Judge Armen Tamzarian, Case Number: 23STCV24193, Date: 2024-02-01 Tentative Ruling

Judge: Armen Tamzarian, Case: 23STCV24193, Date: 2024-02-01 Tentative Ruling

Case Number: 23STCV24193 Hearing Date: March 27, 2024 Dept: 52

Defendants QTC Management, Inc., Leidos Holdings, Inc., Leidos, Inc., Jeanette Johnson, and Marcella Aiken’s Demurrer and Motion to Strike to Portions of Second Amended Complaint

Demurrer

Defendants QTC Management, Inc. (QTC), Leidos Holdings, Inc., Leidos, Inc. (collectively, Leidos), Jeanette Johnson, and Marcella Aiken demur to all causes of action alleged against them by plaintiff Gayane Mkrtchyan’s second amended complaint.

A. Leidos Entities

The Leidos entities demur on the basis that plaintiff does not allege sufficient facts showing they employed her. An “employer” includes “a person who ‘exercises control over the wages, hours, or working conditions’ of a worker.” (Duffey v. Tender Heart Home Care Agency, LLC (2019) 31 Cal.App.5th 232, 246.) Under FEHA, multiple entities may be liable as “joint employers” (Vernon v. State of California (2004) 116 Cal.App.4th 114, 125) or as an “integrated enterprise” (Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 737, overruled on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 524). Though “common ownership or control alone” is insufficient, a parent corporation constitutes an employer when it exercises control over its subsidiary, including its “ ‘day-to-day employment decisions.’ ” (Id. at p. 738.)

Plaintiff alleges sufficient facts to support the legal conclusion that the Leidos entities employed her. She alleges she began working for QTC in 1993. (SAC, ¶ 17.) She further alleges “Leidos and Leidos Holdings acquired QTC in 2019 and thereafter ran, managed and otherwise fully controlled QTC’s operations.” (Ibid.) The primary allegations concern conduct occurring after 2019, after the Leidos defendants “fully controlled” QTC.

B. Exhaustion of Administrative Remedies

The moving defendants argue plaintiff failed to exhaust her administrative remedies as required for her FEHA claims. “FEHA’s exhaustion requirement should not be interpreted as a procedural gotcha.” (Clark v. Superior Court (2021) 62 Cal.App.5th 289, 293 (Clark).) “The administrative exhaustion requirement is satisfied if FEHA claims in a judicial complaint are ‘ “like and reasonably related to” ’ those in the DFEH complaint [citation] or ‘likely to be uncovered in the course of a DFEH investigation.’ ” (Id. at p. 301.) “ ‘The function of an administrative complaint is to provide the basis for an investigation into an employee’s claim of discrimination against an employer, and not to limit access to the courts.’ ” (Id. at p. 306.)

Plaintiff’s administrative charges with the Civil Rights Department (SAC, Exs. 1 & 2) were sufficient. The amended complaint broadly asserts numerous forms of FEHA violations, including the causes of action she alleges now. (Id., Ex. 2.) That the complaints are conclusory does mean plaintiff failed to exhaust her administrative remedies.

Moreover, the Court of Appeal has expressed skepticism about applying this requirement when “there was no administrative investigation because the DFEH Complaint, right-to-sue notice and judicial complaint were all filed on the same day.” (Clark, supra, 62 Cal.App.5th at p. 310, fn. 23.) Plaintiff’s CRD complaint indicates “an immediate Right to Sue notice was requested.” (SAC, Ex. 1, p. 1.) The amended CRD complaint is dated October 3, 2023 (SAC, Ex. 2), the day before plaintiff filed this action. Finding plaintiff failed to exhaust her administrative remedies would not serve the purposes of that requirement. It would only be a “procedural gotcha.” (Clark, supra, at p. 293.)

C. Adverse Employment Action

Defendants contend plaintiff fails to allege an adverse employment action as required for her first, second, fifth, and sixth causes of action. These causes of action require the plaintiff to “ ‘demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment.’ ” (Francis v. City of Los Angeles (2022) 81 Cal.App.5th 532, 540–541.) “The ‘materiality’ test of adverse employment action … looks to ‘the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,’ and the test ‘must be interpreted liberally ... with a reasonable appreciation of the realities of the workplace....’ ” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389, overruled on other grounds by Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703.)

