Judge Elaine Lu, Case 20STCV26810 2022-07-28 Tentative Ruling

On July 16, 2020, Plaintiff Eulices Jimenez (“Plaintiff”) filed the instant wrongful termination action against Bio-Nutraceuticals Inc. (“BNI”), Luis Garcia, and Manuel Gomez (“Gomez”).

On October 13, 2020, BNI filed a demurrer to and motion to strike the First Amended Complaint, which the Court (the Honorable Michael Linfield) sustained and granted in part on November 18, 2020 with leave to amend.

On December 2, 2020, Plaintiff filed the operative Second Amended Complaint (“SAC”) against “BNI”, Garcia,[1] and Gomez (“Gomez”). The SAC asserts what it states are ten causes of action for: (1) Breach of Express Contract, (2) Breach of the Covenant of Good Faith and Fair Dealing, (3) Wrongful Termination in Violation of Public Policy, (4) Violation of Government Code § 12900 et seq. (“FEHA”)[2], (5) Intentional Infliction of Emotional Distress, (6) Violation of Business and Professions Code § 17200, (7) Violation of California Constitution Article I, Section 8, (8) Intentional Misrepresentation, (9) Violation of Labor Code §§ 98.6, 232.5, 1102.5, and 6310, and (10) Violation of Labor Code § 226.7.

On January 5, 2021, BNI filed a demurrer to the SAC. On February 5, 2021, the Court – presided by the Honorable Michael P. Linfield – sustained Defendant BNI’s demurrer without leave as to the eighth cause of action for intentional misrepresentation. (Minute Order 2/5/21.)

On March 17, 2022, Defendant Gomez filed the instant motion for judgment on the pleadings. On July 14, 2022, Plaintiff filed an opposition. On July 20, 2022, Defendant Gomez filed a reply.

On August 11, 2016, BNI hired Plaintiff as a laborer in BNI’s powder room at minimum wage. (SAC ¶¶ 1-2.) On August 11, 2016, Defendant BNI verbally promised that “Plaintiff would become a permanent employee, that his wage would be increased if he accepted a lower wage to start, that he would receive benefits, that his wage increase and benefits would be provided by Defendant EMPLOYER upon completion of 90 days of his employment, that his back issues for which he was receiving medical treatment would not be a problem in the workplace as Defendant EMPLOYER would follow existing disability policies which provided for assessment and accommodation, that his disability would be assessed and treated fairly and accommodation would be provided by Defendant EMPLOYER as needed, that the workplace was fair, that the workplace was safe, that employees had and he would be provided adequate personal protective equipment, that the workplace was not stressful, the workplace was managed in accordance to written employment policies which would apply to and protect him, and that it was a ‘great place to work.’” (SAC ¶ 2.) On August 17, 2016, Gomez and Garcia– Plaintiff’s managers – reiterated the promise. (SAC ¶¶ 3-4.) However, these promises were false. (SAC ¶ 5.)

Gomez and Garcia “harassed Plaintiff and created a hostile work place by calling Plaintiff and other Central Americans and Salvadoreans racial slurs.” (SAC ¶ 7.) This included “calling Plaintiff and other Central Americans and Salvadoreans by specific racist and ageist slurs known to them to be the most offensive culturally racist and obscene terms that they could use, intentionally derogating their race, culture, and age, frequently obscene and base, which are not tolerated in decent society.” (SAC ¶ 7.) In addition, Gomez and Garcia “never properly trained Plaintiff, who had to learn everything on his own. Defendants then criticized him and gave him instructions that were contradictory.” (SAC ¶ 9.) Gomez and Garcia “demanded Plaintiff undertake work outside of Plaintiff’s job description including driving a forklift without the required license and training[.]” (SAC ¶ 10.) BNI’s work conditions were unsafe, and BNI failed to provide adequate powder room safety or PPE. (SAC ¶ 11.)

Plaintiff refused to operate the forklift and asked to be transferred. Defendants denied this request. (SAC ¶ 12.) “Plaintiff also protested to [Gomez and Garcia] that their use of the forklift was unsafe not only because of the drivers’ lack of the required license and training … was a safety risk to Plaintiff and other workers, it was unsafe because pallets were not stored safely, and posed a safety risk to Plaintiff and others.” (SAC ¶ 13.) However, nothing was done in response to Plaintiff’s complaints, and Plaintiff was reported as a troublemaker. (SAC ¶ 14.)

