Judge: Anne Richardson, Case: 22STCV34671, Date: 2023-04-04 Tentative Ruling
Case Number: 22STCV34671 Hearing Date: April 4, 2023 Dept: 40
|
LILIAN
ROCA MEZA, Plaintiff, v. NALEO
EDUCATION FUND, NATIONAL ASSOCIATION OF LATINO ELECTED AND APPOINTED
OFFICIALS, RONALD GARCIA, ERICA BERNAL, ANGELA WEIMER, and DOES 1 to 100, inclusive, Defendants. |
Case No.: 22STCV34671 Hearing Date: 4/4/23 Trial Date: N/A [TENTATIVE] RULING RE: Defendants NALEO Educational Fund, National
Association of Latino Elected and Appointed Officials, Ronald Garcia, Erica
Bernal, and Angela Weimer’s Demurrer to Plaintiff’s Complaint; and Defendants NALEO Educational Fund, National
Association of Latino Elected and Appointed Officials, Ronald Garcia, Erica
Bernal, and Angela Weimer’s Motion to Strike Portions of Plaintiff’s
Complaint. |
MOVING
PARTY: Defendants NALEO Educational Fund [sued as NALEO
Education Fund], National Association of Latino Elected and Appointed
Officials, Ronald Garcia, Erica Bernal, and Angela Weimer.
OPPOSITION: Plaintiff
Lilian Roca Meza.
REPLY: Defendants
NALEO Educational Fund, National Association of Latino Elected and Appointed
Officials, Ronald Garcia, Erica Bernal, and Angela Weimer.
Plaintiff sues
Defendants NALEO Educational Fund, National Association of Latino Elected and
Appointed Officials, Ronald Garcia, Erica Bernal, Angela Weimer (collectively
“Defendants”), and Does 1 to 100 pursuant to a Complaint alleging twelve causes
of action against Defendants: (1) FEHA Discrimination; (2) FEHA Harassment; (3)
FEHA Retaliation; (4) FEHA Failure to Provide Reasonable Accommodation; (5)
FEHA Failure to Engage in the Interactive Process; (6) FEHA Failure to Prevent
Discrimination, Harassment, or Retaliation; (7) CFRA Leave Retaliation; (8)
Interference with CFRA; (9) Negligent Hiring, Supervision, and Retention; (10)
Wrongful Termination of Employment in Violation of Public Policy; (11)
Whistleblower Retaliation (Labor Code § 1102.5); and (12) Intentional
Infliction of Emotional Distress.
The claims are
premised on allegations that:
Plaintiff
associated with persons with disabilities including her father, suffered from
disabilities that affected one or more major life activities during her
employment, is a female, made protected complaints including complaints about
safety, unlawful discrimination, harassment, and retaliation experienced as a
result of her disability and association with members of a protected class, and
took medical leave of absence and requested other reasonable accommodations.
As
of 2019 or 2020, Plaintiff Roca Meza worked as the National Call Center
Supervisor for Defendants.
In
the beginning of 2020, Roca Meza started to experience severe flu like symptoms
(which later went on to be diagnosed as COVID-19) and needed to go out on FMLA
leave to aid her ill father.
In
January 2020, Roca Meza contracted COVID-19. Originally, Roca Meza’s COVID-19
symptoms went undiagnosed, and she was hospitalized 3-4 times. Roca Meza
communicated to Ronald Garcia, Grants Manager, Erica Bernal (“Bernal”), Chief
Operating Officer, and Angela Weimer, National Director of Human Resources and
Administration, that she will not be in on one of the days because she had to
go to hospital due to her COVID-19 sickness. Bernal was not sympathetic to Roca
Meza’s hospitalization stating if the matter is not life threatening, Roca Meza
should be at work.
In
or around January/February of 2020, Roca Meza’s father required emergency
surgery and care. Roca Meza notified Weimer that her 96-year-old father’s
appendix ruptured, and Roca Meza needed to tend to her father. Weimer was not
sympathetic at all to Roca Meza’s circumstances. Instead, Weimer informed Roca
Meza she was not allowed to take the entirety of leave but to take CFRA leave
one week at a time. Roca Meza proceeded to take an CFRA leave of absence from
January 28, 2020, to April 23, 2020. However, Weimer emailed Roca Meza at least
once each week that Roca Meza was out of the office and made phone calls to
Roca Meza throughout Roca Meza’s CFRA leave requesting Roca Meza to come back
to work. Under the pressure of taking care of her father, Roca Meza
consistently responded that she would be unable to come back to work for
Defendant until the end of her CFRA leave in April of 2020. However, Weimer
continued to email Roca Meza on a weekly basis telling her to return to the
office.
Upon
her return to work on April 23, 2020, Weimer notified Roca Meza they were not
ready to start work, and she would officially start again on April 27, 2020.
Once Roca Meza returned to work on April 27, 2020, Weimer notified Roca Meza
that she would no longer have the title of National Call Center Supervisor and
would instead be taking on the role of Manager of Administrative Projects. Roca
Meza was instructed she would now be directly reporting to Weimer and would be
considered an hourly employee rather than a salaried employee. Confused at the
assignment to a position that had not previously existed, Roca Meza asked
Weimer why she was being transferred. Weimer indicated that, because Meza was
out on leave, Defendant had assigned Roca Meza’s responsibilities to Rodrigo
Armenta (“Armenta”), a non-disabled employee, despite his title as Junior Data
analyst remaining unchanged. Weimer stated that Roca Meza would be removed from
the Civic Engagement Department and placed in the Administration Department.
Roca
Meza’s newly assigned position was neither specific nor structured. Weimer
chose to inform Roca Meza of her responsibilities over the phone rather than by
email, and Roca Meza’s responsibilities primarily consisted of covering the
receptionist desk, translations, and managing the front desk call log. This
demotion was in direct retaliation for Roca Meza’s having taken a leave of
absence and because of her and her father’s disabling conditions that required
her to take time off work. Roca Meza found that, rather than managing any of
her previous subordinates, Roca Meza was limited to tasks such as translating
documents from English to Spanish or coordinating the assignment of classes for
employees.
On
December 1, 2020, Weimer notified Roca Meza that she was being terminated from
her employment with the Defendants. When a stunned Roca Meza asked why she was
being terminated, Weimer stated that there was allegedly no longer room in
Defendants’ budget for Roca Meza’s position. Weimer proceeded to tell Roca Meza
that her last day would be December 31, 2020.
As
a consequence of Defendants’ conduct, Roca Meza has suffered and will suffer
harm, including lost past and future income and employment benefits, damage to
her career, and lost wages, overtime, unpaid expenses, and penalties, as well
as interest on unpaid wages at the legal rate from and after each payday on
which those wages should have been paid, in a sum to be proven at trial; and
damages related to psychological and emotional distress, humiliation, and
mental and physical pain and anguish, in a sum to be proven at trial; and
entitlement to punitive and exemplary damages.
(Complaint, ¶¶
13-15.)
