Judge Bruce G. Iwasaki, Case 22STCV19219 2022-09-30 Tentative Ruling

Tentative Ruling: The Demurrer is sustained as to the negligent infliction of emotional distress claim with 20 days leave to amend, but otherwise overruled.

The Motion to Strike is granted.

This is an employment case in which Jennifer Walske (Plaintiff or Walske) sues the Regents of the University of California (The Regents or Defendant) for sex discrimination, retaliation, sexual harassment, failure to prevent discrimination, hostile work environment, and intentional/negligent infliction of emotional distress.

Walske alleges that she was recruited to be a professor at the University of California, Los Angeles (UCLA). During her time at UCLA, she allegedly experienced numerous incidents of discrimination and hostile work environment. In one series of interactions, she alleges that Dean Alfred Osborne repeatedly rescinded Walske’s title as the permanent faculty director of an academic center. On another occasion, after Walske reported her complaints that Osborne treated female faculty members differently, he allegedly retaliated against her withholding her schedule of classes and salary. This pattern persisted and Walske eventually reported her concerns to UCLA’s Title IX Office, for which she was also allegedly retaliated against. UCLA ultimately informed Walske it would not be reappointing her as professor in the 2022/2023 academic year.

The Regents demur to the eighth and ninth causes of action for intentional and negligent infliction of emotional distress. It argues that it is immune to common law claims, workers’ compensation exclusivity applies, and insufficient facts. Defendant’s counsel’s declaration satisfies the meet and confer requirement. (McDonough Decl., ¶¶ 4-10.)

Walske opposed the demurrer, and the Regents replied. Walske argues that the Regents may still be liable under a respondeat superior theory, workers’ compensation exclusivity is not applicable, and she has alleged sufficient facts to support outrageous conduct. The Regents contend that Walske failed to allege facts supporting respondeat superior and emotional distress, and reiterated its claim of workers’ compensation exclusivity.

The Regents also move to strike several paragraphs in the Complaint as to exemplary damages. Walske opposed, contending that the “Doe” defendants may be subject to punitive damages. The Regents replied, contending that Walske deflects the argument because the motion to strike is being brought by the Regents, not the unnamed “Doe” defendants.

The demurrer to the eighth cause of action is overruled because outrageous conduct is a question of fact; however, as Walske failed to allege any duty of care by Defendant, the demurrer is sustained on the ninth cause of action with leave to amend.

Exemplary damages are unavailable against a public entity so the motion to strike is granted.

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.)

Both statutory immunity and workers’ compensation exclusivity do not necessarily bar Plaintiff’s tort-based claims.

The general rule is that public entities, including the Regents of the University of California, are immune from liability except as provided by statute. (Gov. Code, § 815; Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897.) However, under Government Code section 815.2, subdivision (a), public entities may be vicariously liable for the torts of their employees. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1180.)

Generally, there are two sources of potential liability for a public entity: “(1) the public entities’ liability based on their own conduct and legal obligations, and (2) the public entities’ liability, based on respondeat superior principles, for the misconduct of their employees that occurred in the scope of their employment.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127.) “Thus, in a cause of action for negligence, the existence and extent of an entity’s vicarious liability under Government Code section 815.2, subdivision (a), will be determined by the scope of duty legally attributed to its employees.” (Torsiello v. Oakland Unified School District (1987) 197 Cal.App.3d 41, 45.)

Walske’s tort-based claims are not necessarily barred because she may allege a vicarious theory of liability under Government Code section 815.2. (See, e.g., C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 868 [“ ‘the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the same extent as a private employer (§ 815, subd. (b))’ ”].) Defendant seems to concede this point but argues that Plaintiff has failed to allege sufficient facts for vicarious liability. Thus, the issue is whether Plaintiff sufficiently alleges facts to support her tort-based causes of action.

As to the argument of 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).)

Plaintiff relies on Light, supra, 14 Cal.App.5th at pp. 100-101, and argues that “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.” In its Reply, the Regents also seemingly concedes this, but argues that Plaintiff’s “intentional infliction of emotional distress claim does not plead conduct that satisfies the five elements of the IIED cause of action.”

Plaintiff’s emotional distress claims are 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.)

Further, sexual harassment and sex discrimination are not “normal incident[s] of employment” and such claims are not barred “‘where the distress is engendered by an employer’s illegal discrimination practices.’” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288; Murray v. Oceanside Unified School District (2000) 79 Cal.App.4th 1338, 1363 [“where a plaintiff can allege that she suffered emotional distress because of a pattern of continuing violations that were discriminatory, her cause of action for infliction of emotional distress will not be barred by the exclusivity provisions of workers’ compensation laws”]; Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 352; Jones v. Los Angeles Community College District (1988) 198 Cal.App.3d 794, 802, 809.) As Plaintiff has alleged both sexual harassment and sex discrimination in her Complaint, Labor Code section 3600 does not bar her claims. Rather, the focus is on whether she has properly pled those causes of action.

