Judge: Bruce G. Iwasaki, Case: 24STCV16348, Date: 2024-10-02 Tentative Ruling

Case Number: 24STCV16348    Hearing Date: October 2, 2024    Dept: 58

Judge Bruce G. Iwasaki    

Hearing Date:             October 2, 2024

Case Name:                Joanne Anderson v. 5 Seasons Showroom LLC

Case No.:                    24STCV16348

Matter:                        Demurrer

Moving Party:             Defendant 5 Seasons Showroom, LLC

            This case arises from Defendant 5 Seasons Showroom, LLC’s (Defendant) termination of Plaintiff Joane Anderson’s (Plaintiff) employment. Plaintiff alleges that Defendant terminated her employment after she stated that she had a condition that required her to have surgery, which she underwent on or about March 25, 2024.

            On July 1, 2024, Plaintiff filed a complaint, alleging causes of action for: (1) wrongful termination under FEHA; (2) discrimination based upon disability/perceived disability under FEHA; (3) harassment based upon disability/perceived disability under FEHA; (4) retaliation under FEHA; (5) failure to take all reasonable steps to prevent discrimination, harassment, and retaliation under FEHA; (6) violation of California Family Rights Act; (7) intentional infliction of emotional distress; (8) failure to pay wages; (9) violation of wage and hour laws.

            On August 28, 2024, Plaintiff dismissed her sixth cause of action for Violation of the California Family Rights Act.

On August 30, 2024, Defendant demurred as to all remaining causes of action in the complaint.

            On September 18, 2024, Plaintiff filed an opposition.

            On September 24, 2024, Defendant filed a reply.

Demurrer

            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.) 

            When a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)

Meet and Confer

Before filing a demurrer, the demurring or moving party is required to meet and confer in person or by telephone with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41.)  

Counsel for Defendant, Robert J. Leonard, provided a declaration that establishes that he and Plaintiff’s counsel met and conferred on August 21, 2024 “by telephone regarding the objections raised in Defendant’s demurrer.” (Leonard Decl., page 2.) Due to this meet and confer, Plaintiff’s counsel agreed to voluntarily dismiss the sixth cause of action. (Ibid.)

Thus, the meet and confer requirement has been met.

Analysis

            Defendant demurs to Plaintiff’s complaint on the grounds that the allegations contained in the complaint fail to state facts sufficient to constitute causes of action for: (1) wrongful termination under FEHA; (2) discrimination based upon disability/perceived disability under FEHA; (3) harassment based upon disability/perceived disability under FEHA; (4) retaliation under FEHA; (5) failure to take all reasonable steps to prevent discrimination, harassment, and retaliation under FEHA; (7) intentional infliction of emotional distress; (8) failure to pay wages; (9) violation of wage and hour laws.

Existence of a Disability

Defendant demurs as to the first through fifth causes of action on the grounds that Plaintiff has failed to allege facts regarding the existence of a disability, which forms the basis for her claims.

A physical disability under FEHA includes having a physical disease or condition that affects one or more of the body’s systems or one that “[l]imits a major life activity.” (Cal. Gov. Code § 12926(m)(1).) A mental or physical disability under FEHA “limits a major life activity if it makes the achievement of the major life activity difficult” (Ibid. §§ 12926(j)(1)(B); (m)(1)(B)(ii).)

Plaintiff alleges that when she was initially hired by Defendant, she “informed defendant[] that she had a medical condition that required surgery.” (Compl., ¶ 3.) Plaintiffs also alleges that she “continued to remind [D]efendants of her upcoming surgery and constantly kept defendant[] updated on her deteriorating health condition.” (Ibid. ¶ 4.)

In Avila v. Cont'l Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1249, the Court found that the plaintiff did not sufficiently show that the plaintiff suffered from a disability when the plaintiff suffered from an “unspecified condition” and “was hospitalized for three days.” There was no specificity regarding whether plaintiff suffered from a condition that qualified as a disability under Cal. Gov. Code § 12926. (Avila, supra, 165 Cal.App.4th at 1249.) Additionally, the court found that because the plaintiff was hospitalized for only three days and then returned to work a few days later without restrictions or accommodations, plaintiff “did not suffer from a condition that qualifies as a disability.” (Ibid.) In Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 346, the court held that the plaintiff did not have an “actual disability while employed” . . . “because his symptoms did not make the performance of his job duties difficult as compared to his unimpaired state” and that he “never exhibited any signs of a medical problem.”