On January 4, 2023,
Defendants (1) demurred to the Complaint’s twelve causes of action on
sufficiency and uncertainty of pleading grounds and (2) made a motion to strike
against the Complaint’s punitive and exemplary damages allegations and prayers.
On March 21, 2023,
Plaintiff opposed the January 4th demurrer and motion to strike.
On March 27, 2023,
Defendants replied to the March 21st oppositions.
The demurrer and
motion to strike are now before the Court.
For reading
purposes, NALEO Appointed Official
Defendants Ronald Garcia, Erica Bernal, and Angela Weimer are sometimes referred
to herein as “Individual Defendants.”
Demurrer
Sufficiency Standard
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v.
Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd.
(e).) This device can be used only to challenge defects that appear on the face
of the pleading under attack or from matters outside the pleading that are
judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To
survive a [general] demurrer, the complaint need only allege facts sufficient
to state a cause of action; each evidentiary fact that might eventually form
part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart
Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the
sufficiency of the cause of action, the demurrer admits the truth of all
material facts properly pleaded. (Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit
contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab
Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the
allegations liberally and in context. (Taylor v. City of Los Angeles Dept.
of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other
grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th
1158, 1162.) The face of the complaint includes exhibits attached to the
complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts
appearing in the exhibits contradict those alleged, the facts in the exhibits
take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86
Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White
v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)
Demurrer
Uncertainty Standard
Uncertainty
Standard: A demurrer to a pleading lies where the pleading is uncertain,
ambiguous, or unintelligible. (Code Civ. Proc. § 430.10, subd. (f).) “A
demurrer for uncertainty is strictly construed, even where a complaint is in
some respects uncertain, because ambiguities can be clarified under modern
discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14
Cal.App.4th 612, 616.) As a result, a special demurrer for uncertainty is not
intended to reach failure to incorporate sufficient facts in the pleading but
is directed only at uncertainty existing in the allegations already made. (People
v. Taliaferro (1957) 149 Cal.App.2d 822, 825.) Where complaint is
sufficient to state a cause of action and to apprise defendant of issues he is
to meet, it is not properly subject to a special demurrer for uncertainty. (See
ibid.; see also Gressley v. Williams (1961) 193 Cal.App.2d 636,
643 [“A special demurrer [for uncertainty] should be overruled where the
allegations of the complaint are sufficiently clear to apprise the defendant of
the issues which he is to meet”].)
First to Third
Causes of Action, All Defendants, Impermissible Combination of Multiple Causes
of Action: OVERRULED, as to All Defendants.
Defendants demur to
the Complaint’s first three causes of action—FEHA Discrimination, Harassment,
and Retaliation—on the grounds that the three claims are premised on
Plaintiff’s disability, association with disabled persons (Plaintiff’s father),
medical leave, sex, and gender without clear differentiation between these
grounds, under circumstances where, for the purposes of clarity, the claims
should be stated in separate counts, citing to Nevada County Sacramento
Canal Co. v. Kidd (1869) 37 Cal. 282, 317 for this proposition. (Demurrer,
14:14-15:11.)
In opposition, Plaintiff
argues that the Complaint is sufficiently certain because its claims repeatedly
identify the protected classes at issue, the nature of the claims, and the
Defendants against whom the claims are directed. (Opp’n to Demurrer,
7:22-8:11.)
In reply,
Defendants reiterate their points in the motion. (Reply to Opp’n to Demurrer,
2:5-16.)
The Court finds
that the Complaint is not uncertain as to these causes of action—even if they
are, arguendo, not sufficiently pleaded pursuant to Code of Civil Procedure
section 430.10, subdivision (e)—because the claims apprise Defendants that they
are being sued for FEHA Discrimination, Harassment, and Retaliation based on disability,
association with disabled persons (Plaintiff’s father), medical leave, sex, and
gender grounds through incorporation of allegations into the first three causes
of action. (See Complaint, ¶¶ 13-15 [background allegations], 21, 28, 36
[incorporation into Complaint’s three causes of action].)
Defendants’
demurrer to the Complaint’s first three causes of action is thus OVERRULED as
premised on uncertainty grounds.
First Cause of
Action, FEHA Discrimination: OVERRULED, as to Defendant NALEO
Educational Fund; SUSTAINED as to Defendants Garcia, Bernal, and Weimer.
A prima facie case
of FEHA discrimination must allege that: (1) plaintiff was a member of a
protected class, (2) he or she was qualified for and performing competently in
the position she held, (3) he or she suffered an adverse employment action, and
(4) adverse employment action by the employer is more likely than not due to a
discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 355.)
The first cause of
action alleges FEHA Discrimination based on incorporated pleadings and
allegations that Plaintiff was discriminated against based on her “disability
(actual, history of and/or perceived), association with disabled persons,
taking or requesting medical leave, sex, gender and/or other characteristics
protected by FEHA, Government Code section 12900.” (Complaint, ¶¶ 13-18, 21,
23; see Complaint, ¶¶ 21-27.)
In their demurrer,
Defendants argue that the first cause of action fails as pleaded because (1) it
fails to allege circumstances suggesting a discriminatory motive and (2) no
disability is pleaded therein. (Demurrer, 15:14-16:19.)
In opposition,
Plaintiff argues that she belongs to a protected class as a female, suffering
from disabilities and bearing association with a person with a disability, who
made protected activity complaints, took a medical leave of absence, and
requested other reasonable accommodations. (Opp’n to Demurrer, 8:25-9:6.) Plaintiff
also argues that she was treated differently after being hospitalized with
COVID-19 and after requesting CFRA leave to care for her ill father, where
Defendant Weimer denied Plaintiff’s request for twelve weeks of CFRA leave in
one stretch and demoted and stripped Plaintiff of her title upon her return to
work, with termination shortly thereafter. (Opp’n to Demurrer, 9:12-18.)
In reply,
Defendants argue that the Complaint fails to allege a discriminatory motive
because Plaintiff fails to allege that a protected characteristic was the
impetus for any adverse action taken against Plaintiff, i.e., lack of
causation. (Reply to Opp’n to Demurrer, 4:16-22.) Defendants also argue that
the Complaint does not specifically indicate that her disability was COVID-19
or that COVID-19 affected a major life activity, thus failing to support a
protected class argument on these grounds. (Reply to Opp’n the Demurrer,
4:23-26.)
The Court finds
that the Complaint is sufficiently pleaded as to discrimination related to CFRA
leave (protected class at issue), but only as the claim is pleaded against
Defendant NALEO Educational Fund. The reason for this is the causal connection
between the Complaint alleging that Plaintiff took twelve weeks of CFRA leave
and that NALEO (1) attempting to force her to return to work by only permitting
one week of leave at a time and (2) demoting or changing her job position after
she returned to work by placing her in a position with diminished
responsibilities and change in payment structure, terminating Plaintiff shortly
thereafter. (Complaint, ¶¶ 14(d)-(f), 15 [allegations], 21 [incorporation into
first cause of action (“COA”)].)
