Judge Lynette Gridiron Winston, Case Number: 21STCV37764, Date: 2023-11-28 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 21STCV37764, Date: 2023-11-28 Tentative Ruling

1. Demurrer by Defendants Citrus Community College District, Geraldine M. Perri, and Robert Sammis as to Plaintiff’s First Amended Complaint

2. Motion to Strike Portions of First Amended Complaint by Defendants Citrus Community College District, Geraldine M. Perri, and Robert Sammis

The Court SUSTAINS the demurrer to the first, second, third, and fourth causes of action in the FAC without leave to amend. Plaintiff has not met his burden in showing a reasonable possibility of how such causes of action can be amended to state valid causes of action.

The Court GRANTS the motion to strike paragraphs 35, 40 and 41 without leave to amend.

The Court also GRANTS the motion to strike paragraph 84 and prayer for relief paragraph 3 against the District without leave to amend.

The Court further GRANTS the motion to strike paragraph 84 and prayer for relief paragraph 3 against the individual defendants Sammis and Perri. The Court will hear argument as to whether leave to amend should be granted as to the individual defendants.

This is a case arising from alleged discrimination. On October 13, 2021, Plaintiff Ronald L. Ponciano (“Plaintiff”) filed a complaint against Defendants Citrus Community College District (“Citrus”), Geraldine M. Perri (“Perri”), Robert Sammis (“Sammis”) (collectively, “Defendants”), and Does 1 to 100, alleging causes of action for age discrimination in the workplace, hostile work environment, intentional infliction of emotional distress, and negligent infliction of emotional distress.

On August 24, 2023, Plaintiff improperly filed the operative First Amended Complaint (“FAC”) against Defendants alleging causes of action for age discrimination in the workplace, hostile work environment, intentional infliction of emotional distress, negligent infliction of emotional distress, and violation of FEHA Government Code section 12940(k).

On October 16, 2023, with no objection from Defendants, the Court placed Defendants’ demurrer and motion to strike the original complaint off-calendar after granting Plaintiff leave to file the amended complaint. The Court deemed the FAC filed as of October 16, 2023. Defendants were ordered to file a responsive pleading within 10 days.

On October 26, 2023, Defendants filed the instant demurrer to the FAC, as well as a motion to strike portions of the FAC.

On November 13, 2023, Plaintiff filed an opposition to the demurrer and the motion to strike. Defendants replied on November 17, 2023.

Demurrer by Defendants Citrus Community College District, Geraldine M. Perri, and Robert Sammis as to Plaintiff’s First Amended Complaint

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) 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. (Id.) If 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 GRANTS Defendants’ request for judicial notice as to Exhibits 1-11 in Defendants’ Request for Judicial Notice. (Evid. Code § 452, subds. (g) and (h).) However, the Court takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.)

Per Code of Civil Procedure section 430.41, subdivision (a), the parties were required to meet and confer in person or by telephone before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) Counsel for Defendants attests that counsel has met and conferred several times to address the issues raised in the demurrer, however, Plaintiff was not agreeable to dismissing his claims. (Arjang Decl., ¶¶ 4-5.) The meet and confer requirement has been met.

In support of the demurrer, Defendants contend that: (1) Defendant Citrus is entitled to specificity in the pleading; (2) the entire lawsuit should be barred by res judicata/collateral estoppel; (3) the third cause of action fails; (4) the fourth cause of action fails; and (5) the Honorable Peter Hernandez has already ruled in favor of Defendants Sammis and Perri on these same identical facts and this Court should not allow Plaintiff to circumvent Judge Hernandez’s ruling.

In opposition to the demurrer, Plaintiff contends that: (1) the allegations of the third and fourth causes of action state a cause of action; (2) the first and second causes of action are alive because of the FEHA complaint; and (3) Plaintiff’s fifth cause of action for constructive discharge is not barred by the opinion in the prior case. Plaintiff contends that his prior case involved his complaints while he worked for Defendants whereas the instant action concerns his constructive wrongful discharge.

The Court finds it necessary to set forth the procedural and factual history of Ronald L. Ponciano v. Citrus Community College District et al., LASC Case No. 19PSCV00139 (the “Prior Action”), to give context to the arguments raised in support of and in opposition to the instant demurrer.

