Tatum v. Ace Parking, Inc.

Filed 2/9/09 Tatum v. Ace Parking, Inc. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Jay M. Bloom, Judge. Affirmed.

Pro per plaintiff/appellant Tony Tatum appeals from a judgment of dismissal with prejudice entered against him after a demurrer to his third amended complaint, alleging eight causes of action arising out of his employment with defendant/respondent Ace Parking, Inc. (Ace), was sustained without leave to amend.

As best we can decipher, because Tatum essentially concedes in his reply brief that the demurrer was properly sustained without leave to amend as to the first five causes of action, he is basically only challenging the trial court's ruling on Ace's demurrer to the sixth, seventh and eighth causes of action in his third amended complaint. As to those three causes of action, Tatum claims there was sufficient evidence in the record to show he would be able to file timely causes of action related to a hostile work environment and continual harassment for intentional and negligent infliction of emotional distress, for breach of implied covenant of good faith and fair dealing, and for wrongful termination in violation of public policy. Tatum argues that having "unintentionally fallen short on 'procedural form' " because of his self-representation, the trial court failed to give his pleadings "due consideration" and to recognize that he could state the elements of those causes of action by a preponderance of evidence to permit him to amend his complaint again. He asserts independent review of the matter, giving due consideration to his "novice" ability, will show that the court erred in sustaining the demurrer without leave as to those three causes of action and then in dismissing this action in its entirety.

Although we appreciate the frustrations that a pro per litigant may experience in ascertaining and setting out the specific facts that need to be pleaded to state good causes of action, contrary to Tatum's implied request for special consideration, "[i]n propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the [procedural and court] rules. [Citations.]" (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) Consequently, having reviewed the three causes of action in light of the applicable law set out below, we conclude the trial court did not abuse its discretion in sustaining without leave Ace's demurrer to Tatum's third amended complaint and in then dismissing this case in its entirety. We, therefore, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 7, 2007, Tatum filed a complaint against Ace for "hostile environment harassment as continuing violation." In support of his claim, Tatum, an African-American employee of Ace from August 1984 until May 2006, alleged that on certain dates in 1994, 1995, 2002, 2005 and 2006, Ace subjected him to unlawful harassment and a hostile work environment, despite his filing of complaints to Ace and his human resources department (HR) about the incidents which injured him "by retaliation and other unlawful harassment . . . in conscious disregard of his rights."

Tatum filed a first amended complaint "for an employment claim" with attached exhibits (A-1 through J-1) on March 21, 2007, in which he described separate incidents of "harassment" on March 17, 1994, July 5, 1994, August 16, 1994, January 17, 1995, November 8, 2002, January 9 and 12, 2006; alleged the failure of correcting safety concerns after he reported them that could have "saved the life of . . . Brian Dawson (on Friday April 7, 2006)," which he stated caused him emotional distress; and alleged his resignation on May 18, 2006, was coerced when he was subjected to continuing intolerable conditions, which constituted a continuous hostile workplace too "extraordinary and egregious to overcome."

On June 22, 2007, the trial court sustained Ace's unopposed demurrer to the first amended complaint with leave to amend within 10 days, finding that the complaint "only identifies an employment claim, but not what specific claims are being made against [Ace]. Plaintiff has completed 8 exemplary damage attachments with facts regarding a variety of incidents, but does not identify the causes of action alleged. Plaintiff needs to specify the causes of action alleged against this defendant and provide facts to support each element of those causes of action."

Tatum's second amended complaint with attachments filed that same day, alleged essentially two causes of action, premises liability and negligence, and sought exemplary damages based on various purported causes of action recited on a series of exemplary damages attachments. In the first cause of action, Tatum alleged that he had been subjected to emotional distress caused by Ace's failure to follow its own security and safety regulations, its failure to properly train its staff regarding safety regulations, its failure to put security measures in place after reports of criminal activity on various parking lots and by retaliating against him for making such reports. He asserted that Ace had generally been negligent in Brian Dawson's death due to its various failures to provide security which foreseeably caused him, a co-worker of Dawson's, emotional distress. In the second cause of action, Tatum alleged Ace had been negligent on July 5, 1994, in allowing another employee to enter his workspace and draw a "racially offensive cartoon depiction of [him]" and then when he reported the incident, Ace told him that it was " 'just a joke!' " Tatum then attached to these causes of action, exemplary damages documents alleging purported causes of action three through eight regarding various acts he considered "harassment and oppression."