However, and though
not raised by the parties, the Court finds that the claim is not sufficiently
pleaded as to Individual Defendants because the Complaint fails to properly
plead a basis for joint liability between them and NALEO Educational Fund. Though
the Complaint alleges that the Defendants are responsible for each other’s
conduct based on alter ego grounds (Complaint, ¶ 4), such allegations are
pleaded conclusorily without sufficient detail for the Court to understand why NALEO’s
corporate or other unspecified form should be disregarded as to prevent NALEO
from using its statutory separate corporate or other form as a shield from
liability to defeat the rights and equities of Plaintiff Roca Meza. (LSREF2
Clover Property 4, LLC v. Festival Retail Fund 1, LP (2016) 3 Cal.App.5th
1067, 1081.)
Defendants’
demurrer to the Complaint’s first cause of action is thus OVERRULED as to
Defendant NALEO Educational Fund but SUSTAINED, With Leave to Amend, as to Defendants
Garcia, Bernal, and Weimer.
Second Cause of
Action, FEHA Harassment: OVERRULED, as to Defendants NALEO Educational
Fund and Weimer; SUSTAINED, With Leave to Amend, as to Defendants Garcia and
Bernal.
To establish
harassment under FEHA, a plaintiff must show: (1) plaintiff belongs to a
protected group; (2) plaintiff was subject to harassment; (3) the harassment
complained of was based on the plaintiff’s membership in the protected group;
(4) the harassment complained of was sufficiently pervasive so as to alter the
conditions of employment and create an abusive working environment; and (5)
respondeat superior. (Jones v. Dep’t of Corrections & Rehabilitation,
supra, 152 Cal.App.4th at p. 1377.) Individual employees may be liable for
their own acts of harassment. (See Govt. Code, § 12940(j)(3); Reno v. Baird
(1998) 18 Cal.4th 640, 644-45.) In a workplace harassment suit, the plaintiff
need only “prove that a reasonable person subjected to the discriminatory
conduct would find, as the plaintiff did, that the harassment so altered
working conditions as to make it more difficult to do the job.” (Harris v.
Forklift Systems (1993) 510 U.S. 17, 26.) A single incident of harassment
may be enough to constitute a hostile work environment if it “unreasonably
interfered with the plaintiff’s work performance or created an intimidating,
hostile, or offensive working environment.” The court shall use the totality of
the circumstances to determine whether there exists a hostile work environment.
(Gov. Code, § 12923, subd. (c).) (Gov. Code, § 12923, subd. (b).) Generally,
conduct necessary for management of the employer’s business cannot constitute
harassment. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th
55, 63.) However, actions characterized as official employment actions may
establish discriminatory animus to support a harassment claim. (See Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 707-11.)
The second cause of
action alleges FEHA Harassment based on incorporated pleadings and based on “[P]laintiff’s
disability (history of actual and/or perceived), association with disabled persons,
sex, gender, and/or other protected characteristics, in violation of Government
Code sections 12940(j) and 12923.” (Complaint, ¶¶ 13-15, 28, 30; see Complaint,
¶¶ 28-35.)
Defendants demur to
the second cause of action generally on the grounds that Plaintiffs allege no
harassing conduct, that the conduct alleged is neither severe nor pervasive,
and that the claim is uncertain as to which ground for harassment is at issue.
(Demurrer, 17:7-18:5.)
In opposition,
Plaintiff argues that “the … allegations of discrimination … based on
disability, associational disability, sex, and gender are sufficient to form
the factual basis for plaintiff’s harassment claims” where the Complaint
alleges “Plaintiff requested CFRA leave to take care of her father who required
emergency surgery, Weimer informed Plaintiff she [was] not allowed to take the
entirety of CFRA leave, but only one week at a time,” with Weimer interfering
with such leave by “calling and emailing Plaintiff weekly, pressuring Plaintiff
to return earlier than the 12-week protected leave,” and “once Plaintiff
returned from CFRA leave on April 27, 2020, Plaintiff return[ing] to a demotion
from a salary employee to an hourly employee, [with] her title stripped, and …
her job duties given to a non-disabled male employee, Rodrigo Armenta.” (Opp’n
to Demurrer, 10:7-21.)
In reply,
Defendants argue in full that “Plaintiff alleges no harassing conduct, no
conduct based on any protected activity, and no conduct that is either severe
or pervasive,” instead merely claiming “certain enumerated protected
characteristics … [and] on ‘other characteristics[]’ [that] she does not even
identify in her Opposition.” (Reply to Opp’n to Demurrer, 4:27-5:3.)
The Court finds
that the second cause of action is sufficiently stated against Defendants NALEO
Educational Fund and Weimer. At the very least, the Complaint pleads FEHA Harassment
insofar as that Defendant Weimer, acting for NALEO, instructed Plaintiff Roca Meza
that Plaintiff could only take CFRA leave one week at a time instead of for a
continuous three months, later emailing Plaintiff once a week between January
28, 2020 and April 23, 2020 to demand Plaintiff return to work while Plaintiff
was away caring for her father. (Complaint, ¶ 14(d).)
However, the Court
fails to find sufficient pleadings supporting a FEHA Harassment claim against
Defendants Garcia and Bernal where the only direct allegations against them
were that Garcia and Bernal were informed by Plaintiff Roca Meza that Plaintiff
would need to miss work to go to the hospital for COVID-19 care and that
Defendant Bernal was “not sympathetic” to Plaintiff by stating that if the
illness was not life threatening, Plaintiff should be at work. (Complaint, ¶
14(c).)
Defendants’
demurrer to the Complaint’s second cause of action is thus OVERRULED as to
Defendant NALEO Educational Fund and Angela Weimer but SUSTAINED, With Leave to
Amend, as to Defendants Garcia and Bernal.
Second Cause of
Action, Harassment, Individual Defendants, No Harassing Conduct Alleged Against
Them: MOOT.
Defendants
separately demur to the Complaint’s second cause of action as alleged against
Individual Defendants—i.e., Ronald
Garcia, Erica Bernal, and Angela Weimer—on the grounds that the claims alleged
no harassing conduct by Individual Defendants is pleaded in the Complaint other
than allegations that (1) Ronald Garcia, on one occasion, was informed by
Plaintiff Roca Meza that she would not be at work due to a need to go to the
hospital; (2) Erica Bernal was informed by Plaintiff of the same information and
Bernal was “not sympathetic” to Plaintiff, instructing Plaintiff to return to
work if the condition was not life threatening; and (3) Angela Weimer was
informed of the same information by Plaintiff and repeatedly asked Plaintiff
when she was returning to work during Plaintiff’s time away on CFRA leave.
(Demurrer, 14:1-7.)
The Court finds
these grounds MOOT insofar as the Court has otherwise ruled ante as to the
pleadings in the second cause of action.
Third Cause of
Action, FEHA Retaliation: SUSTAINED, With Leave to Amend, as to All
Defendants.
