Yates v. Cal. State University of the East Bay CA1/3 ( 2022 )

Filed 4/29/22 Yates v. Cal. State University of the East Bay CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
DORIS YATES,
Plaintiff and Appellant,
A162131
v.
CALIFORNIA STATE UNIVERSITY (Alameda County
OF THE EAST BAY, Super. Ct. No. HG19029448)
Defendant and Respondent.
Plaintiff Doris Yates brought this action against her employer,
defendant California State University of the East Bay, for alleged violations
of the California Fair Employment and Housing Act (FEHA) (Gov. Code,
§ 12900 et seq.1) related to third party harassment by a student. The
operative complaint alleges that defendant failed to take all reasonably
necessary steps to prevent and address the student’s harassment and that
defendant unlawfully retaliated against plaintiff for asserting her rights
under FEHA. We conclude the trial court properly sustained defendant’s
demurrer without leave to amend, and we affirm the judgment of dismissal.
1 All further unlabeled statutory references are to this code.
1
FACTUAL AND PROCEDURAL BACKGROUND
The following facts, which we assume are true for purposes of
demurrer, are taken from the allegations of the third amended complaint and
from materials that were judicially noticed by the trial court.
At all relevant times, plaintiff was a tenured professor employed by
defendant. P.W. was a student enrolled in a class taught by plaintiff from
September to December of 2014 and at that time began to stalk her. The
harassment continued through 2019, though P.W. “is no longer a student” at
defendant’s campus.2 After plaintiff complained to defendant about P.W.’s
“unwelcome sexual behavior and hostile stalking behavior”, defendant
conducted an investigation.
Defendant’s investigation culminated in a written report dated April
14, 2015. The report found that: (1) P.W. admitted she sent plaintiff an
email on December 3, 2014 and acknowledged having personal feelings for
plaintiff; (2) P.W. admitted she brought a card to plaintiff’s office; (3) it is
probable that P.W. called plaintiff on two occasions and also sent plaintiff a
Facebook friend request on December 12, 2014; (4) P.W. sent plaintiff a
LinkedIn network request on December 8, 2014; (5) P.W. likely made random
calls and left voice messages for plaintiff at the beginning of the quarter;
(6) P.W. admitted she came to plaintiff’s office on February 5, 2015 to
apologize; and (7) P.W. attempted to contact plaintiff by email on February
28, 2015.
Based on these findings, the April 14, 2015 report determined that
plaintiff’s claims of sexual harassment were substantiated and that P.W.’s
conduct was “ ‘sufficiently severe or pervasive’ ” and “ ‘intimidating, hostile
and offensive’ ” that it violated defendant’s policy against sexual harassment
2 The complaint alleges P.W. continued as a student until 2019.
2
(Executive Order 1096). Despite its report findings, defendant allowed P.W.
to remain enrolled as a student, though it sanctioned P.W. “not to have any
contact with [plaintiff] whatsoever.” Thereafter P.W. continued her
harassing conduct, and defendant knew of this but allegedly failed to take all
reasonable steps necessary to prevent it and protect plaintiff from it.
In November 2015, plaintiff sought a civil harassment restraining order
against P.W. from the Alameda County Superior Court. In requesting the
restraining order, plaintiff submitted a declaration attesting that P.W.
harassed her by: sending her inappropriate e-mails though defendant’s e-
mail system on December 3 and 11, 2014; attempting to contact her via social
media and stopping by plaintiff’s work office; and sending a certified
document to plaintiff’s home on October 17, 2015. Plaintiff also referred to
defendant’s finding that P.W. had violated Executive Order 1096; defendant’s
sanction of P.W.; and P.W.’s violation of the sanction on “February 5 and 28,
April 28, October 17, 2015.” On December 17, 2015, the trial court issued a
restraining order, directing P.W. to stay at least 100 yards away from
plaintiff, her home, and her vehicle. The restraining order was set to expire
on December 17, 2018.
