Filed 5/31/18

                           CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                     DIVISION TWO



 ROSA JENSEN,

          Plaintiff and Appellant,                 E067002

 v.                                                (Super.Ct.No. RIC1512850)

 THE HOME DEPOT, INC., et al.,                     OPINION

          Defendants and Respondents.



        APPEAL from the Superior Court of Riverside County. John W. Vineyard,

Judge. Reversed.

        Law Offices of Maryann P. Gallagher and Maryann P. Gallagher for Plaintiff and

Appellant.

        Ogletree, Deakins, Nash, Smoak & Stewart, Michael J. Sexton and James T.

Conley for Defendants and Respondents.




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       In a first amended complaint, Rosa Jensen and Linda Kerr sued their former

employer, The Home Depot, Inc., (Home Depot),1 and their former managers at Home

Depot for disability discrimination, wrongful termination, and eight other related

claims. Home Depot and the managers (collectively, defendants) demurred to the first

amended complaint arguing misjoinder of Jensen and Kerr (collectively, plaintiffs).

(Code Civ. Proc. § 430.10, subd. (d).)2 The trial court sustained the demurrer without

leave to amend, and dismissed plaintiffs’ lawsuit with prejudice. Jensen contends the

trial court erred by dismissing her lawsuit because the court could have ordered

severance (§ 379.5). We reverse the judgment of dismissal with directions.

                    FACTUAL AND PROCEDURAL HISTORY

       A.     ORIGINAL COMPLAINT

       In plaintiffs’ original complaint, they brought 10 causes of action related to

disability discrimination and wrongful termination. Jensen asserted she worked for

Home Depot as a project coordinator and telephone sales associate. In July 2010,

Jensen was injured at work when a customer pushed open a bathroom door striking

Jensen’s shoulder, elbow, and wrist. Theresa Meza was the store manager and Karen

Abraham was the human resources manager. After Jensen’s injury and medical leave,

Jensen asked for an accommodation so as to resume work. Meza, Abraham, and Home



       1 Home Depot U.S.A., Inc., Theresa Meza, Karen Abraham and Jen Greenman
were also named.

       2 All subsequent statutory references will be to the Code of Civil Procedure
unless otherwise indicated.

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Depot did not permit Jensen to resume work. In November 2013, Abraham informed

Jensen that Jensen’s employment was terminated.

       Kerr worked as a cashier for Home Depot. On April 3, 2013, Kerr was in pain

due to two abscessed teeth and a tumor in her “mouth and neck area.” On April 3,

Kerr’s doctor gave her an off-work note. Kerr was scheduled to work a four-hour shift

on April 3, but had only two hours of sick leave. Kerr gave Meza her doctor’s note and

requested the day off. Meza denied Kerr’s request. Kerr gave her immediate

supervisor, Jen Greenman, the doctor’s note and requested the day off. Greenman also

denied Kerr’s request because Kerr did not have sufficient sick leave. Kerr did not

work her shift on April 3. On April 6, Kerr’s employment was terminated due to

attendance violations. Prior to April 3, Kerr had two attendance violations that occurred

during her nine years of employment.

       B.     ORIGINAL DEMURRER

       Defendants demurred to the complaint arguing misjoinder of plaintiffs.

(§ 430.10, subd. (d).) Defendants asserted plaintiffs’ claims did not arise out of a single

transaction or single series of transactions, nor did the claims raise common issues of

law or fact. In the caption of the document, defendants titled the document “Demurrer

of defendants . . . or, in the alternative, motion to . . . sever.” Although listed in the

caption, there does not appear to be a motion to sever included in the document.




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       C.      OPPOSITION TO THE ORIGINAL DEMURRER

       Plaintiffs opposed the demurrer. Plaintiffs argued their claims were properly

joined because they were both suing defendants for disability discrimination. Plaintiffs

asserted their claims raised common issues of law and fact.

