Judge Jon R. Takasugi, Case 22STCV27868 2023-02-08 Tentative Ruling

Judge: Jon R. Takasugi, Case: 22STCV27868, Date: 2023-02-08 Tentative Ruling

Case Number: 22STCV27868 Hearing Date: February 8, 2023 Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT
17

TENTATIVE RULING

CAMERON ABDO

vs.

SONIC GODS, et al.

Case
No.: 22STCV27868

Hearing Date: February 8, 2023

Defendant’s
demurrer is OVERRULED as to the first, second, third, fourth, fifth, sixth, and
seventh causes cause of action.

On
8/26/2022, Plaintiff Cameron Abdo (Plaintiff) filed suit against Sonic Gods,
Inc., Michelle Delamor, Chris Hayman, and Shane Edelman, alleging: (1) sex
discrimination; (2) retaliation; (3) failure to prevent discrimination; (4)
retaliation; (5) failure to comply with OSHA standards and retaliation; (6)
wrongful termination; and (7) intentional infliction of emotional distress (IIED).

Now,
Shane Edelman (Defendant) demurs to the Complaint.

Discussion

Defendant
argues that Plaintiff’s first, second, third, fourth, and sixth causes of
action against Individual Defendants fail as a matter of law. Defendant argues
the fifth cause of action fails because there is no private right of action to
enforce Labor Code section 6310. Finally, Defendant argues that Plaintiff’s
IIED cause of action fails because he has not alleged facts which could show
extreme and outrageous conduct.

I.
Discrimination and
Retaliation Claims (1^st, 2^nd, 3^rd, 4^th,
and 6^th COAs)

Defendant
argues that Plaintiff has not alleged facts which could show that Individual
Defendants are liable for these causes of action.

The Court
disagrees.

California law is clear that individual
supervisors or managers cannot be held personally liable for the termination of
an employee. (Reno v. Baird (1998) 18 Cal.4th 640, 662.) Specifically,
in Reno, the California Supreme Court concluded that individuals cannot
be held liable for claims based upon alleged discriminatory or retaliatory
personnel decisions since "[m]aking personnel decisions is an inherent and
unavoidable part of the supervisory function [and] [w]ithout making personnel
decisions, a supervisory employee simply cannot perform his or her job
duties." (Reno, supra, 18 Cal.4th at pp. 646-648.)

It is also
true under California law that an individual employee cannot be held liable for
violation of Labor Code section 1102.5. (See Toranto v. Jaffurs (S.D.
Cal. 2018) 297 F.Supp.3d 1073.) Nor can an individual defendant be held
individually liable for wrongful termination. An individual who is not an
employer cannot commit the tort of wrongful discharge in violation of public
policy; rather, he or she can only be the agent by which an employer commits
that tort.” (Miklosy v. Regents of University of California (2008) 44
Cal.4th 876, 900 (sustaining demurrer to as to plaintiff’s wrongful termination
claim against former supervisors); see also Kim v. Konad USA Distribution,
Inc. (2014) 226 Cal.App.4th 1336, 1351; Khajavi v. Feather River
Anesthesia Med. Group (2000) 84 Cal.App.4th 32, 53 (As a matter of law,
only an employer can be liable for the tort of wrongful discharge in violation
of public policy.); see also Weinbaum v. Goldfarb, Whitman & Cohen
(1996) 46 Cal.App.4th 1310, 1313.)

However,
here, Plaintiff also alleges that the individual Defendants were managing
agents of Sonic God, and alleges alter-ego liability. In his motion, Defendant overstates
Plaintiffs’ burden at the pleading stage by arguing that Plaintiff has not
alleged facts to establish that the Individual Defendants are managing agents,
and arguing that “[a] plaintiff must plead and prove two conditions before the
alter ego doctrine will be invoked.” (Motion, 10: 9-10.) While the Court
understands the generic nature of Plaintiff’s allegations, it is not yet
Plaintiff’s burden to prove alter-ego liability. Rather, at the pleading stage,
all Plaintiff must do is allege facts which, accepted as true, could state a
claim. Here, Plaintiff alleges that Individual Defendants are managing agents of
Sonic God and alter-egos. While this may not, in fact, be true, that is a
factual determination not properly made at this stage. Plaintiff need not
allege facts which prove this. Rather, that is contemplated by pretrial
discovery.

