Judge Michael L. Stern, Case Number: 23STCV01199, Date: 2024-01-26 Tentative Ruling

Judge: Michael L. Stern, Case: 23STCV01199, Date: 2024-01-26 Tentative Ruling

Case Number: 23STCV01199 Hearing Date: January 26, 2024 Dept: 62

CASE NAME: Maria De Dios v. Rapid Anodizing LLC, et al.

CASE NUMBER: 23STCV01199

HEARING DATE: January 26, 2024

DEPT: 62

Hon. Rolf M. Treu

SUBJECT: Demurrer to Plaintiff’s First Amended Complaint

MOVING PARTY: Defendant TRM Gamma Aerospace Acquisition, LLC

RESP. PARTY: Plaintiff – Maria De Dios

PARTIES

Plaintiff Maria De Dios filed this wrongful termination action on January 19, 2023 against Defendants Rapid Anodizing LLC (“Rapid”), Marcos Baca, Benjamin Torres, and Does 1 to 100, inclusive, alleging eight causes of action.

Defendant TRM Gamma Aerospace Acquisition, LLC was added in the First Amended Complaint on September 8, 2023.

On November 17, 2023, Defendant TRM filed its demurrer without a motion to strike.

On January 12, 2024, Plaintiff filed her opposition.

On January 19, 2024, Defendant TRM filed its reply.

Tentative Ruling: Sustained with 20 days leave to amend

ALLEGATIONS

The First Amended Complaint (“FAC”) includes detailed allegations of Plaintiff’s employment at Rapid. (FAC ¶ 8.) She names the Rapid employees who supervised her and allegedly participated in the harassment, retaliation, and discrimination Plaintiff claims to have experienced. (Id. at ¶¶ 8, 10–21.) Specifically, Plaintiff alleges that her supervisor at Rapid asked her out a few times, but she turned him down. (Id. at ¶¶ 11, 12.) Plaintiff claims her supervisor at Rapid allegedly raised performance concerns as a pretext for discriminating against Plaintiff due to her rejection of his advances. (Id. at ¶ 21.) Plaintiff further alleges that she lodged a complaint with Rapid regarding her supervisor’s alleged behavior. (Id. ¶¶ 15, 18.)

CAUSES OF ACTION

1. Discrimination on the Basis of Gender (Government Code § 12940(A))

2. Sexual Harassment – Quid Pro Quo (Government Code §§ 12923, 12940(J))

3. Failure to Prevent Discrimination and Harassment (Government Code § 12940(J), (K))

4. Retaliation (Government Code § 12940(H))

5. Negligent Supervision, Hiring, and Retention

6. Breach of Implied-In-Fact and/or Oral Contract Not to Terminate Employment without Good Cause

7. Wrongful Termination of Employment in Violation of Public Policy (Government Code § 12940(H))

8. Intentional Infliction of Emotional Distress.

TRM Gamma Aerospace Acquisition, LLC demurs to every alleged cause of action on the grounds of failure to state sufficient facts to support the causes of action. (Not. of Mot. p.2-3.) Moreover, Defendant argues that the claims are barred by the doctrine of successor nonliability. (Dem. p.1-3.)

JUDICIAL NOTICE

Defendant TRM Gamma Aerospace Acquisition, LLC’s (“TRM”) requests judicial notice of (1) Exhibit A Asset Purchase Agreement with Secured Creditor and Debtor. (Dem., RJN, Exhs. A.)

Plaintiff objects to this document and states that “it would be improper for a court to take judicial notice of the meaning of a document, submitted by the demurring party, based on the document alone without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document.” (Opp. to Def. Judicial Notice p.3.) Plaintiff also argues that the Asset Purchase Agreement is hearsay. (Reply p.3.) A court may take judicial notice of official acts of the legislative, executive, and judicial departments of the United States; records of any court of the State of California, the United States, or any State of the United States; facts of such common knowledge that they are not reasonably the subject of dispute; and facts capable of immediate and accurate determination by resort to source of reasonably indisputable accuracy. (Evid. Code, §452 (c), (d), (g), (h)). The Plaintiff’s objections are well taken because the Asset Purchase Agreement is subject to dispute.

Thus, its request is DENIED.

MEET AND CONFER

Before filing a demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (emphasis added, CCP § 430.41(a).)

Here, on November 1, 2023, and November 6, 2023, Defendant’s counsel met and conferred telephonically with Plaintiff’s counsel. (Dec. Siddiqui ¶ 4.) Thus, the meet and confer requirement was satisfied.

ANALYSIS

Doctrine of Successor Nonliability

Defendant argues that the doctrine of successor nonliability bars Plaintiff’s attempt to link TRM to the alleged wrongdoings by Rapid Anodizing, LLC. (Dem. p.1.) “‘The general rule of successor nonliability provides that where a corporation purchases, or otherwise acquires by transfer, the assets of another corporation, the acquiring corporation does not assume the selling corporation's debts and liabilities.’¿[Citation.] However, in¿Ray v. Alad Corp.¿(1977) 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3, the Supreme Court noted four exceptions to this rule: When “(1) there is an express or implied agreement of assumption, (2) the transaction amounts to a consolidation or merger of the two corporations, (3) the purchasing corporation is a mere continuation of the seller, or (4) the¿transfer of assets to the purchaser is for the fraudulent purpose of escaping liability¿for the seller's debts.”¿[Citation.]” (Daniell v. Riverside Partners I, L.P.¿(2012) 206 Cal.App.4th 1292, 1300-1301.)

