Judge: Gregory Keosian, Case: 22STCV18741, Date: 2022-10-24 Tentative Ruling
Case Number: 22STCV18741 Hearing Date: October 24, 2022 Dept: 61
I.
DEMURRER
A demurrer should be sustained only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§
430.30, et seq.) In particular, as is
relevant here, a court should sustain a demurrer if a complaint does not allege
facts that are legally sufficient to constitute a cause of action. (See
id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We
treat the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. . . . Further, we give
the complaint a reasonable interpretation, reading it as a whole and its parts
in their context.” (Id. at p.
318; see also Hahn. v. Mirda (2007)
147 Cal.App.4th 740, 747 [“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. [Citation.]”)
“In determining whether the complaint is sufficient as
against the demurrer … if on consideration of all the facts stated it appears
the plaintiff is entitled to any relief at the hands of the court against the
defendants the complaint will be held good although the facts may not be
clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer
for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612,
616.) Such demurrers “are disfavored,
and are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” (Mahan v.
Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
A demurrer should not be sustained without leave to amend if
the complaint, liberally construed, can state a cause of action under any
theory or if there is a reasonable possibility the defect can be cured by
amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p.
1081.) The demurrer also may be sustained without leave to amend where the
nature of the defects and previous unsuccessful attempts to plead render it
probable plaintiff cannot state a cause of action. (Krawitz v. Rusch
(1989) 209 Cal.App.3d 957, 967.)
Defendants United Parcel Service, Inc. (UPS) and Egidio
Dellaripa (Dellaripa) demurrer to the Complaint’s fourth cause of action for
FEHA harassment, the ninth cause of action for intentional infliction of
emotional distress (IIED), and the prayer for punitive damages. Defendants
argue that Plaintiff pleads contact that is not of sufficient severity or
outrageousness to support these claims.
FEHA harassment must “be sufficiently severe or pervasive so
as to alter the conditions of employment and create an abusive working
environment.” (Dickson v. Burke Williams,
Inc. (2015) 234 Cal.App.4th 1307, 1313.) Harassment consists of
“a type of conduct not necessary for performance of a supervisory job. Instead,
harassment 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.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th
55, 63.) It is distinct from other discrimination claims, which “arise out of
the performance of necessary personnel management duties.” (Ibid.)
Here, Defendants are correct that Plaintiff has not alleged
harassing conduct within the meaning of FEHA. “[T]he exercise of personnel
management authority properly delegated by an employer to a supervisory
employee might result in discrimination, but not in harassment.” (Janken v.
GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64.) Here, the conduct
alleged in the Complaint is personnel management activity ordinarily delegated
by an employer to a supervisor. It is alleged that Plaintiff’s supervisors
directed Plaintiff not to report his workplace injury and refused Plaintiff’s
attempts to return to work, effectively abrogating the interactive process.
(Complaint ¶¶ 14–26.) These allegations consist of personnel decisions and
directives made to Plaintiff, not conduct presumably engaged in for personal
gratification, because of meanness or bigotry, or for other personal motives.
A similar result is appropriate as to Plaintiff’s IIED
claim. The elements of Intentional Infliction of Emotional Distress (“IIED”)
are: (1) extreme and outrageous conduct by defendant; (2) made with intent to
cause, or with reckless disregard of the probability of causing, emotional
distress; (3) severe emotional suffering; and (4) actual and proximate
causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty
USA, Inc. (2005) 129 Cal.App.4th 1228, 1259; Bogard v. Employers
Casualty Company (1985) 164 Cal.App.3d 602, 616.) The conduct must also be
directed at the plaintiff, or occur in the presence of a plaintiff of whom the
defendant is aware. (Christensen v. Superior Court (1991) 56 Cal.3d 868,
903.)
Personnel management decisions have long been held insufficient
to support a claim for outrageous conduct. (See Janken v. GM Hughes
Electronics (1996) 46 Cal.App.4th 55, 80.) Even “improperly
motivated” personnel management decisions do not fall within the ambit of the
tort for outrageous conduct. (Ibid.) Thus the IIED claim fails for the
same reasons as the harassment claim.
This leaves Plaintiff’s prayer for punitive damages. Punitive
damages are allowed in non-contract cases when a defendant is guilty of
“oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are
defined as:
1. “Malice”
means conduct which is intended by the defendant to cause injury to the
plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard of the rights or safety of others.
2. “Oppression”
means despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.
3.
“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.
Something more than the mere commission of a
tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of
negligence, gross negligence, or recklessness is insufficient to warrant an
award of punitive damages. (Dawes v.
Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be
recovered in an action for negligence or other nonintentional torts if the
plaintiff pleads and proves that the defendant acted with the state of mind
described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious
disregard of Plaintiff’s rights, the conduct must be both despicable and
willful. (College Hospital v. Superior
Court (1994) 8 Cal.4th 794, 713 (“College
Hospital”).)
Here, the allegations are insufficient to
support a claim for punitive damages. Plaintiff alleges that Defendants refused
to allow him to return to work unless he had no restrictions. While these
allegations may suffice to plead statutory violations, there are no
corroborating factual allegations as would support a finding of malice or
oppression.
The demurrer is therefore SUSTAINED as to
the fourth and ninth causes of action, and as to the prayer for punitive
damages, with 30 days leave to amend.