Judge: Joel L. Lofton, Case: 23AHCV02718, Date: 2024-06-26 Tentative Ruling

Case Number: 23AHCV02718    Hearing Date: June 26, 2024    Dept: X

   Tentative Rulings

 

Judge Joel L. Lofton, Department X

 

 

HEARING DATE:      May 5, 2024                TRIAL DATE: No date set.

                                                          

CASE:                         GIANELA GOZALO, et al. v. SOUTHERN CALIFORNIA EDISON COMPANY, et al.

 

CASE NO.:                 23AHCV02718

 

 

DEMURRER WITH MOTION TO STRIKE

 

MOVING PARTIES:           Defendants Southern California Edison Company and Edison International  

                                                 

RESPONDING PARTIES:  Plaintiffs Gianela Gozalo, Yolanda Lira, Jessica Mereno, Annette Ramos, Jenny Martinez, and Sheila Medina

 

SERVICE:                             Filed February 5, 2024

 

OPPOSITIONS:                   Filed March 11, 2024

 

REPLIES:                              Filed April 2, 2024

 

BACKGROUND

 

             On November 17, 2023, Plaintiffs Gianela Gozalo, Yolanda Lira, Jessica Mereno, Annette Ramos, Jenny Martinez, and Sheila Medina (collectively, “Plaintiffs”) filed this employment law action against Defendants Southern California Edison Company (“SCE”), Edison International (“EIX”), and Does 1 through 10, inclusive, asserting the following causes of action.

 

(1)        Discrimination based on pregnancy in violation of California Fair Employment And Housing Act, Cal. Gov. Code § 12940, et seq. (“FEHA”)

(2)        Harassment and creation of a hostile work environment based on pregnancy in violation of FEHA

(3)        Discrimination based on sex and gender in violation of FEHA

(4)        Harassment and creation of a hostile work environment based on sex and gender in violation of FEHA

(5)        Discrimination based on age in violation of FEHA

(6)        Harassment and creation of a hostile work environment based on age in violation of FEHA

(7)        Failure to prevent harassment, Cal. Gov. Code, § 12940(K), et seq.

(8)        Retaliation in violation of FEHA

(9)        Whistleblower retaliation in violation of Cal. Lab. Code § 1102.5

(10)    Wrongful termination and/or constructive discharge in violation of Public Policy

(11)    Violation of Cal. Bus. & Prof. Code § 17200, et seq.

(12)    Intentional infliction of emotional distress

(13)    Negligent hiring, retention, and supervision

(14)    Negligent infliction of emotional distress

(15)    Unequal pay in violation of California Equal Pay Act, Cal. Lab. Code § 1197.5(A), et seq.

(16)    Retaliation and discrimination in violation of California Equal Pay Act, Cal. Lab. Code § 1197.5(K), et seq.

 

The Complaint refers to SCE and EIX collectively as “Edison” and alleges, among other things, that from the beginning of Plaintiffs’ respective tenures at Edison, Edison perpetuated wage disparities between men and women, penalized women for pregnancy leave, and discriminated against women in terms of salary and denied or delayed promotions. Women, particularly women aged 40 and above and women of color, are routinely passed over for promotions in favor of their male counterparts, or in favor of younger women. Some plaintiffs suffered retaliation and discrimination in violation of the Equal Pay Act.

 

TENTATIVE RULINGS

           

The demurrer is OVERRULED as to the fifteenth (15th) cause of action.

 

The demurrer is SUSTAINED as to the first (1st) through fourteenth (14th) and sixteenth (16th) causes of action, with leave to amend. Plaintiffs are ordered to file and serve their first amended complaint within 30 days of this ruling. Responsive pleadings must be filed within 30 days of service of the first amended complaint.

 

            The motion to strike is DENIED.

 

I.         REQUESTS FOR JUDICIAL NOTICE

 

            On February 5, 2024, Defendants filed a request for judicial notice of their Form 10-K filed with the U.S. Securities and Exchange Commission (“SEC”) and dated December 31, 2022, which is incorporated by reference in Plaintiffs’ Complaint (Paragraph 5, footnote 3) and attached to the Declaration of Brittani Jackson as Exhibit B.

           

            The unopposed request is granted. (See Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 265 [granting the plaintiff’s unopposed request for judicial notice of certificates filed with the SEC by the defendant and its officers pursuant to Evidence Code section 452, subdivisions(g) and (h)]; but see also Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1090 [“Courts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents”].)