Defendant argues that the allegations do not show extreme conduct, nor does Plaintiff allege emotional distress to show that her symptoms “are of such a substantial or enduring quality that no reasonable person should be expected to endure it.”

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. (See, e.g., Mintz v. Blue Cross of Cal. (2009) 172 Cal.App.4th 1594, 1609 [finding that “denial of benefits for an investigational treatment and the failure to advise the insured of his statutory right to independent review of the denial” is not outrageous conduct].)

If properly pled, a claim of sexual harassment can establish “the outrageous behavior element of a cause of action for intentional infliction of emotional distress.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618; Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)

Here, Walske alleged that her supervisor, then the interim dean of UCLA’s business school, made gendered comments towards her, treated male faculty differently and more favorably, and engaged in an improper relationship with a female subordinate. (Complaint, ¶¶ 3, 30, 33, 68.) After reporting her concerns, Walske alleges that Dean Osborne “acted in a hostile and retaliatory manner” such as by withholding her schedule and salary. (Id. at ¶ 36.) When Plaintiff’s complaints were referred to the Title IX Office, they “did not launch the investigation immediately” and waited five weeks. (Id. at ¶ 46.) Meanwhile, despite receiving positive evaluations, she was ultimately passed up for a permanent Faculty Director position. (Id. at ¶ ¶ 48- 55.) Walske further alleges that other staff retaliated against her by filing false allegations with the Title IX Office. (Id. at ¶¶ 56-66.) Ultimately, Plaintiff’s Title IX investigation found no retaliation. (Id. at ¶ 71.)

Whether the above facts constitute outrageous conduct is a question of fact. This is not a clear case in which plaintiff is merely alleging “‘delayed or denied insurance benefits’” or “statutory unfair settlement practices.” (Mintz v. Blue Cross of Cal., supra, 172 Cal.App.4th at p. 1608; Coleman v. Republic Indemnity Insurance Co. (2005) 132 Cal.App.4th 403, 417.) Moreover, Walske alleges sexual harassment and hostile work environment claims, to which the Regents did not demur. Thus, this suffices for outrageous conduct at the pleading stage.

As to the Regent’s argument that Walske did not plead sufficient emotional distress, she has done so, alleging “loss of earnings and other employment benefits, harm to her reputation, humiliation, mental anguish, and emotional distress.” (Complaint, ¶¶ 93, 100, 108, 118, 125 131.) While vague, “plaintiff is required to plead only ultimate facts, not evidentiary facts.” (C.W. Johnson & Sons, Inc. v. Carpenter (2020) 53 Cal.App.5th 165, 169.)

With respect to the cause of action for negligent infliction of emotional distress, Defendant argues in its reply that it enjoys statutory immunity because Plaintiff did not allege “specific facts demonstrating a special duty owed by an employee of the Regents . . . facts showing that the employee is liable and that no immunity would apply . . . [and] facts showing that the duty was within the course and scope of employment.”

“There 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.)

Defendant’s “‘duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.’” (Ragland v. U.S. Bank National Association, supra, 209 Cal.App.4th at p. 205.) For example, school district administrators have a “special relationship” with students under their supervision, which gives rise to a “duty to take reasonable measures to protect plaintiff from injuries at the hands of others in the school environment.” (C.A. v. William S. Hart Union High School District, supra, 53 Cal.4th at p. 877.)

Here, Plaintiff fails to allege any duty that her supervisor and colleagues owed to her. Instead, the Complaint merely asserts that “Defendants failed to exercise their duty of care to prevent employees, managers, supervisors and/or officers from subjecting Dr. Walske to adverse employment actions.” (Complaint, ¶ 140.) This attempts to assert direct tort liability against the Defendant, which is prohibited unless provided by a statute. (Gov. Code, § 815.) As Plaintiff does not allege that Dean Osborne or any of the other faculty members owed her a duty of care, the demurrer is sustained for the ninth cause of action with 20 days leave to amend.

“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.)

Defendant moves to strike Paragraphs 85, 94, 101, 109, 119, 127, 132, 137, and 142 in the body of the Complaint, and Paragraphs 3 and 4 in the Prayer for Relief. The Paragraphs in the body allege that Defendant’s conduct was oppressive, malicious, and willful, while the Paragraphs in the Prayer for Relief seek punitive damages and statutory penalties.

Defendant argues that Government Code section 818 bars punitive damages against public entities. That section states that “[n]otwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” (Gov. Code, § 818.)

Plaintiff’s opposition argues that she is also alleging punitive damages against the “Doe” defendants. Given that she has failed to name any individual defendants, this argument is speculative. Plaintiff may later amend to include such defendants and add in allegations of punitive damages at that time. (See Austin v. Regents of University of California (1979) 89 Cal.App.3d 354, 358-359 [permitting plaintiff’s amendment to allege punitive damages against the individual defendant doctor].)

The demurrer is overruled as to the eighth cause of action for intentional infliction of emotional distress, but sustained as to the ninth cause of action for negligent infliction of emotional distress with leave to amend no later than 20 days after the hearing on the demurrer. The motion to strike is granted in its entirety.