Judge Daniel M. Crowley, Case Number: 23STCV13776, Date: 2023-10-27 Tentative Ruling

Defendants Amazon.com, Inc.’s, Amazon.com Services LLC’s, David Herrera’s, Elizabeth Colmenero’s, Elisa Lopez’s, and Beth Galetti’s demurrer to Plaintiff Lachelle Harris’ complaint is overruled as to the 1st, 3rd, 8th, 12th, and 14th causes of action, and as to the 4th cause of action for Amazon Inc. and Amazon LLC, only.

Defendants’ demurrer is sustained with 20 days leave to amend as to the 7th, 9th, 11th, and 13th causes of action.

Defendants’ demurrer is sustained without leave to amend as to the 10th cause of action, and as the 4th cause of action for Herrera, Colmenero, Lopez, and Galetti, only.

Defendants Amazon.com, Inc. (“Amazon Inc.”), Amazon.com Services LLC [erroneously sued as Amazon.com Services LLC, Inc.] (“Amazon LLC”), David Herrera (“Herrera”), Elizabeth Colmenero (“Colmenero”), Elisa Lopez (“Lopez”), and Beth Galetti (“Galetti”) (collectively, “Defendants”) demur to Plaintiff Lachelle Harris’ (“Harris”) (“Plaintiff”) complaint (“Complaint”). (Notice of Demurrer, pgs. 1-2; C.C.P. §430.10(c).)[1]

CRC, Rule 3.1113(d) provides, “[e]xcept in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages. No reply or closing memorandum may exceed 10 pages. The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.”

CRC, Rule 3.1113(e) provides, “[a] party may apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum. The application must state reasons why the argument cannot be made within the stated limit.”

CRC, Rule 3.1113(g) provides, “[a] memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.”

Defendants’ memorandum exceeds the 15-page maximum stated in CRC, Rule 3.1113(d). Defendants violated CRC, Rule 3.1113(e) by failing to apply to the court ex parte with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum stating the reasons why the argument cannot be made within the stated limit. The Court, in its discretion, will consider Defendants’ memorandum up to the 15-page limit as defined in CRC, Rule 3.1113(d).[2]

Plaintiff filed her operative Complaint on June 14, 2023, against Defendants, alleging fifteen causes of action: (1) breach of express and implied contract [against Amazon Inc. and Amazon LLC]; (2) wrongful termination in violation of public policy [against Amazon Inc. and Amazon LLC]; (3) violation of California Constitution [against Amazon Inc. and Amazon LLC]; (4) harassment in violation of Government Code §12900, et seq. [against all Defendants]; (5) retaliation in violation of Government Code §12900, et seq. [against Amazon Inc. and Amazon LLC]; (6) discrimination in violation of Government Code §12900, et seq. [against Amazon Inc. and Amazon LLC]; (7) intentional infliction of emotional distress [against all Defendants]; (8) violation of Business & Professions Code §17200 [against all Defendants]; (9) fraud [against all Defendants]; (10) negligent misrepresentation [against all Defendants]; (11) concealment [against all Defendants]; (12) violation of Labor Code §1198.5 [against Amazon Inc. and Amazon LLC]; (13) negligent management [against all Defendants]; (14) violation of Labor Code §1102.5 [against all Defendants]; and (15) violation of the California Fair Pay Act [against Amazon Inc. and Amazon LLC].

This action arises out of Plaintiff’s employment by Amazon Inc. and Amazon LLC as a Fulfillment Associate and her termination on May 4, 2022. (Complaint ¶¶1, 5.) Plaintiff alleges at the time she was hired and thereafter, Galetti and Herrera offered Plaintiff employment, with a written employment agreement, representing to her that she would have a stable employment, long term position, that she would be treated fairly and not arbitrarily, that she would receive accrued time off, a benefit package consisting of health insurance, the option of medical insurance for her family, and other perks. (Complaint ¶3.)

Plaintiff alleges Defendants breached their agreements and representations, harassed, discriminated against and retaliated against Plaintiff, taking the following adverse actions against Plaintiff: Plaintiff was discriminated against, retaliated against and harassed because of her sex/gender, need for pregnancy leave, baby bonding leave, family care or medical leave, disability, pregnancy, childbirth, and/or related medical conditions, was subjected to a hostile work environment, was discriminated against, retaliated against and harassed due to her perceived need for disability, pregnancy or baby bonding leave, was discriminated against, retaliated against and harassed due to association with a member of a protected class and as a result of the discrimination was terminated, denied hire or promotion, denied equal pay, demoted, asked impermissible non-job-related questions, denied any employment, benefit or privilege, denied reasonable accommodation for a disability, denied family care or medical leave (“CLRA”), denied accommodation for pregnancy, denied employer paid health care while on pregnancy disability leave, other, denied work opportunities or assignments, denied baby bonding leave, among other wrongful conduct. (Complaint ¶4.) Plaintiff alleges Defendants’ conduct was oppressive, malicious, fraudulent, and caused Plaintiff extreme emotional distress. (Complaint ¶4.)

