Judge: Elaine Lu, Case: 22STCV35068, Date: 2023-04-25 Tentative Ruling

Case Number: 22STCV35068    Hearing Date: April 25, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On November 3, 2022, Plaintiff Perry Decuir (“Plaintiff”) filed the instant wrongful termination action against Defendants Arup North America Limited (“Arup”) and William E. Scrantom (“Scrantom”) (jointly “Defendants”).  The Complaint asserts eleven causes of action for (1) Age Harassment in Violation of the Fair Employment and Housing Act (“FEHA”), (2) Age Discrimination in Violation of FEHA, (3) Age Retaliation in Violation of FEHA, (4) Actual/Perceived Disability Harassment in Violation of FEHA, (5) Actual/Perceived Disability Discrimination in Violation of FEHA, (6) Actual/Perceived Disability Retaliation in Violation of FEHA, (7) Failure to Engage in the Good-Faith Interactive Process in Violation of FEHA, (8) Failure to Accommodate, (9) Violation of the California Family Rights Act, (10) Intentional Infliction of Emotional Distress, and (11) Wrongful Termination in Violation of Public Policy.

            On January 30, 2023, Defendants filed the instant demurrer to the complaint.  On April 12, 2023, Plaintiff filed an opposition.  On April 18, 2023, Defendants filed a reply.

Allegations of the Operative Complaint

            The complaint alleges that:

            From 2006 to July 31, 2020, Plaintiff was an Electrical Engineer Grade 6 for Defendant Arup.  (Complaint ¶ 10.)  Prior to working at Arup, Plaintiff had 13 years of experience as an engineer.  (Id. ¶ 11(b).) 

            “Beginning around 2012 or 2013, Plaintiff heard LA leadership/Principles and other supervisors including Building Practices Leader Bill Scrantom make demeaning ageist comments regarding the senior level engineers on the Electrical team.”  (Id. ¶ 11(e).)   Beginning in 2018, Plaintiff was subject to demeaning ageist comments by Scrantom and other supervisors.  (Id. ¶ 11(a).)  “Beginning in mid-2018, Supervisor Scrantom began a campaign to transform the company into a younger workforce by pressuring Plaintiff and other older employees, over the age of 40, to retire.”  (Id. ¶ 11(k).)  “On or around June 1, 2020, Supervisor Scrantom continued broadcasting his ageist and discriminatory rhetoric (and animus) when he sent an email praising a ‘young, smart’ recent hire as the model for rebuilding the electrical team.”  (Id. ¶ 11(s).) 

            “In July of 2020, all Arup employees were notified of the company’s intention to reduce 7-10% of its employees due to COVID-19.”  (Id. ¶ 11(t).)  “On or about July 10, 2020, Arup began pressuring all employees over 60 to accept an early retirement package.”  (Id. ¶ 11(u).) 

            As a part of a claimed reduction in workforce, Defendant Arup terminated Plaintiff and other employees while keeping less qualified younger employees.  (Id. ¶ 11.)

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.)  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 pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at 747.) 

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party 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.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).)

Defendant has satisfied the meet and confer requirement.  (Tetorakis Decl. ¶¶ 2-5, Exhs. A-B.)

Discussion

First and Fourth Causes of Action: Age and Disability Harassment

            Defendants assert that the first and fourth causes of action for age and disability harassment fail because Plaintiff fails to sufficiently allege any harassment.  The Court agrees.

            FEHA prohibits harassment of an employee. (Cal. Gov't Code § 12940(j).) “[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.”  (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.)  Thus “‘the exercise of personnel management authority properly delegated by an employer to a supervisory employee might result in discrimination, but not in harassment.’”  (Ibid.)  Harassing acts “consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.”  (Reno v. Baird (1998) 18 Cal.4th 640, 646.) While “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment,” (Gov. Code, § 12923(b)), “[t]o prevail on a hostile work environment claim under California's FEHA, an employee must show that the harassing conduct 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 because of their [disability].’”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043 [internal citations omitted].)