 

            On March 11, 2024, Plaintiffs filed a request for judicial notice of the “Special Verdict Form for Claims of Justin Page filed in Martinez, et al. v. Southern California Edison, et al., No. BC670461 (Cal. Super. Ct., Los Angeles Cnty.) on June 2, 2022 (finding, ‘Was Edison International an “employer” of Justin Page under an agency theory? “Yes”’).”

 

            On April 2, 2024, Defendants filed an opposition to that request for judicial notice, arguing that a jury’s finding that EIX was an employer of an individual in a different action is irrelevant to whether Plaintiffs have adequately alleged the existence of an agency relationship between Defendants in their Complaint to overcome the demurrer.

 

            On June 20, 2024, Plaintiffs filed a reply in support of their request for judicial notice, arguing that “[i]t is relevant because, with the benefit of evidence (not appropriately adjudicated or introduced at the pleading stage) the trier here could likewise find, and Plaintiffs have good reason to believe the trier will find, that such an agency and employment relationship exists here, too. The record is thus directly relevant to rebut Defendants’ evidentiary argument in their demurrer that ‘EIX is not and has never been Plaintiffs’ employer.’ [Citation.]” (Reply in Support of Plaintiffs’ Request for Judicial Notice, p. 1:6-11.)

 

            Plaintifffs’ request for judicial notice is denied. Although a court may take judicial notice of court records, a court cannot take judicial matters of the truth of the matters asserted therein. In addition, the Court agrees with Defendants that Plaintiffs have failed to show how a jury’s finding in another case is relevant to this case, let alone the demurrer.

 

II.        DEMURRER

 

A.    Legal Standard

 

Generally, a party may demur a pleading on several enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) “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.) Indeed, 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.)

When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.)

A demurrer may be sustained “only if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) The defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.)

 

“If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted.” (Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 6.)

B.    Meet and Confer

Before filing its 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.” (Code Civ. Proc. § 430.41, subd. (a).)

 

Defendants have satisfied the meet and confer requirement. (Declaration of Brittani A. Jackson in Defendants’ Demurer, filed February 5, 2024, 2 [testifying that on January 31, 2024, the parties met and conferred via telephone regarding the demurrer but did not reach an agreement].)

C.    Discussion

In the demurrer, EIX demurs the first through sixteenth causes of action against it, while both Defendants demur the fifteenth and sixteenth causes of action for violation of the California Equal Pay Act.

 

The First through Twelfth and Fourteenth Through Sixteenth Causes of Action

 

EIX demurs the first through twelfth, and fourteenth through sixteenth causes of action, arguing that those FEHA claims fail to state facts sufficient to constitute a cause of action because the Complaint is devoid of facts showing that EIX was Plaintiffs’ employer. The defendant argues that Plaintiffs’ attempt to allege an employment relationship by treating Defendants as a single corporate entity (i.e., “Edison”) fails because EIX and SCE are separate corporate entities (EIX is the parent holding company of SCE and has no material operations) and are entitled to a presumption of separateness as a matter of law. In addition, defendant further argues, Plaintiffs’ conclusory allegations of secondary liability are also insufficient to state a claim against EIX.

 

In opposition, Plaintiffs argue that they have alleged an agency relationship between Defendants and that an allegation of an agency relationship is an ultimate fact.

 

The court agrees with both parties to some extent.

 

Plaintiffs correctly suggest that EIX can be liable under FEHA based on an agency relationship with SCE. “Under FEHA, it is an unlawful employment practice for ‘an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person’ to harass an employee or applicant because of sex [or other protected characteristic]. ([Gov. Code] § 12940, subd. (h)(1) …).” (Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1210 [italics in original].) “It is also an unlawful employment practice for ‘any employer, labor organization, employment agency, or person’ to ‘discharge, expel, or otherwise discriminate’ (i.e., to retaliate) against anyone who has opposed a practice forbidden by FEHA or has filed a complaint, testified or assisted in any FEHA proceeding. ([Gov. Code] § 12940, subd. (f) …).” (Ibid. [emphasis in original].) Therefore, “FEHA … extends liability to ‘any person,’ in addition to employers, their agents, and others.” (Id. at p. 1216.)

 

            However, the court also agrees with Defendants that the Complaint fails to allege facts sufficient to constitute the first through twelfth, and fourteenth through sixteenth causes of action against EIX.

 

In 2023, the California Supreme Court held that FEHA, “which defines ‘employer’ to ‘include[ ]’ ‘any person acting as an agent of an employer’ (§ 12926, subd. (d)), permits a business entity acting as an agent of an employer to be held directly liable as an employer for employment discrimination in violation of the FEHA in appropriate circumstances when the business-entity agent has at least five employees and carries out FEHA-regulated activities on behalf of an employer.” (Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, 291 [emphasis added].)