On August 24, 2007, the trial judge sustained Ace's opposed demurrer to the second amended complaint after hearing oral argument on the matter. In doing so, the judge specifically found that Tatum's "premises liability claim is based upon emotional distress he suffered after learning of the murder of a co-worker on defendant's premises. Plaintiff has not alleged sufficient facts to support a cause of action for premises liability. (See, Dillon v. Legg (1968) 68 Cal.2d 728, 740; CACI [Nos. 1000 and 1005.])" The judge found that Tatum's negligence claim was barred by the statute of limitations because it was based upon an incident in July 1994. The court's ruling then stated:

"To the extent that plaintiff is attempting to plead a hostile work environment based on continuing conduct, he has not sufficiently alleged a hostile work environment claim nor has he sufficiently alleged facts showing continuing conduct. [] Because both of plaintiff's causes of action fail, there remains no claim for exemplary damages. The exemplary damages attachments are not separate causes of action, but are suppose[] to contain additional factual allegations to support a claim for punitive damages, if recoverable. If plaintiff intends to allege additional causes of action, he needs to attach separate cause of action attachments for each separate cause of action and also allege facts to support each element of any cause of action. [] Plaintiff is granted ten days leave to amend."

Tatum filed his third amended complaint later that same day, stating eight causes of action (premises liability (first cause), workplace safety (seventh cause), four causes of action for negligence (second, third, fourth and fifth causes), emotional distress (sixth cause) and wrongful termination/constructive discharge (eighth cause), and seeking exemplary damages. After oral argument on November 30, 2007, the trial court sustained Ace's opposed demurrer to the third amended complaint without leave to amend, stating:

"Plaintiff has not alleged sufficient facts to support a cause of action for premises liability and workplace safety. Plaintiff's claims are based upon emotional distress he suffered after learning there had been an assault and a murder on defendant's premises. However, plaintiff has not suffered any compensable injury. [Citations.] [] Plaintiff's negligence claim is based upon an incident that occurred in July 1994 and thus is barred by the statute of limitations. [Citation.] [] Plaintiff's claims for hostile work environment and/or harassment fail because it appears the claims are time barred. Plaintiff has not alleged facts showing a timely administrative claim and the timely filing of this lawsuit. [Citation.] [] Plaintiff's claims for retaliation, emotional distress and wrongful termination fail because plaintiff has not alleged any facts supporting these claims. The 137 pages of attached documents are not sufficient to apprise defendant of the claims made against it. [] Leave to amend is denied because plaintiff has not shown the court how the complaint can be amended to avoid these defects."

On December 5, 2007, the trial court filed its judgment ordering the case dismissed with prejudice in its entirety in light of its ruling on the demurrer to the third amended complaint. Tatum's subsequent motion for reconsideration of the court's ruling on the demurrer was denied on grounds that the court had already entered judgment on the matter, and alternatively, that the facts presented in the motion and Tatum's attached declaration did not show that Tatum could state a valid cause of action. Tatum subsequently appealed from the judgment of dismissal.

DISCUSSION

At the outset, we note that Tatum elected to proceed with this appeal without a record of the oral proceedings in the trial court and originally designated a very sketchy record for review, which has subsequently been augmented by both Tatum and Ace.^[1] As Ace has pointed out in its respondent's brief, Tatum's opening brief suffers from numerous procedural defects, including the failure to articulate intelligible or clearly identifiable legal arguments. Tatum merely claims in his opening brief that he had met his "burden of alleging sufficient facts to support a cause of action, timely filing of claims, and has apprised [Ace] of claims asserted and alleged against it [throughout these pleadings]."