Plaintiff alleges from January 2021 to the date of her termination on May 4, 2022, Plaintiff informed Defendants she was disabled. (Complaint ¶5.) Plaintiff alleges on or about January 2021 she informed Defendants that she was pregnant. (Complaint ¶5.) Plaintiff alleges from the period she became disabled up to and to the date of her wrongful termination, on May 4, 2022, Plaintiff provided Defendants with restrictions related to disability which they refused to evaluate or accommodate. (Complaint ¶5.) Plaintiff alleges she was required to take unpaid leaves of absence despite the availability of other positions in which she could have been placed. (Complaint ¶5.) Plaintiff alleges Defendants left her with no means of support for herself or her child. (Complaint ¶5.) Plaintiff alleges she repeatedly contacted Defendants and protested that she was being treated unfairly, that she was entitled to be accommodated, that errors in her work record and status needed to be corrected, that she wanted to return to work, protesting violations of law and Defendants’ policies. (Complaint ¶5.) Plaintiff alleges as a result she was wrongfully terminated. (Complaint ¶5.)

Plaintiff alleges after giving birth, and recovering from it, on or about January 20, 2022, Plaintiff informed Defendants she had a disability involving post pregnancy back pain and that she required accommodation in order to return to work. (Complaint ¶6.) Plaintiff alleges Defendants failed to evaluate her for accommodation. (Complaint ¶6.) Plaintiff alleges Defendants refused to permit Plaintiff to return to work and informed her she had been placed by them on an unpaid leave of absence which would terminate when she informed Defendants she could return to work without restrictions. (Complaint ¶6.)

Plaintiff alleges Defendants’ refusal to return Plaintiff to work after January 20, 2022, unless she could return to work without restriction violated the law and was intended to result in her separation from employment because Defendants perceived Plaintiff as a liability, that she would have to take too much time off to attend medical appointments, care for her baby or need further leave. (Complaint ¶7.) Plaintiff alleges Defendants perceived evaluating Plaintiff, and other pregnant/disabled women for accommodation, as too costly and time consuming. (Complaint ¶7.)

Plaintiff alleges she was shocked and extremely distressed by Defendants’ conduct. (Complaint ¶8.) Plaintiff alleges due to her pregnancy, having taken pregnancy/family/disability leave, she was perceived as too costly, a potential liability, unfit and unable to do her job, which was untrue. (Complaint ¶8.) Plaintiff alleges at no time did Defendants conduct an interactive evaluation of Plaintiff to determine if she needed accommodation. (Complaint ¶8.) Plaintiff alleges on information and belief that a male employee took over her job duties. (Complaint ¶9.)

Plaintiff alleges from January 20, 2022, to April 16, 2022, she received computer generated notices from Amazon Inc. and Amazon LLC falsely stating that she had “attendance issues” and that she had depleted her accrued “unpaid personal time” (“UPT”) during her leave. (Complaint ¶10.) Plaintiff alleges she was shocked and extremely distressed by Defendants’ conduct. (Complaint ¶10.) Plaintiff alleges she contacted Amazon Inc. and Amazon LLC and they promised to correct their error. (Complaint ¶10.)

Plaintiff alleges on April 16, 2022, she received a computer-generated notice from Amazon Inc. and Amazon LLC falsely stating that she had “attendance issues” stating that she was required to return to work because she had depleted her time off, which was false, as Plaintiff was on a disability leave of absence. (Complaint ¶11.) Plaintiff alleges she was shocked and extremely distressed by Defendants’ conduct, especially as Defendants had promised their error would be fixed and that she was on leave. (Complaint ¶11.) Plaintiff alleges she contacted Amazon Inc. and Amazon LLC, and they promised to correct their error and that a case manager would follow up with her. (Complaint ¶11.)

Plaintiff alleges she was never contacted by Amazon Inc. or Amazon LLC, so Plaintiff repeatedly contacted Amazon Inc. and Amazon LLC as to why their errors were not fixed as promised. (Complaint ¶12.) Plaintiff alleges she advised Amazon Inc. and Amazon LLC her next doctor’s appointment related to her disability for which she was on leave was May 5, 2022. (Complaint ¶13.) Plaintiff alleges Amazon Inc. and Amazon LLC repeatedly promised Plaintiff their errors would be corrected, and she would be assisted by a case manager relating to her leave and disability. (Complaint ¶13.)

Plaintiff alleges on May 4, 2022, while Plaintiff was on disability leave, having been informed she had a doctor’s visit relating to her disability on May 5, 2022, Colmenero and Lopez issued an electronic termination notice to Plaintiff for “Attendance” which stated that she had negative 110 hours UPT, which was false, and that her employment was “terminated for attendance.” (Complaint ¶14.) Plaintiff alleges she was shocked and extremely distressed by Defendants’ conduct. (Complaint ¶14.)

Plaintiff alleges on or about May 5, 2022, she contacted Defendant who advised her the termination was in error and wrongful, however, no one corrected the error and Plaintiff was refused further leave or employment. (Complaint ¶15.) Plaintiff alleges Defendants were aware that terminating Plaintiff’s employment left her with no ability to support herself and her baby, and no insurance for herself and her family, causing her to suffer extreme distress. (Complaint ¶15.) Plaintiff alleges this conduct was oppressive, malicious, fraudulent and caused Plaintiff extreme emotional distress. (Complaint ¶15.) Plaintiff alleges Defendants were at all times herein aware that Defendants systematically and intentionally failed to provide adequate accommodations, modification of job duties for pregnancy and pregnancy-related medical needs, which was a pattern and practice of mistreatment of pregnant employees at its fulfillment centers and used discriminatory and unfair attendance policies to penalize them when they needed leave. (Complaint ¶15.)

