Judge: Michael E. Whitaker, Case: 24SMCV03939, Date: 2024-12-05 Tentative Ruling

Case Number: 24SMCV03939    Hearing Date: December 5, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

On August 14, 2024, Plaintiff Marta Villanueva (“Plaintiff”) brought suit against Defendants UG2 LLC and Peerless Building Maintenance, Inc., alleging four causes of action for (1) breach of covenant of good faith and fair dealing; (2) retaliation in violation of Cal. Gov. Code, § 12940, subd. (h); (3) retaliation in violation of Cal. Labor Code, § 1102.5, subd. (d); and (4) aiding, abetting, inciting compelling/coercing discrimination/retaliation in violation of Cal. Gov. Code, § 12940, subd. (i). 

Defendant UG2 LLC (“Defendant”) demurs to the fourth cause of action for failure to state facts sufficient to constitute a cause of action and uncertainty, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), respectively.[1]  Defendant also moves to strike references to “humiliation, embarrassment, and mental anguish” as well as allegations requesting punitive or exemplary damages alleged in connection with the first cause of action for breach of the implied covenant of good faith and fair dealing.

Plaintiff opposes the demurrer (but not the motion to strike) and Defendant replies.

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    UNCERTAINTY

“[D]emurrers for uncertainty are disfavored.”  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Although Defendant argues in the memorandum of points and authorities that the fourth cause of action is uncertain, Defendant does not demonstrate that any portions of the Complaint are so bad that Defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against it. 

The Court thus declines to sustain Defendant’s demurrer to the fourth cause of action on the basis of uncertainty. 

B.    FAILURE TO STATE A CAUSE OF ACTION

                                                         i.          Fourth Cause of Action – Aiding, Abetting, Inciting, Compelling and Coercing Discrimination/Retaliation in Violation of California Government Code, § 12940, subd. (i)

“A defendant is liable for aiding and abetting another in the commission of an intentional tort [] if the defendant knows the other’s conduct constitutes [a tortious act] and gives substantial assistance or encouragement to the other to so act.”   (Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 343 [cleaned up].)  Thus, the elements are (1) a third party’s tortious act; (2) defendant’s actual knowledge of that tortious act; (3) substantial assistance or encouragement by defendant to the third party’s tort; and (4) defendant’s wrongful conduct was a substantial factor in causing harm to the plaintiff.  (Ibid.)

Government Code section 12940, subdivision (i) provides: “It is an unlawful practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: […] (i) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.”

Here, Plaintiff alleges:

18. On or about 2011, PLAINTIFF became employed, as a janitor by Crown Building Maintenance Co., at 2021 Santa Monica Blvd.

19. While PLAINTIFF was employed, by Crown Building Maintenance Co., as a janitor at 2021 Santa Monica Blvd., PLAINTIFF was sexually harassed by her supervisor, Eric Wanta, resulting in her filing a lawsuit, for sexual harassment against her said supervisor, Eric Wanta, and Crown Building Maintenance Co (sic)

20. On or about 2020, DEFENDANT, PEERLESS BUILDING MAINTENANCE, INC., took over as the Janitorial Services Provider of 2021 Santa Monica Blvd.

21. After DEFENDANT, PEERLESS BUILDING MAINTENANCE, INC., took over as the janitorial services provider of 2021 Santa Monica Blvd., they hired and retained PLAINTIFF, and her coworkers, as janitors at 2021 Santa Monica Blvd., pursuant to the collective bargaining agreement that covered any company that provides janitorial services to 2021 Santa Monica Blvd. But they did not retain David Wanta. He was removed from the building for sexually harassing PLAINTIFF (sic)

22. On or about September, 2023, DEFENDANT, UG2 LLC, took over as a janitorial service provider of 2021 Santa Monica Blvd.

23. At all times relevant to this action, PLAINTIFF and DEFENDANT’s (sic) UG2 LLC and its were (sic) parties to a written collective bargaining agreement.

24. The essential terms of this collective bargaining agreement was that PLAINTIFF’s seniority will be respected at all times. And as a new company providing janitorial services for 2021 Santa Monica Blvd., they were obligated to hire PLAINTIFF and all the other janitors that worked at 2021 Santa Monica Blvd., and assign them to keep working, as janitors, at 2021 Santa Monica Blvd.

25. On September, 2023, after DEFENDANT, UG2 LLC. took over as the janitorial service provider of 2021 Santa Monica Blvd., DEFENDANT, PEERLESS BUILDING MAINTENANCE, INC’s managing agent advised DEFENDANT, UG2 LLC, that the owner/lessor/lessee of 2021 Santa Monica Blvd did not like PLAINTIFF and did not want her to work at 2021 Wilshire Blvd anymore

26. While PLAINTIFF was employed as a janitor at 2021 Santa Monica Blvd., PLAINTIFF performed her job duties diligently.

27. On September, 2023, after DEFENDANT, UG2 LLC., took over as the janitorial service provider of 2021 Santa Monica Blvd., DEFENDANT, UG2 LLC refused to hire PLAINTIFF as a janitor at 2021 Santa Monica Blvd because DOE 1, the owner/lessor/lessee of the building, did not want PLAINTIFF to work there anymore on account of the sexual harassment action that PLAINTIFF had filed against Eric Wanta and Crown Building Maintenance Co. In (sic) breach of PLAINTIFF’s said collective bargaining agreement.

