Ashleigh Marvin v. PetVet Care Centers, et al

Case Number

23CV02969

Case Type

Hearing Date / Time

Wed, 02/05/2025 - 10:00

Nature of Proceedings

Defendant Alisha Dally’s Demurrer to Plaintiff’s Third Amended Complaint

Tentative Ruling

For Plaintiff Ashleigh Marvin: Matthew S. Da Vega

For Defendants PetVet Care Centers, Inc. and Goleta Airport Pet Hospital, Inc.: Angelina T. Evans, Ephraim J. Pierre

For Defendant Alisha Dally: David S. Harris

                       

RULING

For the reasons set forth below, Defendant Alisha Dally’s demurrer to Plaintiff’s third amended complaint is overruled. Alisha Dally shall file and serve her answer to Plaintiff’s third amended complaint no later than February 26, 2025.

Background

This action commenced on July 11, 2023, by the filing of the complaint by self-represented Plaintiff Ashleigh Marvin (“Plaintiff”) against Defendant Goleta Airport Pet Hospital (“GAPH”). The complaint is a judicial council form complaint for breach of contract. Although a breach of contract complaint, it contains allegations of  a hostile work environment, workplace violations, discrimination, and sexual harassment. No specific person was identified as perpetrating the discrimination or sexual harassment.

On September 11, 2023, Plaintiff, while still self-represented, filed her first amended complaint adding PetVet Care Centers (“PetVet”) as a Defendant. The allegations of the first amended complaint are essentially the same as those contained in the original complaint.

On December 11, 2023, Plaintiff, while still self-represented, filed her second amended complaint against GAPH and PetVet. The second amended complaint allegations are essentially the same as those contained in both the original complaint and the first amended complaint.

On March 26, 2024, Plaintiff, now represented by counsel, filed her operative third amended complaint (“TAC”) against GAPH and PetVet for: (1) Sex Discrimination in violation of FEHA, (2) Sexual Harassment in violation of FEHA, (3) Disability Discrimination in violation of FEHA, (4) Retaliation in violation of FEHA, (5) Failure to Take all Reasonable Steps to Prevent Discrimination in violation of FEHA, (6) Failure to Accommodate in violation of FEHA, and (7) Wrongful Termination in violation of FEHA.

As alleged in the TAC, and relevant to the present demurrer:

Plaintiff was employed by GAPH and PetVet in 2005, as a Veterinary Assistant until November 2020, when she became a Registered Veterinary Technician (“RVT”), and continued her employment from November 2021, until April 30, 2021. (TAC, ¶ 2.) During the last several years of her employment, Plaintiff was subjected to ongoing and pervasive sexual harassment, discrimination, and retaliation by fellow RVT Alisha Dally (“Dally”). (Ibid.) Plaintiff was also subjected to harassment, discrimination, and retaliation based on having diabetes. (Ibid.) Because of the harassment, discrimination, and retaliation, Plaintiff could no longer work for GAPH and PetVet, and ended her employment on April 30, 2021. (Ibid.)

Paragraph 12 of the TAC sets forth multiple alleged actions of Dally, towards Plaintiff, constituting sexual harassment.

On September 23, 2024, approximately six-months following the filing of the TAC, Plaintiff filed an amendment to the complaint substituting Dally as a Defendant in place of Doe 1.

On November 26, 2024, Plaintiff dismissed all causes of action against Dally except the second cause of action for sexual harassment.

Dally now demurs to the TAC pursuant to Code of Civil Procedure section 430.10, arguing that the Doe 1 substitution was an improper amendment because Plaintiff has been aware of Dally’s identity and alleged misconduct since the original complaint was filed.

Plaintiff opposes the demurrer arguing that a demurrer is the improper procedure for challenging a Doe substitution and that, based on the current circumstances, Dally cannot avoid being named a Defendant in the action.

Analysis

Demurrer

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

“(b) The person who filed the pleading does not have the legal capacity to sue.

“(c) There is another action pending between the same parties on the same cause of action.

“(d) There is a defect or misjoinder of parties.

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)

Plaintiff is correct that a demurrer is the incorrect procedure for challenging the Doe amendment in this situation. Standing alone, challenging a Doe amendment, based solely on delay, does not fall within any of the statutory grounds for the filing of a demurrer. An evidence-based motion is required. Dally’s arguments that an evidence-based motion is only one of the devices available, to challenge the Doe amendment, and that demurrer is proper, is an incomplete statement of the law. Dally argues, by way of her reply brief:

“The remaining case law appears to indicate that Defendants have most often challenged improper Doe amendments not by way of a ‘Barrows motion,’ but by way of demurrers (just as Ms. Dally has done) or motions to quash. See, e.g., Parker v. Robert McKee, Inc., 3 Cal. App. 4th 512, 514 (1992) [(Parker)] (addressing demurrer to Doe amendment); Barrows v. American Motors Corp., 144 Cal. App. 3d 1, 6-7 (1983) [(Barrows)] (addressing demurrer to Doe amendment); Optical Surplus, Inc. v. Super. Ct., 228 Cal. App. 3d 776, 782-83 (1991) [(Optical Surplus)] (addressing motion to quash based on improper Doe amendment).” (Reply, p. 3, ll. 1-7.)

Dally’s representation about the above cases is a misrepresentation of those cases. None of those cases stand for the proposition that a demurrer is the proper means for challenging a Doe amendment based solely on delay. Parker and Barrows are both cases involving demurrers based on statute of limitations grounds, which would be a defect that appears on the face of the complaint and proper grounds for a demurrer. Here, Dally is not asserting a complete defense based on the running of the statute of limitations. In fact, by way of omission, Dally implicitly acknowledges that the statute of limitations, for her alleged actions, has not yet run.

In the context of both Parker and Barrows, it makes sense that the Doe amendments are addressed based on statute of limitations issues associated with those amendments. This is because:

“The purpose of section 474 is to permit the Plaintiff to avoid the bar of the statute of limitations. [Citations.] Moreover, the courts have held that section 474 should be liberally construed [Citation], particularly because such a construction also fosters this state’s fundamental philosophy that cases should be decided on their merits. [Citations.]” (Sobeck & Associates, Inc. v. B&R Investments No. 24 (1989) 215 Cal.App.3d 861, 867.)

Here, as stated above, the statute of limitations against Dally has not run. Therefore, Plaintiff could have simply filed a motion to amend, or to file a separate complaint against Dally. A separate case would have certainly been consolidated with the present case. While the court acknowledges that the way Plaintiff added Dally as a Defendant was “sloppy,” the granting of Dally’s demurrer would be ineffectual at accomplishing anything. Dally would still be brought in as a Defendant one way or another.

Finally, even if the court were to consider Dally’s demurrer a proper motion to strike, and grant the motion to strike, it would accomplish nothing. “ ‘Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, ‘ “leave to amend is routinely and liberally granted to give the Plaintiff a chance to cure the defect in question.” ’ [Citations.] A pleading may be stricken only upon terms the court deems proper [citation], that is, terms that are just. [Citations.] It is generally an abuse of discretion to deny leave to amend, because the drastic step of denial of the opportunity to correct the curable defect effectively terminates the pleader’s action.’ ” [Citation.]” (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1174-1175.) Plaintiff would have been given leave to amend, and would have simply added Dally as a Defendant. Given that there is no statute of limitations bar, it would be permissible to do so.

The demurrer will be overruled.