       D.      RULING ON THE ORIGINAL DEMURRER

       The trial court gave a tentative ruling sustaining the demurrer without leave to

amend. Plaintiffs filed a late request for oral argument. Due to the untimely request,

the trial court permitted oral argument only on the issue of leave to amend because the

trial court had not been given notice of the oral argument request in time to prepare for a

broader argument.

       Plaintiffs requested leave to amend their complaint. Plaintiffs asserted they

would demonstrate that the same legal issues were being raised by both plaintiffs and

that discovery would be identical because their cases concerned a pattern of conduct by

Home Depot in relation to employees with disabilities; the pattern being terminating the

employment of employees with disabilities.

       The trial court explained that Kerr did not have a disability; rather, she missed a

single day of work. Plaintiffs explained that Kerr had asked for time-off on a prior

occasion due to a health issue. Plaintiffs then argued that Home Depot had a pattern of

not accommodating people with disabilities.

       Home Depot argued, “[T]he events occurred at different times, . . . they occurred

for different reasons, . . . the nature of the claims are distinctly different. [¶] . . . I’m

hearing that she wants to . . . amend to allege some sort of class action with two


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plaintiffs, which isn’t really something that can happen.” The trial court sustained the

demurrer, but granted leave to amend.

       E.     FIRST AMENDED COMPLAINT

       Plaintiffs filed a first amended complaint (FAC). In the FAC, plaintiffs again

presented the allegations concerning Jensen’s injury, Jensen’s termination, Kerr’s

request to not work on April 3, 2013, and Kerr’s termination. Plaintiffs also set forth

common allegations such as (1) they worked at the same store, (2) they both worked at

the store in 2013, (3) they both suffered from medical issues, (4) they both told Meza

that they needed an accommodation or leave due to medical issues, and (5) they were

both terminated by Home Depot.

       F.     DEMURRER TO THE FAC

       Defendants demurred to the FAC. Defendants asserted plaintiffs were not

properly joined because they were not asserting a right to relief due to the same

transaction, and their claims did not present common issues of fact or law. (§§ 378,

subd. (a)(1), 430.10, subd. (d).) Defendants asserted that an allegation of a “ ‘pattern

and practice’ ” does not cause alleged violations to arise from the same transaction.

Defendants requested the trial court sustain the demurrer without leave to amend.

       G.     RULING

       Plaintiffs did not submit a written opposition to the demurrer. The trial court’s

tentative ruling was to sustain the demurrer without leave to amend. In the tentative

ruling, the trial court explained, “Plaintiff has neither corrected the defects, nor filed an

opposition to this demurrer, indicating either an inability or unwillingness to amend the


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pleadings to conform to the Court’s prior demurrer ruling.” None of the parties

requested oral argument.

       On August 4, 2016, the following items were calendared in the case: a case

management conference, the demurrer, and an order to show cause. In regard to the

demurrer, plaintiffs’ counsel said, “My only question is whether or not the Court

received our opposition.” The trial court explained that no opposition had been filed.

Defendants’ counsel said that no opposition had been served.

       The trial court said, “[T]here has been very little amendment to address the issues

in the first demurrer and there was no opposition to explain how it could be amended at

this point. Without a request for oral argument, I will not accept oral argument today.

We went through a version of this with the first demurrer. [¶] The demurrer is

sustained without leave to amend.”

       H.     DISMISSAL

       Home Depot requested plaintiffs’ case be dismissed with prejudice due to the

trial court having sustained the demurrer without leave to amend. The trial court

entered a judgment dismissing the case with prejudice.

       I.     SETTLEMENT

       Plaintiffs’ notice of appeal was filed on October 4, 2016. On March 7, 2017,

Kerr requested that she be dismissed as a party to this appeal. This court granted Kerr’s

request.




                                            6
                                      DISCUSSION

       A.     SEVERANCE

       Jensen contends that she did not oppose the demurrer to the FAC because she

believed the remedy for the sustained demurrer would be severance—not dismissal.