In December 2018, plaintiff filed a request to renew the restraining
order on the basis that P.W.’s behavior “was continuing and ongoing.” In
support of her request, plaintiff submitted a declaration stating that “[s]ince
the issuance of the original Restraining Order, [plaintiff has] been forced to
have continued contacts with [P.W.], through [plaintiff’s] Lawyer, as [P.W.]
exhausted, unsuccessfully, all appeals.” Plaintiff referenced two additional
incidents in 2018—one in March and one in November—in which P.W.
attempted contact with plaintiff through plaintiff’s attorney.
3
Meanwhile, on August 21, 2018, plaintiff filed a charge of
discrimination with the California Department of Fair Employment and
Housing (DFEH) alleging defendant’s violation of FEHA. After receiving a
right to sue letter from DFEH, plaintiff filed the underlying action for
violation of FEHA. This initial complaint alleged that a former student of
plaintiff’s at CSU East Bay stalked plaintiff from December 2014 through
November 2018; that plaintiff reported the problem to defendant; that
defendant failed to take all reasonable steps to ensure a safe workplace free
from sexual harassment; and that defendant’s inaction forced plaintiff to seek
a civil anti-harassment restraining order against the student. When
defendant objected to the initial complaint as vague and uncertain, plaintiff
voluntarily agreed to amend. Thereafter defendant objected to the sufficiency
of the first amended complaint to state a cause of action, and plaintiff
obtained leave of court to file a second amended complaint that included a
second cause of action for retaliation in violation of FEHA.
Defendant then demurred to the second amended complaint.
Defendant also filed a request for judicial notice of plaintiff’s filings in
support of the restraining orders she obtained against P.W. The judicial
notice request was granted without opposition.
The trial court found the second amended complaint deficient and
sustained the demurrer with leave to amend. It determined the first cause of
action was inadequately pleaded because it alleged only “that the stalking
began ‘in December 2014’ and ‘continued into November of 2018,’ ” without
“adequately alleg[ing] the specific nature of the conduct that plaintiff
contends amounts to ‘severe and pervasive’ harassment.” In granting leave
to amend, the court ordered plaintiff to amend this claim “with specificity by
stating the specific conduct that supports her claim of severe and pervasive
4
‘stalking,’ including precisely when it occurred, how often it occurred, and
where each such act occurred.”
The trial court then found the second cause of action for retaliation in
violation of FEHA deficient because it failed to identify and allege a material
adverse employment action. Although plaintiff had alleged a senior employee
of defendant directed her to resign or step down from an administrative
committee, the court found no allegation that plaintiff actually resigned or
was otherwise removed from the committee.
Thereafter plaintiff filed a third amended complaint (hereafter, the
complaint), which is the operative pleading at issue. The complaint alleges
that for several years, both before and after the restraining order was issued,
P.W. engaged in sexual harassment and stalking behavior by making
unwelcome sexual statements about plaintiff; sending unwanted
communications referencing plaintiff; and attempting to contact plaintiff
through social media.
After unsuccessful meet and confer efforts, defendant demurred to the
complaint on the grounds that it failed to allege sufficient facts to constitute a
cause of action against defendant and that plaintiff failed to cure the
pleading deficiencies previously identified by the trial court. The trial court
ultimately sustained the demurrer without leave to amend, finding the
complaint failed to comply with its previous ruling “requiring that plaintiff
plead with particularity the facts supporting her claims sufficient to
overcome the deficiencies of the Second Amended Complaint identified in the
06/28/2020 ruling.” The court ordered dismissal of the entire complaint and
entered a judgment accordingly.
5
DISCUSSION
The standard for reviewing an order sustaining a demurrer is settled.
“ ‘[W]e examine the operative complaint de novo to determine whether it
alleges facts sufficient to state a cause of action under any legal theory.’ ”
(King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050.) We assume the
truth of all properly pleaded material facts, but not contentions or
conclusions of law. (Mathews v. Becerra (2019) 8 Cal.5th 756, 768.) We also
consider matters that have been judicially noticed. (Ibid.) The complaint
must be read as a whole and given a reasonable interpretation. (Ibid.) When
a demurrer is sustained without leave to amend, “we consider whether there
is a ‘reasonable possibility’ that the defect in the complaint could be cured by
amendment.” (King, at p. 1050.) It is the plaintiff’s burden to prove that
amendment could cure the defect. (Ibid.)