Here, similarly to Avila, Plaintiff has only alleged that she possessed an unspecified “medical” or “health condition” that required her to have surgery. (Compl., ¶ ¶ 3, 4.) Plaintiff also does not allege that she required restrictions or accommodations following the medical leave of absence she took to undergo the surgery. Similarly to Arteaga, Plaintiff has insufficiently alleged that that her “medical” or “health condition” that required her to have surgery made the “achievement of a life activity difficult.” (Compl., ¶ ¶ 3, 4; Cal. Govt. Code, §§ 12926(j)(1)(B); (m)(1)(B)(ii).) Plaintiff has not alleged the “medical” or “health condition” that required her to have surgery made the performance of her job duties more difficult because she only alleged that she had “likely need[ed] a couple of weeks off of work to recover following her surgery.” (Compl., ¶ 3.) Plaintiff does not allege that she continued to suffer from any kind of disabling condition when she returned to work after she had her surgery.

Accordingly, the complaint alleges insufficient facts that Plaintiff suffered from any condition that would be considered a physical or mental disability under FEHA, given that she only alleged that she possessed an unspecified “medical” or “health condition” that required her to have surgery. (Compl., ¶ ¶ 3, 4.) It is “insufficient for [Plaintiff] simply to allege a disability or to identify an injury or physical condition.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App. 4th 34, 47 [plaintiff must show that physical condition “makes ‘difficult’ the achievement of work or some other major life activity”].) Plaintiff has not alleged that she suffered from any physical manifestation of any disease, disorder, or condition that affects any of the specified body systems set forth in Government Code section 12926, subdivision (m)(1)(A). Thus, the “medical” or “health condition” that Plaintiff alleges she has that required her to have surgery cannot form the basis of her having a disability under FEHA. (Compl., ¶ ¶ 3, 4.)

In opposing the demurrer, Plaintiff does little more than quote from the Complaint and cite the statutory definition.  Neither in the Complaint nor her opposition papers, does Plaintiff identify the disability she contends was the basis for adverse action.  A disability may require surgery, but having surgery does not, by itself, constitute a disability as defined by the statute. 

Thus, Plaintiff has not sufficiently pled that she possessed a FEHA-qualifying disability.

Perceived Disability

Defendant demurs as to the first through fifth causes of action on the grounds that Plaintiff has failed to allege facts regarding whether Defendant perceived her as having a disability, which also forms the basis for her claims.

FEHA prohibits discrimination based on a physical or mental condition that is perceived as disabling or potentially disabling. Cal. Gov. Code § 12926.1(b). “[A]n employer ‘knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation. The employer need only know the underlying facts, not the legal significance of those facts.’” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 592 (quoting Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887).) “While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. ‘Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations....’” (Ibid. (quoting Brundage v. Hahn (1997) 57 Cal.App.4th 228, 237).)

Here, Plaintiff alleges that when she “was initially hired by defendant[], she informed defendant[] that she had a medical condition that required surgery.” (Compl., ¶ 3.) She alleges that she “continued to remind defendant[] of her upcoming surgery and constantly kept defendant[] updated on her deteriorating health condition.” (Ibid. ¶ 5.) In Soria, supra, 5 Cal.App.5th at 589, the court found that there were triable issues of fact regarding whether the plaintiff was perceived as having a disability because she told her employer that she had a tumor, “explained the possibility she would have to undergo major surgery,” and “produced evidence of a text message in which [her employer] wished her luck on the day of a biopsy.” The court found that “a jury could reasonably conclude [employer] knew of Soria's tumor and believed she might continue to miss work due to further doctor appointments.” (Ibid.) As described above, in Avila, supra, 165 Cal.App.4th at 1249, the court found that the defendants were not put on notice of the plaintiff’s disability from receiving forms that stated that that plaintiff was unable to work on four workdays . . . due to an unspecified condition, and that plaintiff was hospitalized for three days.”

Here, similarly to Soria, Plaintiff has alleged that she “continued to remind defendant[] of her upcoming surgery and constantly kept defendant[] updated on her deteriorating health condition,” and that “defendant[] made a number of inappropriate comments regarding plaintiff’s medical condition,” such as Plaintiff being “told that her surgery was ‘an inconvenience’ to defendant[].” (Compl., ¶¶ 4, 5.) However, unlike in Soria, where the plaintiff had specified the physical condition (tumor) that required her to have surgery, Plaintiff here has not alleged sufficient facts to put Defendant on notice that she had a condition perceived as disabling or potentially disabling. She has only alleged that she had a medical/health condition that required her to have surgery and was not specific as to what this condition is. Similarly to Avila, putting Defendant on notice that she would be hospitalized for a finite period of time due to an “unspecified condition” is not sufficiently alleging that Defendant perceived Plaintiff to have a disability. Plaintiff merely told Defendant vague and conclusory statements as to her medical/health condition that required her to have surgery, which is insufficient to place Defendant on notice.  As the Court of Appeal explained in Brundage v. Hahn (1997) 57 Cal.App.4th 228, 237, the employer’s imputed knowledge of disability cannot rely on an unspecified incapacity. “While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. ‘Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA.’”

