Judge: Bradley S. Phillips, Case: 24STCV22118, Date: 2025-06-10 Tentative Ruling
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Case Number: 24STCV22118 Hearing Date: June 10, 2025 Dept: 26
BACKGROUND
This is an employment case based on claims of
discrimination and retaliation in violation of California’s Fair Housing and
Employment Act (“FEHA”). Plaintiff Taylor Simone Waters (“Plaintiff”) is an
African American woman and was employed by Defendant Pasadena Unified School
District (“Defendant”) for approximately six months beginning March 27, 2023. (SAC
¶ 12). Plaintiff held the position of Senior Clerk Typist. (Ibid.) Plaintiff filed
her Second Amended Complaint (“SAC”) on March 4, 2025 against her previous
employer, Andrea Broughton, and Does 1-100 alleging eleven causes of action.
Plaintiff’s
Allegations
On September 1, 2023, Plaintiff was physically
attacked by Student Aid Andrea Broughton (“Broughton”). Broughton grabbed
Plaintiff by the hair and pulled her neck in an irregular position. (SAC ¶
16(a)). As a result of the assault, Plaintiff experienced psychological and
physical injuries which limited her ability to perform major life activities. (SAC
¶ 17(a)). Plaintiff was placed off work for approximately three weeks by her
medical provider following an evaluation. (Ibid.) On or around September
25, 2023, Plaintiff returned to work with restrictions, including no contact
with Broughton and being given a chair to support her head and neck. (SAC ¶
17(b)). Plaintiff alleges that Defendant did not engage in an interactive
process to determine how they could accommodate Plaintiff’s work restrictions. (Ibid.)
Plaintiff was terminated on September 26, 2023 because she had been absent for
“a significant amount of days” when she was placed off of work by her medical
provider. (SAC ¶ 18(a)).
Additionally, Plaintiff alleges that Secretary
Lorena Ramirez (“Ramirez’) and Registrar Rosa Macias (“Macias”) engaged in
inappropriate conduct when they made comments about Plaintiff’s hair and
touched her hair. (SAC ¶ 14(e)).
Plaintiff further alleges that in May 2023, she
approached Macias and explained that she was feeling nauseous by the disparate
treatment and Macias replied, “You better not be pregnant.” (SAC ¶ 14(g)).
INSTANT MOTION
On March 6, 2025, Defendant filed the instant
demurrer claiming that Plaintiff has failed to allege sufficient facts under
all eleven Causes of Action within Plaintiff’s SAC.
On
May 28, 2025, Plaintiff filed an opposition.
DISCUSSION
A. Demurrer
1.
Discrimination
“To state a prima facie case of gender, race,
color, or sexual orientation discrimination under FEHA, a plaintiff must
show that: ‘(1) he was a member of a protected class, (2) he was qualified for
the position he sought or was performing competently in the position he held,
(3) he suffered an adverse employment action ... and (4) some other
circumstance suggests discriminatory motive.’ [citation.] Thus, a plaintiff
must establish a causal nexus between the adverse employment action and his
protected characteristic.” (Martin v. Board of Trustees of California State
University (2023) 97 Cal.App.5th 149, 161-162.)
a.
Disability Discrimination
To establish a prima facie case of disability
discrimination under FEHA, an employee must demonstrate that they (1) suffered
from a disability or were regarded as suffering from a disability, (2) could
perform the essential duties of the job with or without reasonable
accommodations, and (3) were subjected to an adverse employment action because
of the disability or perceived disability (Price v. Victor Valley Union
High School District (2022) 85 Cal.App.5th 231.)
“Mental disability as defined at
Government Code section 12926, includes, but is not limited to, having any
mental or psychological disorder or condition that limits a major life
activity.” (Cal. 2 Cal. Code Regs. § 11065(d).) "Physical disability,
as defined at Government Code section 12926, includes, but is not limited to,
having any anatomical loss, cosmetic disfigurement, physiological disease,
disorder or condition that does both of the following: (A) affects one or
more of the following body systems: neurological; immunological;
musculoskeletal; special sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic;
circulatory; skin; and endocrine; and (B) limits a major life activity.” (Ibid.)