A. First Cause of Action: Violation of FEHA (Hostile Work
Environment)
FEHA prohibits workplace harassment based on sex. (§ 12940,
subd. (j)(1).) “Hostile work environment sexual harassment occurs when
unwelcome comments or conduct based on sex unreasonably interfere with an
employee’s work performance or create an intimidating, hostile, or offensive
work environment.” (Cal. Code Regs., tit. 2, § 11034, subd. (f)(2).) Where, as
here, the harassment is committed against an employee by a nonemployee,
the employer may be liable when “it knows or should have known of the
conduct and fails to take immediate and appropriate corrective action.”
(§ 12940, subd. (j)(1); Cal. Code Regs., tit. 2, § 11034, subd. (f)(2)(C)(3).) In
such situations, courts consider “the extent of the employer’s control and any
other legal responsibility that the employer may have with respect to the
conduct of those nonemployees.” (§ 12940, subd. (j)(1).) The employer “shall
take all responsible steps to prevent harassment from occurring.” (Ibid.)
6
Two decisions—Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590 (Fisher) and Bradley v. Department of Corrections &
Rehabilitation (2008) 158 Cal.App.4th 1612 (Bradley)—are instructive in
assessing the sufficiency of plaintiff’s allegations. Although these cases
concerned harassment by a defendant’s employee (and not by a nonemployee
as in this case), Fisher addressed the necessity for specific pleading in hostile
work environment cases, while Bradley discussed the obligation of an
employer to take sufficient corrective action after a sexual harassment report.
In Fisher, the court held that a prima facie claim of work environment
sexual harassment includes the element that “the harassment complained of
was sufficiently pervasive so as to alter the conditions of employment and
create an abusive working environment.” (Fisher, supra, 214 Cal.App.3d at
p. 608.) There, a nurse had brought a FEHA claim predicated on allegations
that a doctor employed by the defendant “created a hostile work environment
for [the plaintiff] by his sexual harassment of other women employees in her
presence,” which included his unwelcome grabbing and kissing of other
nurses and making offensive sexual comments and gestures. (Fisher, at
p. 612.) Although the complaint described “in general terms what acts
occurred and where they occurred,” the Fisher court found the complaint
“deficient as there [was] no indication of the frequency or intensity with
which these acts occurred.” (Id. at p. 613.) Specifically, the court asked, “Did
each alleged act occur once in four years or did the acts occur on a daily or
weekly basis? Which acts occurred with any frequency—the remarks or the
offensive touchings? What acts occurred within the FEHA’s one-year statute
of limitations (§ 12960)?” (Ibid.) While acknowledging that “acts beyond the
statute of limitations might be relevant to showing a pattern of continuous
harassment,” the Fisher court concluded that a claim for environmental
7
sexual harassment would not be viable where “only a couple of acts occurred
during the one year preceding the filing of the complaint.” (Ibid.)
In Bradley, the appellate court explained that “[o]nce an employer is
informed of the sexual harassment, the employer must take adequate
remedial measures.” (Bradley, supra, 158 Cal.App.4th at p. 1630.) The
measures must be “reasonably calculated” to end the current harassment and
deter future harassment, and the “ ‘reasonableness of an employer’s remedy
will depend on its ability to stop harassment by the person who engaged in
harassment.’ ” (Ibid.) If the conduct of a harassing coworker occurs off of the
work premises where the employer has no control over the harasser, it is not
liable for the harasser’s action. (See id. at p. 1631.) Though Bradley agreed
with the employer that “the ‘most significant immediate measure an
employer can take in response to a sexual harassment complaint is to launch
a prompt investigation to determine whether the complaint is justified,’ ” the
court cautioned that initiating an investigation “cannot be the only step
taken.” (Ibid.) Thus, while the defendant employer undertook an
investigation and interviewed many individuals, Bradley upheld the jury’s
finding that its corrective action was insufficient because there was “no
followup, no evaluation of the need for protection, and no further
investigation.” (Ibid.) As Bradley recounted, the “sum total” of the
employer’s response “was to refer [plaintiff Bradley’s] complaint to a bogged-
down investigative process and to caution Bradley to protect herself.” (Id. at
p. 1634.) The employer also failed to advise Bradley about what was
happening to her complaint and did not respond to Bradley’s request for help
in serving a restraining order on the harasser even though the employer had
recommended the order. (Ibid.)
