Judge Daniel M. Crowley, Case Number: 24STCV17254, Date: 2024-12-09 Tentative Ruling

Defendants Los Angeles Community College District (“LACC”), Wanda Morris (“Morris”), and Ann Hamilton (“Hamilton”) (collectively, “Defendants”) demur to the 9th and 10th causes of action in Plaintiff Darlene Levy-Potter’s (“Levy-Potter”) (“Plaintiff”) first amended complaint (“FAC”). (Notice of Demurrer, pgs. 1-2; C.C.P. §430.41(e).)

Before filing a demurrer, the demurring party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41(a), emphasis added.)

The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith. (C.C.P. §430.41(a)(3).)

Defendants’ counsel declares that on September 23, 2024, she called Plaintiff’s counsel regarding the instant motion, and the parties could not reach an agreement resolving the objections raised in the demurrer. (See Decl. of Amin ¶4.) Defendants’ counsel’s declaration is sufficient under C.C.P. §430.41(a). Therefore, the Court will consider Defendants’ demurrer.

Plaintiff filed her initial Complaint on July 11, 2024, against Defendants. Plaintiff filed the operative FAC against Defendants, alleging ten causes of action: (1) associational disability discrimination in violation of FEHA; (2) discrimination on the basis of age in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to prevent discrimination in violation of FEHA; (5) failure to provide reasonable accommodation in violation of FEHA; (6) failure to engage in the interactive process in violation of FEHA; (7) constructive termination in violation of public policy; (8) wrongful termination in violation of public policy; (9) intentional infliction of emotional distress; and (10) negligent hiring, retention, or supervision.[1]

Defendants filed the instant demurrer on September 30, 2024. Plaintiff filed her opposition on November 22, 2024. As of the date of this hearing no reply has been filed.

Plaintiff alleges she began her employment with LACC in or around September 2005 as a Faculty Professor for LACC’s nursing program. (FAC ¶13.) Plaintiff alleges the course load varied from semester to semester based on number of students, but her typical workload included teaching two (2) 12-hour clinicals per week and teaching approximately four (4) hours in the classroom per week and earned approximately $93,000 annually in this role. (FAC ¶13.) Plaintiff alleges in or around June 2016, she shifted to an Adjunct Faculty role, wherein she supervised nursing students on their rotations for an inpatient psychiatric unit. (FAC ¶14.) Plaintiff alleges in this role she earned approximately $12,000 per semester. (FAC ¶14.) Plaintiff alleges that around this time she also relocated to Ohio while continuing to work for LACC, and LACC was aware of Plaintiff’s relocation at all times and never raised any concerns about it. (FAC ¶14.)

Plaintiff alleges that as an Adjunct Faculty she was required to supervise her students’ clinical hours. (FAC ¶15.) Plaintiff alleges The Board of Nursing requires that nursing students must complete 108 clinical hours each semester. (FAC ¶15.) Plaintiff alleges in accordance with The Board of Nursing guidelines, LACC allowed nursing students to complete a portion of their clinical hours by obtaining “community experience” that did not require direct supervision. (FAC ¶15.) Plaintiff alleges from 2016 onwards, she supervised 96 clinical hours of hospital rotations while allowing her students to obtain the final 12 hours through “community experience.” (FAC ¶16.) Plaintiff alleges these 12 hours were not required to be supervised by a professor and instead involved students observing community health organizations such as Alcoholics Anonymous. (FAC ¶16.) Plaintiff alleges her students always met the requirements put forth by The Board of Nursing. (FAC ¶16.)

Plaintiff alleges that beginning in June 2016, she taught her required 96 hours over the course of three (3) weeks, teaching 8-12 hours each on consecutive Fridays, Saturdays, and Sundays. (FAC ¶17.) Plaintiff alleges her schedule was approved by her supervisors, and Chairs of the Nursing Department, Dr. Christiana Baskaran (“Dr. Baskaran”), and Betsy Manchester (“Ms. Manchester”). (FAC ¶18.) Plaintiff alleges that at all relevant times she was an exemplary employee and adequately performed all her job duties, earning rave reviews from her students. (FAC ¶18.)

Plaintiff alleges that her husband, Robert Potter (“Potter”) suffered an injury in or around September of 2021, which led to him developing a Spinal Dural Arteriovenous Fistula. (FAC ¶19.) Plaintiff alleges her husband requires catheterization 24/7 and the nerves below his waist are dead. (FAC ¶19.) Plaintiff alleges that from September of 2021 to this date, Plaintiff was, and is, her husband’s primary caregiver. (FAC ¶19.) Plaintiff alleges she transports her husband to his numerous doctor’s appointments, maintains his catheter, prepares all his meals, helps him shower, gets him dressed, and assists with many other activities of daily living. (FAC ¶19.) Plaintiff alleges Potter is also considered a high fall risk, so he requires constant support and supervision. (FAC ¶19.)

