Judge Bruce G. Iwasaki

Department 58

Hearing Date: April 9, 2025

Case Name: Heard v. Regents of the University of California

Case No.: 24STCV33988

Matter: Demurrer with Motion to Strike

Moving Party: Defendants The Regents of the University of California and Varun Badheka

Responding Party: Plaintiff Ashley Nicole Heard

Tentative Ruling: The Demurrer to the Complaint is sustained. The Motion to Strike is granted.

This is a dispute regarding employment practices. On December 23, 2024, Plaintiff Ashley Nicole Heard (Plaintiff) filed the instant Complaint against the Defendants Regents of the University of California (Regents) and Plaintiff’s supervisor, Varun Badheka (Badheka) (collectively, Defendants). Plaintiff alleges Defendants discriminated, harassed, and retaliated against her on the basis of her disability in violation of FEHA.

On February 18, 2025, Defendants demurred to the second, sixth, seventh, eighth, and twelfth causes of action. Defendants also moved to strike the request for punitive damages in the Complaint. Plaintiff opposed the demurrer and motion to strike.

The demurrer is sustained. The motion to strike is granted.

Legal Standard for Demurrers

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.) In applying these standards, 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.)

Analysis

Second Cause of Action for Hostile Work Environment/Harassment:

Defendants demur to this cause of action on the grounds that Plaintiff has failed to state a claim.

To prevail on a harassment claim under FEHA, a plaintiff must show that he or she was subjected to “offensive comments or other abusive conduct” that is (1) based on a “protected characteristic” and (2) “sufficiently severe or pervasive as to alter the conditions of [his] employment.” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 736.) “Factors to consider in this context include the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee's work performance.” (Id.)

To be a hostile work environment, it “must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 787; ANA Maria Soares v. California (E.D. Cal., June 28, 2016, No. CV21600128WBSEFB) 2016 WL 3519411, at *2.)

The opposition argues that Plaintiff has properly pled harassment based on a performance review that indicated her time off request records “were concerning.” (Compl., ¶ 12(b).) The Complaint further alleges that when Defendant discovered Plaintiff was suffering from a disability, Defendant Badheka tried getting more information from Plaintiff and, despite her resistance, Plaintiff felt compelled to inform Defendant Badheka about her current medical condition. (Compl., ¶ 13(b).) Then, on July 26, 2022, Defendant Badheka told Plaintiff, “The data suggests that your work-off time requests are way above the average work-off requests.” (Compl., ¶ 13(e).) Finally, Plaintiff alleges that she submitted multiple complaints about the workplace, related to impermissible questions about her disability and why she was not chosen for a promotion. (Compl., ¶¶ 16-17.)

These allegations are neither sufficiently pervasive nor sufficiently severe to support the existence of a hostile work environment.

Further, Plaintiff impermissibly relies on the exercise of official employment actions, such as comments on attendance records, to support the harassment claim.

“[D]isability harassment is distinguishable from discrimination. [Citation.] ‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.’ [Citation.] ‘[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.’ [Citation.] Put differently, ‘[h]arassment claims are based on a type of conduct that is avoidable and unnecessary to job performance.’ ” (Doe, supra, 43 Cal.App.5th at p. 736.) But “commonly necessary personnel management actions such as ... job or project assignments, ... performance evaluations, ... and the like, do not come within the meaning of harassment.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.) Such “actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment.” (Id. at p. 65.)

The demurrer to the second cause of action is sustained.

Sixth Cause of Action for Retaliation for Requesting/Requiring an Accommodation:

Defendant demurs to the sixth cause of action on the grounds that it is entirely duplicative of the third cause of action for retaliation in violation of FEHA.

A demurrer is appropriate where duplicative claims are alleged. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 [finding demurrer was properly sustained without leave to amend as to cause of action that contained allegations of other causes and “thus add[ed] nothing to the complaint by way of fact or theory of recovery”]; see also Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 [explaining that demurrer should have been sustained as to duplicative causes of action].)