Here, Defendant argues that Plaintiff fails to
allege a disability because she does not specifically state her mental or
physical condition in her SAC. However, Defendant cites no authority that
Plaintiff is required to specify the exact nature of her disability. Plaintiff
alleges that she experienced psychological and physical injuries that limited
her ability to perform major life activities and was placed off work for
approximately three weeks by her medical provider following an evaluation. (SAC
¶ 17(a).) Plaintiff also requested disability accommodations upon her return to
work of having no contact with Broughton and a chair with neck support. (SAC ¶
18.)
The Court finds that Plaintiff sufficiently
alleged discrimination of her disability. Plaintiff requested disability
accommodations prescribed by her medical provider. Further, Plaintiff alleges
that she was terminated as a result of being absent for “a significant amount
of days” after she needed to receive medical treatment for injuries incurred as
a result of Defendant Broughton’s assault. (SAC ¶ 18(a).) This sufficiently
alleges a causal connection between Plaintiff’s disability and her termination.
Accordingly, the demurrer to the first cause of
action for discrimination based on Plaintiff’s disability is OVERRULED.
b.
Sex/Gender Discrimination
Here, Defendant argues that Plaintiff fails to
allege sufficient facts that identify any mistreatment or discrimination on the
basis of her sex or gender. In opposition, Plaintiff argues that FEHA includes
harassment based on pregnancy, citing Gov. Code § 12940(j)(4)(C). Plaintiff has
alleged that she was a female employee of Defendant and that she complained
about inappropriate conduct from her coworkers, including one coworker telling
her that she “better not be pregnant.” (SAC ¶ 14(g)). Plaintiff also alleges that
she was ignored and dismissed by her coworkers on a few occasions. (SAC ¶
15(c)). Plaintiff alleges that her complaints regarding her coworker’s behavior
were not adequately addressed and that she was subsequently harassed and
terminated from her employment.
The Court finds that Plaintiff has failed to
state sufficient facts to state a claim for discrimination based on sex/gender.
Plaintiff does not allege differential treatment related to her sex/gender and the
causal link between the pregnancy comment and Plaintiff’s adverse employment
action is unclear. Further, Plaintiff has not provided any authority to suggest
that the single comment made by her coworker regarding pregnancy is
sufficiently severe and pervasive to alter the conditions of her employment.
Accordingly, the demurrer to the first cause of
action for discrimination based on sex/gender is SUSTAINED with leave to amend.
2.
Hostile Work Environment
Under FEHA, “[t] o establish a prima facie case
of a hostile work environment, the Plaintiff must show that (1) [plaintiff] is
a member of a protected class; (2) [plaintiff] was subjected to unwelcome
harassment; (3) the harassment was based on [plaintiff’s] protected status; (4)
the harassment unreasonably interfered with [plaintiff’s] work performance by
creating an intimidating, hostile, or offensive work environment; and (5)
defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn.
(2019) 37 Cal.App.5th 568, 581.)
Here, Defendant argues that Plaintiff fails to
allege that she was subjected to a hostile work environment. Plaintiff does not
address the hostile work environment cause of action in her opposition. The
only mention of a hostile work environment in Plaintiff’s SAC is the allegation
that she was subjected to unprofessional and hostile conduct from Secretary
Lorena Ramirez (“Ramirez’) and Registrar Rosa Macias (“Macias”) when they
touched her hair and acted dismissively towards her. (SAC ¶ 14(c).)
These allegations are insufficient to state a
cause of action for hostile work environment for two reasons. First, while
Plaintiff alleges that she is a member of a protected class due to her
disability, sex/gender, and race, she does not state facts that suggest she was
harassed because of her status. Second, although the SAC includes a
conclusory statement that there was an interference with her work performance, Plaintiff
fails to state facts as to how the behavior interfered with her work
performance.
Accordingly, the Court SUSTAINS the demurrer to
the second cause of action for hostile work environment with leave to amend.
a.
Disability
Hostile work environment claims have been
recognized on the basis of disability. (See, e.g., Caldera v. Department of
Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 41-42 (employee
with stutter who was mocked or mimicked by coworkers and supervisor at least 12
times over two years presented sufficient evidence to uphold jury verdict that
harassment based on disability was both severe and pervasive.)
Defendant argues that Plaintiff fails to allege
a disability or that she was subjected to a hostile work environment on the
basis of her disability. Plaintiff does not address the hostile work
environment cause of action in her opposition, and the SAC does not allege
sufficient facts to constitute a hostile work environment on the basis of
Plaintiff’s disability. According to the SAC, Plaintiff’s disability came about
as a result of the assault three weeks before she was terminated. Plaintiff was
on medical leave for three weeks and was terminated the day after she returned
to work. Plaintiff does not, however, allege any facts that would show severe
and pervasive treatment that interfered with her work performance.
