Judge: Joel L. Lofton, Case: 22AHCV00045, Date: 2022-10-13 Tentative Ruling
Case Number: 22AHCV00045 Hearing Date: October 13, 2022 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: October
13, 2022 TRIAL DATE: No date set
CASE: ROB C. PUN, an
individual, v. MEGA BANK, a California Corporation; EDWARD LO, an individual,
JULIAN FONG, an individual, and DOES 1-80, inclusive.
CASE NO.: 22AHCV00045
DEMURRER
MOVING PARTY: Defendants Mega Bank,
Edward Lo, and Julian Fong
RESPONDING PARTY: Plaintiff
Rob C. Pun
SERVICE: Filed May 27, 2022
OPPOSITION: Filed September 28, 2022
REPLY: Filed October 6, 2022
RELIEF
REQUESTED
Defendants demurrer to the third, fifth, and eighth causes of action.
BACKGROUND
This case arises out of Plaintiff Rob C. Pun’s (“Plaintiff”) claim that
Defendants Mega Bank, Edward Lo (“Lo”), and Julian Fong (“Fong”) wrongfully
terminated his employment at Mega Bank and engaged in wrongful and retaliatory
conduct. Plaintiff alleges that on December 1, 2016, he was hired by Lo to be
the CFO of Mega Bank. Plaintiff alleges that on September 23, 2021, he went on medical
leave. He further alleges that on September 27, 2021, he filed a Human
Resources (“HR”) complaint against Lo and Fong. Plaintiff alleges he was
terminated on September 30, 2021, while on medical leave.
Plaintiff filed this first amended complaint
(“FAC”) on April 28, 2022, alleging eight causes of action for (1) relation,
(2) discrimination on the basis of age, (3) hostile work environment, (4)
wrongful discharge in violation of public policy; (5) defamation – slander; (6)
unfair business practices; (7) intentional infliction of emotional distress;
and (8) harassment.
TENTATIVE RULING
Lo’s
demurrer to Plaintiff’s third cause of action is sustained with leave to amend.
Mega Bank
and Fong’s demurrer to Plaintiff’s third cause of action is overruled.
Defendants’
demurrer to Plaintiff’s fifth cause of action is overruled.
Defendants’
demurrer to Plaintiff’s eighth cause of action is sustained without leave to
amend.
LEGAL STANDARD
A general
demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to
constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or by proper judicial
notice. (Code Civ. Proc. section
430.30(a).) A demurrer tests the pleadings alone and not the evidence or
other extrinsic matters. (SKF Farms v. Superior Court (1984) 153
Cal. App. 3d 902, 905.) The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn v.
Mirda, supra, 147 Cal.App.4th 740, 747.)
Additionally, a
special demurrer to a complaint may be brought on the ground the pleading is
uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based
on uncertainty is disfavored and will be strictly construed even when the
pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14
Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if
the pleading is so incomprehensible that a defendant cannot reasonably
respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208
Cal.App.4th 1125, 1135.)
DISCUSSION
Meet and Confer
Defendants
provid that on May 4, 2022, their counsel sent a meet and confer letter to
Plaintiff’s counsel regarding the demurrer to the FAC but no one responded.
(Hernandez Decl. ¶ 5.)
Third
Cause of Action for Hostile Work Environment
Plaintiff’s
third cause of action alleges that Plaintiff was subjected to unwanted
harassing conduct by Lo and Fong in violation of Government Code section 12940,
subdivision (j). Defendants object to Plaintiff’s third cause of action on the
grounds that Plaintiff fails to allege harassment based on a protected class
and because Plaintiff fails to allege pervasive harassment.
Government
Code section 12940, subdivision (j) provides that it is an unlawful employment
practice "[f]or an employer, . . ., because of 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, to harass an employee,
. . . .”
In Thompson
v. City of Monrovia (2010) 186 Cal.App.4th 860, 876, the Court held that
for the plaintiff to make a claim for a racially hostile work environment, he
must show “(1) he was a member of a protected class; (2) he was subjected to
unwelcome harassment; (3) the harassment was based on race; (4) the harassment
unreasonably interfered with his work performance by creating an intimidating,
hostile, or offensive work environment; and (5) the Department is liable for
the harassment.” “The law prohibiting harassment is violated ‘[w]hen the
workplace is permeated with discriminatory intimidation, ridicule and insult
that is “ ‘sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment.’ ” ’ ” (Nazir
v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263.)