“The words ‘severe’ and ‘pervasive’ have no peculiar meanings under the law. The adjective “severe” is defined as “strongly critical and condemnatory” or “inflicting pain or distress.” The verb ‘pervade” is defined as “to become diffused throughout every part of.’”  (Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 38 [internal citations omitted].)  The totality of the circumstances are considered when determining whether conduct is severe or pervasive such as “[¶] (a) The nature of the conduct; [¶] (b) How often, and over what period of time, the conduct occurred; [¶] (c) The circumstances under which the conduct occurred; [¶] (d) Whether the conduct was physically threatening or humiliating; [¶] (e) The extent to which the conduct unreasonably interfered with an employee’s work performance.’ (CACI No. 2524.)”  (Caldera, supra, 25 Cal.App.5th at pp.38–39.)

“A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment.”  (Gov. Code, § 12923(b).) 

“The elements of such a cause of action are: ‘(1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome [] harassment; (3) the harassment complained of was based on [the protected characteristic]; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.’ [Citation.]”  (Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 202–203.) 

As to harassment based on actual/perceived disabilities, Plaintiff alleges that Defendants assigned him to less favorable positions and denied Plaintiff’s disability claims.  (Complaint ¶ 76.)  However, this alleged conduct by Defendant -- assignment of Plaintiff to less favorable positions and denial of Plaintiff’s request for benefits -- does not implicate the social environment of the workplace and is not harassment.  Instead, this alleged conduct reflects the exercise of personnel management authority that may form the basis for a discrimination claim, but not a harassment claim.  (See Roby, supra, 47 Cal.4th at p.706.) 

As to age discrimination, the complaint alleges that “[b]eginning around 2012 or 2013, Plaintiff heard LA leadership/Principles and other supervisors including Building Practices Leader Bill Scrantom make demeaning ageist comments regarding the senior level engineers on the Electrical team. For example, supervisors would say the electrical group is ‘old school,’ and ‘top heavy,’ to suggest there were too many older engineers in the group. Other employees outside of the electrical group also regularly joked that there were too many old people in the electrical group. These comments from supervisors and employees continued throughout Plaintiff’s time at Arup.”  (Complaint ¶ 11(e).)  The complaint also alleges that other ageist comments were made including “‘[w]e have too many old people,’ referencing Plaintiff and other senior level engineers on the Electrical team.”  (Id. ¶ 11(a).)  Finally, the complaint alleges that Scrantom began pressuring older employees to retire.  (Id. ¶ 11(f).)  These allegations are insufficient to state a claim for harassment under FEHA.

As a claim for harassment is a statutory claim, “the general rule that facts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled[,]” applies.  (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) 

In Fisher, supra, 214 Cal.App.3d 590, a case decided in the context of a demurrer, a plaintiff surgical nurse alleged a defendant physician had created a hostile work environment for her by his sexual harassment of other women employees in her presence. Although her allegations described in general terms what acts occurred and their location, the Court of Appeal found them insufficient to establish a cause of action for environmental sexual harassment because they were “most conclusionary” regarding what conduct the plaintiff actually observed. (Fisher, at p. 613.) As a matter of fairness given the ease with which these claims can be made despite their serious nature, the court concluded, “a plaintiff should be required to plead sufficient facts to establish a nexus between the alleged sexual harassment of others, her observation of that conduct and the work context in which it occurred.” (Ibid.) In explaining why it found the complaint deficient, the court observed the allegations gave no indication of the frequency, intensity, or timeliness with which the alleged acts occurred (e.g., “Did each alleged act occur once in four years” or “on a daily or weekly basis?” What alleged incidents occurred “within the FEHA's one-year statute of limitations (§ 12960)?”), and pled only a legal conclusion regarding the alleged lewd remarks. (Fisher, at pp. 613–614.) In sum, the court concluded, the plaintiff did “not sufficiently plead [she] was subjected to a pattern of pervasive sexual harassment.” (Id. at p. 614.) In so holding, the court nonetheless deemed it prudent to allow the plaintiff to amend her complaint because the law it announced concerned a matter of first impression. (Id. at p. 622.)

(Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 285–286 [in favorably summarizing and relying on Fisher].)

            Here, the complaint alleges some harassing conduct.  However, as in Fisher, there is no indication of the frequency, intensity, or timeliness with which the alleged acts occurred.  Therefore, the complaint fails to allege harassment under FEHA with sufficient specificity.

            Accordingly, Defendants’ demurrer to the first and fourth causes of action is SUSTAINED.

Third and Sixth Causes of Action: Retaliation

            Defendant contends that the complaint fails to allege any protected activity during his employment.

            “‘[I]n order to establish a prima facie case of retaliation under FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.’  [Citation.]  The requisite ‘causal link’ may be shown by the temporal relationship between the protected activity and the adverse employment action.  [Citations.]”  (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 90–91.) 

            Here, the complaint alleges that “during Plaintiff’s employment with Defendant Arup, and continuing at least through the time of Plaintiff’s wrongful termination on or around July 31, 2020, and continuing through the filing date of this complaint, and continuing thereafter, Plaintiff engaged in legally protected activity by complaining about and/or protesting against the disparate working terms and conditions and hostile work environment Plaintiff was subjected to based on Plaintiff’s age and association with other individuals over 40.”  (Complaint ¶ 55.)  Similarly, Plaintiff alleges that during Plaintiff’s employment, and continuing through July of 2020, and continuing, “Defendant ARUP NORTH AMERICA LIMITED retaliated against Plaintiff as a result of Plaintiff asserting his legal rights and/or complaining about and/or protesting against the disability harassment and discrimination Plaintiff was subjected to.”  (Id. ¶ 120.)  Plaintiff alleges that he ultimately as a result that he was terminated as a result.  (Id. ¶¶ 57(p), 203(s).) 

            Though the complaint is somewhat vague, the complaint does sufficiently allege that Plaintiff made complaints to Defendant Arup about age and disability discrimination and harassment and that as a result he was terminated.  This is sufficient to state a claim that Plaintiff complained of unlawful conduct under FEHA and that Defendants retaliated against Plaintiff for doing so.  Accordingly, Defendants demurrer to the third and sixth causes of action is OVERRULED.

Tenth Cause of Action: Intentional Infliction of Emotional Distress

            Defendants contend that Plaintiff fails to plead sufficiently outrageous conduct and that workers compensation exclusivity precludes Plaintiff’s tenth cause of action for intentional infliction of 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.)  However, “[m]anaging personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. 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.”  (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)

Extreme and Outrageous Conduct

            Here, the Complaint realleges that Defendants discriminated against Plaintiff on the basis of his age and actual/perceived disability and terminated him under a false pretense while keeping less qualified and younger employees.  (Complaint ¶ 188.)  This conduct was intended to cause Plaintiff severe emotional distress and did so.  (Id. ¶¶ 190-191.) 

Though the complaint sufficiently alleges wrongful intent, Plaintiff’s termination is merely management of personnel which is not extreme or outrageous conduct as a matter of law.  (Janken, supra, 46 Cal.App.4th at p.80.)  The only non-personnel management conduct that Plaintiff alleges in support of his claim for age harassment is the improper ageist statements.  However, as noted above, the complaint fails to sufficiently allege age harassment in that there is no indication of the severity, frequency, or timeliness of the conduct.  Moreover, Plaintiff fails to sufficiently allege any severe emotional distress as required to state a claim for intentional infliction of emotional distress.  Instead, Plaintiff merely alleges that he suffered severe emotional distress without any indication of any what this emotional distress consists of.  (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, [“[t]he court does not … assume the truth of contentions, deductions or conclusions of law.”].) 

            Accordingly, Defendants demurrer to the tenth cause of action is SUSTAINED.

