Jeff Delgado vs. State Water Resources Control Board

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Motion to Strike in Department 54

Tentative Ruling

NOTICE:

PLEASE TAKE NOTICE that pursuant to “Public Notice – Civil Division Expansion of Law and Motion Calendar” any oral arguments regarding this tentative ruling will be heard in Department 31, located at 720 9th Street, Sacramento, CA, the Hon. Steven M. Gevercer presiding, at 10:00 a.m. Should argument be requested by either party, the requesting party must call the Law and Motion Oral Argument Request Line at (916) 874-2615, request the hearing, and notify the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

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34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Motion to Strike in Department 54

of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf

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TENTATIVE RULING

Defendants Sriram Iyer, and Serena Diaz’s (“Defendants”) Motion to Strike Portions of Plaintiff Jeff Delgado’s (“Plaintiff”) Complaint is ruled upon as follows.

The Court notes that the moving parties on this motion to strike are listed as Defendants California Department of Corrections and Rehabilitation, Sriram Iyer, and Serena Diaz, however, the California Department of Corrections and Rehabilitation is not a party in this matter.

The parties’ unopposed requests for judicial notice are granted for the purposes appropriate for judicial notice. (See Evid. Code § 452, subd. (d); see also Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not to the truth of the statements contained therein].)

Factual Background

This case pertains to the employment of Plaintiff and alleged disability discrimination by

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Motion to Strike in Department 54

Defendants State Water Resources Control Board, Sriram Iyer, and Serena Diaz (“Defendants”). Plaintiff alleges that Defendants failed to provide reasonable accommodations and then wrongfully terminated Plaintiff in retaliation for seeking accommodations. Plaintiff’s operative FAC alleges causes of action for: (1) disability discrimination; (2) failure to engage in timely good faith, interactive process; (3) failure to accommodate; (4) failure to prevent; (5) harassment; (6) retaliation; and (7) wrongful termination in violation of public policy.

Plaintiff’s complaint alleges that he began his employment with Defendant State Water Resources Control Board (“Water Board”) on or around April 1, 1999. (FAC, ¶ 11.) Plaintiff suffers from ongoing back issues relating to an injury which occurred in 1992. (FAC, ¶ 13.) In 2012, Plaintiff received a medical exam, following which his physician concluded that he was permanently disabled, as the result of this injury, which required further treatment. (FAC, ¶ 15.) Plaintiff informed Water Board of his disability, as well as reasonable accommodations required by his physicians. (FAC, ¶¶ 17-19.) Defendants failed to provide the requested accommodations, and engaged in a pattern of harassment and discrimination against Plaintiff in retaliation. (FAC, ¶ 20.) Water Board terminated Plaintiff on or around December 20, 2021. (FAC, ¶ 21.)

Plaintiff first filed another Sacramento County suit on February 2, 2016 (Delgado v. Water Resources Control Board, Case Number 34-2016-00189982), alleging discrimination, harassment, and retaliation. (RFJN, Ex. A.) On August 6, 2018, the Court granted Water Board’s motion for summary adjudication in part, limiting Plaintiff’s claims “to events that occurred after the May 2014 right-to-sue notice and within one year prior to his January 2016 DFEH claim.” (RFJN, Ex. B, p. 3.) Plaintiff filed an amended complaint on August 7, 2018.

Plaintiff subsequently filed charges with the California Department of Fair Employment and Housing (“DFEH”) on March 17, 2017 and April 8, 2021, and received right-to-sue notices. (RFJN, Exs. C, D, G, H, I.) Plaintiff submitted another complaint on or around November 1, 2023, and received a right-to-sue letter. (Opposition RFJN, Ex. A.)

Plaintiff filed the action from which this demurrer arises on June 9, 2022. On the motion of Water Board, the Court consolidated the two action on May 3, 2024.

Defendants now move to strike the following from the FAC:

1. “Against all Defendants” from all causes of action except the fifth cause of

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Motion to Strike in Department 54

action for FEHA harassment (FAC. pp. 6:8, 7:13, 8:16, 9:15, 10:14, 11:18) because Diaz and Iyer are not Plaintiff’s employer and cannot be held liable under those FEHA causes of action as a matter of law. (Code of Civ. Proc. § 436(a)-(b).)

