Judge Douglas W. Stern, Case 22STCV38748 2023-03-23 Tentative Ruling

Judge: Douglas W. Stern, Case: 22STCV38748, Date: 2023-03-23 Tentative Ruling

Case Number: 22STCV38748 Hearing Date: March 23, 2023 Dept: 68

Faatima Floyd vs. Envoy Air, Inc., et al., Case No. 22STCV38748

MOVING PARTY: Defendant Envoy Air, Inc.

RESPONDING PARTY: Plaintiff Faatima Floyd

MOTION: Demurrer to Complaint

I. BACKGROUND

A. Factual

Plaintiff filed suit against Defendant Envoy Air, alleging several causes of action related to discrimination and the termination of her employment with Defendant. Plaintiff is an African American woman who was employed by Envoy Air for several years. She is alleging in her complaint that she did not get along with her manager, Xochitl Benavides, and that sometimes her manager would use a different tone of voice with Plaintiff and use slang. Though it is not clear from her complaint, it appears that she is alleging that her employment was terminated after a series of disagreements with Benavides and other members of management over the inspection of cargo and passenger planes with international destinations. Further, it appears that management disagreed with the way Plaintiff used the company vans provided to the employees to get around LAX.

Defendant demurred to Plaintiff’s complaint on several bases, including that she fails to state facts sufficient to maintain causes of action for discrimination and retaliation.

B. Procedural

This action was filed by Plaintiff on December 13, 2022. Defendant filed its Demurrer as to Plaintiff’s Complaint on January 18, 2023. Plaintiff filed her opposition on March 10, 2023. Defendant filed its reply on March 16, 2023.

II. 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. First Cause of Action for Discrimination on the Basis of Race

Defendant demurs to this cause of action on this basis that Plaintiff fails to state facts sufficient to constitute a cause of action against Defendant, and because Plaintiff fails to establish that she fully and timely exhausted her administrative remedies against Defendant.

Plaintiff alleges that Defendant breached the FEHA. “Before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies with [Civil Rights Department (“CRD”)]. Specifically, the employee must file an administrative complaint with [CDA] identifying the conduct alleged to violate FEHA. At the conclusion of the administrative process, which may or may not include an investigation or administrative remedies, [CDA] generally issues the employee a right-to-sue notice.” (See Wills v. Superior Court (2011) 195 Cal.App.4th 143, 153-155.)

“[I]t is ‘plaintiff’s burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with [CDA] and obtaining a right-to-sue letter.” (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345.) It is axiomatic the CRD complaint must also identify each of the named defendants. (Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890, 897 [“Allegations in the civil complaint that fall outside of the scope of the administrative charge are barred for failure to exhaust”]; see also Brown v. City of Sacramento (2019) 37 Cal.App.5th 587, 600 [although the claims in the Complaint are not required to be identical to those in the CDA charge, a civil claim may not proceed unless it is “like or reasonably related to” the charge submitted to the CDA].)

While Plaintiff’s complaint states that she filed an administrative complaint with the CRD and received a CRD right-to-sue letter (Comp. ¶ 20), she did not include the letter with the complaint or provide any details about the letter, such as when she filed the administrative complaint or when she received the letter. It is unknown from the information provided by Plaintiff which Defendants were identified in the right-to-sue letter. It is also unknown what claims were in the letter which Plaintiff submitted to the CRD. Without this information, the Court cannot determine if Plaintiff fully exhausted her administrative remedies for this cause of action prior to filing her complaint.

Further, to establish this claim, a plaintiff must establish that “(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee's interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee, and (6) a causal link between the adverse action and the damage.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.)

The only allegations that Plaintiff makes in her complaint that have anything to do with racial discrimination are vague claims that her manager would use a different tone of voice and slang. (Comp. ¶¶ 14(b) and 14(k).) There are no allegations in the complaint of discriminatory animus on the part of her employer toward members of Plaintiff’s race and no causal link between any discriminatory animus and any adverse action.

Accordingly, Defendant’s Demurrer to Plaintiff’s First Cause of Action is sustained with leave to amend.

