Judge: Mel Red Recana, Case: 22STCV06229, Date: 2024-04-11 Tentative Ruling

Case Number: 22STCV06229    Hearing Date: April 11, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing date:              April 11, 2024

Moving Parties:          Defendant William Rawlings

Responding Party:      Plaintiff Boyd Horan

(1)   Defendant William Rawlings’ Demurrer to First Amended Complaint and Motion to Strike

The court has considered the moving, opposition, and reply papers.

The court SUSTAINS William Rawlings’ demurrer to the third and sixth causes of action of the First Amended Complaint, with 20 days leave to amend.

The court SUSTAINS William Rawlings’ demurrer to the fifth cause of action of the First Amended Complaint without leave to amend.

The Motion to Strike is MOOT because the court sustained the demurrer with leave to amend as to the third and sixth causes of action and sustained without leave to amend as to the fifth cause of action.

Background

            Plaintiff Boyd Horan filed this action on February 18, 2022 against defendants City of Artesia, William Rawlings, Tony Lima, Monica Manalo, Ali Taj, and Does 1 through 10, alleging causes of action for (1) Violation of Cal. Labor Code §1102.5; (2) Retaliation In Violation of FEHA (Cal. Gov’t Code §12940, et seq.); and (3) Intentional Infliction of Emotional Distress. On April 8, 2022, defendants Tony Lima, Monica Manalo and Ali Taj filed a demurrer to the Complaint which was rendered moot by the filing of a First Amended Complaint. On February 17, 2023, Plaintiff filed a First Amended Complaint (“FAC”). The FAC is the operative complaint and alleges six causes of action for (1) Violation of Cal. Labor Code §1102.5; (2) Retaliation In Violation of FEHA (Cal. Gov’t Code §12940, et seq.); (3) Hostile Work Environment; (4) Failure to Prevent Harassment; (5) Negligent Hiring; and (6) Intentional Infliction of Emotional Distress.  This dispute arises out of Plaintiff’s alleged wrongful termination. (Compl., ¶¶ 8-29.)

            On April 20, 2023, defendant William Rawlings (“Defendant”) filed a demurrer to the FAC. Plaintiff filed an opposition on November 30, 2023. Defendant filed a reply on December 6, 2023.

Legal Standard

When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) “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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Discussion

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.  (See Code of Civ. Proc. § 430.41.) 

Here, the parties declare that they met and conferred via telephone on April 12, 2023. (Williams Decl. ¶¶ 3-5.) Plaintiff’s counsel provides evidence showing that the parties met and conferred by telephone. (Id.; Ex. A and Ex. B.) Therefore, the meet and confer requirement was satisfied.

Judicial Notice

Under Evidence Code section 452, the court may take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy,” and must take judicial notice of such facts and propositions if a party so requests and provides sufficient notice to the adverse party. (Evid. Code, §§ 452, subd. (h) & 453.)

However, the court does not “take judicial notice of the truth of factual matters asserted therein.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.) “To go beyond notice of the existence of a document to an interpretation of its meaning constitutes improper consideration of evidentiary matters.” (Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038.)

Here, Defendant requests the court take judicial notice of the following documents:

Attached as Exhibit “C” to the Declaration of Warren M. Williams, Plaintiff’s Claim for Money Damages, dated October 7, 2021.

Attached as Exhibit “D” to the Declaration of Warren M. Williams, City of Artesia’s Claim Rejection Notice, dated October 28, 2022.

The court DENIES the request as immaterial to the instant motion.

Demurrer

William Rawlings demurs to the third, fifth, and sixth causes of action of the First Amended Complaint on the grounds that they fail to state facts sufficient to constitute a cause of action. (CCP §§ 430.10(e).)

Third Cause of Action – Hostile Work Environment

Defendant argues that Plaintiff fails to state facts sufficient to state a cause of action for hostile work environment because he does not identify any protected characteristic or harassing conduct. (Dem. p. 13.) In opposition, Plaintiff argues that the fact that he is not a member of a protected class does not bar his ability to assert the hostile work environment cause of action. (Opp. p. 4.) In reply, Defendant argues that Plaintiff concedes that he is not a member of a protected class and was not personally subjected to harassing comments or conduct because of his association with or advocacy on behalf of others which results in the failure of the cause of action. (Reply p.5.)

