Judge Kerry Bensinger, Case Number: 23STCV22374, Date: 2024-02-01 Tentative Ruling

This is a Fair Employment and Housing Act (FEHA) action. On September 15, 2023, Plaintiff, Khatchatur Berberian, filed a Complaint against Defendants, Walt Disney Pictures, The Walt Disney Company, Disney Worldwide Services, Inc., Chester Carr (“Carr”), Sara Fredericks, (“Fredericks”), and Scott Mohler (“Mohler”). On November 7, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”), alleging causes of action for:

6. Failure to Prevent Discrimination, Harassment, or Retaliation in Violation of FEHA

7. Breach of Express Oral Contract Not to Terminate Employment Without Good Cause

8. Breach of Implied-in-Fact Contract Not to Terminate Employment Without Good Cause

As alleged in the FAC, Plaintiff is Armenian and has disabilities. He was hired by Walt Disney Pictures, The Walt Disney Company, and Disney Worldwide Services, Inc., (collectively, “Disney Defendants”) as a Mail Center Messenger in 1998. In February 2014, Plaintiff’s work environment worsened when Plaintiff began working with Carr. Carr was a Supervisor. Specifically, Plaintiff and Carr had a physical altercation. During the altercation, Plaintiff experienced pain in his abdomen and tingling in his arms. Soon after, Plaintiff visited the doctor for those symptoms and was diagnosed with heart disease.

Plaintiff reported the incident with Carr to Fredericks. Fredericks was Plaintiff and Carr’s manager. Fredericks refused to address Plaintiff’s concerns. Plaintiff escalated the issue to Human Resources. Ultimately, nothing was done to address the altercation with Carr.

In April of 2014, Plaintiff underwent surgery for his heart condition and took a six month leave to recover. Plaintiff notified Fredericks and Carr about taking medical leave. Upon his return, Mohler, a Department Lead, made fun of Plaintiff’s medical leave. Plaintiff also requested a reasonable accommodation, including that he could not work in the same room as Carr because of the severe stress and anxiety Plaintiff experienced because of the hostile work environment created by Car. The request was supported by a doctor’s note. However, Plaintiff was forced to continue interacting with Carr and Carr continued to openly harass Plaintiff. Plaintiff was later diagnosed with anxiety and depression as a result of Carr’s mistreatment. Further, Carr’s mistreatment of Plaintiff continued throughout the remainder of Plaintiff’s employment, which included discrimination against Plaintiff because of his racial and national origin.

In March of 2020, Plaintiff was furloughed because of the COVID-19 pandemic. Just before he was furloughed, Disney Defendants hired two new employees. They were between the ages of 20 and 30 and not Armenian. Plaintiff was over 40 years old. The younger employees remained employed even after Plaintiff was furloughed. Plaintiff’s employment was ultimately terminated on September 24, 2021. Plaintiff was told his position had been eliminated yet younger, non-Armenian employees who had the same title and position as Plaintiff did not lose their jobs. After being discharged, Plaintiff complained about his termination and reported feeling targeted throughout his employment. Plaintiff was further told his lack of knowledge of the job and his inability to work with Carr were the reasons for his termination. However, Plaintiff worked the position for decades and knew the job well. Plaintiff’s request not to work with Carr was a reasonable accommodation supported by his doctor’s recommendation, which Defendants failed to honor.

On January 25, 2024, Disney Defendants filed this Demurrer and concurrently filed a Motion to Strike allegations of misconduct that occurred before September 19, 2021.[1]

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.¿ (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)¿ “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.¿ We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.¿ [Citation.]”¿ (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed.¿ (Code Civ. Proc., § 452.)¿ In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.¿ (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)¿¿If the cause of action is based in statute, the facts supporting each statutory requirement must be specifically pled. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604 (Fisher).)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.¿(Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”¿(Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)¿ 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 complainant to show the Court that a pleading can be amended successfully. (Ibid.)¿

· Verified Charge of Discrimination filed by Plaintiff with the Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”) on November 18, 2016, Charge No. 480-2016-03070. (Request for Judicial Notice (“RJN”) 1.)

· DFEH Notice to Complainant and Respondent and Notice to Complainant of Right to Sue dated November 18, 2016, Charge No. 480-2016-03070. (RJN 2.)

· EEOC’s Dismissal and Notice of Rights, dated December 1, 2016, Charge No. 480-2016-03070. (RJN 3.)

