Judge: Alison Mackenzie, Case: 22STCV12674, Date: 2023-12-01 Tentative Ruling
Case Number: 22STCV12674 Hearing Date: December 1, 2023 Dept: 55
NATURE OF PROCEEDINGS: Defendants Hector Chavez, Cheryl Lopez, and Cynthia Cadiente’s Demurrer to Plaintiff Bessy Quintanilla’s First Amended Complaint.
The demurrer is overruled. Twenty days to answer.
On 4/14/22, BESSY
QUINTANILLA (“Plaintiff”) filed a Complaint.
On 4/19/23, Plaintiff filed a First Amended Complaint, against defendants
CITY OF HOPE NATIONAL MEDICAL CENTER, CITY OF HOPE, HECTOR CHAVEZ, CHERYL
LOPEZ, and CYNTHIA CADIENTE (“defendants”) alleging that, while she was
employed in clerical/administrative
roles, her former managers and supervisors did ongoing actions, unnecessary for
management, including berating Plaintiff for advocating for patients in
violation of public policy, disregarding
her complaints because she was female,
mocking her speech accent, fabricating her resignation and then
terminating her employment. The causes
of action are: 1. Discrimination;
Violation of CA Govt Code Sec. 12940 (a); CA LC Sec. 98.6; 2. Harassment; Violation of CA Govt Code Sec.
12940 (j); 3. Retaliation; Violation of
CA Govt Code Sec. 129040 (h); 4. Failure
to Prevent Retaliation/Harassment/Discrimination; Failure to Supervise and
Train; Violation of CA Govt Code Sec. 12940 (i) (k); 5. Violation of California Whistleblower
Statutes; Violation of CA Labor Code Sec. 1102.5 et seq; Health & Safety
Code § 1278.5; 6. Breach of Oral
Contract/Breach of Implied Contract; 7. Wrongful Discharge/Wrongful Termination in
Violation of Public Policy; 8. Failure
to Provide Required Rest and Meal Periods; Violations Of CA LC §§ 226.7; 512
And Wage Orders; 9. Intentional
Infliction of Severe Emotional Distress.
Defendants filed a demurrer and reply as to the First
Amended Complaint’s claims for Harassment and Intentional Infliction of
Emotional Distress, on grounds including the following: 1) The
alleged actions were personnel, management decisions, and not sufficient to
state a claim; 2) the alleged conduct does not rise to the
level of severity or pervasiveness to constitute actionable harassment; and 3) as to Intentional Infliction of
Emotional Distress, the allegations do not rise to the level of extreme and
outrageous conduct. Plaintiff filed an
opposition advocating overruling.
Harassment
As to the harassment claim, defendants address issues
of personnel management decisions, severity and pervasiveness.
Personnel
Actions
Harassment does not include commonly necessary
personnel management actions, such as hiring, firing, job assignments,
promotion, demotion, performance evaluations, excluding from meetings, and
laying off. Thompson v. City Of
Monrovia (2010) 186 Cal.App.4th 860, 879.
“[H]arassment consists of conduct outside the scope of necessary job
performance, conduct presumably engaged in for personal gratification, because
of meanness or bigotry, or for other personal motives. Harassment is not
conduct of a type necessary for management of the employer's business or
performance of the supervisory employee's job.”
Reno v. Baird (1998) 18
Cal.4th 640, 646. Accord Leek v. Cooper (2011) 194 Cal.App.4th 399, 408. “Harassment claims are based on a type of
conduct that is avoidable and unnecessary to job performance. No supervisory
employee needs to use slurs or derogatory drawings, to physically interfere
with freedom of movement, to engage in unwanted sexual advances, etc. in order
to carry out the legitimate objectives of personnel management.” Janken v. GM Hughes Electronics (1996)
46 Cal.App.4th 55, 64. [Emphasis added.]
“[I]n some cases the hostile message
that constitutes … harassment is conveyed through official employment actions,
and therefore evidence that would otherwise be associated with a discrimination
claim can form the basis of a harassment claim.” Roby v. McKesson Corp. (2009) 47
Cal.4th 686, 708. Official employment
actions can evidence a harassment claim where the action communicates a hostile
or offensive message to the employee. Pollock
v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 932-33.