Defendants conduct exacerbated Plaintiff’s preexisting disabilities, requiring that Plaintiff take time off to go to the doctor using sick days. (SAC ¶ 16.)

“In March 2018, Defendant wrote a performance review of Plaintiff’s performance that confirmed his very good job performance including that he ‘communicates well with upper management,’ has a ‘team player attitude’ and ‘works independently.’ He was not written up for any time clock issue which if it actually existed, would have been noted.” (SAC ¶ 17.) “Defendants then refused to accommodate Plaintiff’s need for time to go to doctors’ visits approximately once a month and required Plaintiff take a full day off and use his accrued sick time in order to treat his pain, much of which was caused by Defendants.” (SAC ¶ 18.)

“Throughout his employ up to the date of his termination, Plaintiff was denied full rest and meal periods. Defendants required Plaintiff clock in and out for all rest and meal periods, however, they did not have sufficient machines to permit all employees to do so in a timely fashion due to the number of employees scheduled to take rest and meal periods at the same time. Plaintiff was denied a meal period prior at the end of the fifth hour of work, Defendants required all employees to take a meal period at the same time, even if the employee had to exceed the fifth hour of work.” (SAC ¶ 19.)

“In 2018 Plaintiff had to take sick days to go to the doctor for pain that was caused by work. Defendants maliciously refused to evaluate Plaintiff or accommodate him. In retaliation for Plaintiff taking time off for the doctor and illness due to harassment, Defendants decided to terminate Plaintiff’s employment and fired him effective July 18, 2018. Defendants termination form falsely stated that Plaintiff had clocked out for his meal period a few times three minutes early, and had been doing so for years, as the basis for his termination[.]” (SAC ¶ 20.)

A. The December 4, 2020 ruling on demurrer in Salazar v. Bio-Nutraceuticals Inc. et al., Los Angeles Superior Court Case Number 20STCV29432

As the Court may take judicial notice of court records and actions of the State, (See Evid. Code, § 452(c)(d)), the Defendant Gomez’s request for judicial notice is GRANTED. However, the Court will not take judicial notice of the truth of assertions within the court records. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. (CCP § 438(f).) Except as provided by statute, the rules governing demurrers apply. (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.) “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Id. at 1013.) In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.)

Code of Civil Procedure section 438 subdivision (c) subsection (1) provides that a motion for judgment on the pleading may only made on one of the following grounds:

(A) “[i]f the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint;

(B) If the moving party is a defendant, that either of the following conditions exist:

i. The court has no jurisdiction of the subject of the cause of action alleged in the complaint;

ii. The complaint does not state facts sufficient to constitute a cause of action against that defendant.

Per Code of Civil Procedure section 439 subdivision (a), before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion for judgment on the pleadings...” (CCP § 439(a).) The moving party shall file and serve with the motion for judgment on the pleadings a declaration concerning the parties meet and confer efforts. (CCP § 439(a)(3).)

Defendant Gomez has sufficiently met and conferred. (Golan Decl. ¶¶ 2-3, Exhs. 1-2.)

As a preliminary matter, Plaintiff contends that the instant motion should be denied under Code of Civil Procedure section 438(e). Under this section, “[n]o motion [for statutory judgment on the pleading] may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” (CCP § 438(e), [italics added].)

Here, the case management conference occurred on January 12, 2022 with an initial trial date set for February 14, 2023. The instant motion filed March 17, 2022 is well before January 15, 2023 – i.e., thirty days before the initial trial date – and is therefore timely. Regardless, the “court otherwise permits” Defendant Gomez to bring the instant motion as there is no requirement that Defendant Gomez seek permission to file a statutory motion for judgment on the pleadings. (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1055.)

Defendant Gomez contends that the FEHA Causes of Action[3] fail because Plaintiff failed to exhaust his administrative remedies against Defendant Gomez.