· Complaint of Employment Discrimination filed on behalf of Plaintiff with the DFEH on September 19, 2022, Case No. 202209-18285620. (RJN 4.)

· DFEH Notice of Case Closure and Right to Sue letter dated September 19, 2023, Case No. 202209-18285620. (RJN 5.)

Defense counsel has complied with the meet and confer requirement. (See Declaration of Marissa M. Franco, ¶ 10.)

Disney Defendants demur to each cause of action, except the Eleventh Cause of Action. The court addresses each cause of action in turn.

Before addressing each cause of action, the court makes the following observations about the FAC. Plaintiff employs a “chain letter” or cumulative pleading, as well as a shotgun pleading practice. These practices are disfavored. In Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, the court defined a pleading practice that it termed “chain letter” or cumulative pleading and explained that the practice should be avoided because it causes ambiguity and creates redundancy. “[The p]laintiff employs in part a ‘chain letter’ or cumulative type of pleading. That is, [the] plaintiff's cause of action for negligent infliction of emotional distress, the second cause of action in the second amended complaint, incorporates by reference the entire first cause of action. This type of pleading should be avoided as it tends to cause ambiguity and creates redundancy.” (Id. at p. 285.)

In Sollberger v. Wachovia Securities, LLC (C.D. Cal. June 30, 2010, No. SACV 09–0766 AG) 2010 U.S. Dist. LEXIS 66233 at *11–12, 2010 WL 2674456, the court defined a related pleading practice that it termed “shotgun ” pleading and explained why that practice should not be tolerated by trial courts. “Shotgun pleadings are pleadings that overwhelm defendants with an unclear mass of allegations and make it difficult or impossible for defendants to make informed responses to the plaintiff's allegations. They are unacceptable.... The Court has recognized that allowing shotgun pleadings would lead to many negative consequences. See Mason v. County of Orange, 251 F.R.D. 562, 563–64 (C.D. Cal. 2008) (quoting Anderson v. District Board of Trustees, 77 F.3d 364, 366–67 (11th Cir.1996)) (‘[E]xperience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ability to administer justice.’); see also Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001) (‘Cases framed by shotgun pleadings consume an inordinate amount of a court's time. As a result, justice is delayed, if not denied, for litigants who are standing in the queue waiting to be heard. Their impression of the court's ability to take care of its business can hardly be favorable. As the public becomes aware of the harm suffered by the victims of shotgun pleading, it, too, cannot help but lose respect for the system.’)”

This pleading style is especially problematic here. Defendants assert that Plaintiff’s claims are time-barred. Plaintiff, in turn, relies upon the continuing violation doctrine to capture certain acts that potentially fall outside the limitations period. As alleged, the court cannot tell for many of the causes of action whether they are time-barred. For this reason, the court pointedly addresses the statute of limitations argument as to the Third, Fourth, Fifth, and Sixth causes of action. Should Plaintiff seek to rely upon the continuing violation doctrine, Plaintiff must plead sufficient facts to support an assertion of the continuing violation doctrine; facts that meet the requirements set forth in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 and Acuna v. San Diego Gas & Electric (2012) 217 Cal.App.4th 1402.

The First Cause of Action is based on the allegation that “Plaintiff’s age, disabilities, race, national origin, ancestry, and/or other characteristics protected by FEHA . . . were substantial motivating reasons in defendants’ decision to terminate plaintiff’s employment”. (FAC, ¶ 24.)

A plaintiff establishes a prima facie case for unlawful discrimination by providing evidence that “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action ..., and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel (2000) 24 Cal.4th 317, 355.)

Disney Defendants launch several interrelated attacks against the First Cause of Action. First, they argue the FAC does not allege sufficient facts to show that discrimination was a substantial motivating factor in any adverse employment action taken against Plaintiff. A plaintiff must plead facts to demonstrate that his alleged protected characteristics was a substantial motivating factor in the particular employment decision. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232; see also CACI Nos. 2500, 2540, 2570.) “A “substantial motivating reason” is a reason that actually contributed to the adverse employment action. It must be more than a remote or trivial reason. It does not have to be the only reason motivating the adverse employment action.” (CACI No. 2507.)

