Judge: Christian R. Gullon, Case: 24PSCV00779, Date: 2024-08-21 Tentative Ruling

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Case Number: 24PSCV00779    Hearing Date: August 21, 2024    Dept: O

Tentative Ruling

Defendants’ Demurrer to Complaint is SUSTAINED in part with leave to amend (i.e., 1^st-4^th COAs and OVERRULED in part (i.e., 6^th COA).

Background

This is an employment case. Plaintiff YUHUA CHEN alleges the following against Defendants SISTINE MANOR INC. DBA Springville, a corporation (“Sistine Manor”); Xiao Hong, an individual; Linda L. Fan, an individual; and Sabrina Y Liu, an individual (collectively, “Defendants”): Plaintiff is a 65-year-old nurse with 20 years of experience in the elder adults caring business. (Complaint ¶14.) In August 2023, she started working as a nurse for Sistine Manor. Though she was hired as a nurse, her work tasks extended to tasks like cleaning and organizing (¶17); her workload kept increasing. (¶19.) Also, she would have to wait over 5 hours to take a break (¶20) and she was paid $15 instead of $16 (¶26). Additionally, she complained to her employer about the elder residents’ inadequate nutrition. (¶28.) In September 2023, she quit. (¶29.)

On March 13, 2024, Plaintiff filed suit against Defendants asserting the following causes of action (COAs):

On July 9, 2024, defendants filed the instant demurrer.

On August 6, 2024, Plaintiff filed her opposition.

On August 13, 2024, Defendants filed their reply.

Legal Standard

A demurrer, in pertinent part, may be asserted when the pleading does not state facts sufficient to constitute a cause of action or is uncertain, vague, and/or ambiguous. (See Demurrer, p. 1, citing Code of Civ. Proc., § 430.10 subds. (e), (f), respectively.) Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code of Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Discussion

Defendants demur to 1^st through 3^rd COAs on the grounds that the complaint is deficient in facts; demur to the 4^th COA on the grounds that there is no private right of action; and 6^th COA on the grounds that it is barred by the new right-excusive remedy doctrine, or, in the alternative, the complaint fails to attach a contract or otherwise allege purported promises or other breaches by Defendants. Before engaging in the merits, the court notes that Plaintiff’s opposition is largely a recitation of law without an analysis and otherwise fails to squarely address Defendants’ points raised in demurrer. (See e.g., Fox v. Erickson (1950) 99 Cal.App.2d 740, 741-742 [duty of counsel, not the court, to providing an analysis].) Therefore, the ruling will primarily reference the moving papers and not the opposition.

1.      Hostile Work Environment and Harassment (Government Code section 12940(k))

The court in Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869 provides the following summary of harassment.

Government Code section 12940, subdivision (j), defines “unlawful employment practice” to include harassment in the workplace based on national origin, sex, and age. “Under the statute ‘harassment’ in the workplace can take the form of ‘discriminatory intimidation, ridicule and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’ ” ’ [Citations.] Moreover, harassing conduct takes place ‘outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.’ [internal citation omitted.] ‘Thus, harassment 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.’ [internal citation omitted]. Harassment is distinguishable from discrimination under the FEHA. [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…. Harassment … consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management…. “Whether the conduct of the alleged harassers was sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances. ‘ “These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” ’ [Citations.] ‘ “Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing ... and conduct [that] a reasonable person in the plaintiff's position would find severely hostile or abusive.” ’ [Citations.] (Id. at pp. 869-870, emphasis added.)

Here, the complaint alleges that Defendants “harassed Plaintiff by intentionally engaging in, or having threatened, acts of intimidation and retaliation directed at Plaintiff.” (Complaint ¶33.) However, though the complaint identifies her age as the protected character,[1] it fails to identify any facts demonstrating that she was subjected to any severe or pervasive conduct. (Demurrer p. 3.) Instead, she merely claims that “she was overloaded with more additional work.” (Complaint ¶¶ 28, 29.) But there are no specific allegations to ascertain how such additional work was so severe and pervasive. In fact, as noted by Defendants, even if she was overworked, Plaintiff herself alleges that she was responsible for the additional tasks of training new employees because she, effectively, had more experience. (¶19.) Thus, the complaint provides an adequate reason why Plaintiff was overloaded with work.[2]

Therefore, the court SUSTAINS the demurrer as to 1^st COA with leave to amend.

