Judge: Christopher K. Lui, Case: 22STCV11860, Date: 2023-02-09 Tentative Ruling
Case Number: 22STCV11860 Hearing Date: February 9, 2023 Dept: 76
Pursuant to California Rule of Court
3.1308(a)(1), the Court does not desire oral argument on the demurrer and motion addressed
herein. As required by Rule 3.1308(a)(2), any party seeking oral argument
must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to
appear and argue. Notice to Department 76 may be sent by email to
smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of
intention to appear is not given and the parties do not appear, the Court will
adopt the tentative ruling as the final ruling.
Plaintiff alleges that she was discriminated against and terminated due to her need to take leave to care for her parents and ultimately for her own health issues.
Defendant Priscilla Mora demurs to the First Amended Complaint and moves to strike portions thereof.
TENTATIVE RULING
Defendant Priscilla Mora’s demurrer to the First Amended Complaint is SUSTAINED with leave to amend as to the sixth cause of action.
The motion to strike is MOOT “For
punitive and exemplary damages against Defendant Mora[.]” (1AC, ¶ 10, page 24,
line 16.)
The motion to strike is GRANTED with leave to amend as to “For punitive and exemplary damages against Defendant Mora[.]” (1AC, ¶ 10, page 24, line 16.).
Plaintiff is given 30 days’ leave to amend.
ANALYSIS
Demurrer
Meet
and Confer
The Declaration of Sarah E. Gerst
reflects that Defendant’s counsel satisfied the meet and confer requirement set
forth in CCP § 430.41.
Discussion
Defendant Priscilla Mora demurs to the First Amended Complaint as follows:
1. Sixth Cause of Action (Intentional Infliction of Emotional Distress).
“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. …” Conduct to be outrageous
must be so extreme as to exceed all bounds of that usually tolerated in a
civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that
the conduct be intentional and outrageous.
It must be conduct directed at the plaintiff, or occur in the presence of a
plaintiff of whom the defendant is aware.” (Ibid.)
(Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-75.)
Defendant argues that Plaintiff fails to plead sufficient facts constituting outrageous and extreme conduct directed against Plaintiff by Defendant Mora.
In general, language causing hurt feelings does not constitute extreme and outrageous conduct.
“‘Liabilities of course cannot be
extended to every trivial indignity. … [¶] Accordingly, it is generally held
that there can be no recovery for mere profanity, obscenity, or abuse, without
circumstances of aggravation, or for insults, indignities or threats which are considered
to amount to nothing more than mere annoyances. The plaintiff cannot recover
merely because of hurt feelings.’” (Yurick v. Superior Court (1989) 209 Cal.App.3d
1116, 1128 [257 Cal. Rptr. 665].)
(Plotnik v. Meihaus (2012)
208 Cal.App.4th 1590, 1610.)
However:
Behavior may be considered outrageous if a
defendant (1) abuses a relation or position which gives him power to damage the
plaintiff's interest; (2) knows the
plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the
recognition that the acts are likely to result in illness through mental
distress. (Citations omitted.)
(Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155
[bold emphasis added].)
Thus,
Plaintiff’s allegation that Defendant Mora made the comments pled in ¶¶ 10-11
of the 1AC, which presumably occurred between February and April 2019, present
an issue of fact for the jury to determine whether they were made under circumstances
where Defendant Mora, as Plaintiff’s supervisor, knew Plaintiff was susceptible
to injuries through mental distress, or whether Mora acted intentionally or
unreasonably with the recognition that her comments criticizing Plaintiff’s
time off would likely result in mental distress, because Plaintiff’s mother had
cancer. Thereafter, in May 2019, Defendant Mora began making such comments
after Plaintiff’s father became gravely ill, and Plaintiff had to take leave to
care for him. (1AC, ¶¶ 12, 13[1],
15, 16.) After Plaintiff’s father passed away, Plaintiff needed to take time
off to care for her mother, who was undergoing surgery, and Defendant Mora continued
to make negative and sarcastic comments regarding Plaintiff’s need to take time
off. (¶17-19.)
Certainly,
a jury could find that a supervisor would know that an employee having to take
care of her parents with serious illnesses would suffer emotional distress by being
subjected to insensitive comments relating to the employee’s need for leave. Thus,
whether or not Defendant Mora’s comments to Plaintiff constitute extreme and outrageous
conduct given her supervisory position over Plaintiff presents an issue of fact
outside the scope of this demurrer.
Defendant
also argues that Plaintiff fails to plead that she suffered “severe” emotional
distress, or that it was caused by Mora’s actions.
This argument
has merit. Plaintiff only alleges that she was “offended” by Defendant Mora’s
comments. (1AC, ¶¶ 10, 15.) However, being “offended” does not rise to the
level of severe emotional distress required for this tort.
With respect to the requirement that a
plaintiff show severe emotional distress, this court has set a high bar.
“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.” ’ ” (Potter
v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 1004.)
(Hughes v. Pair (2009) 46
Cal.4th 1035, 1051 [bold emphasis added].)