As mentioned above, Plaintiff sets forth his factual allegations in a “common facts” section. The court discerns that the factual basis for the First Cause of Action include Plaintiff’s alleged disabilities, identified as anxiety and depression (FAC, ¶ 1(e); comments about Plaintiff’s national origin and race (FAC, ¶ 15(g)-(h)); and allegations that two new younger, non-Armenian employees remained employed even though Plaintiff, who was over 40 years old at the time, remained furloughed and was ultimately terminated (FAC, ¶ 15(i)). As alleged, Plaintiff does not sufficiently state a cause of action for discrimination based on disability, age, race, or national origin. There are no allegations, either taken separately or together, that establish these instances of alleged discrimination were substantial motivating reasons for Plaintiff’s furlough and termination.

B. 2^nd Cause of Action: Hostile Work Environment Harassment in Violation of the FEHA

Government Code section 12940, subdivisions (a) and (j)(1) provide the basis for FEHA claims for discrimination and harassment: “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status . . .” A hostile work environment is a recognized form of harassment. To establish a hostile work environment, harassment must be so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) Harassment must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. (See Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283.) Harassment that is occasional, isolated or sporadic is insufficient. (See id.) “Whether an environment is hostile or abusive can be determined only by looking at all the circumstances. [Citation.] These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other factor, may be taken into account, no single factor is required.” (Jones v. Dep’t of Corr. & Rehab. (2007) 152 Cal.App.4th 1367, 1378 [cleaned up].)

The Second Cause of Action is based on the alleged conduct of Individual Defendants Fredericks, Mohler, and Carr. The court sustained Individual Defendants’ demurrer to the Second Cause of Action. (See Minute Order, 2/1/24.) The basis for the sustaining Individual Defendants’ demurrer is as summarized:

1. As to Fredericks, there are no allegations establishing a nexus between Fredericks 2014 and 2018 conduct and a protected characteristic. Nor do the allegations describe conduct by Fredericks that is severe or pervasive, or repeated, routine, or generalized in nature.

2. As to Carr, there is no factual allegations connecting Carr’s conduct and Plaintiff’s protected characteristic.

3. As to Mohler, Plaintiff improperly relies on alleged misconduct that occurred before September 19, 2019 (when the applicable limitations period begins), and the lone allegation of any conduct by Mohler possibly occurring within the applicable period was vague and lacked sufficient specificity.

Given that the court found the allegations in the FAC were deficient as to Individual Defendants, the court further finds the FAC is deficiently pled as to Disney Defendants. For these reasons, Disney Defendants’ demurrer to the Second Cause of Action is also SUSTAINED.

To establish retaliation under FEHA, a plaintiff must show that “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

The Third Cause of Action for retaliation is based on Plaintiff’s complaints of harassment and retaliation from Carr[2] and other misconduct by Carr[3] and Plaintiff’s request for reasonable accommodation that he not work with Carr.

The FAC states a claim for retaliation. Plaintiff’s request for accommodation to not work with Carr is protected activity. When Plaintiff complained about being terminated, Yvonne Pack with Human Resources, and Senior Manager, Daria Kimble, explained that one of the reasons for Plaintiff’s termination was that Plaintiff would not work with Carr. (FAC, ¶ 16.) The reasonable inference to be drawn is that Plaintiff was terminated because he requested not to work with Carr. In drawing this inference, the court focuses on when the adverse employment action occurred (in 2020), and less when Plaintiff engaged in the protected activity.

In reply, Disney Defendants emphasize that there are no allegations showing that Carr played any role in Plaintiff’s termination. Disney Defendants’ focus on Carr’s alleged role in the adverse employment action is misplaced. The inquiry is whether Plaintiff was engaged in a protected activity, whether the employer subjected Plaintiff to an adverse employment action, and whether the two events are causally linked. The FAC sufficiently alleges each element of the claim. Disney Defendants further contend that Plaintiff does not assert any claims against Pack or Kimble. That is beside the point. Pack and Kimble’s decision to terminate Plaintiff because of his inability to work with Carr may be attributed to Disney Defendants whether or not Plaintiff asserts a claim against them individually.

Accordingly, Disney Defendants’ demurrer to the Third Cause of Action is OVERRULED.

The Fourth Cause of Action is based on Disney Defendants’ failure to provide Plaintiff with his requested accommodation not to work with Carr because working with Carr exacerbated Plaintiff’s anxiety and depression.

“There are three elements to a failure to accommodate action: ‘(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (CACI No. 2541; Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193-1194.)

Disney Defendants argue Plaintiff’s failure to provide reasonable accommodation claim is time-barred.