Accordingly, the Court SUSTAINS the demurrer to
the second cause of action for hostile work environment on the basis of
disability with leave to amend.
b.
Sex/Gender
“[A] workplace may give rise to liability when
it “is permeated with ‘discriminatory [sex-based] intimidation, ridicule, and
insult,’ [citation], that is ‘sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working
environment[.]’” (Lyle v. Warner Brothers Television Productions (2006)
38 Cal.4th 264, 278, quoting Harris v. Forklift Systems, Inc. (1993)
510 U.S. 17, 21.) “It is the disparate treatment of an employee on the
basis of sex—not the mere discussion of sex or use of vulgar language—that is
the essence of a sexual harassment claim.” (Id. at p. 280.)
Here, Plaintiff
does not allege sufficient facts to show a hostile work environment on the
basis of her sex/gender. Plaintiff’s SAC does not allege any differential
treatment related to her sex/gender, or severe and pervasive circumstances. Plaintiff
has not provided any authority that the single comment by her coworker
regarding pregnancy is sufficiently pervasive to alter the conditions of the Plaintiff’s
employment. In fact, in one of the cases cited by Plaintiff, the court found
that three comments were insufficiently severe and pervasive. (See Serri
v. Santa Clara University (2014) 226 Cal.App.4th 830, 871.) Further, Plaintiff
fails to allege facts to suggest a causal connection between her sex/gender and
her interpersonal conflict with her coworkers or her termination.
Accordingly,
the demurrer to the second cause of action for hostile work environment based
on gender or sex is SUSTAINED with leave to amend.
3.
FEHA Retaliation
In order to establish a prima facie case of
retaliation under FEHA plaintiff must show: (1) he or she engaged in a
protected activity; (2) employer subjected employee to adverse employment
action; and (3) a causal link existed between protected activity and the
employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1042.) Requesting an accommodation for a disability is a
protected activity and it is unlawful to retaliate or
otherwise discriminate against a person for requesting an accommodation for
disability, regardless of whether the request was granted. (Gov. Code, § 12940(l)
(m)(2).)
Here, Plaintiff adequately alleges that she
engaged in protected a protected activity by requesting disability
accommodations. Plaintiff alleges that she requested a three-week leave, no
contact with the person who assaulted her, and a chair with neck support. (SAC
¶ 17.) A causal connection between Plaintiff’s protected activity and her
ultimate termination can be sufficiently inferred from the allegation that she
was not provided disability accommodations and was terminated the day after she
returned from her medical leave for the very reason that she took time off for
the medical leave that her doctor prescribed. These allegations are sufficient
to establish a cause of action for retaliation under FEHA.
Accordingly,
the Court OVERRULES the demurrer to the third cause of action for retaliation
under FEHA.
4.
Failure to Prevent
Harassment/Discrimination
The elements of failure to prevent discrimination
or harassment are: (1) actionable discrimination or harassment by employees or
nonemployees; (2) defendant’s legal duty of care toward plaintiff (i.e.,
defendant is the plaintiff’s employer); (3) breach of that duty (i.e., failure
to take all reasonable steps necessary to prevent discrimination and harassment
from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo
v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289; Bradley
v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th
1612, 1630; Gov. Code, § 12940.)
Here, Defendant argues that Plaintiff fails to
state facts sufficient to constitute a cause of action for failure to prevent
discrimination and harassment. Plaintiff’s opposition does not address this
argument. As stated above, however, Plaintiff has sufficiently alleged
discrimination regarding her disability. Also, the SAC alleges that Defendant ignored
Plaintiff’s complaints and failed to take reasonable steps to prevent discrimination.
(SAC ¶ 17.) The SAC further alleges that Defendant terminated Plaintiff the day
after she returned from her three-week medical leave and Defendant did not take
any reasonable steps to accommodate Plaintiff prior to terminating her
employment. (Ibid.) These allegations are sufficient with respect to the
disability discrimination cause of action.
Accordingly, the demurrer to the fourth cause
of action for failure to prevent is OVERRULED as to disability discrimination
claim. Given the finding above that the sex/gender discrimination allegations
are insufficient, the demurrer is SUSTAINED as to the fourth cause of action
for failure to prevent as to the sex/gender discrimination claim.
