.

‘wx
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
l:

EMMA MAJO, Case No.: 22-CIV—02057

Plaintiff, Assigned for A11 Purposes to Hon. Danny Y. Chou

-

V. ORDER OVERRULING IN PART AND

SUSTAINING IN PART DEMURRER AND
GRANTING IN PART AND DENYING IN
SONY INTERACTIVE ENTERTAINMENT PART MOTION TO STRIKE; ORDER
'
AFTER CASE MANAGEMENT
LLC, CONFERENCE
Defendant.

10

ll

12 Defendant Sony Interactive Entertainment LLC’s Demurrer and Motion to Strike Plaintiff’s
l3 Complaint came for hearing before this Court on October 6, 2022 at 10:00 am. The Court also
l4 conducted a Case Management Conference at that time. All parties appeared through their counsel. At
15 the hearing, the Court allowed Defendant to le a supplemental notice directed at the portions of the
l6 complaint relating to Plaintiff’s harassment claims to be stricken. Defendant did so on October 20, 2022
l7 by ling a Supplemental Notice of Motion to Strike Pursuantto the October 6, 2022 Minute Order re:

Hearing on Motion to Strike (Supplemental Notice).

r
18 1

'
l9 Having considered all papers led in support of and in opposition to the Demurrer and Motion to

20 Strike, oral arguments of the parties, any-testimony and evidence presented at the hearing, and all other
21 pleadings and papers-on le herein, the Court:

22 (1) OVERRULES IN PART and SUSTAINS IN PART WITH LEAVE TO AMEND the
23 Demurrer; and a

24
(2) GRANTS IN PART AND DENIES IN PART WITH
LEAVE TO AMEND the Motion to
25 Strike. FILED
SAN MATEO COUNTY

26

27

28

ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC —

1
 FACTSI
Plaintiff Emma Majo began working for Defendant in 201 5 as a Financial Systems Business

Analyst. (Compl, 11 1.) As noted in her job description, her duties included scoping, planning and

reporting, requirements analysis, and execution. (Id., 11 2.)

”
While working, Plaintiff “observed a bias against females a Defendant. (Compl., 1I 105.) For

example, she “realized that if she really wanted something done: she needed to send the request through
a male because if Plaintiff communicated directly to” her manager “the request would be ignored.” (Id.,
1] 104.) She “also personally heard managers make gender-based comments about female workers.” (Id.,

11 109.) She further observed that men were promoted out of cycle far more than women, indicating that
10 “there a separate processes for men vs. women to get promoted.” (Id., 11 112.) Indeed, she believed that

ll Defendant made “it harder for females to get promoted . . . by lo’oking at current job titles and deciding a
12 person isn’t qualied for a certain job because of her current job title, without a real examination of her

13 skills.” (Id., 11 113.)

l4 This was conrmed by Plaintiff’s own personal experiences at Defendant from 2015 to 2021.

15 Plaintiff was never able to get her managers to tell her “what she could do to get promoted.” (Compl., 11
l6 106.) As a result, Plaintiff never got promoted. (Id., 11 108.) Instead, she “was effectively demoted” when

l7 she‘was “told to report to a manager below the VP.” (Id., 11 107.) I

18 Plaintiff was also paid “less than her male counterparts” even though she “was performing the
l9 same functions and job duties.” (Compl., 11 126.) For example, a co-worker named Greg was promoted

20 even though he was “performing the same job duties” as Plaintiff. (Id., 11 125.) At Defendant,

21 “promotions virtually always include[d] a pay raise.” (Ibid) As a result, Greg made more money than
22 Plaintiff even though he performed “the same job duties as Plaintiff” and “their work was substantially

23 identical.” (Ibid.)

24 In 2021, Plaintiff “submitted a signed statement to” Defendant “detailing the gender bias she

25 ha[d] experienced at” Defendant. (Compl., 11 114.) “Soon after that,” Defendant terminated Plaintiff.

26 (Ibid.) In doing so, Defendant falsely claimed that it was terminating her because it was eliminating a
27

28
1
The facts are taken om Plaintiff s Complaint.

ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC - 2

 department of which she was not even a member. (Ibid.) Defendant also posted an ad for Plaintiffs
former position soon after her termination. (Ibid.)

