Judge Fumiko Wasserman, Case Number: 22CMCV00753, Date: 2023-08-22 Tentative Ruling

Judge: Fumiko Wasserman, Case: 22CMCV00753, Date: 2023-08-22 Tentative Ruling

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TENTATIVE RULINGS -- http://www.lacourt.org/tentativeRulingNet/ui/main.aspx?casetype=civil

Case Number: 22CMCV00753 Hearing Date: August 22, 2023 Dept: B

I. BACKGROUND

Plaintiff Michael Brian Smith (“Plaintiff”) filed the Complaint in this action on December 28, 2022. After a demurrer was sustained to the First Amended Complaint, Plaintiff filed the operative Second Amended Complaint (“SAC”). The caption of the SAC states that the causes of action brought are for (1) willful and wanton conduct, (2) defamation under the vicarious liability doctrine, (3) punitive damages, and (4) non-economic personal injury damages. Within the body of the SAC, plaintiff also allege discrimination and blacklisting.

Based on the allegations in the SAC, Plaintiff was a forklift driver and employed by Defendant MICHAEL KORS INC. (SAC, p. 3:17-18.) Plaintiff alleges he was the only African American forklift driver at the time he was employed. (SAC, p. 4:10-12.) Plaintiff states that he was the number one production forklift driver for Defendant and was given praise for his top

scores. (SAC, p. 4:23-24.) Despite the high praise, Plaintiff alleges that one of his supervisors (“Lewis”) physically followed Plaintiff around or watched him through the video cameras which made Plaintiff uncomfortable. (SAC, p. 5:20-22.) Plaintiff states that he is a diabetic and drank a lot of water. (SAC, p. 5:23-24.) Lewis allegedly waited outside the restroom for Plaintiff and informed Plaintiff that he noticed the frequent bathroom breaks. (SAC, p. 6:3-6.) Lewis then allegedly informed Plaintiff that he could no longer use the restroom on company time. (SAC, p. 6:6-7.) Plaintiff alleges that the actions of Lewis were racially motivated and Plaintiff sought a transfer shortly after this encounter. (SAC, p. 6:8-13.)

Lewis would also “make a conscious effort to Intentionally [sic.] take PLAINTIFF off work assignments to do odd jobs around the warehouse.” (SAC, p. 6:14-15.) Lewis allegedly purposefully took Plaintiff off work assignments to manipulate Plaintiff’s production numbers. (SAC, p. 7:15-19.) “PLAINTIFF believes (“Allegedly”) that Lewis DOES 1-20, inclusive, maliciously and with the intent of causing harm onto PLAINTIFF, unanimously made defamatory statements during the pandemic as a way to keep PLAINTIFF from applying for his position that he loss [sic.] during the Corona Virus Shutdown.” (SAC, p. 7:20-23.) Plaintiff alleges that Lewis added Plaintiff to a list of names who could not return to work after the pandemic which was a “personal decision fueled by hatred and with the intent of causing harm onto [sic.] PLAINTIFF reputation.” (SAC, p. 9:23-24.)

At some point during the COVID-19 pandemic, Plaintiff was let go from his position. Plaintiff states that he was never given a letter stating the reasons for any disciplinary action, nor did he have a meeting to discuss any issues. (SAC, p. 12:17- 23.) When Plaintiff attempted to reapply for a position with Defendant, Plaintiff used BBSI Employment Agency as his recruiter who allegedly had a ‘working account’ with Defendant. (SAC, p. 11:14-18.) When Plaintiff was not hired back, the recruiter stated, “Reason being is that They didn’t feel like you were a team player.” (SAC, p. 8:4.) Plaintiff states that Defendant has not identified the name of the manager

that provided their opinion about Plaintiff. (SAC, p. 8:7-8.)

Plaintiff argues that this is false as employees are evaluated solely based on the productivity numbers and knowledge of group activities that would constitute a ‘team player’ are not tracked. (SAC, p. 8:16-20.)

Plaintiff also alleges that an unidentified person also stated, “There was always push back when asked to support other departments, or when asked to come off the forklift to assist on the floor.” (SAC, p. 11:1-2.)