2. Second Cause of Action for Hostile Work Environment on the Basis of Race

Defendant demurs on the basis that Plaintiff fails to state facts sufficient to constitute a cause of action and fails to establish that she fully and timely exhausted her administrative remedies against Envoy.

As with the prior cause of action, it is unknown if Plaintiff fully exhausted her administrative remedies with the CRD since she has alleged a breach of the FEHA with this cause of action.

To constitute a cause of action for hostile work environment based on race, Plaintiff must show that Defendant (1) subjected Plaintiff to any manner of harassing conduct because of her race; (2) that the harassing conduct was sufficiently severe or pervasive as to alter the conditions of her employment; (3) that a reasonable person in Plaintiff’s circumstances would have considered this conduct to be hostile, intimidating, offensive, oppressive, or abusive; (4) that Plaintiff herself considered this conduct to be hostile, intimidating, offensive, oppressive, or abusive; and (5) that Plaintiff’s alleged harm was substantially caused by this conduct. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.)

As with the First Cause of Action, the Second Cause of Action fails to state any harassing conduct related to race beyond the vague allegations that the manager used a different tone of voice and unidentified slang around Plaintiff. This claim alone is not enough to maintain a cause of action for hostile work environment on the basis of race.

Accordingly, Defendant’s Demurrer to Plaintiff’s Second Cause of Action is sustained with leave to amend.

3. Third Cause of Action for Retaliation for Engaging in Protected Activity

As with the prior causes of action, it is unknown if Plaintiff fully exhausted her administrative remedies with the CRD since she has alleged a breach of the FEHA with this cause of action.

Further, to qualify as adverse employment action, an employer’s deed must “result in a material change in the terms of ... employment, impair [the] employment in some cognizable manner, or show some other employment injury.” (Thomas v. Dept. of Corrections (2000) 77 Cal.App.4th 507, 511.)

The only adverse employment action which Plaintiff alleges in her complaint appears to be her termination, which, from the facts pled, appears unconnected to any act of retaliation. Rather, it appears from her complaint that her termination was related to her ongoing disputes with management about how to do certain things.

Accordingly, Defendant’s Demurrer as to Plaintiff’s Third Cause of Action is sustained with leave to amend.

4. Fourth Cause of Action for Failure to Prevent Discrimination, Harassment, or Retaliation

As with the prior causes of action, it is unknown if Plaintiff fully exhausted her administrative remedies with the CRD since she has alleged a breach of the FEHA in this cause of action.

Plaintiff’s claim is also vague at best as to who discriminated against her, harassed her, or retaliated against her and what the other circumstances were regarding these claims. Additionally, this claim is derivative of her underlying discrimination, harassment, and retaliation claims. As such, this claim rises and falls with the underlying causes of action. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1315-1316 [allegations the employer failed to prevent conduct rises and falls with the underlying claim].) Further, Plaintiff does not allege any facts as to how Defendant failed to prevent any discrimination, harassment, or retaliation.

Accordingly, Defendant’s Demurrer as to Plaintiff’s Fourth Cause of Action is sustained with leave to amend.

5. Fifth Cause of Action for Breach of Express Oral Contract Not to Terminate Employment Without Good Cause

Defendant demurs on the basis that Plaintiff fails to state facts sufficient to constitute a cause of action.

Plaintiff alleges that Defendant entered into an oral agreement not to terminate Plaintiff’s employment except for good cause. However, Plaintiff does not include any further details about who made these promises, what authority they had to make the promises, and whether there were any other relevant terms to the agreement. Without further facts detailing this agreement, Plaintiff cannot maintain this cause of action.

Accordingly, Defendant’s Demurrer as to Plaintiff’s Fifth Cause of Action is sustained with leave to amend.

6. Sixth Cause of Action for Breach of Implied-in-Fact Contract Not to Terminate

Defendant demurs on the basis that Plaintiff fails to state facts sufficient to constitute a cause of action.

As was the case with Plaintiff’s Fifth Cause of Action, Plaintiff does not provide any further details with this cause of action to indicate the nature of the alleged implied-in-fact contract not to terminate. As such, Plaintiff fails to plead facts sufficient to maintain a cause of action for breach of implied-in-fact contract.