The elements of a cause of action for harassment based on hostile work environment are: “(1) he was a member of a protected class; (2) he was subjected to unwelcome racial [or other protected status] harassment; (3) the harassment was based on race [or other protected status]; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) [Defendant] is liable for the harassment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)

The FAC alleges “while he was employed by the City, he was subjected to harassing conduct that was severe or pervasive.” (FAC ¶ 48.) The FAC further alleges “Mr. Horan also relayed the numerous complaints on behalf of City employees against Rawlings for gender discrimination and harassment, pregnancy discrimination, unlawful retaliation, and instructing employees to engage in unlawful conduct on behalf of the City of Artesia.” (FAC ¶ 12.) The FAC further alleges “Plaintiff further alleges upon information and belief that any reasonable person in Plaintiff’s circumstance would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive.” (FAC ¶ 49.)

Plaintiff’s facts remain meager. The allegations, even when read in the light most favorable to Plaintiff and drawing every possible reasonable inference therefrom, do not plead a “concerted pattern” of harassment. (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 610.) Further, these facts fail to show that Plaintiff was “specifically targeted [because he] associated with and advocated for [a member of a protected class] . . .” [citations omitted.] (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 878.)

The Thompson v. City of Monrovia case is instructive. In Thompson v. City of Monrovia, appellant Thompson was a white police officer who sued the respondent police department for harassment and hostile work environment arising from offensive remarks and behavior directed at an African American colleague. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 863.) The Court of Appeal reasoned that “a plaintiff like Thompson, who is not within the protected class, may satisfy the “protected class” requirement “based on [his] association with or advocacy on behalf of protected employees.” (Id. at 876-877.) The Court of Appeal further reasoned that “if Thompson produced evidence that he was personally “subjected to unwelcome racial comments as a result of [his] association with or advocacy for protected employees,” he would satisfy the second and third requirements (that he was subjected to unwelcome racial harassment and the harassment was based on race).” (Id. at 878.)

 “To establish the fourth element—that the harassment created a hostile work environment—Thompson “ ‘must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee … .’ ” (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at pp. 130–131.) Harassment, which may be verbal, physical, or visual and “communicates an offensive message to the harassed employee” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706), “ ‘cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.’ ” (Aguilar, at p. 131.) Whether the harassment  is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive environment “must be assessed from the ‘perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.’” [citation omitted.] (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 877.)

The instant cause of action fails for the same reasons it did in Thompson. Here, Plaintiff alleged that he suffered harassment by Defendant Rawlings in retaliation for his advocating for the rights of the employees in those protected classes that were too afraid to make the reports themselves. (FAC ¶ 12.) Just as the Court of Appeal in Thompson found that appellant failed to meet any of these elements because “he has not produced evidence that he was subjected to harassing comments or conduct because of his association with or advocacy on behalf of African Americans.” (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 878.) Similarly, here, Plaintiff’s allegations are conclusory and fail to produce any evidence showing that he was subjected to the harassing comments or conduct. Plaintiff’s reliance on Pantoja v. Anton is misguided because the facts are distinguishable as plaintiff was a member of a protected class rather than an advocate. (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 93.)

The determination of whether Defendant’s actions were personnel decisions thus requires determinations beyond the scope of this demurrer such that the demurrer cannot be sustained on this ground. Therefore, Defendant’s reliance on Jones v. The Lodge at Torrey Pines P'ship and Plaintiff’s reliance on Pollock v. Tri-Modal Distribution Services, Inc. are immaterial to the instant motion. (Jones v. The Lodge at Torrey Pines P'ship (2008) 42 Cal. 4th 1158, 1167-68; Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918.)

Nevertheless, the FAC allegations are conclusory, and therefore the court will sustain the demurrer as to this cause of action for failure to provide sufficient facts.

The court is not yet persuaded that there is no reasonable possibility that Plaintiff can cure the defect identified above.  Because “[l]eave to amend is liberally allowed,” the court will grant Plaintiff leave to file a Second Amended Complaint.  (See, e.g., Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344, 1348.) Accordingly, the demurrer is sustained with leave to amend as to the third cause of action.  The court grants Plaintiff 20 days leave to amend.

Fifth Cause of Action – Negligent Hiring

Plaintiff concedes that the demurrer to the fifth cause of action for negligent hiring has merit and, therefore, withdraws this cause of action. (Williams Decl. ¶¶ 5-6; Ex. B.)