Plaintiff’s opposition claims that she “alleges that TRM is a successor in interest in her FAC,” which “sufficiently imputes Rapid’s liability onto TRM” if the Court doesn’t “referenc[e] the [Asset Purchase Agreement] APA.” (Opp. at 5-6.) In support, Plaintiff cites to the boilerplate language in FAC ¶ 6(f) which fails to provide any facts about how or when TRM allegedly became a successor in interest. Plaintiff failed to provide facts to any exception of the successor nonliability doctrine. Significantly, the FAC does not contain a single allegation that TRM purchased Rapid or Gamma or continued their business.

Based on the foregoing, Defendants’ demur to all causes of actions based on this ground is SUSTAINED, with leave to amend.

Nevertheless, the merits of the causes of actions on the grounds of failure to state sufficient facts will also be analyzed below.

Failure to State Sufficient Facts For All Causes of Actions

1. Discrimination on the Basis of Gender - SUSTAINED with leave to amend.

Defendant argues that Plaintiff fails to allege facts sufficient to state a cause of action for discrimination on the basis of gender. (Dem. p.1.) In opposition, Plaintiff argues that paragraphs 5 and 6 sufficiently impute liability to TRM. (Opp. p.5.) To prove gender discrimination under FEHA, “[t]he plaintiff must generally show that: he or she was a member of a protected class; was qualified for the position he sought; suffered an adverse employment action, and there were circumstances suggesting that the employer acted with a discriminatory motive.” (Jones v. Dep’t of Corr. & Rehab., 152 Cal. App. 4th 1367, 1379 (2007).)

The complaint alleges “[a]ll Defendants, including but not limited to Rapid, Baca, Torres, and all DOE Defendants, directly and/or indirectly employed Plaintiff, as defined under the regulations, statutes and interpreting case law, including but not limited to California Government Code section 12926(d).” (First Amended Complaint “FAC” ¶ 5-6.) Moreover, the complaint alleges that “each of the Defendants sued under fictitious names is in some manner responsible for the wrongs and damages alleged below . . ..” (Id.) These alleged facts are insufficient to state a cause of action for Discrimination on the Basis of Gender against TRM Gamma Aerospace Acquisition, LLC because of their conclusory and boilerplate nature.

Thus, the Court sustains the demurrer for the discrimination on the basis of gender cause of action against TRM with leave to amend.

2. Sexual Harassment – Quid Pro Quo- SUSTAINED with leave to amend.

Defendant argues that Plaintiff fails to allege facts sufficient to state a cause of action for sexual harassment – quid pro quo. (Dem. p.1.) In opposition, Plaintiff argues that paragraphs 5 and 6 sufficiently impute liability to TRM. (Opp. p.5.) Plaintiff also argues that paragraph 42 also specifically alleges TRM’s liability for this cause of action. (Id.)

The sexual harassment cause of action elements are: “(1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)

The complaint alleges the same language mentioned above. (FAC ¶ 5-6.) Additionally, paragraph 42 states “[a]t all relevant times, Defendants Baca and Torres were principals, employees, and/or agents of Rapid, and/or of DOES 1 through 100, inclusive, and were acting within the scope of such employment and/or agency.” (FAC ¶ 42.) These alleged facts are insufficient to state a cause of action for sexual harassment against TRM Gamma Aerospace Acquisition, LLC because of their conclusory and boilerplate nature. For instance, it does not provide facts that Gamma Aerospace Acquisition, LLC employed Plaintiff.

Thus, the Court sustains the demurrer for the sexual harassment cause of action against TRM with leave to amend.

3. Failure to Prevent Discrimination and Harassment- SUSTAINED with leave to amend.

Defendant argues that Plaintiff fails to allege facts sufficient to state a cause of action for failure to prevent discrimination and harassment. (Dem. p.1.) In opposition, Plaintiff argues that paragraphs 5 and 6 sufficiently impute liability to TRM. (Opp. p.5.)

Government Code section 12940(k) provides in relevant part that “[i]t is an unlawful employment practice . . . [f]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Govt. Code, § 12940(k).) There can be no claim for failure to take reasonable steps necessary to prevent sexual harassment or discrimination when liability for harassment or discrimination has not been established. (Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1316 (2015), as modified on denial of reh’g (Mar. 24, 2015); see also Scotch v. Art Inst. of California, 173 Cal. App. 4th 986, 1021 (2009).)

The complaint alleges “[a]ll Defendants, including but not limited to Rapid, Baca, Torres, and all DOE Defendants, directly and/or indirectly employed Plaintiff, as defined under the regulations, statutes and interpreting case law, including but not limited to California Government Code section 12926(d).” (Complaint ¶ 5-6.) Moreover, the complaint alleges that “each of the Defendants sued under fictitious names is in some manner responsible for the wrongs and damages alleged below . . ..” (Id.) These alleges facts are insufficient to state a cause of action for failure to prevent discrimination and harassment because they are conclusory. The conclusory language prevents the Court from determining TRM’s liability.