When liberally construed, the second amended complaint alleges facts constituting an adverse employment action. “[A]dministrative leave may constitute an adverse employment action.” (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 367.) “ ‘[W]hen an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence.’ ” (Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 134.) Plaintiff alleges, “Beginning in May of 2023, Mkrtchyan sought to work remotely, but she was never given that option or any interactive process to determine accommodations.” (¶ 21.s.) She also alleges, “All defendants ultimately denied any accommodation that would allow plaintiff to return to work.” (Ibid.) Refusing to permit an employee to return to work may materially affect the terms and conditions of her employment and reduce her opportunity for advancement.

D. National Origin and Ancestry Discrimination (1st Cause of Action)

Plaintiff does not allege sufficient facts for this cause of action. A plaintiff generally must allege “facts from which discriminatory intent be inferred.” (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1107.) The second amended complaint includes only three relevant allegations: (1) plaintiff is “of Armenian race and national origin and ancestry” (¶ 19.c), (2) “when achieving a promotion and obtaining a management level position, plaintiff was told by her supervisor the biased and derogatory comments and directive of: ‘Stay away from Armos’ ” (¶ 29), which is “a slang term for an Armenian” (fn. 5); and (3) defendants violated FEHA by “using national original [sic], ancestry, race and color biased [sic] that substantially motivated their reasons for their adverse employment actions against plaintiff.” (¶ 30.)

Assuming a single derogatory comment about national origin could permit an inference of discriminatory intent, this comment occurred decades ago. Plaintiff alleges it was made when she was promoted and obtained “a management level position.” (¶ 29.) She alleges, “In 1999, she was promoted to office manager, a position she retained until 2004, when she was promoted again, to regional manager.” (¶ 17.) One derogatory comment in 1999 or 2004 does not permit an inference of discriminatory intent for defendants’ conduct within the statute of limitations.

E. Age Discrimination (5th Cause of Action)

Plaintiff does not allege sufficient facts for this cause of action for the same reason as the first cause of action. She alleges she belongs to the protected class because she is over 40 (¶ 19.c) and makes the conclusory allegation that her “age and/or other characteristics protected by FEHA, Government Code section 12900, et seq., were substantial motivating factors in defendants’ ” conduct (¶ 67). She makes no allegations permitting an inference of discriminatory intent.

F. Retaliation (4th and 7th Causes of Action)

Plaintiff alleges sufficient facts for her retaliation claims. Defendants contend she has not alleged an adverse employment action. The court rejected that argument above. Defendants further argue plaintiff has not alleged retaliatory actions or motive. Her second amended complaint alleges plaintiff requested not to travel as a reasonable accommodation. (¶¶ 21.a, 21.o, p, q.) It alleges that, when she returned from work disability leave in May 2023, defendants told her she would have to travel to Riverside and Fresno. (¶¶ 21.o-p.) Plaintiff alleges that defendants were “making her travel unnecessarily and not for any business purpose.” (¶ 21.q.) When liberally construed, the second amended complaint sufficiently alleges defendants imposed phony travel requirements as retaliation for plaintiff’s protected activity.

G. Wrongful Constructive and/or Actual Termination (10th Cause of Action)

Plaintiff fails to allege sufficient facts for this cause of action. Wrongful termination requires termination. (Motevalli v. Los Angeles Unified School Dist. (2004) 122 Cal.App.4th 97, 106.) Constructive discharge occurs when the employer makes working conditions so intolerable that the employee is “permitted to quit and sue.” (Gibson v. Aro Corp. (1995) 32 Cal.App.4th 1628, 1637.) “The idea of ‘constructive termination’ is that working conditions are made so intolerable by the employer that the wronged employee is forced to quit.” (Lee v. Bank of America (1994) 27 Cal.App.4th 197, 213; accord Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1246 [“The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee”].)

Plaintiff does not allege she was terminated or that she resigned due to intolerable working conditions. The second amended complaint alleges, “Mkrtchyan is on disability leave, but her employment has been constructively and/or actually terminated by defendants’ failure to accommodate her.” (SAC, ¶ 20.) Assuming that being on disability leave satisfies the requirement of intolerable working conditions, plaintiff does not allege the other necessary condition: that she quit. Plaintiff provides no authority that she can sue for wrongful termination while remaining on leave and continuing the employment relationship.

