Judge: Jon R. Takasugi, Case: 24STCV18603, Date: 2025-02-05 Tentative Ruling

Case Number: 24STCV18603    Hearing Date: February 5, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

          Defendants’ demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND.

          On 7/25/2024, Plaintiff Latoya Vickers (Plaintiff) filed suit against Michelin, Michelin North America, Inc., and Alonso Tiscareno, alleging: (1) violation of Labor Code section 1102.5; (2) violation of Equal Pay Act; (3) failure to prevent gender and racial discrimination; (4) declaratory judgment; (5) wrongful termination; and (6) intentional infliction of emotional distress.

          On 11/4/2024, Defendants Michelin North America, Inc. and Alonso Tiscareno (collectively, Defendants) demurred to Plaintiff’s first, third, fourth, fifth, and sixth causes of action.

Discussion

          Defendants argue that each claim against Defendant Tiscareno fails as a matter of law because the claim does not support individual liability. Defendants argue that the first, third, fourth, fifth, and sixth causes of action are time-barred as to Michelin North America, Inc.

          As for the claims against individual Defendant Tiscareno, Plaintiff asserts causes of action for retaliation, violation of Equal Pay Act, failure to prevent harassment and discrimination, and wrongful termination claims.

          A retaliation claim under 1102.5 does not impose individual liability. (See Vierra v. Cal Highway Patrol (E.D. Cal. 2009) 644 F.Supp.2d 1219, 1244 [“The relevant portions of the statute clearly indicate that [section 1102.5] is meant to establish prohibited activity by employers, rather than individuals”]. Even after the amendments in 2014 to the text of section 1102.5, which prohibits retaliatory conduct by “[a]n employer, or any person acting on behalf of the employer,” the courts continue to hold that supervisors are not individually liable for the alleged section 1102.5 violations. (See Toranto v. Jaffurs (S.D. Cal 2018)  297 F.Supp.3d 1073, 1105 (there is no individual liability under section 1102.5 even under the amended text of the statute]; Tillery v. Lollis (E.D. Cal. 2015)  2015 U.S. Dist. LEXIS 106845 at *9 [section 1102.5 does not provide for individual liability post-amendment); United States ex rel. Lupo v. Quality Assurance Services, Inc. (S.D. Cal. 2017)  242 F.Supp.3d 1020, 1030 (same).

          By Plaintiff’s own admission, Michelin was Plaintiff’s employer, and Defendant Tiscareno was Plaintiff’s supervisor, not her employer. (See Comp. ¶¶ 14, 22.) As her supervisor, Defendant Tiscareno cannot be held liable for any alleged violation of section 1102.5 as a matter of law.

          The same is true of the remaining causes of action.

The second cause of action for violation of Equal Pay Act can only be alleged against an employer and not an individual defendant. (See Cal. Labor Code § 1197.5(c) (“Any employer who violates subdivision (a) or (b) is liable to the employee”).) Although courts in California have steadily expanded the definition of “employer” under the Labor Code by applying the definition of “employer” in the Industrial Welfare Commission’s wage orders, they have consistently reaffirmed the caveat in Reynolds that corporate agents acting within the scope of their agency are not “employers.” (See, e.g., Martinez v. Combs (2010) 49 Cal.4th 35, 66.)

Failure to prevent claims may only be asserted against employers and not individual supervisors. See Cal. Gov. Code. § 12940(k) [“It is an unlawful employment practice…[f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps to prevent discrimination and harassment from occurring.” The California Supreme Court has held that no individual liability exists under FEHA based on the statute’s definition of “employer” to include “any person acting as an agent of an employer.” (Reno v. Baird (1998) 18 Cal.4th 640, 645.)

As for the fifth cause of action for wrongful termination, the is no “tort of wrongful termination in violation of public policy independent of the duty arising from the employment relationship.” (Weinbaum v. Goldfarb (1996) 46 Cal.App.4th 1310, 1315 (internal quotations omitted).) Rather, “the duty on which the tort is based is a creature of the employer-employee relationship.” (Id.) This “tort [does not] impose[] a duty of any kind on anyone other than the employer.” (Id.) Therefore, a claim for wrongful termination in violation of public policy may not be maintained against an individual supervisor, it can only be asserted against an employer. (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1351.)