Plaintiff alleges that from 2016 to 2022, her part-time schedule was approved and did not raise any concerns. (FAC ¶20.) Plaintiff alleges when her husband was injured in 2021, she was able to continue working because her schedule allowed her to arrange alternative caretakers for her husband during the three (3) week increments she taught in Los Angeles. (FAC ¶20.) Plaintiff alleges that for two years she continued to dutifully perform all essential functions of her job without issue. (FAC ¶20.)

Plaintiff alleges that on July 10, 2023, she received an email from Defendant Morris, the Interim Director of Nursing. (FAC ¶21.) Plaintiff alleges that therein, Morris announced that the teaching schedules for the fall semester would soon be given to the Adjunct Professors, including Plaintiff. (FAC ¶21.) Plaintiff alleges that on July 18, 2023, Plaintiff informed Morris and Defendant Hamilton, Dean of the Nursing Department, via email that she required her same three-week Friday, Saturday, Sunday schedule “in order to return to Ohio as soon as possible so I can take care of my disabled husband.” (FAC ¶21.)

Plaintiff alleges that on July 28, 2023, she sent a follow up email to Morris and Hamilton, since it had been ten (10) days without a response. (FAC ¶22.) Plaintiff alleges instead of confirming that she could continue to work her same schedule, Morris pressured her to resign, saying, “Truly no one would begrudge” her need to be with her husband instead of working. (FAC ¶22.)

Plaintiff alleges that on August 4, 2023, Morris emailed Plaintiff a proposed schedule which required Plaintiff to be in Los Angeles over the span of eight (8) weeks. (FAC ¶23.) Plaintiff alleges not only was this a dramatic deviation from the schedule she had been working since 2016, but it would prevent Plaintiff from caring for her husband. (FAC ¶23.) Plaintiff alleges she attempted to find alternative care for her husband to see if she could make this new schedule work but was unsuccessful. (FAC ¶23.)

Plaintiff alleges that on August 17, 2023, Plaintiff emailed Defendants Morris, Hamilton, and Jocelyn Simpson-Turk (“Simpson-Turk”) explaining that despite her best efforts, she was unable to find alternative caregivers for her “disabled husband” and could not be away from him for such a long stretch of time. (FAC ¶24.) Plaintiff alleges that she again explained that the three-week schedule accommodated her husband’s needs by allowing her to serve as the primary caretaker and would also fulfill the clinical hours as required by the California Board of Registered Nursing. (FAC ¶24.)

Plaintiff alleges that on August 23, 2023, Morris denied Plaintiff’s request for an accommodation and removed her from the schedule and gave Plaintiff’s position to a much younger professor with fewer credentials. (FAC ¶25.) Plaintiff alleges that in the weeks and months that followed, she made several attempts to initiate the interactive process and regain her schedule, to no avail. (FAC ¶26.)

Defendants demur to the 9th and 10th causes of action on the basis they fail to state facts sufficient to constitute causes of action against them. (Demurrer, pg. 2.)

“A cause of action for intentional infliction of emotional distress exists when there is ‘(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.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

“Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable [person] in a civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397.)

“[W]hether conduct is outrageous is ‘usually a question of fact’ . . .. [However] many cases have dismissed intentional infliction of emotional distress cases on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law.” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235, internal citations omitted.)

“‘Behavior may be considered outrageous if a defendant (1) abuses a relation or position that gives him power to damage the plaintiff’s interests; (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. . ..’” (Molko v. Holy Spirit Association (1988) 46 Cal.3d 1092, 1122, internal citation omitted.)

Plaintiff alleges Defendants’ discriminatory and retaliatory actions taken against Plaintiff constituted severe and outrageous misconduct and caused Plaintiff severe emotional distress. (FAC ¶106.) Plaintiff alleges she was a loyal and hardworking employee for Defendants. (FAC ¶106.) Plaintiff alleges she took pride in her work and teaching was a large part of her identity. (FAC ¶106.) Plaintiff alleges she also earned the praise of her students, as shown by her overwhelmingly positive reviews. (FAC ¶106.) Plaintiff alleges her life turned upside down when her husband was diagnosed with a Spinal Dural Arteriovenous Fistula. (FAC ¶106.) Plaintiff alleges that instead of accommodating her and permitting her to work the schedule that would allow her to care for her disabled husband (and had historically been permitted for years without issue), Defendants retaliated against Plaintiff and pushed her out of her job. (FAC ¶106.) Plaintiff alleges Morris even pressured her to resign, saying “Truly no one would begrudge” her need to be with her husband instead of working. (FAC ¶106.) Plaintiff alleges that after her repeated requests for reasonable accommodation, Defendants further retaliated against her by removing her for the schedule, which effectively terminated her employment after sixteen years of loyal dedication. (FAC ¶106.)

Plaintiff alleges because of Defendants’ actions her emotional wellbeing has been profoundly affected. (FAC ¶107.) Plaintiff alleges that she was once strong and confident and now finds herself grappling with an overwhelming sense of despair. (FAC ¶107.) Plaintiff alleges the joy and satisfaction that teaching once brought her has been replaced with a deep sense of loss and betrayal. (FAC ¶107.) Plaintiff alleges the stress and anxiety of losing her livelihood, coupled with the burden of caring for her ailing husband, have left her in a constant state of fear and uncertainty. (FAC ¶107.) Plaintiff alleges the emotional toll has been so severe that it has permeated every aspect of her daily life. (FAC ¶107.)

