Judge: James L. Crandall, Case: 22-1256458, Date: 2022-12-29 Tentative Ruling

Demurrer to Amended Complaint

Defendant demurrers to the First AC on the following grounds:

· Demurrer to the entire First AC on the ground that the allegations are against the wrong party SASCO (CCP § 430.10(d))

· Demurrer to the entire First AC for failure to state facts sufficient to constitute a cause of action against SASCO. (CCP § 430.10(e)).

· Demurrer to the Third Cause of Action for Discrimination Based on Perception of National/Origin/Race for failure to state facts sufficient to constitute a cause of action against Defendants and is uncertain and ambiguous. (CCP § 430.10(e) and (f)).

· Demurer to the Fourth Cause of Action for Asking Illegal Interview Questions in Violation of FEHA for failure to state facts sufficient to constitute a cause of action against Defendants and is uncertain and ambiguous. (CCP § 430.10(e) and (f)).

· Demurrer to the Sixth Cause of Action for Intentional Infliction of Emotional Distress for failure to state facts sufficient to constitute a cause of action against Defendants and is uncertain and ambiguous. (CCP § 430.10(e) and (f)).

For the following reasons, the demurrer is OVERRULED in its entirety. Defendants are to give notice.

All Causes of Action Against Defendant SASCO:

The Joint Employer Allegations: As to Defendants claim that Defendant SASCO is not a proper party, Plaintiff has alleged sufficient facts of a joint employer relationship between Defendants SASCO and ELECTEK.

For pleading purposes, the court must assume the facts pled in the Complaint as true. Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034. In California, a “plaintiff is required only to set forth the essential facts of his case with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.” Alch v. Superior Court (2004) 122 Cal.App.4th 339, 382. A plaintiff does not need to allege evidentiary facts.  C.A. v. William S. Hart Union H.S. Dist. (2012) 53 Cal.4th 861, 872; Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090, 1102.  There is no need to require specificity in the pleadings because modern discovery procedures necessarily affect the amount of detail that should be required in a pleading.” Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1098-1099 [internal quotes and citations omitted].).  

Plaintiff alleges that “Defendant SASCO was or would have been a joint or dual employer of Plaintiff in that it did or would have suffered or permitted Plaintiff’s work and would have exercised power and control over Plaintiff’s employment, including but not limited to, Plaintiff’s working conditions, job duties, and/or wages.” First AC, ¶ 2. The First AC also includes several additional facts that indicate the possibility of a joint employer relationship between the Defendants. Both SASCO and ELECTEK have the same principal place of business in Fullerton, CA. First AC, ¶ 17. Larry Smead is listed as the Founder, Chairman of the Board, CEO, CFO Director, and Key Principal of both SASCO and ELECTEK on the Statement of Information filed with the Secretary of State. Ibid. The LinkedIn job posting stated that the person hired for the position “…will be an important member of the SASCO Team. First AC, ¶ 19.

Additionally, the job application form that Plaintiff was asked to complete was allegedly a SASCO application and was on SASCO letterhead. First AC, ¶ 23. Page 4 of the application, which Plaintiff was required to initial, specifically stated, “In the event of my employment to a position at SASCO, I will comply with all rules and regulations of this Company.” First AC ¶, 23. Finally, Plaintiff interviewed with several SASCO executives on two separate occasions. First AC, ¶¶ 32, 29.

For pleading purposes, the allegations are sufficient. Although the evidentiary facts upon which the claim will be decided are not necessary for the complaint, Plaintiff has alleged several facts to support claims against Defendant SASCO as a potential joint employer. Therefore, the demurrer that Defendant SASCO is a wrong party (CCP § 430.10(d)) is OVERRULED. Any causes of action asserted against Defendant SASCO, which have not been sustained by demurrer, will remain.

Alter Ego: Defendants also contend that Plaintiff has failed to show that SASCO is the alter ego of ELECTEK. The First AC does not reveal allegations of an alter ego theory, only joint employer. Therefore, the Court need not rule on this issue. If

Defendants believed the First AC contained improper allegations, a Motion to Strike would have been the proper motion to bring.

Third Cause of Action

As to the third cause of action, Plaintiff has properly plead a cause of action for discrimination based on perception of national origin/race.

Under the FEHA, the definition of “National origin” includes, but is not limited to the individual’s or ancestors’ actual or perceived:

(1) physical, cultural, or linguistic characteristics associated with a national origin group;

(2) marriage to or association with persons of a national origin group;

(3) tribal affiliation;

(4) membership in or association with an organization identified with or seeking to promote the interests of a national origin group;

(5) attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and

(6) name that is associated with a national origin group.

