Judge: Gregory Keosian, Case: 23STCV26131, Date: 2024-04-15 Tentative Ruling

Case Number: 23STCV26131    Hearing Date: April 15, 2024    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) 39 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 Huntsman Advanced Materials Americas LLC, Huntsman International LLC, and David Jarquin (Defendants) demurrer to Plaintiff Jose Irizarry’s third cause of action for intentional infliction of emotional distress (IIED) on the grounds that it is preempted by the worker’s compensation laws, and further fails to allege outrageous conduct. (Demurrer at pp. 3–6.)

The appellate courts are in disagreement as to whether the worker’s compensation laws preempt claims for IIED based on alleged retaliatory or discriminatory misconduct. Defendants rely on Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1382, in which the court held a claim for IIED based on discriminatory conduct to be preempted: “Even if the discriminatory conduct Jones complained about “may be characterized as intentional, unfair or outrageous, it is nevertheless covered by the workers' compensation exclusivity provisions.” (Ibid.) However, other courts have held otherwise: “[W]e 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.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 101.)

The IIED claim here is not barred by worker’s compensation exclusivity, because, similar to the holding of Light, unlawful retaliation in violation of Labor Code § 1102.5 is not within the ordinary compensation bargain.

However, Defendants are correct that no outrageous conduct is alleged.  “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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.” (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 228–29.) “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.)

The conduct alleged by Plaintiff here consists solely of unfair performance improvement plans and his ultimate termination. (Complaint ¶¶ 33–35.) These allegations constitute only personnel-management decisions.

Managing 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. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.

(Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)

Accordingly, the demurrer is SUSTAINED as to the third cause of action with 30 days leave to amend.