Plaintiff alleges at all relevant times she repeatedly requested her disability be evaluated, requested her employment status and UPT be corrected, and requested her personnel materials (“file”). (Complaint ¶16.) Plaintiff alleges Defendants refused to evaluate her, refused to return her to work, refused to correct the termination, reinstate her UPT, and did not provide her with her complete file. (Complaint ¶16.) Plaintiff alleges initially, Defendants refused to produce any part of her file. (Complaint ¶16.) Plaintiff alleges thereafter, they withheld all of the file containing materials relating to her pregnancy, disability, need for accommodation and leave. (Complaint ¶16.) Plaintiff alleges she was shocked and extremely distressed by Defendants’ conduct. (Complaint ¶16.)

Plaintiff alleges she filed a timely complaint with the California Civil Rights Department (“CRD”) (fka Department of Fair Employment and Housing) and received her right to sue. (Complaint ¶17, Exh. A.)

On September 18, 2023, Defendants filed the instant demurrer. On October 17, 2023, Plaintiff filed her opposition. On October 23, 2023, Defendants filed their reply.

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (C.C.P. §430.41(a).) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Defendants’ counsel declares her office emailed Plaintiff’s Counsel on August 18, 2023, requesting Plaintiff’s counsel’s availability for a telephonic meet and confer regarding a demurrer. (Decl. of Tripodi ¶7.) Defendants’ counsel declares that same day, Plaintiff requested that Defendants set forth their basis for a demurrer in writing and advised she would contact Defendants if further meet and confer were necessary, though she did not provide her availability for a call. (Decl. of Tripodi ¶7.) Defendants’ counsel declares her office emailed Plaintiff’s Counsel on September 11, 2023, setting forth Defendants’ grounds for demurrer in writing and requested Plaintiff’s counsel’s availability for a telephonic meet and confer regarding the same; Defendants’ counsel provided Plaintiff’s counsel with availability for September 11, 12, and 13. (Decl. of Tripodi ¶10.) Defendants’ counsel declares Plaintiff’s counsel did not respond, necessitating the instant demurrer. (Decl. of Tripodi ¶11.) Defendants’ counsel’s declaration is sufficient under C.C.P. §430.41(a)(3).

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

Defendants demur on the basis that Plaintiff’s 1st, 3rd, 4th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, and 14th causes of action fail to state facts sufficient to constitute causes of action. (Demurrer, pgs. 3-4; C.C.P. §430.10(e).)[3]

In order to plead breach of contract, Plaintiff must allege the existence of a contract, the performance or excuse for nonperformance, Defendant’s breach, and resultant damages. (Reichert v. General Insurance Co. (1968) 68 Cal.2d 822, 830.)

Plaintiff alleges upon the inception of her employ and thereafter, Amazon Inc. and Amazon LLC and Plaintiff entered into a contract wherein Plaintiff was to be employed by Amazon Inc. and Amazon LLC and receive wages, overtime, and benefits. (Complaint ¶21.) Plaintiff alleges Defendants promised Plaintiff she would be treated fairly and not terminated arbitrarily as stated in Plaintiff’s factual allegations. (Complaint ¶21.) Plaintiff alleges Defendants promised Plaintiff she was on leave and that their errors would be corrected such that her leave status would remain and her UPT would be reinstated. (Complaint ¶21.) Plaintiff alleges she performed each and every condition and covenant required on her part to be performed pursuant to said employment agreement. (Complaint ¶22.)

Plaintiff alleges pursuant to said employment agreement, Amazon Inc. and Amazon LLC expressly promised that Plaintiff’s employment would continue, and she would have the opportunity to advance within the company as long as she performed satisfactorily and obeyed all reasonable and lawful directions of her employment, and based thereon, Plaintiff did not seek other employment. (Complaint ¶23.)

Plaintiff alleges Amazon Inc. and Amazon LLC breached said agreements and its express and implied promises by arbitrarily and wrongfully terminating Plaintiff based upon the factors stated above, in violation of Defendants’ promises as stated above. (Complaint ¶24.)

Plaintiff alleges as a direct and foreseeable result of said wrongful conduct, Plaintiff has suffered damages in an amount to be proven. (Complaint ¶25.) Plaintiff alleges said damages include lost wages, commissions, benefits, and certain other incidental and consequential expenses and losses, including but not limited to, all damages pursuant to C.C.P. §3300. (Complaint ¶25.) Plaintiff alleges said damages were a foreseeable result of Defendants’ wrongful conduct. (Complaint ¶25.)

