Judge: Alison Mackenzie, Case: 25STCV05268, Date: 2025-06-11 Tentative Ruling
Case Number: 25STCV05268 Hearing Date: June 11, 2025 Dept: 55
NATURE OF PROCEEDINGS: Hearing on Defendants' Demurrer
with Motion to Strike
Defendants’ Demurrer
is overruled. Defendants’ Motion to Strike is granted with leave to
amend.
BACKGROUND
Plaintiff Kristen Sheils
(Plaintiff) filed this action against her employer, the City of Palmdale (the City), and her
former supervisor Nardy Lopez, (collectively
“Defendants”), alleging that Defendants
discriminated against her based on her disability, which they also failed to accommodate,
and retaliated against her when she complained.
The causes of action are: (1) Violation of Labor Code
Sections 1102.5; (2) Discrimination on the Basis of Disability/Perceived
Disability/Medical Condition; (3) Failure to Provide Reasonable Accommodation;
(4) Failure to Engage in Interactive Process; (5) Retaliation in Violation of
the Feha; (6) Failure to Investigate Discrimination in Violation of California
Government Code Sections 12940(J); (7) Failure to Correct and Remedy
Discrimination and in Violation of California Government Code Sections
12940(K); (8) Retaliation in Violation of California Family Rights Act; (9)
Violation of California Family Rights Act; and (10) Intentional Infliction of
Emotional Distress.
Defendants filed a Demurrer with Motion to Strike. Plaintiff filed
an Opposition.
LEGAL STANDARD
When considering demurrers, courts read the allegations
liberally and in context. Wilson v. Transit Authority of City of Sacramento
(1962) 199 Cal.App.2d 716, 720-21. In a demurrer proceeding, the defects must
be apparent on the face of the pleading or via proper judicial notice. Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. “A demurrer tests the
pleading alone, and not on the evidence or facts alleged.” E-Fab, Inc. v.
Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315. As such, courts
assume the truth of the complaint’s properly pleaded or implied factual
allegations. Ibid. However, it does not accept as true deductions,
contentions, or conclusions of law or fact. Stonehouse Homes LLC v. City of
Sierra Madre (2008) 167 Cal.App.4th 531, 538. “To the extent the factual
allegations conflict with the content of the exhibits to the complaint,
[courts] rely on and accept as true the contents of the exhibits and treat as
surplusage the pleader's allegations as to the legal effect of the exhibits.” Barnett
v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.
Further, the court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. Code Civ. Proc., § 436(a). The court
may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
Id., § 436(b). The grounds for a motion to strike are that the pleading
has irrelevant, false, or improper matter, or has not been drawn or filed in
conformity with laws. Id. § 436. The grounds for moving to strike must
appear on the face of the pleading or by way of judicial notice. Id. §
437.
Leave to amend must be allowed where there is a reasonable
possibility of successful amendment. See Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to
amend if there is any reasonable possibility that the defect can be cured by
amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency
(2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without
leave to amend if the complaint, liberally construed, can state a cause of
action under any theory or if there is a reasonable possibility the defect can
be cured by amendment.”). The burden is on the complainant to show the Court
that a pleading can be amended successfully. Blank v. Kirwan (1985) 39
Cal.3d 311, 318.
ANALYSIS
Defendants demur to Plaintiff’s tenth cause of action for
intentional infliction of emotional distress.
A. The City’s Immunity
Defendants argue that as a public entity, the City is not
liable for the common law tort of intentional infliction of emotional distress.
“[Government Code] [s]ection 815 establishes that public
entity tort liability is exclusively statutory: ‘Except as otherwise provided
by statute: [¶] (a) A public entity is not liable for an injury, whether such
injury arises out of an act or omission of the public entity or a public
employee or any other person.’ [Government Code] [s]ection 815.2, in turn,
provides the statutory basis for liability relied on here: ‘(a) A public entity
is liable for injury proximately caused by an act or omission of an employee of
the public entity within the scope of his employment if the act or omission
would, apart from this section, have given rise to a cause of action against
that employee or his personal representative. [¶] (b) Except as otherwise
provided by statute, a public entity is not liable for an injury resulting from
an act or omission of an employee of the public entity where the employee is
immune from liability.’ Finally, [Government Code] section 820 delineates the
liability of public employees themselves: ‘(a) Except as otherwise provided by
statute (including Section 820.2), a public employee is liable for injury
caused by his act or omission to the same extent as a private person.’” C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868.
