Judge: Curtis A. Kin, Case: 21STCV26907, Date: 2022-10-20 Tentative Ruling

Case Number: 21STCV26907    Hearing Date: October 20, 2022    Dept: 72

DEMURRER

Date:               10/20/22 (9:30 AM)

Case:               Ernest Melendrez v. Friends Outside in L.A. County., et al. (21STCV26907)

TENTATIVE RULING:

Defendant Mary Weaver’s Demurrer to Complaint is SUSTAINED IN PART.

Defendant Mary Weaver, previously named as Doe 1, demurs to each cause of action in the Complaint.  

As a preliminary matter, according to their respective headings, the first, second, and twelfth causes of action name Doe 1 as a defendant, as is required by Rule of Court 2.112(4). The fourteenth cause of action is asserted against all defendants, according to its heading. The other causes of action do not state in their headings the defendants against whom they are directed, which is in violation of Rule of Court 2.112(4). However, the other causes of action incorporate all prior allegations, including paragraphs 7-10, which contain allegations against Doe 1. The other causes of action also contain allegations against “Defendants,” which could be interpreted to include Doe 1. Accordingly, the Court addresses each cause of action as it pertains to Weaver, notwithstanding the Complaint’s lack of clarity and failure to adhere to the applicable rules for pleading.

I.                   FIRST, SEVENTH, AND EIGHTH CAUSES OF ACTION

On the ground that a common law Tameny cause of action can be asserted only against the employer (and not the supervisor), Weaver demurs to: (1) the first cause of action for retaliation under the California False Claims Act; (2) the seventh cause of action for retaliation under Labor Code § 98.6 and wrongful termination in violation of public policy; and (3) the eighth cause of action for wrongful termination in violation of public policy.

This assertion is true with respect to the eighth cause of action. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 900 [“[A] Tameny action for wrongful discharge can only be asserted against an employer. An individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy; rather, he or she can only be the agent by which an employer commits that tort”].)   Accordingly, the demurrer to the eighth cause of action is SUSTAINED.

With respect to the first and seventh causes of action, however, those causes of action are not for wrongful termination in violation of public policy.  Rather, they are for (1) violations of the False Claims Act and Labor Code § 1102.5, with respect to the first cause of action and (2) for violations of Labor Code § 98.6, with respect to the seventh cause of action. Those statutes contain provisions prohibiting retaliation for complaining about violations of law. (Gov. Code § 12653(a) [allowing employee who was discharged for acting to stop violation of False Claims Act to file action]; Lab. Code § 1102.5(b) [prohibiting employer or any person acting on behalf of employer from disclosing violation of law to person with authority over employee]; Lab. Code § 98.6(a) [prohibiting person from discharging employee for making complaints about unpaid wages].) Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, cited by Weaver, is distinguishable because the Court of Appeal held that a wrongful termination in violation of public policy claim predicated on violation of whistleblower statutes lies only against the employer, not the supervisor. (Lloyd, 172 Cal.App.4th at 330.) Here, the first and seventh causes of action are for violations of the specified statutes, not for a common law claim for wrongful termination in violation of public policy.  Accordingly, the demurrer to the first and seventh causes of action is OVERRULED.

II.                SECOND AND THIRD CAUSES OF ACTION

Weaver demurs to the second cause of action for discrimination and third cause of action for retaliation, both asserted pursuant to the Fair Employment and Housing Act (“FEHA”) on the ground that individual supervisors or coworkers cannot be held liable. (Reno v. Baird (1998) 18 Cal.4th 640, 663 [“[I]ndividuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.”]; Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173 [“[T]he employer is liable for retaliation under section 12940, subdivision (h), but nonemployer individuals are not personally liable for their role in that retaliation”].) Plaintiff Ernest Melendrez does not dispute this contention. Instead, plaintiff argues that Weaver is the alter ego of Friends Outside in Los Angeles County, who is alleged to be plaintiff’s employer. (Compl. ¶ 2.) However, for the reason stated below, the alter ego allegations are insufficiently pled.

