Judge: Joseph Lipner, Case: 23STCV09616, Date: 2023-09-05 Tentative Ruling
Case Number: 23STCV09616 Hearing Date: December 19, 2023 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
ANITRIA MICHELLE TOMLIN, Plaintiff, v. COUNTY OF LOS ANGELES, et al., Defendants. |
Case No:
23STCV09616 Hearing Date: December 19, 2023 ADD-ON #1 |
Defendants County of Los Angeles (“County”), Kresimir Kovac,
Brian Yanagi, John Burcher, and Lewis Lim (collectively, “Defendants”) demur to
the First Amended Complaint (“FAC”) filed by Plaintiff Anitria Michelle Tomlin
(“Plaintiff”). Defendants additionally move to strike certain portions of the
FAC.
The Court OVERRULES the demurrer with respect to Plaintiff’s
first and third causes of action for retaliation and conspiracy.
The Court SUSTAINS the demurrer WITH LEAVE TO AMEND with
respect to Plaintiff’s second cause of action for intentional infliction of
emotional distress. Plaintiff shall have
20 days to amend.
The Court GRANTS the motion to strike with respect to the Government
Code Section 3309.5, subd. (e) Civil Penalty.
The Court DENIES the remaining portions of the motion to
strike.
The following facts are taken from the allegations in the
FAC.
Plaintiff is currently a sworn Lieutenant for the Los
Angeles Sheriff’s Department, assigned to the Records and Identification Bureau
(“RIB”).
The RIB is responsible for fingerprint identification for
the Sheriff’s Department and a number of other law enforcement agencies. The
fingerprint process is a 24/7 operation. Tomlin herself is not trained in the
identification process but relies on the technicians and supervisors in the
department to conduct identification.
When an individual is arrested, the arrestee’s fingerprints
are taken and uploaded to a central database for verification of the
fingerprints. If the fingerprints are not recognized by the system, the
fingerprints are forwarded to RIB. In RIB, the fingerprints are reviewed by
technicians specially trained by the County. Results that match are then
transmitted to the California Department of Justice.
To protect the public from false identification of a
person’s fingerprints, the identification process performed by Plaintiff’s unit
requires two technicians to verify the match and a supervisor to handle any
discrepancies between the two verifiers. Each of these positions require
technical expertise and specialized skills.
Due to understaffing, the RIB was ordered to continue
operating at times with fewer than two technicians or without a supervisor
present. Plaintiff repeatedly reported her concerns about this process to her
superiors, stating that she believed the short staffing violated arrestees’ due
process rights and caused fingerprint technicians to offer false or misleading
testimony. Plaintiff requested at different times that the operating hours be
reduced to 16 hours a day, 5 days a week, that additional supervisors be
funded, and that overtime be funded. Plaintiff’s requests were denied. This
staffing shortage resulted in Plaintiff having to work overtime on weekends and
evenings, although Plaintiff alleges that she was not paid overtime
compensation.
Plaintiff alleges that she was addressed in a demeaning and
condescending manner in briefings concerning these issues. On January 10, 2023,
Burcher also informed Plaintiff that she would be responsible for any issues
related to the fingerprint identification process.
From November 2022 to January 2023, Yanagi ordered
Plaintiff’s supervisor to cancel a personnel loan agreement which would have
loaned an employee to RIB to fill a vacant Assistant Director position. As a
result, Plaintiff had to perform the duties of the Assistant Director in
addition to her own.
On January 23, 2023, Plaintiff was served with a notice that
she was the subject of an internal investigation regarding a disciplinary
meeting she had with a subordinate manager in October 2022. Plaintiff contends
that the subordinate manager falsely accused Plaintiff and a fellow supervisor
of bullying and harassing them, leading to the investigation. Plaintiff alleges
that several of her superiors conspired to improperly institute the
investigation against her.
Plaintiff filed this action on May 1, 2023. On September 6,
2023, the Court sustained a demurrer to the Complaint with leave to amend. The
operative complaint is now the FAC, which raises claims for (1) whistleblower
retaliation in violation of Labor Code section 1102.5 (against County); (2)
intentional infliction of emotional distress (“IIED”) (against all Defendants);
and (3) conspiracy (against Kovac, Yanagi, and Burcher.
Defendants filed the instant motion to strike on October 30,
2023, and the demurrer on October 31, 2023. Plaintiff filed an opposition to
each, and Defendants filed a reply to each opposition.
