Judge: Bruce G. Iwasaki, Case: 22STCV19136, Date: 2023-02-02 Tentative Ruling
Case Number: 22STCV19136 Hearing Date: February 2, 2023 Dept: 58
Judge Bruce G. Iwasaki
Hearing
Date: February 2, 2023
Case Name: Keya Persley v. Leo Aguila et
al.
Case No.: 22STCV19136
Matter: Demurrer
Moving
Party: Defendants Leo Aguila
and Tim Woodland
Responding
Party: Plaintiff Keya Persley
Tentative Ruling: The demurrer
is sustained as to the eleventh, twelfth, fourteenth and fifteenth causes of action
and overruled on the thirteenth and sixteenth causes of action. Twenty days leave to amend is granted except
on the twelfth cause of action for assault.
Background and procedural
history
In this employment case, Keya
Persley (Plaintiff) sues Leo Aguila, Tim Woodland, and Trader Joe’s Company for
breach of express written contract, breach of implied contract, breach of the
covenant of good faith and fair dealing, wrongful termination, discrimination,
retaliation, harassment, violation of Labor Code section 230 et seq., whistleblower
retaliation, violation of Labor Code section 1198.5, fraudulent inducement,
intentional infliction of emotional distress,
negligence, assault, violation of Civil Code sections 51 et seq., and
52.1, violation of Business and Professions Code section 17200, and violation
of the Consumer Legal Remedies Act.
Plaintiff alleges that she was
working at Defendants’ store and a customer physically attacked and threatened
her with derogatory, sexist, and racist language. She alleges Defendant Aguila was present but
failed to intervene. Aguila also
reportedly allowed those customers into the store, where they attacked
Plaintiff a second time when they were leaving.
A separate, similar incident occurred one day later, and another manager
also failed to intervene. The Complaint
avers that the managers created an unsafe and hostile work environment because
they failed to protect Plaintiff during what she describes as hate crimes.
This Court previously sustained
Defendant Trader Joe’s Company’s demurrer as to the eighth (violation of Labor
Code section 230 et seq.), eleventh (fraudulent inducement), fifteenth
(violation of Civil Code sections 51 et seq. and 52.1), and seventeenth (violation
of the Consumer Legal Remedies Act) causes of action. The Court granted leave to amend for
Plaintiff to file an amended complaint on or before December 9, 2022. No amended complaint was filed.
Leo Aguila and Tim Woodland (Individual
Defendants) defaulted on October 10, 2022; however, this Court vacated those
defaults on October 21, 2022.
The Individual Defendants now demur
to the eleventh (fraudulent inducement), twelfth (intentional infliction of
emotional distress), thirteenth (negligence), fourteenth (assault), fifteenth
(violation of Civil Code sections 51 et seq., and 52.1), and sixteenth
(violation of Business and Professions Code section 17200) causes of action for
insufficient facts. Plaintiff filed an
opposition and Defendants reiterated its arguments in reply. The meet and confer requirements are satisfied. (Tourkaman Decl., ¶ 4.)
Legal Standard
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.” (§ 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.) The court liberally construes the complaint
to determine whether a cause of action has been stated. (Picton v. Anderson Union High School
Dist. (1996) 50 Cal.App.4th 726, 733.)
Discussion
Preliminarily, Plaintiff argues that the
demurrer is untimely, and that Defendants have waived their arguments. She asserts that she “agreed to set aside the
default only to permit the Answer to be filed.”
Plaintiff’s
argument seems to be based on her prior filing of an ex parte application to
set aside the Defendants’ default so that they may file any demurrers or
motions to strike concurrent with Defendant Trader Joe’s Company. Contrary to Plaintiff’s contention that she
agreed to vacate the default only to permit an Answer to be filed, however,
this Court set aside the default without conditions. (See Minute Order dated Oct. 21, 2022.)
In
any event, even if the demurrer is untimely, the Court has discretion to consider
its merits if it does not affect Plaintiff’s “‘substantial rights.’” (Jackson v. Doe (2011) 192 Cal.App.4th
742, 749-750.) Plaintiff makes no
argument or showing as to how she would be prejudiced if the demurrer is
considered. Therefore, the Court reaches
the merits.
Eleventh cause of action – fraudulent inducement
and violation of Labor Code section 970
Defendant
argues that Plaintiff fails to allege she was “influenced to relocate to work
for Defendant” and that she worked for Defendant at a single location. Plaintiff relies on the fact that the Court
previously sustained this demurrer and that the issue is “moot.”
The
Court incorporates its prior ruling that because this cause of action is rooted
in statute, Plaintiff must allege specific details. Here, she has not alleged that she changed
residences either temporarily or permanently.
Therefore, the demurrer is sustained.