The Prior Action was filed on February 7, 2019. (Defendants’ RJN, Exhibit 1.) Plaintiff filed the operative Third Amended Complaint (“TAC”) on April 6, 2020, against Defendants in the Prior Action for age discrimination in the workplace, hostile work environment, intentional infliction of emotional distress, and negligent infliction of emotional distress. (Defendants’ RJN, Exhibit 2.)

The TAC alleged that Plaintiff was 59 years of age, and his work hours and pay were substantially decreased for no other reason than discrimination because of his age and a hostile work environment. (Id., Exhibit 2 at ¶ 8.) Plaintiff alleged that all actions were done to get him to quit. (Id.) Plaintiff was hired by Defendant Citrus in 2005 as a coach. (Id., ¶¶ 13, 16.) Plaintiff requested the use of air conditioning for the men’s football locker room and notified his superiors that the field turf was in poor condition and was likely to cause non-contact injuries to his players. (Id., ¶ 18.) Plaintiff also alleged that he requested that practices be held at night so that the team did not have to practice in extreme heat. (Id., ¶ 19.) The field turf was eventually replaced according to the TAC; however, Plaintiff’s requests for air conditioning, night practice, and scheduling changes were repeatedly denied, which Plaintiff alleged jeopardized the safety of his players. (Id., ¶ 20.) Plaintiff also learned that he was being underpaid by Defendant Citrus and brought this issue up with his superiors. (Id., ¶ 21.) The TAC in the Prior Action alleges that Defendant Perri was shocked to learn of Plaintiff’s salary claims. (Id.) Plaintiff alleged that Defendants Perri and Sammis conducted a smear campaign in an effort to force Plaintiff to resign because of his age. (Id., ¶ 22.) Plaintiff contended that he was being retaliated against because of his complaints and age, and that rumors were being spread that he was going to get fired for bringing the player safety and compensation issues to light. (Id.)

The TAC in the Prior Action also alleged that Defendants published false and malicious statements alleging that he conducted his practices in a negligent fashion and caused his players to suffer from heat stroke. (Id.) Plaintiff alleged that a trainer for Defendant Citrus told several people at a football game that Plaintiff was getting fired, which prompted many people to contact Plaintiff to ask him whether he was being fired. (Id., ¶ 27.) Plaintiff alleged that he contacted the Title IX Coordinator at Defendant Citrus about the rumor of his termination, and the harassment that he was being put through by Defendant Sammis. (Id., ¶ 29.) Plaintiff alleged numerous Title IX violations where his football team was not provided equal treatment and benefits and such actions were done to make his employment with Defendant Citrus intolerable. (Id., ¶ 30.) Concerning Title IX violations, Plaintiff alleged that lies were set forth on EADA Reports which misrepresented numbers, the football team’s “food comparisons and peridium’s” compared to other sports discriminated against the football program, football had no new uniforms in 12 seasons while other programs would get them yearly, assistant coaches in other programs were allowed to teach extra classes for extra pay, pay increases for the head football coach were not equal to pay increases for other head coaches, no spirit packs, all other sports received a rental field, court, and pool money except for the football team, signs around campus advertised every other sport except football, the amount of money given to each athlete was fabricated on the EADA Report, and some sports received four times the funding than football gets per student athlete. (Id., ¶ 30(1)-(10).)

Plaintiff alleged that a copy machine, which was needed for him to properly coach, was broken and never repaired. (Id., ¶ 33.) Plaintiff also alleged that football was targeted as to funding which involved football players receiving less meal money per athlete than the women’s and men’s soccer programs. (Id.) As to his salary, the TAC alleged that on the Transparent California website, he was defamed and lied about because it showed the salary he was reportedly receiving which was not true as his W-2 figures for the same year were markedly different and lower. (Id., ¶ 28.) Plaintiff alleged that an athletic secretary began not to clear athletes being coached by Plaintiff despite previously telling those players they were cleared. (Id., ¶ 31.) Plaintiff also alleged that Defendant Citrus discriminated against predominantly African American athletes regarding its reimbursement rules for classes. (Id., ¶ 32.)

Defendants filed a demurrer to the third and fourth causes of action in the TAC, and motion to strike as to the TAC in the Prior Action. (Defendants’ RJN, Exhibit 3.) The Court sustained the demurrer to the third and fourth causes of action TAC without leave to amend. The Court granted Defendants’ motion to strike. (Id., Exhibit 4.)