Based
on the foregoing, Defendant’s demurrer to the first, second, third, fourth, and
sixth causes of action is overruled.

II.
Labor Code section 6310
(5^th COA)

Defendant
argues that Plaintiff cannot state a claim because Plaintiff has not alleged facts
to state a claim and does not have an individual private right of action to
bring claims for the alleged unsafe workplace violations pursuant to Cal. Labor
Code section 6300, et seq.

The Court disagrees.
In opposition to Sonic God’s demurrer, Plaintiff cited a number of cases
wherein a Labor Code section 6310 cause of action was asserted. Interestingly,
in reply, Defendant did not dispute this, but instead argued that Plaintiff
never reported any specific workplace health or safety concerns. However, these
are different arguments.

Plaintiff’s
amended complaint alleges the specific guidelines which were allegedly
violated, and the specific complaints alleged lodged by Plaintiff about the
violations. (FAC ¶¶ 75-98.) This is sufficient at the pleading stage to state a
claim for a violation of section 6310.

Based on the
foregoing, Defendant’s demurrer to the fifth cause of action is overruled.

III.
IIED (7^th COA)

Defendant
argues that Plaintiff has not alleged facts which could show extreme and outrageous
conduct. However, as set forth above, the Court concluded that Plaintiff has
alleged facts which could show the Individual Defendants engaged in
retaliation, discrimination, and wrongful termination. Accordingly, accepted as
true at the pleading stage, Plaintiff has alleged facts which could show
Defendant here engaged in extreme and outrageous conduct.

Based on the foregoing, Defendant’s
demurrer to seventh cause of action is overruled.

It is so ordered.

Dated: February
, 2023

Hon. Jon R.
Takasugi

Judge of the
Superior Court

Parties who intend to submit on this tentative must
send an email to the court at smcdept17@lacourt.org
by 4 p.m. the day prior as directed by the instructions provided on the court
website at www.lacourt.org. If a party submits
on the tentative, the party’s email must include the case number and must
identify the party submitting on the tentative.
If all parties to a motion submit, the court will adopt this
tentative as the final order. If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar.

Due to Covid-19, the court is
strongly discouraging in-person appearances. Parties, counsel, and court reporters present
are subject to temperature checks and health inquiries, and will be denied
entry if admission could create a public health risk. The court encourages the parties wishing to
argue to appear via L.A. Court Connect.
For more information, please contact the court clerk at (213)
633-0517. Your understanding during
these difficult times is appreciated.

Superior Court of California

County of Los Angeles

DEPARTMENT
17

TENTATIVE RULING

CAMERON ABDO

vs.

SONIC GODS, et al.

Case
No.: 22STCV27868

Hearing Date: February 6, 2023

Defendant’s
demurrer is OVERRULED as to the first, second, third, fourth, fifth, sixth, and
seventh causes cause of action.

Now,
Michelle Delamor (Defendant) demurs to the Complaint.

Discussion

I.
Discrimination and
Retaliation Claims (1^st, 2^nd, 3^rd, 4^th,
and 6^th COAs)

Defendant
argues that Plaintiff has not alleged facts which could show that Individual
Defendants are liable for these causes of action.

The Court
disagrees.

It is also true
under California law that an individual employee cannot be held liable for
violation of Labor Code section 1102.5. (See Toranto v. Jaffurs (S.D.
Cal. 2018) 297 F.Supp.3d 1073.) Nor can an individual defendant be held
individually liable for wrongful termination. An individual who is not an
employer cannot commit the tort of wrongful discharge in violation of public
policy; rather, he or she can only be the agent by which an employer commits
that tort.” (Miklosy v. Regents of University of California (2008) 44
Cal.4th 876, 900 (sustaining demurrer to as to plaintiff’s wrongful termination
claim against former supervisors); see also Kim v. Konad USA Distribution,
Inc. (2014) 226 Cal.App.4th 1336, 1351; Khajavi v. Feather River
Anesthesia Med. Group (2000) 84 Cal.App.4th 32, 53 (As a matter of law,
only an employer can be liable for the tort of wrongful discharge in violation
of public policy.); see also Weinbaum v. Goldfarb, Whitman & Cohen
(1996) 46 Cal.App.4th 1310, 1313.)