“In order to bring a civil action under FEHA, the aggrieved person must exhaust the administrative remedies provided by law.” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121; accord Romano v. Rockwell Int'l, Inc. (1996) 14 Cal.4th 479, 492.) “It is plaintiff's burden to plead and prove the timely filing of the DFEH complaint.” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402.) Government Code section 12960 governs employment discrimination claims and requires, among other things, that the plaintiff file an administrative complaint before bringing a legal suit. Section 12960 limits claims to those that occurred, at most, one year before the filing of the administrative complaint. (Gov. Code § 12960(b)-(d).)^{^[4]} Exhaustion in this context requires filing a written charge with DFEH within one year of the alleged unlawful employment discrimination and obtaining notice from DFEH of the right to sue. (Romano, supra, 14 Cal.4th at p.492; Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.)

“Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department.” (Gov. Code, § 12960(c).) The scope of the written administrative charge defines the permissible scope of the subsequent civil action. (Yurick, supra, 209 Cal.App.3d at pp.1121–1123.) These procedural requirements, as with all provisions of FEHA, are to “be construed liberally for the accomplishment of the purposes [of FEHA].” (Cal. Gov't Code § 12993(a).)

“The administrative exhaustion requirement is satisfied if FEHA claims in a judicial complaint are ‘ “like and reasonably related to” ’ those in the DFEH complaint [Citation] or ‘likely to be uncovered in the course of a DFEH investigation’ [Citation.]” (Clark v. Superior Court (2021) 62 Cal.App.5th 289, 301.)

Here, the SAC alleges only harassment against Defendant Gomez. (SAC ¶ 45.) The SAC alleges that Plaintiff filed a complaint with the Department of Fair Employment and Housing (“DFEH”) and received a received a right to sue letter on July 16, 2019. (SAC ¶ 20, Exh. A.) The July 16, 2019 right to sue complaint named respondents Bio Nutraceuticals, Inc., Gerald Farris, Manuel Gomez, Luis Garcia, and Gisela A. Weis and alleged that on July 18, 2018:

Complainant was harassed because of complainant's race, ancestry, national origin (includes language restrictions), color, disability (physical or mental), age (40 and over), other, association with a member of a protected class.

Complainant was discriminated against because of complainant's race, ancestry, national origin (includes language restrictions), color, disability (physical or mental), age (40 and over), other, association with a member of a protected class and as a result of the discrimination was terminated, reprimanded, asked impermissible nonjob-related questions, denied any employment benefit or privilege, denied reasonable accommodation for a disability, denied family care or medical leave (cfra) (employers of 50 or more people), other, denied work opportunities or assignments.

Complainant experienced retaliation because complainant reported or resisted any form of discrimination or harassment, requested or used a disability-related accommodation, participated as a witness in a discrimination or harassment complaint, requested or used leave under the california family rights act or fmla (employers of 50 or more people) and as a result was terminated, reprimanded, asked impermissible non-job-related questions, denied reasonable accommodation for a disability, denied family care or medical leave (cfra) (employers of 50 or more people), other.

Additional Complaint Details: Age, race, national origin, ethnicity, disability/ perceived disability, injury, illness, association with others in protected classes.

As to all Respondents, all bases above, any and all bases under the law, including any claims, causes of action or conduct alleged in any subsequent proceeding or civil action, which allegations are incorporated herein by reference.

Any and all job action, by Respondent its affiliates, parents, subsidiaries, agents, successor and assigns, and Roes/Does. Some names may be approximate. Those named are supervisors or managers, whose names may be subject to correction in any future civil filing, and whose correct name is incorporated herein from said action.

Defendant Gomez contends that the July 16, 2019 DFEH charge is insufficient because it is boilerplate and contains no specific factual allegations. In support of this claim Defendant Gomez points to a ruling by a different Judge of the Los Angeles Superior Court in the case of Salazar v. Bio-Nutraceuticals Inc. et al., Los Angeles Superior Court Case Number 20STCV29432. In Salazar, the Court cited Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607 and Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, and noted that the DFEH complaint before it lacked names, dates, specific acts, or any factual allegations. The Court therefore sustained defendant’s demurrer to a FEHA claim without leave.

