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Della Seay v. Sierra Community College District et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


May 25, 2011

DELLA SEAY, PLAINTIFF AND APPELLANT,
v.
SIERRA COMMUNITY COLLEGE DISTRICT ET AL., DEFENDANTS AND RESPONDENTS.

(Super. Ct. No. SCV21883)

The opinion of the court was delivered by: Robie , J.

Seay v. Sierra Com. College Dist. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This appeal requires us to determine whether plaintiff Della Seay's first amended complaint -- which advances seven claims under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.)*fn1 -- sets forth any properly pled causes of action. Seay appeals the dismissal of her first amended complaint against Sierra Community College District (the district) and several other employees of the district after the trial court sustained defendants' demurrer without leave to amend.*fn2

Seay contends her "FIRST AMENDED COMPLAINT GIVES THE DEFENDANTS AMPLE NOTICE OF THE LEGAL AND FACTUAL CLAIMS MS. SEAY IS ALLEGING." Seay further argues that her complaint "DOES NOT APPEAR TO HAVE ACTUALLY BEEN DISMISSED BY THE LOWER COURT."

We shall reject her contentions and affirm.

FACTUAL AND PROCEDURAL HISTORY

I The Complaints

In November 2007, Seay filed a complaint alleging nine causes of action against the district, Leo Chavez, Ron Martinez, Mandy Davis, and Cindy Mariano (collectively referred to as the defendants). Seven of the causes of action in the complaint arose under the FEHA, and two arose under common law. Defendants demurred to all causes of action, contending (among other things) that the complaint failed to state facts supporting a prima facie case of the FEHA violations or common law torts. The trial court sustained the demurrer as to all causes of action with leave to amend. The court ruled that none of the causes of action sets forth facts sufficient to support the granting of legal relief.

In March 2008, Seay filed her first amended complaint against the same defendants. In the amended complaint, Seay alleged that she was "diagnosed with [a] serious medical condition" in July 2005. No other information about Seay's medical condition is given other than that it required her to undergo "back surgery."

Seay returned to work in September 2006, with unspecified "limitations" on her work. Thereafter, the district received updates on Seay's medical condition, including "the date she would return to full-time work without any restrictions." Seay's "doctor cleared her to return to full-time work on December 1, 2006 without any limitations." (Italics added.)

When Seay returned to work on an unspecified date, she was "bounced from one department to the other with no specific department willing to provide her with any accommodations." Seay met with the vice president of human resources, who told her: "'I am not going to touch this one.'" Seay alleges "she was not given any job consistent with the work accommodation which her doctor's note requested." However, her complaint does not identify the accommodations specified in the note or when the note was written.

Seay alleged that the district "had a pattern and practice to provide accommodations to [those] who needed it," and to this end refers to the accommodations received by Araceli Ruiz. Although the complaint notes that Ruiz was a 25-year-old Hispanic woman who had back surgery, it fails to give any information on whether Ruiz and Seay had similar disabilities or what sort of accommodations Ruiz received from the district.

Although Seay "continued to perform satisfactorily while working" for the district, she alleges that defendants "subjected [her] to an increased level of harassment and retaliation which included . . . refusal to afford [her] some reasonable accommodation for her back surgery [and] refusal . . . to give [Seay] her old job back . . . ." As part of the retaliation, Seay alleges that she was placed on "a 39-month reemployment list[*fn3 ] when her doctor had already cleared her to return to full-time work without limitation [which was] tantamount to constructive discharge."

Seay alleged in January 2006, she was "called into a meeting" where her supervisor "called [her] names" and "stated several times that she was disconnected." However, her complaint acknowledges: "It must be noted that at that time, [Seay] was heavily medicated following her back surgery."

Seay claims that she was told to schedule her medical appointments outside work hours, a requirement imposed on no other employee "of other races who had medical or physical needs."

Seay also alleges that her supervisor would speak to her in a "demeaning and embarrassing voice" on "many occasions." Seay claims that she was monitored about her "coming and going when [her supervisor] did not have someone watching the other minority employees." Her supervisor also "derided [her] regarding her medical situation and how her work restriction was a problem for the unit."

