Judge: Douglas W. Stern, Case: 22STCV25537, Date: 2023-03-07 Tentative Ruling

Case Number: 22STCV25537    Hearing Date: March 7, 2023    Dept: 68

Angel Artemio Valdez Figueroa v. Three D Service Company, Inc., et al., Case No. 22STCV25537

MOTION:       Demurrer to First Amended Complaint

MOVING PARTIES: Defendants Connor Padilla, Daniel Padilla, Justin Bruyneel, Alexys Diaz, and Three D Service Company, Inc.

RESPONDING PARTY:      Plaintiff Angel Artemio Valdez Figueroa

BACKGROUND

A. Basic Background

Plaintiff’s First Amended Complaint (FAC) alleges 21 employment-related causes of action against Defendants for alleged workplace discrimination and hostile work environment, among other things.  Other claims, not relevant to these 5 demurrers include various claims of failure to comply with numerous labor  law provisions, such as failure to pay overtime, failure to provide meal periods, failure to pay minimum wages, etc.

Insofar as relevant to these demurrers, Plaintiff alleges that he suffered harassment on the basis of his race, ancestry, and national origin and disability at the hands of supervisors when he worked for Defendant Three D.  Plaintiff alleges that he complained to Three D’s management about this harassment, but that management did not do anything.  Plaintiff also claims that after he contracted COVID-19, he was wrongfully terminated while quarantining.

B. Procedural

This action was originally filed by Plaintiff on August 8, 2022.  This Court sustained a demurrer to Plaintiff’s original complaint on November 28, 2022.  Plaintiff filed his FAC on December 19, 2022.  Defendants filed their Demurrers as to Plaintiff’s FAC on January 20, 2023. Plaintiff has filed oppositions.

ANALYSIS

A. The Demurrer

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  “A demurrer tests the pleading alone, and not the evidence or facts alleged.”  (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)  As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations.  (Id.)  The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action.  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the plaintiff to show the court that a pleading can be amended successfully.  (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)  However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.”  (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

1. Second Cause of Action for Hostile Work Environment Harassment – The Four Supervisors

Defendants Connor Padilla, Daniel Padilla, Justin Bruyneel, and Alexys Diaz all demur to Plaintiff’s FAC on the basis that it fails to state facts sufficient to maintain a cause of action for hostile work environment.  All four are similarly situated and the nature of the factual allegations against all of them is very similar such that the legal principles involved may be addressed similarly.

To allege hostile work environment harassment, a plaintiff must set forth facts showing the claimed harassment was based on a protected classification and was “severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees.”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.)  In determining what constitutes “sufficiently pervasive” harassment, “courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.”  (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.)

Courts consider the “frequency of the offensive encounters” and the “the total number of days over which all of the offensive conduct occurs,” in determining if the conduct is sufficiently “pervasive” to sustain a claim.  (Id.; but see also Etter v. Veriflo Corp., 67 Cal.App.4th 457 (1998) (racial remarks made to a stockroom worker every day for six weeks not severe and pervasive conduct).  Importantly, courts have long recognized that the laws prohibiting harassment are not intended to become a “general civility code” protecting employees from “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing,” which are not actionable.  (Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Fisher, 214 Cal.App.3d at 613.)  “‘[S]imple teasing,’ off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.”  (Id. at 807; but see also Haberman v. Cengage Learning, Inc., 180 Cal.App.4th 365, 383-386 (2009) (13 alleged incidents in two to three years, including telling plaintiff that she is “pretty,” “drop dead gorgeous,” and that others have the “hots” for her and want to date her is not sufficiently pervasive to create a hostile work environment.)

Plaintiff contends that to a large degree, Government Code Section 12923(b) changed the standard that the Court must apply when evaluating claims of the type made by Plaintiff.

“(b) A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.”  (Bold added.)  Gov. Code, § 12923

While the Legislature emphasized the point that a “single incident” may be sufficient, it did not change the nature of the conduct that must exist in order to rise to the level that it is actionable.  The Legislature’s observation that “[h]arassment cases are rarely appropriate for disposition on summary judgment” § 12923(e) does not change the nature of the offensive behavior that must be both pleaded and proven.