Plaintiff originally led her class action in federal court. In her federal complaint, she alleged 13

causes of action, including “one collective claim on behalf of herself and a nationwide class under the
Fair Labor Standards Act (FLSA) as amended by the Equal Pay Act[,] six state-law class claims on
behalf of herself and a California class[,] one claim onbehalf of herself and both classes under the

Declaratory Judgment Act, 28 U.S.C. § 2201 [,] and ve individual claims under state law.” (RFJN, ex.

B [pp. l-2].) The federal court dismissed the complaint with leave to amend, nding, among other

things, that Plaintiff failed to state a claim under the FLSA/Equal Pay Act. (Ibid.) Rather than amend,
10 Plaintiff chose to abandon her federal claims and her nationwide class and le this class action.

ll In this class action, Plaintiff alleges four causes of action on behalf ofherself and the putative

12 class members. Shehas also narrowed the proposed class to “all individual employed by” Defendant “in

l3 California at any time during the time period beginning November 22, 2017 through the date of trial in

l4 this action and who meet the following criteria: [] a. who are listed as female in Defendant’s human

15 resources database of employees; [] b. who worked at one of the following California ofces: (i) San
l6 Mateo, (ii) San Francisco, (iii) Foster City, or (iv) San Diego-area ofce located at one point in Rancho

l7 Bernardo; [1f] c. who held any job title below Vice President during the aforementioned time period; and

18 [1|] d. who are not listed as a non-resident of California in Defendant’s database of employees.” (Compl.,
19 1I 12.) The class claims include: (1) violation of the California Equal Pay Act (EPA), Labor Code, §§
20 1197.5, et seq., 1194.5; (2) discrimination and harassment in violation of the California Fair
21 Employment and Housing Act (FEHA), Gov. Code, §§ 12940, et seq.; (3) failure to prevent and
22 investigate discrimination and harassment in Violation of FEHA and under Tameny v. Atlantic Richeld
23 C0. (1980) 27 Cal.3d 167; and (4) Violation of the Unfair Competition Law (UCL), Bus. & Prof. Code,
24 §§ 17200, et seq. Plaintiff also alleges a representative claim under the Private Attorneys General Act
25 (PAGA), Labor Code, §§ 2698, et seq. Finally, she alleges ve individual claims, including claims for

26 intentional iniction of emotions distress (IIED), negligent iniction of emotional distress (NIED), and
27 retaliation in violation of Labor Code sections 232.5 and 1102.5. (See Compl.)

28

ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC - 3

 DISCUSSION
A. Standards
1. Demurrer

On a demurrer, the Court must “assume the truth of the facts alleged in the complaint and the

reasonable inferences that may be drawn from those facts.”‘(Miklosy v. Regents 0fthe University ofCal.

(2008) 44 Ca1.4th 876, 883 (Miklosy).) The Court may “also consider matters that may be judicially
noticed . . . .” (Brown v. Deutsche Bank Natl. Trust Co. (2016) 247 Ca1.App.4th 275, 279.) The Court
does “not, however, assume the truth of contentions, deductions or conclusions of law.” (Guerrero v.

Pacic Gas & Electric C0. (2014) 230 Ca1.App.4th 567, 571.)

10 “A
complaint, with certain exceptions, need only contain a “statement of the facts constituting
‘
ll the cause of action, in ordinary and concise language’ [citation] and will be upheld “so long as [it]
’
12 gives notice of the issues sufcient to enable preparation of a defense.” [Citation] ‘[T]o withstand a
13 demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law.’
l4 [Citation.]” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, r. 3

15
“ ‘The elements of a cause of action constitute the essential or ultimate facts in a civil case.’ ”
(Mahan).)
l6 (Rodriguez v. Parivar (Sept. 26, 2022) _ Ca1.App.5th _, 2022 WL 4463179, *6; see also Central l

l7 Valley General Hosp. v. Smith (2008) 162 Ca1.App.4th 501, 513 (Central Valley) [“the term ‘ultimate
‘
l8 fact’ generally refers to a core fact, such as an essential element of a claim”].) “However, “[t]he fact

l9 that a party has alleged more than is required to justify his right does not obligate him to prove more

20 than is essential, and the unnecessary allegations will be treated as surplusage unless the opposing party

21 would be prejudiced.” ’ [Citation.]” (Mahan, at p. 848, l. 3.)