Despite these general assertions presented in a manner lacking both proper procedural form and cohesive argument, Ace responds to the sufficiency of each of the eight causes of action in Tatum's third amended complaint and argues the trial court was correct in sustaining its demurrer without leave to amend and in dismissing the action in its entirety. As noted earlier, Tatum essentially concedes in his reply brief that the trial court properly sustained Ace's demurrer without leave to amend as to his first five causes of action. As to the other three causes of action (counts 6, 7 & 8), however, Tatum claims the court erred in not permitting him to amend one more time. He basically argues that if the label to his seventh cause of action is changed and the factual incidents involved in his second through fifth causes of action are used as background and evidence of earlier discriminatory acts, he can support causes of action for continuing discrimination and racial harassment causing intentional and negligent infliction of emotional distress, for breach of the implied covenant of good faith and fair dealing, and for wrongful termination. We conclude the trial court did not abuse its discretion in sustaining Ace's demurrer to the third amended complaint without leave to amend and in then dismissing this action.

For purposes of analyzing the ruling on demurrer, we give the pleading a reasonable interpretation, reading it as a whole, its parts in their context, to determine whether sufficient facts are stated to constitute a cause of action or a right to the relief requested. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Our consideration of facts includes those evidentiary facts found in recitals of exhibits attached to a pleading (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94), as well as facts of which we may take judicial notice (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877). In doing so, " ' "[w]e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]" . . . When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.' [Citations.]" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Further, "[i]f the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer." (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) However, in conducting our review to determine whether the facts pled in the complaint state a claim, we are " 'not required to discuss or consider points which are not argued or which are not supported by citation to authorities or the record.' [Citation.]" (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)

We apply these rules in turn to the factual contexts alleged in the three causes of action of Tatum's third amended complaint for which he claims the court's ruling was in error.

A. The Sixth Cause of Action

Tatum's sixth cause of action appears to attempt to plead a cause for intentional, or, in the alternative, negligent, infliction of emotional distress based on two incidents "of oppressive retaliation" involving two other employees of Ace that occurred in January of 2006. Tatum alleged that the actions of Brian Tarbell and Keith Barcia, people in managing positions at Ace, were similar to earlier acts foreclosed by the statute of limitations and a continuation of those acts, which were "two more despicable displays of conduct that subjected [him] to cruel and unjust hardship in a conscious disregard of his rights." Exhibit F-1, attached to the third amended complaint, reveals that Tatum filed a complaint of harassment by intimidation and retaliation with Ace's HR director on January 19, 2006, alleging Tarbell, accompanied by Barcia, came into the lot auditor unit office where Tatum and another employee were seated and yelled "about a phone call he received from a manager about someone yelling throughout the office." Although 20 minutes later, Tarbell apologized for his outburst, Tatum thought the manner in which he handled the situation was unprofessional and created a stressful and unproductive atmosphere. Exhibit G-1, attached to the complaint, showed that new guidelines to the reporting lot check program were provided in writing to Tatum from Barcia on January 12, 2006. Based on these two incidents and all the previous ones, Tatum alleged he suffered "a series of retaliatory harassment for reporting continued harassment to [Ace]" and that Ace "acted willfully, wantonly, intentionally and maliciously and for the purpose of causing [him] to suffer [further] humiliation, mental anguish and distress. In the alternative, Tatum alleged that Ace "acted negligently."

In order to state a cause of action for intentional infliction of emotional distress, a plaintiff must allege facts showing that (1) the defendant's conduct was outrageous, (2) the defendant acted intentionally or recklessly, (3) plaintiff suffered severe emotional distress, and (4) defendant's conduct was the proximate cause of the emotional distress suffered. (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593.) "Outrageous" conduct has been defined in California as conduct that "exceeds all bounds of that usually tolerated in a civilized society." (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) A plaintiff must show that the defendant engaged in "conduct intended to inflict injury or engaged in with the realization that injury will result." (Id. at p. 210.)

