Judge Daniel M. Crowley, Case Number: 24STCV20093, Date: 2024-12-30 Tentative Ruling

Defendants Kennco Plumbing, Inc.’s, Robert Kennedy’s, John Johnson’s, and Paul Yanez’s demurrer to Plaintiff Antonio Ceja’s Complaint is overruled as to the 3rd, 4th, 5th, 6th, 9th, 10th, and 12th causes of action and sustained with 20 days leave to amend as to the 1st, 2nd, 7th, 8th, and 11th causes of action.

Defendants Kennco Plumbing, Inc. (“Kennco”), Robert Kennedy (“Kennedy”), John Johnson (“Johnson”), and Paul Yanez (“Yanez”) (collectively, “Defendants”) demur Plaintiff Antonio Ceja’s (“Ceja”) (“Plaintiff”) twelve causes of action in his complaint (“Complaint”). (Notice of Demurrer, pgs. 1-2; C.C.P. §§430.10 et seq.)

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 she sent a letter to Plaintiff’s counsel regarding the deficiencies in Plaintiff’s Complaint on August 27, 2024, and requested Plaintiff’s counsel’s availability to discuss the parties’ respective positions. (See Decl. of Rouhi ¶3, Exh. B.) Defendants’ counsel indicates that on September 4, 2024, Plaintiff’s counsel responded to her letter and did not provide her availability to meet and confer, despite Defendants’ counsel’s efforts. (See Decl. of Rouhi ¶6, Exh. E.) Defendants’ counsel’s declaration is sufficient under C.C.P. §430.41(a)(3)(B). In the future, Defendants’ counsel is to attempt to meet and confer with Plaintiff’s counsel in person, by telephone, or by video conference as required by C.C.P. §430.41(a); corresponding by email or letter does not meet the requirements of the statute. Therefore, the Court will consider Defendants’ demurrer.

Plaintiff filed the operative Complaint on August 9, 2024, against Defendants alleging twelve causes of action: (1) Breach of Express Contract [against Kennco]; (2) Breach of Covenant of Good Faith and Fair Dealing [against Kennco]; (3) Wrongful Termination in Violation of Public Policy [against Kennco]; (4) Violation of California Constitution, Article I, §8 [against Defendants]; (5) Violation of Government Code §§12900 et seq. [against Defendants]; (6) Violation of Business & Professions Code §17200 [against Defendants]; (7) Fraud [against Defendants]; (8) Intentional Infliction of Emotional Distress [against Defendants]; (9) Violation of Labor Code §§551, 552, 1102.5 [against Kennco]; (10) Violation of Labor Code- rest, meal period, overtime [against Kennco]; (11) Violation of Labor Code §§98.6, 1102.5, 6400 et seq., 6310- unsafe work conditions, whistleblower [against Defendants]; and (12) Violation of Labor Code §§226, 1198.5- wage statements [against Kennco].

Defendants filed the instant demurrer on October 10, 2024. Plaintiff filed his opposition on December 16, 2024. Defendants filed their reply on December 20, 2024.

Plaintiff alleges he is a Latino male over the age of 40 who was employed by Kennco as a plumber/laborer since 2021. (Complaint ¶1.) Plaintiff alleges he was a loyal employee who had extensive experience and knowledge in his trade, had a prior work injury, was disabled, and after he reported safety violations and need for disability accommodation, on or about August 11, 2022, was denied evaluation for accommodation, was denied accommodation, and was wrongfully terminated by Defendants. (Complaint ¶1.)

