Judge Lynette Gridiron Winston, Case Number: 22PSCV01876, Date: 2023-10-17 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV01876, Date: 2023-10-17 Tentative Ruling

CASE NAME: Elizabeth T. Baker v. Pomona Valley Hospital Medical Center, et al.

BACKGROUND
This is an employment case. On November 18, 2022, Plaintiff Elizabeth T. Baker (Plaintiff) filed this action against Defendants Pomona Valley Hospital Medical Center, Kelly Jacobson, Kathleen Majeski, Sherly Agustin, Deeann Gibbs (collectively, Defendants) and Does 1 to 50, alleging causes of action for discrimination on the basis of disability, discrimination on the basis of race/ethnicity, harassment on the basis of disability, harassment of the basis of race/ethnicity, failure to prevent, investigate, remedy discrimination, harassment, or retaliation, failure to accommodate disability, failure to engage in the interactive process, violation of the CFRA, wrongful termination re public policy, retaliation, aiding, abetting, inciting, compelling, or coercing acts forbidden by the FEHA, intentional infliction of emotional distress, and negligent infliction of emotional distress.

On June 7, 2023, the Court sustained Defendants’ demurrer to the original Complaint with leave to amend as to the causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress, and sustained without leave to amend as to all other causes of action.

On June 27, 2023, Plaintiff filed the First Amended Complaint (FAC), alleging causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress.

On August 10, 2023, the Court sustained Defendants’ demurrer to the FAC with leave to amend.

On August 21, 2023, Plaintiff filed the operative Second Amended Complaint (SAC), alleging causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress, and breach of written contract.

On September 20, 2023, Defendants filed the instant demurrer to the SAC. On October 4, 2023, Plaintiff opposed. On October 9, 2023, Defendants replied.

LEGAL STANDARD
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 be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

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.)

REQUESTS FOR JUDICIAL NOTICE
The Court GRANTS Defendants’ requests for judicial notice. (Evid. Code § 452, subd. (d).) However, the Court takes judicial notice of such 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.)

PRELIMINARY ISSUES
Plaintiff’s opposition memorandum is 15 pages long, but contains no table of contents or table of authorities. Any opening or responding memorandum exceeding 10 pages must provide a table of contents and table of authorities. (Cal. Rules of Court, rule 3.1113, subd. (f).) The Court will still consider Plaintiff’s opposition, but admonishes Plaintiff to comply with the California Rules of Court going forward.

MEET AND CONFER
Per Code of Civil Procedure section 430.41, the parties were required to meet and confer in person or telephonically before the filing of this demurrer. (Code Civ. Proc., § 430.41.) The Court finds the parties adequately met and conferred. (Love Decl., ¶¶ 2-3.)

DISCUSSION
First Cause of Action – Intentional Infliction of Emotional Distress
To plead a cause of action for intentional infliction of emotional distress (IIED), the plaintiff must allege facts demonstrating: (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....” (Catsouras v. Dep’t of California Highway Patrol (2010) 181 Cal.App.4th 586, 874-875.) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid.)

“Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028, citing Rest.2d Torts, § 46, com. d.) Said differently, the test for judging outrageous conduct is less an analytical, bright-line test but rather one that appears “more intuitive.” (KOVR-TV, Inc., supra, 31 Cal.App.4th at p. 1028.) Furthermore, “[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff or occur in the presence of a plaintiff of whom the defendant is aware.” (Catsouras, supra, 181 Cal.App.4th 856 at p. 875).

“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.] (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) The statute of limitations for IIED is two years. (Code Civ. Proc., § 335.1; Pugliese v. Superior Ct. (2007) 146 Cal.App.4th 1444, 1450.)

Defendants demur to the First Cause of Action for IIED on the grounds that it is time-barred, preempted by the Workers’ Compensation Act, and fails to allege acts constituting extreme and outrageous conduct. The Court agrees that it is time-barred.

The SAC alleges Plaintiff suffered injuries in connection with her employment that culminated in her termination on November 21, 2019. (SAC, ¶ 15.) Plaintiff alleges she received a right-to-sue letter from the Department of Fair Employment and Housing (DFEH) on November 19, 2020. (SAC, ¶ 4.) Plaintiff filed this action on November 18, 2022, which is more than two years after Plaintiff was terminated and more than one year after Plaintiff received the right-to-sue letter. Accordingly, Plaintiff’s IIED claim is time-barred unless an exception applies to the statute of limitations here. Plaintiff contends her claim is not barred by the statute of limitations under the doctrines of equitable tolling, the continuing violations doctrine, and equitable estoppel.