As a general matter, in a demurrer proceeding, 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.) The court assumes the truth of
the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to amend must be
allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
348.) The burden is on the plaintiff to show the court that a pleading can be
amended successfully. (Ibid.;
Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f
there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The
court may also strike all or any part of any 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(b).) The grounds for a motion to strike are that the
pleading has irrelevant, false or improper matter, or has not been drawn or
filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving
to strike must appear on the face of the pleading or by way of judicial notice.
(Code Civ. Proc., § 437.)
The Labor Code’s whistleblower provision prohibits an
employer from retaliating against an employee who reports a violation of state
or federal statute or a local, state or federal rule or regulation or who
refuses to participate in any activity that would result in a violation of law.
(Lab. Code, § 1102.5.) To prevail on whistleblower retaliation claim, a
plaintiff must establish that their alleged protected activated was a
contributing factor in the adverse action taken against them. (Lab. Code, § 1102.5.)
It is not necessary that the reported conduct actually be illegal; it is only
necessary that the employee has “reasonable cause to believe that the
information discloses a violation[.]” (Lab. Code, § 1102.5, subd. (a).)
The Court previously sustained a demurrer to this cause of
action in the original Complaint on the basis that Plaintiff did not state what
rule, statute, or regulation she reasonably believed was violated. Defendants
reiterate this argument now, in addition to arguing that no retaliatory action
was taken against Plaintiff.
Here, Plaintiff alleges that the conduct she reported
constituted subornation of perjury, which is illegal under 18 U.S.C. § 1622. Plaintiff
alleges that the conduct she reported violated the Fourteenth Amendment Due
Process Clause and 18 U.S.C. § 2 (imposing liability on principals who cause an
offense to be committed against the United States).
Plaintiff believed and reported that failing to consistently
staff two technicians and one supervisor on fingerprint identification resulted
in violations of arrestees’ due process rights due to possible
misidentification, as well as false or misleading testimony regarding the
fingerprint identification process. Plaintiff is not required to show, even at
trial, that this conduct in fact violated the law. A reasonable belief is
sufficient, and Plaintiff has sufficiently alleged this to withstand a demurrer
– the purpose of redundant staffing was to protect arrestees from
misidentification, which logically implicates their right to due process should
an incorrect fingerprint identification be offered against them at trial. Thus,
Plaintiff’s belief that the conduct violated the law was reasonable.
“An ‘adverse employment action,’ which is a critical
component of a retaliation claim, requires a substantial adverse change in the
terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th
1047, 1063, quotation marks omitted.)
Here, Plaintiff contends that she was denied additional
staffing and had to work evenings and weekends as a result. Further, a superior
specifically cancelled a personnel loan which would have relieved Plaintiff
from having to perform a second position’s worth of work. Another supervisor
informed Plaintiff that she would be held responsible for any issues with the
fingerprinting process which, although it does not appear to have led to actual
discipline, would certainly reinforce the pressures on Plaintiff to work
additional hours to prevent any errors. As such, Plaintiff has adequately pled
adverse action.
Defendants argue that the internal investigation cannot
constitute retaliation because a public employee is broadly protected from
liability for maliciously instituting a workplace investigation under
Government Code section 821.6, citing Gillan v. City of San Marino
(2007) 147 Cal.App.4th 1033, 1048. This holding of Gillan has been
disapproved by the California Supreme Court, which has explained that “Section
821.6 protects public employees from liability only for initiation or
prosecution of an official proceeding.” (Leon v. County of Riverside
(2023) 14 Cal.5th 910, 930-931.) Defendants did not initiate an official
proceeding here, but rather started an internal workplace investigation. They
therefore do not have immunity. Thus, the internal investigation is also a
basis under which Plaintiff can state a claim for retaliation.
The Court overrules the demurer with respect to this cause
of action.
“The elements of a prima facie case for the tort of
intentional infliction of emotional distress are: (1) extreme and outrageous
conduct by the defendant with the intention of causing, or reckless disregard
of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous conduct.
Conduct to be outrageous must be so extreme as to exceed all bounds of that usually
tolerated in a civilized community.” (Wilson
v. Hynek (2012) 207 Cal.App.4th 999, 1009 [citation and ellipses omitted].)
Defendants argue that the Worker’s
Compensation Act categorically preempts IIED claims by employees. This is only
partially true. “So long as the basic conditions of compensation are otherwise
satisfied, and the employer's conduct neither contravenes fundamental public
policy nor exceeds the risks inherent in the employment relationship, an
employee's emotional distress injuries are subsumed under the exclusive remedy
provisions of workers' compensation.” (Livitsanos
v. Superior Court (1992) 2 Cal.4th 744, 754). However, where an employer’s
actions do contravene fundamental public policy, California courts recognize
that a traditional tort remedy is appropriate. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 177.)