Plaintiff sufficiently alleges the requisite elements of a cause of action for breach of contract. At the demurrer stage, the Court takes Plaintiff’s allegations to be true. Despite Defendants’ urging, Plaintiff is not required to allege facts sufficient to rebut the presumption of at-will employment. (See Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677-678 [“[T]he presumption of at-will employment may be overcome by evidence of contrary intent. . . . ‘[I]t must be determined, as a question of fact, whether the parties acted in such a manner as to provide the necessary foundation for [an implied contract], and evidence may be introduced to rebut the inferences and show that there is another explanation for the conduct.’ [Citations.]”].)

Accordingly, Defendants’ demurrer to Plaintiff’s 1st cause of action for breach of express or implied contract is overruled.

Article I, Sections 1 and 8 of the California Constitution state the following: “[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy,” and “[a] person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.” (Cal. Const., art. I, §§1, 8.)

Plaintiff alleges the conduct alleged in her Complaint is prohibited by Article I, Section 1 and 8 of the California Constitution as interpreted in Froyd v. Cook (1988) 681 Fed. Supp. 669. (Complaint ¶33.) Plaintiff alleges said provisions quote an independent prohibition against discrimination in employment. (Complaint ¶33.) Plaintiff alleges there are no administrative prerequisites to a claim brought pursuant to said provision. (Complaint ¶33.)

There is no binding authority on this Court that holds there is no private cause of action for a violation of Article 1, Section 8. In the absence of such authority, Scott v. Solano County Health and Social Services Dept. (E.D. Cal. 2006) 459 F.Supp.2d 959, 970, is persuasive and instructive. In Scott, the district court denied the defendants’ motion to dismiss plaintiff’s cause of action for violation of Article 1, Section 8. The Scott Court analyzed Himaka v. Buddhist Churches of America, stating:

The district court in Himaka stated that there may not be a “direct cause of action arising under Section 8,” and that it must be “asserted through a state tort law mechanism,” such as wrongful termination in violation of public policy. [Citation.] Plaintiff has done just that. She has incorporated paragraphs 1 through 50 in her ninth claim, which includes claims for wrongful termination in violation of public policy. Thus, according to Himaka, plaintiff has indeed asserted her §8 claim through a state tort law mechanism in order to bring a private cause of action. See Phillips v. Saint Mary's Regional Med. Center, 96 Cal.App.4th 218, 116 Cal.Rptr.2d 770 (2002) (Art. I, Sec. 8 is an alternative source of public policy for wrongful termination in violation of public policy claims). Defendants’ arguments must be rejected and their motion to dismiss must be DENIED as to this claim.

(Himaka v. Buddhist Churches of America (N.D. Cal. 1995) 919 F.Supp. 332, 334-335.)

Here, as in Scott, Plaintiff has asserted her 2nd cause of action for wrongful termination in violation of public policy, to which Defendants do not demur.

Thus, under Himaka, Plaintiff has asserted her Section 8 claim through a state law tort mechanism in order to bring a private cause of action.

Accordingly, Defendants’ demurrer to Plaintiff’s 3rd cause of action is overruled.

“To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff’s] protected status; (4) the harassment unreasonably interfered with [plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581; CACI 2521A.)

Plaintiff alleges she was employed by Defendants, up until her termination on May 4, 2022. (Complaint ¶35.) Plaintiff alleges she was shocked, extremely distressed and humiliated by Defendants’ severe and pervasive harassment which created a hostile work environment. (Complaint ¶35.) Plaintiff alleges Defendants harassed Plaintiff due to her pregnancy, after taking pregnancy disability leave and applying for leave, and as a disabled mother, she was perceived as too costly, a potential liability, unfit, and unable to do her job, which was untrue. (Complaint ¶35.) Plaintiff alleges at no time, did Defendants conduct an interactive evaluation of Plaintiff to determine if she needed accommodation. (Complaint ¶35.) Plaintiff alleges she was not offered accommodation. (Complaint ¶35.)

Plaintiff alleges Defendants’ harassment culminated in wrongfully terminating her employment because they perceived Plaintiff as a liability, that she would have to take too much time off or that she would need further family or disability leave. (Complaint ¶36.) Plaintiff alleges she had no intention nor interest in leaving her position and wanted to continue to work for Defendants until Defendants made it impossible for Plaintiff to do so by harassing her as alleged in her complaint, refusing her an interactive evaluation and accommodation as required by law. (Complaint ¶37.) Plaintiff alleges said conduct was the legal cause of Plaintiff’s termination by Defendant. Plaintiff incorporates by reference the facts stated in her factual allegations. (Complaint ¶38.) Plaintiff alleges Defendants’ conduct violated Plaintiff’s rights under Government Code §12900, et seq., which prohibited same and required Defendants to allow Plaintiff to remain in her position with reasonable pay and benefits. (Complaint ¶38.)

Plaintiff alleges Defendants, and each of them, incurred a duty to their employees to maintain a work environment that was free from harassment on the basis of gender, having taken leave, disability, perceived disability, pregnancy, and association with others and to hire and supervise employees in a manner likely to achieve that end. (Complaint ¶39.) Plaintiff alleges these duties were breached by Defendants, and each of them. (Complaint ¶39.) Plaintiff alleges she sues each individual Defendant only for any and all bases permitted under FEHA and current case law, specifically harassment, for creating a hostile work environment and for failing to prevent harassment. (Complaint ¶39.) Plaintiff alleges her allegations against the individual Defendants are based upon their harassing conduct and their perception of Plaintiff as a liability in that she would require accommodation or time off due to being pregnant and a disabled mother. (Complaint ¶39.)

