Judge: Kenneth J. Medel, Case: 37-2023-00032171-CU-WT-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Wrongful Termination Demurrer / Motion to Strike 37-2023-00032171-CU-WT-CTL CONTRERAS VS WAL-MART ASSOCIATES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 10/10/2023

The Court rules on the Demurrer by Defendants WAL-MART ASSOCIATES, INC.; WALMART, INC.; NANCY SEGURA, SELINA BENSON as follows: This employment action arises from the then 62-year-old Plaintiffs 21-year employment with Wal-Mart, who also alleges that she 'was among the oldest employees' at the organization. (FAC, 16, 17 4, 18) On July 10, 2023, Plaintiff brought a 10-cause-of-action initial Complaint. On September 6, 2023, Plaintiff filed her First Amended Complaint.

As against Walmart, Plaintiff's FAC alleges causes of action for: (i) WTVPP; (ii) retaliation; (iii) disability discrimination; (iv) age discrimination; (v) harassment; (vi) IIED; (vii) failure to accommodate; (viii) failure to engage; (ix) negligent hiring supervision and retention; and (x) assault. (See generally FAC, filed on July 10, 2023 [outlining Plaintiff's legal theories].) Plaintiff's FAC also makes passing references to discrimination on the basis of Plaintiff's 'medical condition' and 'sex' and 'race.' (See e.g., id. at ¶¶ 30 [alleging WTVPP because of 'discrimination based on sex, race, age and disability or medical condition].) As against Defendants Nancy Segura ('Segura') and Solena Benson ('Benson'), Plaintiff alleges causes of action for (i) harassment and (ii) IIED. As against Singsong, Plaintiff alleges causes of action for: (i) harassment; (ii) IIED; and (iii) assault.

FIRST CAUSE OF ACTION - WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY - OVERRULED Defendants' Notice of Demurrer states: 'Fails to state a cause of action for harassment, as to all defendants. The Cause of Action is for Wrongful Termination in Violation of Public Policy and not harassment per se. The FAC alleges generally that 'Plaintiff was terminated because of discrimination based on disability, age and race, among other unlawful acts by Defendants. Such conduct by Defendants, and each of them, was in violation of public policy, including, but not limited to, Government Code §12940.' SECOND CAUSE OF ACTION - RETALIATION (Gov't. Code §12940(h)) – OVERRULED The second noticed demurrer is 'Fails to state a cause of action for retaliation, as to Walmart' Defendants argue that plaintiff does not allege that she engaged in any protected activity under FEHA.

Defendants cite to plaintiff's allegations that she complained to an Assistant Manager about an alleged mop incident with Singsong, which defendants argue is not protected activity. (FAC, ¶ 21.) Plaintiff also alleges that she complained to Walmart to unspecified individuals about her work performance. (Id. at ¶ 24.) However, defendants contend that plaintiff alleges no facts, whether particularized or otherwise, that: (i) she complained about any discriminatory, harassing, or retaliatory conduct, whether implied or explicitly; and/or (ii) reasonably and in good faith believed that the performance criticisms were in violation of FEHA.

Retaliation in violation of FEHA only applies to complaints made reasonably and in good faith believed to be in violation of FEHA (i.e., discrimination, harassment, retaliation, failure to accommodate, and failure Calendar No.: Event ID:  TENTATIVE RULINGS

3032359  37 CASE NUMBER: CASE TITLE:  CONTRERAS VS WAL-MART ASSOCIATES INC [IMAGED]  37-2023-00032171-CU-WT-CTL to engage). (Gov. Code § 12940(h); Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043.) The FAC alleges, in part: 'After the Covid-19 Pandemic began, WAL MART started using a harsh chemical to clean and sanitize surfaces at work. This chemical aggravated Plaintiffs bronchitis and as a result, Plaintiff's bronchitis worsened, Plaintiff was forced to miss work because of her bronchitis on or about April 2021.' (Paragraph 23) 'When Plaintiff returned to work, Defendants began treating Plaintiff differently. 13 Plaintiff was falsely accused of not performing her job properly which is false. Plaintiff was an exemplary employee.

