In a second amended complaint (SAC), plaintiff and appellant Scott Carlton (Carlton) sued defendants and respondents (1) Dr. Pepper Snapple Group, Inc. (Dr. Pepper); (2) Mott's LP (Mott's); (3) Larry D. Young
The only respondent on appeal is Dr. Pepper; the other defendants are not respondents in this appeal. Carlton contends the trial court erred by granting the demurrer because the demurrer was untimely. Next, Carlton asserts the demurrer improperly included the breach of contract cause of action, and therefore the trial court erred by sustaining the demurrer on that cause of action. Lastly, Carlton contends the trial court erred by imposing sanctions. We reverse in part, and affirm in part.
The facts in this part are taken from the SAC. In the SAC, Carlton asserts he was "employed with the company." It is unclear if Carlton's employer was Dr. Pepper or Mott's. Carlton contends he worked as a production manager for the company beginning in April 2009 and had an unblemished performance record. On December 16, 2010, Carlton was at a biweekly management meeting with Terry Gordon, Blaise Batush, Tammy Sloan (Sloan), and Steve Summey. While waiting for the meeting to begin, Carlton received a text message on his personal cell phone.
Carlton looked at the message in plain view of Sloan, who was seated to Carlton's immediate right. The textual portion of the message read, "`Hope your day is going better th[a]n this guy.'" A picture included with the message reflected "a man sitting on a toilet with his penis appearing to be caught between the base of the toilet and the seat." Carlton handed the telephone to Sloan, who laughed and said, "`I'd like to meet this man.'" Sloan showed the text message to Steve Summey who also found the message humorous, and the telephone was returned to Carlton. Terry Gordon asked "what is so funny," so Carlton gave the telephone to him, and he also found the message humorous. Passing around the telephone lasted approximately 30 seconds, then the meeting began, and the meeting lasted approximately 45 minutes.
Vargas works in human resources. On December 16, 2010, Vargas instructed Carlton to accompany Vargas to the human resources office. Vargas informed Carlton that Vargas had received several complaints about the picture; however, Carlton alleges only one complaint was made and it came from Steve Summey. Bailey joined the meeting and told Carlton he "`take[s] this stuff very seriously.'" Bailey suspended Carlton pending an investigation. Carlton was ordered to return his badge, company cell phone, and keys. Due to the suspension, Carlton sought medical treatment for anxiety and suicidal ideations. Carlton was terminated effective December 21, 2010, "for `inappropriate behavior and failure to follow [the] Anti-Harassment Policy.'" Bailey signed Carlton's termination letter. No one else was suspended or terminated in connection with sharing the picture.
On July 15, 2011, Carlton filed his original complaint against Dr. Pepper, Young, Vargas, and Bailey. The complaint included causes of action for wrongful termination, sexual discrimination, and breach of contract. On October 24, 2011, Carlton filed his first amended complaint (FAC), which added Mott's as a defendant and omitted the sexual discrimination cause of action. In the FAC, the wrongful termination cause of action was brought against all defendants, and the breach of contract action was against Dr. Pepper and Mott's.
The wrongful termination cause of action set forth the facts of the text message/picture sharing incident and subsequent termination, described ante. The breach of contract cause of action included allegations that Carlton could not be fired without cause and that Carlton had an unblemished performance record. Carlton asserted he had an employment contract guaranteeing a safe and friendly environment free of verbal harassment. In the breach of contract claim, Carlton asserted he was falsely accused of sexual harassment and therefore "wrongfully terminated."
Dr. Pepper, Mott's,
As to the breach of contract cause of action, defendants asserted the action failed due to uncertainty. Defendants argued Carlton did not allege (1) whether the contract was written, oral, or implied; (2) the essential terms of the contract; (3) his performance of the contract; (4) how all defendants breached the contract; and (5) how Carlton was damaged by the breach.
