l. constantly rubbing PLAINTIFF’S shoulders.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

FOURTH CAUSE OF ACTION
(Wrongful Termination in Violation of Public Policy, by All PLAINTIFFS Against All Defendants)

48. PLAINTIFFS repeat and reallege the allegations contained in paragraphs 1 through 47, and incorporate the same by reference as though fully set forth herein.

49. On or around September, 1998, PLAINTIFFS were terminated from their employment as a result of defendants’ retaliation in response to PLAINTIFFS having protested unlawful sexual harassment and sex discrimination in the workplace.

50. It is the public policy of the State of California, as expressed in Article I, Section 8 of its Constitution and in the California Fair Employment and Housing Act, federal statutory law and in common law that individuals shall not be harassed or discriminated against in their employment on the basis of sex or religion.

51. As a direct and proximate result of PLAINTIFFS’ termination by DEFENDANTS, and each of them, in violation of the public policy of the State of California, PLAINTIFFS have suffered and will continue to suffer pain and suffering, and extreme and severe mental anguish and emotional distress; PLAINTIFFS have suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. PLAINTIFFS are thereby entitled to general and compensatory damages in amounts to be proven at trial.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

THIRD CAUSE OF ACTION

(Unlawful Retaliation in Violation of Gov’t. Code §12900 et seq. By All PLAINTIFFS Against All Defendants)

39. PLAINTIFFS repeat and reallege the allegations contained in paragraphs 1 through 38 and incorporates the same by reference as though fully set forth herein.

40. DEFENDANTS, and each of them, illegally retaliated against PLAINTIFFS for objecting to and protesting the sexual harassment and discrimination perpetrated by DEFENDANTS in violation of the California Fair Employment & Housing Act, Gov’t. Code §12900 et seq.

41. PLAINTIFFS are informed and believe and based thereon allege that Defendants, and each of them, cannot articulate any legitimate, business-related reason or bona fide occupational qualification to excuse their conduct.

42. PLAINTIFFS are informed and believe and based thereon allege that in addition to the practices enumerated above, Defendants, and each of them, may have engaged in other discriminatory practices against them which are not yet fully known. At such time as such discriminatory practices become known to them, PLAINTIFFS will seek leave of Court to amend this complaint in that regard.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

SECOND CAUSE OF ACTION

(Employment Discrimination on Account of Sex in Violation of Gov’t. Code §12900 et seq. By All PLAINTIFFS against all DEFENDANTS)

30. PLAINTIFFS repeat and reallege the allegations contained in paragraphs 1 through 29 and incorporates the same by reference as though fully set forth herein.

31. DEFENDANTS, and each of them, illegally discriminated against PLAINTIFFS by discriminating against them on account of their sex during the course of their employment, terminating her employment, in violation of the California Fair Employment & Housing Act, Gov’t. Code §12900 et seq.

32. PLAINTIFFS are informed and believe and based thereon allege that DEFENDANTS, and each of them, cannot articulate any legitimate, business-related reason or bona fide occupational qualification to justify or excuse their conduct.

33. PLAINTIFFS are informed and believe and based thereon allege that in addition to the practices enumerated above, Defendants, and each of them, may have engaged in other discriminatory practices against them which are not yet fully known. At such time as such discriminatory practices become known to them, PLAINTIFFS will seek leave of Court to amend this complaint in that regard.

34. At all times during the employment relationship, PLAINTIFFS performed their duties in a highly satisfactory, competent and diligent manner.

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