28. On September, 2023, after DEFENDANT, UG2 LLC., took over as the janitorial service provider of 2021 Santa Monica Blvd., DEFENDANT, UG2 LLC’s officers, directors, and managing agents, refused to hire PLAINTIFF as a janitor at 2021 Santa Monica Blvd because of the sexual harassment action that PLAINTIFF had filed against Eric Wanta and Crown Building Maintenance Co. (sic) In breach of PLAINTIFF’s said collective bargaining agreement.

29. Instead, DEFENDANT UG2 LLC rehired Erica Wanta to work as a janitor at 2021 Santa Monica Blvd

30. Despite DEFENDANTS’ actual knowledge of the above-mentioned conduct, and the knowledge of their officers, directors and/or managing agents all of the DEFENDANTS failed to take immediate and appropriate corrective actions to stop the above described actions. In fact, they ratified it.

31. The aforementioned actions of the DEFENDANTS was unlawful and retaliatory, done with malice, fraud, or oppression, and in reckless disregard of the PLAINTIFF’s rights under the laws of the state of California, thereby entitling the PLAINTIFF to recover punitive/exemplary damages in such an amount as the trier of fact in this action deems appropriate.

[…]

51. As aforementioned, the DEFENDANTS UG2, LLC; PEERLESS BUILDING MAINTENANCE, INC AND DOES 1 TO 20 aided, abetted, incited, compelled and/or coerced the retaliation that was directed at PLAINTIFF, in violation of California Government Code §12940 (I), as specifically alleged in paragraphs 18 to 31, above.

52. As a proximate result of the DEFENDANTS’ conduct, PLAINTIFF has suffered harm, including lost employment benefits and emotional distress in an amount in excess of the jurisdictional threshold of this court, to be shown by evidence at the time of trial.

53. The aforementioned actions of the DEFENDANTS were a violation of California Government Code and done with malice, fraud, or oppression, and in reckless disregard of the PLAINTIFFS rights under the laws of the state of California entitling the PLAINTIFF to recover punitive or exemplary damages in such an amount as the trier of fact in this action deems appropriate.

(Complaint ¶¶ 18-31; 51-53.)

            Defendant argues Plaintiff fails to state a claim against it, because it is accused of both being the entity that retaliated against Plaintiff by refusing to hire her and aiding and abetting a third party retaliating against her.  Plaintiff argues that she is entitled to plead inconsistent theories of liability.

            The Court agrees with Plaintiff.  Here, the Complaint adequately alleges that Defendant aided and abetted the “owner/lessor/lessee” of the property in question, who allegedly no longer wanted Plaintiff to work there, to effectively terminate Plaintiff’s employment.  (See Complaint ¶ 25.)  Further, at the pleadings stage, a plaintiff may “plead in the alternative and make inconsistent allegations.”  (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388.)

            Therefore, the Court overrules Defendant’s demurrer.

2.     MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (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.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

Here, Defendant moves to strike the request for “humiliation, embarrassment, and mental anguish” and punitive and exemplary damages alleged in paragraphs 37 and 38 in connection with the first cause of action for breach of the implied covenant of good faith and fair dealing on the grounds that these damages are not available in connection with ordinary breach of contract causes of action.

The Court agrees that punitive or exemplary damages, as well as damages for humiliation, embarrassment, and mental anguish are generally unavailable for breach of an obligation arising from contract.  (Civ. Code, § 3300.) 

However, a breach of the duty of good faith and fair dealing could potentially sound in contract or in tort.  “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.”  (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683.)  “Because the covenant is a contract term, however, compensation for its breach has almost always been limited to contract rather than tort remedies.”  (Id. at p. 684.)  “As a contract concept, breach of the duty led to imposition of contract damages determined by the nature of the breach and standard contract principles.”  (Ibid.)

A notable exception to this general rule is in the insurance contract context, where courts have determined, that due to the special fiduciary relationship between insurer and insured, a breach of the implied covenant of good faith and fair dealing can sound in tort.  (Foley v. Interactive Data Corp., supra, 47 Cal.3d at pp. 684-693.)  But, in the employment context, “tort remedies are not available for breach of the implied covenant in an employment contract to employees who allege they have been discharged in violation of the covenant.”  (Id. at p. 700.) 

Therefore, because, as a matter of law, Plaintiff’s first cause of action for breach of the implied covenant of good faith and fair dealing sounds in contract, the requested punitive and exemplary damages, as well as damages for humiliation, embarrassment, and mental anguish, are unavailable.

Therefore, Defendant’s motion to strike is granted in its entirety.

3.     LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has failed to meet her burden as Plaintiff does not address the motion to strike at all, much less whether leave should be granted if the motion to strike is granted.  Further, because the subject remedies are not available under the contract-based breach of the implied covenant of good faith and fair dealing, the Court does not foresee any facts that could be added to the Complaint to cure the defect.

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Defendant’s Demurrer to the Fourth Cause of Action. 

Further, the Court grants Defendant’s Motion to Strike in its entirety without leave to amend, and orders the phrase “humiliation, embarrassment, and mental anguish” stricken from paragraph 37 and the entirety of paragraph 38 stricken from the Complaint. 

Further, the Court orders Defendant to file and serve an Answer to the Complaint on or before January 3, 2025. 

Further, on the Court’s own motion, the Court continues the Case Management Conference from December 13, 2024 to March 3, 2025 at 8:30 A.M. in Department 207.  All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences.  In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725). 

Defendant shall provide notice of the Court’s orders and file the notice with a proof of service forthwith. 

DATED:  December 5, 2024                                                  ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court