California Court of Appeals, Fourth District, Second Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from the Superior Court of San Bernardino County, No. CIVVS1103729 Marsha Slough, Judge.
[Copyrighted Material Omitted]
Law Offices of Foroozandeh and Majid Foroozandeh for Plaintiff and Appellant.
Crone Hawxhurst, Gerald E. Hawxhurst and Daryl M. Crone for Defendants and Respondents.
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
(Young); (4) Caesar Vargas (Vargas); and (5) Graham Bailey (Bailey). The causes of action included (a) wrongful termination against Dr. Pepper and Mott’s; (b) sex discrimination against all defendants; and (c) breach of contract against Dr. Pepper and Mott’s. The trial court sustained, without leave to amend, the demurrer of Dr. Pepper, Vargas, Bailey, and Mott’s. The trial court also sanctioned Carlton and his trial counsel jointly and severally in the amount of $1, 360 due to Carlton’s “wholly unjustified” interrogatory responses.
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.
FACTUAL AND PROCEDURAL HISTORY
The facts in this subsection 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 bi-weekly 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.
Later that same day, Sloan was in Carlton’s office when Bailey entered. Bailey is a manager. Sloan told Bailey, “‘[Y]ou’ve got to see this picture.’” Carlton said, “‘This is [Sloan’s] new boyfriend.’” Bailey responded, “‘Oh my God... poor guy!’” Sloan and Bailey then left Carlton’s office.
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.
B. ORIGINAL AND FIRST AMENDED COMPLAINTS
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 ...