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DEMURRER to Amended COMPLAINT
Matter on the Law & Motion / Discovery calendar for Tuesday, June 24, 2025, Line 10. 2-DEFENDANT KONE INC.'D DEMURRER to 1ST Amended COMPLAINT. (PART ONE OF TWO)
Defendant Kone, Inc.'s demurrer to all seven causes of action in the first amended complaint (FAC) filed by plaintiff Matthew Lucchese is sustained with ten days leave to amend as to the sixth cause of action for intentional infliction of emotional distress (IIED) and overruled as to all other causes of action. Kone argues that plaintiff's first six causes of action are time-barred and the seventh fails because it is predicated on the first six.
The key dates are set forth in this paragraph. Plaintiff filed a complaint with the Civil Rights Department (CRD) on December 6, 2021. Plaintiff filed an updated CRD complaint after an interview with a CRD consultant on May 16, 2022. The CRD concluded its investigation on the first two complaints and issued a right-to-sue notice on October 3, 2022. Plaintiff alleges that he was terminated on July 19, 2022, although he also alleges that Kone attempted to gaslight him into believing that he voluntarily resigned on December 19, 2022. Plaintiff filed a third complaint with the CRD on November 19, 2024, and received a right-to-sue notice the same day. Plaintiff filed this action on December 10, 2024.
Kone contends that plaintiff's FEHA, common law wrongful termination, and Labor Code retaliation claims are time-barred because they were filed more than a year after the October 3, 2022 right-to-sue notice. Gov. Code 12960(e)(5) requires an employee to file an administrative complaint with the CRD within three years of the date of the conduct alleged to violate FEHA. Gov. Code 12965(a)(5)(C) requires an employee to file a lawsuit within one year of receiving a right-to-sue notice.
Plaintiff's first six claims are based in whole or in part on the termination of his employment. (See, e.g. FAC 43, 68, 73, 78, and 82). Because plaintiff's termination occurred after his CRD complaints which led to the October 3, 2022 right-to-sue notice, that right-to-sue notice could not and did not trigger any deadline for plaintiff's claims based on the termination of his employment. Kone's argument that the termination of plaintiff's employment is a "continuous course of conduct" from the conduct alleged in plaintiff's first two CRD complaints at most raises a factual issue not amenable to resolution on demurrer and highly likely is not an accurate statement of California law.
The sole case cited by Kone for this rule of law, an unpublished federal trial court decision, when read in full rejects the notion that the date of termination of employment relates back to the date of earlier alleged misconduct by the employer. Therefore, Kone's argument that the FEHA, common law wrongful termination and Labor Code retaliation claims are time-barred lack merit.
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The statute of limitations for an IIED claim is two years. The only allegation of Kone's misconduct within two years of the filing of this case is the alleged gaslighting event of December 19, 2022. As a matter of law, the allegations about that event do not rise to the level of extreme or outrageous conduct, an essential element of an IIED claim. Once the gaslighting allegations are removed from the IIED claim, the IIED claim is time-barred. If he can do so in good faith, plaintiff is given the opportunity to remediate this deficiency.
Kone's sole argument against the seventh cause of action for statutory unfair competition is that the claim fails because the previous six claims fail. As discussed above, five of the previous six claims do not fail.
Plaintiff's counsel is admonished not to use abusive language and to comport himself respectfully and professionally. ***END OF PART ONE OF TWO*** =(302/HEK) |