Plaintiff alleges that at all relevant times his employ was managed and controlled by Kennco’s owner Kennedy, who Plaintiff is informed and believes authorized and ratified what occurred as alleged herein; Yanez, Kennco’s Human Resources manager and Plaintiff’s manager; and Johnson, Kennco’s “Finish Superintendent” and Plaintiff’s direct supervisor/Manager (collectively, “Managers”). (Complaint ¶2.) Plaintiff alleges the conduct was discriminatory, personally harassing, and intended to and did cause a severely hostile workplace, wherein despicable, malicious and oppressive conduct was condoned and permitted in the workplace by all Defendants. (Complaint ¶2.) Plaintiff alleges he was called a “liability” due to being an older disabled person and was treated differently than Caucasians and his younger non-disabled co-workers. (Complaint ¶2.) Plaintiff alleges that when he protested, he was retaliated against, and the conduct persisted until he was wrongfully terminated. (Complaint ¶2.)

Plaintiff alleges he was disabled with orthopedic issues, diabetes issues and resultant symptoms, which he disclosed to Defendants and which Defendant Managers required him to self-accommodate. (Complaint ¶3.) Plaintiff alleges he accommodated testing his blood sugar levels, maintaining proper blood sugar levels, and eating as needed by taking breaks when he could, however, he was also denied reasonable rest and meal periods, was not paid for all his work hours, and worked overtime for which he was not paid. (Complaint ¶3.) Plaintiff alleges Defendants were advised of his disabilities, need for accommodation, and his need for breaks, and that other times he was denied breaks, and Defendants refused to evaluate him for accommodation, so he was forced to accommodate himself. (Complaint ¶3.)

Plaintiff alleges that on or about August 9, 2022, Plaintiff specifically advised Defendants of his need to be accommodated, and that he had upcoming doctor’s appointments relating to his disability and needed time to attend them. (Complaint ¶4.) Plaintiff alleges the time would not affect his work, all of which he could complete. (Complaint ¶4.) Plaintiff alleges Defendants, specifically Johnson, with the approval of the other Managers, refused to evaluate Plaintiff’s need for accommodation and demanded that he take a week off without pay. (Complaint ¶4.) Plaintiff alleges that he refused. (Complaint ¶4.)

Plaintiff alleges on or about August 9, 2022, he protested against unsafe work conditions and refused to work due to the unsafe condition. (Complaint ¶5.) Plaintiff alleges that he was concerned that he might trip and fall due to his diabetes and related issues. (Complaint ¶5.) Plaintiff alleges his younger co-workers continued to work despite the dangerous conditions. (Complaint ¶5.) Plaintiff alleges that after he complained, he was told by Johnson he was a liability due to his disability, perceived disability, age and for having protested, and he was fired on August 11, 2022. (Complaint ¶5.)

Defendants demur to each cause of action on the basis they fail to state facts sufficient to constitute a cause of action against Defendants. (Demurrer, pgs. 1-3; C.C.P. §430.10(e).) Defendants demur to the 1st and 2nd causes of action on the basis each fails to establish whether the alleged contract at issue is written, oral, or implied by conduct. (Demurrer, pg. 1; C.C.P. §430.10(g).)

“[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.)

The elements for a breach contract are: (1) existence of a contract; (2) plaintiff’s performance of the contract or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Although a written contract is usually pleaded by alleging its making and attaching a copy which is incorporated by reference, a written contract can also be pleaded by alleging the making and the substance of the relevant terms. (Construction Protective Services, Inc. v. TIG Specialty Insurance Co. (2002) 29 Cal.4th 189, 198-199; Perry v. Robertson (1988) 201 Cal.App.3d 333, 341.) “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words. [Citation.] A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. [Citations.]” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) That plaintiff could not allege with specificity the exact terms of the contract does not preclude statement of a cause of action. (Id.)

Plaintiff alleges Kennco and Plaintiff entered into a contract wherein Plaintiff was to be employed by Defendant, that he would be treated fairly, not harassed, discriminated against, or retaliated against. (Complaint ¶17.) Plaintiff alleges Kennco’s promises were terms of a contract between Plaintiff and Kennco. (Complaint ¶17.) Plaintiff alleges that from the beginning of his employment through the date of his termination, was a loyal and hardworking employee who relied upon Kennco’s promises. (Complaint ¶17.)

