You are on page 1of 17

1 APALLA U. CHOPRA (S.B.

#163207)
achopra@omm.com
2 MOLLY M. LENS (S.B. #283867)
mlens@omm.com
3 ZACHARY L. DEKEL (S.B. #310593)
zdekel@omm.com
4 O’MELVENY & MYERS LLP
1999 Avenue of the Stars
5 Los Angeles, California 90067-6035
Telephone: (310)553-6700
6 Facsimile: (310)246-6779
7 Attorneys for Defendants Twentieth Century Fox
Film Corporation and Twentieth Century Fox
8 Television

9 [Additional counsel listed on signature page]

10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
12
13
YOUNGJOO HWANG, an individual, Case No. BC699005
14
Plaintiff, Assignedfor all purposes to Hon. Holly J.
15 Fujie (Dept. 56)
v.
16 DEFENDANTS’ REPLY TO
FRED SAVAGE, an individual; OPPOSITION TO DEMURRER TO
17 TWENTIETH CENTURY FOX FILM PLAINTIFF’S SECOND AMENDED
CORP., a business entity of unknown form;
TWENTIETH CENTURY FOX COMPLAINT
18
TELEVISION, a business entity of unknown
form; and DOES 1 through 50, inclusive, Compl.: March 21,2018
19 Second Am. Compl.: Sept. 18,2018
Defendants. Trial Date: May 6, 2019
20
Hearing Date: December 12,2018
21 Time: 8:30 a.m.
22 Reservation ID: 181024359711
23
24

25

26

27

28

1
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION..............................................................................................................5

4 II. ARGUMENT......................................................................................................................6

5 A. Plaintiffs Civil Code Claims (Counts 1,2, & 3) Fail Against All
Defendants..............................................................................................................6
6
B. Plaintiffs FEHA Claim (Count 4) Fails Against Fox............................................8
7
C. Plaintiffs Negligent Hiring, Supervision And Retention Claim (Count 5)
8 Fails Against Fox....................................................................................................9

9 D. Plaintiffs IIED Claim (Count 6) Fails Against All Defendants...........................10

10 E. Plaintiffs NIED Claim (Count 7) Fails Against All Defendants......................... 12

11 F. Plaintiffs Civil Conspiracy Claim (Count 8) Fails Against All Defendants....... 13

12 G. Plaintiffs UCL Claim (Count 9) Fails Against All Defendants............................ 13

13 III. CONCLUSION..........,.................................................................................................... 14

14

15
16
17
18

19

20
21
22
23
24

25
26

27

28

2
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
1 TABLE OF AUTHORITIES
2 Page
3 Cases

4 Arya v. CalPERS,
943 F. Supp. 2d 1062 (E.D. Cal. 2013)....................................................................................... 7
5
Aryeh v. Canon Bus. Sols., Inc.,
6 55 Cal. 4th 1185 (2013)............................................................................................................ 10

7 Aubry v. Tri-City Hosp. Dist.,
2 Cal. 4th 962 (1992)..................................................................................................................8
8
Badie v. Bank ofAmerica,
9 67 Cal. App. 4th 779 (1998).......................................................................................................8

10 Bank ofthe West v. Superior Court,
2 Cal. 4th 1254 (1992)..............................................................................................................14
11
Campanano v. California Med. Ctr.,
12 38 Cal. App. 4th 1322 (1995)................................................................................................... 13

13 Davis v. Farmers Insurance Exchange,
245 Cal. App. 4th 1302 (2016).................................................................................................14
14
Del E. Webb Corp. v. Structural Materials Co.,
15 123 Cal. App. 3d 593(181).....................................................................................................5,8

16 Delfino v. Agilent Techs., Inc.,
145 Cal. App. 4th 790 (2006)................................................................................................... 10
17
Farmers Ins. Exch. v. Superior Court,
18 218 Cal. App. 4th 96 (2013)...................................................................................................... 6

19 Farmers Ins. Grp. v. Cty. ofSanta Clara,
11 Cal. 4th 992 (1995)........................................................................................................ 11,12
20
Fisher v. San Pedro Peninsula Hosp.,
21 214 Cal. App. 3d 590(1989)..................................................................................................... 11

22 Howard Jarvis Taxpayers Assn. v. City ofLa Habra,
25 Cal. 4th 809 (2001)............................................................................................................. 10
23
Janken v. GM Hughers Electronics,
24 46 Cal. App. 4th 55 (1996)....................................................................................................... 12

25 Le Francois v. Goel,
35 Cal. 4th 1094 (2005), as modified (June 10, 2005)................................................................5
26
Leitner v. Sadhana Temple ofNew York, Inc.,
27 2014 WL 12588645 (C.D. Cal. June 10, 2014)........................................................................11