Finally, Seay alleges that the loss of an employee in her unit forced her to take on that employee's workload "on top of [Seay's] own regular workload inspite [sic] of the doctor's work and weight restriction request." She alleges that this workload was "very difficult for [her] to cope with during her compromised physical, medical and emotional condition."

Based on these allegations, the amended complaint set forth causes of action arising under federal law*fn4 as well as the same seven causes of action under the FEHA asserted in the original complaint.

II The Demurrer

In November 2008, defendants filed a motion to strike and a demurrer to Seay's first amended complaint. The trial court sustained the demurrer without leave to amend.

The trial court explained: "With respect to the individual defendants, they cannot be held liable for discrimination or retaliation. Reno v. Baird (1998) 18 C4th 640, 645-646; Jones v. Lodge at Torrey Pines Partnership (2008) 42 C4th 1158, 1173. . . . With respect to the harassment cause of action, Plaintiff has failed to allege any facts showing that the harassment was 'severe' or 'pervasive' such that her conditions of employment changed. Additionally, Plaintiff has failed to allege the most basic facts in her complaint - what her disability or medical condition was (1st and 2d causes of action); what the essential duties of her job were (7th cause of action); what accommodations she requested or needed in order to perform the essential duties of her job (7th cause of action); that she suffered any adverse employment action at all (1st, 2d, 3d, 4th, 5th, and 7th causes of action); when such adverse action occurred (if it did) (1st, 2d, 3d, 4th, 5th, and 7th causes of action); what protected activity Plaintiff was engaged in which resulted in retaliation (5th cause of action); that her age or race was a determining factor in any adverse employment action (3d and 4th causes of action); or what Plaintiff's age is so that it can be determined if she is within the protected class (4th cause of action). As Plaintiff has already been given one opportunity to amend her complaint to correct these pleading deficiencies, failed to do so in her first amended complaint, and has not shown that she could correct these deficiencies if leave was granted, the court declines to grant further leave to amend."

The trial court denied defendants' motion to strike as moot and entered a judgment of dismissal from which Seay appeals.

DISCUSSION

I Standard Of Review

"On appeal from a dismissal entered after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the petition states a cause of action as a matter of law. [Citations.] We give the petition a reasonable interpretation, reading it as a whole and viewing its parts in context. [Citations.] We deem to be true all material facts that were properly pled. [Citation.] We must also accept as true those facts that may be implied or inferred from those expressly alleged. [Citation.] We may also consider matters that may be judicially noticed, but do not accept contentions, deductions or conclusions of fact or law. [Citation.]

"If the petitioner has stated a cause of action under any possible legal theory, we will order that the demurrer be overruled. [Citation.] However, if no liability exists as a matter of law, we affirm the trial court's order sustaining the demurrer. [Citation.]" (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869-870.) The petitioner has the burden of proving that an amendment would cure the defect. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

II Dismissal Of All Causes Of Action In

The First Amended Complaint

We begin by considering Seay's contention that the trial court did not "entirely dismiss" her first amended complaint. Seay asserts that the trial court's judgment does not clearly dismiss the individual defendants in their individual capacities or deny leave to amend the causes of action against the district. Not so.

The trial court's "ORDER AND JUDGMENT SUSTAINING DEFENDANTS' DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT" concluded: "As demurrer is sustained without leave to amend as to the entire first amended complaint, JUDGMENT is hereby entered in favor of all Defendants." (Italics added.) Consequently, the trial court denied the defendants' separately filed motion to strike the first amended complaint as moot.

The trial court's conclusion that the entirety of the first amended complaint was subject to demurrer without leave to amend clearly indicated that Seay had no remaining cause of action against any of the defendants, in any capacity. The trial court's denial of the defendant's motion to strike as moot further showed that nothing remained of the claims set forth in Seay's first amended complaint. Consequently, we reject Seay's contention that some parts of her first amended complaint remained viable even after the trial court entered judgment against her.