Thereafter, Defendants filed a motion for judgment on the pleadings as to the first and second causes of action in the TAC. (Id., Exhibit 5.) On July 21, 2021, the Court granted Defendants’ motion for judgment on the pleadings in the Prior Action. (Id.) The motion for judgment on the pleadings was brought on the grounds that Plaintiff failed to exhaust his administrative remedies before bringing the Prior Action. (Id.) On August 16, 2021, the Court entered judgment against Plaintiff and for Defendants.[1] (Id., Exhibit 6.) Plaintiff filed a Notice of Appeal as to the judgment. (Id., Exhibit 7.)

The California Court of Appeal, Second Appellate District (“2d DCA”) affirmed the Court’s order granting judgment in favor of Defendants. (Id., Exhibit 9.) The 2d DCA opined that Plaintiff failed to identify any common law cause of action to remedy the discrimination or harassment that he alleged in the TAC. (Id., Exhibit 9 at p.2.) Moreover, the 2d DCA stated that Plaintiff’s failure to exhaust administrative remedies was not excused by his government claim notice or any other circumstance. (Id.) Plaintiff’s causes of action for negligent and intentional infliction of emotional distress were also deemed insufficient. (Id.)

Plaintiff thereafter sought review of the 2d DCA decision from the Supreme Court of California; however, Plaintiff’s petition for review was denied. (Id., Exhibit 10.)

Plaintiff alleges that he is over 59 years of age, and his work hours and pay were substantially decreased for no other reason than discrimination because of his age and a hostile work environment. (FAC, ¶ 8.) Plaintiff alleges that all actions were done to get him to quit. (Id.) Plaintiff was hired by Defendant Citrus in 2005 as a coach. (Id., ¶¶ 13, 15.) Plaintiff requested the use of air conditioning for the men’s football locker room and notified his superiors that the field turf was in poor condition and was likely to cause non-contact injuries to his players. (Id., ¶ 18.) Plaintiff also alleges that he requested that practices be held at night so that the team did not have to practice in extreme heat. (Id., ¶ 19.) The field turf was eventually replaced according to the FAC; however, Plaintiff’s requests for air conditioning, night practice, and scheduling changes were repeatedly denied, which Plaintiff alleged jeopardized the safety of his players. (Id., ¶ 20.) Plaintiff also learned that he was being underpaid by Defendant Citrus and brought this issue up with his superiors. (Id., ¶ 21.) The FAC alleges that Defendant Perri was shocked to learn of Plaintiff’s salary claims. (Id.) Plaintiff alleges that Defendants Perri and Sammis conducted a smear campaign in an effort to force him to resign because of his age. (Id., ¶ 22.) Plaintiff contends that he was being retaliated against because of his complaints and age, and that rumors were being spread that he was going to get fired for bringing the player safety and compensation issues to light. (Id.)

Plaintiff also alleges that Defendants published false and malicious statements alleging that he conducted his practices in a negligent fashion and caused his players to suffer from heat stroke. (Id.) Plaintiff alleges that a trainer for Defendant Citrus told several people at a football game that Plaintiff was getting fired, which prompted many people to contact Plaintiff to ask him whether he was being fired. (Id., ¶ 27.) Plaintiff alleges that he contacted the Title IX Coordinator at Defendant Citrus about the rumor of his termination, and the harassment that he was being put through by Defendant Sammis. (Id., ¶ 29.) Plaintiff alleges Title IX violations where his football team was not provided equal treatment and benefits and such actions were done to make his employment with Defendant Citrus intolerable. (Id., ¶ 30.) Concerning Title IX violations, Plaintiff alleges that lies were set forth on EADA Reports which misrepresented numbers, the football team’s “Food Comparisons and Peridium’s” compared to other sports discriminated against the football program, football had no new uniforms in 12 seasons while other programs would get them yearly, assistant coaches in other programs were allowed to teach extra classes for extra pay, pay increases for the head football coach were not equal to pay increases for other head coaches, no spirit packs, all other sports received a rental field, court, and pool money except for the football team, signs around campus advertised every other sport except football, the amount of money given to each athlete was fabricated on the EADA Report, and some sports received four times the funding than football gets per student athlete. (Id., ¶ 30(1)-(10).)