Twelfth cause of action – intentional
infliction of emotional distress
Defendants
argue that this cause of action is barred by workers’ compensation exclusivity
and that the conduct is “routine personnel management activity.” Plaintiff
argues that hate crimes “are not part of the employment bargain” and that such
conduct constitutes outrageous behavior.
First,
as to workers’ compensation exclusivity, 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.)
An exception exists, however. “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).)
Here, the emotional distress claim is not
necessarily barred by workers’ compensation exclusivity. As the Court of Appeal in Light noted,
“A number of California authorities have concluded claims for intentional
infliction of emotional distress in the employment context may be asserted
where the actionable conduct also forms the basis for a FEHA violation.” (Light, supra, 14
Cal.App.5th at p. 97 (collecting cases); see also Cornell v. Berkeley Tennis
Club (2017) 18 Cal.App.5th 908, 945.)
However,
the facts here are insufficient to support this 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.)
Whether
the alleged conduct is outrageous is usually a question of fact. (So v. Shin (2013) 212 Cal.App.4th
652, 672.) Nevertheless, some cases have
dismissed intentional infliction of emotional distress claims on demurrer,
finding that the conduct was not outrageous.
(Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494. [“the appellate
courts have affirmed orders which sustained demurrers on the ground that the
Defendant's alleged conduct was not sufficiently outrageous”]; Trerice v.
Blue Cross of California (1989) 209 Cal.App.3d 878, 883 [“While the outrageousness
of a defendant’s conduct normally presents an issue of fact to be determined by
the trier of fact . . . the court may determine in the first instance, whether
the defendant’s conduct may reasonably be regarded as so extreme and outrageous
as to permit recovery”].)
“An essential element of [a claim
for intentional infliction of emotional distress] 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.)
Here,
Defendants’ alleged misconduct is “falsely inducing Plaintiff to take remain
[sic] on the job in a period of a COVID emergency, in an unsafe work
environment, and promising she would not be terminated.” (Complaint, ¶ 101.) Plaintiff alleges that her managers “did not
investigate the hate crime or acknowledge it, instructing [her] ‘not to worry
about it’, leaving her in an unsafe work environment . . . and caused
injury.” (Id. at ¶ 6.) Thus, Plaintiff alleges, the managers “learned
of these events and did nothing.” (Id.
at ¶ 7.)
At
best, Plaintiff’s allegations amount to negligence and a failure to act. “Absent an intent to injure, such inaction is
not the kind of ‘extreme and outrageous conduct’ that gives rise to liability
under the ‘intentional infliction of emotional distress’ tort.” (Davidson v. City of Westminster (1982)
32 Cal.3d 197, 210 [during a police stakeout, the officer’s failure to warn
victim of a stabbing did not constitute “affirmative misconduct” and outrageous
behavior].) There are no allegations of
any affirmative conduct here. Instead,
Plaintiff alleges Defendants failed to accommodate her disability (Complaint, ¶
9) and did not engage in an interactive evaluation for any accommodation (¶
13). Yet, she does not allege that she made
any requests or that Defendants unreasonably denied her any accommodations. Despite a conclusory allegation that
Defendants acted “deliberately and intentionally” to cause Plaintiff to suffer
harm, she fails to allege any facts showing a specific intent to injure. Accordingly, the demurrer to the cause of
action for intentional infliction of emotional distress is sustained.
Thirteenth cause of action – negligence
Defendants
contend that the negligence claim fails because Plaintiff does not allege
breach of a duty of care other than a violation of a statute. Plaintiff
counters that she alleges that Defendants owed her a duty based upon numerous
statutes, including Penal Code section 11411 and Civil Code sections 1708 and
1714.
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.)
Defendants’
argument is unavailing. Under the Fair
Employment and Housing Act, the employer Defendants had a duty to “not only to
prevent harassment, but also, once it became aware of any harassment, to take
reasonable steps to prevent it.” (Sheffield
v. Los Angeles County (2003) 109 Cal.App.4th 153, 164; Gov. Code, § 12940, subds.
(j), (k).) Courts have interpreted this
provision under negligence with the usual elements of breach of duty, causation
and damages. (Trujillo v. North
County Transit Dist. (1998) 63 Cal.App.4th 280, 286-287.) To the extent that Defendants argue they
cannot be individually liable, this is unpersuasive. (See Id. at p. 286 [definition of
employer in the FEHA statute includes a person acting as an agent of an employer].)
Plaintiff
alleges that Defendants owed her a general duty to protect based on the
employment relationship. (Complaint, ¶ 110;
Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 216 [“Relationships
between . . . employers and employees . . . are all [] examples of special
relationships that give rise to an affirmative duty to protect” a plaintiff
from harm by a third party].) Defendants
allegedly breached that duty by failing to investigate, supervise, and manage
their organization. (Complaint, ¶
111.) This caused Plaintiff to suffer
emotional distress. (Id. at ¶
114.) The allegations are sufficient,
and the demurrer is overruled on the cause of action for negligence.
