Judge: David B. Gelfound, Case: 24CHCV03747, Date: 2025-03-18 Tentative Ruling

Case Number: 24CHCV03747    Hearing Date: March 18, 2025    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER WITH MOTION TO STRIKE

Motion filed: 12/6/24

MOVING PARTY: Defendant MPT America Corporation d/b/a Metal Plasma Technology America Corporation

RESPONDING PARTY: Plaintiff Huckleberry Boles

NOTICE: OK.

RELIEF REQUESTED: An order sustaining Defendant’s Demurrer to all causes of action asserted in Plaintiff’s Complaint.

TENTATIVE RULING: The Demurrer is SUSTAINED IN PART. Motion to Strike is GRANTED.  Plaintiff is GRANTED 30 days LEAVE TO AMEND.

BACKGROUND

This action arises from an employment dispute.

On October 14, 2024, Plaintiff Huckleberry Boles (“Plaintiff” or “Boles”) filed a Complaint against Defendant MPT America Corporation d/b/a Metal Plasma Technology America Corporation (“Defendant” or “MPT”) and Does 1 through 10, alleging the following causes of action: (1) Whistleblower Retaliation (Lab. Code § 1102.5), (2) Wrongful Termination in Violation of Public Policy, (3) Unfair Business Practices, (4) Intentional Infliction of Emotional Distress, and (5) FEHA Retaliation.

On December 6, 2024, MPT filed the instant Demurrer and concurrently a Motion to Strike (the “Motion”). Subsequently, Plaintiff filed an Opposition on February 28, 2025, and MPT submitted a Reply on March 11, 2025.

ANALYSIS

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)

At the pleading stage, a plaintiff needs only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against them. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 721.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law[.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

A.    Meet and Confer

A party filing a demurrer “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.” (Code Civ. Proc., § 430.41, subd. (a).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., § 430.41, subd. (a)(4).)

Here, MPT has satisfied the meet and confer requirements. (Di Palma Decl. ¶¶ 3,5.)

B.     First Cause of Action – Whistleblower Retaliation (Lab. Code § 1102.5)

Labor Law section 1105.2, subdivision (b) provides that: “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, 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.”

Additionally, Labor Code section 1102.6 requires whistleblower plaintiffs to show that retaliation was a “contributing factor” in their termination, demotion, or other adverse action. (Lab. Code § 1102.6; see, e.g., State Comp. Ins. Fund v. Ind. Acc. Com. (1959) 176 Cal.App.2d 10, 17 (State Comp. Ins. Fund) [describing a contributing factor standard as one in which the conduct at issue need not be the “exclusive cause” of the plaintiff's injuries]; Rookaird v. BNSF Ry. Co. (9th Cir. 2018) 908 F.3d 451, 461 (Rookaird) [“ ‘A “contributing factor” includes “any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision” ’ ”].)

            Here, the Complaint asserts that “Plaintiff engaged in protected activity under Labor Code § 1102.5 when he reported concerns about falsified certificates to the new owners in November 2023, discovered and reported evidence of fraud in June 2024, and identified and reported a fraudulent blueprint in July 2024.” (Compl. ¶ 37.) “Plaintiff also engaged in protected activity when he reported safety hazards and OSHA violations in the workplace throughout his employment.” (Id. ¶ 38.) “Defendant was aware of Plaintiff's protected activities, as these reports were made directly to company management.” (Id. ¶ 39.) “Plaintiff was subjected to adverse employment action when he was terminated on August 5, 2024, shortly after his most recent protected activities.” (Id. ¶ 40.) “There is a causal relationship between Plaintiff's protected activities and his termination, as evidenced by the close temporal proximity between his reports of fraudulent practices and his termination, as well as the lack of any clear explanation or prior disciplinary actions.” (Id. ¶ 41.) “As a result of Defendant's retaliatory actions, Plaintiff has suffered harm, including lost wages, benefits, and future earning capacity, as well as emotional distress and damage to his professional reputation.” (Id. ¶ 42.)