Plaintiff alleges that he has performed each and every condition and covenant required on his part to be performed pursuant to said employment agreement. (Complaint ¶18.)

Plaintiff alleges that pursuant to said employment agreement, Kennco expressly promised Plaintiff’s employment would continue as long as he performed satisfactorily and obeyed all reasonable and lawful directions of his employment. (Complaint ¶19.) Plaintiff alleges that based thereon, he did not seek other employment. (Complaint ¶20.)

Plaintiff alleges Kennco breached said employment agreement and its express and implied promises by arbitrarily and wrongfully terminating Plaintiff based upon the motivating factors stated above, in violation of Kennco’s promises.

Plaintiff fails to allege whether the contract at issue is written, oral, or implied by conduct. (C.C.P. §430.10(g).) Plaintiff fails to allege facts to establish when the agreement was made, the particular terms of the agreement, and whether there was any consideration or mutual acceptance and agreement by the parties. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 337.) Moreover, as relevant to employment contract claims, there is a strong statutory presumption that the relationship between an employer and employee in California is “at-will,” absent an employment agreement which specifies the length of employment or the grounds for termination. (See Labor Code §2922; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 678.) Plaintiff fails to allege facts sufficient to prove the existence of a contract, as opposed to an at-will agreement, or that Kennco breached any contract.

Accordingly, Defendants’ demurrer to Plaintiff’s 1st cause of action is sustained with 20 days leave to amend.

“There is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.” (Comunale v. Traders & General Insurance Co. (1958) 50 Cal.2d 654, 658.) The covenant of good faith and fair dealings cannot “be endowed with an existence independent of its contractual underpinnings.” (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1153.)

Plaintiff alleges the laws of the State of California imply a covenant of good faith and fair dealing into the relationship between Plaintiff and Kennco. (Complaint ¶23.) Plaintiff alleges the covenant requires that each party to the employment contract act with fairness and good faith toward the other, and that neither party nor their agents or employees should take any action to prevent the other from reaping the benefits of the relationship. (Complaint ¶23.) Plaintiff alleges the covenant further requires Defendant to refrain from needless injury or damage to Plaintiff. (Complaint ¶23.) Plaintiff alleges the covenant further requires Defendant to conform to all laws of the State of California and to refrain from violating any laws which detrimentally affects Plaintiff. (Complaint ¶23.) Plaintiff alleges the covenant further requires Defendant to maintain a workplace free from the pernicious influence of discrimination and retaliation, to afford Plaintiff the benefits of all rules and regulations adopted for his protection. (Complaint ¶23.) Plaintiff alleges the above said acts of Defendant, its agents and employees, constitute a breach of the covenant of good faith and fair dealing. Said breach is a substantial factor causing damage to Plaintiff. (Complaint ¶23.)

Plaintiff alleges that he entered into the contract to secure peace of mind, comfort, happiness, personal esteem and financial security of his job/position. (Complaint ¶24.) Plaintiff alleges that in reliance on the contract, he did not seek other employment and remained employed in reliance upon Defendant’s express and implied promises as mentioned herein. (Complaint ¶24.)

Plaintiff alleges Defendant’s wrongful termination of Plaintiff as indicated above was caused by improper motives, which were not based on fact and were due to Defendant’s wrongful and malicious conduct. (Complaint ¶25.)

Plaintiff alleges Defendant, and its agents and employees, at all times knew or should have known that the Defendants were committing wrongful acts and omissions against Plaintiff and other employees. (Complaint ¶26.)

Plaintiff alleges said action on the part of Defendant and its agents and employees constituted bad faith actions extraneous to the contract with the intent and purpose of frustrating the contract, and to wrongfully terminate Plaintiff. (Complaint ¶27.) Plaintiff alleges Defendant’s conduct did in fact result in Plaintiff suffering financial loss and emotional upset. (Complaint ¶27.)