II. DEMURRER AND MOTION TO STRIKE

A. Demurrer to Plaintiff’s Second Amended Complaint filed on June 26, 2023. Motion to strike filed on June 29, 2023.

Defendant argues that Plaintiff fails to state facts sufficient to constitute a cause of action in accordance with Code of Civil Procedure section 430.10, subdivision (c). Defendant also seeks to have any request for punitive damages struck from the SAC.

B. Plaintiff filed two oppositions to this Demurrer.

Plaintiff filed the first opposition on July 10, 2023. An amended opposition was filed on July 19, 2023. A supplemental declaration was filed on August 15, 2023. Under Code of Civil Procedure section 1005, subdivision (b), all papers in opposition to a demurrer must be served and filed nine court days before the hearing. The deadline for filing oppositions to this Demurrer was August 9, 2023. The Court will consider only the amended opposition filed on July 19, 2023.

C. Defendant filed a reply on August 15, 2023.

Defendant argues that the Demurrer is still proper and that the oppositions filed do not

provide any actionable defamatory statements, no argument as to blacklisting, no support for bringing a discrimination action, and allegations of willful or wanton conduct. Defendant correctly argues that any attachments to the oppositions, or allegations in the FAC, cannot be used to cure defects in the SAC.

D. Plaintiff filed supplemental oppositions.

As stated above, under Code of Civil Procedure section 1005, subdivision (b), all papers in opposition to a demurrer must be served and filed nine court days before the hearing. The deadline for filing oppositions to this Demurrer was August 9, 2023. The Court will not consider Plaintiff’s Response to Defendant’s Reply to Plaintiff’s First Amended Opposition to Defendant’s Demurrer filed on August 16, 2023, or the Supplemental Declaration of Michael Brian Smith in Support of Plaintiff’s Response to Defendant’s Reply to Plaintiff’s First Amended Opposition to Defendant’s Demurrer filed on August 18, 2023.

III. LEGAL STANDARDS

A demurrer tests the legal sufficiency of the factual allegations in the complaint. (K.G. v. S.B. (2020) 46 Cal.App.5th 625, 630.) “The purpose of a demurrer is to test whether, as a matter of law, the properly pleaded facts in the complaint state a cause of action under any legal theory.” (Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 516.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint in favor of plaintiff. (Code Civ. Proc., § 452; See Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

The court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; McBride v. Smith (2018) 18 Cal.App.5th 1160,

1173.) “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.” (Savea v. YRC Inc. (2019) 34 Cal.App.5th 173, 178; See also Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) For a statutory violation, “facts in support of each of the requirements of a statute” must be “specifically pled,” and simply “parroting the language” of a statute is insufficient to survive a demurrer. (Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 477-478.) Where the pleading fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (Code Civ. Proc., § 430.10, subd. (e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a) and (b); Stafford v. Schultz (1954) 42 Cal.2d 767, 782.) Grounds for a motion to strike are limited to matters that appear on the face of the pleading or on any matter of which the court shall or may take judicial notice. (Code Civ. Proc., §437, subd. (a).)

To support a claim for punitive damages, Plaintiff must allege facts and circumstances showing conduct constituting malice, fraud, or oppression. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) In considering a motion to strike punitive damage allegations, the court considers the complaint as a whole and assumes the allegations are true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

IV. DISCUSSION

A. Harassment and discrimination.

In the body of the SAC, Plaintiff alleges that he suffered harassment and discrimination from his supervisor, Lewis, during work. (SAC, p. 6:8-13; SAC, p. 9:23-24.) Plaintiff states that he was the only African American forklift driver at the time that he was employed. (SAC, p. 4:10-12.) Plaintiff alleges that his supervisor, Lewis, would watch Plaintiff through the cameras, follow Plaintiff through the warehouse, and told Plaintiff that he was not allowed to use the bathroom on company time. . (SAC, p. 5:20-22; SAC, p. 6:3-7.) Plaintiff alleges that these actions of Lewis were racially motivated and Plaintiff sought a transfer shortly after this encounter. (SAC, p. 6:8-13.)