Equitable Tolling
“The equitable tolling of statutes of limitations is a judicially created, nonstatutory doctrine. [Citations.] It is ‘designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations—timely notice to the defendant of the plaintiff's claims—has been satisfied.’ [Citation.] Where applicable, the doctrine will ‘suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.’ [Citation.]” (McDonald v. Antelope Valley Cmty. Coll. Dist. (2008) 45 Cal.4th 88, 99.) “Broadly speaking, the doctrine applies [w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.’ [Citation.]” (Id., at p. 100, internal quotation marks omitted.)

The Court finds no allegations in the SAC to support the application of equitable tolling to Plaintiff’s IIED claim. Nowhere in the SAC does Plaintiff allege that she pursued one of several legal remedies available to her in connection with her IIED claim. At most, Plaintiff alleges having received a right-to-sue letter from the DFEH, but that was not required for Plaintiff to pursue her IIED claim. (See Rojo v. Kliger (1990) 52 Cal.3d 65, 74, 84 [the Fair Employment and Housing Act does not preempt other statutory or common law claims, and exhaustion of administrative remedies is not required for non-statutory claims].)

Plaintiff’s argument in her opposition that equitable tolling applies when there is extreme and outrageous conduct is unpersuasive, as Plaintiff cites to no legal authority that supports that contention. It is also circular considering that an IIED claim is predicated upon extreme and outrageous conduct. (Catsouras, supra, 181 Cal.App.4th at pp. 874-875.) Otherwise, if all that was required for equitable tolling was the existence of extreme and outrageous conduct, then there would effectively be no statute of limitations for IIED claims.

Additionally, Plaintiff’s contention that she is currently undergoing criminal charges in connection with her employment is unavailing. That is a criminal prosecution against Plaintiff, it is not a separate remedy she is pursuing. Plaintiff’s contentions here are otherwise conclusory.

Thus, the SAC fails to allege facts that would support the application of equitable tolling to Plaintiff’s IIED claim.

Continuing Violations Doctrine
“’The continuing violation doctrine aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission or sufferance of the last of them.’ [Citations.] Consequently, the continuing violation doctrine ‘allows liability for unlawful ... conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period.’ [Citations.] For the continuing violation doctrine to apply, a plaintiff must show the defendant engaged in ‘a pattern of reasonably frequent and similar acts [that] may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside the limitations period.’ [Citations.]” (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1124.)

“[A]n employer's persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employer's unlawful actions are (1) sufficiently similar in kind—recognizing, as this case illustrates, 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 [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.] 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 v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)

The Court finds that the SAC fails to allege facts evidencing a continuing violation. The SAC alleges in a conclusory manner that the continuing violations doctrine applies without providing specific facts to support those allegations. (SAC, ¶¶ 54, 75.) To the extent Plaintiff relies upon the allegation that Defendants lied to an EDD investigator after Plaintiff’s termination, the continuing violation doctrine does not help Plaintiff. The alleged acts of discrimination and harassment occurring outside the limitations period (after Nov. 2021) and inside the limitation periods (before Nov. 2021) are not at all similar. Defendants' alleged acts of discrimination and harassment “acquired a degree of permanence” on November 19, 2019, when Plaintiff’s employment was terminated, which ended the alleged continuing violations. Statements allegedly made to the EDD investigator are not at all similar to constitute a continuing violation. (See Richards, supra, 26 Cal.4th at p. 823; see also Wassmann v. S. Orange Cnty. Cmty. Coll. Dist. (2018) 24 Cal.App.5th 825, 851 [“The District Defendants’ alleged acts of discrimination and harassment ‘acquired a degree of permanence’ in April 2011, when Wassmann's employment was terminated.”])

Moreover, the Court noted in its August 10, 2023 ruling on the demurrer to the FAC that the FAC failed to allege facts with any specificity or particularity as to how or when Defendants allegedly lied to the EDD investigator. (Order Re: Court’s Tentative Ruling (8/10/23).) The SAC still fails to allege facts with any specificity or particularity on this issue. Plaintiff instead alleges in a conclusory fashion throughout the SAC that Defendants lied to the EDD investigator after being terminated. (See SAC, ¶¶ 55, subd. (m), 61, 63, 70, 72, 85, 99, 101.)