The demurrer to the second and third causes of action is SUSTAINED.

III.             FOURTH THROUGH SIXTH CAUSES OF ACTION

With respect to the fourth cause of action for failure to prevent discrimination in violation of Government Code § 12940(k), fifth cause of action for failure to provide reasonable accommodations in violation of Government Code § 12940(m), and the sixth cause of action for failure to engage in a good faith interactive process in violation of Government Code § 12940(n), Weaver argues that these causes of action may be asserted only against employers. (Gov. Code § 12940(k), (m), (n) [unlawful employment practices for “an employer…to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring,” for “an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee,” and for “an employer…to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition”].) While plaintiff alleges that Doe 1 (alleged to be Weaver) was an employer (Compl. ¶ 7), plaintiff does not allege any facts demonstrating that Doe 1 (Weaver) was his employer. Such a pure legal conclusion, without more, is disregarded on demurrer. (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1336.)

The demurrer to the fourth through sixth causes of action is SUSTAINED.

IV.             NINTH THROUGH ELEVENTH, THIRTEENTH, AND FOURTEENTH CAUSES OF ACTION

With respect to the ninth through eleventh, thirteenth, and fourteenth causes of action for violations of the Labor Code, to the extent that the allegations against “Defendants” includes Doe 1 (Weaver), plaintiff does not allege any actions on the part of Doe 1 (Weaver) from which it can be inferred that Doe 1 (Weaver) had control over plaintiff’s wages and hours.

The demurrer to the ninth through eleventh, thirteenth, and fourteenth causes of action is SUSTAINED.

V.                TWELFTH CAUSE OF ACTION

With respect to the twelfth cause of action for common law assault and battery, Weaver argues that there are no allegations indicating that she assaulted plaintiff. Plaintiff only alleges that co-defendants Marcus Murchinson, Tree of Life Missionary Baptist Church, and Watts Up Community Development Corporation assaulted him. (Compl. ¶¶ 22, 45.) While plaintiff alleges that the employer is liable for the assaults of employees (Compl. ¶¶ 204, 211), plaintiff alleges no facts supporting his assertion that Weaver was his employer. Accordingly, this legal conclusion is disregarded on demurrer. (Schep, 12 Cal.App.5th at 1336.)

The demurrer to the twelfth cause of action is SUSTAINED.

VI.             ALTER EGO ALLEGATIONS

To the extent plaintiff’s causes of action fail because plaintiff fails to sufficiently allege that Weaver was his employer, plaintiff contends that Weaver is the alter ego of co-defendant Friends, who is alleged to be plaintiff’s employer. (Compl. ¶¶ 2, 9.) However, a bare conclusory allegation that the corporation is the alter ego of the individual defendant is insufficient to plead alter ego liability. (See Vasey v. California Dance Co.(1977) 70 Cal.App.3d 742, 749 [“Respondent's complaint asserted a bare conclusory allegation…that CDC was the alter ego of the individual defendants. . . . . ‘The allegation that a corporation is the alter ego of the individual stockholder is insufficient to justify the court in disregarding the corporate entity in the absence of allegations of facts from which it appears that justice cannot otherwise be accomplished.’ [Citation.]”].)

VII.          CONCLUSION

For the foregoing reasons, the demurrer is OVERRULED as to the first and seventh causes of action and SUSTAINED as to the second through sixth and eighth through fourteenth causes of action.  Plaintiff is granted 10 days leave to amend the second through sixth and eighth through fourteenth causes of action only.

Plaintiff also requests leave to amend to add new causes of action. However, plaintiff did not file the required motion under Rule of Court 3.1324. Plaintiff’s request for leave to amend and add new causes of action is DENIED.

Plaintiff’s contentions regarding defendant’s purported misuse of the discovery process is disregarded as beyond the scope of the demurrer. Weaver’s evidentiary objections to the declaration of Gelver Aragon are SUSTAINED as irrelevant.