The court therefore SUSTAINS Defendant’s demurrer to the fifth cause of action, WITHOUT LEAVE AMEND.

Sixth Cause of Action – Intentional Infliction of Emotional Distress [Mislabeled as Seventh Cause of Action on FAC]

Defendant argues that Plaintiff fails to allege facts sufficient to state a cause of action for intentional infliction of emotional distress because Plaintiff’s government claim does not include this cause of action and is therefore barred. (Dem. p. 12.) Further, the intentional infliction of emotional distress claims against supervisors arising from wrongful termination in violation of public policy are barred by Miklosy and the Worker’s Compensation Exclusive Remedy. (Id.) Moreover, Plaintiff has not alleged extreme and outrageous conduct. (Id. at p.13.) In opposition, Plaintiff argues that Defendant’s arguments are misguided because the Workers Compensation Exclusivity Doctrine does not bar a claim that arises outside of an employee-employer relationship. (Opp. p.8.)   Further the government claim is not required for claims outside of the scope of employment. (Id.) Additionally, Plaintiff provides examples of the alleged extreme and outrageous conduct. (Id. at p. 10.)

To state a claim for intentional infliction of emotional distress, a plaintiff must allege “(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 suffered severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc., (2019) 39 Cal.App.5th 994, 1007).

The FAC alleges “[t]he conduct of the City, Rawlings, Manalo, Taj, and Lima was outrageous and outside the normal scope of the employment relationship. Defendants, and each of them, knew that their conduct would result in plaintiff’s severe emotional distress, and said conduct was perpetrated by defendants, and each of them, with the intent to inflict, or with reckless disregard of the probability of inflicting humiliation, mental anguish, and severe emotional distress upon plaintiff.” (FAC ¶ 71.) The FAC also alleges “Mr. Horan learned that Rawlings wanted to fire an employee who had complained about the fact he had not received adequate notice that another employee in his same department had tested positive for Covid-19. . . Just one week later, the City of Artesia fired Mr. Horan in complete retaliation for his numerous complaints about Rawlings.” (FAC ¶ 22.) The FAC further alleges “[s]uch conduct did, in fact, result in severe emotional distress caused to the plaintiff.” (FAC ¶ 72.) These facts are insufficient to state a cause of action for intentional infliction of emotional distress because they are conclusory.

A personnel management decision does not constitute extreme and outrageous conduct even if it was improperly motivated by discrimination and retaliation. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 79-80; see also Light v. California Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 101-02.) 

Labor Code section 3600 et seq., provides that, subject to certain exceptions, workers’ compensation is the exclusive remedy for employees who sustain injuries arising in the course of employment. (Lab. Code, § 3600.) To apply, the injury must occur in the course of the employment and arise out of the employment. “That is, the employment and the injury must be linked in some causal fashion.” (Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 833, internal quotations and citation omitted.) 

Nevertheless, it is disputed whether the alleged conduct was within the scope of employment. The determination of whether Defendant’s actions were within the scope of employment thus requires determinations beyond the scope of this demurrer such that the demurrer cannot be sustained on grounds that the cause of action is barred by the Worker’s Compensation Exclusive Remedy. 

However, the court still finds that the facts alleged are insufficient to state a cause of action for intentional infliction of emotional distress because they are conclusory.

The court is not yet persuaded that there is no reasonable possibility that Plaintiff can cure the defect identified above.  Because “[l]eave to amend is liberally allowed,” the court will grant Plaintiff leave to file a Second Amended Complaint.  (See, e.g., Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344, 1348.) Accordingly, the demurrer is sustained with leave to amend as to the third cause of action.  

            The court therefore SUSTAINS with leave to amend William Rawlings’ demurrer to the sixth cause of action because it does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) The court grants Plaintiff 20 days leave to amend.

Motion to Strike

Defendant William Rawlings moves to strike punitive damages, attorney’s fees and claims of restitution from the First Amended Complaint.

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See Code Civ Proc., §§ 435-437.)  A motion to strike can be made to strike irrelevant, false or improper matter inserted in any pleading or to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of the court.  (§ 436.)

The motion to strike is MOOT given that the Court granted leave to amend as to the third and sixth causes of action.

It is so ordered.

Dated: April 11, 2024

_______________________

ROLF M. TREU

Judge of the Superior Court