Lewis allegedly purposefully took Plaintiff off work assignments to manipulate Plaintiff’s production numbers. (SAC, p. 7:15-19.) “PLAINTIFF believes (“Allegedly”) that Lewis DOES 1-20, inclusive, maliciously and with the intent of causing harm onto PLAINTIFF, unanimously made defamatory statements during the pandemic as a way to keep PLAINTIFF from applying for his position that he loss [sic.] during the Corona Virus Shutdown.” (SAC, p. 7:20-23.) Plaintiff alleges that Lewis added Plaintiff to a list of names who could not return to work after the pandemic which was a “personal decision fueled by hatred and with the intent of causing harm onto [sic.] PLAINTIFF reputation.” (SAC, p. 9:23-24.)

To maintain a cause of action for harassment or discrimination in the workplace, Plaintiff must bring a claim under the Fair Employment and Housing Act (“FEHA”). FEHA provides its own administrative remedy procedure. “It is fundamental that ‘where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.’ (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292, 109 P.2d 942.)” (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1612.)

Here, Plaintiff has not demonstrated that he exhausted the administrative remedies

provided by the FEHA before bringing an action. Assuming, arguendo, that the Court were considering the Supplemental Declaration of Michael Brian Smith in Support of Plaintiff’s First Amended Opposition to Defendant’s Demurrer filed on August 15, 2023, and Plaintiff’s Response to Defendant’s Reply to Plaintiff’s First Amended Opposition to Defendant’s Demurrer filed on August 16, 2023, the Right to Sue letter presented by Plaintiff was obtained on July 21, 2023. The SAC was filed on May 19, 2023. Plaintiff had not exhausted his administrative remedies prior to filing the SAC.

Based on the foregoing, the Demurrer is SUSTAINED as to the causes of action for harassment and discrimination

B. Blacklisting.

“Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor.” (Lab. Code, § 1050.) “Labor Code section 1050 applies only to misrepresentations made to prospective employers other than the defendant.” (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 288.) The Court of Appeals has determined that “It is apparent that the Legislature intended that Labor Code section 1050 would apply only to misstatements to other potential employers, not to misstatements made internally by employees of the party to be charged.” (Id. at p. 289.) The facts of Kelly are similar to the facts here because in Kelly, the plaintiff alleged that internal misstatements were the reason “plaintiff was not rehired.” (Id. at p. 288.)

Here, Plaintiff alleges “PLAINTIFF believes (“Allegedly”) that Lewis DOES 1-20, inclusive, maliciously and with the intent of causing harm onto PLAINTIFF, unanimously made defamatory statements during the pandemic as a way to keep PLAINTIFF from applying for his

position that he loss [sic.] during the Corona Virus Shutdown.” (SAC, p. 7:20-23.) Plaintiff alleges that Lewis added Plaintiff to a list of names who could not return to work after the pandemic which was a “personal decision fueled by hatred and with the intent of causing harm onto [sic.] PLAINTIFF reputation.” (SAC, p. 9:23-24.)

Assuming the allegations by Plaintiff were true, there is no violation of Labor Code, section 1050, because the alleged misrepresentations were made internally to the same company that Plaintiff previously worked for. The alleged misrepresentations were not made to a prospective employer other than the company Plaintiff previously worked for.

Based on the foregoing, the Demurrer is SUSTAINED as to the cause of action for blacklisting.

C. Willful and Wanton Conduct.

“Willful misconduct is not a separate tort from negligence, but rather ‘ “ ‘ “an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care” [citations].’ ” ’ (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526, 61 Cal.Rptr.3d 304.)

In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also ‘ “ ‘(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. [Citations.]’ ” [Citation.]’ (Id. at p. 528, 61 Cal.Rptr.3d 304.)” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1140, as modified on denial of reh'g (Mar. 16, 2017).)

Here, the SAC fails to allege what duty Defendant or Lewis possessed that was violated. Any violations by discriminatory behaviors would be barred by Plaintiff’s failure to obtain a right to sue letter prior to bringing an action. As addressed above, any statements made by other employees, including Lewis, to Defendant about Plaintiff and the decision to rehire him are not made in violation of Labor Code, section 1050.