Defendant Connor Padilla

Plaintiff’s cause of action for hostile work environment harassment against Defendant Connor Padilla, an employee of Three D, is based on Plaintiff’s claim that Connor Padilla harassed Plaintiff and made comments related to his race, ancestry, and national origin.  The only specific example of such comments that Plaintiff gives in his FAC is when Connor allegedly stated to Plaintiff that “You have been here for so long and you don’t speak English?  How is it possible that you know English after all these years?”  (C. Padilla Motion at p. 4.)  Otherwise, Plaintiff just makes general claims about the harassing conduct.

Plaintiff has only provided one specific example of alleged harassing conduct on the part of Defendant Connor Padilla.  Notwithstanding the fact that under Gov’t Code § 12923(b) a single incident may be sufficient harassing conduct, it still must rise to the legal standard articulated in the various cases.  And as quoted above, in order to be actionable it must rise meet the level that the “harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.”

Accepting the allegations of the First Amended Complaint and assuming that Plaintiff could prove them, they do not state a cause of action for hostile work environment harassment against Defendant Connor Padilla.  Defendant Connor Padilla’s demurrer to Plaintiff’s Second Cause of Action is SUSTAINED.

Defendant Daniel Padilla

Plaintiff’s cause of action for hostile work environment harassment against Defendant Daniel Padilla, an employee of Three D, is based on Plaintiff’s claim that Daniel Padilla harassed Plaintiff and made comments related to his race, ancestry, and national origin.  The only specific example of such comments that Plaintiff gives in his FAC is when Daniel allegedly stated to Plaintiff that “I’m not talking to you, since you can’t speak English.” (D. Padilla’s Motion at p. 4.)  Otherwise, Plaintiff just makes general claims about the harassing conduct.

Plaintiff has only provided one specific example of alleged harassing conduct on the part of Defendant Daniel Padilla.  Notwithstanding the fact that under Gov’t Code § 12923(b) a single incident may be sufficient harassing conduct, it still must rise to the legal standard articulated in the various cases.  And as quoted above, in order to be actionable it must rise meet the level that the “harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.”

Accepting the allegations of the First Amended Complaint and assuming that Plaintiff could prove them, they do not state a cause of action for hostile work environment harassment against Defendant Daniel Padilla.  Defendant Daniel Padilla’s demurrer to Plaintiff’s Second Cause of Action is SUSTAINED.

Defendant Justin Bruyneel

Plaintiff’s cause of action for hostile work environment harassment against Defendant Justin Bruyneel, an employee of Three D, is based on Plaintiff’s claim that Justin Bruyneel told him “I’ve been for just as long and I’ve learned Spanish, puto pendejo,” and that Bruyneel brushed him and said, “If you don’t do it, then you don’t work.” (Bruyneel’s Motion at p. 4.)  Plaintiff does not give any further examples as to Bruyneel’s conduct.

Plaintiff has only provided two specific examples of alleged harassing conduct on the part of Defendant Justin Bruyneel.  Notwithstanding the fact that under Gov’t Code § 12923(b) a single incident may be sufficient harassing conduct, it still must rise to the legal standard articulated in the various cases.  And as quoted above, in order to be actionable it must rise meet the level that the “harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.”

Accepting the allegations of the First Amended Complaint and assuming that Plaintiff could prove them, they do not state a cause of action for hostile work environment harassment against Defendant Justin Bruyneel.  Defendant Justin Bruyneel’s demurrer to Plaintiff’s Second Cause of Action is SUSTAINED.

Defendant Alexys Diaz

Plaintiff’s cause of action for hostile work environment harassment against Defendant Alexys Diaz, an employee of Three D, is based on Plaintiff’s claim that Alexys Diaz made occasional and/or sporadic comments regarding his lack of belief in the validity of Plaintiff’s work restrictions and once swore at Plaintiff.  (Diaz’s Motion at p. 4.)  Plaintiff alleges that Alexys Diaz once told Plaintiff to “Go f*ck yourself!  Go to your house then!” when Plaintiff told him that he could not carry a heavy air tank, and that Alexys once told him that “Connor was right.  You are faking your injuries.”  (Diaz’s Motion at p. 5; FAC at ¶ 14(h)-(i).)