Accordingly, Defendant’s Demurrer to Plaintiff’s Sixth Cause of Action is sustained with leave to amend.

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

Defendant demurs on the basis that Plaintiff fails to state facts sufficient to constitute a cause of action.

“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.) To establish such a claim, the plaintiff must plead that she suffered a certain harm, that this harm was substantially caused by the defendant’s employee, and that this harm would not have occurred if the defendant had properly vetted, supervised, or retained the employee. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591.) The tort’s intent is to punish defendants who knew, or should have known, of their employee’s propensity to commit the harm in question, but failed to take reasonable steps to prevent the harm from occurring to the plaintiff. (Id.; see also Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339-1340; Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902 [“To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor’s propensity to do the bad act.”].)

Plaintiff has not pled any substantive facts showing what harm she suffered or how Defendant knew or should have known about this behavior or how Defendant failed to prevent the behavior. Without these facts, Plaintiff cannot maintain a cause of action for negligent hiring, supervision, or retention.

Accordingly, Defendant’s Demurrer as to Plaintiff’s Seventh Cause of Action is sustained with leave to amend.

8. Eighth Cause of Action for Wrongful Termination in Violation of Public Policy

As with prior causes of action, it is unknown if Plaintiff fully exhausted her administrative remedies with the CRD since she has alleged a breach of the FEHA in this cause of action.

Further, as with Plaintiff’s other claims, she has not pled facts sufficient to maintain a cause of action for wrongful termination because her complaint is unclear as to the reasons for her termination. It is also unclear why her termination would have been wrongful.

Accordingly, Defendant’s Demurrer as to Plaintiff’s Eighth Cause of Action is sustained with leave to amend.

9. Ninth Cause of Action for Whistle-Blower Retaliation

Defendant demurs on the basis that Plaintiff fails to state facts sufficient to constitute a cause of action.

As was the case with Plaintiff’s other causes of action related to retaliation, it is unclear what the retaliatory action was. Further, Plaintiff has failed to allege facts sufficient to show that she was a whistle-blower.

Accordingly, Defendant’s Demurrer as to Plaintiff’s Ninth Cause of Action is sustained with leave to amend.

10. Tenth Cause of Action for Intentional Infliction of Emotion Distress

Defendant demurs on the basis that Plaintiff fails to state facts sufficient to constitute a cause of action.

The elements of a claim for Intentional Infliction of Emotional Distress (IIED) are as follows: “(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.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotations and citations omitted.)

Plaintiff has failed to plead facts that would show extreme and outrageous conduct by Defendant. Nor has she pled facts demonstrating that she has suffered severe or extreme emotional distress. As such, Plaintiff cannot maintain a cause of action for IIED.

Accordingly, Defendant’s Demurrer as to Plaintiff’s Tenth Cause of Action is sustained with leave to amend.

11. Punitive Damages

Defendant demurs to Plaintiff’s requests for punitive damages (Comp. ¶¶ 27, 35, 42, 50, 66, 73, 78, and Prayer for Relief).

To sufficiently plead a claim for punitive damages pursuant to Civil Code §3294, a plaintiff must satisfy circumstances of "malice, oppression, or fraud," supported by facts alleged with sufficient particularity. (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) These allegations are held to a heightened pleading standard: a plaintiff may not state a mere conclusion of law to support a cause of action. (Perkins v. Sup. Ct. (1981) 117 Cal.App.3d 1, 6.) More importantly, the plaintiff may not simply "plead . . . a claim for damages in the language authorizing such damages." (Id.) While some conclusory statements may be permitted, they must make sense in the context of the Complaint taken as a whole. (Id.)

Plaintiff has not pled facts sufficient to demonstrate malice, oppression, or fraud on the part of Defendant. Absent these facts, Plaintiff cannot maintain her requests for punitive damages.

Accordingly, Defendant’s Demurrer as to Plaintiff’s requests for punitive damages is sustained with leave to amend.

III. ORDER

1. Defendant’s Demurrer as to Plaintiff’s First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Causes of Action is sustained with leave to amend.

2. Defendant’s Demurrer as to Plaintiff’s requests for punitive damages is sustained with leave to amend.

3. Plaintiff is given 20 days from the date of this order to amend her complaint.