However,
here, Plaintiff also alleges that the individual Defendants were managing
agents of Sonic God, and alleges alter-ego liability. In her motion, Defendant overstates
Plaintiffs’ burden at the pleading stage by arguing that Plaintiff has not
alleged facts to establish that the Individual Defendants are managing agents,
and arguing that “[a] plaintiff must plead and prove two conditions before the
alter ego doctrine will be invoked.” (Motion, 10: 9-10.) While the Court
understands the generic nature of Plaintiff’s allegations, it is not yet
Plaintiff’s burden to prove alter-ego liability. Rather, at the pleading stage,
all Plaintiff must do is allege facts which, accepted as true, could state a
claim. Here, Plaintiff alleges that Individual Defendants are managing agents
of Sonic God and alter-egos. While this may not, in fact, be true, that is a
factual determination not properly made at this stage. Plaintiff need not allege
facts which prove this.

Based
on the foregoing, Defendant’s demurrer to the first, second, third, fourth, and
sixth causes of action is overruled.

II.
Labor Code section 6310
(5^th COA)

Based on the
foregoing, Defendant’s demurrer to the fifth cause of action is overruled.

III.
IIED (7^th COA)

Defendant
argues that Plaintiff has not alleged facts which could show extreme and
outrageous conduct. However, as set forth above, the Court concluded that
Plaintiff has alleged facts which could show the Individual Defendants engaged
in retaliation, discrimination, and wrongful termination. Accordingly, accepted
as true at the pleading stage, Plaintiff has alleged facts which could show
Defendant here engaged in extreme and outrageous conduct.

Based on the
foregoing, Defendant’s demurrer to seventh cause of action is overruled.

It is so ordered.

Dated: February
, 2023

Hon. Jon R.
Takasugi

Judge of the
Superior Court

Superior Court of California

County of Los Angeles

DEPARTMENT
17

TENTATIVE RULING

CAMERON ABDO

vs.

SONIC GODS, et al.

Case
No.: 22STCV27868

Hearing Date: February 2, 2023

Defendant’s
demurrer is OVERRULED as to the first, second, third, fourth, fifth, sixth, and
seventh causes cause of action.

On 8/26/2022,
Plaintiff Cameron Abdo (Plaintiff) filed suit against Sonic Gods, Inc.,
Michelle Delamor, Chris Hayman, and Shane Edelman, alleging: (1) sex
discrimination; (2) retaliation; (3) failure to prevent discrimination; (4)
retaliation; (5) failure to comply with OSHA standards and retaliation; (6)
wrongful termination; and (7) intentional infliction of emotional distress
(IIED).

Now,
Chris Hayman (Defendant) demurs to the Complaint.

Discussion

I.
Discrimination and
Retaliation Claims (1^st, 2^nd, 3^rd, 4^th,
and 6^th COAs)

Defendant
argues that Plaintiff has not alleged facts which could show that Individual
Defendants are liable for these causes of action.

The Court disagrees.

It is also true
under California law that an individual employee cannot be held liable for
violation of Labor Code section 1102.5. (See Toranto v. Jaffurs (S.D.
Cal. 2018) 297 F.Supp.3d 1073.) Nor can an individual defendant be held
individually liable for wrongful termination. An individual who is not an
employer cannot commit the tort of wrongful discharge in violation of public
policy; rather, he or she can only be the agent by which an employer commits
that tort.” (Miklosy v. Regents of University of California (2008) 44
Cal.4th 876, 900 (sustaining demurrer to as to plaintiff’s wrongful termination
claim against former supervisors); see also Kim v. Konad USA Distribution,
Inc. (2014) 226 Cal.App.4th 1336, 1351; Khajavi v. Feather River
Anesthesia Med. Group (2000) 84 Cal.App.4th 32, 53 (As a matter of law,
only an employer can be liable for the tort of wrongful discharge in violation
of public policy.); see also Weinbaum v. Goldfarb, Whitman & Cohen
(1996) 46 Cal.App.4th 1310, 1313.)