22 Finally, a demurrer does not lie to only part of a cause action. (See Daniels v. Select Portfolio

23 Servicing, Inc. (2016) 246 Ca1.App.4th 1150, 1167 (Daniels).) Thus, if there are allegations sufficient to
24 establish a plaintiff s entitlement to relief, then other allegations cannot be challenged on demurrer.

25 (Ibid.; see also PHI], Inc. v. Superior Court (1995) 33 Ca1.App.4th 1680, 1680-1862 (PHII)
26 [overruling demurrer because the plaintiff sufciently alleged at least one act to support the legal

27 malpractice cause of action even though another alleged act did «not].) The proper procedure is to
28 challenge those other allegations in a motion to strike. (Daniels, at p. 1167.)

ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC - 4

 2. Motion t0 Strike

Motions to strike are generally regarded with disfavor. (See Real v. Johnson & Johnson

Consumer Cos., Inc. (C.D. Ca1., Feb. 8, 2016) 2016 WL 322081 1, *2). Use of a motion to strike should
be “cautious and sparing” to avoid a “procedural ‘line item veto.’
”
(PH II, supra, 33 Cal.App.4th at p.
1 683 .)

A motion to strike may seek to strike any “irrelevant, false or improper matter.” (Code Civ.
Proc., § 436, subd. (a).) A “matter” is irrelevant if (1) it is “not essential to the claim or defense “or (2) is
“neither pertinent to nor supported by an otherwise sufcient claim or defense.” ONeil & Brown, Cal.

Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2022) § 7:178 (Weil & Brown).)
lO “In ruling on a motion to strike, the allegations in the complaint are considered in context and presumed
ll to be true: ‘(J)udges read allegations of a pleading subj ect to a motion to strike as a whole, all parts in
”
12 their context, and assume their truth.’ (Weil & Brown, supra, at § 7:197.5, quoting Clauson v. Superior

l3 Court (Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255.) Accordingly, a motion to strike “will

l4 be granted only if it is clear that the matter will have no bearing on the controversy before the Court.”

15 (RDFMedia Ltd. v. Fox Broadcasting Co. (C.D.Cal. 2005) 372 F.Supp.2d 556, 566.)
'

l6 B. Analysis
l7 1. Demurrer to the First through Fifth Causes ofAction

18 In her rst cause of action, Plaintiff asserts a violation of the California EPA, alleging that
l9 Defendant paid higher wages males for “substantially similar work when viewed as a composite of
to
20 skill, effort, and responsibility, and performed under similar working conditions.” (Labor Code, §

21 1197.5.) These allegations also form one of the bases for her other three class claims and her
22 representative PAGA claim. Thus, if Plaintiff states a cause of action for wage discrimination based on
23 gender, she has, as a practical matter, defeated the demurrer to those claims. (See Daniels, supra, 246
24 Cal.App.4th at p. 1167; PHI], supra, 33 Cal.App.4th at pp. 1680-1682.) Because Plaintiffhas done so,
25 the Demurrer is overruled as to those claims.

26 In dismissing Plaintiff s claim under the federal EPA—which is nearly identical to the California

27 EPA—the federal court found that Plaintiff “merely recited the elements of the claim and did not allege
28 any specic facts. For example, she does not describe her work or how her work was substantially equal

ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC - 5

 to the work of any male allegedly paid more than she was paid.” (RFJN, ex. B .[p. 9].) In the Demurrer,
Defendant contends Plaintiff has “recylc[ed] the same approach that led to dismissal in federal cou .”

(MPA, at p. 7.) The Court disagrees.

