Judge: Mark A. Young, Case: 19SMCV01976, Date: 2022-10-12 Tentative Ruling

Case Number: 19SMCV01976    Hearing Date: October 12, 2022    Dept: M

CASE NAME:           Siegemund v. Le Lycee Francais De Los Angeles

CASE NO.:                19SMCV01976

MOTION:                  Demurrer to the Second Amended Complaint

HEARING DATE:   10/12/2022

BACKGROUND

On November 12, 2019, Plaintiff Karen Siegemund brought this wrongful termination complaint against her former employer, Defendant Le Lycee Francais de Los Angeles. The operative Second Amended Complaint (SAC) alleges three causes of action for (1) violation of Cal. Lab. Code §§ 1101 and 1102, (2) intentional infliction of emotional distress (IIED), and (3) violation of Business & Professions Code section 17200. The SAC generally alleges that the Lycee refused to renew her contract as a teacher because of her political activity and beliefs.

Legal Standard

            A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) 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. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)

            A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

            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. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

            “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

MEET AND CONFER/procedural issues

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration satisfies the requirement. (Szabo Decl. ¶¶ 4-6.)  

As a procedural matter, Defendant’s demurrer is 18 pages.  California Rules of Court, Rule 3.1113(d) explicitly states that “Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. California Rules of Court Rule 3.1113(e) required Plaintiff to “apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum.” Here, Defendant completely failed to do so. Consequently, California Rules of Court Rule 3.1113(g) requires that “A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (emphasis added). “A trial court has broad discretion under rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.)  Any future violations of these rules will result in the Court striking the entire filing. 

Analysis

Sham Pleading Doctrine

Defendant asserts that certain changes made from the First Amended Complaint (FAC) to the SAC violate the sham pleading doctrine. Defendant demurs and moves to strike the entire pleading on this basis. However, Defendant overstates the application of the sham pleading doctrine to the SAC. 

“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.)  “‘Generally, after an amended pleading has been filed, courts will disregard the original pleading. However, an exception to this rule is found . . . where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.’ Moreover, any inconsistencies with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations. [Citation.] Accordingly, a court is ‘not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.’ [Citation.]” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343.)

“Under the doctrine of truthful pleading, the courts will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts that are judicially noticed. False allegations of fact, inconsistent with annexed documentary exhibits [citation] or contrary to facts judicially noticed [citation], may be disregarded....” (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400, internal quotations omitted.)  For example, in Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, the plaintiff first alleged that the subject slip and fall occurred on a street adjacent to the defendant’s supermarket. (Id. at 384.) In an amended pleading, the plaintiff alleged that the slip and fall occurred on the defendant’s premises rather than on the street. The court found that this was to avoid demurrer on a premises liability theory. Absent a satisfactory explanation for the change, the trial court properly disregarded the amendment as a sham pleading. (Ibid.) 

Defendant fails to demonstrate how the newly alleged facts contradict the prior allegations or judicial admissions. The Court’s ruling on the previous demurrer made it clear that Plaintiff was to provide further facts regarding the Labor Code sections 1101 and 1102 violations, which form the gravamen of the case. Particularly, the Court noted that Plaintiff failed to allege “any particular policy, rule or regulation of Defendant,” or whether “Plaintiff associated with others for the advancement of particular beliefs and ideas” as required by section 1101. The amendments attempt to do so and are not inconsistent with the prior pleadings that relied on more generalized allegations. The Court therefore views the amendments as clarifications. For instance, the SAC now includes more specific information about the political activities Plaintiff participated in, and that Defendant allegedly targeted. (See SAC ¶ 43.) Defendant argues that this contradicts a law that a 501(c)(3) organization cannot engage in any political activity, such as carrying propaganda, influencing legislation, or promoting a political campaign. (26 USC § 501(c)(3).) This argument misses the mark. First, the SAC does not allege that the organization did any such thing. Moreover, a private individual’s “political activity” under section 1101 is distinct from, and more expansive than regulations affecting a 501(c)(3) organization’s activities.  The Court also concludes that its statements in the prior demurrer ruling regarding the terms “political view” and “political activity” were too strict as to interchangeable nature of these terms.   