The conclusory allegations at ¶¶ 111-113 that Plaintiff suffered severe emotional distress need not be accepted as true on demurrer, especially where Plaintiff admitted that she was merely offended by Defendant Mora’s comments. “Although a court must on demurrer accept as true properly pleaded facts, a demurrer does not admit contentions or conclusions of law or fact.” (Freeman v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 185.)
The to the sixth cause of action is SUSTAINED with leave to amend on this ground.
Defendant further argues that the IIED cause of action is barred by the workers’ compensation exclusivity rule.
The workers’ compensation system is not the exclusive remedy for emotional distress (“IIED”) based on conduct prohibited by FEHA, which conduct satisfies the elements of an IIED claim. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 96-102.) The California Family Rights Act (“CFRA”) is a part of the FEHA. (Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 609-10.)
Here, Plaintiff alleges conduct that violates the prohibition in FEHA against disability discrimination and retaliation and violation of the Family Rights Act. In that the violation of California Family Rights Act cause of action remains viable, Defendant Mora’s conduct which allegedly violated the Family Rights Act (1AC, ¶ 68, and also forms the basis of the IIED claim, is not barred by the workers’ compensation exclusivity provision.
Defendant also refers to certain allegations being time-barred, but that is properly the subject of a motion to strike, not a demurrer, which cannot dispose of only a portion of a cause of action. To the extent Defendant argues that acts occurring outside the statute of limitations period cannot be considered on demurrer, this argument is not persuasive.
A cause of action for intentional
infliction of emotional distress is governed by the two-year statute of
limitations set forth in CCP § 335.1. (Pugliese v. Superior Court (2007)
146 Cal.App.4th 1444, 1450.) Here, the original Complaint was filed on April 7,
2022. Ordinarily, claims accruing before April 7, 2019 would be time-barred. However,
the continuing violation doctrine may apply to acts occurring outside of that
period if they were related to acts within the limitations period; it is a
question of fact as to whether the acts outside of the limitations period had
reached permanency. (Dominguez v. Washington Mutual Bank (2008) 168
Cal.App.4th 714, 724.
As we read Birschtein, Richards, Fielder, and Draper,
they do not require that the conduct occurring within the limitations period
have occurred outside the limitations period as well. Instead, they focus on
whether conduct within the limitations period may be viewed as part of a
continuing violation because there is evidence
that the former was related to the latter. That is the case here and
summary judgment on this ground was therefore improper.
Respondents also contend that no continuing violation
occurred because Gutierrez's conduct was infrequent and trivial, and because it
had become permanent when he stopped making offensive comments in May 2002.
Dominguez testified at her deposition that Gutierrez was “constantly” blocking
her access to her workstation with heavy boxes, that he jammed the wheels of
her pallet jack several times from May through August of 2002 as a “campaign to
make [her] life impossible at work,” and interfered with her work in other ways
during that period. Dominguez complained to Ferrel once about this conduct, and
made a dozen such complaints to Rough. Based on this evidence, a trier of fact could find that the
harassing conduct was reasonably frequent.
As for “permanency,” it is achieved when the harassing conduct stops, when the employee resigns, or when
the employee is on notice that further efforts to end the harassment will be
futile. (Richards, supra, 26 Cal.4th at p. 823.) Respondents'
permanency argument is based solely on the notion that Gutierrez's conduct
achieved that status when the offensive comments stopped in May 2002, but
ignores the conduct that occurred after that time. Accordingly, there were
triable issues of fact on that issue as well.
(Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 724 [bold emphasis added].)
Here, Plaintiff first requested intermittent medical leave in February 2019—only approximately 2 months outside of the statute of limitations. It is for the trier of fact to determine whether Defendant Mora’s alleged conduct which occurred between February 2019 and late April 2019 had reached a level of permanence. As such, Mora’s conduct occurring in February through April 2019 cannot be ignored for purposes of this demurrer.
As noted above, the demurrer to the sixth cause of action is SUSTAINED with leave to amend for failure to factually plead severe emotional distress.
Motion To Strike
Exhibit A attached to the
Declaration of Sarah E. Gerst in support of the demurrer reflects that Defendant’s
counsel satisfied the meet and confer requirement set forth in CCP § 435.5.
Discussion
Defendant Priscilla Mora moves to strike the following portions of the First Amended Complaint:
¿ “thereby justifying the award of punitive and exemplary damages[.]” (1AC, ¶ 117, page 23, line 20.)
The motion to strike is MOOT as to this request, as it is within the sixth cause of action, as to which the demurrer has been sustained with leave to amend.
¿ “For punitive and exemplary damages against Defendant Mora[.]” (1AC, ¶ 10, page 24, line 16.)
The motion to strike is GRANTED
with leave to amend. The sixth cause of action is the only cause of action
asserted against moving Defendant Mora. As that cause of action is currently
not viable, there is no cause of action to support punitive damages against Mora.
Although Defendant moves to strike “any and all allegations
against Mora seeking punitive or exemplary damages” (Notice of Motion, Page 4:7),
the Court will only address those allegations specified above. California Rules
of Court, Rule 3.1322(a) provides:
A notice of motion to strike a
portion of a pleading must quote in full the portions sought to be stricken
except where the motion is to strike an entire paragraph, cause of action, count,
or defense. Specifications in a notice must be numbered consecutively.
Plaintiff is given 30 days’ leave
to amend.