Judge: Melvin D. Sandvig, Case: 23CHCV02773, Date: 2024-01-18 Tentative Ruling
Case Number: 23CHCV02773 Hearing Date: January 18, 2024 Dept: F47
Dept. F47
Date: 1/18/24
Case #23CHCV02773
DEMURRER TO THE
ORIGINAL CROSS-COMPLAINT
Demurrer filed on 11/27/23.
MOVING PARTY: Cross-Defendant Alal, LLC dba Kei-Ai Los Angeles Healthcare Center
RESPONDING PARTY: Cross-Complainants Jim Rey and Blenda
Rey
NOTICE: ok
Demurrer is to the 4th and 5th
causes of action:
1. Retaliation in Violation of Labor Code 1102.5
2. Wrongful Discharge in Violation of Public
Policy
3. Racial Retaliation in Violation of FEHA
12940(h)
4. Failure to Prevent Harassment,
Discrimination, Retaliation
5. Intentional Infliction of Emotional Distress
RULING: The demurrer is sustained with 30 days
leave to amend.
SUMMARY OF FACTS & PROCEDURAL HISTORY
On 9/14/23, Alal, LLC dba Kei-Ai Los Angeles Healthcare
Center (Kei-Ai) filed its complaint against Jim Rey and Blenda Rey
(collectively, the Reys), two of Kei-Ai’s former management employees, for: (1)
Breach of Duty of Loyalty, (2) Fraud, (3) Constructive Fraud, (4) Interference
With Contract, (5) Conversion, (6) Unfair Competition and (7) Receipt of Stolen
Property.
On 10/27/23, the Reys filed a cross-complaint and an
answer*. (*The Court notes that the
answer does not appear in eCourt because it is attached to the
cross-complaint. (See
Cross-Complaint, pdf p.28). The
cross-complaint alleges causes of action against Kei-Ai for: (1) Retaliation in
Violation of Labor Code 1102.5, (2) Wrongful Discharge in Violation of Public
Policy, (3) Racial Retaliation in Violation of FEHA 12940(h), (4) Failure to
Prevent Harassment, Discrimination, Retaliation and (5) Intentional Infliction
of Emotional Distress. After meet and
confer efforts failed to resolve the issues Kei-Ai had with the
cross-complaint, on 11/27/23, Kei-Ai filed and served the instant demurrer to
the 4th and 5th causes of action in the Reys’
cross-complaint. The Reys have opposed
the demurrer and Kei-Ai has filed a reply to the opposition.
ANALYSIS
To state a claim for failure to prevent harassment,
discrimination or retaliation under Government Code 12940(k), a plaintiff must
allege that the defendant failed to take all reasonable steps to prevent the
harassment, discrimination and retaliation based on a protected status (i.e.,
race, gender, age). CACI 2527. The elements of such a claim are: (1)
plaintiff was an employee of defendant, (2) plaintiff was subjected to
harassment, discrimination and/or retaliation in the course of employment, (3)
defendant failed to take all reasonable steps to prevent the harassment,
discrimination and/or retaliation, (4) plaintiff was harmed and (5) defendant’s
failure to take all reasonable steps to prevent harassment, discrimination
and/or retaliation was a substantial factor in causing plaintiff’s harm. Id.; See also Caldera
(2018) 25 CA5th 31, 43.
The Reys have failed to allege sufficient facts to
satisfy the third and fifth elements of the claim.
While the Reys repeatedly conclude throughout the
cross-complaint that cross-defendants harassed, discriminated, and retaliated
against them, they only make a specific claim for “racial retaliation” (not
harassment or discrimination) in their 3rd cause of action. However, the 4th cause of action alleges that Kei-Ai “failed to
prevent the unlawful harassment by not providing proper training to its
employees and not ensuring that the proper training standards were being
observed.” (Cross-Complaint ¶45, p.12:1-3). The Reys do not allege that Kei-Ai failed to
prevent the retaliation which forms the basis of their 3rd cause of
action. Additionally, the Reys have
failed to allege sufficient facts to establish that Kei-Ai’s alleged failure to
take reasonable steps to prevent the alleged retaliation was a substantial
factor in causing the Reys’ alleged harm.
The elements of an intentional infliction of emotional
distress causes of action 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) actual and proximate causation of
the emotional distress by the defendant’s outrageous conduct. Wilson (2012) 207 CA4th 999, 1009. Outrageous conduct is conduct that is
intentional or reckless and so extreme as to exceed all bounds of decency in a
civilized community. Id. The only conduct alleged within the 5th
cause of action is that during the Covid pandemic, Ms. Rey, the only infection
prevention nurse in the facility, was required to Covid test residents daily,
that she complained about same her administrator because it caused her hands to
swell and she was only given lotion as a solution. (Cross-Complaint ¶47). There are no allegations regarding conduct
directed toward Mr. Rey within the 5th cause of action.
In the opposition, the Reys rely on allegations outside
the 5th cause of action, which were included by incorporation. However, most of this alleged conduct was
directed at residents of the facility and or nurses, not the Reys. Allegations that the Reys did not have a
proper breakroom, were on call 24 hours a day/7 days a week, etc. do not
constitute the type of extreme and outrageous conduct necessary to support such
a claim. The Reys have also failed to
sufficiently allege that alleged racial discrimination forms the basis of the
claim. Similarly, the Reys have not
alleged sufficient facts to establish that they suffered severe or extreme
emotional distress as a result of the alleged conduct.
CONCLUSION
Based on the foregoing, the demurrer is sustained. Due to the liberal policy of allowing leave
to amend and because this is only the original cross-complaint, the Reys are
given the opportunity to try to cure the defects in their pleading.
As noted above, the Reys’ answer to the complaint is
attached to their cross-complaint and, therefore, does not appear in
eCourt. The Reys are ordered to
separately file a copy of their answer to the complaint forthwith.