8
We now turn to the complaint and consider whether the first cause of
action contains the detail necessary to show that P.W.’s alleged harassment
was sufficiently pervasive such that it altered the conditions of employment
and created an abusive working environment (Fisher, supra, 214 Cal.App.3d
at p. 608) and that defendant failed to take reasonable measures that could
have stopped the harassment (Bradley, supra, 158 Cal.App.4th at p. 1630).
The first cause of action lists various examples of P.W.’s alleged
stalking behaviors, as follows.
Paragraph IV of the first cause of action summarily alleges that
defendant’s written report dated April 14, 2015, details “some of the stalking
behaviors.” While not attached to the complaint, a portion of this report is
quoted at length in paragraph XIX of the complaint’s general allegations and
is included in full in the materials that the trial court judicially noticed. The
report states that defendant investigated plaintiff’s claims of sexual
harassment by P.W., including incidents of harassment occurring in
December 2014 through February 2015, and determined the conduct violated
defendant’s Executive Order 1096, while paragraph IV of the first cause of
action alleges that defendant’s “investigation confirmed the sexual
harassment and severe and pervasive conduct” as described in the report.
Paragraph V identifies 16 examples of unwelcome sexual statements
made by P.W. In all but one instance, the complaint fails to indicate when
and how the identified statements were made or how and where they were
conveyed to plaintiff. That is, there is no indication whether a particular
statement was made in person and on campus, or by letter or email, or by
some other means. The one partial exception is the allegation stating:
“Writing in a December 6, 2018 document stating ‘Doris (Yates) would
become the love of my life.’ ”
9
Paragraph VI alleges P.W. sent unwanted email communications to
plaintiff, including eight communications on certain identified dates in
November and December 2014, one on February 28, 2015, and one on
December 12, 2015. This paragraph simply lists the dates on which emails
were allegedly sent but fails to identify the content of any particular email.
Paragraph VI also contains an allegation that “[e]mails continued to be sent
in 2016, 2017, and 2018,” with no further specificity.
Paragraph VII alleges approximately 20 other examples of P.W.’s
stalking behaviors. Ten of the examples are undated, and three explicitly
pertain to conduct predating defendant’s April 14, 2015 report. Another
instance allegedly occurred on April 28, 2015, and a total of three others
allegedly occurred in May and November 2016. The following alleged
communications occurred in 2018 and 2019: (1) P.W. sent “an email on or
about 3/6/2018 about ‘. . . showing up on school grounds with a weapon to
harm others’ ”; (2) P.W. stated “on or about 3/6/2018 that ‘. . . I don’t want
some one like [plaintiff] to push me to the brink of committing such an act’ ”;
(3) P.W. sent “12/2019 a LinkedIn Request directed toward [plaintiff] in
violation of the Restraining Order”; (4) P.W. looked “for [plaintiff] at a
Campus event on 10/19/2018”; and (5) P.W. “12/30/18 sent a Google hangout
letter to [plaintiff]”.
Paragraph VIII alleges in full: “During this general timeframe Plaintiff
began to receive a high volume of hang-up phone calls at her residence. This
had not happened in the past.”
Are these allegations sufficiently specific to state a hostile work
environment cause of action in violation of FEHA? As Fisher explained, a
complaint is deficient where it fails to allege facts showing severe and
pervasive harassment occurring within FEHA’s one-year statute of
10
limitations. (Fisher, supra, 214 Cal.App.3d at p. 613.) Here, plaintiff filed a
DFEH complaint against defendant on August 22, 2018, so we look to
whether the complaint alleges facts showing that severe and pervasive
harassment occurred on or after August 22, 2017 (ibid.) and whether those
acts occurred in the workplace or under circumstances in which defendant
maintained control or was reasonably positioned to stop the acts (see Bradley,
supra, 158 Cal.App.4th at pp. 1630–1631).