As a threshold matter, Plaintiff appears to have rectied the specic defects identied by the
federal court. For example, Plaintiff has added a description of her job duties to the complaint in this

action. (See Compl., 1m 1-2.) She also added allegations relating to a co—worker, Greg, who performed
“the same job duties as Plaintiff” and Whose “work was substantially identica
” to her work.
(Id., 125.)
As alleged in the complaint in this action, Defendant paid Plaintiff “less than” Greg even though she

performed “the same and job duties” as Greg. (Id., l 126.) Thus, contrary to Defendant’s assertion,
lO Plaintiff has, in fact, amended the complaint in this action to address the deciencies identied by the
ll federal court,

12 Applying the well-established standard governing demurrers under California law, rather than
13 the standard governing motions to dismiss under federal law, the, Court nds that Plaintiff’s complaint in
l4 this action, including the new allegations that were not included in her federal complaint, are sufcient

15 to state a claim for wage discrimination based on gender in violation of the California EPA claim and
l6 FEHA. (See RFJN, ex. B [pp. 9—10 [standard for California EPA and wage discrimination claim under
l7 FEHA are the same].) As explained earlier, Plaintiff only had to allege ultimate facts, i.e., the essential
l8 elements of those causes of action, in order to survive a demurrer. (See Rodriguez, supra, 2022 WL
19 4463179, *6; Mahan, supra, 14 Cal.App.5th at p. 848, i. 3; Central Valley, supra, 162 Cal.App.4th at

20 p. 513.) She has done so here by alleging that a specic male co—worker who performed the same job

21 duties and work as she did—which are described in the complaint (Compl., 1W l-2)—nonetheless
22 received greater pay than she did (id., 111i 61, 125—126). Although Plaintiff could have provided more

23 factual allegations to support her wage discrimination claim eschewed pleading “the evidence by
and
24 which [she] hope[d] to provide such ultimate facts”—which is both “improper and insufcient” (Careau
25 & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390 (Careau))—she had
26 no obligation to do so (see Mahan, at p. 848, t. 3). Indeed, her many allegations of evidentiary facts
27 may be treated as unnecessary surplusage. (Ibid.)
28

ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC - 6

 Arguably, the federal court also would have found the new allegations in Plaintiffs complaint in
this case sufcient to state a cause of action under the federal EPA. The Court does not, however, need
to engage in such speculation in order to overrule the Demurrer. This is because “federal district judges

have more latitude to dismiss claims at the pleading stage under Bell Atlantic Corp. v. Twombly than

California trial judges have under our traditional notice pleading standards.” (Morris v. JPMorgan

Chase Bank, N.A. (2022) 78 Ca1.App.5th 279, 304, r. 14.)

Because Plaintiff has stated a cause of action for wage discrimination in Violation of the

California EPA and FEHA, she has stated individual claims for failure to prevent and investigate

discrimination and violation of the UCL. She has also established standing as an aggrieved employee to

10 allege the PAGA claim. Accordingly, the Demurrer is overruled as to those claims.
ll 2. Demurrer t0 Class Claims

12 Defendant contends its Demurrer to Plaintiff’s class claims should be sustained because Plaintiff

l3 has not stated a cause of action as to the class, as opposed to Plaintiff. Defendants irther contend

l4 Plaintiff failed to allege facts sufcient to establish the requirements for class certication. The Court

15 nds that Plaintiff has pled ultimate facts sufcient to state claims on behalf of a class. The Court also

l6 cannot conclude, at the pleadings stage, that Plaintiff cannot satisfy the requirements for class

l7 certication. It therefore overrules the Demurrer as to the class claims.

18 Over 50 years ago, the Second District found that “the California Supreme Court has mandated

l9 that a candidate complaint for class consideration, if at all possible, be allowed to survive the pleading
20 stage of litigation.” (Becksteacl v. Superior Court (1971) 21 Cal.App.3d 780, 783 (Beckstead).) It
21 therefore concluded that determining the “propriety of class action litigation” at the pleadings stage is
I

22 “looked upon with disfavor.” (Ibid.)

23 Since Beckstead, the Second District has consistently discouraged trial courts om determining
24 the sufciency of class action allegations at the pleadings stage. (See, e.g., Gutierrez v. California

25 Commerce Club, Inc. (2010) 187 Ca1.App.4th 969, 976 [citing Beckstead with approval]; Tarkington v.

26 California Unemployment Ins. Appeals Bd. (2009) 172 Ca1.App.4th 1494, 1510 [same].) Indeed, the
27 Second District has repeatedly held that “[i]t is often premature‘for a trial court to make determinations
28 pertaining to class suitability on demurrer.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181

ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC - 7

 Ca1.App.4th 47 1, 487 (Arce).) In particular, the Second District has expressed its reluctance to decide
class certication issues at the pleadirigs stage in “wage and hour disputes (and others in the same

general class)”—Which “routinely proceed as class actions.” (Prince v. CLS Transportation, Inc. (2004)
118 Ca1.App.4th 1320, 1328 (Prince).)