2. Paragraphs 28 & 54 in their entirety as they refer to alleged events which are outside the statute of limitations for claims brought under the Fair Employment and Housing Act. (Code Civil Proc., § 436(a)-(b.) Alternatively, only subdivisions (b) and (i) of paragraph 28.

3. Portion of paragraph 21, (p. 5:16-20), which refers to use of California Family Rights Act leave as follows: “requested or used family care and medical leave (cfra) related to serious health condition of employee or family member, child bonding or military exigencies” and “denied employer paid health care while on family care and medical leave (cfra)” on the grounds that CFRA violations are not a separately pled in the First Amended Complaint (FAC). (Code Civil Proc., § 436(a)-(b).)

4. Paragraphs 34, 39, 44, 49, and 54 in their entirety as they contain purely legal arguments and legal conclusions which are not supported by facts and thus are improperly plead. (Code Civil Proc., § 436(a)-(b).)

5. Paragraphs 56-58 in their entirety as they refer to a cause of action that is barred as a matter of law by Government Code section 815. (Code Civil Proc., § 436(a)-(b).)

6. Prayer for Relief against Defendants, specifically Water Resources Control Board for “Prejudgment interest” (p. 13:15) on the grounds that the cited statement is an improper prayer for prejudgment interest which cannot be assessed against a public entity. (Cal. Gov. Code § 3291; (Code Civil Proc., § 436(a)-(b).)

7. Prayer for Relief Against Defendant Water Resources Control Board for “punitive damages” because it is barred as a matter of law by Government Code section 818. (Code Civil Proc., § 436(a)-(b).)

Plaintiff opposes.

Discussion

A party can move to strike any portions of a complaint that are legally deficient or

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Motion to Strike in Department 54

contrary to the law. (Code Civ. Proc. §§ 435, 436.) A motion to strike is proper when a portion of a cause of action has a clear substantive defect, such as a violation of the applicable statute of limitations, seeking punitive damages without basis, when the face of the complaint fails to state facts showing a primary right of the plaintiff and primary duty of, or wrong committed by, the defendant. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) Similarly, a motion to strike is appropriate where the complaint alleges a “purported claim of right which is legally invalid” (Id., at p. 1682-1683.) However, a motion to strike may not be used a procedural line item veto for the civil defendant. (Id., at p. 1683.) The use of the motion to strike should be cautious and sparing.

Motions to strike are disfavored. Courts considering such motions must presume the allegations contained therein are true and must consider those allegations in context. (Clauson v Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “Matter that is essential to a cause of action should not be struck and it is error to do so.” (Quiroz v. Seventh Avenue Ctr. (2006) 140 Cal.App.4th 1256, 1281.)

Claims Against Individual Defendants

Plaintiff conceded this issue in the concurrently considered demurrer and failed to oppose the instant motion to strike on this ground. The Court construes Plaintiff’s failure to oppose the motion to strike on this ground as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].)

Therefore, given Plaintiff’s lack of opposition, the motion to strike is GRANTED and the language of “Against all Defendants” is stricken from FAC pages 6:8, 7:13, 8:16, 9:15, 10:14, and 11:18.

Statute of Limitations

As discussed in more detail in the concurrent order on Defendants’ demurrer, Defendants contend that the bulk of the FAC relies upon events which occurred outside of the statutory time period. Plaintiff opposes, arguing that the paragraphs at issue describe events that took place within the statutory time period.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Motion to Strike in Department 54

The Court notes that Defendants’ memorandum of points and authorities identifies paragraphs 28, 34, 39, 44, 49, and 54 as containing allegations of wrongdoing outside of the statutory time period. However, only paragraphs 28 and 54 are identified in the notice of motion. Therefore, the Court considers this issue only as to paragraphs 28 and 54.

Paragraphs 28 and 54 of the FAC identify instances in which Defendants discriminated against Plaintiff on the basis of his disability or retaliated against Plaintiff for engaging in protected activities. Paragraph 28 includes several instances which are dated in 2015 and 2017.