H. Harassment Based on Disability (3rd Cause of Action)

Plaintiff alleges sufficient facts for this cause of action. For this claim, the employee must show she was subjected to conduct that was “severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) “[A]n employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Ibid.)

In contrast with discrimination, which concerns unequal terms and conditions of employment, “harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) Despite the distinction between the two types of violations, “in some cases the hostile message that constitutes the harassment is conveyed through official employment actions.” (Id. at p. 708.)

Plaintiff alleges numerous acts that, though tied to managerial conduct, can reasonably be characterized as conveying a hostile message to her based on her disability. She alleges defendants “regularly… threaten[ed] to terminate her employment because she took disability and medical leave.” (¶ 21.s.) She further alleges that, though she submitted medical documentation for her requested accommodations, defendants “threatened to terminate plaintiff’s employment on multiple occasions because she took disability and medical leave and was still on disability and medical leave—falsely alleging that defendants did not have a doctor’s authorization for plaintiff’s needed disability and medical leaves.” (¶ 46.) The court cannot conclude that, as a matter of law, this conduct was not severe or pervasive enough to create a hostile work environment.

I. Interactive Process (9th Cause of Action)

Plaintiff alleges sufficient facts for this cause of action. FEHA imposes “a continuous obligation to engage in the interactive process in good faith. [Citation.] ‘Both employer and employee have the obligation “to keep communications open” and neither has “a right to obstruct the process.” [Citation.] “Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” ’ ” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971–972.) “[A]n employer’s obligations under the FEHA may not be delegated” in a manner that “free[s] the employer of liability.” (Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, 290.)

The second amended complaint alleges that, when she requested reasonable accommodations, the moving defendants, through their agents and co-defendants, “engaged in no interactive process attempting to find some accommodation that would allow plaintiff to return to gainful employment” but instead “sen[t] plaintiff a notice stating that no accommodation would be permitted.” (¶ 88.) These allegations sufficiently state that defendants did not fulfill their duty to engage in the interactive process in good faith.

J. Reasonable Accommodation (8th Cause of Action)

Plaintiff alleges sufficient facts for this cause of action. “ ‘The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.’ ” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.)

Plaintiff alleges sufficient facts for this cause of action for the same reasons as her cause of action for failing to engage in the interactive process. She alleges defendants’ agent made no effort to identify a reasonable accommodation and instead told her none would be provided. (¶ 97.) She further alleges defendants required her to take “medical and disability leaves and made no attempts to provide accommodations that would allow plaintiff to continue working.” (¶ 46.)

K. Failure to Prevent Discrimination, Retaliation, and Harassment (12th Cause of Action)

Plaintiff alleges sufficient facts for this cause of action. Defendants argue this claim fails without the underlying claims for discrimination, retaliation, or harassment. (See Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1309.) Plaintiff alleges sufficient facts for some of those underlying claims. This cause of action therefore withstands demurrer.

L. Intentional Infliction of Emotional Distress (11th Cause of Action)

Plaintiff alleges sufficient facts for this cause of action. “An essential element of such a claim is a pleading of outrageous conduct beyond the bounds of human decency. [Citations.] Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)

On the other hand, the Court of Appeal has stated that “by its very nature, sexual harassment in the work place is outrageous conduct as it exceeds all bounds of decency usually tolerated by a decent society.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.) The same reasoning applies to harassment based on other protected classes. Plaintiff alleges sufficient facts for harassment based on disability. Whether the allegations are sufficiently extreme or outrageous therefore is a question of fact. (See Murphy v. Allstate Ins. Co. (1978) 83 Cal.App.3d 38, 51 [“Whether the defendant’s conduct was outrageous and whether the plaintiff’s emotional distress was severe are generally questions of fact”].)

Motion to Strike

Defendants QTC Management, Inc., Leidos Holdings, Inc., Leidos, Inc., Jeanette Johnson, and Marcella Aiken move to strike 25 portions of plaintiff’s second amended complaint. First, they move to strike allegations of conduct that occurred outside the statute of limitations. Assuming that conduct is not directly actionable, the allegations regarding plaintiff’s disability and past accommodations are still “pertinent to” or “supported by an otherwise sufficient claim.” (CCP § 431.10, subd. (b)(2).)