Thus, the Court sustains the demurrer for the failure to prevent discrimination and harassment cause of action against TRM with leave to amend.

4. Retaliation (Government Code § 12940(H)) - SUSTAINED with leave to amend.

Defendant argues that Plaintiff fails to allege facts sufficient to state a cause of action for retaliation. (Dem. p.1.) In opposition, Plaintiff argues that paragraphs 5 and 6 sufficiently impute liability to TRM. (Opp. p.5.)

Under California case law, “to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. (Jones v. Dep’t of Corr. & Rehab., 152 Cal. App. 4th 1367, 1380 (2007) (citing Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028, 1042 (2005).)

The complaint alleges the same language above. (Complaint ¶ 5-6.) For the same reasons mentioned above, these facts are insufficient to state a cause of action for retaliation against TRM. Thus, the Court sustains the demurrer for the retaliation cause of action with leave to amend.

5. Negligent Supervision, Hiring, and Retention- SUSTAINED with leave to amend.

Defendant argues that Plaintiff fails to allege facts sufficient to state a cause of action for negligent supervision, hiring, and retention. (Dem. p.1.) In opposition, Plaintiff argues that paragraphs 5 and 6 sufficiently impute liability to TRM. (Opp. p.5.) “[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.)

The complaint alleges the same language above. (FAC ¶ 5-6.) For the same reasons mentioned above, these facts are insufficient to state a cause of action for negligent supervision, hiring, and retention against TRM. Thus, the Court sustains the demurrer for the negligent supervision, hiring, and retention cause of action with leave to amend.

6. Breach of Implied-In-Fact and/or Oral Contract Not to Terminate Employment without Good Cause- SUSTAINED with leave to amend.

Defendant argues that Plaintiff fails to allege facts sufficient to state a cause of action for breach of implied-in-fact and/or oral contract not to terminate employment without good cause. (Dem. p.1.) In opposition, Plaintiff argues that paragraphs 5 and 6 sufficiently impute liability to TRM. (Opp. p.5.)

Plaintiffs bear the threshold burden of proving that they and the employer had an “actual understanding” contrary to the statutory at-will presumption. (Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 319.) Factors that indicate an implied-in-fact agreement might include (1) “the personnel policies or practices of the employer,” (2) “the employee’s longevity of service,” (3) “actions or communications by the employer reflecting assurances of continued employment,” and (4) “the practices of the industry in which the employee is engaged.” (Id. at 336–37.)

The complaint alleges the same language above. (FAC ¶ 5-6.) For the same reasons mentioned above, these facts are insufficient to state a cause of action for breach of implied or oral contract not to terminate employment without good cause against TRM. Thus, the Court sustains the demurrer for this cause of action with leave to amend.

7. Wrongful Termination of Employment in Violation of Public Policy (Government Code § 12940(H)) - SUSTAINED with leave to amend.

Defendant argues that Plaintiff fails to allege facts sufficient to state a cause of action for

wrongful termination of employment in violation of public policy. (Dem. p.1.) In opposition, Plaintiff argues that paragraphs 5 and 6 sufficiently impute liability to TRM. (Opp. p.5.)

“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).) “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 (quoting Carter v. Escondido Union High School District (2007) 148 Cal.App.4th 922, 929).)

The complaint alleges the same language above. (Complaint ¶ 5-6.) For the same reasons mentioned above, these facts are insufficient to state a cause of action for wrongful termination against TRM. Thus, the Court sustains the demurrer for this cause of action with leave to amend.

8. Intentional Infliction of Emotional Distress- SUSTAINED with leave to amend.

Defendant argues that Plaintiff fails to allege facts sufficient to state a cause of action for intentional infliction of emotional distress. (Dem. p.1.) In opposition, Plaintiff argues that paragraphs 5 and 6 sufficiently impute liability to TRM. (Opp. p.5.)

To state a cause of action for intentional infliction of emotional distress, a plaintiff must show: “(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.” (Faunce v. Cate, 222 Cal. App. 4th 166, 172 (2013) (citing Christensen v. Superior Ct., 54 Cal. 3d 868, 903 (1991).) Outrageous conduct must be “beyond the bounds of human decency.” (Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 80 (1996); see also Davidson v. City of Westminster, 32 Cal. 3d 197, 209 (1982) (outrageous conduct “must be so extreme as to exceed all bounds of that usually tolerated in a civilized community”) (citation omitted).)

The complaint alleges the same language above. (FAC ¶ 5-6.) For the same reasons mentioned above, these facts are insufficient to state a cause of action for intentional infliction of emotional distress against TRM. For instance, all of the allegations concern Rapid employees, and the FAC does not plead any facts supporting the allegation that TRM is related to Rapid. (FAC ¶¶ 5, 6, 87–94.) Thus, the Court sustains the demurrer for this cause of action with leave to amend.