Judge Bruce G. Iwasaki, Case 22STCV10912 2022-12-09 Tentative Ruling

Moving Party: Defendants Vie de France Yamazaki, Inc.; Yamazaki Baking Co., Ltd.; and Reymundo Rodriguez

Opposing Party: Plaintiffs Maria Martha Alvarado; Ana Cecilia Alvarado; and Bryan Alvarado

Tentative Ruling: The Demurrer is sustained on the fifth cause of action solely as to Defendant Rodriguez. The demurrer is also sustained on the ninth and tenth causes of action with 20 days leave to amend. The demurrer is otherwise overruled.

The Motion to Strike is granted only as to paragraph 185.

This is a negligence and discrimination case filed by the successors in interest of Pascual Alvarado Hernandez (Pascual). Maria Martha Alvarado (Maria), Ana Cecilia Alvarado (Ana), and Bryan Alvarado (Bryan) (collectively, Plaintiffs) sued Vie de France Yamazaki, Inc., Yamazaki Baking Co., Ltd., and Reymundo Rodriguez (Rodriguez) (collectively, Defendants) for disability discrimination, failure to provide reasonable accommodation, failure to engage in a good faith interactive process, failure to prevent discrimination, wrongful death from Fair Employment and Housing Act (FEHA) violations, adverse employment action in violation of public policy, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and loss of consortium.

This case centers on the liability of an employer when an employee allegedly contracts the SARS-CoV2 coronavirus (COVID-19) at work and returns home to infect their family. Pascual, an employee of Defendants’ plant in Vernon, California, contracted COVID-19 after the plant manager, Rodriguez, held several large, in-person meetings where social distancing was not possible. Plaintiffs, who are the wife and children of Pascual, allege that he transmitted the virus to his family. In April 2020, Pascual died from the illness.

Defendants demur to all causes of action. They contend that the workers’ compensation exclusivity rule bars all of Plaintiffs’ non-disability claims and that they did not owe any duty to the Plaintiffs as members of Pascual’s household. Counsel’s declaration satisfies the meet and confer requirement. (Bogdan Decl., ¶ 2.) Plaintiffs oppose the demurrer and Defendants reiterated its arguments on reply. Defendants also move to strike several paragraphs in the Complaint as to damages.

Defendants’ request for judicial notice is denied as to Exhibit A (Google Maps printout.) The request is granted as to all the other exhibits, which consists of court documents, an Inspection Detail from the U.S. Department of Labor, and guidance from the Center for Disease Control.

Plaintiffs’ request for judicial notice is granted as to various publications by the Los Angeles County Department of Public Health, executive orders, and other court documents. (Evid. Code, § 452, subds. (c), (d).)

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

Defendants argue that Maria Alvarado is the only successor-in-interest as Pascual’s spouse and that Ana and Bryan should be dismissed. They cite to Probate Code section 6401, subdivision (a) and Family Code section 2603 that the personal injury damages in this lawsuit would be awarded to the estate of the decedent, which would be community property.

Plaintiffs argue that there may be some circumstances in which a portion of the damages may be treated as separate property, which may entitle Ana and Bryan to recovery under Probate Code section 6402, subdivision (a).

Defendants’ arguments concern how survival damages awarded at the conclusion of the lawsuit would be apportioned among Plaintiffs. They cite to no case authorizing this Court to dispose of parties based on lack of standing because there should only be one plaintiff as the proper “successor.” To the extent that Defendants are arguing Maria has a superior right over Ana and Bryan pursuant to Code of Civil Procedure section 377.32, subdivision (a)(6), the Court is unpersuaded. Defendants fail to show that Maria’s interest, “while greater, is a superior right within the meaning of § 377.32.” (See (R.A. v. Morris (C.D.Cal. Mar. 16, 2015, No. 5:14-cv-0077-ODW(PJWx)) 2015 U.S.Dist.Lexis 32334, *10-11.)

Furthermore, while “Community estate personal injury damages shall be assigned to the party who suffered the injuries,” the Court may, “after taking into account the economic condition and needs of each party, the time that has elapsed since the recovery of the damages or the accrual of the cause of action, and all other facts of the case, determine[] that the interests of justice require another disposition.” (Fam. Code, § 2603, subd. (b).) Presumably, as Plaintiffs argue, this may include treating a portion of the recovery as separate property to allow recovery by Ana and Bryan under Probate Code section 6402. Accordingly, Defendants have not shown that Ana and Bryan are necessarily foreclosed from initiating a lawsuit as successors-in-interest of their father.