As recounted above, paragraphs IV and VI of the first cause of action
only cite specific examples of P.W.’s alleged harassing behavior that occurred
before August 22, 2017. Although paragraph V quotes 16 sexual comments
allegedly made by P.W., 15 of them are listed without any details as to when
or where or how the particular statements were made. However, it appears
from judicially noticed documents that the 15 quoted comments were
contained in emails predating 2015.3 Finally, paragraph VII lists 20
examples of P.W.’s alleged stalking behavior, but 15 of the 20 examples either
have no dates associated with them or are alleged to have occurred before
August 22, 2017.
Thus, only six out of all the communications and incidents identified in
the first cause of action—i.e., one cited in paragraph V and five cited in
paragraph VII—allege events occurring within the one-year limitations
period and are potentially actionable. (Fisher, supra, 214 Cal.App.3d at
3 The judicially noticed documents included plaintiff’s “Request for Civil
Harassment Restraining Orders against [P.W.],” which had been filed in
Alameda County Superior Court. One of the attachments to that request was
a printout of a single email—written by P.W. and sent to plaintiff on
December 3, 2014—which included 14 of the quoted comments in paragraph
V. Another attachment to the same request was a printout of an email from
P.W. to plaintiff dated December 9, 2014, which contained the fifteenth
quoted comment in paragraph V.
11
p. 613.) Those six alleged incidents consist of: P.W. sending an email on or
about March 6, 2018; P.W. making a statement on or about March 6, 2018
referencing plaintiff; P.W. looking for plaintiff at a campus event on October
19, 2018; P.W. writing in a December 6, 2018 document about plaintiff; P.W.
sending a Google hangout letter to plaintiff on December 30, 2018, and P.W.
sending a LinkedIn request to plaintiff in December 2019.
Apart from the one allegation stating that P.W. looked for plaintiff at a
campus event in October 2018, the complaint fails to specify whether any of
these communications and incidents directly involved plaintiff or whether
they occurred on defendant’s campus or under circumstances within
defendant’s control. Notably, two of the five communications allegedly
occurred over online platforms hosted by LinkedIn and Google. Moreover,
the allegations concerning the other three 2018 statements or emails are
bereft of any facts indicating they were made or sent directly to plaintiff. To
the contrary, judicially noticed documents indicate such statements and
emails were sent only to plaintiff’s attorney.4
Considering the totality of the circumstances, we cannot conclude these
incidents, as alleged, amounted to harassment that was sufficiently severe
and pervasive to have transformed defendant’s campus into an abusive
working environment for plaintiff. (Fisher, supra, 214 Cal.App.3d at p. 608.)
Indeed, even assuming the off-campus communications to plaintiff’s lawyer
might qualify as harassing conduct that was directed toward plaintiff, the
4 Specifically, as part of her December 2018 application to renew the
restraining order against P.W., plaintiff declared under penalty of perjury
that “[s]ince the issuance of the original Restraining Order I have been forced
to have continued contact with [P.W.], through my Lawyer, as [P.W.]
exhausted, unsuccessfully, all appeals.” Notably, there was no mention in
plaintiff’s declaration that P.W. confronted plaintiff directly.
12
complaint pleads no facts that, if proven, would demonstrate defendant’s
ability to have prevented these or any of the other incidents allegedly
occurring within the one-year limitations period. (Bradley, supra, 158
Cal.App.4th at pp. 1630–1631; Fisher, supra, 214 Cal.App.3d at p. 613.)
Plaintiff has had several informal and formal opportunities to amend in
the face of defendant’s repeated challenges to the sufficiency of her pleadings.
Moreover, when the trial court sustained defendant’s demurrer to the second
amended complaint and granted plaintiff leave to amend, it expressly
instructed her to “do so with specificity by stating the specific conduct that
supports her claim of severe and pervasive ‘stalking,’ including precisely
when it occurred, how often it occurred, and where each such act occurred.”
In light of plaintiff’s inadequate response to the court’s order, and the
circumstance that plaintiff has offered no indication of an ability or
willingness to cure the pleading deficiencies identified by the trial court, we
see no reasonable possibility of amendments that could satisfy the pleading
requirements. (See Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86,
97.) Accordingly, the trial court properly sustained the demurrer to this
cause of action without leave to amend.