Plaintiff alleges she has filed a complaint with the CRD pursuant to Section 12900, et seq., of the Government Code within one year of the alleged conduct, alleging that the above-described acts established a violation of Government Code §12900, et seq., among other laws and statutes against Defendant. (Complaint ¶40.) Plaintiff alleges she has complied with all administrative prerequisites to suit. (Complaint ¶40.) Plaintiff alleges all Defendants had notice of Plaintiff’s claim prior to filing this action. (Complaint ¶40.)

Plaintiff alleges as a proximate consequence of Defendants’ wrongful acts as stated above Plaintiff has suffered lost wages, commissions, benefits, incurred attorney fees, suffered emotional distress and other general and special damages. (Complaint ¶41.) Plaintiff alleges Defendants’ actions were malicious, despicable, fraudulent, willful, reckless and exhibited a conscious disregard of the rights of Plaintiff. (Complaint ¶41.) Plaintiff alleges she entitled to punitive damages according to proof. (Complaint ¶41.)

Plaintiff sufficiently alleges a cause of action for harassment under FEHA. Defendants’ arguments in opposition that Plaintiff cannot sue all Defendants for “personnel management activity” are based on non-binding federal authorities and cite no California cases that apply Reno v. Baird (1998) 18 Cal.4th 640, 646, to a FEHA harassment claim on the basis of an individual’s protected status as a disabled woman.

However, Defendants’ arguments against Plaintiff’s ability to impose personal liability on individual supervisory employees on the basis of Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, are well taken. The Janken Court dismissed the plaintiff’s harassment cause on demurrer because individual defendant liability was premised upon personnel management conduct. (46 Cal.App.4th at pgs. 62-65.) The Janken Court drew a careful distinction between discrimination and harassment and concluded that personnel decisions do not create liability for individual defendants because “[w]hile it is possible to avoid making personnel decisions on a prohibited discriminatory basis, it is not possible either to avoid making personnel decisions or to prevent the claim that those decisions were discriminatory.” (Id. at pgs. 63-64; see Reno, 18 Cal.4th at pg. 464 [emphasizing that individual defendants may not be held liable for personnel management decisions because they are “an inherent and unavoidable part of the supervisory function”].)

Accordingly, Defendants’ demurrer to Plaintiff’s 4th cause of action is overruled as to Amazon.com, Inc. and Amazon.com Services LLC, and sustained without leave to amend as to Herrera, Colmenero, Lopez, and Galetti.

“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.’” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903, internal citation omitted.)

Plaintiff alleges when Defendants committed the acts described in this Complaint, they did so deliberately and intentionally to injure Plaintiff and to cause Plaintiff to suffer humiliation, mental anguish and emotional distress. (Complaint ¶58.) Plaintiff alleges the outrageousness of the above-mentioned conduct is amplified due to the Defendants’ abuse of their position which gives actual and apparent authority over Plaintiff, such as is commonly found in employment relationships. (Complaint ¶58.) Plaintiff alleges Defendants were aware that Plaintiff was relying upon her employment to sustain herself and her family. (Complaint ¶58.) Plaintiff alleges Defendants were aware that their conduct was outrageous, sexist, discriminatory and retaliatory for having become pregnant, disabled and being a mother. (Complaint ¶58.) Plaintiff alleges in mistreating Plaintiff, terminating Plaintiff’s employment in the manner in which they did, Defendants caused Plaintiff, to suffer extreme emotional distress, and other consequential damages. (Complaint ¶58.)

Plaintiff alleges when Amazon.com, Inc. and Amazon.com Services LLC, acting through its agent and employees did the acts described in this Complaint, particularly, but not limited to, wrongfully terminating Plaintiff’s employment, they did so deliberately and intentionally to cause emotional distress to Plaintiff. (Complaint ¶59.) Plaintiff alleges the acts of Defendants, and each of them, cannot be expected to normally occur in the workplace. (Complaint ¶59.) Plaintiff alleges in acting as described above, and in abusing a position of actual and apparent authority over Plaintiff, Defendants clearly stepped out of the proper role as employer and used its position or authority to cause Plaintiff to suffer emotional distress. (Complaint ¶59.) Plaintiff alleges the abovementioned acts of the Defendants constituted intentional infliction of emotional distress against Plaintiff and such conduct of Defendants was a substantial and/or determining factor in proximately causing damage and injury to Plaintiff. (Complaint ¶60.) Plaintiff alleges as a proximate consequence of Defendants’ wrongful acts against Plaintiff she has suffered lost wages, commissions, benefits, severe emotional distress, and other general and special damages. (Complaint ¶61.) Plaintiff alleges Defendants’ actions were willful, reckless, and exhibited a conscious disregard of the rights of Plaintiff and Plaintiff is entitled to punitive damages according to proof. (Complaint ¶62.)