Plaintiff alleges Defendants’ discriminatory and retaliatory conduct has devastated her emotionally and she now suffers from depression, anxiety, fatigue, loss of sleep, financial insecurity, humiliation, loss of reputation, stress, a sense of loss and detachment, and mental pain and anguish. (FAC ¶108.)

Plaintiff alleges Defendants’ conduct was intentional in nature and/or done with reckless disregard of the probability that Plaintiff would suffer severe emotional distress, knowing that Plaintiff depended on her employment to provide income since her husband could not work a full-time job. (FAC ¶110.)

Plaintiff alleges Defendants’ wrongful conduct was a substantial factor in causing Plaintiff harm including severe emotional distress. (FAC ¶111.)

Plaintiff sufficiently alleges a cause of action for intentional infliction of emotional distress. Behavior may be considered outrageous in many circumstances, including if a defendant abuses a relation or power that gives it power to damage the plaintiff’s interests. (Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 147.) An employer-employee relationship has long been recognized as significantly contributing to the conclusion that particular conduct was outrageous. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498 n.2 [stating employees entitled to a greater degree of protection from insult and outrage].) Additionally, a defendant’s knowledge that plaintiff is susceptible to mental distress may constitute an aggravating circumstance to render conduct outrageous. (Smith, 64 Cal.App.5th at pg. 147.)

Here, Plaintiff sufficiently alleges Defendants’ power as Plaintiff’s employer and supervisors and their course of conduct with sufficient specificity that proximately caused her emotional distress. (See FAC ¶¶106-111.)

Accordingly, Defendants’ demurrer to Plaintiff’s 9th cause of action is overruled.

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)

“Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

“[A] negligent supervision claim depends, in part, on a showing that the risk of harm was reasonably foreseeable. [Citations.] ‘Foreseeability is determined in light of all the circumstances and does not require prior identical events or injuries.’ [Citations.] ‘“It is not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities. . . . Their negligence is established if a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence of [adequate] safeguards.”’” (D.Z. v. Los Angeles Unified School District (2019) 35 Cal.App.5th 210, 229, internal citations omitted.)

“Liability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.)

Plaintiff alleges Defendants owed a duty of care to Plaintiff to appoint, hire, retain, and supervise persons who would not engage in discriminatory, harassing, or retaliatory conduct. (FAC ¶115.) Plaintiff alleges Defendants owed a duty of care to Plaintiff not to retain managers or employees who would discriminate, harass or retaliate against employees for engaging in legally protected activity. (FAC ¶115.) Plaintiff alleges Defendants also owed a duty of care to Plaintiff to supervise its managers and employees closely to ensure they would appropriately handle requests for work accommodations and refrain from engaging in discriminatory conduct. (FAC ¶115.)

Plaintiff alleges Defendants breached these duties when they hired, supervised, and/or retained Defendants Morris and Hamilton, who were unfit to perform the work for which they were hired. (FAC ¶116.) Plaintiff alleges considering Plaintiff’s numerous requests for accommodation and repeated complaints, Defendants knew or should have known that these three named Defendants were unfit, and that this unfitness created a particular risk of harm to others. (FAC ¶116.)

Plaintiff alleges Defendants’ negligence in hiring, supervising and/or retaining Defendants MORRIS And HAMILTON was a substantial factor in causing Plaintiff’s harm. (FAC ¶117.)

Plaintiff alleges as a direct and proximate cause of Defendants’ conduct, Plaintiff has suffered and continues to suffer substantial losses in wages, bonuses, benefits, career path opportunities and other out of pocket expenses in an amount according to proof at the time of trial. (FAC ¶118.) Plaintiff alleges as a direct and proximate result of Defendants’ aforementioned acts, Plaintiff has also suffered and/or incurred general damages for depression, anxiety, fatigue, loss of sleep, financial insecurity, humiliation, loss of reputation, stress, a sense of loss and detachment, and mental pain and anguish, in an amount according to proof at the time of trial. (FAC ¶119.)

Plaintiff sufficiently alleges a cause of action for negligent hiring, retention, or supervision. Plaintiff alleges LACCD hired, supervised, and retained Defendants Morris and Hamilton and that Morris and Hamilton were unfit to perform their jobs. (FAC ¶116.) Plaintiff alleges LACCD knew, or should have known, of Morris and Hamilton’s misconduct and refusal to accommodate Plaintiff. Id. LACCD knew, or should have known, that Morris and Hamilton’s unfitness created a particular risk of causing Plaintiff harm. (FAC ¶116.) Plaintiff alleges Morris and Hamilton’s unfitness for their roles did harm Plaintiff. (FAC ¶117.)

Accordingly, Defendants’ demurrer to Plaintiff’s 10th cause of action is overruled.

Defendants’ demurrer to Plaintiff’s 9th and 10th causes of action is overruled.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Defendants only demur to the 9th and 10th causes of action and do not demur to the 1st through 8th causes of action.