28 Lesperance v. N. Am. Aviation, Inc.,
217 Cal. App. 2d 336(1963)...................................................................................................... 8
3
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
1 TABLE OF AUTHORITIES
(continued)
2 Page
3 Madrid v. Perot Sys. Corp
130 Cal. App. 4th 440 (2005)................................................................................................... 14
4
Maheu v. CBS,
5 201 Cal. App. 3d 662 (1988)..................................................................................................... 13

6 Mark K. v. Roman Catholic Archbishop,
67 Cal. App. 4th 603 (1998).......................................................................................................9
7
Medix Ambulance Serv., Inc. v. Superior Court,
8 97 Cal. App. 4th 109 (2002).......................................................................................................8

9 Miller v. Lakeside Vill. Condo. Assn.,
1 Cal. App. 4th 1611 (1991).......................................................................................................9
10
NTP Marble, Inc. v. AAA Hellenic Marble, Inc.,
11 799 F. Supp. 2d 446 (E.D. Pa. 2011)........................................................................................12

12 Parnigoni v. St. Columba's Nursery Sch.,
681 F. Supp. 2d 1 (D.D.C. 2010)..............................................................................................12
13
People ex rel. Harris v. Sarpas,
14 225 Cal. App. 4th 1539 (2014).................................................................................................. 13

15 Peterson v. US. Bancorp Equip. Fin., Inc.,
2010 WL 2794359 (N.D. Cal. July 15,2010).............................................................................7
16
Shersher v. Superior Court,
17 154 Cal. App. 4th 1491 (2007)................................................................................................. 13

18 Thompson v. City ofMonrovia,
186 Cal. App. 4th 860 (2010).....................................................................................................9
19
U.S. Equal Employment Opportunity Commission v. PC Iron,
20 2018 WL 2018103 (S.D. Cal. May 1,2018)................................................................................9

21 Yottnan v. Caruso,
51 Cal. App. 4th 401 (1996)........................................................................................................5
22
Statutes
23
Cal. Civ. Code § 52.4(e).................................................................................................................8
24
Rules
25
C.R.C.§ 3.1113(g).......................................................................................................................... 5
26
C.R.C. § 3.1300(d).......................................................................................................................... 5
27
C.R.C. §§3.1113(d)........................................................................................................................ 5
28

4
MEMO ISO DEFENDANTS’ DEMURRER TO SAC
1 I. INTRODUCTION1
2 Plaintiff’s Opposition confirms that her complaint should be dismissed in its entirety. As
3 an initial matter, the Court should grant Fox’s proper and unopposed request that the Court take
4 judicial notice of plaintiffs sworn interrogatory responses. See Dem. at 12-13 (citing authorities
5 for proposition that sworn interrogatory responses are judicially noticeable on demurrer); RJN at
6 3 (citing additional authorities); Younan v. Caruso, 51 Cal. App. 4th 401,406 n.3 (1996)
7 (“[Fjailure to timely object to the propriety of judicial notice in opposition to [] dismissal motion
8 is deemed a waiver of that objection.”). Plaintiffs interrogatory responses confirm that her
9 employment on “The Grinder”—the only time when plaintiff worked with Mr. Savage—was
10 limited to 2015. Here, in its August 28, 2018 Order (the “Order”) on defendants’ prior demurrers,
11 the Court already adjudicated that Counts 2, 4, 5, 6, and 7 are all governed by a two-year statute
12 of limitations. Accordingly, because plaintiff sjudicially-noticeable interrogatory responses

13 confirm that Counts 2, 4, 5, 6, and 7 are all time-barred, defendants’ demurrer should be sustained

14 as to those counts. See, e.g., Del E. Webb Corp. v. Structural Materials Co., 123 Cal. App. 3d

15 593, 604 (181) (“A pleading valid on its face may nevertheless be subject to demurrer when
16 matters judicially noticed by the court render the complaint meritless.”).
17 In the balance of her Opposition, plaintiff either improperly seeks to re-litigate arguments

18 that the Court already rejected in the Order, in some cases copying wholesale arguments word-

19 for-word from her prior papers, or fails to refute that her SAC fails for the same reasons that the
20 FAC did. Setting aside plaintiffs improper attempt to burden the Court with issues already

21 adjudicated, see, e.g.,Le Francois v. Goel, 35 Cal. 4th 1094, 1108 (2005), as modified (June 10,
22 2005), the Court can summarily reject these arguments for the same reasons previously found.
23 There is no basis for the Court to grant leave yet again. Despite ample opportunity,

24 plaintiff has failed to state any valid claim for relief. That is because she has no claim. Dismissal