 

Here, the Complaint alleges “that at all times material hereto and mentioned herein, each Defendant sued herein … was the agent, servant, employer, joint employer, contractor, contractee, partner, division owner, subsidiary, division, alias, and/or alter ego of each of the remaining Defendants and was, at all times, acting within the purpose and scope of such agency, servitude, employment, contract, ownership, subsidiary, alias and/or alter ego and with the authority, consent, approval, control, influence and ratification of each remaining Defendant sued herein.” (Compl., 33 [emphasis added].)

 

The Complaint also alleges that “Defendants, and each of them, ratified each and every act or omission complained of herein. At all times herein mentioned, the Defendants, and each of them, aided and abetted the acts and omissions of each and all the other Defendants proximately caused the damages herein alleged.” (Compl., 34 [emphasis added].)

 

However, to the extent Plaintiffs are alleging that EIX is directly liable as an employer in violation of FEHA as a business entity agent of SCE, the Complaint is deficient because it is devoid of any facts alleging that (1) EIX has at least five employees and (2) carries out FEHA-regulated activities on behalf of an employer. As Defendants argue, the Complaint only alleges that “SCE is an employer that regularly employs five (5) or more persons.” (Compl., ¶¶ 96, 112, 128.) In addition, although the Complaint states “Edison” refers to both Defendants and that “Plaintiffs were employees of Edison …” (Compl., ¶¶ 103, 119), “California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236). Here, the Complaint specifically alleges that “Plaintiffs were employees of SCE when SCE discriminated against them based on sex and gender” (Compl., ¶ 112) and Plaintiffs Gianela Gozalo and Jenny Martinez and were SCE’s employees when SCE discriminated against them based on pregnancy and age, respectively (Compl., ¶¶ 96, 128). The Complaint does not contain specific allegations of EIX violating FEHA.

 

Although the eleventh, twelfth, fourteenth, fifteenth, and sixteenth causes of action were not brought under FEHA, the same defect identified above (i.e., failure to allege facts showing how EIX is liable) exists in those claims.

 

Accordingly, EIX’s demurrer to the first through twelfth and fourteenth through sixteenth causes of action is SUSTAINED, with leave to amend.

 

The Thirteenth Cause of Action

 

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) “Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Ibid.)

 

EIX also demurs the thirteenth cause of action for negligent hiring, retention, and supervision, arguing that Plaintiffs have not alleged facts showing the alleged wrongdoers had an employer-employee relationship with EIX.

 

The Court agrees and notes that Plaintiffs did not address that argument in their opposition.

 

Accordingly, EIX’s demurrer to the thirteenth cause of action is SUSTAINED, with leave to amend. 

 

The Fifteenth Cause of Action for Violation of the California Equal Pay Act

Defendants demur the fifteenth cause of action for unequal pay in violation of the California Equal Pay Act, arguing that the Complaint only alleges bare-bones elements of the claim.

 

Labor Code “[s]ection 1197.5 is California’s equal pay law. Its operative subsection states: ‘No employer shall pay any individual in the employer’s employ at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where the payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any bona fide factor other than sex.’ (§ 1197.5, subd. (a).)” (Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 622–623 (“Green”).)

 

“To prove a prima facie case of wage discrimination, ‘a plaintiff must establish that, based on gender, the employer pays different wages to employees doing substantially similar work under substantially similar conditions. [Footnote omitted.]’ [Citation.]” (Allen v. Staples, Inc. (2022) 84 Cal.App.5th 188, 194.) “The California statute is nearly identical to the federal Equal Pay Act of 1963. (29 U.S.C. § 206(d)(1).)” (Green, supra, 111 Cal.App.4th at p. 623; E.E.O.C. v. First Citizens Bank of Billings (9th Cir. 1985) 758 F.2d 397, 402 [“The Equal Pay Act does not require that jobs being compared be performed simultaneously; it also encompasses situations where an employee of one sex is hired for a particular job to replace an employee of the opposite sex. [Citations.] Violations may be proved by comparing the woman’s salary to that of her male successor. [Citations]”].)

 

Here, Plaintiffs allege that “Defendants have and/or continue to pay Plaintiffs at a rate less than Defendants’ male employees in violation of the California Equal Pay Act, Cal. Lab. Code § 1197.5, et seq.,” even though they “were performing substantially similar work as Defendants’ male employees with respect to their skill, effort, and responsibility” and “performing substantially similar work under similar working conditions as Defendants’ male employees.” (Compl., ¶¶ 190-192.)