Plaintiff fails to allege conduct that rises to the level of extreme and outrageous conduct necessary to support a cause of action for IIED. (See Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883-884 [presenting plaintiff with a termination package, withdrawing the termination package and telling plaintiff she was still employed, and then offering plaintiff a less desirable termination package and terminating her employment, “[w]hile . . . not exemplary, it certainly does not qualify as the kind of ‘outrageous’ conduct necessary in order to support an” IIED cause].)

Accordingly, Plaintiff’s 7th cause of action for IIED is sustained with 20 days leave to amend.

A cause of action for violation of Business and Professions Code §17200 requires the following elements: (1) a business practice; (2) that is unfair, unlawful or fraudulent; and (3) authorized remedy. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676; see also Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337 [although losses are required for standing, “ineligibility for restitution is not a basis for denying standing under section 17204….”]; People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006, 1016 [“An ‘unlawful’ practice requires violation of another statute, and a business practice may be ‘unfair’ even if not otherwise proscribed by statute as long as the practice is not expressly authorized by law.”]; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266 [Legislature intended this sweeping language to include anything that can properly be called a business practice and that at the same time is forbidden by law].)

Plaintiff alleges Defendants’ acts as specifically stated herein, constitute unfair business practices which are illegal under California Business & Professions Code §17200 (which prohibits unfair competition, which includes unlawful, unfair or fraudulent business acts or practices and unfair, deceptive or untrue acts). (Complaint ¶64.) Plaintiff alleges as a proximate result of Defendants’ wrongful acts stated herein, Plaintiff suffered losses. (Complaint ¶65.) Plaintiff alleges she seeks disgorgement of any profit gained by Defendant due to Defendants’ wrongful conduct, restitution and attorneys’ fees. (Complaint ¶65.) Plaintiff alleges Defendants’ violation of the statute was willful, oppressive, malicious, and fraudulent. (Complaint ¶66.) Plaintiff alleges she requests an assessment of punitive damages regarding same. (Complaint ¶66.)

Plaintiff sufficiently alleges a cause of action for violation of Business and Professions Code §17200 by way of sufficiently alleging her 6th and 7th causes of action under FEHA, among other causes of action challenged by Defendant in this demurrer that have been overruled.

Accordingly, Defendants’ demurrer to Plaintiff’s 8th cause of action for violation of Business and Professions Code §17200 is overruled.

To state a claim for fraud Plaintiff must allege misrepresentation, knowledge of falsity, intent to induce reliance, justifiable reliance, and damages. (Agricultural Insurance Co. v. Superior Court (1999) 70 Cal.App.4th 385, 403.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

The elements of a claim for fraud by concealment are as follows: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.)

“The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Tarmann v. State Farm Mut. Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.)

Plaintiff alleges Defendants, through their agents and/or employees, on the date of her hire and thereafter, promised Plaintiff her employment would continue, and she would be allowed to work regardless of her gender, pregnancy, having taken leave, disability, perceived disability, and association with others. (Complaint ¶68.) Plaintiff alleges Defendants, through their agents and/or employees, promised Plaintiff that Defendants would provide Plaintiff with a correct employment record, that her leave status remained, and erroneous attendance claims would be corrected. (Complaint ¶68.) Plaintiff alleges she relied on Defendants’ promises to her detriment. (Complaint ¶68.) Plaintiff alleges Defendants failed to keep their promises. (Complaint ¶68.)

Plaintiff alleges Defendants enjoyed a superior bargaining position and power over Plaintiff to the extent described herein. (Complaint ¶69.) Plaintiff alleges the material terms concerning her employment were concealed and not disclosed and thereby misrepresented by Defendants to Plaintiff, as to obtain her reliance thereon. (Complaint ¶69.) Plaintiff alleges as a result of the concealment, failure to disclose and false misrepresentation of material terms concerning Plaintiff’s employment and termination, such material terms were misleading, not disclosed and concealed and thereby misrepresented by Defendants to Plaintiff. (Complaint ¶69.) Plaintiff alleges Defendants knew their representations were false and Defendants did intentionally make such false promises because Defendants needed Plaintiff to continue working to their benefit. (Complaint ¶70.)

Plaintiff alleges Defendants knew at the time that they failed to disclose, concealed and engaged in such representations, actions, conduct and inactions described herein that the same were false, misleading and untrue for the sole purpose of obtaining the benefits of Plaintiff’s work and thereafter to limit said Defendants’ financial obligations to Plaintiff, and other financial or economic gains, in breach of Defendant’s contract with and duties to Plaintiff. (Complaint ¶71.)

Plaintiff alleges as a proximate consequence of Defendants’ wrongful acts against Plaintiff, she has suffered lost wages, commissions, benefits, emotional distress, and other general and special damages. (Complaint ¶72.) Plaintiff alleges Defendants’ actions were willful, reckless, and exhibited a conscious disregard of the rights of Plaintiff. (Complaint ¶72.) Plaintiff alleges she is entitled to punitive damages, according to proof. (Complaint ¶73.)