Despite Beckstead and its progeny, Defendant argues that this Court should follow the First
District—which has suggested that Beckstead and its progeny overstated the California Supreme Court’s

expression of disfavor for determining “the sufciency of class action allegations by demurrer.”2

(Tucker v. Pacic Bell Mobile Services (2012) 208 Ca1.App.4th 201, 214 (Tucker).) In Tucker, the First
District suggested that the California Supreme Court in Linder v. Thrifty Oil Co. (2000) 23 Ca1.4th 440,
6“
10 had impliedly rej ected the reasoning ofBeckstead when it authorized courts to weed[] out’ legally

ll meritless class action suits prior to certication by demurrer or pretrial motion” (Tucker, at p. 21 1).
12 Of course, neither Tucker nor Linder involved disputes, like this case, “in the same general class”

l3 as “wage and hour disputes.” (Prince, supra, 118 Ca1.App.4th at p. 1328.) And since Tucker, the Sixth

l4 District has joined the Second District in holding “that generally, in cases involving wage and hour

15 claims, the issue of class suitability should not be determined at the pleading stage of the case.” (Tellez
l6 v. Rich Voss Trucking, Inc. (2015) 240 Ca1.App.4th 1052, 1057, i. 3.)
l7 In any event, this purported “divergence in intermediate appellate authority” identied in Tucker,

18 supra, 208 Ca1.App.4th at page 21 1, may be a distinction without a difference, particularly in this case.
l9 Ultimately, both Districts appear to agree on the high threshold that a defendant must-overcome to
20 defeat a class action at the pleadings stage. As the Second District explained, “ ‘[w]here there is a

21 “reasonable possibility” that the plaintiff in a class action can establish a community of interest among

22 class members, “the preferred course is to defer decision on the property of the class action until an
7”
23 evidentiary hearing has been held on the appropriateness of class litigation. (Arce, supra, 181
24 Ca1.App.4th at p. 487, emphasis added.) The First District also quoted this language with approval. (See
25 Tucker, at p. 215.) Thus, Beckstead and its progeny simply appear to recognize that this high threshold
26

27
If there are conicting Court of Appeal decisions, this Court “must make a choice between”
2

28 those decisions. (Auto Equity Sales, Inc. v. Superior COurt ofSanta Clara County (1962) 57 Cal.2d 450,
456.)

ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC —

8
 can rarely, if ever, be overcome at the pleadings stage in a class action involving a wage dispute like this

one. Nothing in Tucker appears to contradict this observation by the Second District.

Nor does this case appear to be the exception to the general rule recognized by the Second and

Sixth Districts. Although the Court recognizes that Plaintiff may have difculties establishing that
common issues predominate or that a class action is manageable, it cannot conclude, based solely on the

pleadings, that there is no reasonable possibility that Plaintiff can satisfy the requirements for class
treatment. (Arce, supra, 181 Cal.App.4th at p. 487.) Indeed, Plaintiff has alleged that Defendant adopted

and applied various companywide policies and practices that have created a wage disparity between its

male and female employees. (See Compl., 1m 15-26, 32-34, 38, 49-50.) Although Plaintiff improperly

10 pled these policies and practices through evidentiary facts (see Careau, supra, 222 Cal.App.3d at p.
ll 1390), they appear to be sufcient to survive the Demurrer (see Miklosy, supra, 44 Cal.4th at p. 883). In

12 any event, there appears to be little or no point in requiring Plaintiff to convert these evidentiary facts
l3 into ultimate facts. Because there is a reasonable possibility that Plaintiff could satisfy the requirements

l4 for class certication based on the allegations in the complaint, the demurrer must be overruled under

15 either Beckstead and its progeny or Tucker.3

l6 Finally, the Court rej ects Defendant’s contention that Plaintiff has not sufciently pled the
l7 ultimate facts necessary to state a cause of action on a classwide basis. To the contrary, Plaintiff has

18 alleged throughout her complaint that “Sony’s companywide practices, policies, and procedures result in
l9 lower compensation for female employees than similarly situated male employees.” (Compl., 11 53.)