“[I]n order to
establish a prima facie case of retaliation under the FEHA, a plaintiff must
show (1) he or she engaged in a ‘protected activity,’ (2) the employer
subjected the employee to an adverse employment action, and (3) a causal link
existed between the protected activity and the employer’s action.” (Yanowitz
v. L’Oreal USA Inc. (2005) 36 Cal.4th 1028, 1042 [internal citations
omitted].) “The protected activity element may be established by evidence that
the plaintiff threatened to file a discrimination charge, by a showing that the
plaintiff mistakenly, but reasonably and sincerely believed he was opposing
discrimination, or by evidence an employer believed the plaintiff was a
potential witness in another employee’s FEHA action.” (Rope v. Auto-Chlor
System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652.) “A plaintiff …
need only prove that a retaliatory animus was at least a substantial or
motivating factor in the adverse employment decision” to prevail on her claim.
(George v. California Unemployment Ins. Appeals Bd. (2009) 179
Cal.App.4th 1475, 1492.)
The third cause of
action incorporates prior factual pleadings to argue that Plaintiff was
retaliated against for either seeking rights guaranteed by FEHA or by opposing
Defendants’ failure to provide such rights, without greater detail as to the
rights at issue. (Complaint, ¶¶ 13-15, 36-43.)
In their demurrer,
Defendants argue that the third cause of action fails to sufficiently plead
retaliation because (1) Plaintiff does not identify a protected activity and
(2) does not state facts suggesting a causal connection to her protected
activity and layoff. (Demurrer, 18:24-19:9.)
In opposition,
Plaintiff argues that (1) paragraphs 13(d), 14(e), 37 to 39, 46 to 47, and 68
to 83 plead retaliation against Plaintiff and (2) the Complaint alleges such
retaliation was based on protected activity such as taking CFRA leave to care
for Plaintiff to care for her father and retaliation in the form of (a) weekly
calls from Defendant Weimer for Plaintiff to return to work and (2) Defendant
Weimer demoting Plaintiff upon her return to work following CFRA leave. (Opp’n
to Demurrer, 10:22-11:13.)
In reply, Defendants
argue that “Plaintiff fails to identify any report of what she may have
believed was unlawful activity” where “[a]bsent a complaint [against, for example,
discriminatory or harassing conduct], there was no protected activity.” (Reply,
5:11-17.)
The Court agrees
with Defendants. Protected activity for FEHA Retaliation involves, for example,
allegations that the plaintiff threatened to file a discrimination charge, that
plaintiff mistakenly, but reasonably and sincerely believed he was opposing
discrimination, or that the employer believed the plaintiff was a potential
witness in another employee’s FEHA action. (Rope v. Auto-Chlor System of
Washington, Inc., supra, 220 Cal.App.4th at p. 652.) The Complaint
does not allege any such complaints by Plaintiff, e.g., allegations that
Plaintiff Roca Meza opposed conduct by Defendants alleged to have been
discriminatory or harassing. While the Complaint does allege that, when
Defendant Weimer attempted to pressure Plaintiff to return work by making
weekly phone calls to Plaintiff while Plaintiff was on CFRA leave to care for
her father, Plaintiff “consistently responded that she would be unable to come
back to work … until the end of her … leave in April of 2020” (Complaint, ¶
14(d),) such allegations do not allege Plaintiff made a complaint to NALEO
Educational Fund regarding Defendant Weimer’s conduct or NALEO generally.
Defendants’
demurrer to the Complaint’s third cause of action is thus SUSTAINED, With Leave
to Amend, as to all Defendants.
Fourth Cause of
Action, FEHA Failure to Provide Reasonable Accommodation: SUSTAINED,
With Leave to Amend, as to All Defendants.
Government Code
section 12940, subdivision (m) makes it unlawful for “an employer or other
[covered] entity … to fail to make reasonable accommodation for the known physical
or mental disability of an applicant or employee.” A claim for failure to
accommodate requires a showing that (1) plaintiff had a disability, (2) the
employer was aware of the alleged disability, and (3) failed to make a
reasonable accommodation for plaintiff. (Gov. Code, § 12940, subd. (m).) Generally,
“[t]he employee bears the burden of giving the employer notice of the
disability. [Citation.]” (Raine v. City of Burbank (2006) 135
Cal.App.4th 1215, 1222.)
The fourth cause of
action alleges FEHA Failure to Provide Reasonable Accommodation based on
incorporated pleadings and allegations of “Defendants wholly fail[ing] to
attempt any reasonable accommodation of [P]laintiff’s known disability” and “Defendants
us[ing] [P]laintiff’s disability and her need to take medical leave as an
excuse for terminating [P]laintiff’s employment.” (Complaint, ¶¶ 13-15, 44, 46;
see Complaint, ¶¶ 44-51.)
In their demurrer,
Defendants argue that “Plaintiff fails to plead facts identifying any actual,
covered disability” and that “the Complaint states no facts identifying what
accommodation(s) Plaintiff purportedly needed, whether she requested these
accommodations, when she made any alleged requests, why or whether those
accommodations were reasonable, or that she was denied accommodation.”
(Demurrer, 19:16-21.)
In opposition,
Plaintiff argues by incorporation that (1) paragraphs 13(d), 14(e), 37 to 39,
46 to 47, and 68 to 83 plead a failure to provide a reasonable accommodation
for Plaintiff and (2) the Complaint alleges such failure was based on protected
activity. (Opp’n to Demurrer, 11:14-16 [incorporating Opp’n to Demurrer,
10:22-11:13].)
In reply,
Defendants argue that “Plaintiff did not identify [in the pleadings] any
disability for which she needed time off” where the Complaint alleges “she
requested and was granted time off for the purported hospitalizations,” where”
[t]o the extent she claims she had a disability requiring a leave of absence
(which is not actually pleaded), [Plaintiff] was granted a leave of absence,”
and where Plaintiff “identifies no other disability, nor any accommodation requested
or denied.” (Reply to Opp’n to Demurrer, 5:4-10.)
The Court agrees
with Defendants. The Complaint fails to allege what disability Plaintiff Roca
Meza alleges and when and how she made Defendants aware of such disability and
requested reasonable accommodations thereon. (See Complaint, ¶¶ 13(d)-(e),
18(a)-(b), 22-23, 29-30, 39 [incorporated allegations related to disability],
44 [incorporation], 46-47 [disability pleadings in fourth cause of action].)
Defendants’
demurrer to the Complaint’s fourth cause of action is thus SUSTAINED, With
Leave to Amend, as to all Defendants.
Fifth Cause of
Action, FEHA Failure to Engage in the Interactive Process: SUSTAINED,
With Leave to Amend, as to All Defendants.
Government Code
section 12940, subdivision (n) requires employers to engage in a good faith
interactive process to determine effective reasonable accommodations, if any,
“in response to a request for reasonable accommodation by an employee … with a
known physical or mental disability ….” (Raine v. City of Burbank, supra,
135 Cal.App.4th at p. 1222.) A claim for failure to engage in a good faith
interactive process must allege facts to support a finding that (1) plaintiff
suffered from a disability, (2) the employer was aware of the alleged
disabilities, and (3) the employer failed to engage in a good faith process to
identify reasonable accommodations for the Plaintiffs. (See Gov. Code, § 12940,
subd. (n).) Generally, “[t]he employee bears the burden of giving the employer
notice of the disability. [Citation.]” (Raine v. City of Burbank, supra,
at p. 1222.)
