Judge Gail Killefer, Case Number: 22STCV37953, Date: 2023-10-02 Tentative Ruling

MOVING PARTY: Defendants Experis US, Inc.; Experis US, LLC and Manpower Group US, Inc.

TENTATIVE: Defendants’ demurrer to the eighth cause of action for wrongful termination in violation of public policy is sustained without leave to amend. Defendants’ motion to strike punitive damages from the 4AC is granted with leave to amend. Plaintiff is granted 30 days leave to amend. The court sets an OSC RE: Amended Complaint for May 28, 2024, at 8:30 a.m. Defendants to give notice.

On December 05, 2022, Jacob Shaw (“Plaintiff”) filed a Complaint against Honda Performance Development, Inc.; Experis US, Inc.; Experis US, LLC; Manpower Group US, Inc. (collectively “Defendants”) and Does 1 to 50.

On May 12, 2023, Plaintiff filed a First Amended Complaint. On July 7, 2023, the parties stipulated to allow Plaintiff to file the operative Second Amended Complaint (“SAC”).

On November 15, 2023, the demurrer with motion to strike to the first to seventh and ninth through fifteenth cause of action was sustained with leave to amend. On December 15, 2024, Plaintiff filed the operative Fourth Amended Complaint (4AC) alleging the same fifteen causes of action as the TAC.

Defendants now demurrer solely to Plaintiff’s eighth cause of action for wrongful termination and moves to strike Plaintiff’s request for punitive damages. Plaintiff opposes the Motion. The matter is now before the court.

discussion

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

¿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 thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) 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 any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP, § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

A. Eighth Cause of Action: Wrongful Termination in Violation of Public Policy

“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.) The court determines if the purported reason for the firing was a violation of public policy. (See Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1092, overruled on other grounds in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6.)

Defendant’s demurrer to the eighth cause of action on the grounds that Plaintiff cannot premise a wrongful termination claim on the employer’s failure to renew an employment contract. “Decisional law does not allow a plaintiff to sue for wrongful termination in violation of public policy based upon an employer's refusal to renew an employment contract.” (Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676, 680.)

Here, the 4AC alleges that Defendant Honda wrongfully decided not to renew Plaintiff’s contract because of Plaintiff’s disabilities, perceived disabilities, and need for accommodation. (4AC ¶¶ 30, 37, 40, 41, 42, 43, 44, 53, 90, 104, 129.) Plaintiff cannot premise a wrongful termination claim on Defendant’s failure to renew the employment contract as a matter of law.

In opposition, Plaintiff argues that the wrongful termination claim is based on constructive discharge because Plaintiff continued to be an employee by Defendants and was eligible to be placed with other clients of Defendants, but because Plaintiff earned no income Plaintiff was forced to seek other employment options. (4AC ¶¶ 43, 44.) Plaintiff fails to specifically allege that he resigned from his employment with Defendants because he refused to engage in a practice that violated public policy or because he was required to endure intolerable working conditions that violated public policy. (See CACI Nos. 2431, 2432.)

“Standing alone, constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is ostensibly a resignation into a firing. Even after establishing constructive discharge, an employee must independently prove a breach of contract or tort in connection with employment termination in order to obtain damages for wrongful discharge.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) Here, the 4AC is devoid of allegations as to how Defendants breached the employment contract by failing to renew it. The 4AC is also devoid of allegations that Plaintiff was forced to resign, and that the resignation was wrongful. Instead, the 4AC alleges that Defendants’ decision not to renew Plaintiff’s contract was wrongful due to Plaintiff’s actual or perceived disabilities. (4AC ¶¶ 30, 37, 40, 41, 42, 43, 44, 53, 90, 104, 129.) “In other words, Defendants terminated Plaintiff’s employment after seven years, refused to hire Plaintiff for a direct hire position and refused to consider Plaintiff for open positions.” (FAC ¶ 38) Such a refusal to hire or employ Plaintiff by not renewing the employment contract, is an allegation that is subsumed in Plaintiff’s disability discrimination claim under FEHA. (See Gov. Code, § 12940(a).)

As this is Plaintiff’s fourth amended pleading and Plaintiff has failed to show that the eighth cause of action is capable of successful amendment, the demurrer to the eighth cause of action is sustained without leave to amend.

Defendants maintain that Plaintiff fails to plead sufficient facts to support a claim for punitive damages against Defendants. Accordingly, Defendants move to strike the following portions of the 4AC:

To state a claim for punitive damages under Civ. Code § 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.)¿ The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Ibid.)¿¿“Malice” is defined in Civ. Code, § 3294 (c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code §, 3294(c)(2).) The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891.) Fraud means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294(c)(3). When the defendant is a¿corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the¿corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code, § 3294(b).)

The 4AC alleges that “Pierre Descamps and Masatsugu Endo,” as managing agents of Defendant “were angry with Plaintiff because of his inability to travel and his need for accommodation” and that “Sarah Hughes, Consultant Services Manager, and Anthony Del Preto, Vice President of Sales and Operations” condoned illegal conduct by failing to take “prompt corrective measures within their control and failed to contact Plaintiff regarding his health condition and need for time off.” (4AC ¶¶ 31, 32.) The 4AC alleges that “Pierre Descamps and Masatsugu Endo” were Plaintiff’s supervisors and managing agents of Defendants, and said supervisors were unfit yet Defendants continued to employ the supervisors despite knowing they disregarded of the rights or safety of others. (4AC ¶¶ 30, 85.)

The court agrees that Plaintiff fails to allege facts sufficient to show that an officer, director, or managing agent of Defendants acted with malice, oppression, or fraud to support a claim for punitive damages. The 4AC specifically fails to allege that an officer, director, or managing agent of Defendants knew that Plaintiff had a disability and had requested a reasonable accommodation, and that said accommodation was unreasonably denied by an officer, director, or managing agent of Defendants with willful and/or conscious disregard for Plaintiff’s rights under FEHA. The 4AC also fails to allege that an officer, director, or managing agent of Defendants knew about Plaintiff’s disability and requested accommodation and, with a willful and/or conscious disregard for Plaintiff’s rights, refused to hire Plaintiff based on Plaintiff’s disability/perceived disability by not renewing his employment contract despite having done so previously. Moreover, as the 4AC alleges that Defendants compromised Plaintiff’s safety, Plaintiff must plead specific facts as to how Plaintiff’s safety was compromised and why said conduct was done with malice, fraud, or oppression by a managing agent of Defendants or ratified by said agent.

As Plaintiff’s claim for punitive damages is capable of successful amendment, Defendants’ motion to strike is granted with leave to amend.

Defendants’ demurrer to the eighth cause of action for wrongful termination in violation of public policy is sustained without leave to amend. Defendants’ motion to strike punitive damages from the 4AC is granted with leave to amend. Plaintiff is granted 30 days leave to amend. The court sets the OSC RE: Amended Complaint for May 28, 2024, at 8:30 a.m. Defendants to give notice.

[1] Pursuant to CCP §§ 430.41 and section 435.5(a), the partis are required to meet and confer prior to filing a demurrer or a motion to strike. Defense counsel asserts that they have attempted to meet and confer with Plaintiff’s counsel, but the Plaintiff’s counsel has not responded. (Kabani Decl. ¶¶ 10, 11, Ex. H.)“Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (CCP § 430.41(a)(4).) As the failure to meet and confer does not constitute grounds to overrule a demurrer, the court continues to the merits.