Defendant’s reliance on the Salazar v. Bio-Nutraceuticals Inc. case is unavailing. A decision by another judge of this Court ruling on the sufficiency of a different FEHA complaint than the one before this Court has no precedential value. Unlike the FEHA complaint in Salazar, which “lacked names [and] dates,” the July 16, 2019 DEFH complaint here specifically identified Gomez as a respondent and identified a date for the adverse employment actions. (SAC ¶ 20, Exh. A.)

Neither of the cases cited in Salazar – Okoli or Martin – supports a finding that the July 16, 2019 DFEH complaint in the instant action is insufficient. In both Okoli and Martin, the Court of Appeal noted the general standard that “[t]o exhaust his or her administrative remedies as to a particular act made unlawful by FEHA, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts.” (Martin, supra, 29 Cal.App.4th at p.1719; Okoli, supra, 36 Cal.App.4th at p.1613.) Neither Okoli nor Martin addressed the minimum specificity required. In Martin, summary judgment was entered against the plaintiff for the failure to exhaust administrative remedies. (Martin, supra, 29 Cal.App.4th at p.1723.) The plaintiff had previously filed an age discrimination charge with the federal Equal Employment Opportunity Commission (“EEOC”), which was then referred to the DFEH which issued a right-to-sue notice. (Martin, supra, 29 Cal.App.4th at pp.1724-1725.) One year later, the plaintiff amended her EEOC charge to include a claim of sex discrimination, and the EEOC issued a right-to-sue notice on the amended charge. (Id. at p.1725) However, the plaintiff did not file an amended charge with the DFEH. (Ibid.) The DFEH took no further action. (Ibid.) The Court of Appeal affirmed the trial court’s grant of summary judgment in Martin and found that “an EEOC right-to-sue notice satisfies the requirement of exhaustion of administrative remedies only for purposes of an action based on [Federal Law].” (Id. at p.1726.)

In Okoli, it was undisputed that the plaintiff “filed a charge of discrimination with the DFEH in which he alleged specific instances of discrimination based on his race and national origin.” (Okoli, supra, 36 Cal.App.4th at p.1613.) The plaintiff obtained a right to sue letter from the DFEH and filed an action alleging racial and national origin discrimination, racial harassment, and retaliation against his employer. (Id. at pp.1609-1610.) The retaliation claim he brought before the court was based on adverse employment actions that resulted from his filing of the DFEH complaint. (Id. at pp.1613, 1617.) The jury found for the employer on the causes of action for discrimination and harassment, but found for the plaintiff on the retaliation claim. (Id. at p.1612.) The Court of Appeal reversed, finding that the plaintiff had failed to exhaust his administrative remedies with regard to the retaliation claim. (Ibid.) The Court of Appeal reasoned that “the unlawful retaliation, which occurred after the filing of the DFEH charge, would not reasonably have been uncovered in an investigation of the charges that were made[.]” (Id. at p.1617.)

Thus, Martin and Okoli both involved claims where no DFEH charge was made as to a specific claim that the plaintiff subsequently raised in court – i.e., sex discrimination and retaliation. Neither case addresses any specificity requirements that apply to a DFEH claim. Here, while as boilerplate as possible, the July 16, 2019 DFEH charge specifically states that Plaintiff was harassed because of his race, ancestry, national origin, race, ethnicity, and disability as alleged in the SAC. (SAC ¶ 1, Exh. A.) Thus, unlike Martin and Okoli, Plaintiff did allege the claims raised against Defendant Gomez in the original July 16, 2019 DFEH Charge. Moreover, “what is submitted to the DFEH must not only be construed liberally in favor of plaintiff, it must be construed in light of what might be uncovered by a reasonable investigation.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 268.) Given that Plaintiff did specifically allege harassment in his DFEH complaint, a reasonable investigation would have presumable uncover the specific acts that Plaintiff alleges support those claims.