On January 5, 2012, the trial court held a hearing on the demurrer to the FAC. At the beginning of the hearing, the trial court explained that the wrongful termination cause of action "needs to be amended to clearly layout [sic] the rationale, or reasons for — purported reasons for the termination." The court also noted that wrongful termination could not be brought against individual, nonemployer, defendants. The court concluded Carlton "laid out the requisite elements for breach of contract." Therefore, the court said its tentative opinion was to sustain the demurrer for the wrongful termination action, but overrule the demurrer for the breach of contract action. The court adopted its tentative opinion as its ruling. In regard to amending, the court gave Carlton 30 days to amend as to the company, but denied leave to amend the wrongful termination action as to the individual defendants.
On February 3, 2012, Carlton filed his SAC, listing Dr. Pepper, Mott's, Vargas, Bailey, and Young as defendants. The SAC included three causes of action: (1) wrongful termination against Dr. Pepper and Mott's; (2) breach of contract against Dr. Pepper and Mott's; and (3) sex discrimination against all defendants. The wrongful termination action again set forth the factual allegations of Carlton sharing the text message/picture and being terminated.
The breach of contract cause of action again included allegations that Carlton could not be fired without cause and that Carlton had an unblemished performance record. Carlton again asserted he had an employment contract guaranteeing a safe and friendly environment free of verbal harassment. The breach of contract claim again reflected Carlton was falsely accused of sexual harassment and therefore "wrongfully terminated."
An exhibit was included with the SAC. The exhibit was a right-to-sue letter from California's Department of Fair Employment and Housing. The letter reflected Carlton could sue Mott's due to being terminated based upon sex discrimination.
On March 9, 2012, defendants filed a demurrer to the SAC. As to the wrongful termination cause of action, defendants argued Carlton failed to allege Mott's and Dr. Pepper violated a public policy. In regard to the breach of contract cause of action, defendant asserted the allegations were uncertain because Carlton failed to allege (1) whether the contract was oral or written, (2) the essential terms of the contract, (3) Carlton's performance of the contract, (4) a breach by Dr. Pepper and Mott's, and (5) how Carlton was damaged.
As to the sex discrimination cause of action, defendant asserted individual defendants could not be liable for a management decision later found to be discriminatory. Vargas was the human resources official who suspended Carlton, and Bailey was the manager who signed Carlton's termination letter. Therefore, defendants argued the individual defendants could not be liable. Further, defendants asserted Carlton failed to exhaust his administrative remedies because he filed his original complaint, which included the discrimination claim, approximately five months before receiving his right-to-sue letter.
Additionally, defendants asserted the discrimination cause of action failed because the administrative complaint did not set forth the details of the alleged discrimination, it only reflected Carlton was terminated as a result of sex discrimination and so that the employer could "replace [Carlton] with a more favorable employee." Further, defendants asserted the discrimination claim could not be maintained against Dr. Pepper or the individual defendants because only Mott's was named in the administrative complaint. Lastly, defendants argued Carlton's sex discrimination claim failed as to all defendants because Carlton failed to allege he was a member of a protected class, in that he alleged he is male and the employee who replaced him is also male.
On April 11, 2012, the trial court held a hearing on defendants' demurrer to Carlton's SAC. The trial court asked Carlton's attorney (Foroozandeh) to explain his objection to the demurrer. Foroozandeh explained, "On January 5, 2012, you granted leave to amend the first amended complaint. So they have 30 days to answer. That would put it on February 5, 2012. Now, ten days to demurrer, plus five days for mailing, your Honor, that would put it around February 20th. So, the demurrer is untimely."
Defendants argued that the rule of court cited by Carlton conflicted with Code of Civil Procedure section 471.5,
The trial court overruled Carlton's objection. The trial court explained, "I do not think it is the appropriate legal response to object to it as being untimely ...." Foroozandeh requested two weeks to respond to the demurrer. The court denied the request and explained the argument about the untimely demurrer should have been presented in a "proper opposition to the demurrer," which would have also set forth reasons why the demurrer was not well founded.