Plaintiff fails to allege the existence of a contract. Plaintiff fails to allege whether the contract at issue is written, oral, or implied by conduct. (C.C.P. §430.10(g).) Plaintiff fails to allege facts to establish when the agreement was made, the particular terms of the agreement, and whether there was any consideration or mutual acceptance and agreement by the parties. (Guz, 24 Cal.4th at pg. 337.)

Accordingly, Defendants’ demurrer to Plaintiff’s 2nd cause of action is sustained with 20 days leave to amend.

To establish a wrongful termination claim, Plaintiff must show: (1) he was employed by the company; (2) the company terminated his employment; (3) a violation of public policy substantially motivated the discharge; and (4) the discharge caused harm to him. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 643.) To that extent, a plaintiff will also need to demonstrate the existence of a public policy that (a) is derived from regulatory, statutory or constitutional authority, (b) inures to the public interest generally, (c) is well-established at the time of discharge, and (d) is fundamental and substantial. (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 74-80.)

Plaintiff alleges Defendant’s wrongful treatment of Plaintiff and termination of Plaintiff was in violation of fundamental public policies of the State of California as it included illegal conduct and other wrongful activity of discrimination, harassment and retaliation. Said policies are stated in the common laws and statutes of the State of California, those stated herein and stated in the FEHA [Fair Employment and Housing Act], the California Constitution, Civil Code, Labor Code, Health and Safety Code, Business and Professions Code and other regulations, rules, laws, statutes and case law. (Complaint ¶32.)

Plaintiff alleges his termination by Defendant wrongful and in violation of these fundamental principles of the public policy of the State of California. (Complaint ¶33.) Plaintiff alleges that as a result of said employment relationship, Defendant was obligated to refrain from wrongfully terminating Plaintiff, or any employee, for reasons which violate or circumvent said policy, law, or the objectives which underlie each and not to compound its illegal conduct. (Complaint ¶34.) Plaintiff alleges as a direct and foreseeable result of the aforesaid acts of Defendant, its agents and employees, Plaintiff has lost and will continue to lose income and benefits in an amount to be proven at the time of trial. (Complaint ¶35.) Plaintiff alleges he has also incurred attorney fees. (Complaint ¶35.) Plaintiff alleges he claims such amount as damages together with pre-judgment interest pursuant to C.C.P. §3287 and/or any other provision of law providing for pre-judgment interest. (Complaint ¶35.)

Plaintiff alleges that as a result of the aforesaid acts of Defendant, Plaintiff has suffered financial damages and has become mentally depressed, upset, distressed and aggravated. (Complaint ¶36.) Plaintiff claims general damages for such financial loss and mental and emotional distress and aggravation in a sum to be proven at trial. (Complaint ¶36.)

Plaintiff sufficiently alleges a cause of action for wrongful termination in violation of public policy. Plaintiff alleges that his termination violated policies stated in “FEHA, the California Constitution, Civil Code, Labor Code, Health and Safety Code, Business and Professions Code and other regulations, rules, laws, statutes and case law.” (Complaint ¶32.) Plaintiff’s allegations are sufficient to put Defendants on notice of the basis for the instant claim.

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

Article I, §8 of the California Constitution states: “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, §8.)

State constitutional prohibition against sex discrimination applies to private as well as state action and reflects a fundamental public policy against discrimination so as to support a claim of wrongful termination in violation of public policy. (Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 82, rehearing denied, quoting Rojo v. Kliger (1990) 52 Cal.3d 65, 90 [“California’s prohibition against sex discrimination is also distinguishable as it applies to private as well as state action and ‘unquestionably reflects a fundamental public policy against discrimination.’”].)