Second, defendants move to strike the entire first cause of action for discrimination based on national origin. This portion for the motion duplicates their demurrer. It is moot.

Third, defendants move to strike portions of the second amended complaint regarding punitive damages. Courts may strike allegations related to punitive damages where the facts alleged “do not rise to the level of malice, oppression or fraud necessary” to recover punitive damages under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) Conclusory allegations are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.) The complaint must make “factual assertions supporting a conclusion [defendants] acted with oppression, fraud or malice.” (Ibid.)

Plaintiff alleges sufficient facts to recover punitive damages. “[W]illfully and consciously retaliat[ing] against” employees for exercising their rights can constitute malicious or oppressive conduct sufficient for punitive damages. (Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 455.) That an employer “intentionally discriminated against” an employee can suffice for malice. (Cloud v. Casey (1999) 76 Cal.App.4th 895, 911.) That the employers “then attempted to hide the illegal reason for their decision with a false explanation” could be found “base, contemptible or vile.” (Id. at p. 912.)

As discussed above, plaintiff alleges sufficient facts for her claims for retaliation, disability harassment, and intentional infliction of emotional distress. Whether the alleged conduct rises to the level of malice, oppression, or fraud is a question of fact.

Disposition

Defendants QTC Management, Inc., Leidos Holdings, Inc., Leidos, Inc. Jeanette Johnson, and Marcella Aiken’s demurrers to plaintiff Gayane Mkrtchyan’s first, fifth, and 10th causes of action are sustained with 20 days’ leave to amend. Defendants’ demurrers to plaintiff’s second through fourth, sixth through ninth, 11th, and 12th causes of action are overruled.

Defendants QTC Management, Inc., Leidos Holdings, Inc., Leidos, Inc. Jeanette Johnson, and Marcella Aiken’s motion to strike portions of the second amended complaint is denied.

Defendants New York Life Insurance, New York Life, and New York Life Group Benefits Solutions’ Demurrer and Motion to Strike to Portions of Second Amended Complaint

Demurrer

Defendants New York Life Insurance, New York Life, and New York Life Group Benefits Solutions (collectively, NY Life) demur to all causes of action alleged against them by plaintiff Gayane Mkrtchyan’s second amended complaint.

A. Exhaustion of Administrative Remedies

The NY Life defendants argue plaintiff failed to exhaust her administrative remedies as required for her FEHA claims. “FEHA’s exhaustion requirement should not be interpreted as a procedural gotcha.” (Clark v. Superior Court (2021) 62 Cal.App.5th 289, 293 (Clark).) “The administrative exhaustion requirement is satisfied if FEHA claims in a judicial complaint are ‘ “like and reasonably related to” ’ those in the DFEH complaint [citation] or ‘likely to be uncovered in the course of a DFEH investigation.’ ” (Id. at p. 301.) “ ‘The function of an administrative complaint is to provide the basis for an investigation into an employee’s claim of discrimination against an employer, and not to limit access to the courts.’ ” (Id. at p. 306.)

B. Summary of Allegations Against NY Life

The second amended complaint alleges numerous conclusory allegations about the NY Life defendants. For example, it alleges they (and the other entity defendants) “directly and indirectly employed plaintiff Mkrtchyan, as defined in the Fair Employment and Housing Act at Government Code section 12926(d). Defendants QTC, Leidos Holdings, Leidos, NYLI, NYL, and NYLGBS compelled, coerced, aided, and abetted the discrimination, each prohibited by California Government Code section 12940(i). At all relevant times, all defendants acted as agents of all other defendants in committing the acts alleged herein, under the definition set forth by FEHA, at Government Code section 12926(d) and the controlling decision in Kristina Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268.” (SAC, p. 1, fn. 1.) Those are legal conclusions.

Plaintiff also alleges conclusions of fact, such as NY Life “as both the agent[s] of [their] codefendants and in [their] own capacity exercised control over the working conditions related to and involving plaintiff’s disability leave, accommodations sought and initiated interactive process.” (¶ 9.)