However,
here, Plaintiff also alleges that the individual Defendants were managing
agents of Sonic God, and alleges alter-ego liability. In its motion, Defendants
overstate Plaintiffs’ burden at the pleading stage by arguing that Plaintiff
has not alleged facts to establish that the Individual Defendants are managing
agents, and arguing that “[a] plaintiff must plead and prove two conditions
before the alter ego doctrine will be invoked.” (Motion, 10: 9-10.) While the Court
understands the generic nature of Plaintiff’s allegations, it is not yet
Plaintiff’s burden to prove alter-ego liability. Rather, at the pleading stage,
all Plaintiff must do is allege facts which, accepted as true, could state a
claim. Here, Plaintiff alleges that Individual Defendants are managing agents
of Sonic God and alter-egos. While this may not, in fact, be true, that is a
factual determination not properly made at this stage, and the specific facts
to prove this are contemplated by pretrial discovery.

Based
on the foregoing, Defendant’s demurrer to the first, second, third, fourth, and
sixth causes of action is overruled.

II.
Labor Code section 6310
(5^th COA)

Based on the
foregoing, Defendant’s demurrer to the fifth cause of action is overruled.

III.
IIED (7^th COA)

Defendant
argues that Plaintiff has not alleged facts which could show extreme and
outrageous conduct. However, as set forth above, the Court concluded that
Plaintiff has alleged facts which could show the Individual Defendants engaged
in retaliation, discrimination, and wrongful termination. Accordingly, accepted
as true at the pleading stage, Plaintiff has alleged facts which could show
Defendant here engaged in extreme and outrageous conduct.

Based on the
foregoing, Defendant’s demurrer to seventh cause of action is overruled.

It is so ordered.

Dated: February
, 2023

Hon. Jon R.
Takasugi

Judge of the
Superior Court

Superior Court of California

County of Los Angeles

DEPARTMENT
17

TENTATIVE RULING

CAMERON ABDO

vs.

SONIC GODS, et al.

Case
No.: 22STCV27868

Hearing Date: February 2, 2023

Defendant’s
demurrer is OVERRULED as to the first, second, third, fourth, fifth, sixth, and
seventh causes cause of action.

Now,
Sonic Gods, Inc. (Defendant) demurs to the fifth and seventh causes of action.

Discussion

Defendant
argues that Plaintiff cannot state a claim for failure to comply with OSHA
Standards and Retaliation because he does not have an individual private right
of action to brings claims for alleged unsafe workplace violations pursuant to
California Labor Code section 6300. Defendant argues that Plaintiff cannot
state a claim for IIED because he has not alleged facts which rise to the level
of “extreme and outrageous conduct.” (KOVRTV v. Sup. Ct. (1995) 31
Cal.App.4th 1023, 1028.)

As for the
fifth cause of action, the Court disagrees. In opposition, Plaintiff cites a
number of cases wherein a Labor Code section 6310 cause of action was asserted.
Interestingly, in reply, Defendant does not dispute this, but instead argues
that Plaintiff never reported any specific workplace health or safety concerns.
However, these are different arguments.

As
for the seventh cause of action, the Court also disagrees. Defendant did not
demur to Plaintiff’s claims for discrimination, retaliation, and wrongful
termination. Whether or not this conduct, in fact, rises to the level of
extreme and outrageous conduct is a factual determination not properly made at
this stage. (KOVRTV, supra, 31 Cal.App.4^th at p.
1028.) Rather, it is sufficient that, accepted as true at the pleading stage,
Plaintiff’s allegations of discrimination, retaliation, and wrongful
termination could show extreme and outrageous behavior.

Based
on the foregoing, Defendant’s demurrer is overruled as to the fifth and seventh
causes of action.

It is so ordered.

Dated: February
, 2023

Hon. Jon R.
Takasugi

Judge of the
Superior Court

Due to Covid-19, the court is
strongly discouraging in-person appearances. Parties, counsel, and court reporters present
are subject to temperature checks and health inquiries, and will be denied entry
if admission could create a public health risk.
The court encourages the parties wishing to argue to appear via L.A.
Court Connect. For more information,
please contact the court clerk at (213) 633-0517. Your understanding during these difficult
times is appreciated.