A cause of action for failure to accommodate in violation of FEHA requires the following elements: (1) Plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of a sought reassigned job with or without reasonable accommodations; and (3) the employer failed to reasonably accommodate. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193 [reasonable accommodations include job restructuring, modified work schedules, reassignments, providing readers or interpreters, and paid or unpaid leave]; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256, 264-265 [employer’s allowing a disabled employee to apply for positions fails to meet the employer’s burden to show a reasonable accommodation, and impermissibly would shift to the employee the burden to identify reasonable accommodations]; see also Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 994 [“Reasonable accommodation” means “‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’”]; Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 975-976 [reasonable accommodation under FEHA includes adjusting the workplace to enable employees to perform essential functions of held or desired jobs].)

Plaintiff alleges that throughout his employment, he was a loyal and hardworking employee. (Complaint ¶43.) Plaintiff alleges Defendants subjected Plaintiff to discrimination, harassment, retaliation motivated by his age, race, national origin, ancestry, color, perceived medical condition/sickness and need for family care or medical leave (CFRA), disability, perceived disability, association with protected classes, denied him a good faith interactive process, denied him a work environment free of discrimination and/or retaliation, denied him pay, employment, denied reasonable accommodation and rest periods, resulting in reprimand, hostile work environment, wrongful termination of Plaintiff, causing him physical injury, emotional distress and other damages. (Complaint ¶43.) Plaintiff alleges Defendants’ harassment was severe, pervasive and caused Plaintiff extreme distress. (Complaint ¶43.)

Plaintiff alleges Defendants owed Plaintiff a duty to screen and hire capable and qualified individuals to assist them and to serve as agents, including all Co-Defendants who were direct or indirectly involved in Plaintiff’s employ. (Complaint ¶44.) Plaintiff alleges Defendants owed a duty to persons similarly situated as Plaintiff to properly oversee and to direct their agents, associates, and not to permit the abusive conduct they inflicted and condoned. (Complaint ¶44.)

Plaintiff alleges Kennco had a duty to evaluate Plaintiff through a good faith interactive process to determine if he required accommodation. (Complaint ¶45.) Plaintiff alleges Defendants refused this process and refused accommodation. (Complaint ¶45.) Plaintiff alleges these duties were breached by Defendants. (Complaint ¶45.)

Plaintiff alleges as a proximate consequence of Defendants’ wrongful acts of discrimination and retaliation against Plaintiff, he has suffered lost wages, benefits, incurred attorney fees, suffered emotional distress and other general and special damages. (Complaint ¶47.)

Plaintiff sufficiently alleges a cause of action for failure to accommodate in violation of FEHA. Plaintiff alleges he was disabled, sought reasonable accommodations, and was denied such accommodations. (Complaint ¶3.)[1]

Accordingly, Defendants’ demurrer to Plaintiff’s 5th cause of action is overruled.

A cause of action for unfair business practices under the unfairness prong must allege the following elements: (1) a business practice; (2) that is unfair, unlawful or fraudulent; and (3) an authorized remedy. (Bus. & Prof. Code §17200; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676; see also 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 [“The Unfair Business Practices Act defines ‘unfair competition’ as any ‘unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising….’ (§ 17200.) The 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.’”]; Drum v. San Fernando Valley Bar Association (2010) 182 Cal.App.4th 247, 256 [“a split of authority developed among the Courts of Appeal, which have applied three different tests for unfairness in consumer cases.”].)

Plaintiff alleges Defendants engaged in the acts and omissions heretofore alleged for the purpose of depriving Plaintiff of income, benefits. (Complaint ¶49.) 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 ¶49.)

Plaintiff alleges as a proximate result of Defendants’ wrongful acts Plaintiff seeks all damages allowed pursuant to statute. (Complaint ¶50.) Plaintiff alleges Defendants profited thereby and also profited from similar treatment of others. (Complaint ¶50.) Plaintiff seeks disgorgement of said profits, restitution and fees as a private attorney general. (Complaint ¶50.)

Plaintiff sufficiently alleges a cause of action for violation of Business & Professions Code §17200. Plaintiff has properly pled causes of action for Violation of FEHA, Wrongful Termination in Violation of Public Policy, and Violation of the California Constitution.