5.
Failure to Accommodate and Engage in
the Interactive Process
“An¿employer… has an affirmative duty to
make¿reasonable accommodation(s) for the¿disability¿of any… employee¿if
the¿employer… knows of the¿disability, unless the¿employer…¿can demonstrate,
after engaging in the interactive process, that the accommodation would impose
an¿undue hardship.” (2 Cal. Code Regs. § 11068(a).) To establish the failure to
provide a reasonable accommodation, a plaintiff must demonstrate: (1) the
employee suffered a disability, (2) the employee could perform the essential
functions of the job with reasonable accommodation, and (3) the employer failed
to reasonably accommodate the employee's disability.” (Nealy v. City of
Santa Monica (2015) 234 Cal.App.4th 359, 373.)
FEHA also requires an employer and a disabled
employee to engage in a timely, good faith “interactive process” to identify or
implement effective, reasonable accommodations that will enable the employee to
perform their job effectively. (2 Cal. Code Regs. § 11069(a).) An employer or other
covered entity shall initiate an interactive process when an
employee with a known physical or
mental disability or medical condition requests reasonable
accommodation, or the employer becomes aware of the need for an
accommodation. (2 Cal. Code Regs. § 11069(b).)
Here, Plaintiff mentions being denied
disability accommodations in paragraphs 17 and 18 of the SAC. Plaintiff alleges
that due to the assault, she experienced psychological and physical injuries
which limited her ability to perform major life activities and that she was
placed off work for approximately three weeks by her medical provider following
an evaluation. (SAC ¶ 17.) Plaintiff also alleges that she returned to work
with restrictions of having no contact with Broughton and a chair to support
her neck. Plaintiff does not allege any facts as to whether Defendant failed to
provide the accommodations. Plaintiff does
allege, however, that, one day after she returned to work, she was terminated
because she had been absent for “a significant amount of days” when she was
placed off work by her medical provider. (SAC ¶ 18.)
The Court finds that Plaintiff has alleged
sufficient facts to demonstrate a failure to accommodate and engage in the
interactive process. Plaintiff alleges that Defendant terminated her for taking
time off that her medical provider deemed necessary due to her disability. If
true, the allegations show that the Defendant was aware of Plaintiff’s
disability and need for accommodation but terminated her instead of initiating
the interactive process.
Accordingly, the Court OVERRULES the demurrer
to the fifth and sixth causes of action for failure to accommodate and failure
to engage in the interactive process.
6.
Negligent Hiring
To establish a claim for negligent hiring,
retention or supervision, a plaintiff must show (1) the employer hired an
employee; (2) the employee was/became unfit or incompetent to perform the work
for which he was hired; (3) the employer knew or should have known the employee
was/became unfit or incompetent and that this unfitness or incompetence created
a particular risk to others; (4) the employee's unfitness or incompetence
harmed plaintiff; and (5) the employer's negligence in hiring/supervising/retaining
the employee was a substantial factor in causing plaintiff's harm. (Phillips
v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)
The Government Tort Claims Act (“GCA”) establishes
a standardized procedure for bringing tort claims against local governmental
entities in California. Under the GCA, no suit for money or damages may be
brought against a public entity until a written claim, known as a government
claim, is presented to and rejected by that entity. (Hernandez v. City
of Stockton (2023) 90 Cal.App.5th 1222.) The GCA requires that before suing
a public entity, the plaintiff must present a timely written claim for damages
to the entity. (West Contra Costa Unified School Dist. v. Superior
Court (2024) 103 Cal.App.5th 1243.) The claim must include specific
details such as the name and address of the claimant, the circumstances of the
occurrence, and the names of the public employees involved, if known. (Gong
v. City of Rosemead (2014) 226 Cal.App.4th 363.)
Here, Defendant argues that Plaintiff did not
comply with the Government Tort Claims Act because, Defendant asserts, the SAC
does not allege compliance. But paragraph 23 of the SAC states: “Prior to
filing this action, plaintiff exhausted her administrative remedies by filing a
timely administrative complaint with the California Department of Civil Rights
(“CDCR”) and receiving a right-to-sue letter. Additionally, plaintiff sent a
timely Tort Claim Letter to PUSD, which was rejected by operation of law.” (SAC
¶ 23.) The Court finds this is a sufficient pleading of compliance. (See Perez v. Golden Empire Transit Dist.