The Court finds the allegations sufficient to state a whistleblower retaliation claim under Labor Code § 1102.5, subdivision (b). First, “fraud” and “safety hazards and OSHA violations” constitute unlawful conduct covered under this section, as they involve violations of law or regulations. Second, Plaintiff alleges that he made reports directly to company management (Compl. ¶ 39), constituting a disclosure to “person with authority over the employee ... who has the authority to investigate, discover, or correct the violation or noncompliance.” (Lab. Code § 1102.5, subd. (b).) Third, the Complaint explicitly states that Plaintiff was terminated on August 5, 2024 (Compl. ¶ 40), which constitutes an adverse employment action under the statute. Finally, Plaintiff alleges “close temporal proximity” between the protected activity and termination, further asserting that “there was no clear explanation or prior disciplinary actions” to justify the termination. (Id. ¶ 41.)  Therefore, the Court finds the factual allegations sufficiently state key elements of the claim.

MPT argues that the allegations fail to show temporal proximity because Plaintiff was terminated nearly nine months later since his alleged protected conduct. (Dem. at p. 4.) The Court disagrees.

It is clear that Plaintiff explicitly alleges that he discovered and reported evidence of fraud in June 2024, and further identified and reported a fraudulent blueprint in July 2024. (Compl. ¶ 37.) This timeline establishes a continuous course of conduct of protected activities, culminating in his termination which shortly followed on August 5, 2024. The proximity between these events support a causal connection.

Accordingly, the Court finds MPT’s argument unpersuasive and OVERRULES the Demurrer as to the First Cause of Action.

C.    Second Cause of Action – Wrongful Termination in Violation of Public Policy

Under California law, “[t]he elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)

MPT argues that Plaintiff fails to articulate a policy that may serve as the basis for the Second Cause of Action. Additionally, MPT contends that reporting of “fraudulent practices” and “safety concerns” does not constitute protected activities, and that Plaintiff fails to allege that his termination was substantially motivated by the activities. (Dem. at p. 7.)

The Court disagrees.

            First, it is undisputed that there existed an employer-employee relationship between MPT and Plaintiff, and that this relationship was terminated on August 5, 2024. (Compl. ¶¶ 3, 40.)

            Second, established case law recognizes that both state law and federal law may provide the basis for a wrongful termination claim grounded in public policy. (Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th 218, 234; Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 74 [“federal safety regulations promulgated to address important public safety concerns may serve as a source of fundamental public policy”]; Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39, 45 (Daly) [stating dicta that employment discharge for employees’ complaining about unsafe working conditions could support claim for public-policy violation].)

            Here, Plaintiff alleges that he reported safety hazard and OSHA violations in the workplace throughout his employment. (Compl. ¶ 38.) Additionally, Plaintiff asserts that his termination “violate[d] the public policy of the State of California ... [including] Labor Code § 1102.5, which protects employees who report violations of law or safety concerns” (id. ¶ 44), and “Labor Code § 1102.5” (id. ¶ 46). In alignment with the precedent, the Court finds that protecting whistleblowers and ensuring workplace safety are fundamental California public policies. (See e.g., Daly, supra, 55 Cal.App.4th at p. 45.) Notably, workplace safety laws are designed to protect all employees and consumers, not just the whistleblower. Accordingly, Plaintiff has adequately identified fundamental public policies rooted in statutory law.

            Third, Plaintiff sufficiently alleged a causal connection between his termination and the violation of public policy. The “close temporal proximity” between his reports and termination, coupled with the absence of a “clear explanation or prior disciplinary actions,” supports an inference that his protected activity was a contributing motivating factor in his termination.

            Accordingly, the Court finds that Plaintiff has sufficiently pleaded factual allegations supporting the Second Cause of Action at the demurrer stage.

            Therefore, the Court OVERRULES the Demurrer as to the Second Cause of Action.

D.    Third Cause of Action – Unfair Business Practices (Business and Professions Code § 17200 Et Seq.)

MPT demurs to the Third Cause of Action on the sole ground that the Unfair Business Practices claim is derivative of Plaintiff’s First and Second Causes of Action based on violations of Labor Codes, arguing that because there is no underlying unlawful act to support the derivative claim, the Third Cause of Action fails as a matter of law.” (Dem. at p. 7.)