The elements of severe or pervasive harassment
unreasonably interfering with work performance are assessed from the
perspective of a reasonable person of the protected class of the
plaintiff. Thompson v. City Of
Monrovia (2010) 186 Cal.App.4th 860, 877.
“In many cases, a single offensive act by a co-employee is not enough
to establish employer liability for a hostile work environment. But where that
act is committed by a supervisor, the result may be different.” Dee v. Vintage Petroleum (2003) 106
Cal. App. 4th 30, 36. [Emphasis added.] Whether seven days of harassment
constituted a hostile work environment was a triable issue of material fact. Sheffield v. Dept. of Soc. Serv. County of
Los Angeles (2003) 109 Cal. App. 4th 153, 162-64. “‘[H]arassment cannot be occasional,
isolated, sporadic, or trivial, rather the plaintiff must show a concerted
pattern of harassment of a repeated, routine or a generalized nature.’” Hope v. Cal. Youth Authority (2005)
134 Cal.App.4th 577, 588.
Here, the pleading alleges and infers managers’ and supervisors’
ongoing actions, unnecessary for management, and interfering with her work,
including berating Plaintiff for advocating for patients in violation of public
policy, disregarding her complaints because she was female, mocking her speech accent, and fabricating her
resignation, as exemplified by the following excerpts:
Plaintiff’s managers and
supervisors, including HECTOR CHAVEZ; CHERYL LOPEZ; CYNTHIA CADIENTE, would
berate Plaintiff for making such complaints. CHERYL LOPEZ would tell Plaintiff,
“you’re the reason we are having so many issues.”
….
Plaintiff’s managers and
supervisors in human resources with whom she had regular contact, were all
male, would minimize and ignore the complaints of Plaintiff, a female, and
disregarded her opinion regarding the patient issues and safety concerns.
….
Defendants, including
HECTOR CHAVEZ, would publicly mock Plaintiff for her accent and pronunciation
of words when speaking with Plaintiff or when Plaintiff was addressing concerns
of co-workers in an effort intimidate, diminish and humiliate Plaintiff and
prevent her from making further complaints including those regarding patient
issues.
….
Plaintiff was told by
Defendant CYNTHIA CADIENTE that Defendants had accepted her resignation. When
Plaintiff protested and clearly stated repeatedly, including in email
exchanges, she was not resigning, Defendants then terminated Plaintiff.
(First Amended Complaint, ¶¶ 10, 11, 12, 14.)
Intentional Infliction of
Emotional Distress
With regard to the claim for Intentional Infliction of
Emotional Distress, defendants argue that the requirements of extreme and
outrageous conduct are not alleged.
Employment actions can involve outrageous conduct. Murray v. Oceanside Unif. Sch. Dist.
(2000) 79 Cal.App.4th 1338, 1362-63 (harassment based upon sexual
orientation); Fisher v. San Pedro
Peninsula Hosp. (1989) 214 Cal.App.3d 590, 618 (properly pled sexual
harassment); Robinson v. Hewlett-Packard Corp. (1986) 183 Cal. App. 3d
1108, 1127-30 (race discrimination can be outrageous), disapproved on other grounds in Rojo
v. Kliger (1990) 52 Cal. 3d 65, 81-82;
Rulon-Miller v. I.B.M. Corp.