“[A]n employer's persistent failure to reasonably accommodate a disability . . . is a continuing violation if the employer's unlawful actions are (1) sufficiently similar in kind—recognizing, … , that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms (see Fielder v. UAL Corp., supra, 218 F.3d at pp. 987-988); (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. (Berry, supra, 715 F.2d at p. 981.) But consistent with our case law and with the statutory objectives of the FEHA, we further hold that “permanence” in the context of an ongoing process of accommodation of disability, or ongoing disability harassment, should properly be understood to mean the following: that an employer's statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.” (Richards, 26 Cal.4th at p. 823.)

The Fourth Cause of Action is time-barred. Here, as alleged, the failure to reasonably accommodate acquired a degree of permanence. Plaintiff first made a request for accommodation in 2014. Plaintiff filed a charge with DFEH in 2016. (RJN 1.) Plaintiff does not allege a new violation after 2016. It is the same violation: Disney Defendants’ failure to accommodate Plaintiff’s request not to work with Carr. Plaintiff should have reasonably understood that litigation was his only alternative to vindicate his rights. Indeed, filing a charge with DFEH in 2016 and receiving a right to sue letter signals as much. (RJN 2.)

The Fifth Cause of Action is based on Disney Defendants’ purported failure to engage in a good faith interactive process with Plaintiff concerning his request not to work with Carr.

FEHA requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability . . . .” (Gov. Code, § 12940, subd. (n); Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) To establish a claim for failure to engage in the interactive process, a plaintiff must show: (1) defendant was an employer; (2) plaintiff was defendant’s employee; (3) plaintiff was disabled; (4) plaintiff requested reasonable accommodation; (5) plaintiff was willing to participate in a timely good faith interactive process with plaintiff to determine whether a reasonable accommodation could be made; (6) defendant failed to participate in this process; (7) plaintiff was harmed; and (8) defendant’s failure to engage in a good-faith interactive process was a substantial factor in causing plaintiff’s harm. (CACI No. 2546.)¿¿

Like the Fourth Cause of Action, Disney Defendants argue that the Fifth Cause of Action is time-barred because Plaintiff filed his first charge with the DFEH in 2016. (See RJN 1.) Therefore, Plaintiff was on notice at least as of 2016 that further efforts to end the unlawful conduct would be in vain. The court agrees. Plaintiff’s cause of action accrued in 2016. He was on notice he needed to litigate his claim. (Richards, 26 Cal.4th at p. 823.) As alleged, Disney Defendants’ failure to engage in a good faith interactive process regarding Plaintiff’s request not to work with Carr is a repetition of the same claim. Plaintiff does not allege any new violation occurring in the applicable period that would support this cause of action.

F. 6^th Cause of Action: Failure to Prevent Discrimination, Harassment, or Retaliation

A cause of action for failure to prevent discrimination or retaliation requires the following elements: (1) plaintiff was an employee of defendant; (2) plaintiff was subjected to discrimination/retaliation in the course of employment; (3) defendant failed to take all reasonable steps to prevent the discrimination/retaliation; (4) plaintiff was harmed; and (5) defendant’s failure to take all reasonable steps to prevent discrimination/retaliation was a substantial factor in causing plaintiff’s harm. (CACI No. 2527; Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1410.)¿ “The employer’s duty to prevent discrimination and retaliation is affirmative and mandatory.” (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035.)

The Sixth Cause of Action is based upon his Second Cause of Action. (See Opp., p. 1:25-27.) Because the court has found that the FAC does not state a cause of action for hostile work environment harassment, the Sixth Cause of Action similarly fails.

Accordingly, Disney Defendants’ demurrer to the Sixth Cause of Action is SUSTAINED.

“‘[T]he vital elements of a cause of action based on a contract are mutual assent (usually accomplished through the medium of an offer and acceptance) and consideration. As to the basic elements, there is no difference between an express and an implied[-in-fact] contract.” (Pacific Bay Recovery Inc. v. California Physicians’ Services, Inc. (2017) 12 Cal.App.5th 200, 215.) “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) “‘While an express contract is defined as one, the terms of which are stated in words (Civil Code, § 1620), an implied [in fact] contract is an agreement, the existence and terms of which are manifested by conduct (Civ. Code, § 1621)…[B]oth types of contract are identical in that they require a meeting of minds or an agreement [citation]. Thus, it is evident that both the express contract and contract implied in fact are founded upon an ascertained agreement or, in other words, are consensual in nature, the substantial difference being in the mode of proof by which they are established [citation].’ [Citation.]” (Pacific Bay Recovery, supra, 12 Cal.App.5th at pp. 215-16.)