Accordingly, Defendants’ demurrer to Plaintiff’s 6th cause of action is overruled.

Plaintiff alleges Defendants made representations of material fact which were in fact false. (Complaint ¶53.) Plaintiff alleges Defendants made the representations with the intent to defraud and induce Plaintiff to act as described herein. (Complaint ¶53.) Plaintiff alleges that at the time Plaintiff acted, Plaintiff did not know the representations were false and believed they were true. (Complaint ¶53.) Plaintiff alleges he acted in justifiable reliance upon the truth of the representations. (Complaint ¶53.) Plaintiff alleges Defendants made such promises without any intention of performing them. (Complaint ¶53.) Plaintiff alleges in reliance on the company’s promises, Plaintiff continued to work for Defendants. (Complaint ¶53.)

Plaintiff alleges as a proximate consequence of Defendants’ wrongful acts against Plaintiff, he has suffered lost wages, emotional distress and other general and special damages, including lost interest. (Complaint ¶54.)

Plaintiff fails to sufficiently allege a cause of action for intentional misrepresentation. Plaintiff fails to allege 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.)

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

“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.)

“‘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.)

“With respect to the requirement that the 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.”’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)

Plaintiff alleges that when Defendants, through their agents and employees, committed the acts described in this Complaint, they did so deliberately and intentionally to cause Plaintiff to suffer humiliation, mental anguish, and emotional distress. (Complaint ¶57.) Plaintiff alleges the outrageousness of the abovementioned conduct is amplified due to Defendants’ abuse of their position, which gave actual and apparent authority over Plaintiff, such as is commonly found in employment relationships. (Complaint ¶57.) Plaintiff alleges Defendants were aware Plaintiff was relying upon his employment to sustain himself. (Complaint ¶57.) Plaintiff alleges Defendants were aware that mistreating Plaintiff and terminating his employment in the manner in which they did would cause Plaintiff without notice, to suffer extreme emotional distress, and other consequential damages. (Complaint ¶57.)

Plaintiff alleges that when Defendants, acting through their agents and employees, did the acts described in this Complaint to wrongfully terminate Plaintiff’s employment, they did so deliberately and intentionally to cause emotional distress to Plaintiff. (Complaint ¶58.) Plaintiff alleges the acts of Defendants, through their agents and employees cannot be expected to normally occur in the workplace. (Complaint ¶58.) Plaintiff alleges

Plaintiff fails to allege “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) Plaintiff provides mere conclusory allegations pertaining to the emotional distress suffered.

Accordingly, Defendants’ demurrer to Plaintiff’s 8th cause of action is sustained with 20 days leave to amend.

Labor Code §551 provides that “every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”

Labor Code §552 provides that “no employer of labor shall cause his employees to work more than six days in seven.”

Labor Code §1102.5(b) states that “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee . . . because the employer believes that the employee . . . may disclose information, to a government or law enforcement agency, . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.” Labor Code §1102.5(d) states “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment.”

Plaintiff alleges Kennco denying Plaintiff rest days, refusing to comply with FEHA, and terminating Plaintiff’s employment after he protested illegal treatment constituted a violation of Labor Code §1102.5(b) and (d). (Complaint ¶65.)

Labor Code §§226, 512, and Wage Order 2-2001, paragraph 11(A) provides “No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes . . ..”

Wage Order 2-2001, paragraph 11(D) provides: “If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.”

Labor Code §226 and Wage Order 2-2001 paragraph 12(A) states: “Every employer shall authorize and permit all employees to take rest periods. . . The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. . . Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”

Wage Order 2-2001, paragraph 12(B) provides: “if an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hours of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.”

Plaintiff alleges that during the course of his employment, Plaintiff worked without breaks. (Complaint ¶73.) Plaintiff alleges Defendants knowingly and willfully failed to allow Plaintiff to take rest breaks or meal periods. (Complaint ¶73.) Plaintiff alleges Defendants knowingly and willfully refused to pay proper wages for overtime. (Complaint ¶73.)