Thus, because Plaintiff alleged only to have told Defendant that she had a medical/health condition that required surgery, Plaintiff failed to plead facts to support whether Defendant sufficiently perceived Plaintiff as having a disability.

First Cause of Action for Wrongful Termination under FEHA

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) 

There is no dispute that Plaintiff sufficiently alleged facts as to the first, second, and fourth elements.

With respect to the third element, Plaintiff alleges that “the terms and conditions of her employment and her termination was in violation of the public policy of the State of California which specifically prohibits defendants from discriminating against plaintiff on the basis of her disability/perceived disability.” (Compl., ¶ 22.) Plaintiff continues to allege that “Defendant[] violated public policy by discriminating, retaliating against and terminating plaintiff on the basis of her disability/perceived disability.” Plaintiff bases her wrongful termination claim in the fact that Defendant discriminated her based on her disability/perceived disability. However, as explained above, Plaintiff did not plead sufficient facts to allege that she had a disability or perceived disability. Thus, her action cannot stand on this ground.

Defendant additionally argues that Plaintiff’s cause of action fails because the complaint fails to allege that she was terminated “because of” her “purported disability.” (Motion, page 12.) Defendant argues that because Defendant could not have perceived her as having a disability, the termination could not have been a result of her disability. (Ibid. page 12-13.) As explained, Plaintiff has insufficiently alleged that Defendant was on notice of any potential disabling condition, and thus, Defendant necessarily could not have terminated Plaintiff because of her disability. (See Featherstone v. S. California Permanente Med. Grp. (2017) 10 Cal.App.5th 1150, 1167 (“Put simply, unless there is some evidence an employer knows an employee is suffering from a disability, it is impossible for an employee to claim he or she was discharged because of it . . . .”) (quoting Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 722).)

Therefore, the demurrer to first cause of action for wrongful termination under FEHA is sustained.

Second Cause of Action for Discrimination Based Upon Disability/Perceived Disability under FEHA

To establish a prima facie case for unlawful discrimination, a plaintiff must provide evidence that “(1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought or was performing competently in the position he [or she] held, (3) he [or she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

There is no dispute that Plaintiff sufficiently alleged facts as to the second and third elements. However, as explained above, Plaintiff has not sufficiently alleged that she is part of a protected class, given that she did not plead sufficient facts to show that she suffered from a disability or perceived disability. Because she did not plead sufficient facts as to her having a disability or whether Defendant perceived her as having a disability, she has not alleged that Defendant had a “discriminatory motive,” since Defendant has not sufficiently alleged to have been on notice of her condition.

Therefore, the demurrer to the second cause of action for discrimination based upon disability/perceived disability under FEHA is sustained.

Third Cause of Action for Harassment Based Upon Disability/Perceived Disability under FEHA

“FEHA prohibits an employer from harassing an employee ‘because of ... a physical disability.”” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 927; Cal. Govt. Code, § 12940(j)(1).) A claim of disability harassment requires a showing “that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [disability].” (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.)

Plaintiff alleges in the complaint that “she informed defendant[] that she had a medical condition that required surgery,” and then “constantly kept defendant[] updated on her deteriorating health condition.” (Compl., ¶ 3, 4.) She also alleges that “in the weeks leading up to her surgery, defendant[] made a number of inappropriate comments regarding plaintiff’s medical condition.” (Ibid. ¶ 5.)

Here, Plaintiff’s harassment claim is based upon her disability/perceived disability in that Defendant created a “hostile work environment on the basis of [P]laintiff’s disability/perceived disability by harassing plaintiff . . . .” (Ibid. ¶ 47.) Like the above causes of action, because Plaintiff has insufficiently alleged that she suffered from a disability or that Defendant perceived her as having a disability, Defendant cannot have harassed Plaintiff because of her disability/perceived disability. Plaintiff’s failure to allege sufficient facts to demonstrate a disability/perceived disability renders her harassment claim insufficiently pled.

Therefore, the demurrer to the third cause of action for harassment based upon disability/perceived disability under FEHA is sustained. Plaintiff may leave to amend the complaint to sufficiently allege disability/perceived disability.

Fourth Cause of Action for Retaliation under FEHA

FEHA makes it unlawful for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” Cal. Gov. Code § 12940(h). To allege a prima facie claim for retaliation, a plaintiff must allege: (1) that she engaged in a protected activity; (2) she was subjected to an adverse employment action; and (3) that there was a causal link between the protected activity and the adverse employment action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.