Disney Defendants argue the 7^th and 8^th causes of action fail because the terms, conditions, and circumstances of the alleged contract not to terminate Plaintiff without good cause are not alleged. The court agrees. There are no factual allegations pled in support of these causes of action; the allegations are conclusory.

Accordingly, Disney Defendants’ demurrer to the Seventh and Eighth Causes of Action is SUSTAINED.

The elements of a claim for Negligent Hiring, Supervision, or Retention of an employee are: (1) that the defendant hired the employee; (2) that the employee was/became unfit to perform the work for which they were hired; (3) that the employer knew or should have known that the employee was/became unfit and that they created a particular risk to others; (4) that the employee’s unfitness harmed the plaintiff; and (5) that the employer’s negligence in hiring or retaining the employee was a substantial factor in causing plaintiff’s harm.¿ (CACI No. 426.) “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ ”¿ (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

The Ninth Cause of Action fails for two reasons. First, Plaintiff’s use of the “shotgun pleading” style renders this cause of action uncertain. Who does the Plaintiff allege was negligently hired? Who was unfit? Is it Mohler? Fredericks? Carr? Pack? Kimble? The court cannot tell. Second, even if the FAC sufficiently identifies the actor, the FAC does not state a cause of action for negligent hiring, supervision, and retention. There are no allegations establishing the second (unfitness of employee) or third (employer’s knowledge) elements of this claim.

Labor Code section 1102.5, subdivision (b) provides, “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.” (Lab. Code, § 1102.5, subd. (b).) To establish a claim for whistleblower retaliation, the following elements must be met: (1) plaintiff engaged in a protected activity; (2) plaintiff suffered an adverse employment action; and (3) a causal link exists between the protected activity and adverse actions. (Mokler v. Cty. of Orange (2007) 157 Cal.App.4th 121, 138.)

The Tenth Cause of Action is based on Plaintiff’s complaints about Carr’s conduct and Mohler’s conduct. (See FAC, ¶¶ 15(d), (g)-(i).) This claim fails for two reasons. First, it is time-barred. An action based on statute must be brought within three years. (Code Civ. Proc., § 338, subd. (a).) Here, all the alleged conduct occurred on or before March 2020. Second, even if the claim were timely, Plaintiff does not establish a causal link between any of the alleged conduct and an adverse employment action. Plaintiff does not address this argument in opposition.

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at p. 780 (quoting Tererice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)

A personnel management decision does not constitute extreme and outrageous conduct even if it was improperly motivated by discrimination and retaliation. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 79-80; see also Light v. California Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 101-02.)

The court sustained Individual Defendants’ demurrer to the IIED cause of action because it is based on conduct that occurred in 2014, 2016, and 2020. A cause of action for IIED must be brought within 2 years. (Code Civ Proc., § 335.1.) Plaintiff did not file this action until September 15, 2023. The IIED claim is time barred.

Accordingly, Disney Defendants’ demurrer to the Twelfth Cause of Action is likewise SUSTAINED.

The demurrer to the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Twelfth Causes of Action is SUSTAINED. Leave to amend is GRANTED.

Plaintiff is ordered to serve and file his Second Amended Complaint by April 22, 2024. (See Stipulation to Extend Plaintiff’s Deadline to File a Second Amended Complaint, 3/20/24.)

All Defendants are to file and serve their responsive pleading within 30 days of service of Plaintiff’s amended pleading.

As the court has sustained the demurrer with leave to amend, the motion to strike portions of the First Amended Complaint is MOOT.

Kerry Bensinger

Judge of the Superior Court

[1] On December 26, 2024, Carr, Fredericks, and Mohler separately filed a demurrer to the Second and Twelfth Causes of Action. On February 1, 2024, the court sustained the demurrer with leave to amend.

[2] As alleged, Plaintiff did not make these complaints about Carr’s conduct within the applicable statutory period. Moreover, there are no allegations establishing a causal link between those complaints and any adverse employment action taken against Plaintiff.

[3] In 2018, Plaintiff reported his suspicion that Carr was stealing. In response, Fredericks dismissed Plaintiff’s complaint and attempted to enforce a write-up against Plaintiff. This allegation, however, does not support Plaintiff’s retaliation claim as it occurred outside the applicable statutory period. Nor is it clear whether the write-up was ultimately enforced or if it altered Plaintiff’s employment.