          Taken together, the Court finds Defendants’ demurrer to the individual claims against Defendant Tiscareno should be sustained, without leave to amend. In opposition, Plaintiff conceded that Tiscareno should be dismissed from the first through fifth causes of action.

          This leaves the claims against Defendant Michelin North America, Inc.

          The third cause of action is for failure to prevent gender and racial discrimination pursuant to FEHA.

Before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies by filing an administrative complaint with the California Civil Rights Department (CRD) (formerly known as California Department of Fair Employment and Housing (DFEH)) identifying the conduct alleged to violate FEHA. (Clark v. Superior Court (2021) 62 Cal.App.5th 289, 301.) Any person claiming to be aggrieved by an employment practice may forgo the department investigating the complaint and instead immediately obtain a right-to sue notice. Cal. Code Regs. Tit. 2 § 10005(a); Cal. Gov. Code, § 12965(c)(1)(C) (Deering, Lexis Advance through the 2024 Regular Session Ch 268). If the aggrieved party wishes to file a civil action against the person or entity named in the complaint, the aggrieved party must do so within one year from the date of the Right to Sue notice. (Id.)

Plaintiff filed her CRD complaint on May 26, 2023, and requested an immediate right-to-sue notice. See RJN, No. 1; LaGaly Decl., ¶ 7, Exh. C. The CRD issued the right-to-sue notice on May 26, 2023, expressly stating that a civil action must be filed within one year of the letter.

As such, Plaintiff had until May 26, 2024, to bring a civil action under FEHA. Plaintiff filed her lawsuit on July 25, 2024—nearly two months too late.

Accordingly, Plaintiff’s claim for failure to prevent appears time-barred on its face.

In opposition, Plaintiff argued that the claim was equitably tolled because she filed a workers’ compensation claim. However, Plaintiff’s workers’ compensation claim resolved on May 24, 2021 via a stipulated Award issued by the Workers’ Compensation Judge. (Mdinaradze Decl., ¶ 3; Supp. RJN, No. 1.) The fact that Plaintiff filed her workers’ compensation claim before she filed her CRD complaint has no bearing on the one-year statute of limitations applicable to the FEHA claims. Moreover, Plaintiff’s workers’ compensation case resolved before her FEHA claims accrued on 5/26/202.

As for the fourth cause of action for declaratory relief, this claim is based on alleged violations of FEHA, and thus also appears to be time-barred.

As for the fifth cause of action for wrongful termination, a common law tort cause of action for wrongful termination has a two-year statute of limitations under California Code of Civil Procedure section 335.1; Prue v. Brady Co. San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1382 (“Code of Civil Procedure section 335.1 applies [to wrongful termination claims] providing a two-year statute of limitations for tort actions based on injuries to plaintiffs caused by the wrongful act or neglect of others]”.)

Plaintiff alleges she was terminated on or about April 6, 2022. (See RJN No. 1; LaGaly Decl. ¶ 7, Exh. C.) Based on the two-year statute of limitations for wrongful termination claims, Plaintiff had until April 6, 2024—i.e., two years from her termination on April 6, 2022—to file a lawsuit alleging wrongful termination. (Prue, supra, at p. 1382.) Plaintiff filed her lawsuit nearly four months too late, on July 25, 2024. (LaGaly Decl. ¶ 2.) For the same reason set forth above, Plaintiff’s argument concerning equitable tolling to file a workers compensation is unpersuasive. Moreover, as noted by Defendant in reply, “[e]ven assuming Plaintiff’s claim for intentional infliction of emotional distress did not accrue or was tolled until she resolved her workers’ compensation claim (i.e., May 24, 2021), she would nevertheless only have had until May 24, 2023 to file her Complaint to avoid being time barred by the two-year statute of limitations for intentional infliction of emotional distress claims. (Supplemental RJN No. 1; Mdinaradze Decl., ¶ 3.) Yet, Plaintiff filed her Complaint alleging a claim for intentional infliction of emotional distress on July 25, 2024.” (Reply, 5: 15-20.)

As for the sixth cause of action, a cause of action for intentional infliction of emotional distress has a two-year statute of limitations. (CCP § 335.1.) Thus, for the same reason set forth above, this claim would also appear time-barred on its face.

 Plaintiff’s Complaint does not allege any facts which could show a continuing violation or delayed discovery such that these claims would not be time-barred.

Based on the foregoing, Defendants’ demurrer is sustained, without leave to amend.

It is so ordered.

Dated:  February    , 2025

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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