Defendants separately argue that successor claims under FEHA are not cognizable and belong only to the individual employee. “There is no controlling authority on whether FEHA claims survive a decedent who had yet to file an administrative claim with the Department of Fair and Equal Housing (‘DFEH’). Other circuits, however, have applied state survivability statutes to determine whether various rights of action similar to FEHA survive the decedent. [Citations.] At least one court, applying California law, granted leave to allege a survivor FEHA claim.” (Li Ching Chu v. Tribal Techs. Inc. (N.D. Cal. Jan. 25, 2013) No. C 11-04990 WHA, 2013 WL 12130030, at *2.) The Court finds that nothing within the FEHA statutes restrict the claims upon the employee’s death; therefore, under Code of Civil Procedure section 377.20, subdivision (a), the FEHA claims survive. (Ibid.; see also Livingston v. Kemper Sports Management Inc. (E.D. Cal., Oct. 26, 2012, No. 1:12-CV-01427-LJO) 2012 WL 5349174, at *8 (WCA exclusivity does not bar wrongful death claim based on FEHA violations.)

Defendants next contend that Rodriguez is improperly named as a Defendant because the law “immunizes individual employees from claims of discrimination.” The Court agrees. (See Reno v. Baird (1998) 18 Cal.4th 640, 643 [holding that persons claiming discrimination may sue their employers, but not their individual supervisors].)

The claim at issue involving Rodriguez is the fifth cause of action for wrongful death based on the alleged FEHA violation for refusing Pascual’s request for accommodation.[1] But that refusal is a “personnel management decision.” (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65 [personnel management decisions include “deciding who will and who will not attend meetings”].) That Plaintiffs allege Rodriguez was improperly motivated is of no bearing; this simply entitles them to sue the employer for discrimination, which they have done. (Id. at p. 80.) Plaintiffs’ arguments on Janken focuses on their claim for intentional infliction of emotional distress. However, to the extent that the fifth cause of action is for wrongful death based upon FEHA violations for discrimination, this claim cannot stand against Rodriguez as an individual Defendant. Therefore, the demurrer is sustained on the fifth cause of action solely as to Rodriguez.

Workers’ compensation exclusivity does not necessarily bar Plaintiff’s FEHA or tort claims.

Under Labor Code section 3600, subdivision (a), an employer is liable “without regard to negligence” for any injury sustained by its employees “arising out of and in the course of the employment.” In return, the employee is generally prohibited from pursuing any tort remedies against the employer or its agents. (Lab. Code, § 3602, subd. (a) [“the right to recover compensation is . . . the sole and exclusive remedy of the employee”].) “So long as the basic conditions of compensation are otherwise satisfied (Lab. Code, § 3600), and the employer’s conduct neither contravenes fundamental public policy [citation] nor exceeds the risks inherent in the employment relationship [citation], an employee’s emotional distress injuries are subsumed under the exclusive remedy provisions of workers’ compensation.” (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 754.)

Workers’ compensation exclusivity “is not limited to claims brought by injured employees themselves. The workers’ compensation system is also ‘the exclusive remedy for certain third party claims deemed collateral to or derivative of the employee’s injury.’ [Citation.] Courts have referred to this principle as the ‘derivative injury rule’ or ‘derivative injury doctrine.’ ” (See’s Candies, Inc. v. Superior Court (2021) 73 Cal.App.5th 66, 77.)

An exception exists for FEHA claims. “Even where an injury is otherwise compensable under the workers’ compensation system, a cause of action seeking damages based on the injury may nevertheless be allowable where the employer’s conduct falls outside the compensation bargain: ‘if the alleged injury falls within the scope of the exclusive remedy provisions, then courts consider whether the alleged acts or motives that establish the elements of the cause of action fall outside the risks encompassed within the compensation bargain.’” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 96 (Light).) Thus, “unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain and therefore claims of intentional infliction of emotional distress based on such discrimination and retaliation are not subject to workers’ compensation exclusivity.” (Id. at p. 101.) It follows that Plaintiffs’ discrimination-based claims in violation of FEHA are not subject to exclusivity.

As to the tort-based claims, Defendants argue that Plaintiffs were only injured at home “because [Pascual] was injured at work. Thus, their claims are barred by the exclusive remedy.” That is, Defendants are arguing the derivative injury rule should apply to bar the other claims because Pascual’s injury was the but-for cause of Plaintiffs’ injuries. This argument was recently rejected by the Court of Appeal in See’s Candies, Inc. v. Superior Court (2021) 73 Cal.App.5th 66, 84-85 (See’s Candies.)