20 More specically, Plaintiff has alleged that Defendant “pays women less than men even when a woman
21 is performing the same functions and job duties; i.e., even when they are doing substantially similar

22 work.” (Id, 11 125.) Finally, Plaintiff has alleged facts sufcient to establish that she is one example of a
23 woman who has been paid less than a male co-worker (Greg) who performed the “same job duties” and
” work.
24 “substantially identica (Ibid., see also id., 11 126.) This is sufcient to meet the minimal pleading

25 requirements imposed by California law. (See Mahan, supra, 14 Ca1.App.5th at p. 848, r. 3.)
26

27
3
At the hearing, Defendant cited a number of facts, including the number of employees and job
classes that would fall within the proposed class, that would make it prohibitively difcult for Plaintiff
28 to satisfy the requirements for class certication. But those facts are not included in the complaint or
judicially noticeable, so the Court may not consider them.

ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC - 9

 3. Motion to Strike Paragraphs Related to Harassment Claims

At the hearing, the Court allowed Defendant to le a supplemental notice identifying the

portions of the complaint relating to Plaintiff’s harassment claim that should be stricken. After

reviewing Defendant’s Supplemental Notice, the Court agrees that the portions of the complaint relating
to the harassment claim identied in that Notice should be stricken because Plaintiff has not alleged

facts sufcient to state a harassment claim.

To establish a claim for harassment in violation of FEHA, a plaintiff must allege harassment that
is “sufciently pervasive so as to alter the conditions of employment and create an abusive working
environment.” (Jones v. Dept. ofCorrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377

10 (Jones).) “With respect to the pervasiveness of harassment, courts have held an employee generally
ll cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must

12 show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Lyle v. Warner

l3 Brothers Television Productions (2006) 38 Cal.4th 264, 283 (Lyle).) Finally, a claim for harassment, as

l4 opposed to discrimination, may not be predicated on “personnel management actions such as demotions,

15 terminations, and promotions.” (Reno v. Baird (1998) 18 Cal.4th 640, 647.)

16 Here, Plaintiff has not sufciently alleged the ultimate facts necessary to establish an individual

l7 claim of harassment in violation of FEHA. Most of the actions by Defendant that Plaintiff complains of

18 consist of personnel management actions such as Defendant’s failure to promote her, its purported

19 demotion ofher, and its termination ofher. (Comp1., 1H] 105-108, 109-1 15.) These allegations do not

20 establish grounds for a harassment claim. (Reno v. Baird, supra, 18 Cal.4th at p. 647.) Her remaining

21 allegations regarding comments (Compl., 109) and the need to route requests through a male intern

22 (id, 11 104) are also insufcient. (See Lyle, supra, 38 Cal.4th at p. 295 [FEHA “does not outlaw sexually
23 coarse and vulgar language or conduct that merely offends”].) Although Plaintiff references her

24 harassment claim in the argument headings in her opposition brief, she never discusses the harassment

25 claim, much less addresses these defects in that claim identied by Defendant. By failing to do so,
26 Plaintiff has forfeited any argument that her complaint states a cause of action forharassment.
27 Following argument, Plaintiff did identify a California Supreme Court decision—Roby v.
28 McKesson Corp. (2009) 47 Cal.4th 686—that suggests an argument she could have made to support her

ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC - 10

 harassment claim. But even if Plaintiff had done so, the Court nds that her complaint does not

sufciently allege “a concerted pattern of harassment of a repeated, routine, or a generalized nature.”

(Lyle, supra, 38 Cal.4th at p. 283.) Indeed, unlike the plaintiff in Roby who suffered “rude comments
and behavior . . . on a daily basis,” was shunned “during weekly staff meetings,” suffered om constant

“belittling of [her] job,” and was frequently “reprimand[ed] . . . in front of [her] coworkers” (Roby, at p.

710), Plaintiff has not alleged sufciently pervasive harassment to establish an abusive work

environment, even if the personnel management actions against her are considered. (Jones, supra, 152

Cal.App.4th at p. 1377.)

