Sacramento Sexual Harassment Lawyer Blog

(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.)

Continue reading " Sexual Harassment In Workplace Leads To Suit By Sacramento Woman, Part 7 of 7 " »

(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.

Continue reading " Female Sacramento Employee Subjected to Workplace Harassment, Part 6 of 7 " »

(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.

Continue reading " Workplace Abuse Leads To Suit By Sacramento Woman, Part 5 of 7 " »