Judge Lynne M. Hobbs, Case Number: 24STCV01074, Date: 2025-01-08 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 24STCV01074, Date: 2025-01-08 Tentative Ruling

Case Number: 24STCV01074 Hearing Date: January 8, 2025 Dept: 61

PATRICIA MARQUEZ vs PRECISION WIRE PRODUCTS, INC., A CALIFORNIA CORPORATION

TENTATIVE

Defendant Precision Wire Products, Inc.’s Demurrer and Motion to Strike Portions of the First Amended Complaint are SUSTAINED with leave to amend as to the eighteenth cause of action for defamation, with leave to amend within 20 days. The demurrer and motion are otherwise OVERRULED and DENIED.

Defendant to provide notice.

ANALYSIS

I. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”) “In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) “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 Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant Precision Wire Products, Inc. (Defendant) demurrers to several causes of action on the grounds that they are duplicative and redundant. (Demurrer at pp. 4–7.) Defendant also argues that the twelfth cause of action for Labor Code § 1102.5 retaliation fails to state facts supporting a cause of action, as does the 18th cause of action for defamation. (Demurrer at pp. 8–10.)*

1. Duplicative Causes of Action

Defendant identifies the following causes of action, which it contends are duplicative in relation to each other and thus subject to demurrer:

· The fourth and eighth causes of action for FEHA Retaliation

· The first and fifth causes of action for FEHA disability discrimination

· The 12th through 14th causes of action for violations of Labor Code § 1102.5

The redundancy of a cause of action in relation to another already pleaded provides a basis for demurrer. (See Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; see also (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) At the same time, a plaintiff “is permitted to plead alternative inconsistent theories.” (Dubin v. Robert Newhall Chesebrough Trust (2002) 96 Cal.App.4th 465, 477.) The question presented in this demurrer is thus whether the identified causes of action are genuinely duplicative and redundant of one another, or whether they merely state similar (but alternative) legal theories.

Plaintiff’s fourth and eighth causes of action are not redundant, because the first is based on Government Code § 12940, subd. (m)(2), which prohibits retaliation “for requesting accommodation under this subdivision, regardless of whether the request was granted,” while the eighth cause of action is brought under Government Code § 12940, subd. (h), which prohibits retaliation against an employee because they have “filed a complaint, testified, or assisted in any proceeding under this part.” Although Plaintiff refers to subsection (m)(2) in the eighth cause of action, the two claims are reasonably distinct, and the fact that they could have been conjoined in one count does not make them demurrable.

The same reasoning applies to the first and fifth causes of action, respectively for discrimination based on actual and perceived disability. Disability is a prohibited basis for discrimination under Government Code § 12940, subd. (a), and is elsewhere defined to include, among other meanings “[b]eing regarded or treated by the employer . . . as having” a disability. (Gov. Code § 12926, subd. (m)(6).) Plaintiff may plead in the alternative that she was discriminated because she was actually disabled and perceived as such.

Nor are the twelfth through fourteenth causes of action duplicative, as each are based on different legal theories: the enforcement of a policy forbidding the reporting of unlawful conduct under Labor Code § 1102.5, subd. (a), retaliation for so reporting under Labor Code § 1102.5, subd. (b), and retaliation for refusing to participate in a violation of law under Labor Code § 1102.5, subd. (c).Defendant acknowledges that these are “three separate theories of liability,” yet contends they are demurrable because they rely on the “same underlying facts.” (Demurrer at p. 7.) But Plaintiff may plead different legal theories on the same underlying facts.**

Accordingly, the demurrer cannot be sustained on the grounds that the claims are duplicative.

2. Labor Code § 1102.5, subd. (a)

Labor Code § 1102.5 states as follows:

(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from 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.

Defendant argues that Plaintiff’s claim under this statute fails because it fails to specify the “rule, regulation, or policy” that Plaintiff claims Defendant made or enforced in violation of the statute. (Demurrer at pp. 8–9.) This is not an accurate characterization of the pleadings. The FAC alleges that Defendant adopted “unwritten policies, mandates, and rules” prohibiting employees “from disclosing Defendants’ violations of law.” (FAC ¶ 123.) It is elsewhere alleged that Defendants had a policy “prohibiting workplace whistleblowers as a group or class . . . from disclosing, reporting or opposing employer conduct reasonably believed to be in violation of law.” (FAC ¶ 127.) Although Defendant argues that these allegations do not identify the particular policies at issue, Plaintiff pleads that such a policy was “unwritten,” and was applied to her specifically based on her reporting of potential violations of immigration and employment law. Defendant identifies no authority requiring greater specificity of allegations.