Although Tatum's third amended complaint alleges Ace's acts, by two of its managing employees, amounted to malice and caused him to suffer severe emotional distress, it did not allege any facts to show that those two employees engaged in conduct rising to such a level as to support a claim that Ace acted in a manner that exceeded all bounds usually tolerated by a civilized society. Having a managing employee enter a room of people yelling about some complaints Ace had received, which were not specifically directed at anyone in particular, and then later apologizing to the people in that room about the outburst, does not rise to such level of extreme and outrageous conduct. Nor does the fact that the manager gave Tatum a copy of the new rules for reporting problems regarding lot checks to Ace evidence such outrageous conduct. Tatum additionally did not allege any facts showing Ace's intent or reckless disregard to cause him emotional distress or what emotional distress he actually suffered other than to state such conclusions. Because Tatum did not allege sufficient facts to support all elements of a claim for intentional infliction of emotional distress, the trial court had sufficient grounds to sustain the demurrer.

Further, although Tatum argues on appeal that he can amend his complaint to state sufficient facts to support the element of outrageous conduct by including all the previous incidents from counts 2, 3, 4, and 5 in his third amended complaint, which are admittedly foreclosed by statute of limitations problems, his allegations made in the sixth cause of action of that complaint already included evidence of those earlier claims. The only new arguments that Tatum offers to show that he could amend his complaint to satisfy the elements of a cause of action for intentional infliction of emotional distress, are to claim in his reply brief that Ace failed to "do every other thing reasonably necessary to protect life, safety, and health of its' employees" and retaliated against him for reporting safety deficiencies on March 17, 2006, by giving him a " 'discriminatory job performance appraisal' for job duties and standards to-be-announced." Tatum fails to state any facts to support retaliation or discrimination, merely asserting generalized and unsupported accusations. His conclusions of the facts presented in the various exhibits do not show that Ace did anything wrong or that it engaged in conduct rising to the level of "extreme and outrageous." Tatum has simply not met his burden of showing that the trial court abused its discretion in sustaining the demurrer without leave to amend.

This same determination applies to Tatum's alternative claim for negligent infliction of emotional distress, which he advanced in only a conclusory fashion. Generally, such a cause of action is analyzed under two theories of recovery: the "bystander" theory, where the plaintiff seeks recovery for emotional distress caused by witnessing injury to a close family member, and the "direct victim" theory, where the plaintiff seeks to recover for emotional distress caused by an injury the plaintiff himself has sustained. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071 (Burgess).) Although Tatum does not state under which theory he seeks recovery, it is clear from the complaint he cannot state facts sufficient to state a cause of action under the bystander theory because he did not witness an injury of a close family member.

As to the direct victim theory, such provides no independent tort of negligent infliction of emotional distress, but is analyzed according to the traditional elements of negligence, in which duty to the plaintiff is an essential element. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984; Burgess, supra, 2 Cal.4th 1064, 1072.) In such case, recovery for emotional distress is available only if the defendant has breached a duty owed another by virtue of a special relationship between the defendant and plaintiff or some other legal duty and the emotional distress is proximately caused by that breach. (Potter, supra, at p. 985.)

Tatum has not attempted to state facts for any of these elements, merely relying on the same alleged intentional conduct of Ace's managerial agents on which he relies for the intentional infliction of emotional distress. Tatum suggests in his reply brief that somewhere in his exhibits filed with his third amended complaint are "a sufficient sequence of acts and events which arguably give rise to causes of action. . . ." Because Tatum has not shown that there is a reasonable possibility that the defects in his sixth cause of action can be cured by amendment, he cannot show that the trial court abused its discretion in sustaining Ace's demurrer without leave to amend such cause of action.