 

Those allegations are sufficient to allege the fifteenth cause of action for unequal pay. To the extent Defendants are seeking more information regarding those allegations, they can resolve that uncertainty through discovery.

 

Accordingly, Defendants’ demurrer to the fifteenth cause of action is OVERRULED.

 

The Sixteenth Cause of Action for Retaliation and Discrimination in Violation of the California Equal Pay Act

Defendants also demur the sixteenth retaliation and discrimination in violation of the California Equal Pay Act, arguing that the Complaint fails to allege sufficient facts.

 

The Equal Pay Act states in relevant part: “An employer shall not discharge, or in any manner discriminate or retaliate against, any employee by reason of any action taken by the employee to invoke or assist in any manner the enforcement of this section.” (Lab. Code, § 1197.5, subd. (k)(1).) “An employer shall [also] not prohibit an employee from disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise their rights under this section.” (Lab. Code, § 1197.5, subd. (k)(1).)

 

“Any employee who has been discharged, discriminated or retaliated against, in the terms and conditions of their employment because the employee engaged in any conduct delineated in this section may recover in a civil action reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, including interest thereon, as well as appropriate equitable relief.” (Lab. Code, § 1197.5, subd. (k)(1).)  

 

Only four plaintiffs assert the sixteenth cause of action against Defendants. Those plaintiffs are Gianela Gozalo, Yolanda Lira, Jessica Mereno, Annette Ramos, and Jenny Martinez (basically all plaintiffs except for Sheila Medina).

 

The Complaint alleges that those plaintiffs allege that Defendants discriminated and retaliated against them for requesting promotions, increased compensation, and/or equal pay. (Compl., ¶¶ 200 [“Plaintiffs Gozalo, Lira, Mereno, Ramos, and Martinez suffered discrimination and retaliation because of their protected activities in violation of Cal. Lab. Code § 1197.5(k), including with respect to their requests for promotions, increased compensation, and/or equal pay”]; 201 [“Plaintiffs’ protected activities were responded to by Defendants with denied promotions, refusals to provide increased compensation or equal pay, demotions, reassignment with significantly different responsibilities, losses of benefits, suspensions, terminations, and other adverse employment actions”].)

 

The Court finds those allegations uncertain as it is unclear (1) which protected activities each plaintiff undertook under the California Equal Pay Act (2) how each defendant discriminated and/or retaliated against each plaintiff for those activities.

 

 Accordingly, Defendants’ demurrer to the sixteenth cause of action is SUSTAINED, with leave to amend.

III.      MOTION TO STRIKE

 

Defendants move to strike portions of the Complaint, arguing that those portions are barred by the applicable statute of limitations.

 

A.    Legal Standard

 

A court may strike any “irrelevant, false or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.) “[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) 

B.    Meet and Confer

“Before filing a motion to strike …, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).)

 

Defendants have satisfied the meet and confer requirement. (Declaration of Brittani A. Jackson in Defendants’ Motion to Strike, filed February 5, 2024, 2 [testifying that on January 31, 2024, the parties met and conferred via telephone regarding the demurrer but did not reach an agreement].)

C.    Discussion

As an initial matter, as Plaintiffs argue, there is no specific time alleged in connection with the fifteenth cause of action for unequal pay in violation of the California Equal Pay Act (as Plaintiffs argue). Therefore, the Court cannot hold at this time that the applicable statute of limitations bars some allegations in support of that claim. In addition, the Court has sustained the demurrer to the sixteenth cause of action for retaliation and discrimination in violation of the California Equal Pay Act, with leave to amend.

 

Accordingly, the Court DENIES Defendants’ request to “strike the claim for discriminatory payments to the extent that it encompasses wages before November 17, 2020 (Count XV) and strike the claim for retaliation to the extent it encompasses wages before November 17, 2022 (Count XVI).” (Defendants’ Motion to Strike, p. 24:18-20.)

 

As for the other claims, the Court cannot determine at this time that the statute of limitations bars them because the Complaint does not place the time-specific allegations underneath each claim. Therefore, the Court cannot strike the paragraphs at issue without knowing whether those paragraphs are essential to a specific claim. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [“While under [Code of Civil Procedure] section 436, a court at any time may, in its discretion, strike portions of a complaint that are irrelevant, improper, or not drawn in conformity with the law, matter that is essential to a cause of action should not be struck and it is error to do so”].)

 

Accordingly, the Court DENIES Defendants’ request to strike the other portions of the Complaint at issue.

 

 

The motion to strike is DENIED.

 

 

            Moving Party to give notice.

 

 

Dated:   June 26, 2024                                                ___________________________________

                                                                                    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.  alhdeptx@lacourt.org