Judge: John J. Kralik, Case: 22BBCV00868, Date: 2023-04-07 Tentative Ruling
Case Number: 22BBCV00868 Hearing Date: April 7, 2023 Dept: NCB
North Central District
JOHNNY BOGAN, et al.,
Plaintiffs, v.
BRIDGING COMMUNITY RESOURCES,
Defendant. |
Case No.: 22BBCV00868
Hearing Date: April 7, 2023 [TENTATIVE] ORDER RE: DEMURRER; MOTION TO STRIKE |
BACKGROUND
A. Allegations
Plaintiff Johnny Bogan alleges that he was hired by Defendant Bridging Community Resources (“Defendant”) in September 1998 as a physical instructor. Plaintiff Sogomon Keleshyan alleges that he was hired by Defendant in June 2012 as a direct support professional. Plaintiffs allege they were non-exempt employees during their employment with Defendant. Mr. Bogan alleges that he is black and over the age of 40. Mr. Keleshyan alleges that he is Armenian.
Plaintiffs allege that they were not able to take meal and rest breaks, they complained to Defendant that they were being harassed on the basis of race/color/national origin, they had to buy materials for their classrooms out of pocket without reimbursement, and they faced harassment based on their race. Plaintiffs allege they were terminated in or around April 2020 due to “COVID-19 pandemic” related reasons, but they allege that based on the timing, their termination was due to making complaints concerning Defendant’s treatment of Plaintiffs. (Compl., ¶14.h.)
The Complaint, filed October 28, 2022, alleges causes of action for: (1) failure to provide meal breaks; (2) failure to provide rest breaks; (3) failure to pay overtime; (4) failure to reimburse business expenses; (5) failure to furnish accurate itemized wage statements; (6) failure to pay all wages owed; (7) failure to pay waiting time penalties; (8) unfair business practice; (9) harassment on the basis of race, color, and/or national origin in violation of FEHA; (10) discrimination on the basis of race, color, and/or national origin in violation of FEHA; (11) discrimination on the basis of age in violation of FEHA; (12) failure to prevent harassment and discrimination in violation of FEHA; (13) retaliation in violation of FEHA; (14) retaliation in violation of Labor Code, § 98.6; (15) whistleblower retaliation in violation of Labor Code, § 1102.5; (16) wrongful termination in violation of FEHA; (17) wrongful termination in violation of public policy; (18) negligent supervision; (19) negligent hiring/retention; and (20) IIED.
B. Motions on Calendar
On January 30, 2023, Defendant filed a demurrer and motion to strike portions of the complaint.
On March 24, 2023, Plaintiffs filed opposition briefs.
On March 30, 2023, Defendant filed reply briefs.
DISCUSSION RE DEMURRER
Defendant demurs to the 9th to 20th causes of action alleged in the initial complaint.
A. 9th and 10th causes of action for harassment and discrimination in violation of FEHA
Defendant demurs to the 9th and 10th causes of action for harassment and discrimination on the basis of race, color, and/or national origin in violation of FEHA, arguing that Plaintiffs have failed to allege whether the harassing conduct occurred within the 3-year statute of limitations period. (Gov’t Code, §§ 12960, 12965.) Defendant argues that the complaint lacks dates of when the discriminatory and harassing behavior occurred within 3 years of the administrative complaint filed by Plaintiffs with the Department of Fair Employment and Housing.
“In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-16.) Here, because the defect regarding the statute of limitations is not apparent on the face of the complaint, the Court declines to sustain the demurrer to the 9th and 10th causes of action. Further, a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal. App. 4th 1028, 1047.) While Plaintiffs may not be able to recover for every single violation they experienced in their years of working for Defendant as a result of the statute of limitations, the Court will not bar the entirety of their claim as some parts of their claim may still be viable.
The demurrer to the 9th and 10th causes of action is overruled.
B. 11th cause of action for discrimination on the basis of age
The 11th cause of action is alleged by Mr. Bogan only against Defendant. As alleged in the complaint, Mr. Bogan is over the age of 40 years old. (Compl., ¶11.)
Defendant argues that Mr. Bogan has not alleged sufficient facts showing when he suffered adverse employment actions and whether these actions occurred when he was over the age of 40.
The complaint only alleges that Mr. Bogan is over 40 years old, but it does not allege how old he currently is or how long he has been over the age of 40 since he started working for Defendant in September 1998. More specific facts regarding when Mr. Bogan’s alleged age discrimination began should be provided upon amendment.
The demurrer to the 11th cause of action is sustained with leave to amend.
C. 12th cause of action for failure to prevent harassment and discrimination in violation of FEHA
Defendant demurs to the 12th cause of action, arguing that this cause of action fails because it is dependent on the underlying 9th and 10th causes of action.