(2012) 209 Cal.App.4th 1228, 1237.)
Second, Defendant contends that a public entity
cannot be liable for this cause of action. Defendant cites Government Code
section 815, which immunizes public entities from tort liability as a general
rule. However, Defendant overlooks section 815.2, which imposes liability on
public entities “for injury proximately caused by an act or omission of an
employee of the public entity within the scope of his employment ... .” (Id.,
§ 815.2(a).) Section 815.2 “codifies the doctrine of respondeat superior as it
applies to public entities ... .” (Miklosy v. Regents of California
(2008) 44 Cal.4th 876, 900.) section 815 does not entirely preclude Defendants’
liability. Rather, it subjects their liability to section 815.2, requiring that
Plaintiff also allege elements of respondeat superior, the government
employer’s vicarious liability for its employees’ acts. “Under the doctrine of
respondeat superior, an employer is liable for the torts of his employees
committed within the scope of employment. [Citations.]” (Ducey v. Argo Sales
Co. (1979) 25 Cal.3d 707, 721-722.) “An essential element of respondeat
superior is a causal nexus or reasonable relationship between the duties of
employment and the conduct causing injury.” (Baptist v. Robinson (2006)
143 Cal.App.4th 151, 161.)
Third, Defendant
argues that the SAC pleads insufficient facts for negligent hiring and that the
assault was not in the scope of Broughton’s employment. In
opposition, Plaintiff argues that the assault occurred by Defendant’s employee
in the scope of her employment because it occurred while Broughton was
performing her work duties, citing Rodgers v. Kemper Constr. Co. (1975) 50
Cal.App.3d 608, 614.
In Rodgers, at a construction site, two
employees of a subcontractor assaulted two heavy equipment operators employed
by the general contractor following a refusal by one of the operators to give
the subcontractor's employee a lift on his bulldozer. The court found that
the assault was within the scope of employment because the assault arose from
the employment relationship and there was no evidence of personal malice
unrelated to the employment. (Id. at p. 621.) Rather, the conflict
resulted from the request for a ride on Plaintiff's bulldozer. (Id.
at p. 622.)
Here, the SAC does not provide much detail
regarding the relationship between Broughton and Plaintiff. It is unclear from
the SAC whether Broughton and Plaintiff had worked together previously or what
initiated the assault. In the opposition, Plaintiff states “no allegations
indicating that the assault was the result of any personal malice. On the
contrary, Plaintiff did not know the identity of Defendant Broughton until she
filed suit and discovered Broughton’s identity through the discovery process.”
(Opp. 13:15-17.) The SAC does not, however, mention this. More specificity is
needed in the SAC to determine whether the assault was within the scope of
Broughton’s employment. The mere fact that it occurred during working hours is
not sufficient by itself. It is also unclear from the SAC whether Defendant had
reason to believe that Broughton posed a threat.
Accordingly, the Court SUSTAINS the demurrer to
the sixth cause of action for negligent hiring with leave to amend.
7.
Whistleblower Retaliation (Labor Code
section 1102.5.)
Labor Code section 1102.5 prohibits
employers from retaliating against employees for disclosing information about
violations of state or federal laws, rules, or regulations. (Cal. Labor Code § 1102.5)
Specifically, section 1102.5(b) prohibits retaliation against employees who
disclose information about violations, regardless of whether the disclosure is
part of their job duties. (Ibid.) Additionally, section
1102.5(c) protects employees from retaliation for refusing to participate
in activities that would result in violations of laws or regulations. (Ibid.)
The statute covers disclosures made to government or law enforcement
agencies, as well as internal disclosures to individuals within the
organization who have the authority to investigate or correct the violations. (Ibid.)
Here, Defendant argues that Plaintiff has not
plead that she blew the whistle on any illegal activity to establish a Labor
Code 1102.5 claim. Additionally, Defendant argues that this non-FEHA tort claim
is subject to the rules of the Government Tort Claims act, which Plaintiff has
not complied with. Plaintiff’s opposition does not address this cause of action
or Defendants’ arguments. Rather, Plaintiff’s opposition combines the issues of
FEHA retaliation and violation of Labor Code 1102.5. The Court should agree
with Defendant that the SAC fails to state sufficient facts to establish this
cause of action. (See SAC ¶ 66-71.) The SAC generally states that Plaintiff made
complaints regarding illegal activities, but her conclusory statements are
insufficient.