Workers’ Compensation Exclusivity is Inapplicable

Labor Code section 3600, subdivision (a) provides that, subject to certain particular exceptions and conditions, workers’ compensation liability, “in lieu of any other liability whatsoever” will exist “against an employer for any injury sustained by his or her employees arising out of and in the course of the employment.”  (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708.)  The basis for the exclusivity rule in workers’ compensation law is the “presumed compensation bargain” pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability.  (Ibid.)  The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort against the employer.  (Ibid.)  Also, under this rule, the employer is insulated from common law vicarious liability to an employee for the acts of another employee, under Labor Code section 3601, subdivision (c).  (Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 227.)

“[T]hese provisions establish that the liability of employers … for ‘industrial injury which results in occupational disability or death’ is limited to workers’ compensation remedies. [Citation.] Where ‘the essence of the wrong is personal physical injury or death, the action is barred by the exclusiveness clause no matter what its name or technical form if the usual conditions of coverage are satisfied.’ [Citation.] In other words, the exclusivity provisions encompass all injuries ‘collateral to or derivative of’ an injury compensable by the exclusive remedies of the WCA. [Citation.] [¶] Thus, the trigger for workers’ compensation exclusivity is a compensable injury. An injury is compensable for exclusivity purposes if two conditions exist. First, the statutory conditions of compensation must concur. (See § 3600, subd. (a).) For example, if the injury arises ‘out of and in the course of the employment, the exclusive remedy provisions apply notwithstanding that the injury resulted from ... intentional conduct ... even though the ... conduct might be characterized as egregious.’ [Citation.] [¶] Second, the injury must cause a ‘disability or the need for medical treatment.’ [Citation.] ‘ “Injury” includes any injury or disease ....’ (§ 3208.) Therefore, ‘the exclusive remedy provisions apply only in cases of such industrial personal injury or death,’ and the workers’ compensation system subsumes all statutory and tort remedies otherwise available for such injuries. [Citation.]”  (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813-814.)

            Here, Plaintiff’s claim for wrongful termination, discrimination, and retaliation under FEHA do not arise out of the normal course of employment.  (Light, supra, 14 Cal.App.5th at p.101 [“In sum, absent further guidance from our Supreme Court, we are unwilling to abandon the long-standing view that unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain and therefore claims of intentional infliction of emotional distress based on such discrimination and retaliation are not subject to workers' compensation exclusivity.”].)  Accordingly, Plaintiff’s FEHA claims and other claims which are based on the same conduct do not fall within the workers compensation exclusivity.  Therefore, workers compensation exclusivity does not furnish an additional ground for sustaining the demurrer.

Uncertainty: Entire Complaint

            A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her.  (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.) 

            Defendants contend that the entire complaint is uncertain.  The Court disagrees.  Here, Defendants can reasonable determine what issues need to be admitted or denied.  Moreover, though portions of the complaint are somewhat vague, this ambiguity can be resolved through discovery.  Accordingly, Defendants’ demurrer based on uncertainty is OVERRULED.

Leave to Amend

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. (Goodman v. Kennedy, supra, 18 Cal.3d at p.348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) 

            This is the first time that a complaint has been sustained against Plaintiff’s complaint.  The court finds that there is a reasonable possibility that Plaintiff can successfully amend the complaint.  Therefore, the court finds it is proper to allow Plaintiff an opportunity to cure the defects discussed in this order. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037.)   

CONCLUSION AND ORDER

Based on the foregoing, Defendants Arup North America Limited and William E. Scarntom’s demurrer to the complaint is SUSTAINED IN PART as to the first, fourth, and tenth causes of action WITH LEAVE TO AMEND.

Plaintiff is to file an amended complaint within thirty (30) days of today.

The case management conference is continued to July 7, 2023 at 8:30 am.

Moving Parties are ordered to provide notice of this order and file a proof of service of such.

DATED: April 25, 2023                                                         ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court