Judge: Gregory Keosian, Case: 22STCV20594, Date: 2023-03-06 Tentative Ruling

Case Number: 22STCV20594    Hearing Date: March 6, 2023    Dept: 61

Defendants Regents of the University of Calfiornia, Jose Torres, Andy Gonzalez, and Ernesto Virgen’s Demurrer and Motion to Strike are SUSTAINED with leave to amend as to the eleventh cause of action alleged against Defendants Torres, Gonzalez, and Virgen, and OVERRULED as to the fourth, tenth, and twelfth causes of action. The motion to strike is GRANTED with leave to amend as to unsupported allegations of failure to accommodate and failure to engage in the interactive process included under other causes of action, as well as allegations of “separate bases” of liability that articulate different legal theories from the causes of action containing such allegations.

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 Regents of the University of Calfiornia, Jose Torres, Andy Gonzalez, and Ernesto Virgen demurrer to the fourth cause of action for disability discrimination on the grounds that Plaintiff Michael Richardson has failed to allege the existence of a disability or that Defendants were aware of same. (Demurrer at pp. 4–5.) Defendants further argue that the tenth cause of action for retaliation under Labor Code § 1102.5 fails to state a claim because no protected activity is alleged. (Demurrer at pp. 5–6.) Defendants argue that the eleventh cause of action for waiting time penalties on Plaintiff’s last paycheck is ill-pleaded against the individual defendants. (Demurrer at p. 6.) Finally, Defendants argue that Plaintiff’s claim for intentional infliction of emotional distress does not state either outrageous conduct or the requisite level of intentionality. (Demurrer at p. 7.)

To establish a discrimination claim under FEHA, an employee must prove the following elements: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.)

The FAC alleges that Plaintiff suffered from a disability, namely, obesity and associated medical issues. (FAC ¶ 12d.) The FAC further alleges that Defendants were aware of Plaintiff’s disability, as Plaintiff physically appeared for work, and his appearance was the subject of rude looks and comments by coworkers and supervisors. (FAC ¶¶ 13c, 13e.) Defendants’ argument that Plaintiff fails to allege either a disability or their awareness of it is thus unpersuasive. Moreover, although Defendants argue that Plaintiff does not allege that he was qualified for the position he held, the FAC alleges that Plaintiff “was an exemplary employee.” (FAC ¶ 11.) Accordingly, the demurrer to the fourth cause of action is OVERRULED.

Defendants’ arguments against the retaliation claim under Labor Code § 1102.5 is also unpersuasive. To establish a claim for retaliation under Labor Code § 1102.5, subd. (b), the plaintiff must show (1) that he engaged in protected activity, (2) that the defendant subjected the plaintiff to an adverse employment action, and (3) that there exists a “causal link” between the adverse action and the protected activity. (See Manavian v. Department of Justice (2018) 28 Cal.App.5th 1127, 1141.) The protected activity at issue is the disclosure of information that the employee reasonably believes constitutes a violation of state or federal law. (Lab. Code § 1102.5, subd. (b).) Here, Plaintiff identifies two instances of complaints of illegal activity: Plaintiff’s complaint of discrimination and harassment, as well as Plaintiff’s complaint that the demanding of private health information violated his rights under Health Insurance Portability and Accountability Act (HIPAA). (FAC ¶¶ 12e, 13o, 13t.) Likewise, the short proximity in time between Plaintiff’s complaints and his termination can support the existence of a causal link to his protected activity. (See Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4^th 327, 353 [temporal proximity between disclosure of disability and adverse action supported prima facie case of discrimination].) The demurrer is therefore properly OVERRULED as to the tenth cause of action.

Defendants also argue that the twelfth cause of action for intentional infliction of emotional distress is insufficiently pleaded. (Demurrer at p. 7.)The elements of an IIED claim 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 level of distress required to state a claim for IIED is distress of “such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) “Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)

Defendants’ argument as to the absence of outrageous conduct is unpersuasive. Plaintiff alleges repeated instances in which supervisors degraded him on account of his age, race, and obesity, such as by comparing him to a Raiders lineman, expressing disbelief at his upbringing in Watts, discounting his complaints as to a younger employee, subjecting his lunch breaks to particular monitoring, and requiring particular disclosures of his private medical history. This is in addition to other alleged actions, including subjecting Plaintiff to unfair performance reviews, moving him to a distant and nocturnal work-site without cause, and finally, terminating his employment. Reasonable persons may differ as to whether this conduct is outrageous. The demurrer is therefore OVERRULED as to the twefth cause of action.

Defendants’ final argument as to the failure of the claim for personal liability against the individual defendants under Labor Code § 551.8 is also unpersuasive. Section 558.1 states that personal liability may be had against “a natural person who is an owner, director, officer, or managing agent of the employer.” (Lab. Code § 558.1, subd. (b).) Here, although Plaintiff alleges the waiting time penalties claim against  individual defendants Torres, Gonzalez, and Virgen, the FAC contains no allegations that any of them are “an owner, director, officer, or managing agent” of the University of California. Accordingly, the demurrer is SUSTAINED as to the eleventh cause of action alleged against Torres, Gonzalez, and Virgen.

In summary, the demurrer is SUSTAINED with leave to amend as to the eleventh cause of action alleged against Defendants Torres, Gonzalez, and Virgen, and OVERRULED as to the fourth, tenth, and twelfth causes of action.

II.                MOTION TO STRIKE

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. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendants argue the the FAC’s prayer for punitive damages against the University of California fails, because punitive damages are unavailable against public entities. (Motion at p. 4.) Defendants are correct that " a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” (Gov. Code § 818.) However, the FAC alleges punitive damages claims only against the individual defendants in this case. (FAC ¶¶ 17, 36, 54, 71, 94.) There is no need to strike any allegations of punitive damages against the University, as no such allegations are made.

Defendants also demurrer to allegations of other substantive wrongs included within the captions of other causes of action as “separate bases” of liability under those causes of action, such as conclusory allegations of failure to accommodate or engage in interactive process included in his claims for disability discrimination and harassment claims. (FAC ¶¶ 44, 45b–45c, 56, 57b–57c.) Plaintiff also includes various “failure to prevent FEHA violation” allegations under the umbrella of other causes of action. (FAC ¶¶ 26c, 32b, 39c, 45d, 50b, 57e, 62c, 67b, 73c.)

The motion is GRANTED as to unsupported allegations of failure to accommodate and failure to engage in the interactive process included under other causes of action, as well as allegations of “separate bases” of liability that articulate different legal theories from the causes of action containing such allegations, with leave to amend.