25 should be with prejudice.2

26 1 All capitalized terms have the same meaning as defined in defendants’ Demurrer and all emphasis
27 is added unless noted otherwise.
2 In violation of this Court’s rules, plaintiffs opposition exceeds 15 pages, thereby providing this
28 Court with discretion to disregard it. See C.R.C. §§3.1113(d), 3.1300(d), 3.1113(g).
5
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
1 II. ARGUMENT
2 A. Plaintiffs Civil Code Claims (Counts 1.2. & 3) Fail Asaittst All Defendants
3 Plaintiffs Opposition confirms that her three Civil Code claims should be dismissed.
4 First, plaintiff has not plead the requisite gender nexus for her first three causes of action,
5 with “each of these causes of action requiring] that Savage’s conduct, at least in part, arise from
6 conduct constituting gender discrimination or harassment.” See Order at 7? The conduct in
7 question for all three claims is limited to the allegation that Mr. Savage struck plaintiffs arm
8 when she started to brush something off his shoulder. See SAC U 41 (alleging, as the basis for the
9 first cause of action, that “Savage’s conduct... does constitute one or more criminal offenses ...
10 that has an element the use, the attempted use, or threatened use ofphysical force against
11 plaintiff’); SAC ^ 47 (alleging, as the basis for the second cause of action, that “Savage acted
12 violently against Plaintiff to prevent her from exercising her constitutional rights to work in a

13 work environment free of gender harassment and discrimination ...”); SAC % 54 (alleging, as the

14 basis for the third cause of action, that “Savage committed a violent act against Plaintiff ’); see

15 also Dem. at 10 (detailing how each of these civil counts requires a violent act, a threat of a

16 violence, or other intimidation or coercion). As set forth in the Demurrer, plaintiffs conclusory
17 allegations that this specific act, viz the striking of plaintiffs arm, was motivated by “gender” are

18 too conclusory to survive demurrer. See Dem. at 10-12.

19 Plaintiff seeks to defeat defendants’ demurrer by repeating her allegations that, at best,
20 stand for the point that Savage allegedly has a “reputation” for treating women worse than men.
21 Opp. at 3-5. From these allegations, plaintiff alleges that Savage’s gender motivation “is

22 evidenced by his prior history, and the contrast in the way that he treated women versus men and

23 because there is no other explanation for Savage’s behavior other than his gender animus.” Opp.3 * * 6
24

25 3 Plaintiffs Opposition disputes this requirement for her second cause of action, thereby improperly
seeking to re-litigate an issue that the Court already decided in the context of the first demurrer.
26 See, e.g., Le Francois, 35 Cal. 4th at 1108 (2005) (absent a formal motion for reconsideration a
“court need not rule on any suggestion that it should reconsider a previous ruling and, without more,
27 another party would not be expected to respond to such a suggestion”); Farmers Ins. Exch. v.
Superior Court, 218 Cal. App. 4th 96, 102 n.10 (2013) (same). As addressed below, this is
28 unfortunately a theme of plaintiffs Opposition.
6
DEFENDANTS’ REPLY 1SODEMURRER TO SAC
1 at 5 (emphasis in original). Plaintiff, however, ignores that the only question for her first three
2 causes of action is whether the alleged striking was motivated by gender. She does not—and
3 cannot—dispute that the only new allegation on the alleged striking is the SAC’s comment that
4 “[i]t is notable that Defendant Savage never assaulted or battered any males on ‘The Grinder.’”
5 SAC K 28. Of course, it is equally true that Plaintiff does not allege that Mr. Savage ever
6 assaulted or battered anyone else—male orfemale—on any set, much less any other location.
7 Plaintiffs allegation that Savage never hit anyone else cannot possibly transform plaintiff’s
8 previously insufficient allegations to sufficient allegations. See, e.g., Arya v. CalPERS, 943 F.
9 Supp. 2d 1062,1069-70 (E.D. Cal. 2013) (granting motion on the pleadings because plaintiffs
10 claim that “defendant’s conduct can only be explained by discriminatory animus” was “entirely
11 speculative”); Peterson v. U.S. Bancorp Equip. Fin., Inc., 2010 WL 2794359, at *1-3 (N.D. Cal.
12 July 15,2010) (allegation that “similarly-situated [individuals] outside her protected class” were
13 treated more favorably, too conclusory to support FEHA claims at the pleading stage).
14 Second, plaintiff gamely repeats her (mistaken) argument that her second cause of action
15 (under Civil Code section 52.1) is subject to a three-year statute of limitations. Opp. at 6-7. The
16 Court, however, has already rejected this argument, holding that “Plaintiffs claim for violation of
17 Civ. Code. § 52.1 is subject to a two-year statute of limitation.” Order at 4.4 Here, as plaintiffs