The demurrer to the twelfth cause of action is therefore OVERRULED.

3. Defamation

“Defamation “involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” (Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970.) Defendant argues that the defamation claim contained in the FAC is ill-pleaded because Plaintiff pleads no facts supporting its publication to third parties, and further that the alleged defamatory communication — the allegedly false performance review — contains defamatory statements of opinion, rather than protected fact. (Demurrer at pp. 9–10.) Defendant’s argument with respect to the publication of the performance review provides no basis for demurrer. The FAC alleges that Defendant published the review to unnamed “third parties.” (FAC ¶ 185.) The court must accept this allegation as true on demurrer. (See Blank, supra, 39 Cal.3d at p. 318.)

However, Defendant is correct that the alleged defamatory materials constitute protected opinion. Statements in performance reviews will not constitute defamation “unless an employer's performance evaluation accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior.”(Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1153, quoting Jensen v. Hewlitt-Packard Co. (1993) 14 Cal.App.4th 958, 965.) Statements that an employee “had been ‘the subject of some third-party complaints,’ ‘was not carrying his weight,’ exhibited a ‘negative attitude in dealing with others,’ lacked “direction in his project activities’ and was ‘unwilling to take responsibility for the projects he oversaw,’” have been held insufficient to state a claim for defamation. (Gould, supra, 31 Cal.App.5th at p. 1153, quoting Jensen, supra, 14 Cal.App.4th at p. 970–971.) An accusation of “poor performance” has likewise been held insufficient. (Gould supra, 31 Cal.app.4th at p. 1154.) However, a statement that an employee “made a $100,000 mistake in estimating an MSI bid” was held to carry sufficient intimation of incompetence to be actionable. (Ibid.)

Here, Plaintiff alleges that the subject performance review contained allegations that they delayed “converting temporary employees,” that she was “slow” in completing projects assigned to her, and that there was “frustration” from coworkers in getting “timely responses” from Plaintiff. (FAC ¶ 185.) These allegations do not disclose criminal conduct, incompetence or dishonesty, but rather fit the mold of those found insufficient to constitute defamation in Jensen. The content of the publication is that Plaintiff struggled to complete her assignments in a timely matter, which is akin to statements of “poor performance,” “not carrying weight,” and “not taking responsibility” elsewhere found insufficient. Although Plaintiff in opposition cites other statements in the performance review as a basis for defamation, these statements relating to “discrepancies” in insurance bills and failure to update California Labor Law, are not cited in the FAC as a basis for the defamation claim, and are not pleaded to be false. (Opposition at pp. 14–15; FAC ¶ 185.)

The demurrer is therefore SUSTAINED as to the eighteenth cause of action for defamation, with leave to amend. The demurrer is otherwise OVERRULED.

II. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and 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., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendant here seeks to strike Plaintiff’s prayer for punitive damages on the grounds that insufficient facts are alleged to support the existence of malice or oppression, and further that no corporate authorization or ratification is alleged. (Motion at pp. 3–6.) Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294, subd. (a).) The terms are defined as:

1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Civ. Code § 3294, subd. (c).)

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713)

The FAC contains sufficient allegations to support the prayer for punitive damages. Plaintiff alleges that she was subject to retaliation and ultimately discharged because she disclosed Defendant’s violations of law, and was subject to a needless medical verification regime for her remote work disability accommodation, which Defendant ultimately cancelled despite her completion of all conditions. These facts, if proven, may support the existence of malice or oppression.

The FAC also alleges that the conduct was directed and authorized by Defendant’s officers and managing agents, in satisfaction of Civil Code § 3294, subd. (b). (FAC ¶ 7.)

The motion to strike is therefore DENIED.

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* Plaintiff argues in opposition that Defendant has failed to identify in its notice which causes of action are at issue. (Opposition at pp. 3–4.) This is incorrect, as a reading of the notice makes clear.

** Despite arguing that Plaintiff’s twelfth, thirteenth, and fourteenth causes of action are entirely duplicative, Defendant goes on to offer substantive arguments only against the twelfth cause of action, precisely on grounds particular to that subsection. (Demurrer at pp. 8–9.)