Labor Code Violations

            Labor Code section 1101 states that “No employer shall make, adopt, or enforce any rule, regulation, or policy: [¶] (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. [¶] (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.”  Labor Code section 1102 states that “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”

The Supreme Court has recognized the political character of activities such as participation in litigation (N.A.A.C.P. v. Button (1963) 371 U.S. 415, 429), wearing symbolic attire (Tinker v. Des Moines School Dist. (1969) 393 U.S. 503), and association with others for the advancement of beliefs and ideas (N.A.A.C.P. v. Alabama (1958) 357 U.S. 449).  These sections serve to protect “the fundamental right of employees in general to engage in political activity without interference by employers.” (See Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 487.) In Gay Law Students Assn., the complaint asserted that PT&T would “not hire anyone referred to them by plaintiff Society for Individual Rights, an organization active in promoting the rights of homosexuals to equal employment opportunities. These allegations can reasonably be construed as charging that PT&T discriminates in particular against persons who identify themselves as homosexual, who defend homosexuality, or who are identified with activist homosexual organizations. So construed, the allegations charge that PT&T has adopted a ‘policy ... tending to control or direct the political activities or affiliations of employees’ in violation of section 1101, and has ‘attempt [ed] to coerce or influence ... employees ... to ... refrain from adopting [a] particular course or line of political ... activity’ in violation of section 1102. (Id., at 488 [superseded by statute on other grounds].)

The SAC alleges that Defendant adopted an implicit policy following the 2016 election, which promoted faculty espousing liberal political causes, while prohibiting conservative faculty from engaging in protected political activity both on-campus and off campus, as evidenced by Plaintiff’s termination. (SAC ¶¶ 25, 67.)  For instance, the SAC alleges that Plaintiff received an e-mail from Kabbaz, stating that Lycee was not going to renew her teaching contract due to complaints about Plaintiff’s “widely publicized” political views. (SAC ¶40.) Kabbaz specifically referred to Plaintiff’s activities espousing conservative causes and candidates such as her association with the American Freedom Alliance, a 501(c)(3) organization that promotes advancement of free speech, its views on gun control, and governmental attacks on religious institutions. (SAC ¶¶ 41-43, 75.) This is political activity as defined under caselaw. Thus, the SAC alleges that Defendant adopted a policy which would tend to control or direct the political activities or affiliations of its employees, in violation of Labor Code section 1101. The SAC also alleges that Defendant attempted to coerce or influence employees such as Plaintiff from refraining from adopting a particular line of political activity, as shown by the non-renewal of employment and Kabbaz’s comments, in violation of section 1102.

Defendant also asserts that section 98.6(c) lets an employer force an applicant for a nonunion position to sign a “contract” forbidding conduct that: (1) “directly conflicts” with the employer’s “essential enterprise-related interests”; and (2) “materially and substantially disrupts” the employer’s operations. (Lab. Code §98.6(c)(2)(A).) However, Defendant does not demonstrate that this section would apply to the case at hand. There are no allegations that show that such a contract was signed, or that Plaintiff engaged in any conduct that materially interfered with any operations.

Accordingly, Defendant’s demurrer is OVERRULED on this basis.

IIED

Defendant asserts that the IIED claim fails because the SAC does not allege outrageous conduct or severe emotional distress, and is barred by the Workers’ Compensation Exclusivity Rule.

The elements for a cause of action for 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) an actual and proximate causal link between the tortious conduct and the emotional distress.  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)  A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id. at 1051.) Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Ibid.)

Generally, the question of whether the conduct is in fact outrageous is a question of fact to be determined beyond the pleading stage. (So v. Shin (2013) 212 Cal.App.4th 652.) Nonetheless, “[w]hile those cases say that it is ‘usually’ a question of fact, several cases have dismissed intentional infliction of emotional distress claims on demurrer, concluding that the facts alleged did not amount to outrageous conduct as a matter of law.” (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 355-356.)

Here, the Court is not convinced that Plaintiff has pled sufficient facts, as a matter of law, to support the conclusion of outrageous conduct. Plaintiff cites the following conduct: 1) unlawfully terminating her employment in violation of the law; 2) implemented implicit policies and/or regulations which tended to control and/or direct Plaintiff’s political affiliations and political activities; 3) allowed other faculty members, through an implicit rule or policy, to disparage Plaintiff’s political activities and affiliation to Plaintiff, Lycee’s students, and to other faculty members without fear of disciplinary action; and 4) intentionally delayed informing Plaintiff that her contract would not be renewed so that Plaintiff would have a nearly impossible to find a teaching position for the upcoming school year. (SAC ¶¶ 81-82.) The SAC clarifies that this was a “coordinate[d] attempt to bully Plaintiff for her political views. Faculty members screamed at Plaintiff for her political views, without provocation. Moreover, faculty members disparaged Plaintiff in front of their students, some of whom were also Plaintiff’s students, in an intention act of harassment, and without fear of disciplinary action.” (Id.)