“Although an employee need not formally file a charge in order to qualify as being engaged in protected opposing activity, such activity must oppose activity the employee reasonably believes constitutes unlawful discrimination, and complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.” (Yanowitz, 36 Cal.4th at 1053.) “The relevant question ... is not whether a formal accusation of discrimination is made but whether the employee's communications to the employer sufficiently convey the employee's reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.” (Ibid.)

Here, Plaintiff alleges that “Plaintiff rejected illegal activity, i.e., discrimination and harassment. When plaintiff rejected the discrimination and harassment, she was engaged in a protected activity.” (Compl., ¶ 58.) Plaintiff alleges that “in the weeks leading up to her surgery, defendant[] made a number of inappropriate comments regarding plaintiff’s medical condition,” that “[f]ollowing her surgery, she was placed on a medical leave of absence,” and that “one day after returning to work from her medical leave, plaintiff was informed that her employment with defendant[] was being terminated.” (Ibid. ¶¶ 5-7.)

Plaintiff insufficiently pled facts to “demonstrate some degree of opposition to or protest of the employer’s conduct.” (Rope v. AutoChlor System of Wash. Inc. (2013) 220 Cal.App.4th 635, 652.) Plaintiff’s allegations do not support the contention that Plaintiff demonstrated any opposition or protest to Defendant’s purported misconduct. Requesting medical leave to undergo surgery does not “sufficiently convey concerns that [Defendant has] acted in an unlawful manner” because it does not constitute any opposition to Defendant’s actions. (Yanowitz, 36 Cal.4th at 1053.) Further, Plaintiff’s allegation that “Plaintiff rejected the discrimination and harassment” is a conclusory statement, as it does not explain what Plaintiff did to reject the discrimination and harassment.

Additionally undergoing medical procedures unrelated to a specified medical condition is not engaging in protected activity. In Paleny v. Fireplace Prod. U.S., Inc. (2024) 103 Cal.App.5th 199, 212, the court held that the plaintiff did not engage in protected activity because “she has never identified, nor provided any evidence of, a medical condition that gave rise to her need to undergo [the] medical procedure at issue.” The court stated that the plaintiff “undergoing an elective medical procedure but, without an underlying medical condition related to pregnancy, . . . does not have a protected characteristic under the FEHA.” While, unlike Paleny, Plaintiff alleged that she “continued to remind defendant[] of her upcoming surgery and constantly kept defendant[] updated on her deteriorating health condition,” Plaintiff has not sufficiently alleged that her health condition is considered a disability/perceived disability under FEHA. Thus, the related claim for retaliation cannot remain on that basis.

Therefore, the demurrer to the third cause of action for harassment based upon disability/perceived disability under FEHA is sustained.

Fifth Cause of Action for Failure to Take All Reasonable Steps to Prevent Discrimination, Harassment and Retaliation under FEHA

It is an unlawful employment practice “[f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Cal. Gov. Code, § 12940(k).) If “a plaintiff cannot establish a claim for discrimination, the employer as a matter of law cannot be held responsible for failing to prevent same[.]” (Featherstone, 10 Cal.App.5th at 1166.)

Here, Plaintiff’s claim for Failure to Prevent is derivative of her disability discrimination claim and is also based on whether she had a disability/perceived disability. As described above, Plaintiff has not sufficiently alleged that she had a disability or was perceived as having a disability, and thus could not allege a claim for a disability discrimination. Because she “cannot establish her underlying cause of action for disability discrimination, she cannot maintain a derivative claim for violation of section 12940, subdivision (k).” (Featherstone, 10 Cal.App.5th at 1166.)

Therefore, the demurrer to the fifth cause of action for harassment based upon disability/perceived disability under FEHA is sustained. Plaintiff can have leave to amend the complaint to sufficiently allege disability/perceived disability.

Seventh Cause of Action for Intentional Infliction of Emotional Distress

The elements of 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.)   

A.    Extreme and Outrageous Conduct

“Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.)  “‘[M]ere insulting language, without more, ordinarily would not constitute extreme outrage’ unless it is combined with ‘aggravated circumstances.’” (Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 147 (quoting Alcorn v. Anbro Eng’g, Inc. (1970) 2 Cal.3d 493, 499).)“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”¿(Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)¿While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage.¿ (Ibid. at 494.)¿¿

Here, Plaintiff alleges that “in the weeks leading up to her surgery, defendant[] made a number of inappropriate comments regarding plaintiff’s medical condition. For example . . . Diane Leonard (“Leonard”), the owner of defendant[], approached plaintiff and questioned why she [plaintiff] needed two weeks off for her surgery, [and that] she ‘could not understand why plaintiff needed two weeks to recover.’ In addition, on several occasions, plaintiff was told that her surgery was ‘an inconvenience’ to defendant[].” (Compl., ¶ 5.)