The trial court asked Foroozandeh how the wrongful termination cause of action in the SAC was different from the FAC. Foroozandeh explained that the individual defendants had been removed but he believed no additional facts needed to be alleged after the FAC; he believed the problem with the wrongful termination claim in the FAC only concerned needing to remove the individual defendants. Defendants asserted the court sustained the demurrer
Defendants asserted the wrongful termination and discrimination claims were intertwined. Defendants argued both claims failed against Dr. Pepper because only Mott's was named in the administrative complaint. Defendants also asserted the discrimination claim failed because the fact that Sloan was not fired did not create a cause of action — Carlton could properly be fired for his admitted act of sharing the picture.
As to the breach of contract cause of action, defendants asserted Carlton admitted not having a written contract, but failed to plead the specifics of an oral or implied contract. Defendants argued that Carlton only alleged he had to be fired for cause, and the complaint reflected Carlton was fired for cause; therefore, Carlton had "pled himself out of the court," and also failed to plead the required specifics of the contract.
Carlton's attorney (Foroozandeh) argued that everyone in the workplace should be treated equally, so the other people who shared the picture should have been admonished in the same way. Foroozandeh further argued that it was inappropriate for a manager to insinuate a person is homosexual regardless of whether the person is heterosexual or homosexual. In regard to the breach of contract claim, Foroozandeh argued the specifics of the oral contract "need[] to come out during the trial, it needs to come out during discovery."
Defendants asserted Foroozandeh was not arguing that Carlton was wrongfully terminated; rather, he was arguing that other people should have been fired as well. Defendants argued that whether Sloan was fired is irrelevant. Foroozandeh again argued it was wrong to single out one person for punishment when multiple people were involved. Foroozandeh also argued the court had already overruled the demurrer to the FAC for the breach of contract action, so the demurrer should not be sustained for that claim since "[n]othing has changed."
Foroozandeh concluded, "The facts are exactly what they are, and we intend to go to trial and prove it." The court asked, "Are you telling me you have no additional facts to plead?" Foroozandeh responded, "Not at this time, your Honor." The trial court sustained the demurrer as to all three causes of action without leave to amend.
Carlton contends defendants' demurrer to the SAC was untimely because defendants had only 10 days after the filing of the SAC to file a demurrer. Dr. Pepper asserts Carlton failed to provide sufficient legal argument, and therefore this court may dismiss the issue. We choose to address the merits of the contention because Carlton provided some legal argument.
California Rules of Court, rule 3.1320(j) provides, "Unless otherwise ordered, defendant has 10 days to answer or otherwise plead to the complaint or the remaining causes of action following: [¶] (1) The overruling of the demurrer; [¶] (2) The expiration of the time to amend if the demurrer was sustained with leave to amend; or [¶] (3) The sustaining of the demurrer if the demurrer was sustained without leave to amend."
Section 471.5, subdivision (a) provides, in relevant part, "If the complaint is amended, a copy of the amendments shall be filed ... and a copy of the amendments or amended complaint must be served upon the defendants affected thereby. The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases."
Carlton contends the trial court erred by sustaining the demurrer as to the breach of contract cause of action in the SAC because the trial court overruled the demurrer to the breach of contract cause of action in the FAC, and no changes were made to the cause of action in the SAC.
Dr. Pepper asserts Carlton forfeited this issue by failing to raise it in the trial court. Our review of the record reflects Carlton did raise the issue in the trial court, and therefore the contention is not forfeited. Specifically, Foroozandeh said, "[T]he demurrer was overruled as to the second cause of action, breach of contract. Nothing has changed since then. So the Court has already ruled on that then."
The Sixth District Court of Appeal has also concluded, "[A] party is within its rights to successively demur to a cause of action in an amended pleading notwithstanding a prior unsuccessful demurrer to that same cause of action. (Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 389 [102 Cal.Rptr.2d 125].)" (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1036 [100 Cal.Rptr.3d 875].)
Given the foregoing reasoning and rules from this court and others, the trial court could properly consider the demurrer to the entire SAC. When Carlton filed the SAC, he exposed himself to the possibility of a demurrer being filed and sustained to the entire SAC. Accordingly, we conclude the trial court did not err by sustaining the demurrer to the breach of contract cause of action.
The award of discovery sanctions is reversed. In all other respects, the judgment is affirmed. The parties are to bear their own costs on appeal.
Ramirez, P. J., and King, J., concurred.