In See’s Candies, the employee contracted and transmitted COVID-19 to her husband, who died a month later. (Id. at p. 72.) The employee and her daughters sued the employer for general negligence and premises liability based on the employer’s inadequate safety measures. (Ibid.) The trial court disagreed with the employer that the claims were preempted by exclusivity under the Workers’ Compensation Act and overruled the demurrer. The Court of Appeal affirmed, finding that the causes of action were not derivative of the employee’s workplace injury, which do not include “separate physical injuries suffered by nonemployees, even when . . . an employee’s injury was part of the causal chain leading to those injuries.” (Id. at p 88.) Thus, “the fact an employee’s injury is the biological cause of a nonemployee’s injury does not thereby make the nonemployee’s claim derivative of the employee’s injury.” (Id. at p. 73.) The proper inquiry is whether the alleged injuries are “ ‘legally’ or ‘logically’ dependent on an employee’s injuries.” (Id. at p. 85.)

Specifically, the See’s Candies Court noted that the employee in that case could act as a conduit for the virus and transmit it without any injury to themselves. Therefore, “persons need not themselves suffer adverse health impacts in order to transmit a virus” and “viral transmission does not depend upon, and . . . is not caused by, any injury to the transmitting party.” (Ibid.)

The facts in See’s Candies are similar to the ones here. Thus, this Court relies on the reasoning and holding in See’s Candies. Accordingly, Plaintiffs’ claims are not preempted by exclusivity under the Workers’ Compensation Act.

While Defendants disagree with the ruling in See’s Candies, this Court is bound by the Court of Appeal. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455 [“Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state”].) The Court is not persuaded by Defendants’ argument that because the Ninth Circuit has certified the exclusive remedy question to the California Supreme Court, this is “enough to create a conflict among appellate courts, and permits this court to disregard See’s Candies as it sees fit.” The Ninth Circuit expressed no opinion on the See’s Candies ruling, merely noting that it was instructive, but “does not eliminate the need for clear guidance from California’s highest court.”[2] (Kuciemba v. Victory Woodworks, Inc. (9th Cir. 2022) 31 F.4th 1268, 1272.)

Defendants owed a general duty of care to avoid exposing Plaintiffs to a risk of injury

“ ‘California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).)’ [Citation.] Civil Code section 1714, subdivision (a), provides in relevant part: ‘Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.’ . . . ‘ “Courts … invoke[] the concept of duty to limit generally ‘the otherwise potentially infinite liability which would follow from every negligent act … .’ ” ’ [Citations.] The conclusion that a defendant did not have a duty constitutes a determination by the court that public policy concerns outweigh, for a particular category of cases, the broad principle enacted by the Legislature that one's failure to exercise ordinary care incurs liability for all the harms that result. . . . ‘in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where “clearly supported by public policy.” ’ [Citation.]” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142-1143 (Kesner).)

In Kesner, one of the plaintiff families sued the employer for injuries based on the employee’s exposure to asbestos in the workplace. The Court held that the family members sustained their own independent injuries from exposure to the asbestos carried home by the employees. (Id. at p. 1165.) “Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.” (Id. at p. 1140.) After finding a general duty of care, the Court found that the defendant’s conduct was closely tied to plaintiffs’ injuries and was both foreseeable and derivative of their alleged negligence in failing to control or limit asbestos fibers in the workplace. (Id. at p. 1148.) Thus, because the exposure and injury were reasonably foreseeable and the businesses were well-positioned to undertake preventive measures, there was a “duty of ordinary care to prevent take-home asbestos exposure.” (Id. at p. 1156.) The Court finds that Kesner is persuasive and finds that an ordinary duty of care applies here. Thus, an analysis of the Rowland factors is necessary to determine whether there should be any exceptions to this duty. (Id. at p. 1143.)

Both parties rely on Brown v. Taekwondo (2021) 11 Cal.5th 204 (Brown), but the Court does not find that case on-point. In Brown, the plaintiffs were teenagers who trained in the Olympic sport of taekwondo and who alleged that their coach sexually abused them. (Id. at p. 210.) The plaintiffs sued the coach, the sponsor of the competitions (USAT), and the United States Olympic Committee (USOC). The Supreme Court granted review “to clarify the applicable framework for determining whether a defendant has a duty to protect a plaintiff from harm caused by a third party.” (Id. at p. 213, italics added.) The Court concluded that the proper framework was “first, whether Brown had adequately alleged a special relationship between the parties that gave rise to a legal duty to protect, and second, whether the Rowland factors weighed in favor of limiting or eliminating this duty.” (Id. at p. 211.) A special relationship may exist between the defendant and victim, or the “defendant and the dangerous third party,” which “ ‘entails an ability to control [the third party’s] conduct.’ ” (Id. at p. 216.)