Defendant’s decision to not renew Plaintiff’s contract, i.e., Plaintiff’s termination, is not actionable under the IIED tort as a matter of law. These are personnel management actions, which cannot support a claim. Courts recognize that “[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.” (Janken v. GM Hughes Elecs. (1996) 46 Cal.App.4th 55, 80 [“If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.”].) Managing personnel is not outrageous conduct beyond the bounds of human decency; rather, it is conduct essential to the welfare and prosperity of society. (Id.)

As to the alleged bullying, Plaintiff alleges that on “numerous occasions” faculty have loudly insulted conservative voters, candidates and viewpoints in front of Plaintiff. For instance, faculty members loudly “berated” Plaintiff for her political views, and another openly “mocked” Plaintiff’s viewpoints in front of students. (SAC ¶¶ 63-66.) These allegations provide insufficient details regarding the purported harassment. Plaintiff only states that she was mocked and berated, and that faculty generally expressed disdain for conservative viewpoints. This conduct is not alleged to be so severe as to arise above mere insults, indignities, annoyances, and other trivialities not covered by the IIED tort. (See Hughes, supra, 46 Cal.4th at 1050-1051.)

Plaintiff also only pleads conclusions regarding her “severe” emotional distress. “Defendants’ conduct, as discussed herein, was so outrageous that it caused humiliation, shame, shock, anxiety, and severe emotional distress to Plaintiff.” (SAC ¶ 83.) Plaintiff offers no allegations of fact regarding her shock, anxiety, distress, etc.

Thus, the demurrer is properly sustained against this cause of action.

IIED & WCE

The Workers Compensation Act (“WCA”) governs compensation to employees for injuries incurred in the course and scope of their employment. (See Cal. Const., art. XIV, § 4; Cal. Labor Code, § 3201; Charles J. Vacanti, M.D., Inc. v. State Compensation Insurance Fund (2001) 24 Cal.4th 800, 810.)  Compensation under the WCA is an employee’s exclusive remedy against an employer for injuries sustained out of and in the course of employment. (See Cal. Labor Code, §§ 3600(a), 3602(a).) Whether exclusivity bars a cause of action against an employer depends on whether the alleged injury falls within the scope of the exclusive remedy provisions. (Charles J. Vacanti, M.D., Inc., supra, 24 Cal.4th at 811.) The exclusive remedy provisions apply only in cases of industrial personal injury or death. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) Causes of action predicated upon an injury that is collateral to or derivative of an injury compensable by the exclusive remedies of the WCA may be subject to the exclusivity bar. (Cole v. Fair Oaks Fire Protection District (1987) 43 Cal.3d 148, 161-62.)  “While common law tort claims are generally preempted [citation], claims for separate injuries under distinct statutory schemes are not.” (Veguez v. Governing Board of Long Beach Unified School District (2005) 127 Cal.App.4th 406, 418.)  

Generally, emotional distress claims are barred if the conduct upon which the claims are based is a normal risk of the employment relationship. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492.) However, a claim for distress arising out of employment is “not barred where the distress is engendered by an employer's illegal discrimination practices” since neither “discrimination nor harassment is a normal incident of employment.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288; see Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 756 [emotional distress resulting from employer's defamation and harassment].) Courts have held that IIED claims in discrimination, retaliation, and harassment cases are not barred by WCA. (See e.g. Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 946 [plaintiff can pursue IIED claim in employment context where conduct at issue violates FEHA and the IIED claim is properly stated]; Light v. California Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, 101 [emotional distress arising out of discrimination and retaliation in violation of FEHA].) “The Legislature … did not intend that an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices.” (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 352.)

On one hand, these allegations do sound in harassment and discrimination. If Plaintiff were discriminated and harassed based on a protected characteristic (see Gov. Code § 12940(a)), the alleged behavior might fall outside of the incident of employment. On the other hand, the facts alleged do not suggest such pervasive harassment that it interfered with Plaintiff’s ability to work. Further, Plaintiff does not provide any authority that discrimination or harassment by co-workers based on political views would be analogous to the protected class-based discrimination faced by FEHA complainants. Labor Code sections 1101 and 1102 do not necessarily embody the same public policy as FEHA. Thus, the Court would find it difficult to extend protections intended to cover FEHA-protected characteristics to these circumstances.

Accordingly, Defendant’s demurrer is SUSTAINED. Leave to amend will only be granted if plaintiff demonstrates a reasonable probability of amendment to avoid the issues discussed infra.

