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Hubmann v. McKenna BMW10/4/2005
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Peter Hubmann appeals the dismissal of his complaint for wrongful termination and other torts arising out of his employment at a BMW dealership. The trial court sustained the demurrer of defendant BMW of North America LLC (BMWNA) without leave to amend, concluding that plaintiff's causes of action were procedurally barred. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
In July 2000, plaintiff was employed at defendant McKenna BMW (McKenna) as an automobile salesperson. His immediate supervisor was defendant Stewart Green (Green). In apparent retaliation for plaintiff's complaints about certain business practices, Green reprimanded plaintiff and made rude and intemperate remarks about plaintiff's German ancestry. Specifically, Green is claimed to have made derogatory comments about Germany's role in World War II. According to plaintiff, this created a "hostile, racist and discriminatory work environment." McKenna was alleged to be a franchisee of BMWNA and subject to the latter's "contracts, policies and procedures." Plaintiff claimed that BMWNA was aware or should have been aware of McKenna's unlawful conduct.
Plaintiff was terminated by McKenna and Green on October 10, 2000.
In March 2001, plaintiff filed separate formal complaints with the Department of Fair Employment and Housing (DFEH) and Equal Employment Opportunity Commission against "McKenna BMW" and "Green, Stewart, an individual." No complaint was filed against BMWNA. Attached to the complaint were right-to-sue letters issued by the DFEH.
On March 3, 2003, plaintiff filed suit against all three defendants, alleging seven causes of action: violation of FEHA, the Fair Employment and Housing Act (Gov. Code, ยงยง 12690 et seq.); public policy; Article I, section 8 of the State Constitution; negligent and intentional infliction of emotional distress; negligent hiring, supervision or retention; and breach of implied covenant of good faith and fair dealing. Only the first five causes of action were against BMWNA.
Thereafter, the case proceeded along two separate tracks. McKenna and Green moved to compel arbitration of the claims against them. Those motions were granted. BMWNA meanwhile filed its demurrer. After the trial court sustained the demurrer without leave to amend, plaintiff filed his notice of appeal.
STANDARD OF REVIEW
Since a demurrer tests the legal sufficiency of the complaint, and the granting of leave to amend involves the trial court's discretion, we employ two separate standards of review on appeal. First, we review the complaint de novo to determine whether it contains sufficient facts to state a cause of action. In so doing, we accept as true the properly pleaded material factual allegations, together with facts that may be properly judicially noticed. Reversible error exists if facts were alleged showing entitlement to relief under any possible legal theory. (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 854 (Lee).)
Second, where the demurrer is sustained without leave to amend, we must determine whether the trial court abused its discretion in doing so. " `It is an abuse of discretion to deny leave to amend if there is a reasonable possibility that the pleading can be cured by amendment. Regardless of whether a
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