III First Cause Of Action

Disability Discrimination

Seay contends the first amended complaint sets forth a valid cause of action for disability discrimination under the FEHA. Specifically, she argues that the complaint properly alleged that the adverse employment action was "being dumped from job to job, being verbally harassed, [and] being subject to a greater workload and scrutiny." We reject the argument.

Seay's first amended complaint notes that she "was diagnosed with a serious medical condition, which required that she undergo back surgery." The complaint further alleges "she was not given any job consistent with the work accommodation which her doctor's note requested."

Yet Seay's complaint acknowledges that her doctor returned her to work on a full-time basis without any limitations on December 1, 2006. The complaint alleges that, at some unspecified time period, Seay "was subjected to an increased level of harassment and retaliation . . . ."

With respect to this cause of action, the trial court ruled that Seay failed to allege: (1) the nature of her disability; (2) the adverse employment action she suffered; or (3) when such adverse employment action occurred.

Our Supreme Court has held that "[r]equiring a plaintiff employee who seeks relief under the FEHA to shoulder the burden of producing evidence and persuading the trier of fact that the defendant employer engaged in impermissible disability discrimination against him or her as a qualified individual, as defined by the FEHA, is consistent with the general rule in California that 'a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief . . . that [s]he is asserting.' [Citation.]" (Green v. State of California (2007) 42 Cal.4th 254, 263.)

The FEHA defines what qualifies as a "physical disability" on which basis an employer may not discriminate. Under the FEHA, "'[n]ot every illness qualifies as [a] disability,' however. [Citations.]" (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1249.) So too, the fact that a plaintiff was hospitalized does not necessarily establish that plaintiff was suffering from a qualifying disability under the FEHA. (Id., at pp. 1249-1250.)

Seay's first amended complaint nowhere identified the physical condition from which she suffered. That Seay required back surgery for the condition does not suffice. (§ 12926, subd. (k)(1)(A).) Even the nature of the surgery is absent from the allegations of Seay's first amended complaint. In short, the complaint fails to allege sufficient facts to identify a qualifying physical disability under the FEHA.

The complaint also fails to identify what adverse employment action was taken against Seay. The first amended complaint alleges that the district moved her from department to department, refused to "give [Seay] her old job back," and placed her "on a 39-month reemployment list when her doctor had already cleared her to return to full-time work without limitation . . . ."

Although Seay clearly desired to return to her previous position, the FEHA does not require an employer offer an employee any particular job. Instead, "an employer must make affirmative efforts to determine whether a position is available." (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223, italics added.)

Moreover, an employer need not create a new position for an employee. "'The responsibility to reassign a disabled employee who cannot otherwise be accommodated does "not require creating a new job, moving another employee, promoting the disabled employee or violating another employee's rights . . . ."' [Citations.] 'What is required is the "duty to reassign a disabled employee if an already funded, vacant position at the same level exists." [Citations.]' [Citations.]" (Raine v. City of Burbank, supra, 135 Cal.App.4th at p. 1223.)

That the district moved Seay among several departments does not suffice to demonstrate discrimination against her based on physical disability. The amended complaint does not state that a vacant position for which she was qualified was denied to her. Thus, the first amended complaint fails to assert facts indicating adverse employment action against her by moving her among various positions at the district.