2.     Retaliation

A prima facie case for retaliation under FEHA requires that a plaintiff show: “(1) she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘“‘drops out of the picture,’” and the burden shifts back to the employee to prove intentional retaliation.'” (Jones v. Dep’t of Corrections and Rehabilitation (2007) 152 Cal.App.4th 1367, 1380, quoting Yanowitz v. L’oreal USA, Inc. (2005) 37 Cal.4th 1028, 1042.)

Here, Plaintiff alleges that Defendants “retaliated against Plaintiff by adversely affecting Plaintiffs employment—overloading her with work after she complained about and/or opposed harassment, discrimination and hostility in the workplace, and internally commented on the inappropriateness of the elderly residents' mealtimes and nutrition procedures.” (¶48.) However, as explained above, Plaintiff fails to show that overloaded with additional work constitutes an adverse employment action. (Demurrer p. 5:7-9.)

Therefore, the court SUSTAINS the demurrer as to the 2^nd COA with leave to amend.

3.     Wrongful Constructive Discharge

“In order to amount to a constructive discharge, adverse working conditions must be unusually aggravated' or amount to a ' continuous pattern' before the situation will be deemed intolerable. In general, a single, trivial, or isolated acts of [misconduct] are insufficient' to support a constructive discharge claim.” (Demurrer p. 6, citing Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1247.)

Here, similar to Plaintiff’s first cause of action, the Complaint fails to allege any facts to show that Defendant created and/or permitted working conditions that were so intolerable that Plaintiff was compelled to resign.

Therefore, the court SUSTAINS the demurrer as to the 3^rd COA with leave to amend.

4.     Labor Code Section 226.8

Section 226.8 cannot be enforced through a direct private action. (Demurrer p. 6, citing Noe v. Superior Court (2015) 237 Cal.App.4th 316, 340; Kim v. Reins International California, Inc. (2020)9Cal.5th 73, 89; Provost v. YourMechanic, Inc. (2020) 55 Cal.App.5th 982, 996.)

Plaintiff argues that she is not seeking to enforce the statute directly but using it to support “her other claims for damages and penalties.” (Opp. p. 7:19-23). It is unclear how a party can be entitled to remedies of a statute without asserting the statute.

Therefore, the court SUSTAINS the demurrer as to the 4^th COA with leave to amend.

5.     Breach of Contract

Plaintiff alleges that Defendants breached a contract between the parties when Defendants “failed and refused to pay the full amount of Plaintiffs salary as agreed.” (Complaint ¶79.)

Defendants rely upon the so-called “new right-exclusive remedy” doctrine as discussed in Brewer v. Premier Golf Properties, Inc. (2008) 168 Cal.App.4th 1243. In Brewer, an employee brought action against employer for age discrimination and Labor Code violations.  The employer’s appeal raised “numerous challenges to the judgment, including that punitive damages are not available for the pleaded violations of the Labor Code.” (Id. at p. 1247.) In concluding that the Labor Code violations for which the employer was found liable do not support punitive damages, the court relied upon the following principle:

[D]octrine provides that “[w]here a statute creates new rights and obligations not previously existing in the common law, the express statutory remedy is deemed to be the exclusive remedy available for statutory violations, unless it is inadequate….We are convinced, both by application of the “new right-exclusive remedy” doctrine and under more general principles that bar punitive damages awards absent breach of an obligation not arising from contract, punitive damages are not recoverable when liability is premised solely on the employer's violation of the Labor Code statutes that regulate meal and rest breaks, pay stubs, and minimum wage laws. (Id. at p. 1252, emphasis added.)

However, unlike Brewer wherein the employee did not allege a breach of contract claim (Id. at p. 1246), here, Plaintiff has pled breach of contract. Thus, Brewer is inapplicable to these facts.

To the extent that Defendants argue that the claim is uncertain or insufficiently as it no written contract is provided, that is not necessary. “The correct rule is that ‘a plaintiff may plead the legal effect of the contract rather than its precise language’…. [A] plaintiff’s failure to either attach or to set out verbatim the terms of the contract [is] not fatal [a] breach of contract cause of action…” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.) Accordingly, as Plaintiff has alleged a (i) employment contract; (ii) plaintiff's performance (i.e., working); (3) defendant's breach (i.e., not paying agreed upon salary); and (4) damages (i.e., withheld salary), then the COA is sufficiently pled.

Therefore, the court OVERRULES the demurrer as to the 6^th COA.

Conclusion

Based on the foregoing, the demurrer is SUSTAINED in part with leave to amend (i.e., 1^st-4^th COAs) and OVERRULED in part (i.e., 6^th COA).