However, the Court has determined that Plaintiff’s First and Second Causes of Action withstand the Demurrer. As they establish valid claims of unlawful conduct by Defendant, they provide a sufficient basis to support the derivative Unfair Business Practices claim.

Accordingly, the Court OVERRULES the Demurrer as to the Third Cause of Action.

E.     Fourth Cause of Action – Intentional Infliction of Emotional Distress

The elements of a cause of action for Intentional Infliction of Emotional Distress (IIED) are as follows: (1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)

MPT contends that the Plaintiff has failed to allege outrageous conduct by MPT. (Dem. at p. 6.) The Court agrees.

(1)   Extreme and Outrageous Conduct by MPT

To survive a demurrer, the plaintiff must allege with “greater specificity” the acts which he or she believes “are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Schlauch v. Hartford Accident & Indemnity Co. (1983) 146 Cal.App.3d 926, 936.)

Here, the Complaint incorporates allegations made under the First, Second, and Third Causes of Action but does not include additional allegations demonstrating MPT’s extreme and outrageous conduct. Plaintiff argues that his termination – occurring immediately after returning sick leave and after reporting fraudulent practices that endangered public safety – constitutes extreme and outrageous conduct.  (Opp’n. at p. 5.)

However, the California Supreme Court has made clear that an employee’s emotional distress arising from normal employment actions, such as discipline, termination, and workplace dispute, generally fall within the exclusive remedy provisions of worker’s compensation (in Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 (Cole); see also Shoemaker v. Myers (1990) 52 Cal.3d 1, 25 (Shoemaker); Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 [“a simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.”])

Here, Plaintiff incorporates into his cause of action for intentional infliction of emotional distress all the allegations of his previous causes of action. However, he fails to plead additional facts demonstrating that MPT’s conduct was beyond the normal employment relationship. (See Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 1430 [recognizing an exception where a supervisor’s persistent personal harassment of an employee, including acts of physical molestation and deliberate humiliation, was sufficiently extreme to fall outside the scope of worker’s compensation exclusivity.]) 

Plaintiff asserts that “[t]he Worker’s Compensation Act preemption argument fails because systematic retaliation against protected whistleblowing falls outside normal employment risks.” (Opp’n. at p. 5.) However, Plaintiff provides no legal authority or analysis to support this assertion.

To the contrary, this same argument was rejected in Shoemaker, supra, 52 Cal.3d at p. 26. There, the plaintiff, like Plaintiff here, alleged whistleblower retaliation and also a wrongful termination in violation of public policies. Although he incorporated these allegations as part of his claim of intentional infliction of emotional distress, the Shoemaker court held that worker’s compensation was the plaintiff’s exclusive remedy and affirmed the trial court’s dismissal of his intentional infliction of emotional distress claim. (Ibid.)

Accordingly, the Court concludes that the Complaint fails to allege the extreme and outrageous conduct by MPT that exceeds the bounds of a normal employment relationship.

            Therefore, the Court SUSTAINS the Demurrer as to the Fourth Cause of Action.

F.     Fifth Cause of Action – FEHA Retaliation

The Fair Employment and Housing Act (FEHA) declares it an “unlawful employment practice” for any employer “because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, ... to discharge the person from employment ..., or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).)

The statute further prohibits employers from “discharg[ing], expel[ling], or otherwise discriminat[ing] against any person because the person has opposed any practices forbidden under this part ....” (Gov. Code § 12940, subd. (h).)

The elements of a claim for retaliation in violation of Government Code section 12940, subdivision (h), are: (1) the employee's engagement in a protected activity, i.e., “oppos[ing] any practices forbidden under this part”; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.)

MPT contends that the FEHA retaliation claim fails because Plaintiff has not sufficiently alleged his engagement in a protected activity under FEHA, arguing that even if a protected activity were established, Plaintiff fails to demonstrate the required causal link between the retaliatory animus and the adverse action. (Reply at p. 3.)