Seay's complaint also fails to establish adverse employment action by the district's placing her on a 39-month reemployment list. The district was legally required to place Seay on the reemployment list when she exhausted all of her leave time. Seay's placement on the 39-month reemployment list was not punitive but represented the district's compliance with the Education Code. (Ed. Code, § 45192; Jones v. Los Angeles County Office of Education, supra, 134 Cal.App.4th at p. 991.) We also note the chronology of many of the events alleged in the first amended complaint is impossible to determine. The complaint states that Seay returned to work with doctor-imposed restrictions on September 2, 2006, and that her doctor "cleared her to return to full-time work on December 1, 2006, without any restrictions." However, the complaint sheds no light on when she "bounced from one department to the other," or when she sustained the alleged discriminatory action. Indeed, nearly all of the actions by the district and the individual defendants about which she complains are set forth without any specific dates. The two exceptions are: (1) a day in January 2006, when her supervisor noted she was "disconnected" at a time when the complaint itself acknowledges that Seay "was heavily medicated"; and (2) another day that month when Seay's supervisor told her "to do her job as soon as and when the job needed to be done." Neither event for which the date can be established constitutes an instance of disability discrimination. The other events might all have occurred at a time when Seay did not suffer from a disability because she had been cleared for work without any restrictions.

Seay asserts that as a result of defendants' actions her condition "worsened to the point where she had to be taken off work again by her doctor." Her complaint, however, does not include this allegation. Moreover, even Seay's assertion of this fact on appeal is unaccompanied by any identification of dates as to when she was precluded from work by her physician.

The trial court correctly ruled that Seay failed to state a cause of action for physical disability discrimination because the first amended complaint did not identify her disability, any adverse employment action, or when such adverse action may have been taken against her.

IV Second Cause Of Action

Medical Condition Discrimination

Seay contends the demurrer was erroneously sustained because she had a "serious medical condition." We are not persuaded.

The second cause of action in Seay's amended complaint alleges that she "is a person with a protected medical condition within the meaning of the law protecting employees." The medical condition itself is not identified anywhere in the amended complaint.

With respect to this cause of action, the trial court ruled that Seay failed to allege: (1) what her medical condition was; (2) that she suffered any adverse employment action; or (3) when such adverse employment action occurred. Therefore, the trial court correctly concluded that Seay failed to state a cause of action for unlawful discrimination based on a protected medical condition.

As we have previously explained, ante, Seay's amended complaint also failed to sufficiently identify an adverse employment action taken against her or to provide the date of such adverse employment action taken by defendants. These omissions support the trial court's sustaining of the demurrer to the second cause of action.

V Third And Fourth Causes Of Action

Race And Age Discrimination

Seay contends her amended complaint sufficiently sets forth causes of action for race and age discrimination under the FEHA because her original complaint "indicates Ms. Seay was a black woman over 40 years old and that she was singled out for termination because of . . . her race, and her age . . . ." We reject the contention.

The amended complaint alleges that Seay "is a member of a protected class" and that an unspecified "adverse decision was the result of her age."

To establish a cause of action for race or age discrimination, "the plaintiff must provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position [s]he sought or was performing competently in the position [s]he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)

Here, the trial court correctly noted that Seay's amended complaint fails to identify her age or to allege that race was a determining factor in any adverse employment action. On appeal, Seay directs us to her original complaint, which did allege that she was a black woman who was over 40 years of age. Even considering this fact does not help Seay because the complaint lacks the most basic facts about her age and race discrimination claims. Accordingly, the trial court correctly ruled that Seay's causes of action for age and race discrimination were presented in fatally incomplete form.

Similarly, since Seay's amended complaint also failed to sufficiently identify an adverse employment action taken against her or to provide the date of such adverse employment action taken by defendants, the trial court correctly sustained the demurrer to the third and fourth causes of action in the amended complaint.

VI Fifth Cause Of Action

Retaliation

Seay argues that her first amended complaint clearly alleged that she suffered workplace retaliation "as a result of requesting reasonable accommodations . . . ." She further asserts that the retaliation came in the form of "not being granted her request [for reasonable accommodations], being dumped from job to job, being verbally harassed, being subject to a greater workload and scrutiny."

The fifth cause of action in the amended complaint alleges only that Seay suffered retaliation by defendants for having "engaged in a protected activity."

With respect to the cause of action for retaliation, the trial court ruled that Seay failed to allege: (1) the protected activity engaged in by Seay and for which she was retaliated against; (2) that she suffered adverse employment action taken by defendants; and (3) when such adverse employment action occurred.