18 sworn interrogatory responses confirm, the alleged striking occurred in 2015. See Dem. at 12;

19 RJN at 3-4. Plaintiff does not—and could not—dispute that the Court can take judicial notice of
20 her interrogatory responses, thereby waiving any (futile) argument to the contrary. See Younan,
21 51 Cal. App. 4th at 406 n.3 (“[F]ailure to timely object to the propriety ofjudicial notice in
22 opposition to [] dismissal motion is deemed a waiver of that objection.”); see also Order at 3

23 (granting defendants’ “unopposed request” to take judicial notice of plaintiffs DFEH complaint).
24 Accordingly, because she did not file her complaint until March 2018—more than two years after
25 the alleged striking—her second cause of action is time-barred.

26 Third, plaintiff does not—and could not—dispute that Section 52.4 does not permit4

27
4 Plaintiffs argument is repeated verbatim from her opposition to defendants’ prior demurrers.
28 Compare Opp, at 6-7 with Plaintiffs Opposition to Savage Demurrer to FAC, at 3-4.
7
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
1 vicarious liability. See Badie v. Bank ofAmerica, 67 Cal. App. 4th 779, 784-785 (1998)
2 (contentions waived when there is a failure to support them with “reasoned argument and
3 citations to authority.”); see also Cal. Civ. Code § 52.4(e) (“/T]his section does not establish any
4 civil liability ofa person because ofhis or her status as an employer, unless the employer
5 personally committed an act of gender violence.”). Accordingly, her third cause of action as to
6 Fox fails as a matter of law for this independent reason.
7 B. Plaintiffs FEHA Claim (Count 4) Fails Asainst Fox
8 Plaintiff filed her DFEH complaint on February 21,2018. See RJN, Ex. A; Order at 3
9 (taking judicial notice of DFEH complaint); Opp. at 8 (admitting that the DFEH complaint is
10 dated February 21, 2018). Her suit is therefore necessarily limited to any conduct occurring
11 within one year prior to the filing of that complaint, i.e., actions occurring after February 21,
12 2017. See Dem. at 14; Order at 3-4. Plaintiff alleges that discriminatory conduct occurred during
13 plaintiffs employment on “The Grinder,” with, as per her judicially-noticeable interrogatory
14 responses, her employment ending in 2015. See supra § II. A. Plaintiff is thus time barred from

15 asserting a claim based on conduct on “The Grinder.” See, e.g., Medix Ambulance Serv., Inc. v.
16 Superior Court, 97 Cal. App. 4th 109, 118 (2002) (demurrer as to FEHA claim should have been
17 sustained for failure to exhaust administrative remedies); see also Dem. at 14-15.
18 Plaintiff attempts to salvage her untimely FEHA claim through two arguments. First, she
19 argues the Court must “deem[ ] true” her allegation that she filed her DFEH complaint “within
20 the time proscribed by law.” Opp. at 7-8. But the law is clear that “courts will not close their
21 eyes to situations where a complaint contains ... allegations contrary to facts which are judicially
22 noticed.” Del E. Webb Corp., 123 Cal. App. 3d at 604.5 Second, plaintiff argues that her
23 attorney’s February 2018 demand letter triggered a new obligation on Fox to investigate, and that
24 plaintiffs claims are timely because she filed her DFEH complaint with one year of her
25 attorney’s demand letter. Opp. at 8. This is patently wrong. Plaintiffs argument would render

26
5 See also Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th 962, 967 (1992) (The court does not... assume
27 the truth of contentions, deductions or conclusions of law.”); Lesperance v. N. Am. Aviation, Inc.,
217 Cal. App. 2d 336, 343 (1963) (“It is elementary that a pleading must allege facts and not
28 conclusions ....”).
8
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
1 the requirement that plaintiffs file a DFEH complaint within one year of the actionable conduct a
2 nullity. Indeed, under plaintiffs theory, the DFEH complaint itself would trigger yet another
3 limitations period, even though the statute clearly contemplates that the DFEH complaint is the
4 end date for the period of actionable conduct, not the start date as plaintiff claims. Not
5 surprisingly then, California Courts do not agree. For example, in Thompson v. City ofMonrovia,
6 the Court rejected the claim that the plaintiffs September 2007 DFEH complaint triggered a duty
7 to investigate when the alleged discrimination “occurred no later than March 2006, more than a
8 year prior to [plaintiffs] DFEH complaint.” 186 Cal. App. 4th 860, 880 (2010). As the Court
9 held, “because [FEHA] does not create a stand-alone tort” for failure to investigate, there can be
10 no claim for failure to investigate where, as here, there is no “actionable misconduct” because the
11 underlying conduct is time barred. Id. Similarly, in U.S. Equal Employment Opportunity
12 Commission v. PC Iron, 2018 WL 2018103 (S.D. Cal. May 1,2018), the Court dismissed a claim
13 for failure to investigate because the alleged harassment occurred more than one year prior to the
14 DFEH complaint, that is, the Court found that no independent duty to investigate was triggered by
15 the DFEH complaint. See also Dem. at 15 (citing additional cases).6 * * 9

