Judge: Armen Tamzarian, Case: 24STCV21833, Date: 2025-05-01 Tentative Ruling

Case Number: 24STCV21833    Hearing Date: May 1, 2025    Dept: 52

Defendants Service Genius Corporation, William Monk, and James Raymond’s Demurrer to First Amended Complaint

Defendants Service Genius Corporation, William Monk, and James Raymond demur to the third, fifth, seventh, eighth, and ninth causes of action alleged in the first amended complaint by plaintiff Andre Zarookian. 

Summary of Allegations

Plaintiff is “Armenian/Iranian.”  (FAC, ¶ 23.)  He alleges defendants falsely accused him of poaching the company’s clients.  (¶¶ 38-45.)  He alleges they questioned him about doing so in a scheme with a fellow Iranian employee, Parviz Khatibi.  (¶¶ 6, 27, 40-44.)  During a meeting, William Monk allegedly commented “that Parviz and Plaintiff would always speak in Farsi to plan as to how to continue stealing the clients from the Company.”  (¶ 41.)  Monk asked “Plaintiff about whether Plaintiff and Parviz were related, how close of friends they were, whether they knew each other in their Iranian country, and other inquiries concerning their relationship.”  (¶ 42.)  Plaintiff denied any wrongdoing, and “William [Monk] responded that ‘your people are all the same’ and accused Plaintiff of ‘doing side work’ and his buddy, Parviz, knew Plaintiff was doing it.”  (¶ 44.)  After the meeting, defendants “terminated Plaintiff under the false pretense that he was stealing clients from the company along with Parviz” Khatibi.  (¶ 46.)

3rd & 5th Causes of Action: Harassment Under FEHA

Plaintiff does not allege sufficient facts for his third cause of action for harassment based on national origin or his fifth cause of action for harassment based on race.  For “a harassment claim under FEHA, a plaintiff must [allege] they were subjected to ‘offensive comments or other abusive conduct’ that is (1) based on a ‘protected characteristic’ … and (2) ‘sufficiently severe or pervasive as to alter the conditions of [his] employment.’ ”  (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 736.)  “To constitute harassment, the conduct must be so objectively severe or pervasive as ‘ “to create a hostile or abusive working environment.” ’  [Citation.]  Factors to consider in this context include the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s work performance.’ ”  (Ibid.)

Plaintiff relies on a single incident.  Regarding the standard for summary judgment, the Legislature has stated: “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”  (Gov. Code, § 12923, subd. (b).)  Plaintiff alleges one interaction in which William Monk expressed prejudice against Iranians, including one offensive comment that “ ‘your people are all the same.’ ” (FAC, ¶ 44.)  This conversation occurred shortly before defendants terminated plaintiff.  (¶ 46.)  Considering plaintiff did not perform any work afterward, he does not allege facts showing this lone comment interfered with his work performance or severely impacted his working environment.

Plaintiff conflates harassment and discrimination.  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.)  There is a “fundamental distinction between harassment as a type of conduct not necessary to a supervisor’s job performance, and business or personnel management decisions—which might later be considered discriminatory—as inherently necessary to performance of a supervisor’s job.”  (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63 (Janken).)  For adverse employment actions “based on improper motives, … the remedies provided by the FEHA are those for discrimination, not harassment.”  (Id. at p. 65.) 

Plaintiff’s opposition argues, “In an employment relationship, the most severe abuse an employer may inflict on an employee is unfair termination of the employment.  As such, the complaint has alleged severe abuse given that Plaintiff’s work performance was excellent, he was unfairly accused of competing with Plaintiff [sic] and stealing its customers BASED ON THE FACT THAT HE WAS IRANIAN.”  (Opp., p. 4.)  This argument illustrates defendants’ point.  Firing someone because of his protected status is not abusive conduct unnecessary to personnel management.  It is discrimination, not harassment.  Defendants did not demur to plaintiff’s causes of action for discrimination. 

Plaintiffs’ opposition also asserts, “Plaintiff’s fifth cause of action is for racial discrimination.”  (Opp., p. 4.)  It is not.  That is plaintiff’s fourth cause of action.  (FAC, p. 17.)  The fifth cause of action is for “racial harassment.”  (Id., p. 19.)

7th Cause of Action: Retaliation

            Defendants demur on the basis that this cause of action is only listed in the first amended complaint’s caption.  The pleading’s body does not include a seventh cause of action.  (FAC, pp. 21-23.)  Plaintiff acknowledges this was a clerical error and seeks leave to amend to add this cause of action.  The court will allow plaintiff to do so. 

8th Cause of Action: Intentional Infliction of Emotional Distress

            Plaintiff does not allege sufficient facts for this cause of action.  Its elements are “(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.”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)  “Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” ’ ”  (Id. at p. 1051.)

            Plaintiff does not allege extreme or outrageous conduct.  “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, supra, 46 Cal.App.4th at p. 80.) 

Plaintiff alleges that William Monk made one insulting comment and that defendants fired him because of his race or national origin.  These allegations are insufficient for intentional infliction of emotional distress. 

9th Cause of Action: Negligent Infliction of Emotional Distress

            Plaintiff does not allege sufficient facts for this cause of action.  “[T]here is no independent tort of negligent infliction of emotional distress.”  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.)  “The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.”  (Ibid.)  “[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.  Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.”  (Id. at p. 985.) 

Generally, such a duty requires a “special relationship[] … related to the plaintiff’s mental or emotional well-being.  Valid claims for negligent infliction of emotional distress have been found where the defendant breached the duty of care that arises in the physician-patient relationship [citations], as well as in the psychotherapist-patient relationship [citation], and in the relationship between a mortuary and the close relatives of the decedent for whose benefit the mortuary was to provide funeral services [citation].  In short, ‘[c]ases permitting recovery for emotional distress typically involve mental anguish stemming from more personal undertakings the traumatic results of which were unavoidable.’ ”  (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 207.)

Plaintiff provides no authority that an employer owes a duty not to emotionally harm its employees. 

Disposition

            Defendants Service Genius Corporation, William Monk, and James Raymond’s demurrer to plaintiff Andre Zarookian’s third, fifth, seventh, eighth, and ninth causes of action is sustained with leave to amend.  Plaintiff shall file any second amended complaint within 15 days.