Plaintiff alleges that a copy machine, which was needed for him to properly coach, was broken and never repaired. (Id., ¶ 33.) Plaintiff also asserts that football was targeted as to funding which involved football players receiving less meal money per athlete than the women’s and men’s soccer programs. (Id.) As to his salary, the FAC alleges that on the Transparent California website, he was defamed and lied about because it showed the salary he was reportedly receiving which was not true as his W-2 figures for the same year were markedly different and lower. (Id., ¶ 28.) Plaintiff alleges that an athletic secretary began not to clear athletes being coached by Plaintiff despite previously telling those players they were cleared. (Id., ¶ 31.) Plaintiff also alleges that Defendant Citrus discriminated against predominantly African American athletes with regard to its reimbursement rules for classes. (Id., ¶ 32.)

The Court notes that the first 48 paragraphs in the FAC and the TAC in the Prior Action contain identical factual allegations. Thus, the only substantive difference between the two pleadings is the addition of the fifth cause of action in the operative FAC in the instant action. Relevantly, the fifth cause of action alleges that on or about July 7, 2021: (1) Plaintiff was harassed because of his age; (2) he was discriminated against because of his age and was forced to quit, denied hire or promotion, denied equal pay, denied any employment benefit or privilege; (3) Plaintiff was denied hire or promotion, reprimanded, denied equal pay, denied any employment benefit or privilege, and denied work opportunities or assignments; and (4) he had no alternative but to resign after reaching out to Human Resources concerning harassment by the staff and administration of Defendant Citrus. (FAC, ¶¶ 53(A)-(D).)

“If all the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer.” (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 225.) “[R]es judicata describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Ibid.) “Claim preclusion applies when (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.” (Id. at p. 226.) “Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.” (Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245.) “Res judicata serves as a bar to all causes of action that were litigated or that could have been litigated in the first action.” (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.)

The key inquiry in determining whether res judicata applies is whether the party, in a prior action, had an opportunity to litigate the claims raised in a subsequent action. (Ibid.) A judgment in favor of a defendant “constitutes a bar to any further suit on the same cause of action.” (Busick v. Workmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 973.) For the purposes of determining whether res judicata applies, a court determines whether the pleadings involve the same primary right. (The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 789.) A plaintiff has a primary right “to be free from a particular injury, regardless of the legal theory on which liability for the injury is based.” (Id. at p. 789-90.) An injury “is defined in part by reference to the set of facts, or transaction, from which the injury arose.” (Id. at p. 790.)

The Court finds that the first through fourth causes of action in the FAC are barred under the doctrine of res judicata. The Prior Action ended in a judgment in favor of Defendants, which was affirmed by the 2d DCA. Thus, the Prior Action had a final judgment on the merits. As stated above, the factual allegations of the first through fourth causes of action in the FAC are identical to the first through fourth causes of action in the TAC asserted in the Prior Action. Plaintiff is seeking to bring identical claims in this action that were already litigated in the Prior Action. (Defendants’ RJN at Exhibits 1-9.) The parties are the same in the instant action and the Prior Action. Therefore, the first through fourth causes of action are barred by the doctrine of res judicata.

Accordingly, the Court SUSTAINS the demurrer to the first through fourth causes of action in the FAC without leave to amend.

The fifth cause of action is one for a violation of Gov. Code § 12940(k). Gov. Code § 12940(k) is concerned with an employer failing “to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” While Defendants list the fifth cause of action in their demurrer, neither the moving papers nor the reply set forth any argument or case law as to why the Court should sustain the demurrer to the fifth cause of action. For this reason alone, the Court would overrule the demurrer to the fifth cause of action.

Furthermore, while the fifth cause of action is based on the same conduct alleged in support of the first through fourth causes of action, Paragraphs 53 through 84 have been added to such cause of action, adding new and different facts. The fifth cause of action was not decided in the rulings in the Prior Action or by the 2d DCA.as they detail alleged harassment and discrimination. (FAC, ¶¶ 50-84.)

Accordingly, the Court OVERRULES the demurrer to the fifth cause of action in the FAC.