Motion to strike - Certain Remedies

Defendant moves to strike the requests that Defendant “reinstate Plaintiff” (Prayer #2) and for “future loss of earnings, bonuses and benefits” (Prayer #5). Defendant reasons that these prayers were available to Plaintiff under her wrongful termination action, but that action was removed. Defendant does not demonstrate that these damages or requests would not be available to Plaintiff under the other theories. Thus, Defendant does not meet its initial burden of persuasion on this point.

Attorney Fees

Defendant moves to strike the request for “attorneys’ fees and costs.” Plaintiffs seek attorneys’ fees pursuant to Code of Civil Procedure section 1021.5, which permits an award to a “successful party . . . in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit . . . has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” (Emphasis added.) The issue is committed to the trial court’s discretion. (Flannery v. California Highway Patrol, (1998) 61 Cal.App.4th 629, 634.)

Plaintiff fails to plead facts which support the argument that there would be a significant benefit conferred to the general public or a “large class” of persons. Plaintiff contends that faculty employed at the School who wish to participate in political activity supporting non-liberal causes, are concerned about disclosing their support of non-liberal candidates, or fear retaliation for engaging in protected political activity. Moreover, future faculty and employees of the School would benefit as the School would either be enjoined and/or otherwise prohibited from continuing to enforce policies which direct, control, or tend to direct and/or control a person’s political affiliations and/or candidacies. These facts are not present on the record, and the party seeking attorney fees bears the burden of establishing that its litigation costs transcend personal pecuniary interests. (Save Open Space Santa Monica Mountains v. Superior Court, (2000) 84 Cal.App.4th 235, 247; see Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors, (2000) 79 Cal.App.4th 505, 515 [this is a “realistic and practical comparison of the litigant's personal interest with the cost of suit”].)  Based on the current SAC, the Court cannot reasonably infer that such a benefit would be conferred. Plaintiff, a private school teacher, seeks damages and reinstatement. Plaintiff requests “injunctive relief prohibiting the continuation of such business acts and practices and requiring Plaintiff’s reinstatement,” without mention of the number of faculty that might be affected by such an injunction. More facts are required regarding the benefit conferred, the class of persons involved, and the necessity/burden of enforcement compared to Plaintiff’s pecuniary interest in this suit.

Accordingly, Defendant’s motion is GRANTED with leave to amend as to attorneys’ fees.

Emotional Distress

Defendant moves to strike damages claims of “severe emotional distress, humiliation, grief, nervousness, worry, sadness, anger, frustration, embarrassment, helplessness, stress, and related emotional and mental anguish in amount to be determined by the jury at the trial of this matter.” This portion of the motion is moot in light of the Court’s ruling as to the IIED cause of action.

Punitive Damages

Plaintiff has not pled sufficient facts to support a claim of punitive damages under Civil Code section 3294.  In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code § 3294 (a).) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, fn. omitted.) Section 3294 defines malice as conduct “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.” (Id.) Despicable is a powerful term used to describe circumstances that are “base,” “vile,” or “contemptible.” (Coll. Hosp. v. Superior Ct. (1994) 8 Cal.4th 704, 726.) The statute “plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs' interests. The additional component of “despicable conduct” must be found.” (Id.)

Plaintiff’s allegations concerning Defendants’ actions do not rise to the level of despicable conduct for malice. Plaintiff argues that the “intentional” delay in giving notice of non-renewal was “intended” to harm plaintiff and thus support a claim by itself.  Plaintiff alleges that Defendant “committed the acts herein despicably, maliciously, fraudulently, and oppressively, with the wrongful intention of injuring Plaintiff, from an improper and evil motive amounting to malice, and in conscious disregard of the rights of Plaintiff.” (SAC ¶79.) Such a conclusion of intentionality is insufficient. The SAC further alleges that Defendant “intentionally delayed informing Plaintiff that her contract would not be renewed so that Plaintiff would have a nearly impossible to find a teaching position for the upcoming school year. Given the severely late notice, Plaintiff was unable to find a position for the upcoming school year for that reason.” (SAC ¶ 82.) However, there is no cause of action providing liability for this act. Notably, this conduct does not violate section 1101/1102. (See SAC ¶¶70-76.) Thus, this conduct is disconnected from the action at hand. Otherwise, the Labor Code claims do not specifically allege conduct “intended” to harm Plaintiff, or “outrageous” conduct required for a finding of malice. (Id.)

Accordingly, Defendants’ motion to strike is GRANTED. Leave to amend is largely dependent on the showing regarding the IIED claim.