Judge: Joseph Lipner, Case: 23STCV14442, Date: 2023-08-29 Tentative Ruling

Case Number: 23STCV14442    Hearing Date: December 26, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants City of Los Angeles, acting by and through the Department of Water and Power (“DWP”) and Sandy Sahagun (collectively, “Defendants”) demur to the sixth, seventh, and ninth causes of action for negligent hiring, retention, and supervision; wrongful constructive termination; and intentional infliction of emotional distress; respectively, in the First Amended Complaint (“FAC”) filed by Brett A. Mac Donald.

The Court SUSTAINS Defendants’ demurrer WITHOUT LEAVE TO AMEND as to Plaintiff’s sixth cause of action for negligent hiring, retention, and supervision.

The Court OVERRULES Defendants’ demurrer as MOOT as to Plaintiff’s seventh cause of action for wrongful constructive termination.

The Court SUSTAINS Defendants’ demurrer WITH LEAVE TO AMEND as to Plaintiff’s ninth cause of action for intentional infliction of emotional distress.  Plaintiff may file a second amended complaint within 20 days.

Background

The following factual allegations are taken from Plaintiff’s FAC.

Plaintiff was employed by DWP from around 1982 to either April 1, 2023 or April 1, 2022—both dates are possible readings of Plaintiff’s FAC.

In 1985, Plaintiff suffered a work-related injury to his spine. Since then, the injury periodically resurfaced every few years. In 2013, Plaintiff was moved to a job position within DWP where he was required to lift over 75 pounds. Plaintiff obtained a doctors note with the restrictions of “no lifting, pushing, or pulling.” This restriction was eventually extended until November 2021.

On September 10, 2019, Plaintiff and several coworkers were riding in a freight elevator that dropped half a floor, reinjuring his back. Plaintiff alleges that DWP knew that the elevator was defective and failed to repair it. Plaintiff obtained another doctor’s note restricting him from lifting over 40 pounds as a result. Plaintiff was shortly thereafter asked to lift over 40 pounds, which exacerbated his injury, and he obtained a doctors note limiting him to lifting 20 pounds.

In early 2021, DWP requested that employees over the age of 65, including Plaintiff not report to work for Covid-19 safety reasons. Plaintiff was set to return to work around January 31, 2022. A week before Plaintiff was set to return, he received an email informing him that his personal belongings had been removed from his work area.

Plaintiff returned to work and provided his manager, Sahagun, with his new restriction of lifting no more than 15 pounds. Plaintiff alleges that he would be able to do most or all of his job duties without lifting more than 15 pounds. Sahagun instructed Plaintiff to go home and stated that she would get back to him in two weeks’ time.

On February 3, 2022, Plaintiff was taken off payroll. No one reached out to Plaintiff regarding his disability in that time. Plaintiff retired on April 1, 2023.

Plaintiff filed this action against Defendants on June 21, 2023. The operative complaint is the FAC, which alleges (1) discrimination; (2) retaliation; (3) failure to provide reasonable accommodation; (4) failure to engage in an interactive process; (5) failure to prevent discrimination, harassment, and retaliation; (6) negligent hiring, supervision, and retention; (7) wrongful constructive termination; (8) whistleblower retaliation; and (9) intentional infliction of emotional distress (“IIED”).

Defendants demurred to the sixth, seventh, and ninth causes of action on November 21, 2023. Plaintiff filed an opposition and Defendants filed a reply.

Legal Standard

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).

Discussion

Negligent Hiring, Retention, and Supervision – Sixth Cause of Action

The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)

“Except as otherwise provided by statute:

(a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.

(b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.”

            (Gov. Code, § 815.)

“Absent … a special relationship, there can be no individual liability to third parties for negligent hiring, retention or supervision of a fellow employee, and hence no vicarious liability under section 815.2[.]” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 877.)

            California Courts have held that claims for negligent hiring, supervision, and retention are not enabled by statute. (Gabrielle A. v. County of Orange (2017) 10 Cal.App. 5th 1268, 1287-88 ["With respect to the claims for negligent supervision, hiring, retention and discipline, plaintiffs cite no statutory basis for bringing this claim against the county, and actions against public entities must be based on a statute”].)           Plaintiff argues that the employer-employee relationship is a special relationship deserving of protection under negligent hiring and retention. However, an employer-employee relationship contains far less control than the school-student relationship in C.A. v. William S. Hart Union High School, where the Court emphasized “the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, analogous in many ways to the relationship between parents and their children.” (Ibid., [internal quotations and citations omitted].)

            “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).) However, supervisory liability could not apply here because "[l]iability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability." Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App. 4th 790, 815.

Thus, there is not a basis to hold DWP, a public entity, liable for negligent hiring, retention, or supervision.

Because DWP could not be held liable as a matter of law, the Court sustains the demurrer without leave to amend.

Wrongful Constructive Termination – Seventh Cause of Action

Plaintiff has agreed to dismiss this cause of action. The Court therefore overrules the demurrer as moot.

Intentional Infliction of Emotional Distress – Ninth 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.)

Here, the only conduct that Plaintiff contends was extreme and outrageous was Plaintiff’s termination on the basis of his disability. However, an adverse employment action in violation of public policy, without more, has been held not to arise to the level of the extreme and outrageous conduct required by the first element of IIED. "Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination." (Janken v. GM Hughes Electronics (1996) 46 Cal.App. 4th 55, 80.) Thus, Plaintiff has not alleged extreme and outrageous conduct.

The Court sustains the demurrer with leave to amend.