Based on the foregoing, the Demurrer is SUSTAINED as to the cause of action for willful and wanton conduct.

D. Defamation.

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 97 [201 Cal.Rptr.3d 782, 790].) To sufficiently plead defamation by slander, “the disparagement set forth in the complaint must be sufficiently close to the actual words proved to acquaint a defendant with what he must defend against.” (Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 832–833.)

Plaintiff points to two statements that are allegedly false and defamatory. First, Plaintiff provides the statement of the recruiter who, when asked for the reasons he was not rehired by Defendant, the recruiter allegedly stated, “Reason being is that They didn’t feel like you were a team player.” (SAC, p. 8:4.) This statement was allegedly texted to Plaintiff from the recruiter. The SAC does not allege that anyone associated with Defendant made this statement. The SAC states, that Defendant has not identified the name of the manager that provided their opinion about Plaintiff, thus the quote provided is not the actual words provided by Defendant. (SAC, p. 8:7-8.) The quote is merely the statement of the recruiter which Plaintiff does not allege was published.

Assuming, arguendo, that Defendant did make such a statement to the recruiter which the recruiter stated verbatim to Plaintiff, the statement does not constitute defamation. Civil Code, section 47, subdivision (c) states,

“A privileged publication or broadcast is one made: [¶] (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a

communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision applies to and includes a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence and communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment. This subdivision authorizes a current or former employer, or the employer's agent, to answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based upon the employer's determination that the former employee engaged in sexual harassment. This subdivision does not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.” (CA LEGIS 131 (2023), 2023 Cal. Legis. Serv. Ch. 131 (A.B. 1754) (WEST).)

Here, the Defendant is communicating their perspective on Plaintiff’s job performance and qualifications as an applicant to work for Defendant. Any statements were made to the recruiter who is seeking this information on behalf of Plaintiff and is thus a person interested therein. Plaintiff argues that the privilege should not apply because Lewis engaged in discriminatory behavior. The SAC, however, does not allege who made this statement to the recruiter. The SAC fails to allege that the unknown person made the statement to the recruiter with malice, thus the protections provided by Civil Code, section 47, subdivision (c), would make the statement privileged and not defamatory as a matter of law.

The second allegedly defamatory statement is “There was always push back when asked to support other departments, or when asked to come off the forklift to assist on the floor.” (SAC, p. 11:1-2.) The SAC fails to allege who stated this, if the statement was even made by Defendant or anyone associated with defendant, and the SAC does not allege that this statement was published.

Based on the foregoing, the Demurrer is SUSTAINED as to the cause of action for defamation.

E. Motion to Strike punitive damages.

As the SAC fails to plead sufficient facts to demonstrate a cause of action, any allegations regarding punitive damages are unsupported. The Motion to Strike allegations regarding punitive damages is MOOT.

F. Leave to amend.

“Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d.)

It is clear that Plaintiff obtained a right-to-sue notice from the California Department of Fair Employment and Housing after the SAC was filed. Defendant will be granted leave to amend as to the discrimination cause of action.

As to the cause of action for blacklisting, the facts alleged demonstrate that Labor Code, section 1050, is inapplicable when Defendant is a company what Plaintiff has previously worked thus leave to amend will not be granted.

As to the cause of action for willful and wanton conduct, Plaintiff has failed to demonstrate a reasonable possibility that the defect can be cured by amendment thus leave to amend will not be granted.

As to the cause of action for defamation, Plaintiff was granted leave to amend previously and still has been unable to allege a cause of action for defamation. Leave to amend will not be granted.

V. CONCLUSION

Having fully considered the arguments of the parties, both written and oral, the Court exercises its discretion and rules as follows.

The Demurrer is SUSTAINED in its entirety. Plaintiff is granted 20 days leave to amend the cause of action for discrimination. Plaintiff is not granted leave to amend the causes of action for blacklisting, willful and wanton conduct, or defamation. The request for non-economic injury damages is not a cause of action.

The Motion to Strike is MOOT.