Plaintiff has only provided two specific examples of alleged harassing conduct on the part of Defendant Alexys Diaz.  Notwithstanding the fact that under Gov’t Code § 12923(b) a single incident may be sufficient harassing conduct, it still must rise to the legal standard articulated in the various cases.  And as quoted above, in order to be actionable it must rise meet the level that the “harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment.”

Accepting the allegations of the First Amended Complaint and assuming that Plaintiff could prove them, they do not state a cause of action for hostile work environment harassment against Defendant Alexys Dias.  Defendant Alexys Dias’ demurrer to Plaintiff’s Second Cause of Action is SUSTAINED

2. Seventh Cause of Action for Negligent Hiring, Supervision, and Retention

Defendant Three D demurs to the Seventh Cause of Action on the basis that Plaintiff fails to state facts sufficient to constitute a cause of action and because the claim is preempted by the Workers’ Compensation Act.  This Court previously sustained Defendant’s demurrer with leave to amend as to this cause of action.

Plaintiff’s cause of action for negligent hiring, firing, and supervision is based on Plaintiff’s claim that Defendant Three D owed a duty of care to Plaintiff to not retain employees who discriminated against, harassed, or retaliated against Plaintiff, and that Defendant Three D breached this duty of care by not supervising its managers and employees closely enough to ensure that they would not harass and retaliated against Plaintiff.  (FAC ¶¶ 71-72.)

The California Workers’ Compensation Act (“WCA”) provides the exclusive remedy for employer negligence.  The WCA provides a comprehensive statutory scheme designed to provide “the sole and exclusive remedy for the employee” for all injuries “arising out of and in the course of employment.”  (Lab. Code §§ 3600(a), 3602(a); see also Lab. Code § 3601 (Workers’ compensation is “the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment.”).)  Further, any doubt about the work-relatedness of an injury is resolved in favor of applicability of the WCA. (Lab. Code § 3202.)

California courts have held that employer negligence is an expected part of the employment relationship, while expressly rejecting negligent infliction of emotional distress claims and opining that the preemption provisions of the Workers’ Compensation Act similarly extend to negligent hiring and supervision claims.  (See Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1606 (employer could not be sued for “its allegedly negligent or improper supervision”).)

Plaintiff’s claim for negligent hiring and supervision is preempted by the Workers’ Compensation Act.  California courts have held that the Workers’ Compensation Act extends to negligent hiring and supervision claims.  Plaintiff has not provided any facts that would show that this preemption would not apply, and the cases cited by Plaintiff are distinguishable from this case.  The cases which Plaintiff cites primarily involved causes of action for intentional acts, whereas this cause of action is for negligent hiring, supervision, and retention.  Therefore, Plaintiff cannot maintain a cause of action for negligent hiring and supervision, even if Plaintiff’s complaint contained all the facts necessary to show such a cause of action.  For instance, though Plaintiff names the supervisor to whom he complained about the harassment, Plaintiff has failed to allege who he complained to about the alleged harassment in management, which is a necessary part of negligent supervision claims. (County of Riverside (2015) 238 Cal.App.4th 889, 902.)

Plaintiff’s Seventh Cause of Action is preempted by the Workers’ Compensation Act. As such, Defendant’s Demurrer as to Plaintiff’s Seventh Cause of Action is SUSTAINED without leave to amend.

Plaintiff has requested leave to amend his claims.  Because of the liberal standard allowing plaintiffs numerous opportunities to attempt to remedy deficiencies in complaints, the Court shall grant Plaintiff leave to amend the Second Cause of Action.  At present, those allegations are not sufficient.  However a different result is appropriate for the Seventh Cause of Action based on the fact that Plaintiff’s claim is subject to the exclusivity of the workers compensation law.

Plaintiff is granted 20 days leave to amend the Second Cause of Action.