Plaintiff’s opposition also raises numerous arguments regarding issues not alleged in the SAC. More specifically, Plaintiff alleges that Defendants concealed or refused to provide documentation to Plaintiff regarding the issues for which she is currently being prosecuted. However, there are no allegations of concealment or refusals to provide documents to Plaintiff anywhere in the SAC.

Accordingly, the SAC fails to allege facts that would support the application of the continuing violations doctrine to Plaintiff’s IIED claim.

Equitable Estoppel
“In appropriate cases, a defendant may be equitably estopped from asserting a statutory limitations period. [Citation.]“ ‘ “Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he [or she] must intend that his [or her] conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he [or she] must rely upon the conduct to his [or her] injury.” ’ ” [Citations.]

In the statute of limitations context, equitable estoppel may be appropriate where the defendant's act or omission actually and reasonably induced the plaintiff to refrain from filing a timely suit. [Citation.] The requisite act or omission must involve a misrepresentation or nondisclosure of a material fact bearing on the necessity of bringing a timely suit. [Citation.]”

(Doe v. Marten (2020) 49 Cal.App.5th 1022, 1028.)

The Court finds that the SAC fails to allege facts to support the application of equitable estoppel to her IIED claim. Nowhere in the SAC does Plaintiff allege any facts showing that Defendants said or did something to induce Plaintiff to delay in filing this action. Plaintiff contends in a conclusory manner that Plaintiff has pled sufficient facts to show that Defendants owed Plaintiff a duty and that she identified in the SAC Defendants’ alleged wrongdoing, and then cites to paragraph 61 of the SAC. (Opp., 7:5-22.) This argument fails because it still does not show Defendants said or did something to induce Plaintiff to delay filing this action. The part of paragraph 61 to which Plaintiff cites only reiterates the allegation that Defendants lied to the EDD investigator following her termination. However, this in no way demonstrates that Plaintiff relied to her detriment on this alleged lie or that it in any way caused her to delay filing this action.

Accordingly, the SAC fails to allege facts to support the application of equitable estoppel.

Based on the foregoing, the Court finds that Plaintiff’s IIED claim is time-barred. The Court therefore SUSTAINS the demurrer without leave to amend as to the First Cause of Action for IIED.

Second Cause of Action – Negligent Infliction of Emotional Distress
To allege a cause of action for negligent infliction of emotional distress (NIED), the plaintiff must allege facts demonstrating duty, breach, causation, and damages. (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729.) The statute of limitations for NIED is also two years. (Code Civ. Proc., § 335.1.)

The analysis for this cause of action is the same as that for IIED addressed above. Accordingly, the Court SUSTAINS the demurrer without leave to amend as to the Second Cause of Action for NIED.

Third Cause of Action – Breach of Written Contract
“A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom. (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 476, p. 570.) A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. (Id., §§ 479, 480, pp. 572–573.)” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. [Citation.] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.)

Defendant demurs to the Third Cause of Action for breach of written contract on the grounds that it exceeds the scope of the Court’s August 10, 2023 order sustaining the demurrer to the FAC, fails to attach copy of the written agreement or otherwise set forth its terms in the allegations, and is also time-barred. The Court agrees that the Third Cause of Action is an impermissible amendment and that it fails to allege sufficient facts to state a cause of action.

The Court sustained the demurrer to the FAC on August 10, 2023, but only as to the First and Second Causes of Action for IIED and NIED, respectively. (Order Re: Court’s Tentative Ruling (8/10/23).) Nowhere in its ruling did the Court permit Plaintiff to add a new cause of action for breach of written contract. Plaintiff also did not separately seek the Court’s permission to add this cause of action to the SAC. These are entirely new allegations that were not mentioned anywhere in the prior iterations of the Complaint.

Moreover, no copy of the alleged written agreement is attached to the SAC, nor are its terms set forth verbatim in the SAC. The SAC also fails to provide allegations of the legal effect of the alleged written agreement. (See McKell, supra, 142 Cal.App.4th at p. 1489.) The Third Cause of Action is comprised entirely of vague and conclusory allegations. (SAC, ¶¶ 110-119.)

Based on the foregoing, the Court SUSTAINS the demurrer without leave to amend as to the Third Cause of Action for breach of written contract.

CONCLUSION
The Court SUSTAINS the demurrer to the SAC without leave to amend.

Defendants are ordered to provide notice of the Court’s ruling and file proof of service of same within five days of this order.