These paragraphs provide relevant background for the allegations of discrimination and retaliation brought by Plaintiff. There is nothing 'irrelevant, false, or improper' about including background information in a complaint which provides context for the lawsuit. Case law provides that even if a discrete discriminatory act is time barred, a party may still utilize that act as “background evidence in support of a timely claim.” (National Railroad Passenger Corporation v. Morgan (2002) 536 U.S. 101, 113.)

California law also indicates that such evidence could be admissible as relevant background evidence despite not being actionable. (E.g. Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812; Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, 766.) Again, the use of the motion to strike should be cautious and sparing. It should not be a procedural “line item veto.” (PH II, Inc., supra, 33 Cal.App.4th at p. 1683.)

Defendant's own authorities recognize that a motion to strike a portion of a cause of action is permitted only when it is clear from the face of the pleading that there is a substantive defect in that portion of the cause of action. (PH II, Inc., supra, 33 Cal.App.4th at p. 1683.) Thus, given that it is not clear from the face of the paragraphs 28 and 54 that Plaintiff is seeking to premise liability on based on the specific acts described in these paragraphs as opposed to simply referring to the acts as background for other alleged adverse actions, the motion is DENIED.

The Court notes that nothing precludes Defendants from seeking an appropriate order by way of a motion in limine or limiting jury instruction to the extent that Defendants are concerned that Plaintiff will attempt to premise liability based on the acts described in these paragraphs.

California Family Rights Act

Defendants seek to strike portions of paragraph 21, on the grounds that it refers to use

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Motion to Strike in Department 54

of California Family Rights Act, which is not pled in Plaintiff’s FAC. However, Defendants' memorandum of points and authorities does not include any substantive argument on these grounds, and the Court is not otherwise persuaded. As this ground is not raised in Defendants’ memorandum of points and authorities, it is DENIED.

Legal Conclusions

Defendants seek to strike paragraphs 34, 39, 44, 49, and 54 as they contain only legal argument and legal conclusions. However, Defendants' memorandum of points and authorities does not include any substantive argument on these grounds, and the Court is not otherwise persuaded. As this ground is not raised in Defendants’ memorandum of points and authorities, it is DENIED.

Wrongful Termination in Violation of Public Policy

Defendants seek to strike paragraphs 56-68 on the grounds that the cause of action for wrongful termination is barred by law. However, Defendants' memorandum of points and authorities does not include any substantive argument on these grounds, and the Court is not otherwise persuaded. As this ground is not raised in Defendants’ memorandum of points and authorities, it is DENIED.

Prejudgment Interest and Punitive Damages

Plaintiff concedes that the prayer for prejudgment interest and punitive damages are properly stricken as to Water Board, but not as to the individual defendants. Defendants’ motion cites to Civil Code section 3291 and Government Code section 818 for the premise that prejudgment interest and punitive damages cannot be pled against a public entity, but make no argument regarding the individual defendants.

Therefore, the motion to strike is GRANTED as to Water Board, but DENIED as to Defendants Dyer and Ivey.

Other Grounds

In Defendants’ memorandum of points and authorities, they argue that Plaintiff is bound by the admissions made in the complaints filed in the 2016 action, and thus any inconsistent statements in the FAC must be struck. This ground for motion to strike was not included in Defendants’ notice of motion, and thus must be disregarded.

Disposition

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2016-00189982-CU-OE-GDS: Jeff Delgado vs. State Water Resources Control Board 08/02/2024 Hearing on Motion to Strike in Department 54

Based on the foregoing, Defendants’ motion to strike is DENIED as to items 2, 3, 4, and 5 from their notice of motion. Defendants’ motion is sustained to item 1, and sustained in part as to Water Board on items 6 and 7. Leave to amend is granted, as this is the first challenge to Plaintiff’s complaint.

Plaintiff may file and serve an amended complaint no later than August 12, 2024. Although not required by statute or court rule, Plaintiff is directed to present the clerk a copy of this ruling at the time of filing the Second Amended Complaint. Defendant may file and serve a response within 30 days of service of the Second Amended Complaint, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to California Rules of Court, rule 3.1312 or further notice is required.