The third cause of action alleges “Retaliation for the Exercise of Rights Guaranteed Under the FEHA, e.g., Participating in Protected Activities, and/or Opposing Defendants’ Failure to Provide Such Rights.) (Compl., 19:12-17.) The sixth cause of action alleges “retaliation for requesting/requiring an accommodation” in violation of FEHA. (Compl., 23:1-4.)

Plaintiff argues in opposition that “[t]he sixth cause of action is based on California Government Code section 12940(a), (h), (i), (l), and (m), whereas the third cause of action is based on California Government Code section 12900 (See Complaint, pg. 23. versus pg. 12-13.).” (Opp., 9:20-23.) However, the Opposition identifies no separate elements that must be alleged to prevail under these two causes of action. Instead, under both causes of action, Plaintiff must plead and prove retaliation for engaging in protected activity. As the demurrer notes, “no authority holds that separate protected activities give rise to separate and distinct causes of action for retaliation under the FEHA.” (Dem., 13:10-13.)

The demurrer is well taken. The alleged underlying wrong in the third and sixth causes of action is the same. As such, the sixth cause of action is duplicative. The demurrer to this cause of action is sustained.

Seventh Cause of Action for CFRA Leave Interference and Eighth Cause of Action for CFRA Leave Retaliation:

Defendants demur to both CFRA causes of action on the grounds that they fail to state a claim.

The CFRA is a portion of FEHA that provides “protections to employees needing family leave or medical leave. [Citations.]” (Gibbs v. American Airlines, Inc. (1999) 74 Cal.App.4th 1

6; Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 606.) The CFRA entitles eligible employees to take up to 12 weeks of unpaid medical leave during a 12–month period for certain personal or family medical conditions, including care for their children, parents, or spouses or to recover from their own serious health condition. (Gov. Code, § 12945.2; Nelson, supra, 74 Cal.App.4th at p. 607.)

CFRA's regulations provide that, for an employee to be entitled to a medical leave for her own serious health condition, the condition must cause her to be unable to work at all or unable to perform one or more of the essential functions of her position. (Cal. Code Regs., tit. 2, § 7297, subd. (a)(2)(C).) An employee who takes CFRA leave is guaranteed that taking leave will not result in a loss of job security or in other adverse employment actions. (Gov. Code, § 12945.2, subd. (l); Cal. Code Regs, tit. 2, § 7297.7, subd. (a).)

First, Defendants argue that Plaintiff has not included factual allegations, or even conclusory legal statements, that she was eligible to take CFRA leave. (Dem., 14:11-13.)

In opposition Plaintiff states that she “pled Defendants employed [Plaintiff] as defined under the Fair Employment and Housing Act, making CFRA leave under the FEHA applicable to her.” (Opp., 10:16-18.) Plaintiff argues that this allegation is sufficient. The Court disagrees.

Under Dudley v. Department of Transp. (2001) 90 Cal.App.4th 255, Plaintiff has not alleged the necessary factual allegations to demonstrate she “was eligible to take CFRA leave when she took the leave that resulted in the adverse employment action.” (Id. at 262.) On this ground, the demurrer to both causes of action are sustained.

With respect to the seventh cause of action, Defendants also argue that there is no actionable interference where when the employee was provided with the full statutory 12 weeks of leave but then is unable or otherwise fails to return to work after the expiration of the 12-week CRFA leave period. (Dem., 14:14-17.)

“While an employer’s duties under the FEHA include extending reasonable accommodations to an employee if reasonable accommodations will enable the employee to perform his or her essential duties (Gov.Code, § 12940, subds.(a)(1), (2)), there is no similar provision in the CFRA requiring an employer to provide reasonable accommodation to an employee returning from CFRA leave.” (Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, 517.)

