Judge: Maurice A. Leiter, Case: 22STCV06296, Date: 2022-10-17 Tentative Ruling

Case Number: 22STCV06296    Hearing Date: October 17, 2022    Dept: 54

Hearing Date: October 17, 2022

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint and Motion to Strike

Moving Party: Defendants Terrance Selb and American Tax Solutions, Inc.

Responding Party: Plaintiff Patrick Melville

T/R:     DEFENDANTS’ DEMURRER TO THE THIRD, EIGHTH, NINTH, TENTH AND TWELFTH CAUSES OF ACTION IS OVERRULED.

DEFENDANTS’ DEMURRER TO THE REMAINING CAUSES OF ACTION IS SUSTAINED WITH LEAVE TO AMEND.

THE MOTION TO STRIKE IS DENIED.

PLAINTIFF TO FILE AND SERVE A FIRST AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. DEFENDANTS TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On February 18, 2022, Plaintiff sued Defendants, asserting twelve causes of action for breach of contract, wrongful termination, violation of FEHA, concealment, assault, and whistleblower retaliation. Plaintiff alleges he was subjected to an illegal and unsafe workplace. Plaintiff alleges he was terminated for complaining about the workplace and because of his age.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. First and Second Causes of Action for Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) “A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.) 

Defendants assert that Plaintiff has failed to allege a contract. Plaintiff alleges, “Plaintiff was to be employed by Defendant in a safe work environment, and that Defendant's promises were terms of a contract between Plaintiff and Defendant.” (Compl. ¶ 18.) Plaintiff also alleges “[p]ursuant to said employment agreement, Defendant EMPLOYER expressly promised Plaintiff’s employment would continue as long as he performed satisfactorily and obeyed all reasonable and lawful directions of his employment.” (Compl. ¶ 20.)

These “terms” are vague, and Plaintiff presents no facts supporting formation of a contract.

The demurrer to the first and second causes of action is SUSTAINED.

B. Third Cause of Action for 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 (quoting Yau v. Allen (2014) 229 Cal.App.4th 144, 154).)

Defendants demur to the third cause of action on the ground that it is uncertain. Plaintiff alleges he was terminated for reporting that a co-worker had assaulted him, and for reporting that the company was wrongfully upselling their services to senior citizens. This is sufficient to state a cause of action for wrongful termination.

The demurrer to the third cause of action is OVERRULED.

C. Fourth Cause of Action for Violation of the California Constitution

            Defendants assert that Plaintiff’s claim for violation of the California Constitution is uncertain. Plaintiff alleges that Defendants have violated the Constitution but fails to allege facts showing a violation.

            The demurrer to the fourth cause of action is SUSTAINED.

D. Fifth Cause of Action for Violation of FEHA

            Defendants demur to the fifth cause of action on the ground that Plaintiff has failed to allege sufficient facts. It is unclear what this cause of action is seeking redress for. Plaintiff asserts he was subjected to discrimination, retaliation, failure to engage in the interactive process, and hostile work environment. Plaintiff does not set forth facts supporting these assertions.

            The demurrer to the fifth cause of action is SUSTAINED.

E. Sixth Cause of Action for UCL Violations

            Defendants argue that the sixth cause of action fails because it is unclear what conduct Plaintiff believes violated the UCL. Plaintiff’s allegations in support of this cause of action are vague and conclusory.

            The demurrer to the sixth cause of action is SUSTAINED.

F. Seventh Cause of Action for Concealment

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)  

Plaintiff alleges, “Defendants concealed that the workplace was unsafe and that the services he was selling were illusory.” This is insufficiently specific to support a claim for fraud.

The demurrer to the seventh cause of action is SUSTAINED.

G. Eighth Cause of Action for Intentional Infliction of Emotional Distress

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)  

Defendants demur to the eighth cause of action on the ground that Plaintiff has failed to allege Defendants engaged in extreme and outrage conduct. Plaintiff alleges his co-worker screamed at him, and instead of investigating Plaintiff’s claims Defendants terminated Plaintiff. This supports a claim for IIED.

The demurrer to the eighth cause of action is OVERRULED.

H. Ninth Cause of Action for Negligence

“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm occurs. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902; Doe, supra, 50 Cal.App.4th at 1054.)   

Plaintiff alleges Defendant knew or should have known that the co-worker who assaulted him routinely exhibited dangerous conduct and continued to employee him. This is sufficient to state a cause of action for negligent hiring, supervising, and retention.

The demurrer to the ninth cause of action is OVERRULED.

G. Tenth Cause of Action for Assault

            Defendant demurs to the tenth cause of action on the ground that it is duplicative of the ninth. The Court declines to sustain the demurrer on these grounds. Plaintiff may allege alternative theories of liability.

            The demurrer to the tenth cause of action is OVERRULED.

H. Eleventh Cause of Action for Violations of Unruh

            Plaintiff alleges Defendants have violated the Unruh Act by denying him constitutional rights. As stated with respect to the fourth and fifth causes of action, Plaintiff has failed to identify facts supporting a claim for civil rights violations.

            The demurrer to the eleventh cause of action is SUSTAINED.

I. Twelfth Cause of Action for Whistleblower Retaliation

            Plaintiff alleges Defendants terminated him for reporting his co-worker’s illegal conduct. This is sufficient to maintain a cause of action for whistleblower retaliation.

            The demurrer to the twelfth cause of action is OVERRULED.

J. Motion to Strike

“Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP 435(b). “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 asserted 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." (CCP 436.)

Punitive damages are available in noncontract cases where the defendant is guilty of “oppression, fraud, or malice.”  (Civ. Code § 3294(a).)  Conclusory allegations are insufficient to support a claim for punitive damages.  (See, e.g., Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 620.)  However, “the stricken language must be read not in isolation, but in the context of the facts alleged in the rest of petitioner's complaint.”  (Perkins v. Superior Court (1981) 117 Cal. App. 3d 1, 6.)

Defendants move to strike Plaintiff’s prayers for punitive damages, attorney’s fees, and civil penalties. Defendants assert that Plaintiff has failed to allege oppression, fraud, or malice. But Plaintiff alleges his co-worker assaulted him and Defendants terminated his employment for reporting it. This supports a claim for punitive damages.

The Court declines to strike the request for attorney’s fees; a basis for them may arise later in the action. The request to strike civil penalties is moot because the Court sustained the demurrer to UCL violation.

Defendants’ motion to strike is DENIED.