Judge: Mark A. Young, Case: 23SMCV04017, Date: 2024-07-17 Tentative Ruling
Case Number: 23SMCV04017 Hearing Date: July 17, 2024 Dept: M
CASE NAME: Jones v. GSG Protective
Services, et al.
CASE NO.: 23SMCV04017
MOTION: Demurrer to the
Complaint
HEARING DATE: 7/17/2024
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.)
“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.)
ANALYSIS
Defendant
GSG Protective Services CA Inc demurs to Plaintiff Deonsai Jones’s Complaint.
Defamation
Plaintiff’s first claim is for defamation. The elements of a
defamation claim are (1) a publication that is (2) false, (3) defamatory, (4)
unprivileged, and (5) has a natural tendency to injure or cause special damage.
(Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.) A plaintiff “must
set forth ‘either the specific words or the substance of’ the allegedly
defamatory statements.” (Comstock v. Aber (2012) 212 Cal.App.4th 931,
948.) “‘The chief reason appears to be that the court must determine, as a
question of law, whether the defamatory matter is on its face or capable of the
defamatory meaning attributed to it by the innuendo. Hence, the complaint
should set the matter out verbatim, either in the body or as an attached
exhibit.’” (Id.; see Medical Marijuana, Inc. v. ProjectCBD.com
(2020) 46 Cal.App.5th 869, 893 [libel must be specifically pled, whereas
slander may be “charged by alleging the substance of the defamatory statement”].)
Plaintiff
fails to plead the defamatory statements with sufficient particularity and does
not allege a publication to a third party. Plaintiff cites two generalized
statements that Defendant’s managers “discredit[ed] [Plaintiff’s] hard work
ethic and dedication by creating an inaccurate performance sheet of his job
performance” and that Defendant “slandered Plaintiff’s reputation by claiming he
was not subordinate, when he was actually very compliant and willing to receive
orders from [Defendant’s] management and staff members to help progress the
company.” (Compl., ¶ 1.) The allegations that Defendant “slandered,” “claimed,”
and “discredited” are legal conclusions. Plaintiff does not allege the substance
of the “inaccurate performance sheet.” Plaintiff does not otherwise explain how
the inaccurate performance sheet tended to injure, or whether the inaccurate
performance sheet caused injuries. Thus, the claim is not well-stated under the
above pleading standards.
Accordingly,
the demurrer is SUSTAINED with leave to amend as to the defamation claim.
Wrongful
Termination
“The elements of a claim for wrongful discharge in violation of
public policy are (1) an employer-employee relationship, (2) the employer
terminated the plaintiff’s employment, (3) the termination was substantially
motivated by a violation of public policy, and (4) the discharge caused the
plaintiff harm.” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015)
239 Cal.App.4th 1224, 1234-35, citations and quotations omitted.) “A discharge
is actionable as against public policy if it violates a policy that is: ‘(1)
delineated in either constitutional or statutory provisions; (2) ‘public’ in the
sense that it ‘inures to the benefit of the public’ rather than serving merely
the interests of the individual; (3) well established at the time of discharge;
and (4) ‘substantial’ and ‘fundamental.’” (Id. at 1238-39.) For
example, courts have recognized common law
relief where the discharge was the result of a plaintiff’s (1) refusal to
violate a statute; (2) performance of a statutory obligation; (3) exercise of a
statutory right; or (4) report of a statutory violation. (Green v. Ralee
Engineering Co. (1998) 19 Cal.4th 66, 76.)
Plaintiff
alleges that Defendant “created a hostile work environment . . . by not
allowing him to conduct his nightly patrols as stated in the job description
and responsibilities. Furthermore, [Defendant’s] manager did not allow [Plaintiff]
to maintain proper hydration and nutrition after performing his
responsibilities. [Plaintiff] continued to call from the command center to the
plaintiff's post where he and another GSG coworker were stationed. [Defendant]
had a very unprofessional and aggressive tone about two chairs that were
present before [Plaintiff] arrived at the post; in addition, a granola bar.
Furthermore, [Defendant] continued to change the meal/break time without proper
notification to the plaintiff before his work shift.” (Compl., ¶ 2.)
Simply
put, Plaintiff does not allege any termination. This defect alone requires the
Court to sustain the demurrer. Further, Plaintiff does not allege that his
termination, if any, was substantially motivated
by a violation of public policy. Plaintiff does not explain the
well-established, substantial, and fundamental public policy which motivated
his termination. The Court is unaware of any public policies concerning the
manner in which Defendant request that Plaintiff conduct “nightly patrols” or using
“unprofessional” and “aggressive tone[s]” while managing Plaintiff would
violate public policy. The complaint does not otherwise state facts
showing Defendant changed his mealtimes in violation of any established public
policy or statute.
Accordingly, the demurrer is SUSTAINED with leave to amend as to
the wrongful termination claim.
Emotional
Distress
The Court interprets this cause of action
as either a claim for intentional or negligent infliction of emotional
distress. 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.) California Courts have recognized 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.”].)
California courts have recognized that negligent
infliction of emotional distress is not an independent tort, but the tort of
negligence, such that the traditional elements of duty, breach of duty,
causation and damages apply. (Spates v. Dameron Hospital Association
(2003) 114 Cal.App.4th 208, 213.) With this principle in mind, courts have
recognized two classifications for NIED claims: bystander and direct victim. (Id.)
To make a direct victim claim, the emotional distress suffered by the plaintiff
must be a foreseeable consequence of the conduct directed at the plaintiff. (Molien
v. Kaiser Foundation Hospital (1980) 27 Cal.3d 916, 930.) “[T]here is
no duty to avoid causing emotional distress to another, and that damages for
emotional distress are recoverable only if the defendant has breached some
other duty to the plaintiff.” (Potter v. Firestone Tire & Rubber Co.
(1993) 6 Cal.4th 965, 984.) “[U]nless the defendant has assumed a duty to
plaintiff in which the emotional condition of the plaintiff is an object,
recovery is available only if the emotional distress arises out of the
defendant’s breach of some other legal duty and the emotional distress is
proximately caused by that breach of duty.” (Id. at 985.) “Even
then, with rare exceptions, a breach of the duty must threaten physical injury,
not simply damage to property or financial interests.” (Id.)
Plaintiff alleges that he was given
an “unhealthy workload increase” during his employment with Defendant, where he
was “asked to patrol two very large zones consisting of three floors every hour
in addition to conducting a CCTV monitoring every hour. Parking instructions
changed rapidly causing the plaintiff to walk an extra five minutes to his
respective post. The plaintiff was asked to stand outside in a condition that
continuously flared his allergies to where it became overwhelming. (Compl.,
¶3.)
Plaintiff
does not allege the existence of a duty to support a claim for direct NIED.
Plaintiff has pled a typical employer-employee relationship. Plaintiff
provides no specific facts showing that Defendant assumed a duty regarding
Plaintiff’s emotional condition. Moreover, the pled breaches do not establish
any physical injury. Plaintiff therefore fails to establish a cause of action
for NIED.
Plaintiff
does not plead any “extreme and outrageous conduct” by
Defendant. Plaintiff also fails to allege any intent on the part of Defendant,
or its reckless disregard for the probability of causing severe or extreme emotional
distress. As pled, Plaintiff only alleges personnel management decisions which
do not rise to the level of extreme conduct necessary to establish a claim.
Considering the above discussion, the
Court does not find a reasonable probability of successful amendment. Accordingly,
Defendant’s demurrer is SUSTAINED
without leave to amend as to the emotional distress claim.
Plaintiff has 20 days to file an
amended complaint consistent with this order.