B. Second Cause of Action: Violation of FEHA (Retaliation for
Asserting Rights Under FEHA)
FEHA makes it an unlawful employment practice for an employer to
“discharge, expel, or otherwise discriminate against any person . . . because
the person has filed a complaint” pursuant to FEHA. (§ 12940, subd. (h).) To
establish a prima facie case of retaliation under FEHA, the 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. [Citations.]”
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) The
13
prohibition against retaliation extends to “the entire spectrum of employment
actions,” including “adverse treatment that is reasonably likely to impair a
reasonable employee’s job performance or prospects for advancement or
promotion.” (Id. at pp. 1054–1055.) “Once an employee establishes a prima
facie case, the employer is required to offer a legitimate, nonretaliatory
reason for the adverse employment action.” (Id. at p. 1042.) “If the employer
produces a legitimate reason for the adverse employment action, the
presumption of retaliation ‘drops out of the picture,’ and the burden shifts
back to the employee to prove intentional retaliation.” (Ibid.)
Plaintiff’s second cause of action contains the following allegations. In
September 2019, Associate Provost Linda Dobb “stated in substance and
effect to Plaintiff that because she had asserted her rights under FEHA by
bringing this lawsuit and was seeking redress of her unwaiveable [sic]
Statutory Civil Rights for a FEHA violation, she must resign from or step
down from an Academic Committee, the University Administrative Review
Committee [the Committee].” Service on committees such as the Committee,
“while not mandatory, [is] part of the Tenure and post Tenure performance
review process and [is] important in the standing and advancement of
Plaintiff’s career and stature within the University Academic Community”
and “enables Plaintiff to better perform her role as a Tenured member of the
Faculty . . . .” Ms. Dobb’s use of “mandatory language” in directing plaintiff
to resign had “a coercive effect” and “would reasonably be received by fellow
faculty as an attack on Plaintiff’s integrity, ethics and impartiality, damaging
Plaintiff’s standing and reputation among her fellow members of the
Academic Community.” Following plaintiff’s amendment of the complaint to
allege the second cause of action, “Plaintiff received a written communication
from Dr. Leroy Morishita, President of the University,” stating that
14
“ ‘circumstances make it clear that you have a conflict of interest that might
compromise the Committee’s neutrality if you participate in its reviews . . .’ ”
After “Plaintiff refused to resign from the Committee,” her term “expired.”
Although plaintiff “is eligible for re-election” to the Committee, defendant’s
management have not responded to plaintiff’s inquiries about re-election.
“Other members of the Committee have not been treated in that fashion.”
As the trial court found, this second cause of action sufficiently alleges
that plaintiff engaged in protected activity (i.e., filing a discrimination charge
with DFEH), but it fails to identify and allege a “substantial and material
adverse effect on the terms and conditions of the plaintiff’s employment”
(McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th
377, 387; see Yanowitz, supra, 36 Cal.4th at p. 1052.) Although plaintiff
alleges the Academic Provost’s use of mandatory language in directing her to
resign had “a coercive effect,” there is no allegation that plaintiff actually
resigned or was otherwise removed from the Committee. To the contrary,
plaintiff expressly alleges that she refused to resign and that she was eligible
for re-election after her term on the committee expired. And while plaintiff
conclusorily alleges that defendant was unresponsive to her re-election
inquiries, she does not allege that defendant barred or interfered with any
efforts she may have taken to seek re-election. Accordingly, even assuming
Ms. Dobb and Dr. Morishita made the comments as alleged, plaintiff points to
no authority holding that “a single threat of an adverse employment action,
never carried out”—in and of itself—constitutes an actionable adverse action.
(Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 879.)
Again, in light of plaintiff’s inadequate response to the court’s order
and the lack of any indication that plaintiff can cure the pleading deficiencies
identified by the trial court, we see no reasonable possibility of amendments
15
that could satisfy the pleading requirements. (Schulz v. Neovi Data Corp.,
supra, 152 Cal.App.4th at p. 97.) Accordingly, the trial court properly
sustained the demurrer to the second cause of action without leave to amend.
DISPOSITION
The judgment of dismissal is affirmed. Defendant is entitled to its
costs on appeal.
16
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Rodrìguez, J.
A162131
17