The California Supreme Court has held that "in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

On appeal, Seay now asserts the protected activity was her request for accommodations to address her physical disability. However, the amended complaint does not indicate that her request for accommodations constituted the protected activity. The complaint states only that she engaged in unspecified "protected activity." Thus, the complaint failed to describe the protected activity Seay engaged in.

As defendants point out, the amended complaint also fails to specify who retaliated against her or even when such retaliation occurred. For lack of these threshold facts regarding the alleged retaliation, the trial court's sustaining of the demurrer on this cause of action was correct. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42.)

Since Seay's amended complaint also failed to sufficiently identify an adverse employment action taken against her or to provide the date of such adverse employment action taken by defendants, these omissions support the trial court's sustaining of the demurrer to the fifth cause of action in the amended complaint.

VII Sixth Cause Of Action

Harassment

Seay contends the first amended complaint "clearly detailed the retaliatory and harassing conduct of failing to accommodate her accommodation requests, increasing her workload after she took medical leave, the termination of [her] employ in the form of a constructive discharge by virtue of the 39 month re-employment list." Elsewhere, Seay refers to "being verbally harassed."

We begin by noting that the sixth cause of action is the only potentially viable claim against the individual defendants named in Seay's first amended complaint. Our Supreme Court has made clear, individual nonemployer defendants cannot be held liable for causes of action under the FEHA for discrimination or retaliation. (See generally Reno v. Baird (1998) 18 Cal.4th 640, 645-646 [holding that nonemployer individuals are not liable for discrimination claims under the FEHA]; see also Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173 [holding that "nonemployer individuals are not personally liable for their role in [workplace] retaliation" under the FEHA].) Consequently, Seay's other causes of action against individual defendants fail as a matter of law under Reno and Jones. And, as we shall explain, the sixth cause of action was properly sustained as to all defendants.

The first amended complaint alleged that Seay was "harassed because of her race, religious creed, physical disability, medical condition, marital status, sex, or age." (Italics added.) The sixth cause of action fails to identify who harassed Seay, when the harassment occurred, or even what constituted the harassment.

Elsewhere, the amended complaint recounts that the vice president of human resources for the district "told her 'I'm not going to touch this one.'" The complaint also alleged that Seay "was subjected to an increased level of harassment" in the form of failure to accommodate her and refusal to return her to her original job. The complaint, however, did not identify Seay's original job or its duties. Neither did the complaint identify any of the accommodations requested by Seay.

The amended complaint also recounted instances in which her supervisors: (1) required her to schedule medical appointments outside her work hours (which were not identified); (2) monitored her as to her work performance; and (3) subjected her to being chastised "in a demeaning and embarrassing voice" on "many occasions."

With respect to the sixth cause of action, the trial court ruled that Seay failed to allege any facts showing that the harassment was severe or pervasive such that her conditions of employment changed.

The FEHA prohibits "an employer . . . because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, to harass an employee, an applicant, or a person providing services pursuant to a contract." (§ 12940, subd. (j)(1).) As the California Supreme Court has explained, "'"[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives."'" (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707, quoting Reno v. Baird, supra, 18 Cal.4th at pp. 645-646.) "The FEHA does 'not guarantee employees "a stress-free working environment."' [Citation.] '[The Act] does not take away an employer's right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules. "[The FEHA] addresses discrimination." . . . "[It] is not a shield against harsh treatment at the workplace."'" (Arteaga v. Brink's Inc., supra, 163 Cal.App.4th at p. 344, quoting in part Nix v. WLCY Radio/Rahall Communications (11th Cir.1984) 738 F.2d 1181, 1187.)

Here, Seay's complaint alleges harassment but sets forth no facts showing she was subjected to meanness, bigotry, or personal vindictiveness within the meaning of the FEHA's definition of harassment. Even if perceived as harsh and unnecessary, the conduct of which she complains was directly related to her job at the district. Requiring Seay to schedule medical appointments so that they did not conflict with her work, monitoring her work performance, requiring her to focus on her assigned tasks, and even transferring her among departments do not constitute harassment as defined by section 12940.