(§ 379.5.) Jensen contends the trial court erred by dismissing the case because the court

could have ordered severance. (§ 379.5.)

       “It is an abuse of the trial court’s discretion to sustain a demurrer without leave

to amend if there is a reasonable possibility the plaintiff can amend the complaint to

allege any cause of action.” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93

Cal.App.4th 700, 711 (Smith).) It is the plaintiff’s “burden to establish how the

complaint can be amended to state a valid cause of action.” (Sanowicz v. Bacal (2015)

234 Cal.App.4th 1027, 1044.) A request for leave to amend may be made for the first

time on appeal. (§ 472c, subd. (a); Smith, at p. 711.)

       At the trial court, plaintiffs made no showing as to how they would amend their

complaint to fix the misjoinder issue. Accordingly, the trial court acted reasonably in

sustaining the demurrer without leave to amend because plaintiffs failed to meet their

burden.

       For the first time on appeal (§ 472c, subd. (a) [leave to amend may be requested

for the first time on appeal]; Smith, supra, 93 Cal.App.4th at p. 711 [same]), plaintiffs

have fixed the misjoinder issue by dismissing Kerr (see § 473(a)(1) [pleading may be

amended by removing a party]; see also SC Manufactured Homes, Inc. v. Canyon View

Estates, Inc. (2007) 148 Cal.App.4th 663, 671 [plaintiff dismissed multiple defendants


                                             7
to remedy misjoinder]). Because the misjoinder issue has been fixed, the case may

proceed.

       We will reverse the judgment of dismissal and will direct the trial court to vacate

its order denying leave to amend (1) as it pertains to Jensen, and (2) as to the first

through seventh causes of action. The eighth and tenth causes of action pertained only

to Kerr and therefore are no longer relevant. The ninth cause of action concerned

intentional infliction of emotional distress. The trial court sustained the demurrer on the

ninth cause of action due to the court’s conclusion that workers’ compensation is the

exclusive remedy—it was not part of the misjoinder analysis—and Jensen has not

appealed that issue.

       B.     DISMISSAL

       Defendants request this court dismiss the appeal because the misjoinder issue is

moot due to Kerr being dismissed. Defendants assert it would be an academic

discussion for this court to analyze misjoinder when there are no longer joined parties.

       The issue that is moot is whether the trial court erred by finding the plaintiffs

were improperly joined; that issue relates to the sustaining of the demurrer. (See

Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 175 [issue is

moot if events render it impossible for the appellate court to grant effective relief].)

However, Jensen did not raise that issue. On appeal, Jensen asserted the trial court erred

in its remedy for misjoined parties, by denying leave to amend and dismissing rather

than severing. The issue raised by Jensen is not moot. As explained ante, the dismissal

of Kerr fixes the misjoinder issue and permits the case to proceed. (See SC


                                              8
Manufactured Homes, Inc. v. Canyon View Estates, Inc., supra, 148 Cal.App.4th at p.

671 [plaintiff dismissed multiple defendants to remedy misjoinder]; see also Loftus v.

Fischer (1896) 114 Cal. 131, 133 [misjoined party omitted from amended pleading].)

Accordingly, we deny defendants’ request for dismissal of the appeal.

                                       DISPOSITION

       The judgment of dismissal, as it pertains to Jensen, is reversed. The trial court is

directed to enter an order vacating its order denying leave to amend as to the first

through seventh causes of action, and enter an order granting leave to amend. The trial

court is directed to deem the first amended complaint to have been amended due to the

dismissal of Kerr by this court. Jensen is awarded her costs on appeal. (Cal. Rules of

Court, rule 8.278(a)(1).)

       CERTIFIED FOR PUBLICATION




                                                       MILLER
                                                                                          J.


We concur:


RAMIREZ
                               P. J.


McKINSTER
                                  J.




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