As the Court has overruled the demurrer to the 9th and 10th causes of action, the demurrer to the 12th cause of action is also overruled.
D. 13th cause of action for retaliation in violation of FEHA
“The elements of a claim for retaliation in violation of section 12940, subdivision (h), are … : (1) the employee's engagement in a protected activity, i.e., ‘oppos[ing] any practices forbidden under this part’; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.)
Defendant argues that given the length of time Plaintiffs worked for Defendant, they fail to establish a causal link between their complaints and their termination and that Plaintiffs acknowledge that Defendant terminated them for COVID-19 related reasons. (Compl., ¶14.) However, Defendant’s arguments are better raised beyond the pleading stage as they deal with factual issues that are in dispute. At the demurrer and pleading stage, the Court accepts as true the allegations of the complaint. The underlying reason for Plaintiffs’ termination is best determined upon the consideration of evidence at the summary judgment or trial stage. At this time, the Court will accept as true Plaintiffs’ allegations that there was a causal link between their complaints that Defendant was violating labor laws and FEHA and their eventual termination.
The demurrer to the 13th cause of action is overruled.
E. 14th and 15th causes of action for retaliation in violation of the Labor Code
Labor Code, § 98.6 prohibits an employer from discharging, discriminating, retaliating, or taking any adverse action against an employee for engaging in conduct protected under the Labor Code or for filing a bona fide complaint or claim as delineated in the code. Section 1102.5 states that an employer shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information about a violation of the law or retaliate against an employee for disclosing a violation of the law.
Defendant argues that Plaintiffs have not alleged facts showing that their termination occurred because they exercised a right protected by the Labor Code pursuant to section 98.6 or that they engaged in any protected activity about making complaints.
The allegations of the complaint at paragraph 14 and in the allegations supporting the 14th and 15th causes of action lack specific facts showing that Defendant retaliated against Plaintiffs for exercising their rights protected by the Labor Code or for making complaints about violations of the law. Further facts should be provided about what conduct Plaintiffs engaged in and how Defendant retaliated against them, as well as when this conduct occurred.
The demurrer to the 14th and 15th causes of action is sustained with leave to amend.
F. 16th and 17th causes of action for wrongful termination in violation of FEHA and public policy
Defendant argues that because Plaintiffs’ wrongful termination claims are based on the public policies outlined in FEHA and the Labor Code, a failure to establish those violations would mean the wrongful termination claims also fail. However, as discussed above, the Court has overruled the demurrer to the causes of action for harassment and discrimination based on race, color, and/or national origin in violation of FEHA, as well as for the causes of action for failure to prevent harassment and discrimination in violation of FEHA and retaliation in violation of FEHA. As such, the demurrer to the 16th cause of action for wrongful termination in violation of FEHA is overruled.
With respect to the 17th cause of action for wrongful termination in violation of public policy, “[t]he 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.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 154; see also CACI 2430.) “Under California law, if an employer did not violate FEHA, the employee’s claim for wrongful termination in violation of public policy [based on FEHA] necessarily fails.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169.) This is not to say that a wrongful termination for public policy will necessarily follow if there may be a viable claim under FEHA, but at the demurrer stage, the Court will accept the allegations of the complaint regarding Defendant’s alleged wrongful termination of Plaintiffs as true. Thus, the Court will overrule the demurrer to the 17th cause of action.
The demurrer to the 16th and 17th causes of action is overruled.
G. 18th and 19th causes of action for negligent supervision, hiring, and retention
The elements of a negligent hiring, supervision, or retention of employee claim are: (1) the defendant employer hired the employee; (2) the employee was/became unfit or incompetent to perform the work for which he/she was hired; (3) the defendant employer knew or should have known that the employee was/became unfit or incompetent and that this unfitness or incompetence created a particular risk to others; (4) the employee’s unfitness or incompetence harmed the plaintiff; and (5) the defendant employer’s negligence in hiring, supervising, or retaining the employee was a substantial factor in causing the plaintiff’s harm. (CACI 426.)
In the complaint, Plaintiffs allege that Defendant failed to supervise their managing agents. (Compl., ¶140.) Plaintiffs allege that Defendant owed Plaintiffs a duty not to hire and/or retain their managing agents, given their discriminatory and retaliatory propensities, which Defendant knew or reasonably should have known about. (Id., ¶145.)