Plaintiff fails to sufficiently allege causes of action for fraud and concealment. Actionable misrepresentations must pertain to past or existing material facts. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) Here, Plaintiff’s allegations implicate Defendants’ alleged misrepresentation that that her leave status remained. (Complaint ¶68.) Plaintiff alleges on April 16, 2022, Plaintiff received a computer-generated notice from Amazon Inc. and Amazon LLC falsely stating that she had “attendance issues” stating that she was required to return to work because she had depleted her time off, and Defendants had promised their misrepresentation of her leave status would be fixed and that she was on leave. (See Complaint ¶11.). Plaintiff alleges On May 4, 2022, while Plaintiff was on disability leave, having been informed she had a doctor’s visit relating to her disability on May 5, 2022, Defendants’ Managers, Defendant Colmenero and Lopez issued an electronic termination notice to Plaintiff for “Attendance” which stated that she had negative 110 hours UPT, which was false, and that her employment was “terminated for attendance.” (Complaint ¶14.) However, Plaintiff only alleges this misrepresentation was made by Amazon Inc., Amazon LLC, Colmenero, and Lopez, and not against Herrera and Galetti. Further, Plaintiff fails to allege Colmenero and Lopez knew Plaintiff was on disability leave and that her leave status would be fixed. (See Complaint ¶11.) Because Plaintiff fails to allege who made the allegedly fraudulent representation that they knew Plaintiff was on leave and that such incorrect information on her employment record would be fixed, Plaintiff fails to allege her causes of action that sound in fraud.

Accordingly, Defendants’ demurrer to the 9th cause of action for fraud and 11th cause of action for concealment are sustained with 20 days leave to amend.

A cause of action for negligent misrepresentation requires the following elements: (1) assertion of an untrue fact; (2) honestly made in the belief it is true; (3) but without a reasonable ground for such belief; (4) defendant’s intent to induce plaintiff’s reliance upon the representation; (5) plaintiff’s justifiable reliance upon the representation; and (6) resulting damage. (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 182; County of Kern v. Sparks (2007) 149 Cal.App.4th 11, 20; Charnay v. Cobert (2006) 145 Cal.App.4th 170, 185 n.14 [requiring pleading particularity with facts that show how, when, where, to whom, and by what means the representations were tendered]; Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 [requiring pleading specificity].)

Plaintiff alleges Defendants, through their agents and/or employees, on the date of her hire, and thereafter, promised Plaintiff her employment would continue, and she would be allowed to work regardless of her gender, pregnancy, having taken leave, disability, perceived disability, and association with others. (Complaint ¶75.) Plaintiff alleges Defendants, through their agents and/or employees, promised Plaintiff that Defendants would provide Plaintiff with a correct employment record, that her leave status remained, and erroneous attendance claims would be corrected. (Complaint ¶75.) Plaintiff alleges she relied on Defendants’ promises to her detriment. (Complaint ¶76.) Plaintiff alleges when she became pregnant, Defendants failed to keep their promises. (Complaint ¶76.)

Plaintiff alleges Defendants knew at the time that they failed to disclose, concealed and engaged in such representations, actions, conduct and inactions described herein that the same were false, misleading and untrue for the sole purpose of obtaining the benefits of Plaintiff’s work and thereafter to limit said Defendants’ financial obligations to Plaintiff, and other financial or economic gains, in breach of Defendants’ contract with and duties to Plaintiff. (Complaint ¶77.)

Plaintiff alleges she relied upon Defendants’ representations that she would be allowed to continue working and would not be discriminated against because of her gender, marital status, having taken leave, perceived disability, pregnancy, and association with others (perception would have to take time to care for sick child). (Complaint ¶78.) Plaintiff alleges as a proximate consequence of Defendants’ wrongful acts against Plaintiff, she has suffered lost wages, commissions, benefits, emotional distress and other general and special damages. (Complaint ¶79.) Plaintiff alleges Defendants’ actions were willful, reckless and exhibited a conscious disregard of the rights of Plaintiff and Plaintiff is entitled to punitive damages, according to proof. (Complaint ¶80.)

Plaintiff fails to allege negligent misrepresentation because she alleges Defendants actually knew that the representations were false. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 781 [sustaining demurrer when the plaintiff’s complaint alleged that the defendants knew that the representations were false].)

Accordingly, Defendants’ demurrer to Plaintiff’s 10th cause of action for negligent misrepresentation is sustained without leave to amend.

Defendants state in their reply they withdraw their demurrer to the 12th cause of action for Violation of Labor Code §1198.5.

Accordingly, Defendants’ demurrer to Plaintiff’s 12th cause of action for Violation of Labor Code §1198.5 is overruled.

A cause of action for negligent hiring, retention, or supervision of an employee requires the following elements: (1) that the employer defendant hired an employee; (2) that the employee was/became unfit to perform the work for which they were hired or some other specific risk; (3) that the employer defendant knew or should have known that the employee was/became unfit or some other particular risk and that this unfitness or other particular risk created a particular risk to others; (4) that the employee’s unfitness or other particular risk harmed plaintiff; and (5) that the employer defendant’s negligence in hiring/ supervising/ or retaining the employee was a substantial factor in causing plaintiff’s harm. (CACI 426.)