The fifth cause of
action alleges FEHA Failure to Engage in the Interactive Process based on
incorporated pleadings and allegations that “Defendants wholly failed to engage
in a timely, good-faith interactive process with [P]laintiff to accommodate her
known disabilities” and “[i]nstead, … terminated [P]laintiff’s employment in
part because of her disabilities.” (Complaint, ¶¶ 13-15, 52, 54; see Complaint,
¶¶ 52-59.)
The Court adopts
its discussion as to the fourth cause of action to find that this claim is not
sufficiently stated as to all Defendants because if the Complaint does not
properly allege when Plaintiff requested accommodations for a disability—where
no exact disability is alleged in the Complaint (Complaint, ¶¶ 13(d)-(e),
18(a)-(b), 22-23, 29-30, 39, 46-47 [incorporated pleadings], 52
[incorporation], 55 [allegations in fifth cause of action])—it follows that
there can be no pleaded failure to engage in the interactive process regarding
such disability. (See Fourth Cause of Action discussion supra; Complaint, ¶¶
13-15; see also Demurrer, 19:7-13; Opp’n to Demurrer 11:17-19; Reply to Opp’n
to Demurrer, 5:4-10.)
Defendants’
demurrer to the Complaint’s fifth cause of action is thus SUSTAINED, With Leave
to Amend, as to all Defendants.
Sixth Cause of
Action, Failure to Prevent FEHA Discrimination, Harassment, or Retaliation:
OVERRULED, as to Defendant NALEO Educational Fund; SUSTAINED, With Leave to
Amend, as to Defendants Garcia, Bernal, and Weimer.
Government Code
section 12940(k) provides that it is an unlawful employment practice “[f]or an
employer, labor organization, employment agency, apprenticeship training
program, or any training program leading to employment, to fail to take all
reasonable steps necessary to prevent discrimination and harassment from
occurring.” (Gov. Code, § 12940, subd. (k).) To establish this claim, a
plaintiff must establish the defendant’s legal duty of care, breach of duty,
legal causation, and damages to the plaintiff. (See Trujillo v. North County
Transit District (1998) 63 Cal.App.4th 280, 286-87.)
The sixth cause of
action alleges Failure to Prevent FEHA Discrimination, Harassment, or
Retaliation based on incorporated pleadings and allegations that “[d]uring the
course of plaintiff’s employment, [D]efendants failed to prevent their
employees from engaging in intentional actions that resulted in [P]laintiff being
treated less favorably because of [P]laintiff’s disability (history of actual
and/or perceived), association with disabled persons, taking or requesting
medical leave, sex, gender, and/or or because plaintiff had engaged in
protected activity.” (Complaint, ¶¶ 13-15, 60, 62; see Complaint, ¶¶ 60-67.)
The Court adopts
its discussion as to the first and second causes of action to find that this
claim is sufficiently stated as to Defendant NALEO Educational Fund but not
against Defendants Ronald Garcia, Erica Bernal, and Angela Weimer. (See First
and Second Causes of Action discussion supra; see also Demurrer, 20:24-27;
Opp’n to Demurrer, 11:21-23 [incorporating Opp’n to Demurrer, 8:25-9:6,
9:12-18, 10:7-21, 10:22-11:13]; Reply to Opp’n to Demurrer, 5:18-22.) The Court
briefly notes that while the Complaint adequately alleged FEHA Harassment
against Defendant Weimer, she is not properly alleged as an employer or joint
liability defendant to NALEO Educational Fund. (See First Cause of Action alter
ego discussion supra.)
Defendants’
demurrer to the Complaint’s sixth cause of action is thus OVERRULED as to
Defendant NALEO Educational Fund but SUSTAINED, With Leave to Amend, as to
Defendants Garcia, Bernal, and Weimer.
Seventh Cause of
Action, CFRA Leave Retaliation: OVERRULED, as to Defendant NALEO
Educational Fund; SUSTAINED, With Leave to Amend, as to Defendants Garcia, Bernal,
and Weimer.
The statutory
authority for a California Family Rights Act (“CFRA”) ‘retaliation’ claim
arises from section 12945.2, subdivision (l)(1), which makes it unlawful to
retaliate against any individual because of his or her exercise of the right to
family care or medical leave as provided by CFRA. “The elements of a cause of
action for retaliation in violation of [California Family Rights Act] are “‘(1)
the defendant was an employer covered by CFRA; (2) the plaintiff was an
employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right
to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an
adverse employment action, such as termination, fine, or suspension, because of
her exercise of her right to CFRA [leave].”’” (Soria v. Univision Radio Los
Angeles, Inc. (2016) 5 Cal.App.5th 570, 604 [citations omitted].)
The seventh cause
of action alleges CFRA Retaliation against Defendants based on incorporated
pleadings and allegations of Defendants, in relevant part, “[i]nterfering with,
restraining, or denying the exercise of, or the attempt to exercise, [P]laintiff
taking protected CFRA leave” and “[t]aking adverse employment actions against
the [P]laintiff, such as discharging, barring, refusing to transfer, retain,
hire, select, and/or employ, and/or otherwise discriminating against plaintiff,
in whole or in part on the basis of plaintiff’s taking protected CFRA leave.”
(Complaint, ¶¶ 13-15, 68, 70(a)-(b); see Complaint, ¶¶ 68-75.)
In their demurrer,
Defendants argue that the seventh cause of action fails because “[l]ike
[Plaintiff Roca Meza’s] FEHA discrimination and retaliation claims, Plaintiff
has failed to plead any causal connection between her requesting/taking CFRA
leave and her termination.” (Demurrer, 21:7-8.)
In opposition,
Plaintiff argues by incorporation that (1) paragraphs 13(d), 14(e), 37 to 39,
46 to 47, and 68 to 83 plead CFRA retaliation harming Plaintiff and (2) the
Complaint alleges such retaliation was based on protected activity such as
taking CFRA leave to care for Plaintiff to care for her father and retaliation
in the form of (a) weekly calls from Defendant Weimer for Plaintiff to return
to work and (2) Defendant Weimer demoting Plaintiff upon her return to work
following CFRA leave. (Opp’n to Demurrer, 11:24-26 [incorporating Opp’n to
Demurrer, 10:22-11:13].)
In reply,
Defendants argue that “Plaintiff claims in her Opposition [that] the transfer
to a new position was a demotion” but “also pleaded she [was] transferred from
a Supervisor position to a Manager position,” for which reason “she has not
pleaded any adverse employment action, “[n]or has she pleaded any connection
between her leave and the transfer,” and to “the extent she attempts to rely on
her layoff as the adverse action, she has pleaded no fact to link the layoff
with her taking of leave.” (Reply to Opp’n to Demurrer, 5:23-6:2.)