In Cornell, supra, 18 Cal.App.5th at 919, 945-46, the court held that comments about the plaintiff’s weight, laughing in a mocking tone about her ability to fit in a uniform, and asking if she had considered weight-loss surgery were inappropriate but not severe enough. In Hughes v. Pair (2009) 46 Cal. 4th 1035, 1051, the court held that defendant’s inappropriate comments of a sexual nature “fall too short,” of constituting extreme and outrageous conduct. In Ankeny v. Lockheed Missiles & Space Co. (1978) 88 Cal.App.3d 531, 536–37, demurrer was proper where the plaintiff alleged that his employer prevented him from becoming a union steward, continuously transferred him from job to job, wrongfully denied him promotions, personally insulted him, and required him to do inappropriate tasks.

Here, Defendant’s alleged comment that Plaintiff’s surgery is “an inconvenience” and question “why [Plaintiff] needed two weeks off for her surgery,” were insensitive, even churlish. But they are not so outrageous as to “exceed all bounds of that usually tolerated in a civilized community.” At bottom, the Complaint alleges that shortly after Plaintiff’s return from medical leave, Defendant callously fired her.  That is insufficient to plead intentional infliction of emotional distress. (Buscemi v. McDonnell Douglas Corporation (9^th Cir. 1984) 736 F.2d 1348, 1352 [allegedly pretextual firing and “emotional distress [that] resulted from the callous and insensitive manner of …termination” do not support claim under California law for IIED].)  Plaintiff has not sufficiently alleged Defendant’s extreme and outrageous conduct.

B.    Suffers Severe Emotional Distress

“With respect to the requirement that the plaintiff show severe emotional distress, [the Supreme Court of California] has set a high bar.” (Hughes, supra, 46 Cal. 4th at 1051.) Severe 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.” (Ibid. (quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1004).)

Plaintiff alleges that Defendant’s actions “caused plaintiff severe emotional distress, anxiety, sleeplessness, and were outrageous and beyond the scope of his [sic] employment” and that “plaintiff has become mentally upset, distressed and aggravated.” (Compl., ¶¶ 82-83.)

In Hughes, supra, 46 Cal.4th at 1051, “plaintiff’s assertions that she has suffered discomfort, worry, anxiety, upset stomach, concern, and agitation” because of defendant’s comments “do not comprise emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” In Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377, the court held that conduct that “caused [plaintiff] to lose sleep, have stomach upset and generalized anxiety” did not reflect emotional distress that was “severe, lasting, or enduring.” Similarly here, Plaintiff has not alleged allegations beyond general statements of her having experienced “severe emotional distress, anxiety, sleeplessness,” with her becoming “mentally upset, distressed and aggravated.” (Compl., ¶¶ 82-83.) Plaintiff has not alleged facts to support the existence of the symptoms she has alleged. Thus, Plaintiff has not sufficiently alleged that she has suffered severe emotional distress.

The demurrer to the seventh cause of action for intentional infliction of emotional distress FEHA is sustained.

Eighth and Ninth Causes of Action for Labor Code Violations

Cal. Labor Code § 201 provides that “if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” Cal. Labor Code § 203 requires employers to pay a waiting time penalty when they fail to give final paychecks to terminated employees. Cal. Labor Code § 227.3 provides that “whenever . . . an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages . . . .”

Here, Plaintiff alleges that “[d]uring her employment, [she] had unused vested vacation time [and] [s]he was not paid for this unused vested vacation time at the time of her termination in direct violation of California Labor Code Sections 227.3.” Plaintiff also alleges that “she was not immediately paid all wages/unused vested vacation time owed her.” Plaintiff’s allegations that Defendant has not since paid Plaintiff’s wages and unused vacation time is sufficient to plead causes of action for violating the Labor Code. Plaintiff has alleged that she has unused vacation time and leftover wages that has not been paid to her, which taken as true, would sufficiently allege that Defendant is in violation of the Labor Code.

Therefore, the demurrer to the eighth and ninth causes of action for Labor Code Violations is overruled.

Conclusion

            The Demurrer is sustained as to the first, second, third, fourth, fifth, and seventh causes of action. The Demurrer is overruled as to the eighth and ninth causes of action.  Plaintiff shall have leave to amend.  She shall file and serve her amended Complaint on or before October 23, 2024.