B. The Seventh Cause of Action

The seventh cause of action, admittedly mislabeled "workplace safety" by Tatum, appears to be based on violations of various security and safety guidelines in Ace's employee policy manual or other regulations that he had reported to Ace and which if corrected might have prevented co-worker Dawson's death. Tatum claims he suffered severe emotional distress, "causing him to suffer sleeplessness, stress and feelings of anxiety and guilt" upon learning Dawson had been fatally shot at a location where previous criminal incidents had occurred, which had been reported to Ace as well as at "a make shift memorial for [Dawson]." Tatum alleges that Ace's failure to follow its own workplace safety regulations in light of his complaints that the parking lot where Dawson was killed in violation of those regulations caused him severe emotional distress. Tatum also alleges that he suffered emotional distress in part for '"[f]ear for his [o]wn [s]afety' as a victim of a series of unlawful harassments."

On appeal Tatum essentially concedes that the trial court properly sustained the demurrer to this cause of action because it was mistakenly labeled and "pled with a confusing legal theory." Also, as Ace points out, the seventh cause of action was based solely on Tatum's reaction to criminal acts against a third party which he did not witness or show any foreseeability of occurring on Ace's part. (See Dillon v. Legg, supra, 68 Cal.2d 728, 740-741.) Nor is there any possible way for Tatum to amend this cause of action to satisfy such elements for premises liability or workplace safety.

Nonetheless, in his reply brief, Tatum claims that the seventh cause of action should have been labeled "breach of implied covenant of good faith and fair dealing," and that a cause under such theory for damages is sufficiently pled. We disagree.

Tatum's attempt to state such cause of action reincorporates the actions of Tarbell and Barcia of the sixth cause of action, alleging they maliciously inflicted emotional distress "by their discriminatory dealings with [him]," and alleges that Ace adopted "formal dispute resolution policies 'without committing' to follow them in every case [and] chose instead, to ratify these unlawful practices by intentionally, and willfully retaliating against [him because he] made 'good faith' complaints and reports regarding workplace safety."

As our Supreme Court has recognized, "the implied covenant of good faith and fair dealing imposes no independent limits on an employer's prerogative to dismiss employees. [Citations.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 351.) Such covenant, which is implied in every contract, "exists merely to prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made. [Citation.]" (Id. at p. 349, original italics.) In the employment context, as here, "an implied covenant theory affords no separate measure of recovery, such as tort damages. [Citation] Allegations that the breach [of an employment contract or policy] was wrongful, in bad faith, arbitrary, and unfair are unavailing; there is no tort of 'bad faith breach' of an employment contract." (Id. at p. 352; italics omitted.)

In addition to Tatum stating no facts to show what the terms of his employment contract with Ace were, what the specific dispute resolution policies were that Ace had purportedly adopted for his benefit, or the nexus between the Tarbell yelling incident and his own contractual rights under his employment, Tatum fails to allege specific facts showing any retaliation or discrimination on Ace's part. Not being able to show how this cause of action could be amended to state a viable claim, Tatum has thus failed again to show that the trial court abused its discretion in sustaining Ace's demurrer to the third-amended complaint without leave to amend.

C. The Eighth Cause of Action

The eighth cause of action for wrongful termination [actual/constructive termination of employment] alleged Tatum was constructively terminated in violation of public policy due to the "intolerable or aggravated working conditions [he was subjected to by Ace], which creates an '[h]hostile [w]orking [e]nvironment', that as '[c]ontinuing [v]iolation, does substantially create conditions sufficiently extraordinary and egregious to overcome.' " He claimed that from January 3 through May 19, 2006, he was subjected to such "intolerable conditions" by three Ace employees (Barcia, Tarbell and John Alcott) that he was forced to leave his employment rather than be fired, and that those three either intentionally created such conditions or knowingly permitted them to exist. Tatum alleged that Ace's unlawful discriminatory practices on January 9, 10 and 20, March 7, and May 16, 18 and 19, 2006, are evidenced in attached exhibits "J1, M1, M2, C1, F1, G1, N1, N2, R1, T1, T2, T4, T5, T6, T7, U1, U2, A2, E2, E1, G2, K2, O1, Q4, Q5, S8, S9." Tatum requested that the court "examine the circumstances surrounding [his] resignation and find substantial factor[s] to determine whether those conditions were sufficiently egregious to overcome," and alleged Ace's " 'discriminatory [p]ractices' clearly demonstrates a sufficient breach of [its] 'duty owed' to [him]."

