Judge: Armen Tamzarian, Case: 23STCV12885, Date: 2023-09-19 Tentative Ruling

Case Number: 23STCV12885    Hearing Date: September 19, 2023    Dept: 52

Defendants Jason Barritt’s and Nasario Ramos’s Demurrers  

Defendants Jason Barritt and Nasario Ramos each demur to plaintiff Desiree Garcia-Solano’s eighth cause of action for whistleblower retaliation in violation of Labor Code section 1102.5.  Section 1102.5, subdivision (b) provides, “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing” violations of law.

Individual employees or coworkers are not liable for retaliation under Labor Code section 1102.5.  Only employers can be liable.  While no California court has decided the issue, persuasive authority has reached this conclusion.  “District Courts have reasoned that if the California Supreme Court were to address the issue, it would hold that section 1102.5 does not impose personal liability on employees and supervisors.”  (Mewawalla v. Middleman (N.D. Cal. 2022) 601 F.Supp.3d 574, 608 [collecting cases and rejecting contrary decisions].)  “In past cases, the California Supreme Court has rejected the notion that the phrase ‘[a]n employer, or any person acting on behalf of the employer’ creates individual liability.”  (Id. at p. 609.)  The court finds Mewawalla and the other cases (e.g., Toranto v. Jaffurs (S.D. Cal. 2018) 297 F.Supp.3d 1073, 1105; United States ex rel. Lupo v. Quality Assurance Services, Inc. (S.D. Cal. 2017) 242 F.Supp.3d 1020, 1030) persuasive. 

Plaintiff does not allege Barritt or Ramos employed her.  The complaint alleges Barrit was her employer’s chief scientific officer.  (Comp., ¶ 18.)  It alleges Ramos was “Plaintiff’s coworker.”  (¶ 16.)  Barritt and Ramos are not individually liable for retaliation under Labor Code section 1102.5.

Leave to Amend

            After a successful demurrer, where “there is a reasonable possibility that the defects can be cured by amendment, leave to amend must be granted.”  (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.)  The plaintiff bears the burden of “demonstrat[ing] how the complaint can be amended.”  (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)  “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.”  (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.)

            Plaintiff does not meet her burden of showing how she can cure the defects in her eighth cause of action against defendants Barritt and Ramos.  Her oppositions request leave to amend but do not propose any way she can amend the complaint to state a cause of action against Barritt and Ramos for violation of Labor Code section 1102.5.  As a matter of substantive law, Barritt and Ramos cannot be personally liable.      

Disposition

            Defendant Jason Barritt’s demurrer to plaintiff Desiree Garcia-Solano’s eighth cause of action is sustained without leave to amend.  Defendant Jason Barritt is ordered to answer within 20 days.

            Defendant Nasario Ramos’s demurrer to plaintiff Desiree Garcia-Solano’s eighth cause of action is sustained without leave to amend.  Defendant Nasario Ramos is ordered to answer within 20 days.