Further, Defendant Gomez fails to address the amended DFEH charge that was filed on November 19, 2020 which nearly copies and includes all of the allegations of the SAC. (SAC ¶ 20, Exh. A.) Rather, Defendant Gomez merely claims that “the amended DFEH complaint was not filed within one-year from the alleged unlawful acts, the latest of which is alleged to have occurred on July 18, 2018. While the time period to file a DFEH complaint was extended from one to three years by AB9, the amendment did not go into effect until January 1, 2020.” (Motion at p.5, Fn. 1.) However, Defendant Gomez fails to address whether the amended DFEH charge relates back to the original charge as “‘the relation-back doctrine is available in appropriate circumstances to render timely an otherwise untimely amendment to a charge under FEHA.’ [Citation.]” (Foroudi v. Aerospace Corporation (2020) 57 Cal.App.5th 992, 1003.)

In sum, Defendant Gomez fails to present any authority showing that a boilerplate DFEH claim – as the original DFEH charge here – is insufficient to exhaust administrative remedies. Similarly, Defendant Gomez fails to show that the amended DFEH charge which includes more factual allegations does not relate back to the original DFEH charge. Accordingly, Defendant Gomez’s judgment on the pleading as to the FEHA causes of action – labeled as the fourth cause of action – is DENIED.[5]

Fifth Cause of Action: Intentional Infliction of Emotional Distress (“IIED”)

Defendant Gomez contends that Plaintiff fails to plead sufficiently outrageous conduct, fails to sufficiently allege intent, and fails to allege that Plaintiff suffered severe emotional distress.

“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.) With regard to the first element, IIED “calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.)

For “[c]onduct to be outrageous[, it] must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) “[W]hether conduct is outrageous is ‘usually a question of fact’ … [however] many cases have dismissed intentional infliction of emotional distress cases on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law.” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235, [internal citations omitted].) “‘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 Ass’n (1988) 46 Cal.3d 1092, 1122, superseded by statute as noted in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19 [internal citation omitted].) “[T]he requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.” (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.)

Here, the SAC alleges that Defendant Gomez called Plaintiff racial and agist slurs. (SAC ¶ 7.) Further, that Defendant Gomez used this language to pit workers against each other. (SAC ¶ 15.) Defendant Gomez docked Plaintiff’s claims for complaining about being deprived of full rest and meal periods. (SAC ¶ 19.) All this conduct was alleged to be intentional or at least made with reckless disregard of the harm it would cause Plaintiff. (SAC ¶¶ 7, 15, 19, 54.) Further, the SAC alleges that Defendant Gomez as Plaintiff’s supervisor was in a position of power over Plaintiff. (SAC ¶ 6.) Defendant Gomez fails to point to any authority showing that this conduct is insufficient as a matter of law to constitute outrageous conduct. Moreover, Plaintiff sufficiently alleges the required intent for a claim of IIED.

As to emotional distress, the SAC alleges that Defendant Gomez’s conduct caused extreme distress that caused physical illness and frustration, (SAC ¶ 9-10, 19.) This is sufficient to state the requisite severe emotional distress required for a claim of IIED. (Fletcher, supra, 10 Cal.App.3d at p.397.) Accordingly, Defendant Gomez’s motion for judgment on the pleadings as to the fifth cause of action is DENIED.

Seventh Cause of Action: Violation of California Constitution, Article I, Section 8

Defendant Gomez contends that there is no private right of action against Defendant Gomez for a violation of California Constitution, Article I, Section 8 and that there is no claim for wrongful termination against supervisors.

The California Constitution, Article I, Section 8 provides that “[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.) “Courts have found Section 8 as an alternative source of public policy for wrongful termination claims. Section 8 reflects fundamental and firmly established public policy against employment discrimination based on certain classifications including race and sex.” (Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th 218, 230 [Fns. omitted].)

An employee has a common law right to sue for wrongful termination “when he or she is discharged for performing an act that public policy would encourage, or for refusing to do something that public policy would condemn.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090 (overruled on other grounds).) “‘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.’” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234-35 (quoting Yau v. Allen (2014) 229 Cal.App.4th 144, 154).) “A discharge is actionable as against public policy if it violates a policy that is: ‘(1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) ‘substantial’ and ‘fundamental.’’” (Id. at 1238-39 (quoting Carter v. Escondido Union High School District (2007) 148 Cal.App.4th 922, 929).)