The Court finds that the Complaint does not clearly allege engagement of a FEHA- protected activity. Plaintiff primarily cites his activities tied to Labor Code section 1102.5 (California’s whistleblower statute) and public policy. While the reports of fraud and safety violations are protected under Labor Code 1102.5 and public policies, they do not fall within the narrower retaliation provision under the FEHA, which applies specifically to opposition to discriminatory or harassing conduct based on FEHA-protected characteristics such as race, sex, age, national origin, disability, etc. (See Gov. Code, § 12940, subd. (a).)

Plaintiff has offered no authority supporting his contention that reporting fraudulent practices and safety violations to management constitutes “protected activity” on which a FEHA retaliation claim may rest.

Accordingly, the Court finds that Plaintiff has failed to plead the threshold requirement of engaging in an FEHA-protected activity, thereby failing to establish a prima facie case for FEHA retaliation. Given this deficiency, the Court need not reach MPT’s alternative argument regarding causation as a separate independent ground for sustaining the Demurrer.

The Court therefore SUSTAINS the Demurrer as to the Fifth Cause of Action.

G.    Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

In its Motion to Strike, MPT seeks to strike the following portions from the Complaint:

1.      The entirety of Paragraph 6 of Plaintiff’s Prayer for Relief (page 11, line 1), which reads as follows: “For punitive and exemplary damages, according to proof[.]”

(1)   Punitive Damages

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

            Since the Court has overruled the Demurrer as to the First, Second, and Third Cause of Action, it notes that punitive damages are available only for the claims of whistleblower retaliation and wrongful termination in violation of public policies. (See Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 268 [“[P]unitive damages are available for a violation of Labor Code section 1102.5”]; Shaw v. Superior Court (2017) 2 Cal.5th 983, 1005, fn. 19 [“To the extent plaintiff seeks only compensatory and punitive damages or other legal remedies as to which a right to jury trial would apply, the cause of action under Tameny would be sufficient to afford plaintiff complete relief.”])

            However, punitive damages are not available for the Third Cause of Action for Unfair Business Practices. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144 [[A]ttorney fees and damages, including punitive damages, are not available under the UCL[.]”])

            Accordingly, the Court considers whether Plaintiff has satisfied the pleading requirements of punitive damages with respect to the First and Second Causes of Action only.

            Here, the Complaint contains no mention that MPT was guilty of “oppression, fraud, or malice” towards Plaintiff.

Under the First Cause of Action, the Complaint alleges that Plaintiff was retaliated for reporting fraudulent certificates and workplace safety issues (Compl. ¶¶ 37-38). Plaintiff further alleges that his termination was pretextual and occurred shortly after his reports. (Id. ¶¶ 40-41.)

However, the Complaint does not allege that MPT acted with malice, oppression, or fraud in carrying out the termination. Mere retaliation, without specific allegations of despicable conduct or intent to cause harm, is insufficient to meet the heightened pleading standard for punitive damages.

Similarly, under the Second Cause of Action, Plaintiff alleges that he was fired for engaging in protected activities. (Compl. ¶¶ 40-41.) However, termination alone does not support punitive damages unless Plaintiff pleads facts showing that MPT acted with malice, oppression, or fraud. The Complaint contains no allegations that MPT’s conduct rose to this level.

            Consequently, the Court finds MPT’s argument persuasive that the Complaint fails to meet the heightened pleading requirements for punitive damages.

            Accordingly, the Court GRANTS the Motion to Strike.

H.    Leave to Amend

Generally, leave to amend is available when “the defect raised by a motion to strike or by demurrer is reasonably capable of cure . . . to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 304.)

Applying this principle and finding that the Complaint does not demonstrate on its face that it is incapable of amendment, the Court GRANTS Plaintiff 30 days Leave to Amend.

CONCLUSION

Defendant MPT America Corporation d/b/a Metal Plasma Technology America Corporation’s Demurrer to Fourth and Fifth Causes of Action in the Complaint is SUSTAINED.

Defendant MPT America Corporation d/b/a Metal Plasma Technology America Corporation’s Demurrer to First, Second, and Third Causes of Action in the Complaint is OVERRULED.

Defendant MPT America Corporation d/b/a Metal Plasma Technology America Corporation’s Motion to Strike is GRANTED.

Plaintiff Huckleberry Boles is GRANTED 30 days leave to amend.

Moving party to give notice.