Plaintiff alleges Defendants have failed and refused and continue to fail and refuse to pay Plaintiff the amounts owed to him for failing to allow both the rest, meal periods, and overtime. (Complaint ¶74.)

Plaintiff alleges Defendants’ failure to pay Plaintiff the required sums violate the provisions of the Labor Code and entitles Plaintiff to penalties and other damages. (Complaint ¶75.)

Plaintiff sufficiently alleges a cause of action for Labor Code §§226, 512, and Wage Order 2-2001.

A cause of action for whistleblower retaliation under the Labor Code requires the following elements: (1) a prima facie case of retaliation: (a) that Plaintiff engaged in a protected activity; (b) employer subjected Plaintiff to adverse employment action; and (c) there is a causal link between the two; (2) Defendant’s legitimate, nonretaliatory explanation for its acts; and (3) plaintiff’s showing that the explanation is merely a pretext for the retaliation. (Patten v. Grant Joint Union High School District (2005) 134 Cal.App.4th 1378, 1384; Hansen v. California Department of Corrections and Rehabilitation (2008) 171 Cal.App.4th 1537, 1546 [emphasizing that there must have been an employer-employee relationship existing at the time of the alleged retaliation]; see also Green, 19 Cal.4th at pg. 77 [stating §1102.5(b) protects employees who report to public agencies, not those who report suspicions directly to the employer].)

Plaintiff alleges Labor Code §§98.6, 6310, and 6400 required Defendants to maintain a safe workplace and not to retaliate against Plaintiff or terminate his employment if he protested same. (Complaint ¶79.)

Plaintiff alleges Defendants’ conduct violated the provisions of the California Labor Code and entitles Plaintiff to penalties and other damages. (Complaint ¶80.) Plaintiff alleges as a result of Defendants’ conduct Plaintiff is entitled to recovery of general and special damages, such amounts, plus penalties, interest thereon, attorney’s fees, and costs, under the law. (Complaint ¶80.) Plaintiff alleges he also seeks penalties pursuant to the California Labor Code. (Complaint ¶80.)

Plaintiff fails to allege a cause of action under Labor Code §1102.5(b). Plaintiff fails to allege he reported an alleged illegal conduct to a public agency, or that he refused to participate in an unlawful activity. (See Green, 19 Cal.4th at pg. 77; CACI 4603.)

Accordingly, Defendants’ demurrer to Plaintiff’s 11th cause of action is sustained with 20 days leave to amend.

Labor Code §§226 and 1198.5 require an employer to provide employees with personnel records and accurate itemized statements in writing showing, among other things, total hours worked by the employee, all gross wages earned, and the correct applicable hourly rates.

Plaintiff alleges he requested his personnel records. (Complaint ¶84.) Plaintiff alleges he was not provided with complete personnel records or accurate itemized statements accurately showing all hours worked nor providing all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. (Complaint ¶84.) Plaintiff alleges he has been damaged and injured by Defendants’ intentional violation of Labor Code §§226 and 1198.5. (Complaint ¶84.)

Plaintiff sufficiently alleges a cause of action for violation of Labor Code §§226 and 1198.5.

Accordingly, Defendants’ demurrer to Plaintiff’s 12th cause of action is overruled.

Defendants’ demurrer to Plaintiff’s Complaint is overruled as to the 3rd, 4th, 5th, 6th, 9th, 10th, and 12th causes of action and sustained with 20 days leave to amend as to the 1st, 2nd, 7th, 8th, and 11th causes of action.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes that Defendants’ citation to an unpublished state trial court decision is improper and is not citable authority. (See CRC, Rule 8.1115(a) [unpublished appellate court or superior court appellate department opinions “must not be cited or relied on by a court or a party in any other action”]; Bolanos v. Superior Court (2008) 169 Cal.App.4th 744, 761 [citation of unrelated trial court order improper].)