Finally, because Plaintiff has not stated an individual claim for harassment, she cannot represent
10 a class of employees who have suffered workplace harassment in violation of FEHA. Accordingly, the
ll Motion to Strike is granted as to Plaintiffs harassment allegations. (See Daniels, supra, 246

12 Cal.App.4th at p. 1167 [“defendants may attack any portion of a cause that is ‘substantively defect on
l3 the fact of the complaint . . . by ling a motion to strike’ ”].) The allegations in the complaint identied
l4 in the Supplemental Notice are therefore stricken. Leave to amend, however, is granted because the

15 Court cannot conclude that there is no reasonable possibility that Plaintiff can cure the defect.

l6 4. Remainder ofMotion to Strike

l7 As to all other allegations in the complaint sought to be stricken by Defendant, the Motion to
18 Strike is denied. Under rule 3.1322 of the California Rules of Court, “[a] notice of motion to strike a

l9 portion of a pleading must quote in full the portions sought to be stricken except where the motion is to
20 strike an entire paragraph, cause of action, count, or defense.” Defendant’s original Notice does not,

21 however, quote the portions of the complaint to be stricken or identify any paragraphs, counts, or
22 defenses to be stricken. To the extent that Defendant identies causes of action to be stricken, it, at most,

23 provides grounds for striking part, but not all, of that cause of action. Yet, Defendant does not identify
24 the specic paragraphs within that cause of action that should be stricken. Even if the Court could guess
25 which paragraphs Defendant wishes to be stricken, it has no obligation to do so. Indeed, rule 3.1322

26 makes it the obligation of the moving party to state, with sufcient clarity, which portions of the
27 complaint it would like to be stricken. Defendant has not met that obligation here. Accordingly, the
28 Motion to Strike is denied in all other respects.

ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC - 11

 5. Demurrer t0 IIED and NIED Claims
Because Plaintiffhas not stated a claim for harassment, she cannot state a claim for IIED. This is

because her remaining allegations involving “personnel management activity [are] insufcient to

support a claim” of IIED, even though she has alleged “improper motivation.” (Janken v. GM Hughes
Electronics (1996) 46 Ca1.App.4th 55, 80.)

Plaintiff’s claim for NIED also fails because she has only alleged intentional conduct on the part
of Defendant. Plaintiff‘s allegation that the conduct of Defendant and its agents, if not intentional,- “was

negligent” (Comp1., 1] 210), is a legal conclusion that does not defeat the Demurrer.

Accordingly, the Demurrer to the IIED and NIED is sustained. Again, leave to amend is granted
lO because the Court cannot conclude that there is no reasonable possibility that Plaintiff can cure the

ll defect. (Code Civ. Proc., § 430.41, subd. (e)(1).)

12 C. Request for Judicial Notice

l3 Defendant’s unopposed Request for Judicial Notice is GRANTED BUT NOT FOR THE
l4 TRUTH OF ANY MATTERS ASSERTED THEREIN.
15 ORDER
l6 Based on the foregoing, IT IS HEREBY ORDERED THAT:
l7 1. The Demurrer is SUSTAINED WITH LEAVE TO AMEND as to the IIED and NIED causes
18 of action.
19 2. The Demurrer is OVERRULED in all other respects
20 3. The Motion to Strike is GRANTED as the allegations relating to the harassment claim. As a

21 result, the portions of the complaint identied in the Supplemental Notice are STRICKEN:

22 4. The Motion to Strike is DENIED in all other respects.

23 5. Plaintiff is ORDERED to le an amended complaint within ten (10) days from the date of
i

24 this Order.

25 6. The stay of discovery is LIFTED.

26 7. At the Case Management Conference, all parties agreed to email service om the Court.

Accordingly, the parties will only receive the Court’s orders by email and not by mail.
—
27

28

ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC - 12

 Plaintiff shall le and serve an email service list and email that list to the Court at

[email protected] and [email protected].

8. The next Case Management Conference is scheduled for February 16, 2023 at'10:00 a.m.

Zoom appearances are permitted but not required.

Dated:
Danny? Chou
_

Judge of the Superior Court

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ORDER RE DEMURRER AND MOTION TO STRIKE; ORDER AFTER CMC - 13