“The tort we recognized in Tameny, and reaffirmed in Gantt, is premised on the wrongful termination of an employment relationship. If an employer terminates an employment relationship for a reason that contravenes some fundamental public policy, then the employer breaches a general duty imposed by law upon all employers and the employee's remedy therefore sounds in tort.” (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 900.) However, “the breach of the employment relationship is an indispensable element of the tort, because it serves factually as the instrument of injury. Thus, there can be no Tameny cause of action without the prior existence of an employment relationship between the parties.” (Ibid.) Accordingly, “ ‘the duty on which the tort is based is a creature of the employer-employee relationship, and the breach of that duty is the employer's improper discharge of an employee otherwise terminable at the will or whim of the employer. [Citation.] There is nothing in ... any ... case we have found to suggest that this tort imposes a duty of any kind on anyone other than the employer. Certainly, there is no law we know of to support the notion that anyone other than the employer can discharge an employee.’ [Citation.]” (Id. at p.901.) Thus, “the common law Tameny cause of action for wrongful termination in violation of public policy lies only against an employer.” (Ibid.)

Here, the alleged violation of California Constitution, Article I, Section 8 is that Plaintiff was wrongfully terminated. (SAC ¶ 63.) Thus, Plaintiff’s claim under the Constitution is for wrongful termination in violation of public policy and is thus a Tameny claim, which can only be properly brought against Plaintiff’s employer -- not a supervisor like Defendant Gomez. Further, only an employer – which Defendant Gomez is not – can terminate an employment relationship. Accordingly, there is no valid claim for wrongful termination in violation of public policy – i.e., in violation of the public policy of California Constitution, Article I, Section 8 – against Defendant Gomez. Therefore, Defendant Gomez’s motion for judgment on the pleadings of the seventh cause of action is GRANTED.

Here, there is no reasonable possibility that Plaintiff could successfully amend the seventh cause of action to state a claim for wrongful termination against Defendant Gomez – who is alleged to be Plaintiff’s supervisor -- not Plaintiff’s employer. (SAC ¶ 6.) Accordingly, leave to amend is DENIED.

For the foregoing reasons, Defendant Manuel Gomez’s motion for judgment on the pleadings is GRANTED IN PART as to the seventh cause of action without leave to amend and otherwise DENIED.

Moving Party is ordered to provide notice of this order and file proof of service of such.

[1] On December 29, 2021, Plaintiff dismissed Luis Garcia from the SAC without prejudice.

[2] “The cause of action is based on the injury to the plaintiff, not on the legal theory or theories advanced to characterize it. Thus, if a plaintiff states several purported causes of action which allege an invasion of the same primary right he has actually stated only one cause of action. On the other hand, if a plaintiff alleges that the defendant's single wrongful act invaded two different primary rights, he has stated two causes of action, and this is so even though the two invasions are pleaded in a single count of the complaint.” (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364.) Here, the Court notes that the fourth cause of action improperly combines five separate causes of action for violations under FEHA, (1) Discrimination in Violation of FEHA, (2) Harassment in Violation of FEHA, (3) Retaliation in Violation of FEHA, (4) Failure to Engage in the Interactive Process in Violation of FEHA, and (5) Failure to Accommodate in Violation of FEHA. Each of these causes of actions are based on different primary rights and have different elements that need to be plead and proved. Accordingly, the Court will consider the purported fifth cause of action properly as five separate causes of action.

[3] The five FEHA causes of action are improperly combined as the purported fourth cause of action. See Footnote 2.

[4] At the time of the alleged discrimination set forth in Plaintiff’s complaint, the requirement was for Plaintiff to file a complaint with DFEH within one year of the discriminatory conduct. AB 9 subsequently amended Government Code section 12960(e), to prolong that period to three years, but that amendment took effect January 1, 2020—after the events alleged in the instant case.

[5] Because the Court denies the instant motion on the merits, the Court need not address Plaintiff’s contention that Defendant Gomez is estopped from raising this argument due to the Court’s order – presided by the Honorable Michael P. Linfield – on BNI’s demurrer to the first amended complaint addressing the sufficiency of the DFEH charge -- before Defendant Gomez was even served and before Gomez appeared in this action. (See Minute Order 11/18/20.)

Superior Court of California

County of Los Angeles

Department 26