As opposed to the conclusory allegations or uncertain allegations about the plural “defendants,” the only factual allegations about the NY Life defendants are: (a) identifying their locations (¶ 2.d-f); (b) plaintiff “submitted relevant doctor’s notes to” her superiors, but they “directed that Mkrtchyan send the notes to defendant New York Life instead and denied Mkrtchyan the opportunity to be released to return to work until defendant New York Life made that decision first” (¶ 21.j); (c) she did so, but was told “her documentation was not received, even though Mkrtchyan promptly uploaded all documentation requested of her to Margarian, Aiken, Fairchild, and New York Life” (¶ 21.k); (d) her superiors required her “to limit her communications to New York Life, not QTC or Leidos” (¶ 21.s); (e) her superiors “denied Mkrtchyan the opportunity to be released to return to work until defendant New York Life made that decision first” (¶ 49); and (e) the other entities “directed plaintiff to contact only defendant NYLI, NYL, NYLGBS, who in turn told plaintiff that she would not be given any accommodation of returning her to work, blaming defendants QTC, Leidos and Leidos Holding. All named entity defendants engaged in no interactive process attempting to find some accommodation that would allow plaintiff to return to gainful employment, ignoring the statutory requirement that they engage in a timely, good faith, interactive process. Simply sending plaintiff a notice stating that no accommodation would be permitted per the employer, without explanation or attempts to place plaintiff in any alternative job or grant the requested accommodation sought from May of 2023 through August of 2023” (¶¶ 88, 97).

These allegations fail to establish any basis for holding NY Life liable as an “employer” under theories that they “indirectly” or jointly employed plaintiff or for “aiding and abetting” any violations committed by an employer. It may, however, be liable as a business entity agent of plaintiff’s employer. “[A]n employer’s business entity agents can be held directly liable under the FEHA for employment discrimination in appropriate circumstances when the business-entity agent has at least five employees and carries out FEHA-regulated activities on behalf of an employer.” (Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, 273 (Raines).)

C. Interactive Process (9th Cause of Action)

Plaintiff alleges sufficient facts for this cause of action against NY Life as an agent of her employer. FEHA imposes “a continuous obligation to engage in the interactive process in good faith. [Citation.] ‘Both employer and employee have the obligation “to keep communications open” and neither has “a right to obstruct the process.” [Citation.] “Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” ’ ” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971–972.)

The interactive process includes, among other things, requesting and evaluating “reasonable medical documentation” when necessary. (Cal. Code Regs., tit. 2, § 11069(c)(2).) The regulation on the interactive process further provides, “In consultation with the applicant or employee to be accommodated, the employer or other covered entity shall identify potential accommodations and assess the effectiveness each would have in enabling the applicant to have an equal opportunity to participate in the application process and to be considered for the job; or for the employee to perform the essential function of the position held or desired or to enjoy equivalent benefit and privileges of employment compared to non-disabled employees.” (Id., subd. (c)(7).)

The second amended complaint adequately alleges that NY Life acted as the agent of plaintiff’s employer and carried out the FEHA-regulated activity of engaging in the interactive process. Plaintiff alleges her superiors required her to communicate with NY Life about her disability and requests for accommodation. (¶ 21.j-l, s.) She further alleges that defendants including NY Life “engaged in no interactive process attempting to find some accommodation that would allow plaintiff to return to gainful employment, ignoring the statutory requirement that they engage in a timely, good faith, interactive process.” (¶¶ 88, 97.) When liberally construed, these allegations suffice to constitute a cause of action against NY Life.

D. Reasonable Accommodation (8th Cause of Action)

Plaintiff alleges sufficient facts for this cause of action against NY Life. “ ‘The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.’ ” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) “ ‘[W]hen an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence.’ ” (Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 134.)

Plaintiff alleges sufficient facts for this cause of action for the same reasons as the ninth cause of action for violation of the interactive process. She alleges her employer designated NY Life to act as its agent with respect to the FEHA-regulated activities of conducting the interactive process and determining disability accommodations and “denied Mkrtchyan the opportunity to be released to return to work until defendant New York Life made that decision first.” (SAC, ¶ 49.) She further alleges defendants required her to take “medical and disability leaves and made no attempts to provide accommodations that would allow plaintiff to continue working.” (¶ 46.)