Here, while Plaintiffs appear to allege that Rodriguez, Pascual’s supervisor, was the third party, he is simply another employee of the corporate entities. Indeed, Plaintiffs allege in Paragraph 184 that the entities are liable “pursuant to the doctrine of respondeat superior.” Thus, for purposes of evaluating the pleading, the Court views Rodriguez and the entities as one and the same. (Cf. Colonial Van & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 493 [third party shooter was the son of one of the employees]; Golick v. State of Cal. (2022) 82 Cal.App.5th 1127, 1133 [“troubled veteran”].) However, even if Defendant Rodriguez was deemed a third party, and the Brown analysis applied, there is pleaded a special relationship between Rodriguez and the corporate entities: he is their employee, they controlled his training, and could discipline him. (See Brown, supra, 11 Cal.5th at pp. 211, 216.) Thus, the Court still reaches the Rowland factors in determining “whether the relevant circumstances warrant limiting a duty already established.” (Id. at p. 221.)

The Kesner decision explained how these factors are applied: “In determining whether policy considerations weigh in favor of such an exception, we have said the most important factors are ‘[1] the foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of the connection between the defendant’s conduct and the injury suffered, [4] the moral blame attached to the defendant's conduct, [5] the policy of preventing future harm, [6] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ (Rowland, supra, 69 Cal.2d at p. 113.) Because Civil Code section 1714 establishes a general duty to exercise ordinary care in one’s activities, which includes the use of asbestos in one's business or on one's premises, we rely on these factors not to determine ‘whether a new duty should be created, but whether an exception to Civil Code section 1714 … should be created.’” (Kesner, supra, 1 Cal.5th at p. 1143.)

“The Rowland factors fall into two categories. Three factors—foreseeability, certainty, and the connection between the plaintiff and the defendant—address the foreseeability of the relevant injury, while the other four—moral blame, preventing future harm, burden, and availability of insurance—take into account public policy concerns that might support excluding certain kinds of plaintiffs or injuries from relief.” (Id. at p. 1145.) The Court considers these two categories. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 774.)

“Of these three [foreseeability] factors, whether the injury was foreseeable is the most important in determining whether an exception should exist to the duty to protect. [Citation.] Our task ‘ “is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.” ’ [Citations.] We do, however, evaluate the kind of third party conduct involved in light of all the surrounding circumstances as probative in assessing generally whether the category of [defendant’s] alleged negligent conduct is sufficiently likely to result in the kind of harm plaintiffs experienced. ‘What is “sufficiently likely” means what is “ ‘likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.’ ” ’ ” (Colonial Van & Storage, Inc. v. Superior Court, supra, 76 Cal.App.5th at p. 502.)

Here, The Court finds that foreseeability weighs in favor of not finding an exception to the duty of care. Plaintiffs allege that they suffered harm from their COVID-19 infections. (Complaint, ¶¶ 80, 162.) It was foreseeable that a failure to follow various county and state guidelines may lead to COVID-19 infection. Indeed, Governor Newsom’s March 4, 2020 Executive Order stated that “further efforts to control the spread of the virus to reduce and minimize the risk of infection are needed” and the California Department of Public Health noted that precautions should be taken “to prevent the spread of COVID-19.” (Plaintiff’s Request for Judicial Notice (RJN), Exs. B, E.) Defendants take issue with the third element of “closeness.” “ ‘The question of the closeness of the connection between a defendant’s conduct and the injury suffered is strongly related to the question of foreseeability itself.” (Cabral, supra, 51 Cal.4th at p. 779.) There may be issues with closeness to the extent that Plaintiffs may have problems with causation. But in the Court’s view, causation is not a consideration at the pleading stage and does not weigh so heavily as to create a categorical exception to the duty of care. (Id. at p. 781.)