Moreover, the facts alleged in the first amended complaint do not indicate pervasive and extreme conduct toward Seay. "[W]hen the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284.) Although Seay contends that she was harassed, the complaint sets forth insufficient facts to sustain this cause of action under the FEHA. Accordingly, the trial court did not err in sustaining the defendants' demurrer to the sixth cause of action.

VIII Seventh Cause Of Action

Failure To Provide Reasonable Accommodation Of Disability

Seay contends her amended complaint set forth a valid cause of action for defendants' failure to accommodate her disability. Specifically, Seay asserts that she "was treated substantially worse than an Hispanic female of 25 years old with respect to being granted reasonable accommodations."

Seay's amended complaint acknowledges that the district had a pattern and practice of accommodating employees who suffered from physical disabilities. Moreover, the amended complaint notes that the district returned a 25-year-old Hispanic woman to her original job upon returning to work after back surgery. However, the amended complaint offers no additional information about the physical disability suffered either by the Hispanic employee or by Seay. More importantly, the amended complaint fails to identify any of the accommodations Seay claims to have requested of defendants.

With respect to this cause of action, the trial court ruled that the amended complaint failed: (1) to describe the essential duties of Seay's job; (2) what accommodations were requested or needed for Seay to perform the essential duties of the job; (3) to identify any adverse employment action; or (4) to identify when such adverse employment action occurred.

Subdivision (k) of section 12940 makes it unlawful "[f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." A claim of failure to provide reasonable accommodation under the FEHA requires a plaintiff to "establish that he or she suffers from a disability covered by the FEHA and that he or she is a qualified individual. For purposes of a section 12940, subdivision (k) claim, the plaintiff proves he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position." (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.)

The amended complaint fails to establish that Seay suffered from a qualifying physical disability or medical condition. Moreover, the complaint is silent as to what accommodations Seay requested of the district. So too, the amended complaint fails to describe the essential duties of the job she sought or what her capabilities would have been with reasonable accommodation. Having failed to set forth these threshold facts for a claim of failure to accommodate under the FEHA, the trial court did not err in sustaining the demurrer to this cause of action.

Finally, since Seay's amended complaint failed to sufficiently identify an adverse employment action taken against her or to provide the date of such adverse employment action taken by defendants, these omissions support the trial court's sustaining of the demurrer to the seventh cause of action in the amended complaint.

IX Denial Of Leave To Amend The First Amended Complaint

Finally, Seay asserts that she should have been given another opportunity to amend her complaint because "any perceived deficiencies in the F[irst] A[mended] C[omplaint] can be cured by amendment." We shall conclude that the trial court did not abuse its discretion in denying leave to amend the complaint again.

In denying leave to amend, the trial court explained that, "as [Seay] has already been given one opportunity to amend her complaint to correct these pleading deficiencies, failed to do so in her first amended complaint, and has not shown that she could correct these deficiencies if leave was granted, the court declines to grant further leave to amend."

"Where a demurrer is sustained without leave to amend, the reviewing court must determine whether the trial court abused its discretion in doing so. [Citation.] . . . The burden is on the plaintiff to demonstrate how he or she can amend the complaint. It is not up to the judge to figure that out. [Citation.] Plaintiff can make this showing in the first instance to the appellate court. [Citation.]" (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 322.)

Aside from a single assertion in the conclusion of her opening brief, Seay makes no attempt to show how she can correct the deficiencies of her first amended complaint to state viable causes of action against defendants. Indeed, the essence of her arguments is that the first amended complaint was not deficient in setting forth the facts for each of its seven causes of action. However, as we have explained, each of her causes of action arising under the FEHA suffers from multiple deficiencies, each of which is fatal to the granting of legal relief. Accordingly, the trial court did not abuse its discretion in sustaining without leave to amend defendants' demurrer to Seay's amended complaint.*fn5

DISPOSITION

The judgment of dismissal is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur: RAYE , P. J. HULL , J.


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