GARY ROBINSON

0000 Lindblade Dr. #10a

Los Angeles, CA 90066

310-398-0000

Plaintiff in Pro Per

MUNICIPAL COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

West Los Angeles

1633 Purdue Avenue,

Los Angeles, CA 90025

FIFTH CAUSE OF ACTION

(Violation of Public Policy)

1. Plaintiff opposes the demurs to this cause of action on the ground that it does set froth facts sufficient to constitute a cause of action as to Defendant Devlin.

WHEREFORE, Plaintiff prays that the demurrer be overruled or in the alternative if granted that it be with leave to amend. Plaintiff prays that all requested costs of Devlin be denied.

By Gary Robinson

Defendant's Demurrer misstates the facts. Plaintiff sues his former employer for wrongful termination. He also sues for breach of contract relating to health benefits. It was never alleged that all employers including this one are required to provide health benefits. It was alleged that the employer promised as part of Plaintiff's compensation, health benefits after the completion of a three month probationary period. It was further alleged that the supervisor falsely and fraudulently denied making this promise motivated by vindictiveness and spite and was acting outside of his scope of authority in doing so. It was also alleged that the termination was not only wrongful, but done in an attempt to silence complaints to authorities about the denial of an important part of the plaintiff's compensation package, the health benefits. The termination was done to silence complaints and as an example to other employees of the potential consequences of employee grievances.

The original complaint was served on David Devlin the manager of The Jolly Roger Motel of which Alex Gorby and Maxser and Co are owners. Murchison and Cumming answered for David Devlin, but not for Gorby or Maxser and Co. The attorney for Muchison and Cumming, Barbara L. McCully claimed that David Devlin was not authorized to accept service for Gorby. She denies that Gorby and Maxser and Co. received proper notice, despite the fact that Devlins defense is being paid for by Maxser and Co. insurance carrier.

Prior to the March 8, 2001 hearing on the demurrer of the original complaint a discussion took place between the Plaintiff and Barbara McCully in regards to whether David Devlin had an ownership interest in Maxser and Co. After the March 8, 2001 hearing where leave to amend was granted, an agreement took place where Plaintiff agreed to drop the causes of action relating to Devlin as employer, if a statement from Gorby could be procured stating the Devlin had no ownership interest in Maxser and Co. Note that the question about Devlin's ownership interest is something revealed through extrinsic evidence and should not have been assumed in granting a demure. Therefor my acceptance of this evidence and dropping of the causes of action relating to the evidence was voluntary.

Barbara McCully stated that she was representing Gorby and procured a letter from him stating that he authorized her to accept service on his behalf. (See attached copy of letter). Three copies of the amended complaint and summons for Gorby and Maxser and Co. were served on Murchison & Cumming. The amended complaint excluded the causes of action relating Devlin as employer. The fifth cause of action on the amended complaint relating to tortious action conducted by Devlin while acting outside his scope of authority and employment. After receiving the amended complaints, Barbara McCully called Plaintiff and stated that she was refusing to accept service of process for Gorby, because of the inclusion of the fifth cause of action relating to Devlin.

It appears that Murchison & Cumming is unwilling to represent both Devlin and Gorby in this suit at the same time. It can be inferred that this is because they believe that Devlin and Gorby may have adverse interests. They seem to be unwilling to represent Gorby while Devlin in still in the suit. This might be because some of Gorby's defenses may implicate Devlin. One of those possible defenses would be that some of Devlin's tortious actions were taken while acting outside the scope of Devlin's authority and employment. By denying service of process on Gorby, they are admitting to the potential conflict of interests in the case and Devlin's possible liability. If this were not the case then there would be no other reason not the answer for Gorby and Maxser and Co. while Devlin is in the case.

The fifth cause of action is not based on breach of contract as stated in Devlin's demurrer III. A. Those causes of action in relation to Devlin were removed in the amended complaint.

The fifth cause of action is not based on the belief as stated in Devlin's demure III. B that "the employer is under an obligation to offer health benefits such that, if health benefits are denied, an employer has violated some public policy."

The fifth cause of action ¶ 54 alleges in the alternative that Devlin performed wrongful acts "outside of the authorization of his Defendant Employer and or scope of employment."

The fifth cause of action ¶ alleges that in the alternative that statements made in regard to the existence of a contract were "falsely, fraudulently, and vindictively denied" for retaliatory purposes. This motive if proven would show that the alleged acts were performed outside of Devlin's scope of employment.

Devlin has made no arguments to support denial of leave to amend if the demure is sustained. The demure misinterprets Plaintiff's fifth cause of action of the first amended complaint. The fifth cause of action has Devlin as the sole Defendant. It is based on Devlin not having an ownership interest in Maxser and Co: If Devlin were a partner in Maxser and Co. then his scope of authority would not be limited in the way it is when he is merely an employee.

Since the fifth cause of action is new, the grounds for the previous demurrer do not apply to it. If there is a defect in the pleading of the fifth cause of action, Plaintiff should be granted leave to correct it. "Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment." (Temescal Water Co. v. Department of Public Works (1955) 44 Cal.2d 90, 107 [280 P.2d 1].)

Dated _______________

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Gary Robinson