Accordingly, the Court SUSTAINS the demurrer to
the seventh cause of action for violation of Labor Code section 1102.5 with
leave to amend.
8.
Assault and Battery
“The elements of a cause of action for assault
are: (1) the defendant acted with intent to cause harmful or offensive contact,
or threatened to touch the plaintiff in a harmful or offensive manner; (2) the
plaintiff reasonably believed he was about to be touched in a harmful or
offensive manner or it reasonably appeared to the plaintiff that the defendant
was about to carry out the threat; (3) the plaintiff did not consent to the
defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's
conduct was a substantial factor in causing the plaintiff's harm.” (Carlsen
v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)
“The essential elements of a cause of action
for battery are: (1) defendant touched plaintiff, or caused plaintiff to be
touched, with the intent to harm or offend plaintiff; (2) plaintiff did not
consent to the touching; (3) plaintiff was harmed or offended by defendant’s
conduct; and (4) a reasonable person in plaintiff’s position would have been
offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652,
668-669.
Here, Defendant makes similar arguments as to the
cause of action for negligent hiring. (See above.) As previously stated,
Plaintiff alleged compliance with the Government Tort Claims act and Defendant
may be liable under a theory of respondeat superior. But the SAC pleads
insufficient facts to establish that the assault occurred during the scope of
employment.
In addition, Defendant includes a single
sentence without analysis stating that the causes of action are barred by the
Workers Compensation Exclusivity Rule under California Labor Code section 3600.
“The general rule of workers’ compensation exclusivity ‘applies only if the
risks resulting in the injury were encompassed within the ‘compensation
bargain’ ... [which] does not encompass conduct that contravenes a fundamental
public policy or exceeds the risks inherent in the employment relationship.’
Thus, ‘some claims, including those based on ... discrimination or other
conduct contrary to fundamental public policy, are not subject to the
exclusivity provisions of the workers’ compensation law. Thus, such claims may
be the subject of both workers’ compensation proceedings and civil
actions.’” (Shirvanyan v. Los Angeles Community College District (2020)
59 Cal.App.5th 82, 105.) Here, Defendant does not explain how the assault
alleged by Plaintiff was inherent to the employment relationship and
encompassed within the compensation bargain.
Accordingly, the Court SUSTAINS the demurrer to
the ninth and tenth causes of action for assault and battery with leave to
amend.
9.
Intentional Infliction of Emotional
Distress
Intentional infliction of emotional distress
(IIED) has the following elements: (1) defendant’s outrageous conduct; (2)
defendant's intent to cause distress or reckless disregard for its likelihood;
(3) plaintiff's severe or extreme emotional distress; and (4) causation. (Huntingdon
Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc.¿(2005) 129
Cal.App.4th 1228, 1259.) “‘Conduct, to be “ ‘outrageous’ ” must be so extreme
as to exceed all bounds of that usually tolerated in a civilized society.’
[Citation.]” (Ibid.) Similarly, “[s]evere emotional distress means ‘ “emotional
distress of such substantial quality or enduring quality that no reasonable
[person] in civilized society should be expected to endure it.”’” (Hughes v.
Pair (2009) 46 Cal.4th 1035, 1051.) “ ‘[M]ere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities’ ” do not
constitute extreme and outrageous conduct.” (Okorie v. Los Angeles Unified
School Dist. (2017) 14 Cal.App.5th 574, 597 [222 Cal.Rptr.3d 475, 494]
disapproved of by Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995 on other grounds.)
Here, Defendant makes similar arguments as to
the cause of action for negligent hiring. (See above.) As previously stated,
Plaintiff alleged compliance with the Government Tort Claims act and Defendant
may be liable under a theory of respondeat superior. But the SAC pleads
insufficient facts to establish either that the assault occurred during the
scope of employment or that the conduct satisfies the “outrageous” standard.
In addition, Defendant includes a single
sentence without analysis stating that the cause of action is barred by the
Workers Compensation Exclusivity Rule under California Labor Code section 3600.
However, Defendant does not explain how the discrimination and assault alleged
by Plaintiff is not inherent to the employment relationship.
Accordingly, the Court SUSTAINS the demurrer to
the eleventh cause of action for intentional infliction of emotional distress
with leave to amend.
Plaintiff may have thirty (30) days in which to amend.