Judge: Douglas W. Stern, Case: 22STCV38748, Date: 2023-05-19 Tentative Ruling

Case Number: 22STCV38748    Hearing Date: May 19, 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

Demurrer to First Amended Complaint with Motion to Strike

I. BACKGROUND

A. Factual

            Plaintiff filed suit against Defendant Envoy Air, alleging several causes of action related to the termination of her employment with Defendant. Plaintiff 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. Though it is not clear from her First Amended Complaint (FAC), 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. However, it also appears that management disagreed with the way Plaintiff used the company vans provided to the employees to get around LAX, and a disagreement with Benavides over Plaintiff’s use of one of the vans was either an additional reason for her termination or the ultimate reason for her termination.

B. Procedural

This action was filed by Plaintiff on December 13, 2022. This Court sustained a previous demurrer to Plaintiff’s complaint on March 23, 2023. After that, Plaintiff reduced the number of causes of action she was pleading when she filed her FAC on April 13, 2023. Defendant filed its demurrer to Plaintiff’s FAC with a motion to strike on April 25, 2023. Plaintiff opposes.

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 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.”].)

            In Plaintiff’s FAC, the only alleged harm that Plaintiff has pled is that she was the only person being told to bring back the company vans, and that only one manager was ever asking Plaintiff for the keys. (FAC, ¶ 20.) Even assuming that this rises to the level of harm contemplated by case law, Plaintiff has not alleged that any person in a supervisorial position over that manager had prior knowledge of that manager’s actions regarding the vans. Plaintiff cannot maintain this cause of action without some indication that the supervisors of that manager knew of that manager’s conduct.

            Accordingly, Defendant’s Demurrer to Plaintiff’s First Cause of Action is sustained. Plaintiff should be prepared to inform the Court why Plaintiff believes that she can truthfully plead facts to support this claim such that leave to amend should be granted.

2.    Second Cause of Action for Wrongful Termination in Violation of Public Policy

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

            “The 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.) “… [T]he ‘substantial factor’ requirement is not met in the case of ‘a person who entertains in some degree [improper belief] or other bias, but whose bias is not what motivated the offense.’” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 216.) “Requiring the plaintiff to show that [the violation of public policy] was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision.” (Id. at 232.) In other words, plaintiffs cannot state a claim for wrongful termination if the defendant can show they would have taken the same action even without their alleged improper motivation. (Id. at 236.)

            Plaintiff 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. She appears to claim that she was terminated because of her safety complaints regarding Envoy’s inspection policies (FAC, ¶¶ 26-27), but earlier in her FAC, the facts pled make it seem as if she was terminated after an argument with her manager over van use (FAC, ¶¶ 13(g)-(h), 14). Based on the conflicting reasons given for Plaintiff’s termination, she cannot show that her reporting the safety concerns was a substantial motivating factor in her termination.

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

3.    Third 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.

            To establish a prima facie case for whistle-blower retaliation, “… plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384, internal citations omitted.) “[A]n adverse employment action requires ‘a materially adverse change in the terms of employment.’” (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510.) To establish a “causal link between” the protected activity and the adverse employment action, the plaintiff must show a close temporal nexus between the two actions. (Villiarimo v. Aloha Island Air, Inc. (9th Cir. 2002) 281 F.3d 1054, 1064, citing Clark Cty. Sch. Dist. v. Breeden (2001) 532 U.S. 268, 272 [four or more months between the alleged protected activity and the employee’s adverse employment action is insufficient to state a claim for retaliation].)

            Plaintiff does not specify in her FAC what the adverse employment action was. (FAC, ¶ 37.) Assuming that the adverse employment action was her termination, she has not established a temporal nexus sufficient to show a causal link between her alleged protected activity, which was refusing to sign off on safety checks and reporting the safety concerns, and her termination. The safety inspection incidents occurred in November 2020 and July 2021 (FAC, ¶ 13(b)-(e)), while Plaintiff was not terminated until November 2021, after the van incident with her manager (FAC, ¶ 14.) Because she has not established a sufficient link, Plaintiff cannot maintain this cause of action.

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

4.    Fourth 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 Envoy Air. The conduct that she has alleged, which was the issues with the van (FAC, ¶ 41), is not so extreme as to exceed all bounds that are usually tolerated in a civilized community. Nor has she pled sufficient 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 to Plaintiff’s Fourth Cause of Action is sustained. Plaintiff should be prepared to inform the Court why Plaintiff believes that she can truthfully plead facts to support this claim such that leave to amend should be granted.

B. Motion to Strike

            Defendant included a motion to strike with its demurrer. Defendant indicated that the motion to strike is an alternative to its demurrer. Defendant has requested that the Court strike Plaintiff’s FAC in its entirety. The Court denies this request.

Defendant has also requested that the Court strike language related to the FEHA from Plaintiff’s FAC. Plaintiff indicated in her opposition that this language was mistakenly included and has stated that she will remove it from her complaint.

Finally, Defendant has moved to strike Plaintiff’s requests for punitive damages from her FAC. (FAC, ¶¶ 17, 30, 38, and 45.)

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 motion to strike Plaintiff’s requests for punitive damages is granted with leave to amend.