The Court finds
that the seventh cause of action is sufficiently pleaded against NALEO
Educational Fund. The temporal continuity between pleadings of Plaintiff Roca
Meza taking CFRA leave to care for her father during his time of medical need,
Defendant Weimer demanding via weekly emails that Plaintiff return to work,
Plaintiff’s demotion to a position with diminished responsibilities and change
in salary structure upon her return to work, and subsequent termination of
Plaintiff’s employment provide ample grounds for the Court find that the
Complaint sufficiently pleads that Plaintiff was demoted and/or terminated
based on her taking CFRA leave. (See Complaint, ¶¶ 14(d)-(f), 15, 68, 70(a)-(b).)
However, the Court
does not find the seventh cause of action is sufficiently pleaded as to
Defendants Garcia, Bernal, and Weimer because there are no joint liability
pleadings in the Complaint to properly state an employer-driven cause of action
against mere employees of NALEO Educational Funds. (See First Cause of Action
alter ego discussion supra.)
Defendants’
demurrer to the Complaint’s seventh cause of action is thus OVERRULED as to
Defendant NALEO Educational Fund but SUSTAINED, With Leave to Amend, as to
Defendants Garcia, Bernal, and Weimer.
Eighth Cause of
Action, Interference with CFRA Leave: OVERRULED, as to Defendant NALEO
Educational Fund; SUSTAINED, With Leave to Amend, as to Defendants Garcia, Bernal,
and Weimer.
The statutory
authority for an ‘interference’ claim arises from section 12945.2, subdivision
(t), which makes it unlawful for an employer ‘to interfere with, restrain, or
deny the exercise of, or the attempt to exercise, any right’ provided by CFRA.
A CFRA interference claim “consists of the following elements: (1) the employee’s
entitlement to CFRA leave rights; and (2) the employer’s interference with or
denial of those rights.” (Moore v. Regents of the University of California
(2016) 248 Cal.App.4th 216, 250). “Upon an employee’s timely return from CFRA
leave, an employer must generally restore the employee to the same or a
comparable position.” (Gov. Code §12945.2(a); Cal. Code Regs., tit. 2, §7297.0
(f)(g).) The failure to return an employee to an original or equivalent
position establishes a prima facie case of the denial of the employee’s CFRA
rights. (James v. Dependency Legal Group (S.D. Cal. 2015) 253 F.Supp.3d
1077, 1103-04).
The eighth cause of
action alleges Interference with CFRA Leave based on incorporated pleadings and
allegations that “Defendants interfered with, restrained, and/or otherwise
denied [P]laintiff her right and/or attempt to exercise her right to take
protected CFRA leave,” “including by interfering with, restraining, and/or
denying plaintiff’s right, and/or attempt to exercise her right, to take
protected CFRA leave.” (Complaint, ¶¶ 13-15, 76, 78-79; see Complaint, ¶¶
76-83.)
In their demurrer,
Defendants argue that mere allegations that “Plaintiff … informed Ms. Weimer of
her need to take leave, the leave was granted, and she took the leave” and that
Defendants “‘interfered with, restrained, and/or otherwise denied [P]laintiff
her right and/or attempt to exercise her right to take protected CFRA leave’”
are insufficient for the purposes of pleading this claim. (Demurrer, 21:13-17.)
In opposition,
Plaintiff argues by incorporation that (1) paragraphs 13(d), 14(e), 37 to 39,
46 to 47, and 68 to 83 plead CFRA interference harming Plaintiff and (2) the Complaint
alleges such interference was based on protected activity such as taking CFRA
leave to care for Plaintiff to care for her father and retaliation in the form
of (a) weekly calls from Defendant Weimer for Plaintiff to return to work and
(2) Defendant Weimer demoting Plaintiff upon her return to work following CFRA
leave. (Opp’n to Demurrer, 11:24-26 [incorporating Opp’n to Demurrer,
10:22-11:13].)
In reply,
Defendants argue that “[t]here are no actual facts to support the claim …
Defendants interfered with, restrained, or ‘interfered with, restrained, and/or
otherwise denied [P]laintiff her right and/or attempt to exercise her right to
take protected CFRA leave’” where “Plaintiff was granted, and did take, the
full allotment of leave,” and that “Plaintiff’s conclusory assertions Ms.
Weimer inquired of her return date on a weekly basis, without more, including
the dates Plaintiff was slated to return by her father’s physician, are
insufficient to maintain an interference claim.” (Reply to Opp’n to Demurrer, 6:3-10.)
The Court finds
that the eighth cause of action is sufficiently stated against NALEO
Educational Fund. The CFRA Interference claim alleges that while acting for NALEO,
Defendant Weimer attempted to restrain Plaintiff’s ability to take three
continuous months of CFRA leave by informing Plaintiff she could only take one
week of CFRA leave a time, needing approval for any extensions thereof, and
calling Plaintiff on a weekly basis to return to work while Plaintiff remained
on leave between January 28, 2020 and April 23, 2020. (Complaint, ¶ 14(d).)
However, the Court
does not find the eighth cause of action is sufficiently pleaded as to
Defendants Garcia, Bernal, and Weimer because there are no joint liability
pleadings in the Complaint to properly state an employer-driven cause of action
against mere employees of NALEO Educational Funds. (See First Cause of Action
for alter ego discussion.)
Defendants’ demurrer
to the Complaint’s eighth cause of action is thus OVERRULED as to Defendant NALEO
Educational Fund but SUSTAINED, With Leave to Amend, as to Defendants Garcia, Bernal,
and Weimer.
Ninth Cause of
Action, Negligent Hiring, Supervision, and Retention: SUSTAINED, With
Leave to Amend, as to All Defendants.
“California case
law recognizes the theory that an employer can be liable to a third person for
negligently hiring, supervising, or retaining an unfit employee.” (Doe v.
Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) “Negligence liability
will be imposed on an employer if it ‘knew or should have known that hiring the
employee created a particular risk or hazard and that particular harm
materializes.’” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th
1133, 1139.)
The ninth cause of
action alleges Negligent Hiring, Supervision, and Retention based on
incorporated pleadings and allegations that “Defendants owed a duty of care to [P]laintiff
to appoint, hire, retain, and supervise persons who would not engage in
retaliatory, harassing, or discriminatory conduct,” that “Defendants owed a
duty of care to [P]laintiff not to retain managers or employees who would
discriminate against, harass, or retaliate against employees for engaging in protected
activities,” “Defendants owed a duty of care to [P]laintiff to supervise their
managers and employees closely to ensure that they would refrain from harassing
and retaliating against plaintiff,” and that “Defendants breached those
duties.” (Complaint, ¶¶ 13-15, 85-86.)
In their demurrer,
Defendants argue that (1) this claim is merely duplicative of the Failure to
Prevent claim made in the Complaint, (2) this claim “does not allege how … [NALEO]
‘[knew] [any] employee [was] unfit, or ha[d] reason to believe [any] employee
is unfit or fails to use reasonable care to discover the employee’s
unfitness,’” (3) “Plaintiff fails to allege facts to show any wrongful conduct,
much less that … Defendants knew or should have known of information indicating
that any supervisor posed an undue risk of harm to Plaintiff, the other
employees, or anyone else,” and (4) “Plaintiff makes no attempt to plead ‘the
employer had knowledge that the employee was a person who could not be trusted
to act properly without being supervised.’” (Demurrer, 21:27-22:24.)