However, the Court finds that Plaintiff’s contention is misplaced that the fifth cause of action allows the first and second causes of action to survive a demurrer. The first and second causes of action are identical to such causes of action asserted in the Prior Action. As to the third and fourth causes of action, the 2d DCA specifically stated that Plaintiff failed to state a claim for intentional infliction of emotional distress and negligent infliction of emotional distress. (Defendants’ RJN, Exhibit 6 at pp. 15-18.) Given that the allegations of the first through fourth causes of action in this action are identical to those alleged in the Prior Action, Plaintiff’s argument as to the sufficiency of such causes of action in the FAC fails. The fifth cause of action does not allow the first through fourth causes of action to survive the instant demurrer.

Therefore, as previously stated, the Court finds that the first through fourth causes of action in the FAC in the instant action are barred by the doctrine of res judicata. While the Court can sustain the demurrer on this ground alone, the Court will still address the other arguments raised in support of and in opposition to the demurrer.

“Collateral estoppel, or issue preclusion, precludes relitigation of issues argued and decided in prior proceedings.” (Planning & Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th 210, 226.) Collateral estoppel requires the same elements to be established to support the applicability of res judicata. (Conservatorship of Buchenau (2011) 196 Cal.App.4th 1037, 1040.) “The first element of collateral estoppel requires that the issue sought to be precluded be identical to one litigated in the prior adjudication; i.e., it asks whether identical factual allegations were at stake in the two proceedings.” (Ibid.)

Here, the Court references its analysis as to its discussion of res judicata and incorporates it herein. As to the first through fourth causes of action in the FAC, such allegations are identical to the first through fourth causes of action which were raised in the TAC in the Prior Action. A final judgment on the merits was entered and the parties are identical. Thus, collateral estoppel would apply to bar the first through fourth causes of action. The doctrine of collateral estoppel would not apply to the fifth cause of action, however. There were no allegations in the Prior Action as to the failure of Defendants to take reasonable steps to prevent discrimination and harassment from occurring. Thus, collateral estoppel bars the first through fourth causes of action in the FAC, it would not apply to the fifth cause of action.

“The elements of 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.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid.) “The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.” (Ibid.) “Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)

“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.) “[A] public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code § 820.2.) Gov. Code Section 815.2(a) provides that “[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.” “[A] public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune for liability.” (Gov. Code § 815.2(b).)

As to the third cause of action, Plaintiff alleges that Defendants intentionally harassed him and discriminated against him in its handling of Plaintiff’s workplace complaints and in its dissemination of false information concerning Plaintiff’s job performance. (FAC, ¶ 39.) Plaintiff alleges that his complaints to Defendants Perri and Sammis about Title IX violations and Education Code violations were ignored, and Defendants engaged in a course of conduct to force him to resign because of his age. (Id.)

The Court references its recitation of the allegations of the FAC and incorporates such allegations herein. The Court finds that Plaintiff has not stated a valid cause of action for intentional infliction of emotional distress. The purported actions of Defendants Sammis and Perri arise from their duties in managing personnel and they are therefore immune from liability for the third cause of action. The actions of Defendants Sammis and Perri of allocating resources to athletic programs, salary decisions, and failure to address Plaintiff’s complaints do not rise to the level of extreme and outrageous conduct. It follows that Defendant Citrus is also immune from liability pursuant to California Government Code, Section 815.2(b). Under Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th 55, 80, Plaintiff’s remedy is a suit against Defendant Citrus for discrimination. The actions of Defendants—irrespective of their motivation for such decisions—are personnel management decisions. The 2d DCA also held that “[t]he actions alleged in the complaint . . . were common personnel management decisions that did not constitute outrageous conduct beyond the limits of human decency and do not state a cause of action for intentional infliction of emotional distress.” (Defendants’ RJN, Exhibit 9 at p. 16.) The 2d DCA assessed identical allegations in the Prior Action that are brought in the instant action and concluded that Plaintiff failed to state a valid cause of action for intentional infliction of emotional distress.

Additionally, pursuant to the third cause of action in the FAC, Plaintiff has failed to plead that Defendants acted with the intention of causing, or reckless disregard of the probability of causing, emotional distress. (FAC, ¶¶ 36-42.)

Therefore, Plaintiff has not stated a cause of action for intentional infliction of emotional distress. Moreover, as stated above, res judicata and collateral estoppel bar the third cause of action.

“[T]here is no independent tort of negligent infliction of emotional distress.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) “The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.” (Ibid.) “The traditional elements of duty, breach of duty, causation, and damages apply.” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729.)

