ANWYL, SCOFFIELD & STEPP, LLP P.O.

Box 269127 Sacramento, California 95826-9127 Telephone: (916) 565-1800 Telecopier: (916) 565-2374

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-/^^OORSED
^^GAL PROCESS

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ANWYL, SCOFFIELD & S TEPP, LLP

LYNN A. GARCIA lai;@anwvlaw.com Attorneys for Defendant DISABILITY RIGHTS CALIFORNIA

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

JACQUELINE GALLEGOS, Plaintiff,

CASE NO. 34-2012-00121520 M E M O R A N D U M O F POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT Date: January 8, 2013 Time: 9:00 a.m. Dept: 54
[Reservation #1740864] Complaint Filed: April 2, 2012 Trial Date: None

DISABILITY etal.,

RIGHTS

CALIFORNIA,

Defendants.
/

I. INTRODUCTION Plaintiff alleges that she was an employee of Disability Rights California ("DRC") since at least 2008. Plaintiffs supervisors were Ms. Molineaux and Ms. Coleman. Plainfiff alleges that she had various conditions, including cancer and a form of obsessive-compulsive disorder, which required both leave and other accommodations. Plaintiff alleges that those conditions were not satisfactorily accommodated from January 2009 unfil April 26,2011, when she was terminated from her position. Additionally, plainfiff claims that she was both harassed and retaliated against during this same time period, despite the fact that the First Amended Complaint ("FAC") demonstrates that at all times subsequent to July 2, 2009, plaintiff was not at work, allegedly because DRC failed to 1
Memorandum of Points and Authorities in Support of Moiion to Strike Portions of FAC

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give her an accommodation in the form of a position which was not supervised by either Ms. Molineaux or Ms. Coleman. Plaintiff filed a charge of discrimination pursuant to the Fair Employment and Housing Act ("FEHA") on April 1,2011. See Exhibit 1 to the First Amended Complaint. The last alleged act set forth therein occurred October 4, 2010, when plaintiff claimed to have been "constructively terminated." Even so, plaintiffs DFEH-related allegations in this case continue v/ell beyond that date, unfil her actual termination six-and-a-half months later, on April 26, 2011. These allegations are improper and cannot support any claim. Accordingly, DRC requests that they be stricken from the FAC, as more fiilly set forth below. IL THIS FAC IS PROPERLY THE SUBJECT OF A MOTION TO STRIKE Motions to strike can be used to reach defects or objections to pleadings that are not challengeable by demurrer. Moreover, a motion to strike can be used to attack any part of a pleading even single words or phrases (unlike demurrers). Warren v. Atchinson, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40. A motion to strike may be directed against a whole pleading, or any part of it. CCP. 435.10(a)(2). Even an objectionable word or phrase may be stricken. A "pleading" includes a complaint. Id. A motion to strike can be used as a "scalpel" to cut out any "irrelevant, false or improper" matters inserted therein. CCP. 436(a). This includes allegations not essential to the claim or defense, or allegations which are "neither pertinent to nor supported by an otherwise sufficient claim or defense." CCP. 431.10(b). The term "irrelevant matter" means an immaterial allegation in apleading. CCP. 431.10(c). It includes the following: (1) an allegation that is not essential to the statement of a claim or defense; and (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. CCP. 431.10(b)(1), (2), (3). /// /// /// ///
Memorandum of Points and Authorities in Support of Motion to Strike Portions of FAC

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III. ALL ACTS WHICH ALLEGEDLY OCCURRED AFTER 10/4/10 ARE IRRELEVANT AND IiMPROPER A. The Allegations. Despite the affirmative representation which was made to tlie DFEFI (FAC, Exhs. 1-3) that the "date [the] most recent or continuing discrimination took place" was October 4,2010, when she was "constructively tenninated," plaintiff requests relief for various separate events/acts which occurred after October 4, 2010, and for which she has not apparently made any type of claim to the DFEH. They are as follows: 1. a 52); Unlawful termination of employment (^n| 62, 63, 96); Failing to offer plainfiff available positions until her terminafion on April 26, 2011

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ffl 72, 94); 4. and 5. B.