In opposition,
Plaintiff argues that the ninth cause of action is properly pleaded where the
Complaint pleads that “Defendants owed Roca Meza a duty of care to avoid
exposing her to an unreasonable risk of harm from her supervisors—namely
Weimer, National Director of Human Resources, and Plaintiff’s immediate
supervisor” where “Weimer interfered with Plaintiff’s CFRA leave, demanded
Plaintiff return earlier than the completion of Plaintiff’s CFRA leave, and
upon Plaintiff’s return from leave demoted her, stripped away her title, and
then terminated Plaintiff.” (Complaint, ¶¶ 14(d)-(f), 15.)” (Opp’n to Demurrer,
12:11-15.)
In reply,
Defendants reiterate their points in the motion. (Reply to Opp’n, 6:11-20.)
The Court agrees
with Defendants. The Complaint fails to plead, at the very least, that NALEO
Educational Fund knew or should have known that Defendant Weimer would (1)
attempt to pressure Plaintiff Roca Meza to return to work during Plaintiff’s
time on CFRA leave, (2) demote Plaintiff to a role involving diminished
responsibilities and a change in salary structure, and (3) thereafter terminate
Plaintiff’s employment—merits of whether such conduct is the kind of harm
contemplated by a Negligent Hiring, Supervision, and Retention claim aside.
(Complaint, ¶¶ 14(d)-(f), 15, 84.)
Defendants’
demurrer to the Complaint’s ninth cause of action is thus SUSTAINED, With Leave
to Amend, as to all Defendants.
Tenth Cause of
Action, Wrongful Termination: OVERRULED, as to Defendant NALEO
Educational Fund; SUSTAINED, With Leave to Amend, as to Defendants Garcia,
Bernal, and Weimer.
“The elements of a
claim for wrongful discharge in violation of public policy are (1) an
employer-employee relationship, (2) the employer terminated the plaintiff’s
employment, (3) the termination was substantially motivated by a violation of
public policy, and (4) the discharge caused the plaintiff harm.” (Yau v.
Allen (2014) 229 Cal.App.4th 144, 154.)
The tenth cause of
action alleges Wrongful Termination through incorporated pleadings and allegations
that “[P]laintiff’s employment was terminated in part because of her protected
status (i.e., disability (history of actual and/or perceived), association with
disabled persons, taking or requesting medical leave, sex, gender, and/or
protected activity)” and that “[t]hese actions were in violation of, but not
limited to, the FEHA, the California Constitution, CFRA/FMLA, Government Code
section 12900, et seq., and California Labor Code sections 1102.5, 98.6, 232.5,
and 232.” (Complaint, ¶¶ 13-15, 87-88; see Complaint, ¶¶ 87-92.)
The Court adopts
its discussion as to the first and second causes of action to find that this
claim is sufficiently stated as to Defendant NALEO Educational Fund but not
against Defendants Ronald Garcia, Erica Bernal, and Angela Weimer. (See First
and Second Causes of Action discussion supra; see also Demurrer, 23:5-10; Opp’n
to Demurrer, 12:17-21 [incorporating Opp’n to Demurrer, 8:25-9:6, 9:12-18,
10:7-21, 10:22-11:13]; Reply to Opp’n to Demurrer, 5:18-22.)
Defendants’
demurrer to the Complaint’s tenth cause of action is thus OVERRULED as to
Defendant NALEO Educational Fund but SUSTAINED, With Leave to Amend, as to
Defendants Garcia, Bernal, and Weimer.
Eleventh Cause
of Action, Whistleblower Retaliation (Labor Code § 1102.5): SUSTAINED,
With Leave to Amend, as to All Defendants.
In pursuing a Labor
Code section 1102.5 whistleblower retaliation claim, a plaintiff has the burden
to show “by a preponderance of the evidence” that the employee’s protected
whistleblowing was a “contributing factor” to an adverse employment action, and
if the plaintiff succeeds in making this showing, the employer must in turn
demonstrate by “clear and convincing evidence” that the alleged adverse
employment action would have occurred “for legitimate, independent reasons”
even if the employee had not engaged in protected whistleblowing activities. (Lawson
v. PPG Architectural Finishes, Inc. 12 Cal.5th 703, 712 [citing to Labor
Code section 1102.6 and disapproving McDonnell Douglas framework to
whistleblower claims as prescribed by Patten v. Grant Joint Union High
School Dist. (2005) 134 Cal.App.4th 1378, 1384.)
The eleventh cause
of action alleges Whistleblower Retaliation (Labor Code § 1102.5) based on
incorporated pleadings and allegations that “Plaintiff raised complaints of
actual and/or potential illegality, including but not limited to complaints
about violations of the FEHA, California Family Rights Act, Family Medical
Leave Act, Labor Code sections 98.6, 232.5 and 232, California Constitution,
and Government Code Section 12900 et seq. while she worked for [D]efendants,
and [D]efendants retaliated against her by taking adverse employment actions,
including employment termination[] against [Plaintiff].” (Complaint, ¶¶ 13-15,
93, 95; see Complaint, ¶¶ 93-99.)
The Court adopts
its discussion as to the third cause of action to find that this claim is not
sufficiently stated as to any Defendant where the Complaint has failed to
allege that Plaintiff Roca Meza complained of any activity engaged in by NALEO
Educational Fund or Defendants Garcia, Bernal, and Weimer. (See First and
Second Causes of Action discussion supra; see also Demurrer, 23:19-26; Opp’n to
Demurrer, 12:22-25 [incorporating Opp’n to Demurrer, 10:22-11:13]; Reply to
Opp’n to Demurrer, 5:11-17.)
Defendants’
demurrer to the Complaint’s eleventh cause of action is thus SUSTAINED, With
Leave to Amend, as to all Defendants.
Twelfth Cause of
Action, Intentional Infliction of Emotional Distress: SUSTAINED, With
Leave to Amend, as to All Defendants.
“A cause of action
for intentional infliction of emotional distress exists when there is ‘(1)
extreme and outrageous conduct by the defendant with the intention of causing,
or reckless disregard of the probability of causing, emotional distress; (2)
the plaintiff’s suffering severe or extreme emotional distress; and (3) actual
and proximate causation of the emotional distress by the defendant’s outrageous
conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed
all bounds of that usually tolerated in a civilized community.’ And the
defendant’s conduct must be ‘intended to inflict injury or engaged in with the
realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th
1035, 1050-51].)
The twelfth cause
of action alleges IIED based on incorporated pleadings and allegations that “Defendants’
discriminatory, harassing, and retaliatory actions against [P]laintiff
constituted extreme and outrageous misconduct and caused [P]laintiff severe
emotional distress” under circumstances where “Defendants were aware that
treating [P]laintiff in the manner alleged above, including depriving [P]laintiff
of her livelihood, would devastate [P]laintiff and cause her extreme hardship.”
(Complaint, ¶¶ 13-15, 100-01.)