2 C.C.R. § 11027.1(a). Thus, a claim for discrimination based on perception of national origin/race can be stated, assuming Plaintiff plead a prima facie case of discrimination.

“To establish a prima facie case of discrimination under FEHA, a plaintiff must show they were a member of a protected class; they were qualified for the position or were performing competently in the position they held; they suffered an adverse employment action, such as termination, demotion, or denial of an available job; and some other circumstance suggested discriminatory motive.” Khoiny v. Dignity Health (2022) 76 Cal.App.5th 390, 397.

Plaintiff is originally from Azerbijian and speaks with an accent. He was asked during his interview with Defendants if he was Russian, “Tell me what is going on with Ukraine”, and “What is Putin doing there?”. First AC, ¶ 33. Thereafter, he was told by the CEO of SASCO AND ELECTEK that although they thought highly of his skills, he would no longer be considered for the position of President because of his accent. First AC, ¶¶ 42, 43. Based on the allegations, it appears Defendants perceived Plaintiff to be of a certain national origin/race whether true or not. Thus, Plaintiff has stated sufficient facts to state a cause of action for discrimination based on perception of national origin/race.

It is well established that “a party may plead in the alternative and may make inconsistent allegations.” Adams v. Paul (1995) 11 Cal.4th 583, 593, 46 Cal.Rptr.2d 594, 904 P.2d 1205; see also Crowley v. Katleman (1994) 8 Cal.4th 666, 690–691, 34 Cal.Rptr.2d 386, 881 P.2d 1083.)

Third Eye Blind, Inc. v. Near North Entertainment Ins. Services, LLC (2005) 127 Cal.App.4th 1311, 1323. A claim for discrimination based on one’s perception of national origin/race is different than discrimination based on national origin/race. Accordingly, the demurrer to the Third Cause of Action is OVERRULED.

Fourth Cause of Action

As to the 4th cause of action for discrimination based on unlawful interview questions, Plaintiff has alleged facts sufficient to state a cause of action.

The FEHA prohibits “any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status, or any intent to make any such limitation, specification, or discrimination.”

Cal. Govt. Code § 12940(d).

Here, Plaintiff alleges he was asked questions related to his national origin and/or race. Specifically, whether he was Russian or had lived in Russia. First AC, ¶ 33. He was also asked “[W]hat is going on with Ukraine?”, “What is Putin doing there?”. Ibid. Plaintiff was thereafter told by Defendants that he would no longer be considered for the position because of his accent. First AC, ¶¶ 42, 43.

While it may be true that merely asking unlawful interview questions is not actionable as a separate cause of action. In situations, such as this, where the Plaintiff alleges a discriminatory action occurring after the unlawful interview questions (e.g., failure to hire because of an accent) a claim for discrimination may be stated.

Defendants further assert that the 4th cause of action is merely duplicative of the 1st and 2nd cause of action. But even if the claims were deemed properly just one cause of action, there is no obvious need to force Plaintiff re-state his claims as a single, integrated cause of action and to impose the delay that would require. There is no apparent benefit to the parties or court from re-stating a complaint in which the alleged basis for liability, and theories of recovery, are coherent and understood by all. Therefore, the demurrer to the 4th Cause of Action is OVERRULED.

Sixth Cause of Action - IIED

The essential elements of a cause of action for Intentional infliction of Emotional Distress include:

(1) Extreme and outrageous conduct by the defendant;

(2) With the intention of causing, or reckless disregard of the probability of causing, emotional distress;

(3) Resulting in severe or extreme emotional distress;

(4) Actually caused by the defendant’s outrageous conduct.

Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051; Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty USA (2005) 129 Cal.App.4th 1228, 1259.

There is no bright line standard for judging outrageous conduct and its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser's values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical. Thus, whether conduct is outrageous is usually a question of fact.” So v. Shin (2013) 212 Cal.App.4th 652, 671-672.

Here, the First AC alleges that Plaintiff had at least five separate interview days with various executives of Defendants. First AC, ¶ 42. These interviews were either in-person or by Zoom, so Defendants should have been aware that Plaintiff spoke with an accent after the first interview. But despite several interviews, and positive feedback, Plaintiff was told via email, “We all thought highly of your skills, but couldn’t get over the hurdle of your accent.” Ibid. Plaintiff was further told that the “[y]ou want to talk and learn and the heads of Sasco do not want to talk because they do not understand what you said. Won’t work.” First AC, ¶ 43. Refusing to hire Plaintiff, even though he is qualified for the position, because of an immutable trait related to his national origin/race could be deemed outrageous.

Accordingly, the demurrer to the 6th cause of action is OVERRULED.

Future hearing dates

10/27/23 – MSC

11/27/23 – Jury Trial