Here, Plaintiff was provided not just the 12 weeks of leave to which she was entitled under the CFRA, but her employer also approved her taking at least an additional 15 months of leave after being placed on leave on January 17, 2023. (Compl., ¶¶ 25, 30(b).) The opposition does not address this argument. The demurer to the seventh cause of action is also sustained on this additional ground.

Twelfth Cause of Action for Intentional Infliction of Emotional Distress:

Finally, Defendants demur to the twelfth cause of action on the grounds that Plaintiff has failed to allege extreme and outrageous conduct.

The elements of the tort of intentional infliction of emotional distress are: “ ‘ “ ‘(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's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct . . ..’ ” ' ” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)

The demurrer is well taken; Plaintiff’s allegations do not demonstrate conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community.”

“ ‘ “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” ’ ” (Potter, supra, 6 Cal.4th at p. 1001.) “ ‘Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” [Citations.]’ ” (Helgeson v. American International Group, Inc. (S.D.Cal.1999) 44 F.Supp.2d 1091, 1095; KOVR TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.) “[L]iability ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” but only to conduct so extreme and outrageous “as to go beyond all possible bonds of decency....” ’ [Citation.]” (Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537.)

The Complaint alleges that Defendant Badheka asked her to turn on her video camera during Zoom meetings and made a comment in her performance review that she had a “challenging year health wise.” (Compl., ¶¶ 12, 18.) As the demurrer correctly argues, the Complaint does not allege that Defendant Badheka or anyone else engaged in actions outside of typical personnel and management activities that would meet the high threshold of outrageous conduct. That is, the statements made to Plaintiff were – at worst –ill advised, but not outrageous. Further, in the employment context, such routine decisions as hiring and firing do not constitute extreme and outrageous conduct as a matter of law. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64; Schneider v. TRW, Inc. (9th Cir.1991) 938 F.2d 986, 992; Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883–884.)

In Janken, employees of a large aircraft company sued their supervisors for age discrimination and for intentional infliction of emotional distress. Plaintiffs alleged these supervisors made personnel management decisions pursuant to the company's policy of discriminating against employees over the age of 40 by terminating them or forcing them to resign without good cause. The Janken court affirmed trial court rulings sustaining demurrers to both causes of action. With respect to the emotional distress claim, the Janken court found that plaintiffs failed to plead facts to satisfy the outrageous conduct requirement. The court reasoned: “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, supra, 46 Cal.App.4th at p. 64.)

The demurrer to the twelfth cause of action is sustained.

Legal Standard for Motions to Strike

“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.) “Immaterial” or “irrelevant” matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subds. (b)(1)-(3).)

Discussion

Defendants also move to strike the request for punitive damages in the Complaint.

With respect to allegations of punitive damages, they are recoverable where the defendant has been guilty of oppression, fraud, or malice, express or implied. (Civ. Code, § 3294.) “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation our outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-895 [quoting Prosser, Law of Torts (4th ed. 1971) § 2, at pp. 9-10] [italics omitted].) However, specific intent to injure is not necessary for a showing of malice—it is sufficient that the defendant’s conduct was so “wanton or so reckless as to evince malice or conscious disregard of others’ rights.” (McConnell v. Quinn (1925) 71 Cal. App. 671, 682.)

A request for punitive damages that is not supported with specific allegations of oppression, fraud, or malice is subject to a motion to strike. Conclusory allegations that defendants acted “willfully,” “maliciously,” or with “oppression, fraud, or malice” are not, without more, sufficient to give rise to a claim for punitive damages, but such language is permissible where the complaint contains sufficient factual support for the conclusions. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.)

For the reasons discussed on the demurrer to the Complaint, the Complaint fails to allege facts showing malice, oppression or fraud. Thus, the Complaint fails to support the request for punitive damages. The motion to strike is granted.

Conclusion

The demurrer is sustained. The motion to strike is granted. Plaintiff shall have leave to amend. Plaintiff shall file and serve an amended pleading on or before May 9, 2025.