The Court references its analysis as to the third cause of action and incorporates it herein. As stated above, Defendants are immune from liability for their personnel decisions pursuant to Gov. Code Sections 815.2 and 820.2. Plaintiff also has not alleged the elements of duty or breach pursuant to the fourth cause of action.[2] (FAC, ¶¶ 43-48.) Moreover, after analyzing the claim for negligent infliction of emotional distress, the 2d DCA deemed such cause of action deficient as it failed to state a cause of action. (Defendants’ RJN, Exhibit 9 at p. 17-18.) The allegations concerning the negligent infliction of emotional distress cause of action in the instant action are identical to the allegations in the Prior Action.

Thus, the Court finds that the fourth cause of action in the FAC is insufficiently alleged.

The Court has found that the first through fourth causes of action in the FAC are barred by the doctrines of res judicata and collateral estoppel. Moreover, the Court has assessed the sufficiency of the third and fourth causes of action and deemed such causes of action deficient.

Based on the foregoing, the Court SUSTAINS the demurrer to the first, second, third, and fourth causes of action in the FAC without leave to amend. Plaintiff has not met his burden in showing a reasonable possibility of how such causes of action can be amended to state valid causes of action.

Motion to Strike Portions of First Amended Complaint by Defendants Citrus Community College District, Geraldine M. Perri, and Robert Sammis

“The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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., § 435.5, subd. (b)(2).)

Per Code of Civil Procedure section 435.5, subdivision (a), Defendants were required to meet and confer telephonically or in person before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).)

Counsel for Defendants attests that counsel has met and conferred several times to address the issues raised in the motion to strike, however, Plaintiff was not agreeable to dismissing his punitive damages claims against Defendants. (Arjang Decl., ¶¶ 4-5.) The meet and confer requirement has been met.

Defendants seek to strike punitive damage allegations from the FAC, specifically from the second (¶ 35, p. 11:4-6), third (¶ 40, p. 12:20-26; ¶ 41, p. 13:1-5), and fifth (¶ 84, p. 26:12-14) causes of action, and prayer for relief (¶ 3, p. 27:8) in the FAC.

In light of the Court sustaining the demurrer to the second and third causes of action without leave to amend, the Court GRANTS the motion to strike paragraphs 35, 40 and 41 without leave to amend. There is no sufficiently alleged cause of action upon which Plaintiff can seek punitive damages as such causes of action are legally insufficient and barred by the doctrines of res judicata and collateral estoppel.

The Court also GRANTS the motion to strike paragraph 84 and prayer for relief paragraph 3 against the District without leave to amend because public entities are not liable for punitive damages. (See Cal. Gov. Code § 818; Marron v. Superior Court (2003) 108 Cal.App.4th 1049, 1059.) Government Code section 818 specifically states:

The Court notes that Plaintiff does not address this argument in the Opposition. Thus, the Court construes Plaintiff’s lack of opposition as a tacit admission that the argument is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 504, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶¿9:105.10.)

The Court further GRANTS the motion to strike paragraph 84 and prayer for relief paragraph 3 against the individual defendants Sammis and Perri as Plaintiff fails to allege any specific facts that would rise to the level of malice, oppression or fraud. The allegations concerning punitive damages in a complaint must be factually grounded. (Grieves v. Sup. Ct. (1984) 157 Cal.App.3d 159, 166.) Where a plaintiff fails to plead facts establishing oppression, fraud or malice, courts routinely strike punitive damages allegations. (Turman v. Turning Point of Cent. California Inc. (2010) 191 Cal.App.4th 53.) A review of the FAC, including the new allegations in paragraphs 53 through 84, demonstrates that Plaintiff has not sufficiently alleged facts supporting the imposition of punitive damages against Defendants Perri and Sammis.

The Court will hear argument as to whether leave to amend should be granted as to the individual defendants.

Based on the foregoing, the Court GRANTS the motion to strike paragraphs 35, 40 and 41 without leave to amend.

The Court also GRANTS the motion to strike paragraph 84 and prayer for relief paragraph 3 against the District without leave to amend.

[1] The Honorable Peter A. Hernandez was the judicial officer presiding over the Prior Action, and ruled on the demurrer, motion for judgment on the pleadings, and signed the judgment in the Prior Action.

[2] To state a cause of action against a public entity requires “every fact essential to the existence of statutory liability [to] be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)