Judge Holly J. Fujie, Case Number: 23STCV30401, Date: 2024-03-15 Tentative Ruling

The Court has considered the moving, opposition, and reply papers. Defendant’s Demurrer to Plaintiff’s Complaint is SUSTAINED in its entirety. The Motion to Strike is DENIED as moot. Plaintiff is granted 20 days leave to amend.

Maud Chaira (Plaintiff) filed a Complaint on December 13, 2023, against their[1] former employer Citiguard Inc. (Defendant) for the following five causes of action:

The motions now before the Court are Defendant’s Demurrer and Motion to Strike. Defendant demurs to all five causes of action. Plaintiff filed an opposition to the Demurrer, and Defendant filed a reply. The Motion to Strike is unopposed.

Plaintiff was hired to work for Defendant as a Shift leader in 2019. (Complaint, ¶ 11.) Plaintiff was paid $17.00 per hour, worked 40-hur weeks, but alleges that there was some period of time for which they were not paid. (Complaint, ¶ 12.) Plaintiff’s job consisted of making sure all guards had a handheld transceiver, that phones were in the tower, that guards were at their post, and that nurses were provided with security guards when nurses requested them. (Complaint, ¶ 13.) Additionally, Plaintiff was to assist with transporting the bodies of hospital patients who had recently passed to either the morgue or an outside freezer. (Complaint, ¶¶ 13-14.) However, on occasion, Plaintiff noticed that the freezers were not cold enough, and that blood and other bodily fluids from the bodies would seep out of the body bags holding the bodies. (Complaint, ¶ 15.)

Plaintiff reported these issues to his supervisor and to the head supervisor for the nurses, and other nurses, at the hospital Plaintiff was stationed at. (Complaint, ¶ 18.) Several of the bodies moved were infected with COVID-19. (Compliant, ¶ 15.) On December 27, 2021, Plaintiff was instructed by the hospital’s director to (1) open the body bags containing persons who died with COVID, (2) change the body bags, and (3) label or relabel the persons on the new body bag. (Complaint, ¶ 24. ) Plaintiff mad multiple complaints about unsafe exposure to COVID-19 but alleges that Defendant threatened their job if they did not do as instructed. (Complaint, ¶ 26.) In 2022, without explanation, Plaintiff was terminated.

“Before filing a demurrer…the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a); see also CCP § 435.5 (imposing similar requirements for a motion to strike).) Defendant presents the Declaration of Daniel M. Josephson (Josephson Decl.) which states that the parties conferred on January 5, 2024 telephonically and via email. (Josephson Decl., ¶ 3.) Although no agreement was reached, the requirements of 430.41(a) and 435.5 are satisfied. The Court now turns its attention to the Demurrer and Motion to Strike.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

“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. It is well established that a termination premised on an employee’s refusal to violate either a statute or an administrative regulation may support a claim for wrongful termination in violation of public policy.” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234, citation omitted.)

This cause of action fails because the Complaint fails to demonstrate that the termination was substantially motivated by a violation of public policy. Plaintiff alleges an employer-employee relationship (Complaint, ¶ 11) and that the employer terminated them (Complaint, ¶ 27.) However, it is unclear in the Complaint that the termination was substantially motivated by a violation of public policy -- even the Complaint concedes Plaintiff was terminated without explanation. (Id.) Additionally, it is unclear that transferring corpses was part of the duties assigned to Plaintiff by Defendant. Moreover, per the Complaint, the instructions to open the body bags containing persons who died with COVID, change the body bags, and relabel them came from the Director of the hospital, not Defendant. (Complaint, ¶ 24.) Finally, Plaintiff argues that their termination was motivated by Plaintiff’s gender, disability, medical condition, and their engagement in protected activity, however the Complaint fails to make clear how this is so. No facts in the Complaint demonstrate animus towards any of Plaintiff’s identified protected categories nor what protected activity was being punished. Without the third element properly alleged, this cause of action fails.

“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. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

Generally, and with limited exceptions, California's Workers' Compensation Act (WCA) is the exclusive remedy for injuries arising out of and in the course of employment. (Claxton v. Waters (2004) 34 Cal.4^th 367, 372-373.) This typically bars any suit from moving forward because of the rule that the WCA is the exclusive remedy. Plaintiff argues however, that the cause of action for IIED is not barred by the WCA because the conduct exceeded the normal boundaries of the employment relationship, citing Shoemaker v. Myers (1990) 52 Cal.3d 1 (“Shoemaker”). However, the Complaint contains no facts substantiating that claim. The Court agrees that moving corpses that are infected with COVID-19, without proper personal protection equipment (PPE) is dangerous, there is no indication that Plaintiff was instructed to do so by Defendant. The Complaint merely indicates that “Since Mr. Chaira [Plaintiff] had keys to the elevator, morgue, and outside freezer, Mr. Chaira was to assist in transporting patients who recently passed to either the morgue or the outside freezer. Sometimes he would transfer COVID patients without proper safety gear.” (Complaint, ¶ 13.) As aforementioned, the Complaint fails to make clear whether this was a part of Plaintiff’s job duties, or a task requested by the hospital Plaintiff was providing security for. Without proper allegations that Defendant was instructing Plaintiff to complete extreme and outrageous conduct, the cause of action fails.

Both Labor Codes §§ 98.6 and 1102.5 are provisions of California’s Labor Code which prevent retaliation for employees conducting protected activity, including reporting or disclosing information to a government or law enforcement agency. Defendant challenges the Complaint on two grounds here: (1) the allegations in the Complaint are contradictory and (2) the cause of action fails because it is uncertain. The Court agrees with both.

First, the Complaint does not allege what protected activity was being punished. There is no fact alleging Plaintiff informed any outside agency regarding the leaking body bags, dysfunctional freezer, or general unsafe working conditions. These were reported to either a supervisor or the hospital staff. Second, the Complaint never indicates the reason behind Plaintiff’s termination. Here, the cause of action fails because the facts as alleged are insufficient to sustain a cause of action for retaliation.

Willful failure to pay an employee who is discharged or quits subjects the employer to a penalty in the amount of the wages, until payment is made, or an action is commenced, but that penalty may not continue for more than 30 days. (LAB § 203(a).) Here, however, the Complaint fails to indicate the day or month Plaintiff was terminated. Therefore, it is unclear when Plaintiff ceased to work with Defendant and how much is owed to Plaintiff.

Because the Demurrer has been sustained in its entirety, the Motion to Strike is denied as moot.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]. As there is reasonably possibility of successful amendment, the Court grants Plaintiff 20 days leave to amend.

Defendant’s Demurrer to Plaintiff’s Complaint is SUSTAINED in its entirety. The Motion to Strike is DENIED as moot. Plaintiff is granted 20 days leave to amend.

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.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] Although the pleadings identify Plaintiff as male (Complaint, ¶ 11), the filings for these motions switch between male and female pronouns, so out of respect for Plaintiff, the Court will use the gender-neutral pronouns “they/them/theirs”.