“In other words, ‘the general rule is that an employee of a
public entity is liable for his torts to the same extent as a private person (§
820, subd. (a)) and the public entity is vicariously liable for any injury
which its employee causes (§ 815.2, subd. (a)) to the same extent as a private
employer (§ 815, subd. (b)).’” Ibid (quoting Societa per Azioni de
Navigazione Italia v. City of Los
Angeles (1982) 31 Cal.3d 446, 463.)
Here, the City may only be liable for a common law tort,
such as intentional infliction of emotional distress, when such liability is
imposed by statute. See Gov Code § 815, subd. (a); State ex rel.
Dept. of California Highway Patrol v. Superior Court (2015) 60 Cal.4th
1002, 1009 (“If the Legislature has not created a statutory basis for it, there
is no government tort liability.”). One such statute, Government Code section
815.2, subdivision (a), makes the City vicariously liable for the torts of its employees,
including Lopez. However, the City cannot be vicariously liable for the acts or
omissions of an employee who is immune from liability. See Gov Code §
815.2, subd. (b). Therefore, the City’s liability turns on whether Lopez is
immune from liability for intentional infliction of emotional distress.
II. Discretionary Immunity
Defendants argue that Lopez enjoys discretionary immunity from
the intentional infliction of emotional distress claim because all the
predicate acts were choices Lopez made as Plaintiff’s supervisor.
“Except as otherwise provided by statute, a public employee
is not liable for an injury resulting from his act or omission where the act or
omission was the result of the exercise of the discretion vested in him,
whether or not such discretion be abused.” Gov. Code, § 820.2.
“[N]ot all acts requiring a public employee to choose among
alternatives entail the use of ‘discretion’ within the meaning of section
820.2.” Barner v. Leeds (2000) 24 Cal.4th 676, 684-685 (Barner).
“Under that statute, ‘[i]mmunity is reserved for those “basic policy decisions
[which have] . . been [expressly] committed to coordinate branches of
government,” and as to which judicial interference would thus be “unseemly.”’” Id.
at p. 685 (quoting Caldwell v. Montoya (1995) 10 Cal.4th 972, 981 [Caldwell])
(citation omitted). “‘Such “areas of quasi-legislative policy-making . . . are
sufficiently sensitive” to call for judicial abstention from interference that “might
even in the first instance affect the coordinate body's decision-making process”’”
Id. at p. 685 (quoting Caldwell supra, 10 Cal.4th at p.
981) (citations omitted). “On the other hand, there is no basis for immunizing
lower level decisions that merely implement a basic policy already formulated.
The scope of the discretionary act immunity ‘should be no greater than is
required to give legislative and executive policymakers sufficient breathing
space in which to perform their vital policymaking functions.’” Ibid
(quoting Tarasoff v. Regents of University of California (1976) 17 Cal.
3d 425, 445) (citation omitted).
“In determining whether an act of a public employee is
discretionary under section 820.2 [Courts] have distinguished between the
employee’s operational and policy decisions.” Id. at p. 685. “Immunity
will be conferred with respect to a basic policy decision, or activity which
may be characterized as the ‘planning’ rather than the ‘operational’ level of
decisionmaking.” Taylor v. Buff (1985) 172 Cal.App.3d 384, 390 (quoting Johnson
v. State of California (1968) 69 Cal.2d 782, 793-94 [Johnson]). In Barner,
the California Supreme Court expressly rejected calls to replace this
distinction in favor of “the federal rule providing immunity for certain
operational decisions that involve the exercise of judgment but that do not
necessarily involve policymaking or planning.” Barner supra,
(2000) 24 Cal.4th at p. 685, fn. 2.
In Caldwell, the California Supreme Court held that “votes
by members of a school district's governing board whether to renew the
superintendent's employment contract qualify as discretionary acts within the
meaning of section 820.2”. Caldwell, supra, 10 Cal.4th 972, 982, The
court reasoned, “the decision about who should serve as superintendent of a
school district…is … ‘expressly entrusted to a coordinate branch of government’
at its highest level.” Ibid (quoting Johnson, supra, 69
Cal.2d at p. 793). Yet, the court noted that “[t]he superintendent … is the
district's foremost appointed official, with primary responsibility for
representing, guiding, and administering it. The governing board's choice about
who should occupy this crucial post is therefore a peculiarly sensitive and
subjective one, with fundamental policy implications.” Id.
at p. 983 (citation omitted).