16 C. Plaintiffs Negligent Hiring, Supervision And Retention Claim (Count 5) Fails
Aeahist Fox
17

18 The Court has already determined that Count 5 is governed by a two-year statute of
19 limitations, which plaintiff does not dispute. Order at 3-4; compare Dem. at 15, with Opp. at 9-

20 10. Because Savage allegedly harmed plaintiff in 2015 (i.e. the only time they worked together),
21 Count 5 is time-barred. See Mark K. v. Roman Catholic Archbishop, 67 Cal. App. 4th 603, 612
22 (1998) (negligent hiring and supervision claim accrued when “as a result of the [defendant’s]

23 breach of duty, plaintiff was [injured]”); see also Miller v. Lakeside Vill. Condo. Assn., 1 Cal.
24 App. 4th 1611, 1623 (1991) (“[T]he general rule is that the cause of action is complete on the
25

26 6 Plaintiff tries to distinguish these cases by arguing that they do not support Defendants’ “legally
false argument that a complaint of discrimination or harassment by an employee does not trigger a
27 duty to investigate under FEHA.” Opp. at 9. Of course, defendants make no such argument but
rather contend that FEHA requires that a plaintiff file a DFEH complaint within one year of the
28 alleged conduct that defendant failed to investigate for such claim to be timely.
9
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
I
1 sustaining of actual and appreciable harm.”).
2 Plaintiff makes two arguments to try to save her untimely claim. First, she argues that
3 both she and Savage remain employed by Fox (though she admits that they do not work together).
4 See Opp. at 9-10; FAC H 34. This is irrelevant because plaintiff and Savage’s working
5 relationship, which started and ended in 2015, is the claimed cause of plaintiffs injury. See
6 Delfino v, Agilent Techs., Inc., 145 Cal. App. 4th 790, 817 (2006) (negligent supervision and/or
7 retention claim failed where, inter alia, “alleged negligence ... was not the cause of plaintiffs’
8 claimed injuries”).7 Second, plaintiff incorrectly attempts to invoke the continuous accrual
9 doctrine, which has no application here. Opp. at 10. “[Ujnder the theory of continuous accrual, a
10 series of wrongs or injuries may be viewed as each triggering its own limitations period, such that
11 a suit for relief may be partially time-barred as to older events but timely as to those within the
12 applicable limitations period.” Aryeh v. Canon Bits. Sols., Inc., 55 Cal. 4th 1185, 1192 (2013)
13 (citations omitted). Thus, the continuous accrual doctrine does not revive stale claims but rather
14 allows recovery only for damages arising from conduct falling within the limitations period. Id.
15 at 1199. Accordingly, even if the continuous accrual doctrine applied here, and it does not, it
16 could not help plaintiff since, again, the alleged injury occurred in 2015.8

17 D. Plaintiffs IIEP Claim (Count 6) Fails Aeainst All Defendants
18 Plaintiff fails to refute that Count 6 fails for two independent reasons.
19 First. Count 6 is time-barred against all defendants. The Court has already determined
20 that plaintiffs IIED claim is subject to a two-year statute of limitations, which plaintiff does not
21 dispute. Order at 3-4; compare Dem. at 16 with Opp. at 10-11. Mr. Savage purportedly inflicted
22 emotional distress on plaintiff during her employment on “The Grinder,” see, e.g., SAC 26 &
23 29, with plaintiffs employment on “The Grinder”—per plaintiff sjudicially-noticeable7 8 * 10