Plaintiff alleges Defendants had a duty of due care to treat Plaintiff fairly, pursuant to their promises to said Plaintiff and as required by law. (Complaint ¶95.) Defendants’ conduct, as specifically alleged in the preceding causes of action, clearly was negligent, and was beyond the compensation bargain as it was intended to specifically deprive Plaintiff of work and any and all processes that would have permitted him to return to work, which Defendant managers knew were required by law. (Complaint ¶95.) Plaintiff alleges Defendants incurred a duty to employees of Defendants to maintain a work environment free of discrimination, harassment, and retaliation on the bases alleged in Plaintiff’s Complaint. Plaintiff alleges Defendants had a duty to reasonably investigate Plaintiff’s claims, and not to continue to employ harassing managers. (Complaint ¶96.)

Plaintiff alleges Defendants so carelessly, negligently, and recklessly investigated, supervised, and managed their organization as to Plaintiff as to cause her injuries and damages as herein alleged. (Complaint ¶97.) Plaintiff alleges Defendants’ acts were done with a wanton, and reckless disregard of the consequences to Plaintiff. (Complaint ¶97.) Plaintiff alleges when Defendants, through their agents and employees, did the acts herein alleged, they knew, or should have known, that their failure to exercise due care in the performance of their role as employer, would cause Plaintiff severe emotional distress. (Complaint ¶98.)

Plaintiff fails to allege which of Defendants’ employees who became unfit to perform the work for which they were hired, or some other specific risk and that the employer defendant knew or should have known that the employee was/became unfit, or some other particular risk and that this unfitness or other particular risk created a particular risk to others. (See CACI 426.)

Accordingly, Defendants’ demurrer to Plaintiff’s 13th cause of action for negligent management is sustained with 20 days leave to amend.

To state a cause of action for violation of Labor Code §1102.5, a plaintiff must prove the following elements: (1) defendant was plaintiff’s employer; (2) plaintiff disclosed to a person with authority over plaintiff, or an employee with authority to investigate, discover, or correct legal violations; (3) that plaintiff had reasonable cause to believe that the information disclosed a violation of a state/federal statute or a violation of/noncompliance with a local/state/federal rule or regulation; (4) that defendant discharged plaintiff; (5) that plaintiff’s disclosure of information was a contributing factor in defendant’s decision to discharge plaintiff; (6) that plaintiff was harmed; and (7) that defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 4603.)

Plaintiff alleges from January 2021 to the date of her termination on May 4, 2022, Plaintiff informed Defendants she was disabled. (Complaint ¶103.) Plaintiff alleges on or about January 2021 Plaintiff informed Defendants that she was pregnant. (Complaint ¶103.) Plaintiff alleges from the period she became disabled up to and to the date of her wrongful termination, on May 4, 2022, Plaintiff provided Defendants with restrictions related to disability which they refused to evaluate or accommodate. (Complaint ¶103.) Plaintiff alleges she was required to take unpaid leaves of absence despite the availability of other positions in which she could have been placed. (Complaint ¶103.) Plaintiff alleges Defendants left Plaintiff with no means of support for herself or her child. (Complaint ¶103.)

Plaintiff alleges she repeatedly contacted Defendants and protested that she was being treated unfairly, that she was entitled to be accommodated, that errors in her work record and status needed to be corrected, that Defendants were improperly disciplining her relating to her attendance when she was in fact on disability leave, that she wanted to return to work, and she protested violations of law and Defendants’ policies. (Complaint ¶104.) Plaintiff alleges as a result she was wrongfully terminated. (Complaint ¶104.)

Plaintiff alleges as a proximate consequence of Defendants’ wrongful acts against Plaintiff, she has suffered lost wages, benefits, emotional distress and other general and special damages. (Complaint ¶108.)

Plaintiff sufficiently alleges a cause of action for violation of Labor Code §1102.5. Defendant’s argument that Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1164-1168, precludes individual liability for retaliation claims is unavailing, as Jones only addressed retaliation under FEHA, not under the Labor Code.

Accordingly, Defendant’s demurrer to Plaintiff’s 14th cause of action for violation of Labor Code §1102.5 is overruled.

Defendants’ demurrer to Plaintiffs’ Complaint is overruled as to the 1st, 3rd, 8th, 12th, and 14th causes of action, and as to the 4th cause of action for Amazon Inc. and Amazon LLC, only.

Defendants’ demurrer to Plaintiff’s Complaint is sustained with 20 days leave to amend as to the 7th, 9th, 11th, and 13th causes of action.

Defendants’ demurrer to Plaintiff’s Complaint is sustained without leave to amend as to the 10th cause of action, and as the 4th cause of action for Herrera, Colmenero, Lopez, and Galetti, only.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] Defendants’ notice of motion indicates parties demur on the basis of C.C.P. §430.10(c). However, Defendants’ motion demurs on the basis of C.C.P. §430.10(e). (Compare Notice of Motion, pg. 2 with Demurrer, pgs. 3-4.)

[2] The Court also notes Defendants’ reply is overlong, but Defendants attempted to circumvent the requirement in CRC, Rule 3.1113(d) that a reply cannot exceed 10 pages by including text on the caption page. Defendants are admonished for violating filing length conventions dictated in the CRC. While Plaintiff’s opposition also includes text on the caption page, her opposition is well within the page limit and does not merit comparison.

[3] The Court notes Defendants do not demur to the 2nd, 5th, 6th, or 15th causes of action.