Plaintiff’s
third cause of action alleges that Defendants violated Government Code section
12940 by repeatedly mocking, blaming, and disparaging Plaintiff. Most of
Plaintiff’s claims are not based on allegations that Defendant harassed
Plaintiff based on his membership in a protected class. For example,
Plaintiff’s claim that he was “constantly reminded that Pun owes Lo Personally
loyalty for preventing Pun’s termination” (FAC ¶ 99c) is not related to any protected class. However, Plaintiff
does claim that Fong made age-based harassing statements to Plaintiff such as
saying, “You are a 60-year-old man, what the hell were you thinking”. (FAC ¶
60.)
Although Defendants assert that Plaintiff’s claims fail
to establish “pervasive” harassment, at the pleading stage, Plaintiff’s claims
are sufficient to allege that Fong created a hostile work environment for
Plaintiff based on Plaintiff’s age. However, Plaintiff fails to allege that Lo
engaged in harassment based on Plaintiff’s membership in a protected class. The
FAC fails to state a claim for hostile work environment against Lo.
Mega Bank and Fong’s demurrer to Plaintiff’s third cause
of action is overruled.
Lo’s demurrer to Plaintiff’s third cause of action is
sustained.
Fifth Cause of Action for Defamation
Defendants object to Plaintiff’s fifth cause of action on
the grounds that the alleged defamation relates to performance evaluations.
“The elements of a defamation claim
are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and
(5) has a natural tendency to injure or causes special damage.” (John Doe 2 v.
Superior Court (2016) 1 Cal.App.5th 1300, 1312.)
Code of
Civil Procedure section 47, subdivision (c), provides privileged publications
include: “communication, without malice, to a person interested therein, (1) by
one who is also interested, or (2) by one who stands in such a relation to the
person interested as to afford a reasonable ground for supposing the motive for
the communication to be innocent, or (3) who is requested by the person
interested to give the information.”
Defendants’ efforts
to characterize Plaintiff’s allegations as being comments about Plaintiff’s job
performance are unavailing. Plaintiff alleges that Fong yelled and screamed at
Plaintiff in front of Plaintiff’s subordinates. (FAC ¶ 124.) Plaintiff also alleges that Fong
berated Plaintiff for not knowing what his job duties were and falsely claimed
Plaintiff work-related errors. (Ibid.) Plaintiff also alleges that Fong
and Lo falsely stated that Plaintiff had disclosed confidential information
about Mega Bank. (Id. ¶ 125.) Plaintiff’s claims are not limited to
Defendants’ characterizations that they are simply comments related to an
employee’s performance evaluation. Plaintiff’s allegations, at the demurrer
stage, are sufficient to allege a claim for defamation.
Defendants’ demurrer to Plaintiff’s fifth cause of action
for defamation is overruled.
Eighth Cause of Action for Harassment
Defendants assert that
Plaintiff’s eighth cause of action for harassment fails as a matter of law
because there is no common law claim for harassment, citing Myers v.
Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1426 (“There is no common law
cause of action for sexual harassment, but conduct constituting sexual
harassment may be alleged in common law claims such as battery and intentional
infliction of emotional distress.”)
In
opposition, Plaintiff cites Rojo v. Kliger (1990) 52 Cal.3d 65, 82, for
the proposition that “[w]hile the FEHA conferred certain new rights and created
new remedies, its purpose was not to narrow, but to expand the rights and
remedies available to victims of discrimination.” However, the issue in Rojo
was whether FEHA provided an exclusive remedy. (Id. at p. 71.)
Further, the plaintiff in Rojo had alleged a claim for intentional
infliction of emotional distress. (Ibid.)
It is
unclear what Plaintiff’s eighth cause of action is seeking to assert. Plaintiff
points to no authority to support the existence of a common law cause of action
for harassment. Plaintiff’s allegations are also repetitions of his other
claims combined in an amorphic and general claim for “harassment”. Plaintiff’s
eighth cause of action fails to state facts sufficient to state a claim.
Thus,
Defendants’ demurrer to Plaintiff’s eighth cause of action is sustained.
CONCLUSION
Lo’s
demurrer to Plaintiff’s third cause of action is sustained with 20 days leave
to amend.
Mega Bank
and Fong’s demurrer to Plaintiff’s third cause of action is overruled.
Defendants’
demurrer to Plaintiff’s fifth cause of action is overruled.
Defendants’ demurrer to Plaintiff’s
eighth cause of action is sustained without leave to amend.
Dated: October 13,
2022 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an
email to the court indicating their
intention to submit.
Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org