24

25 7 Plaintiff argues that she alleges that her “injuries and the wrongful acts of all Defendants
continue to date.” See Opp. at 9. Conclusory allegations such as these, and those in paragraphs
26 73 and 74, are insufficient to withstand demurrer. See Dem. at 9-10. Moreover, as explained
27 above, the statute of limitations accrued at the time of plaintiffs claimed injury, i.e., in 2015.
8 As in Aryeh, the continuous accrual doctrine tends to be applied in cases involving periodic
28 charges. See Howard Jarvis Taxpayers Assn. v. City ofLa Habra, 25 Cal. 4th 809, 821 (2001).
10
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
1 admission—concluding in 2015. Accordingly, plaintiffs IIED claim against all defendants is
2 time-barred. See Dem. at 16 (citing cases that statute of limitations for IIED accrues upon
3 infliction of emotional distress). While plaintiff tries to save her untimely claim by arguing that
4 “her injuries and the wrongful acts of Defendants continue to date,” see Opp. at 10, as noted
5 previously, see supra n.7, a plaintiff cannot so easily avoid the statute of limitations. See, e.g.,
6 Leitner v. Sadhana Temple ofNew York, Inc., 2014 WL 12588645, at *3, *21 (C.D. Cal. June 10,
7 2014) (2013 IIED claim premised on abuse between 1970-2003 was time-barred despite
8 allegations that plaintiff continued to suffer harm). Moreover, the only conduct plaintiff alleges
9 that occurred after her employment on “The Grinder”—defendants’ press statements to the media,
10 denying plaintiffs claims (which were made in response to plaintiffs televised press
11 conference)—is not actionable as a matter of law for the reasons stated below.
12 Second. Count 6 fails against Fox because plaintiff has failed to plead that Fox engaged in
13 “outrageous conduct beyond the bounds of human decency.” Plaintiff, however, asserts that her
14 IIED claim “survives Demurrer under three separate theories.” Opp. at 11. First, plaintiff argues
15 that Fox is liable under a civil conspiracy theory. As plaintiff herself acknowledges, however,
16 she has a separate claim (Count 8) for civil conspiracy. Opp. at 12. Second, plaintiff argues that
17 “this Court held, in its August 29,2018 ‘Order’ at page 12, that the alleged violence perpetrated
18 by Savage constitutes extreme or outrageous conduct for purposes of an IIED claim against
19 Savage. This is established.”9 With her SAC, for the first time, plaintiff tries to hold Fox
20 vicariously liable for Mr. Savage’s alleged violent act. As plaintiffs own cited law recognizes,
21 however, Fox is only liable for acts within the scope of Mr. Savage’s employment. Opp. at 12
22 (citing Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 618 (1989) (“[I]n order to
23 hold SPPH liable for Dr. Tischler’s tort of intentional infliction of emotional distress, plaintiffs
24 will have to prove ... that Dr. Tischler was acting within the scope of his employment.”).
25 Plaintiff cannot contend that the alleged “violent striking” of plaintiff by Mr. Savage was an act
26 within the scope of Mr. Savage’s employment. See, e.g., Fanners Ins. Grp. v. Cty. ofSanta9 * 11
27
9 Plaintiff thus agrees that the Order is binding on issues that she prevailed on, even though, as
28 addressed throughout, plaintiff repeatedly seeks to re-litigate the issues in the Order that she lost.
11
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
I Clara, 11 Cal. 4th 992, 1006 (1995) (“[VJicarious liability is deemed inappropriate where the
2 misconduct does not arise from the conduct of the employer’s enterprise but instead arises out of
3 a personal dispute.”); see also SAC 25, 28 (alleging that Mr. Savage “made it abundantly clear
4 that he did not like Plaintiff’ and that he struck plaintiff after yelling at her to stop touching him).
5 Third, and finally, plaintiff alleges that Fox engaged in a “chain and pattern of outrageous
6 conduct sufficient to support the IIED claim.” Opp. at 12-13. However, with one exception, the
7 Court has already determined that all the conduct in this alleged “chain and pattern” is insufficient
8 to support an IIED claim. See Order at 13 (finding that allegations about Fox’s management of
9 Savage, including its alleged failure to investigate him, was insufficient to state an IIED claim);
10 see also Janken v. GM Hughers Electronics, 46 Cal. App. 4th 55, 80 (1996) (“A simple pleading
11 of personnel management activity is insufficient to support a claim of intentional infliction of
12 emotional distress, even if improper motivation is alleged.”). The sole new allegation is that Fox
13 “released [a] public statement^ to the media,” denying that plaintiffs claims were true. Opp. at

14 14. Like her management claims, however, the law is clear that issuing a press statement

15 defending oneself against claims in a lawsuit is not so extreme as to exceed all bounds of that

16 usually tolerated in a civilized community. See, e.g., NTP Marble, Inc. v. AAA Hellenic Marble,
17 Inc., 799 F. Supp. 2d 446,454 (E.D. Pa. 2011) (granting motion to dismiss IIED claim where
18 party “publish[ed] a press release containing allegedly defamatory statements ... and then
19 refus[ed] to retract said press release”); Parnigoni v. St. Columba’s Nursery Sch., 681 F. Supp. 2d

20 1, 10,23-24 (D.D.C. 2010) (granting motion to dismiss IIED claim where defendants sent letters
21 to over 3,500 households revealing that plaintiffs husband was a convicted sex offender and