The public policy factors also weigh against any exception to the duty. Plaintiffs are relatively powerless and unsophisticated compared to the Defendants, who exercised “greater control over the risks at issue.” (Kesner, supra, 1 Cal.5th at p. 1151.) Accepting the Complaint’s allegations as true on demurrer, Defendants knew of the guidance, recommendations, and orders of the local, state, and federal health authorities. (Complaint, ¶ 155.) Despite this knowledge, they continued to hold large in-person meetings where social distancing was not possible. (Id. at ¶ 16.) In addition, Defendants did not provide protective equipment, nor did they implement a contact tracing program even when they were aware of diagnosed cases of COVID-19 among their other employees. (Id. at ¶ 11, 52.) Some of this behavior resulted in penalties by the California Department of Industrial Relations. (Plaintiff’s RJN, Ex. I.) This conduct is morally blameworthy. The Court also does not find that it was unduly burdensome or costly for Defendants to implement some of those directives to prevent future harm. For example, posting conspicuous signs as warnings, enforcing social distancing measures, or providing access to hand washing facilities with soap and water would impose minimal burden. (Id. at Ex. D.)

The Court acknowledges Defendants’ concerns that this may cast a wide net and impose expansive liability. As stated in Kesner, “We are mindful that recognizing a duty to all persons who experienced secondary exposure could invite a mass of litigation that imposes uncertain and potentially massive and uninsurable burdens on defendants, the courts, and society. But this concern does not clearly justify a categorical exemption from liability for take-home exposure.” (1 Cal.5th at p. 1156.) “Instead, the concerns point to the need for a limitation on the scope of the duty here.” (Id. at p. 1154 [limiting the duty to prevent take-home exposure only to members of the worker’s household].)

Defendants’ remaining arguments involve factual matters inappropriately decided at this stage of the litigation. For example, they argue that the holding in Kesner “does not translate to liability for COVID-19 which could have been contracted anywhere.” But this argument focuses on the causation element of negligence, not duty. “It must be remembered that a finding of duty is not a finding of liability. To obtain a judgment, a plaintiff must prove that the defendant breached its duty of ordinary care and that the breach proximately caused the plaintiff's injury, and the defendant may assert defenses and submit contrary evidence on each of these elements.” (Id. at p. 1157.)

The Court is also not persuaded by Defendants’ other cited cases. City of Los Angeles v. Superior Court (2021) 62 Cal.App.5th 129, 143 is distinguishable because it involved a public entity in the context of premises liability. Defendants’ contention that a general duty of care “would extend liability for every injury resulting from any allegedly negligent act” is unfounded. The California Supreme Court in Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750 expressly recognized that foreseeability and public policy would limit such scenarios. (See also Erlich v. Menezes (1999) 21 Cal.4th 543, 552.) Similarly, their reliance on Elsheref v. Applied Materials, Inc. (2014) 223 Cal.App.4th 451 is misplaced. The Court of Appeal in that case held there was a general duty of care, but that the Rowland factor of a close connection between the employer’s conduct and the (pre-conceived) child was too attenuated. (Id. at p. 460.)

Therefore, because the Court finds that workers’ compensation exclusivity does not apply and that Defendants owed a general duty of care to Plaintiffs, the Court proceeds to evaluating Plaintiffs’ causes of action.

In a claim for discrimination, plaintiff must establish “(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, such as termination, demotion, or denial of an available job, and (4) some other circumstances suggest discriminatory motive. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)

Here, Defendants argue that there is “no evidence that Pascual Alvarado was treated differently than any other employee because of his disability.” But a demurrer challenges the pleadings, not the sufficiency of evidence. This argument is directed towards the third and fourth elements. In support, they advance the complaints in two other cases involving fellow employees: Alex Hernandez and Genero Leal. This is improper at the pleading stage. “In reviewing the ruling on a demurrer, a court cannot consider . . . the substance of declarations, matter[s] not subject to judicial notice, or documents judicially noticed but not accepted for the truth of their contents.” (Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994.) Defendants’ contention that Pascual was subject to similar conditions as his fellow employees requires the Court to consider the truth of the allegations in those other complaints. The Court declines to do so and overrules the demurrer on that basis as to the first cause of action.

Second and third causes of action - failure to provide reasonable accommodation and failure to engage in a good faith interactive process

Defendants advance no substantive legal argument on these claims in their moving papers. Accordingly, the Court overrules the demurrer on the second and third causes of action.

The Court overrules the demurrer as to this cause of action because it is dependent on the first cause of action for disability discrimination, which is viable.

Defendants’ only argument against the wrongful death claim is that this claim (and the other personal injury claims) are based on Pascual being infected at work and that therefore, they are all precluded by the workers’ compensation exclusive remedy. As discussed above, workers’ compensation exclusivity does not bar FEHA claims. Therefore, except as set forth above concerning Defendant Rodriguez, the demurrer to the fifth cause of action is overruled.