The Court previously sustained a demurrer to this cause of
action in the original Complaint on the basis that Plaintiff did not allege
outrageous conduct. Previously, Plaintiff alleged that Defendants “forc[ed] her
to assume additional duties and responsibilities… knowingly mandat[ed] her to
work additional hours… intentionally initiat[ed] an untimely meritless
administrative investigation… [and] intentionally address[ed] her in a
demeaning and condescending manner.” (Complaint ¶ 48.) The Court noted that requiring
Plaintiff to work additional hours was reasonable if the department was
short-staffed.
Here, Plaintiff has additionally alleged that her superiors
knowingly took actions that caused her department to be short-staffed, forcing
her to work additional hours. Plaintiff has also additionally alleged that a
supervisor told her that she would be held responsible for any issues with the
fingerprint matching process. While this behavior may be actionable under other
theories of liability, it is not “so extreme as to exceed all bounds of that
usually tolerated in a civilized community.” (Wilson v. Hynek, supra, 207 Cal.App.4th at 1009 [citation and ellipses omitted].)
Thus, the Court sustains the demurrer with leave to amend with respect to this
cause of action. If Plaintiff cannot
successfully remedy this issue in the amended pleading and Defendants again
demur, the Court may sustain any future demurrer to this cause of action without
leave to amend.
“Civil conspiracy is not an independent tort. Instead, it is
a legal doctrine that imposes liability on persons who, although not actually
committing a tort themselves, share with the immediate tortfeasors a common
plan or design in its perpetration.” (City
of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211-212,
quotation marks omitted.) “The elements of a civil conspiracy are (1) the
formation of a group of two or more persons who agreed to a common plan or
design to commit a tortious act; (2) a wrongful act committed pursuant to the
agreement; and (3) resulting damages.” (Id.
at p. 212.)
Defendants argue that the demurrer should be sustained
because civil conspiracy is not a cause of action and because Plaintiff’s claim
hinges on the allegedly improper investigation, which Defendants claim immunity
for. As discussed above here, civil conspiracy can impose derivative liability
based on another tortious act. As discussed above under the retaliation cause
of action, the Court is unable to conclude as a matter of law that the
investigation could not be retaliatory conduct. The Court overrules the
demurrer with leave to amend with respect to this cause of action.
Government Code section 818 provides that “a public entity
is not liable for damages awarded under Section 3294 of the Civil Code or other
damages imposed primarily for the sake of example and by way of punishing the
defendant.” (Ibid.)
Defendants contend that any request for punitive damages
from the County is improper. Plaintiff maintains that she may obtain punitive
damages from the individual Defendants. The Complaint only requests punitive
damages from each individual defendant, and not from the County. Thus, the
Court need not strike the request on this basis.
Punitive damages require clear “clear and convincing
evidence that the defendant has been guilty of oppression, fraud, or malice[.]”
(Civ. Code § 3294.)
Defendants argue that Plaintiff has not adequately pled any
of these bases. As discussed above, Plaintiff has pled that the individual
defendants intentionally opened an unfounded investigation against her. Such
facts are sufficient to show malice at the pleading stage, even though
Plaintiff will carry a higher burden at trial.
The court therefore denies this portion of the motion to
strike.
The Peace Officer Bill of Rights provides for civil
penalties “upon a finding by a superior court that a public safety department,
its employees, agents, or assigns, with respect to acts taken within the scope
of employment, maliciously violated any provision of this chapter with the
intent to injure the public safety officer[.]” (Gov. Code, § 3309.5, subd. (e).)
Plaintiff has not alleged a violation of the Peace Officer
Bill of Rights in her FAC. Plaintiff’s entire argument in opposition to this
section is that “Plaintiff asserts she is currently being subjected to a sham
investigation. At this juncture, Plaintiff asserts she will be able to
establish a violation of the Peace Officer Bill of rights for which the
requested prayer would be applicable. She has been served with an
Administrative Investigation notification.” (Opposition to Motion to Strike at
p. 3:2-5.) Plaintiff has not identified what part of the Peace Officer’s Bill
of Rights this violates. The Court therefore grants the motion to strike.
Defendants request that the Court strike a multitude of
references to workplace investigations or inquiries, arguing that they have
immunity from liability for conducting such investigations. As discussed above
under Plaintiff’s retaliation cause of action, Defendants do not have immunity.
The Court therefore denies this portion of the motion to strike.