(1984) 162 Cal.App.3d 241, 255 (employer stated to employee that she could not
see her romantic friend or she would face employment termination), overruled on other grounds by Guz v. Bechtel Nat’l, Inc. (2000)
24 Cal.4th 317, 351. But see Ankeny
v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537
(employer’s outrageous conduct not alleged due to dearth of facts); Yurick v. Sup Ct. (1989) 209
Cal.App.3d 1116, 1128-30 (no claim lies for mere insult, indignity, annoyance,
or threats, unless there were other circumstances of aggravation). See also
Pulver v. Avco Fin. Servs. (1986)182 Cal. App. 3d 622, 637 (demurrer should have been overruled,
given sufficient allegations that defendant’s conduct was, “‘outrageous, was
engaged [in] with the intent to cause and with conscious disregard of the
probability of causing emotional distress. As a legal result of that conduct,
plaintiff did in fact suffer severe emotional distress and incurred the
damages’…." ); ); Cross v. Bonded Adjustment Bureau (1996)
48 Cal. App. 4th 266, 283 (outrageous
conduct is a fact question where reasonable minds may differ); So v. Shin (2013) 212 Cal.App.4th 652,
672 (“whether conduct is ‘outrageous’ is
usually a question of fact.”); Trerice
v. Blue Cross of California (1989) 209 Cal. App. 3d 878, 883 (“court may
determine in the first instance, whether the defendant's conduct may reasonably
be regarded as so extreme and outrageous as to permit recovery.”); Miller v. National Broadcasting Co.
(1986) 187 Cal. App. 3d 1463, 1487 (outrageous conduct is measured by the
standard of the reasonable person, and not by that of a sensitive, or callous,
person); Kovr-Tv, Inc. v. Sup. Ct.
(1995) 31 Cal. App. 4th 1023, 1028 (outrageous conduct is not a bright-line
determination, but depends upon an intuitive appraisal of “values,
sensitivity threshold, and standards of civility....”).
However, personnel management decisions, even
motivated by wrongful intent, are not outrageous conduct as to individual
supervisors who discriminate. Janken
v. GM Hughes Electronics (1996) 46
Cal.App.4th 55, 80 (“"Managing personnel is not outrageous
conduct….."). See also Shoemaker v. Myers (1990) 52
Cal.3d 1, 25 (for determining applicability of Workers’ Compensation
preemption, discipline and criticism, that are independent of a
“violation of an express statute or violation of fundamental public policy,”
are not outrageous conduct); Light v.
California Dep't of Parks & Recreation (2017) 14 Cal. App. 5th 75,
102 (“conduct was not extreme,
outrageous, or beyond the bounds of what we tolerate as a civilized community….
While a reasonable trier of fact could conclude Dolinar … contributed to the
Department's violation of FEHA's anti-retaliation provision, her actions are
common—though ultimately misguided—supervisory actions.”).
As further addressed above, the First Amended
Complaint alleges and infers managers’ and supervisors’ ongoing actions,
unnecessary for management, including berating Plaintiff for advocating for
patients in violation of public policy,
disregarding her complaints because she was female, mocking her speech accent, and fabricating
her resignation. Reasonable minds could
differ as to whether the allegations constitute outrageous conduct, beyond mere
insult, indignity, annoyance, since other aggravating factors were involved,
such as discrimination against Plaintiff’s race, ancestry, national origin,
gender, and protected activities.
Reasonable minds could differ as to whether that is outrageous
conduct. The allegations are sufficient,
however, to survive at the demurrer stage.
Late
Opposition
The Court has considered the late opposition,
especially since defense counsel has filed a reply fully addressing the merits,
such that there is no prejudice caused. A judge should exercise discretion to consider a late
opposition, depending upon whether the attorney's conduct was reasonable under
the circumstances. Ambrose v. Michelin North America, Inc. (2005)
134 Cal.App.4th 1350, 1353; Luri
v. Greenwald (2003) 107 Cal.App.4th 1119, 1129; Garcia v. Hejmadi (1997) 58 Cal. App.
4th 674, 684; Samaniego v. Empire Today LLC (2012)
205 Cal.App.4th 1138, 1146 (A court had discretion to not consider
late-filed documents where counsel provided no plausible explanation for the
tardiness); Kapitanski v. Von's
Grocery Co. (1983) 146 Cal.App.3d 29, 31
(requiring relief under CCP Section 473, as to late-filed
opposition); CRC Rule 3.1300(d) (judges
have discretion to consider late filed documents, and minutes or orders must
indicate such decisions).
However, the Court asks Plaintiff’s counsel to file
timely in the future.