Sixth cause of action – adverse employment action in violation of public policy

Because the Complaint alleges that Defendants retaliated against Pascual Alvarado because of his complaints, the Court treats this as a claim for FEHA retaliation. (Complaint, ¶¶ 142-143.)

To state a cause of action for retaliation under FEHA, Plaintiff must allege facts showing “(1) that he engaged in a protected activity, (2) his employer subjected him to adverse employment action, and (3) there is a causal link between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendants’ only argument here is that an adverse action for discrimination cannot be the same as an adverse action for retaliation. But they cite no law in support. Their claim that this would automatically make any discrimination into a retaliation claim is unpersuasive. For retaliation, a plaintiff must still show that he or she engaged in a protected activity and there is a link between the activity and adverse action. No protected activity is required for discrimination. Accordingly, the demurrer on the sixth cause of action is overruled on this ground.

Seventh and eighth causes of action – negligence and negligent infliction of emotional distress

Here, Plaintiffs allege that Defendants “owed a duty to exercise ordinary care to prevent the spread of COVID-19 both to and among their employees and from their employees to their employees’ at-home families and households.” (Complaint, ¶ 156.) This is sufficient. While Defendants contend there are issues of causation, the argument is directed towards the merits of the case. (See Beauchene v. Synanon Foundation, Inc. (1979) 88 Cal.App.3d 342, 346 [causation is ordinarily a question of fact for the jury].) Defendants do not address the other elements of negligence. Accordingly, the demurrer is overruled on the seventh cause of action.

As to the eighth cause of action, “[t]here is no independent tort of negligent infliction of emotional distress; rather, ‘[t]he tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.’” (Ragland v. U.S. Bank National Association (2012) 209 Cal.App.4th 182, 205.) The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co.¿(2006) 137 Cal.App.4th 292, 318.)

Since the negligence claim is overruled, this claim also survives. (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 565 [“A plaintiff may plead cumulative or inconsistent causes of action”].) The demurrer is overruled on the eighth cause of action.

Intentional infliction of emotional distress requires “(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 suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) “Moreover, to support the cause of action, ‘[i]t is not enough that the conduct be intentional and outrageous. It must be conducted directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.’ [Citation.] ‘The requirement that the defendant’s conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.’ ” (Ess v. Eskaton Properties (2002) 97 Cal.App.4th 120, 130.)

Here, the Complaint does not allege that the extreme or outrageous conduct was directed at the Plaintiffs or occurred in their presence. Plaintiffs’ opposition does not discuss this cause of action. Therefore, the demurrer to the ninth cause of action is sustained.

Plaintiff Maria Alvarado alleges a loss of consortium claim based on Pascual’s death due to unlawful employment practices. (Complaint, ¶ 207.) Thus, her claim is based on the FEHA causes of action. FEHA does not recognize a spouse’s claim for loss of consortium. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 162 [“Although the cause of action for loss of consortium is not merely derivative or collateral to the spouse’s cause of action . . . , it is based on the physical injury or disability of the spouse, and is precluded by the broad language of the Labor Code sections”]; Smith v. Northrop Grumman (N.D.Cal. 2014) 60 F. Supp. 3d 1051, 1057 [“Plaintiffs’ loss of consortium claim cannot flow from a FEHA claim because the FEHA provides protection for ‘employees,’ not their spouses].) Therefore, the demurrer is sustained on the tenth cause of action.

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”¿ (Code Civ. Proc., § 436.)

Defendants move to strike Paragraphs 91, 103, 116, 128, 145-147, and 185 in the Complaint. Plaintiffs concede that they may not seek punitive damages under the wrongful death or negligent infliction of emotional distress claims. Therefore, Paragraph 185 is stricken. The rest of the Paragraphs seek survival or general damages. Because the Court overrules the demurrer as to the first, second, third, fourth, and sixth causes of action, the motion to strike is denied as to Paragraphs 91, 103, 116, 128, and 145-147.

The demurrer is overruled as to the first, second, third, fourth, fifth, sixth, seventh, and eighth causes of action. The demurrer is sustained on the fifth cause of action as to Defendant Rodriguez, and the ninth and tenth causes of action, with 20 days leave to amend. The motion to strike is granted as to Paragraph 185, but otherwise denied.

[1] The negligence and tort-based causes of action are also alleged against Rodriguez, but Defendants’ arguments are not directed towards those claims.

[2] The See’s Candies Court also relied on Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, which the Ninth Circuit stated, “dealt with very different facts from those present here.”