In their demurrer,
Defendants argue that (1) the worker’s compensation exclusivity rule generally
bars an employee’s claim for IIED if the employer’s conduct neither contravenes
fundamental public policy nor exceeds the risk inherent in the employment relationship
and that “[h]ere, Plaintiff[’s] claims [merely state] she was given a new
position and … laid off,” which are “actions … encompassed by the compensation
bargain,” and further, that (2) Defendants’ alleged conduct is neither extreme
not outrageous. (Demurrer, 24:20-25:7, 25:26-26:11.)
In opposition,
Plaintiff argues that (1) none of her claims are barred by the exclusivity rule
and (2) her allegations in the Complaint sufficiently allege extreme and
outrageous conduct on Defendants’ part. (Opp’n to Demurrer, 13:1-14:11.)
In reply,
Defendants reiterate their arguments that the Complaint fails to allege extreme
and outrageous conduct. (Reply to Opp’n to Demurrer, 6:25-7:5.)
However, as to the individual defendants, the
Court finds that the complaint lacks specificity as to how their conduct constituted
intentional infliction of emotional distress outside of the normal employment
relationship.
Defendants’ demurrer to the Complaint’s twelfth
cause of action is thus OVERRULED as to NALEO but SUSTAINED as to the remaining
Defendants.
Legal Standard
The court may, upon
a motion or at any time in its discretion and upon terms it deems proper: (1)
strike out any irrelevant, false, or improper matter inserted in any pleading;
or (2) strike out all or any part of any pleading not drawn or filed in
conformity with the laws of California, a court rule, or an order of the court.
(Code Civ. Proc. § 436, subds. (a)-(b).) For the purposes of a motion to strike
pursuant to Sections 435 to 437 of the Code of Civil Procedure, the term
“pleading” means a demurrer, answer, complaint, or cross-complaint, (Code Civ.
Proc., § 435, subd. (a)), and an immaterial allegation or irrelevant matter in
a pleading entails (1) an allegation that is not essential to the statement of
a claim or defense, (2) an allegation that is neither pertinent to nor
supported by an otherwise sufficient claim or defense, or (3) a demand for
judgment requesting relief not supported by the allegations of the complaint or
cross-complaint (Code Civ. Proc., § 431.10, subds. (b)(1)-(3).)
Punitive and
Exemplary Damages
In their motion to
strike, Defendants argue that punitive and exemplary damages allegations and
prayers should be stricken from the Complaint because (1) the Complaint does
not properly allege facts demonstrating malice, oppression, or fraud, (2)
Plaintiff fails to identify why punitive damages should be imposed on
Individual Defendants Garcia, Bernal, and Weimer because they are not alleged
as managing agents, and (3) punitive damages are judicially disfavored. (Strike
Mot., 12:1-14:4, 14:14-21, 15:22-24.)
In opposition,
Plaintiff argues that (1) oppression and malice were sufficiently pleaded in
the Complaint, (2) Defendants’ attempts to cover up their unlawful action—i.e.,
termination of employment through pretext—is fraudulent and malicious, (3)
Defendants misstate the law as to punitive damages vis-à-vis managing agents
but, in any case, the question of managing agent status is a question of fact
that a trier of fact needs to determine. (Opp’n to Strike Mot., 5:9-23, 6:1-17,
6:18-8:17.)
In reply,
Defendants argue that (1) in essence, “[o]fficial employment actions, including
transfers to new positions and granting accommodations, without specific
factual allegations as to wrongful conduct, do not comprise despicable or
malicious activity” and (2) Plaintiff fails to identify in her factual
pleadings the managing agents that engaged in or ratified any malicious or
despicable conduct. (Reply to Opp’n to Strike Mot., 2:21-3:24, 3:25-4:22.)
The Court agrees
with Defendants. Based on its discussion as to the Complaint’s twelve causes of
action ante, the Court determines that the Complaint does not plead that any of
the four Defendants engaged in (1) conduct that was intended by Defendants to
cause injury to Plaintiff or despicable conduct that was carried on by Defendants
with a willful and conscious disregard of the rights or safety of Plaintiff
Roca Meza, (2) despicable conduct that subjected Plaintiff to cruel and unjust
hardship in conscious disregard of her rights, or (3) an intentional
misrepresentation, deceit, or concealment of a material fact known to Defendants
with the intention on the part of Defendants of thereby depriving Plaintiff of
her employment, some property or legal rights, or otherwise causing injury.
(Civil Code, § 3294, subds. (c)(1)-(3).)
Defendants’ motion
to strike is thus GRANTED, With Leave to Amend, as to all Defendants.
Defendants NALEO
Educational Fund, National Association of Latino Elected and Appointed
Officials, Ronald Garcia, Erica Bernal, and Angela Weimer’s Demurrer to Plaintiff’s
Complaint is SUSTAINED in Part and OVERRULED in Part as follows:
(1) As to the
Complaint’s first cause of action, OVERRULED as to Defendant NALEO Educational
Fund but SUSTAINED, With Leave to Amend, as to Defendants Garcia, Bernal, and
Weimer.
(2) As to the
Complaint’s second cause of action, OVERRULED as to Defendant NALEO Educational
Fund and Angela Weimer but SUSTAINED, With Leave to Amend, as to Defendants
Garcia and Bernal.
(3) As to the
Complaint’s third cause of action, SUSTAINED, With Leave to Amend, as to all
Defendants.
(4) As to the
Complaint’s fourth cause of action, SUSTAINED, With Leave to Amend, as to all
Defendants.
(5) As to the
Complaint’s fifth cause of action, SUSTAINED, With Leave to Amend, as to all
Defendants.
(6) As to the
Complaint’s sixth cause of action, OVERRULED as to Defendant NALEO Educational
Fund but SUSTAINED, With Leave to Amend, as to Defendants Garcia, Bernal, and
Weimer.
(7) As to the
Complaint’s seventh cause of action, OVERRULED as to Defendant NALEO
Educational Fund but SUSTAINED, With Leave to Amend, as to Defendants Garcia,
Bernal, and Weimer.
(8) As to the
Complaint’s eighth cause of action, OVERRULED as to Defendant NALEO Educational
Fund but SUSTAINED, With Leave to Amend, as to Defendants Garcia, Bernal, and
Weimer.
(9) As to the
Complaint’s ninth cause of action, SUSTAINED, With Leave to Amend, as to all
Defendants.
(10) As to the
Complaint’s tenth cause of action, OVERRULED as to Defendant NALEO Educational
Fund but SUSTAINED, With Leave to Amend, as to Defendants Garcia, Bernal, and
Weimer.
(11) As to the
Complaint’s eleventh cause of action, SUSTAINED, With Leave to Amend, as to all
Defendants.
(12) As to the
Complaint’s twelfth cause of action, OVERRULED as to Defendant NALEO
Educational Fund but SUSTAINED, With Leave to Amend, as to Defendants Garcia, Bernal,
and Weimer.
Defendants NALEO Educational Fund, National Association of Latino Elected and Appointed Officials, Ronald Garcia, Erica Bernal, and Angela Weimer’s Motion to Strike Portions of Plaintiff’s Complaint is GRANTED, With Leave to Amend.