Defendant argues that the complaint fails to allege who Defendant hired, retained, and/or supervised and thus the allegations of the complaint are uncertain. In opposition, Plaintiffs argue that they are not required to identify any persons in their complaint. Plaintiffs cite to C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872, wherein the Supreme Court of California stated:
The complaint, it is true, does not identify by name or position the District's “employees, administrators and/or agents” who allegedly failed to “properly hire, train and supervise Hubbell.” But the District cites no statute or decision requiring a plaintiff to specify at the pleading stage which of the defendant's employees committed the negligent acts or omissions for which a public entity is allegedly liable under section 815.2. To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. (See Golceff v. Sugarman (1950) 36 Cal.2d 152, 154, 222 P.2d 665 [complaint against employer need not include allegation that negligent act was committed by employee in order for plaintiff to pursue respondeat superior liability].) We cannot say from the face of the complaint that the District had no supervisory or administrative personnel whose responsibilities included hiring, training, supervising, disciplining or terminating a guidance counselor.
(William S. Hart, supra, 53 Cal.4th at 872.) Likewise, Defendant has not cited any case law showing that Plaintiffs are required to allege additional facts. Further, the specific names of individuals or managing agents can be identified at the discovery stage of the proceedings.
The demurrer to the 18th and 19th causes of action is overruled.
H. 20th cause of action for IIED
The elements of intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff suffered severe or extreme emotional distress; and (4) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct. (Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) In order to avoid a demurrer, the plaintiff must allege with great specificity, the acts which she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id.) Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) In addition, the outrageous conduct must be of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. (Id.) “Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry [citation], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1376.) Such distress must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.)
Defendant argues that the comments made by unspecified individuals to Mr. Keleshyan that Armenians “have all the money” and “control everything” or to Mr. Bogan that clients should “watch their purses” when he entered the room are at best insults and trivialities and are not the extreme and outrageous conduct required for an IIED claim. In opposition, Plaintiffs argue that the comments are racist, harassing, and derogatory as many of them were racially charged. At this time, the Court finds that the allegations are sufficient to allege extreme and outrageous conduct. Whether Plaintiffs will be able to prove this later will be determined based on the evidence.
However, the Court finds that Plaintiffs’ allegations regarding severe emotional distress to be lacking. “[M]ere allegation that the plaintiffs suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendant's alleged outrageous conduct, fail[s] to state a cause of action for intentional infliction of emotional distress.” (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047.) “The allegation that plaintiff suffered shame, humiliation and embarrassment without further factual explanation does not meet the requirement of specificity….” (Id.) The complaint alleges in a conclusory fashion that Defendant’s conduct caused Plaintiff severe emotional distress, humiliation, mental anguish, and embarrassment. (Compl., ¶¶153-154.) Further facts to support this element should be provided.
The demurrer to the 20th cause of action is sustained with leave to amend.
DISCUSSION RE MOTION TO STRIKE
Defendant moves to strike allegations for punitive damages from the complaint.
A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A claim for punitive damages cannot be pleaded generally and allegations that a defendant acted "with oppression, fraud and malice" toward plaintiff are insufficient legal conclusions to show that the plaintiff is entitled to an award of punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Specific factual allegations are required to support a claim for punitive damages. (Id.)
Civil Code § 3294 authorizes a plaintiff to obtain an award of punitive damages when there is clear and convincing evidence that the defendant engaged in malice, oppression, or fraud. Section 3294(c) defines the terms in the following manner:
(1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
(2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.
(3) "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
Further, when the punitive damages are sought against an employer, Civil Code § 3294(b) requires the plaintiff to establish the following:
(1) the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized,
(2) the employer ratified the wrongful conduct for which the damages are awarded, or
(3) the employer was personally guilty of oppression, fraud, or malice.
With respect to a corporate employer, section 3294(b) requires that the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.
The Court has reviewed the allegations of the complaint and finds that while it may allege certain viable claims against Defendant, the standard of particularity necessary for punitive damages has not been met. As currently alleged, the allegations for malice, oppression, and punitive damages are conclusory and fail to rise to the level of specificity required to warrant punitive damages. (See e.g., Compl., ¶¶17(a)-(b), 115, 137.) Further, Defendant is not an individual and is instead a corporate entity, such that more specific facts must be alleged with respect to employer’s advance knowledge and conscious disregard, authorization, ratification or act of oppression and malice on the part of an officer, director, or managing agent. While Plaintiffs did not need to name certain individuals in their negligent hiring, supervision, and retention claims, specific facts must be alleged when seeking punitive damages, such as who these offending individuals were and their capacity in relation to Defendant employer.
The motion to strike the allegations for punitive damages is granted with leave to amend.
CONCLUSION AND ORDER
Defendant Bridging Community Resources’ demurrer to the 9th, 10th, 12th, 13th, 16th, 17th, 18th, and 19th causes of action is overruled. The demurrer to the 11th, 14th, 15th, and 20th causes of action is sustained with 20 days leave to amend.
Defendant’s motion to strike allegations for punitive damages is granted with 20 days leave to amend.
Defendant shall provide notice of this order.