22 casting plaintiff as a “threat to children”); see also Dem. at 17 (citing additional cases).10

23 E. Plaintiffs NIED Claim (Count 71 Fails Aeainst All Dependants
24 The Court has already determined that NIED claims are subject to a two-year statute of

25 limitations, which plaintiff does not dispute. Order at 3-4; compare Dem. at 18, with Opp. at 15.10 * 12

26

27 10 Through her argument that the press allegation “does not stand alone and should be viewed as
part of the pattern of outrageous conduct of Defendants,” Opp. at 14, plaintiff implicitly concedes
28 that the press statement, on its own, would not be sufficiently outrageous.
12
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
1 As with her IIED claim, because plaintiff alleges that the injury-producing conduct and the onset
2 of the injury occurred in 2015, see supra § II.D, her NIED claim is time-barred as a matter of law.
3 See Campanano v. California Med Ctr., 38 Cal. App. 4th 1322, 1325, 1329 n.4 (1995).
4 F. Plaintiffs Civil Conspiracy Claim (Count 81 Fails Against AU Defendants
5 Plaintiffs Opposition (finally) admits that her civil conspiracy claim is not (and could not
6 be) pled as to all Counts but rather concedes that it is limited to “Causes of Action One, Two,
7 Three, Six, and Seven.” Opp. at 15. With this concession, there is no question that her
8 conspiracy claim fails. First, as noted above, Fox cannot be held liable under Count 3, as such
9 statute does not permit vicarious liability. Cf. Opp. at 15 (agreeing that “the co-conspirator must
10 be ‘legally capable of committing the tort’”); see also Order at 16. Second, Counts 2, 6, and 7 are
11 all time-barred and thus cannot support a conspiracy claim. See Maheu v. CBS, 201 Cal. App. 3d
12 662, 673 (1988) (statute of limitations for civil conspiracy is that for the underlying claim).
13 Third, and finally, as to Count 1, plaintiff has failed to adequately plead gender animus and thus
14 this claim similarly cannot support a conspiracy claim. See Order at 18 (dismissing conspiracy
15 claim as to Count 1 due to insufficient allegations of alleged underlying wrongful acts).11
16 G. Plaintiffs UCL Claim (Count 9) Fails AeainstAU Defendants
17 Plaintiffs Opposition confirms that she is not entitled to either restitution or an
18 injunction—the only two forms of relief available under the UCL. See Order at 19.
19 Restitution. Plaintiff argues that she is entitled to restitution so long as she alleges “a loss
20 of money to someone,” and that “[pjlaintiff need not allege that the [ ] money was taken from
21 [pjlaintiff, only that it was taken from someone.” Opp. at 16 (emphasis in original). Not so. A
22 “plaintiff... may not invoke the court’s equitable power under the UCL to seek the return of
23 money or property in which the plaintiff never had an ownership interest.” Shersher v. Superior
24 Court, 154 Cal. App. 4th 1491, 1494 (2007); see also People ex rel. Harris v. Sarpas, 225 Cal.
25 App. 4,h 1539, 1562 (2014) (“The object of [statutory] restitution is to restore the status quo by
26 returning to the plaintiff'funds in which he or she has an ownership interest.”) (emphasis in11 * 13
27
11 As noted above, Counts 2,3,6, and 7 fail for additional reasons. To avoid repetition, defendants
28 address only one fatal infirmity of each Count to illustrate why the civil conspiracy claim, too, fails.
13
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
] original and citations omitted).12 Accordingly, because plaintiff never had an “ownership
2 interest” in defendants’ “money and profits” from “The Grinder,” plaintiff has once again failed
3 to plead a claim for restitution.
4 Injunction. Plaintiff contends that the SAC contains sufficient facts to demonstrate a “real
5 threat of future injury.” Opp. at 17. In support, she argues that the SAC alleges that “she and
6 Savage continue to be employed by Fox,” and that “it follows that there is a strong threat of future
7 harm and continuing violations.” Id. This ignores that the Court has already determined that
8 these allegations are “entirely backwards-looking,” Order at 19, as plaintiff and Savage no longer
9 work together. Moreover, the Court has already held that the fact that “[plaintiff] and Savage
10 continue to both work for Fox and could be required to work together again ... is too speculative
11 to warrant an injunction,” Order at 19; see also Davis v. Farmers Insurance Exchange, 245 Cal.
12 App. 4th 1302,1327 (2016) (affirming directed verdict for defendant on age discrimination claim
13 due to lack of continued employment). Thus, the SAC demands the same result as the FAC—its
14 allegations fail to support the issuance of an injunction.
15 Because the SAC does not plead the availability of either restitution or an injunction,
16 defendants’ demurrer should be granted. See Order at 19-20, see also Madrid v. Perot Sys. Corp.,
17 130 Cal. App. 4th 440,467 (2005).