E. Disability Discrimination (2nd Cause of Action); Retaliation Due to Disability and Disability Leave (4th Cause of Action); Wrongful Constructive and/or Actual Termination (10th Cause of Action)

Plaintiff does not allege sufficient facts for these causes of action. As discussed above, she does not allege facts supporting the legal conclusions that NY Life employed her under any theory. Discrimination and retaliation both require an adverse employment action. (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84 [disability discrimination]; Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1105 [retaliation].) Wrongful termination requires terminating the employee, either actually or constructively.

Plaintiff alleges NY Life “carrie[d] out FEHA-regulated activities” (Raines, supra, 15 Cal.5th at p. 273) with respect to the interactive process and reasonable accommodations. She does not allege sufficient facts showing “their own FEHA obligations” (id. at p. 290) included responsibility for the terms and conditions of plaintiff’s employment.

F. Failure to Prevent Discrimination, Retaliation, and Harassment (12th Cause of Action)

Plaintiff fails to allege sufficient facts for this cause of action against NY Life. FEHA provides it is unlawful for an employer (or agent) “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) This claim cannot stand on its own without the underlying claims for discrimination or harassment. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1309; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

Plaintiff alleges sufficient facts against NY Life only for failing to engage in the interactive process (Gov. Code, § 12940, subd. (n)) and failure to provide reasonable accommodation (id., subd. (m)). Those violations are separate from discrimination (id., subd. (a)), harassment (id., subd. (g)), and retaliation (id., subd. (h)). Plaintiff’s second complaint therefore does not state a cause of action against NY Life for failing to prevent discrimination, retaliation, and harassment.

G. Intentional Infliction of Emotional Distress (11th Cause of Action)

Plaintiff does not allege sufficient facts for this cause of action against NY Life. “An essential element of such a claim is a pleading of outrageous conduct beyond the bounds of human decency. [Citations.] Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) Plaintiff alleges NY Life did nothing more than personnel management.

Motion to Strike

The NY Life defendants move to strike 40 portions of plaintiff’s second amended complaint. First, they move to strike all references to their names. This portion of their motion amounts to an improper attempt to demur via the wrong procedural mechanism. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)

Second, NY Life moves to strike allegations on the basis that plaintiff failed to exhaust her administrative remedies. The court rejected that argument above.

Third, NY Life moves to strike allegations regarding conduct before October 3, 2020, as beyond the statute of limitations. Assuming that conduct is not directly actionable, those allegations are still “pertinent to” or “supported by an otherwise sufficient claim.” (CCP § 431.10, subd. (b)(2).)

Fourth, NY Life moves to strike portions of the second amended complaint regarding punitive damages. Courts may strike allegations related to punitive damages where the facts alleged “do not rise to the level of malice, oppression or fraud necessary” to recover punitive damages under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) Conclusory allegations are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.) The complaint must make “factual assertions supporting a conclusion [defendants] acted with oppression, fraud or malice.” (Ibid.)

The factual allegations against NY Life, as discussed above, cannot be characterized as malice, oppression, or fraud as necessary for punitive damages. Plaintiff alleges only violations of statutory obligations regarding personnel management. The court therefore will strike these portions of the second amended complaint.

Disposition

Defendants New York Life Insurance, New York Life, and New York Life Group Benefits Solutions’ demurrers to plaintiff Gayane Mkrtchyan’s second, fourth, 10th, 11th, and 12th causes of action are sustained with 20 days’ leave to amend. Defendants New York Life Insurance, New York Life, and New York Life Group Benefits Solutions’ demurrers to plaintiff’s eighth and ninth causes of action are overruled.

Defendants New York Life Insurance, New York Life, and New York Life Group Benefits Solutions’ motion to strike portions of the second amended complaint is granted in part as to allegations regarding punitive damages. The court hereby strikes the following portions of the second amended complaint as against the NY Life defendants, with 20 days’ leave to amend: (1) paragraphs 24.a-c; (2) paragraph 42; (3) paragraph 64; (4) paragraph 93; (5) paragraph 93; (6) paragraph 101; (7) paragraph 106; (8) paragraph 117; and (9) paragraph 2 of the prayer for relief.