WALMART began to drastically increase pressure for Plaintiff at work in retaliation for Plaintiffs absences. Defendants began to pressure Plaintiff and blame her for other employees' petty mistakes, and unreasonably scrutinizing Plaintiff's work. Plaintiff complained on numerous occasions to Defendants, but was always ignored.' (Paragraph 24) The above allegations are sufficient to plead retaliation at the pleading stage.

Sixth Cause of Action for Intentional Infliction of Emotional Distress - OVERRULED Defendants' notice of demurrer indicates 'Fails to state a cause of action for intentional infliction of emotional distress, which is also barred by the Workers' Compensation Exclusivity Rule, as to all defendants' The elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct on the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593) Whether conduct is 'outrageous is usually a question of fact,' rendering it inappropriate for resolution through a motion for dismiss or a demurrer. (So. V. Shin (2013) 212 3 CaLApp.4th 652, 672, as modified on denial of rehearing (Jan. 8, 2013) Courts have held that a properly pled claim for workplace harassment will 'constitute the outrageous behavior element' of an IIED claim because every pervasive harassment 'by its nature ... exceeds all bounds of decency usually tolerated by a decent society.

(Fisher v. San Pedro Peninsula Hosp. (1989) 214 8 CaLApp.3d 590, 618) Plaintiff alleges she was hurled to the side after returning to work following severe disability, was harassed on an 'ongoing and pervasive' bases by several managers and employees and was ultimately fired following 21 years of dedicated service. (FAC, 16 through 26) The elements of injuries and damages are also pleaded in the FAC. (FAC, 61 and 21) It is for a jury to decide whether these acts constitute 'extreme and outrageous conduct,' and this claim should certainly not be dismissed at this pleading stages.

The Worker's Compensation Act does not bar unlawful and discriminatory conduct. (['The Legislature,[], did not intend that an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 480; Goldman v. Wilsey Foods, 20 Inc. (1989) 216 Cal.App.3d 1085, 1095-1096) Thus, a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer's illegal discriminatory practices. (Watson v. Department of Rehabilitation, supra, 212 Cal.App.3d at pp. 1285-1286.) Tenth Cause of Action for Assault – OVERRULED as to Employee Singsong; SUSTAINED without leave as to Walmart Defendants argue that there is 'intent to cause harm' alleged, and that the claim is barred by the Worker's Compensation exclusivity.

Plaintiff alleges that Defendant Mario Frances (Mario Singsong) threw a mop stick at her, missed her face by an inch, and Plaintiff complained to management, which did nothing about the conduct. The conducti is impliedly intentional. 'For conduct committed within the scope of employment, employees, like their employers, should not be held subject to suit.' Jones v. Dept. of Corrections & Rehab. (2007) 152 Cal.App.4th 1367. However, 'under a narrow exception, a civil suit is permissible when an employee proximately causes another employee's injury or death by a 'willful and unprovoked physical act of aggression.'' (Id.) There remains a question as to nature of this incident that is beyond the pleading. As to the employee, the assault claim is overruled.

However, this exception does not authorize a private action against an employer based on another employee's willful and unprovoked physical act of aggression. Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1486-1479 ['Section 3601, subdivision (b), unambiguously prohibits imposing civil Calendar No.: Event ID:  TENTATIVE RULINGS

3032359  37 CASE NUMBER: CASE TITLE:  CONTRERAS VS WAL-MART ASSOCIATES INC [IMAGED]  37-2023-00032171-CU-WT-CTL liability on an employer for one employee's assault and battery of another.'].) FEHA Claims and Discrimination Claims: OVERRULED Defendants' Notice of Demurrer demurs to Wrongful Termination in Violation of Public Policy causes of action and the Failure to Engage in the Interactive Dialogue. Defendants separately demur to the discrimination claims.

The elements of each of these causes of action have been sufficiently pled. The pleading is sufficient to put defendants on notice of the claims against them and substantive changes to the allegations can be raised in future dispositive motions or litigation.

Punitive Damages Defendants demur to punitive damages, arguing that the FAC fails to state a cause of action for punitive damages, as to all defendants. This remedy cannot be stricken by demurrer, but it can be challenged by a motion to strike which has not been brought. (See, Kong v. City ofHawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4'' 1028, 1047 ('[A] demurrer cannot be rightfully sustained to part of a cause of action or to a particular type of damage or remedy.']) Calendar No.: Event ID:  TENTATIVE RULINGS

3032359  37