However, here, the government decisions do not concern the hiring
of a high-level government official, but rather personnel management decisions concerning
a non-managerial civil service employee. At the relevant times, Plaintiff was
employed by the City as a “Digital Media Specialist” in the Communications
Department and later as an “Administrative Assistant” in the Parks and
Recreation Department. Lopez’s alleged decisions not to engage in the
interactive process, to deny reasonable accommodations, and to demote Plaintiff
are “routine duties incident to the normal operations of” Lopez’s position. See
Barner, supra, 24 Cal.4th 676, 685. Because these were operational
decisions, rather than policy decisions, they are not protected by
discretionary immunity. See Taylor v. City of Los Angeles Dept. of
Water & Power (2006) 144 Cal.App.4th 1216, 1238-1239 (“The decisions
regarding job assignments, training and promotion may not be characterized as a
quasi-legislative policy-making [decision which] is sufficiently sensitive . .
. to call for judicial abstention from interference that might . . . affect the
. . . decision-making process of a coordinate branch of government.”) (internal
quotation marks omitted) (disapproved on other grounds in Jones v. Lodge at
Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162).
The Court concludes that Lopez does not enjoy decisional
immunity. Accordingly, Defendant’s demurrer to the intentional infliction of
emotional distress claim is overruled.
MOTION TO STRIKE
Defendants move to strike Plaintiff’s request for punitive
damages.
To state a prima facie claim for punitive damages, a
complaint must set forth the elements as stated in the general punitive damage
statute, Civil Code Section 3294. Coll. Hosp., Inc. v. Superior Court
(1994) 8 Cal.4th 704, 721. These statutory elements include allegations that
the defendant has been guilty of oppression, fraud, or malice. Civ. Code §
3294, subd. (a).
“In order to survive a motion to strike an allegation of
punitive damages, the ultimate facts showing an entitlement to such relief must
be pled by a plaintiff. In passing on the correctness of a ruling on a motion
to strike, judges read allegations of a pleading subject to a motion to strike
as a whole, all parts in their context, and assume their truth. In ruling on a
motion to strike, courts do not read allegations in isolation.” Clauson v.
Superior Court (1998) 67 Cal.App.4th 1253, 1255. (citations omitted). “The
mere allegation an intentional tort was committed is not sufficient to warrant
an award of punitive damages. Not only must there be circumstances of
oppression, fraud or malice, but facts must be alleged in the pleading to
support such a claim.” Grieves v. Superior Ct. (1984) 157 Cal.App.3d
159, 166 (fn. omitted) (citations omitted).
A claim for punitive damages may not be based on conclusory
allegations of oppression, fraud, or malice but instead must be based on
factual allegations that support such a conclusion. See Smith v. Superior
Court (1992) 10 Cal. App. 4th 1033, 1041-1042 (Court of Appeal issued
peremptory writ directing trial court to issue order striking plaintiff’s
prayer for punitive damages because “[t]he sole basis for seeking punitive
damages are … conclusory allegations” which were “devoid of any factual
assertions supporting a conclusion [defendants] acted with oppression, fraud or
malice”).
“Notwithstanding any other provision of law, a public entity
is not liable for damages awarded under Section 3294 of the Civil Code or other
damages imposed primarily for the sake of example and by way of punishing the
defendant.” Gov. Code, § 818.
Defendants correctly note that, as a public entity, the City
is not liable for punitive damages. Additionally, Defendants argue that
Plaintiff has failed to allege sufficient facts to justify an award of punitive
damages against Defendant Lopez.
The Court agrees that the Complaint does not include
sufficient factual allegations showing fraud, malice, or oppression. Moreover,
the Court interprets Plaintiff’s failure to oppose the motion to strike as an
acknowledgment that they have failed to allege punitive damages. See Cal Rules
of Court, Rule 8.54 (“failure to oppose a motion may be deemed a consent to the
granting of the motion.”). However, because there is a possibility that the Plaintiff
could amend the complaint to allege facts supporting punitive damages against
Lopez, the motion to strike is granted with leave to amend.
CONCLUSION
Defendants’ Demurrer is overruled. Defendants’ Motion to Strike
is granted with twenty days leave to amend.