Fourteenth cause of action – assault
The parties do not dispute that the individual
Defendants did not personally commit the assault. The issue is whether they may be liable under
a theory of aiding and abetting.
The essential elements for aiding and abetting a
tort are: (1) that defendants knew that an assault was being or going to be
committed by a person against a plaintiff; (2) that defendants gave substantial
assistance or encouragement to the actor; and (3) that defendants’ conduct was
a substantial factor in causing harm to a plaintiffs. (CACI 3610.) “‘Mere knowledge that a tort is being
committed and the failure to prevent it does not constitute aiding and
abetting.’” (Austin B. v. Escondido
Union School Dist. (2007) 149 Cal.App.4th 860, 879.)
Here,
Plaintiff alleges that while she was enforcing COVID protocols at Defendants’
store, several customers attacked and threatened her with “highly offensive
derogatory sexist, racist language.”
(Complaint, ¶ 6.) The individual
Defendants, who were store managers, allowed the customers to remain in the
store, failed to investigate the hate crime or acknowledge it, and left Plaintiff
“in an unsafe work environment in which she had been threatened, assaulted,
humiliated and caused injury due to her age, gender, race, and ethnicity.” (Ibid.) That is, the assault claim is based on
Defendants’ “failure to exercise due care in the performance of their role as employer.” (Id. at ¶ 121.) There are no allegations that the individual
Defendants knew that an assault was imminent or somehow assisted or encouraged
such behavior. Mere knowledge of the
assault is insufficient. (Austin B.,
supra, 149 Cal.App.4th at p. 879.)
Given that the allegations do not aver that
Defendants deliberately invited or participated in the third party customer’s
alleged assault of Plaintiff, the Court sustains the demurrer to this cause of
action without leave to amend.
Fifteenth cause of action – Violation of Civil
Code sections 51 and 52.1
Defendant
argues that the Unruh Civil Rights Act under Civil Code section 51 only applies
to discriminatory practices by the business directed to the public;
therefore, because Plaintiff is an employee, she is not suing Defendant Trader
Joe’s as a member of the public.
Plaintiff again asserts that because the Court already sustained this
demurrer with leave to amend, this renders this demurrer “moot.” She also contends that the fifteenth cause of
action is for both a violation of the Unruh Act and the Bane Act and that her
allegations are sufficient.
The
Court incorporates its prior analysis and sustains the demurrer to the fifteenth
cause of action. As previously
discussed, the Unruh Civil Rights Act does not apply in the employment context,
though this exclusion does not preclude violations under the Bane Act. (Stamps v. Superior Court (2006) 136
Cal.App.4th 1441, 1459 [“there is, ‘nothing in . . . the language of section[]
. . . 52.1 [the Bane Act] or in [its] history [which] expresses a legislative
intent to exclude employment discrimination or other employment cases from
their ambit’ ”].) The Bane Act does not
apply because it was not these individual Defendants who interfered with
Plaintiff’s rights, but rather the third-party customers. (Complaint, ¶¶ 6-7.)
Sixteenth cause of action – violation of Business
and Professions Code section 17200
Defendants argue this claim is derivative of
the eleventh through fifteenth causes of action. Plaintiff contends that Defendants make no
specific argument directed to this claim.
California Business and Professions
Code section 17200 prohibits “any unlawful, unfair or fraudulent business act
or practice.” (Bus. & Prof. Code § 17200; see Clark v. Superior Court
(2010) 50 Cal.4th 605, 610.)
An unlawful business practice can be based on
violations of other laws. The unfair competition law treats such violations as
unlawful practices and makes them independently actionable. (Klein v. Chevron U.S.A., Inc. (2012)
202 Cal.App.4th 1342, 1383 [“‘“[V]irtually any law or regulation–federal or
state, statutory or common law–can serve as [a] predicate for a …[section]
17200 ‘unlawful’ violation”’”]; Cel-Tech Communications, Inc. v. Los Angeles
Cellular Telephone, Co. (1999) 20 Cal.4th 163, 180.)
Here, the Court overruled the demurrer on
Plaintiff’s negligence claim and Defendants failed to demur to the seventh
cause of action for harassment, which was also directed against the Individual Defendants. Since those claims survive, the demurrer is overruled.
(Gutierrez v. Carmax
Auto Superstores Cal. (2018)
19 Cal.App.5th 1234, 1265 [“Virtually any statute or regulation (federal or
state) can serve as a predicate for a UCL unlawful practice cause of action”].)
Conclusion
The
Court sustains the demurrer as to the eleventh, twelfth, fourteenth and
fifteenth causes of action. Twenty days
leave to amend is granted as to the eleventh, fourteenth, and fifteenth causes
of action. As to the twelfth cause of action for assault, the demurrer is
sustained without leave to amend. The
demurrer is overruled as to the thirteenth and sixteenth causes of action.