Judge: Holly J. Fujie, Case: 22STCV32620, Date: 2023-03-17 Tentative Ruling

Case Number: 22STCV32620    Hearing Date: March 17, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants Ruben Rodriguez (“Rodriguez”) and Kim Ramirez (“Ramirez”) (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers. 

BACKGROUND

            This action arises out of an employment relationship.  The currently operative first amended complaint (the “FAC”) alleges: (1) age harassment in violation of the Fair Employment and Housing Act (“FEHA”); (2) age discrimination in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to prevent harassment, discrimination, or retaliation in violation of FEHA; and (5) intentional infliction of emotional distress.

In relevant part, the FAC alleges: Plaintiff began working for Defendant California Highway Patrol (“CHP”) in around May 2020 and in January 2021, Plaintiff applied for a public safety dispatcher position within CHP.  (FAC ¶¶ 13-14.)  Rodriguez began training Plaintiff for the position on around February 17, 2021.  (FAC ¶ 16.)  Rodriguez made disparaging comments about Plaintiff’s age throughout Plaintiff’s training until Plaintiff complained to a supervisor and became paired with Ramirez to continue training.  (See FAC ¶¶ 16-20.)  Upon assuming responsibility for continuing Plaintiff’s training, Ramirez also made remarks about Plaintiff’s age that upset Plaintiff.  (See FAC ¶¶ 20-23.)  Moving Defendants’ conduct caused Plaintiff to suffer ongoing humiliation and emotional distress.  (FAC ¶ 82.)  

Moving Defendants filed a demurrer (the “Demurrer”) to the fifth cause of action on the grounds that the FAC fails to state sufficient fats to constitute a cause of action for intentional infliction of emotional distress.  Specifically, Moving Defendants argue that the FAC fails to allege that Plaintiff complied with the claim presentation requirements imposed by the Government Claims Act.

DISCUSSION

Meet and Confer

The meet and confer requirement has been met.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  Demurrers for uncertainty are disfavored.  (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)  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.  (Id.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Tort Claims Against Public Employees

            The Government Claims Act immunizes public entities from tort liability unless liability is authorized by statute.  (See Gov. Code § 815, subds. (a)-(b); K.M. Grossmont Union High School District (2022) 84 Cal.App.5th 717, 756.)  Under Government Code section 950.2, except as provided in Section 950.4, a plaintiff alleging a cause of action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee must comply with the Government Claims Act as a prerequisite for maintaining the action against the employee.  (Gov. Code § 950.2.)  This section is applicable even though the public entity is immune from liability for the injury.  (Id.)  An employee acts within “the scope of his employment” when he is engaged in work he was employed to perform or when an act is incident to his duty and was performed for the benefit of his employer and not to serve his own purpose.  (Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750-51.)  The proper inquiry is not whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the employee which were authorized by the employer.  (Id. at 1751.)  Courts view “scope of employment” broadly to include willful and malicious torts as well as negligence.  (Id.)  That an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not necessarily mean the employee acted outside the scope of his employment.  (Id.)  Whether an employee has acted within the scope of his employment is ordinarily a factual issue to be resolved by the trier of fact.  (Id.)  When the facts are undisputed and no conflicting inferences are possible, the issue becomes one of law.  (Id.) Headnote 9

• Municipal Corporations

268k742(6)Trial, judgment, and review

Whether employee has acted within scope of his employment under Tort Claims Act provision barring action against employee acting within scope of his employment is ordinarily factual issue to be resolved by trier of fact, but when facts are undisputed and no conflicting inferences possible, issue becomes one of law. West's Ann.Cal.Gov.Code §§ 911.2, 950.2.

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            Moving Defendants argue that the FAC fails to allege intentional infliction of emotional distress because there are no allegations providing that Plaintiff complied with the Government Claims Act before initiating this action.  The Court agrees.  Although Plaintiff argues that she was not required to allege that she complied with claim presentation requirements as a prerequisite to prosecuting her intentional infliction of emotional distress claim against Moving Defendants because the FAC names Moving Defendants as parties to that cause of action in their individual capacities and does not identify CHP as a Defendant, Government Code section 950.2 applies regardless of whether the public entity employer is named as a defendant.  Furthermore, while the determination of whether an employee’s wrongful acts were conducted in the scope of employment is generally a question of fact, the alleged conduct underlying the intentional infliction of emotional distress claim consists of harassing comments Moving Defendants made while they were training her.  The FAC does not allege that Moving Defendants’ acts occurred outside the scope of employment.  The Court finds that the FAC fails to allege facts showing that Moving Defendants did not act within the scope of their employment; as a result, Plaintiff was required to comply with the Government Claims Act before pursuing her tort claim.  The Court therefore SUSTAINS the Demurrer with 20 days leave to amend. 

Moving party is ordered to give notice of this ruling. 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 17th day of March 2023