18 III. CONCLUSION
19 For the foregoing reasons, the Court should sustain defendants’ demurrer in its entirety
20 without leave to amend.12 * 14
21

22

23
24

25 12 The Court has already rejected plaintiffs proffered misinterpretation of Sarpas. See Order at 19.
Plaintiffs only other cited authority, Bank of the West v. Superior Court, 2 Cal. 4th 1254 (1992),
26 did not even arise under the UCL. Rather, Bank of the West is an insurance coverage matter in
which the court addressed whether a class action settlement resolving, inter alia, a claim for
27 violation of the UCL fell within the scope of a general liability insurance policy. Id. at 1262-72. It
says nothing regarding the remedies available under the UCL.
28

14
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
1 Dated: December 5, 2018 O’MELVENY & MYERS LLP

2

3 1 H#) #
4 Molly M. Lens
Attorneys for Defendants
5 Twentieth Century Fox Film Corporation and
Twentieth Century Fox Television
6
7 Dated: December 5, 2018
RUSS AUGUST & RABAT
8
9
By: BA
10 iton L. Steii
tfana A. Sanders
11 Attorneys for Defendant Fred Savage
12

13
14

15

16
17

18
19

20

21

22

23
24

25

26

27
28

15
DEFENDANTS’ REPLY ISO DEMURRER TO SAC
1 PROOF OF SERVICE
2 I, Teri Adams, declare:
3 I am a resident of the State of California and over the age of eighteen years, and
4 not a party to the within action; my business address is 1999 Avenue of the Stars, 8,h Floor, Los
5 Angeles, California 90067-6035. On December 5,2018,1 served the within document(s):
6 DEFENDANTS’ REPLY TO OPPOSITION TO DEMURRER TO PLAINTIFF’S
SECOND AMENDED COMPLAINT
7
8
9 (U.S. Mail) by placing the document(s) listed above in a sealed envelope with
postage thereon fully prepaid, in the United States mail at Los Angeles, California,
10 addressed as set forth below. I am readily familiar with the firm’s practice of
collecting and processing correspondence for mailing. Under that practice it would
11 be deposited with the U.S. Postal Service on that same day with postage thereon
12 fully prepaid in the ordinary course of business. I am aware that on motion of the
party served, service is presumed invalid if the postal cancellation date or postage
13 meter date is more than one day after date of deposit for mailing in affidavit.

14
□ (Federal Express) by putting a true and correct copy thereof, together with an
unsigned copy of this declaration, in a sealed envelope designated by the carrier,
15 with delivery fees paid or provided for, for delivery the next business day to the
person(s) listed below, and placing the envelope for collection today by the
16
overnight courier in accordance with the firm’s ordinary business practices. I am
17 readily familiar with this firm’s practice for collection and processing of overnight
courier correspondence. In the ordinary course of business, such correspondence
18 collected from me would be processed on the same day, with fees thereon fully
prepaid, and deposited that day in a box or other facility regularly maintained by
19 Federal Express, which is an express carrier.
20
HI (Hand) by requesting that an agent or employee of First Legal Support Services
21 deliver to the office of the recipient named below, either by handing the
document(s) to the recipient or by leaving the document(s) with the receptionist or
22 other person apparently in charge of the recipient’s office

23 (Email) by causing the document(s) to be emailed or electronically transmitted to
the person(s) at the email addresses set forth below, pursuant to a court order or an
24 agreement of the parties to accept service by email or electronic transmission. I
25 did not receive, within a reasonable time after the transmission, any electronic
message or other indication that the transmission was unsuccessful.
26

27

28
1 Anahita Sedaghatfar, Esq. Attorneys for Plaintiff Youngjoo Hwang
THE COCHRAN FIRM - CALIFORNIA
2 4929 Wilshire Blvd. Suite 1010, Los (323) 435-8205
3 Angeles, CA 90010 (323) 282-5280 Fax
anahita@anahitalaw.com
4

5 Stanton “Larry” Stein, Esq. Attorneys for Defendant Fred Savage
Diana Sanders, Esq.
6 Russ August & Kabat (310) 826-7474
7 12424 Wilshire Blvd, 12th Floor (310)826-6991 Fax
Los Angeles, CA 90025 lstein@raklaw.com
8 dsanders@raklaw.com

9
10
I declare under penalty of peijury under the laws of the State of California that the
11
above is true and correct. Executed on December 5,2018, at Los Angeles, California.
12

13
14

15

16
17
18

19
20

21

22

23
24

25

26

27

28
-2-