Failing to provide plaintiff with reasonable accommodation until April 26, 2011

Failing to engage in a good faith interacfive process until April 26,2011 {*\]*\\ 79, 81); Harassing plainfiff until April 26, 2011 ( ^ H l 87, 96).

The Applicable Law. One of the explicit bases upon which the statute of limitations in DFEH cases is calculated

is the date upon which the complaint isfiledas it relates to the date ofthe alleged discriminatory action. In fact. Government Code 12960(d) specifically provides that any complaintfiledwith the DFEH is unfimely if it is notfiledwithin one year of the expiration of the alleged unlawful practice. The timely filing of an administrative complaint is a prerequisite for bringing a civil action for damages under the FEHA. Romanov. Rockwell Int'I Inc. (1996) 14 Cal.4th479, 59 Cal.Rptr.2d 20. Moreover, the fact that the DFEH issues a complainant a Right to Sue Letter, despite the failure to file afimelyadministrafive complaint, does not enfifie the complainant to maintain a civil action under the FEHA. Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 84 Cal.Rptr.2d 658. Finally, the statutory' requirement that the administrative complaint befiledwithin one year 3
Memorandum of Points and Authorities in Support of Motion to Strike Portions of FAC

after the last alleged unlawful act is a substantive precondition to the bringing of a civil action

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in the superior court for damages under the FEHA. A cause of acfion for violation of the FEHA does not even accrue until after the administrative remedy is exhausted. Balloon v. Superior Courl (1995) 39 Cal.App.4th 1116, 46 Cal.Rptr.2d 161. In this case, the only DFEH claim which is alleged is attached as Exhibit 1 to the FAC. That claim, which was filed on April 1, 2011, stated that the last alleged discriminatory act which occurred had taken place on October 4, 2010, at which time she was "constructively terminated." There are no allegations of any DFEH claim being filed which referenced any facts whatsoever beyond that date. Accordingly, plaintiffhas failed to exhaust her administrative remedies as to all such acts. Thus, each such "fact" is irrelevant to the claims before the Court and improperly contained within it. They should all be stricken from the FAC without leave to amend, together with all claims for damages for alleged discriminatory actions which occurred during this time period. IV. CONCLUSION For the above-stated reasons, and based on the Court's file herein, together with such oral argument which may be had at the time of hearing, each of the above-referenced paragraphs is irrelevant to the case before the Court and improperiy contained within the FAC. Thus, each of these paragraphs should be stricken from the FAC,

ANWYL, SCOFFIELD & STEPP, LLP

DATED: August 14,2012 LYNN A.'GARCIA. Attorneys for Defendants' ISABILITY RIGHTS CALIFORNIA

Memorandum of Points and Authorities in Support of Motion to Strike Portions of FAC

Gallegos v. Disability Rights California, et al. Sacramento Count>' Superior Court Case No. 34-2012-00121520

PROOF OF SERVICE 4 5 6 7 8 9 I am over the age of 18, and not a party to the above-entitled aiction. My business address is 3430 Gold Canal Drive, Suite 100, Rancho, Cordova, CA 95670-6129. I am readily familiar with the day-to-day practices ofthis office for collection and processing of mail for deposit with the United States Postal Service on the same business day. On the date set forth below, I served a copy of the attached MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT on the party(ies) to this action by: X Placing said document(s) in a sealed envelope(s) addressed to the person(s) at the address(es) set forth below, with postage thereon fully prepaid ,and then placing said envelope(s) in the designated area for outgoing mail in accordance with the day-to-day business practices ofthis office, whereby mail is deposited for mailing with the U.S. Postal Service in Sacramento County at the close ofthe same business day. Causing said document(s) to be deposited with a designated agent of Federal Express or the U.S. Postal Service for overnight delivery to the party(ies) as set forth below, with delivery guaranteed on the next following business day. H. Wade Sammis, Esq. hws@,sammis 1 aw.com The Sammis Law Firm 520 Capitol Mall, Suite 600 Sacramento, CA 95814 Telephone: (916)447-0105 Facsimile: (916)447-1104 Attorneys for Plaintiff

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I declare under penalty of perjury, under the laws ofthe State of California, that the foregoing is true and correct. Executed on August 15, 2012, in Sacramento County, California.

Diane LinthicTinf

Proof of Service