To support a cause of action for constructive discharge, "an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign." (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 (Turner), overruled on another ground in Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 498.) Thus Tatum must allege that (1) the working conditions at the time of his resignation were so intolerable or aggravated that (2) a reasonable person in his position would have been compelled to resign, and (3) Ace either intentionally created or knowingly permitted the intolerable working conditions. (See Turner, supra, 7 Cal.4th at pp. 1246-1250.)

As to the first element, the working conditions or actions of the employer giving rise to the employee's resignation must be "so unusually adverse that a reasonable employee in plaintiff's position ' " 'would have felt compelled to resign.' " ' [Citations.]" (Turner, supra, 7 Cal.4th at p. 1247.) "In general, '[s]ingle, trivial, or isolated acts of [misconduct] are insufficient' to support a constructive discharge claim. [Citation.] Moreover, a poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge." (Ibid., fn. omitted.)

Further, as to the second element, "the employee's resignation must be employer-coerced, not caused by the voluntary action of the employee or by conditions or matters beyond the employer's reasonable control." (Turner, supra, 7 Cal.4th at p. 1248.) The employee's resignation must be more than "simply one rational option for the employee." (Id. at p. 1246.) Because all jobs have frustrations, challenges and disappointments, " '[a]n employee may not be unreasonably sensitive to his [or her] working environment. . . .' " (Id. at p. 1247.)

As to the third element of deliberately creating or knowingly permitting the intolerable working conditions , "the requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees." (Turner, supra, 7 Cal.4th at p. 1251.)

Even if these elements are sufficiently pled, a cause of action for damages stemming from the alleged constructive discharge will not stand unless an employee independently pleads and proves "a breach of contract or tort in connection with employment termination . . . . [Citation.]" (Turner, supra, 7 Cal.4th at p. 1251.) For a constructive discharge based on a breach of express or implied contract of the employment, the employee must additionally plead the express terms of the contract or other policies, actions or practices of the employer that may amount to an implied agreement not to terminate except in accordance with certain procedures or good cause. (Id. at pp. 1251-1252.) In order to sustain a tort claim for wrongful or constructive discharge in violation of public policy, an employee must allege his dismissal violated a policy that was fundamental, beneficial for the public and embodied in a statute or constitutional provision. (Id. at pp. 1252, 1256; see Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 76, 90.)

Here, Tatum identified three managing Ace employees who allegedly created the intolerable conditions that forced him to resign his position. Tatum, however, failed to specify what constituted such intolerable conditions, the context in which they occurred, or any other corroborating details. He merely attached a number of exhibits and asked the court to examine them and find the elements to support his cause of action. Because he failed to set forth any facts to show that his work conditions were "unusually aggravated" or a "continuous pattern" of unreasonably harsh conditions such that a reasonable employer would realize a reasonable person in his position would be compelled to resign, or that Ace knew about the alleged intolerable conditions caused by the three managing agents and refused or intentionally failed to correct them, he failed to state a cause of action for constructive discharge. The trial court thus properly sustained the demurrer.

Moreover, because Tatum merely argues in his reply brief that he can amend the eighth cause of action to state a violation of public policy by alleging he was subjected to Ace's "ongoing discriminatory conduct against his race," without stating specific facts or attaching exhibits to show such conduct, the trial court did not abuse its discretion in sustaining the demurrer to his third amended complaint without leave to amend and then dismissing the action in its entirety. Such was essentially his fifth attempt to state a viable cause of action against Ace, and his proposed amendment merely adds another factual and legal conclusion to the already inadequate eighth cause of action. No error is shown in the trial court's rulings.

DISPOSITION

The judgment is affirmed. Ace is awarded costs on appeal.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

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^[1] We denied Tatum's first request to augment the record as there was no showing the documents had been filed or lodged in the trial court. We also struck and returned Tatum's initial opening brief as nonconforming due to references outside the record.