Judge: Michael P. Linfield, Case: 22STCV04401, Date: 2022-08-11 Tentative Ruling
Case Number: 22STCV04401 Hearing Date: August 11, 2022 Dept: 34
SUBJECT: Demurrer
to Plaintiff Herman Morales’s Unverified First Amended Complaint
Moving Party: Defendants
Quest Diagnostics Incorporated and Quest Diagnostics Clinical Laboratories,
Inc., and Hagop Timourian (“Timourian”) (collectively referred to as
“Defendants”)
Resp. Party: Plaintiff
Herman Morales (“Morales”)
Defendants Quest Diagnostics Incorporated and Quest Diagnostics
Clinical Laboratories, Inc., and Hagop Timourian’s demurrer to the Second Cause
of Action for Hostile Work Environment Harassment in Violation of the FEHA in
Plaintiff Herman Morales’ First Amended Complaint is OVERRULED.
Defendants Quest Diagnostics Incorporated and Quest Diagnostics
Clinical Laboratories, Inc., and Hagop Timourian’s demurrer to the Eighth Cause
of Action for Negligent Hiring, Supervision, and Retention in Plaintiff Herman
Morales’ First Amended Complaint is SUSTAINED.
Defendants Quest Diagnostics Incorporated and Quest Diagnostics
Clinical Laboratories, Inc., and Hagop Timourian’s demurrer to the Tenth Cause
of Action for Whistleblower Retaliation in Violation of Labor Code § 1102.5 in
Plaintiff Herman Morales’ First Amended Complaint is OVERRULED.
Defendants Quest Diagnostics Incorporated and Quest Diagnostics
Clinical Laboratories, Inc., and Hagop Timourian’s demurrer to the Eleventh
Cause of Action for Intentional Infliction of Emotional Distress in Plaintiff
Herman Morales’ First Amended Complaint is OVERRULED.
I.
BACKGROUND
On February 4, 2022, Plaintiff Herman Morales filed a complaint against
Defendants Quest Diagnostics Incorporated and Quest Diagnostics Clinical
Laboratories, Inc., and Hagop Timourian.
On June 1, 2022, Plaintiff Herman Morales filed a First Amended
Complaint (“FAC”) against the same Defendants alleging the following causes of
action:
1.
Discrimination
in Violation of the FEHA;
2.
Hostile Work
Environment Harassment in Violation of the FEHA;
3.
Retaliation
in Violation of the FEHA;
4.
Failure
to Provide Reasonable Accommodation in Violation of the FEHA;
5.
Failure
to Engage in the Interactive Process in Violation of the FEHA;
6.
Failure
to Prevent Discrimination, Harassment, or Retaliation in Violation of FEHA;
7.
CFRA
Leave Retaliation;
8.
Negligent
Hiring, Supervision, and Retention;
9.
Wrongful
Termination of Employment in Violation of Public Policy;
10.
Whistleblower
Retaliation (Labor Code § 1102.5);
11.
Intentional
Infliction of Emotional Distress
On July 6, 2022, Defendants demurred to Morales’ First Amended
Complaint pursuant to California Code of Civil Procedure § 430.10(e), “on the
ground that Plaintiff’s second, eighth, tenth, and eleventh purported causes of
action fail to set forth facts sufficient to state a claim against Defendants.”
(Demurrer, p. 2:4-5.)
On July 29, 2022, Morales opposed Defendants’ demurrer.
On August 4, 2022, Defendants replied to Morales’ opposition.
II.
ANALYSIS
A.
Legal
Standard
A
demurrer is a pleading used to test the legal sufficiency of other pleadings. (Cty.
of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1008–09; Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) It raises issues of law, not fact, regarding the
form or content of the opposing party’s pleading. It is not the function of the
demurrer to challenge the truthfulness of the complaint. (Unruh-Haxton v.
Regents of Univ. of California (2008) 162 Cal.App.4th 343, 365, as modified
(May 15, 2008).) For purpose of the ruling on the demurrer, all facts pleaded
in the complaint are assumed to be true, however improbable they may be. (CCP
§§ 422.10, 589.)
A
demurrer can be used only to challenge defects that appear on the face of the
pleading under attack; or from matters outside the pleading that are judicially
noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic
evidence can be considered (i.e., no “speaking demurrers”). A demurrer is
brought under Code of Civil Procedure § 430.10 (grounds), § 430.30 (as to any
matter on its face or from which judicial notice may be taken), and § 430.50(a)
(can be taken to the entire complaint or any cause of action within).
A
demurrer may be brought under Code of Civil Procedure section 430.10,
subdivision (e) if insufficient facts are stated to support the cause of action
asserted. A demurrer for uncertainty may be brought pursuant to Code of Civil
Procedure section 430.10, subdivision (f). “A demurrer for uncertainty is
strictly construed, even where a complaint is in some respects uncertain,
because ambiguities can be clarified under modern discovery procedures.” (Khoury
v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “In general,
‘demurrers for uncertainty are disfavored, and are granted only if the pleading
is so incomprehensible that a defendant cannot reasonably respond.’” (Lickiss
v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125,
1135.)
B.
Discussion
1.
Second
Cause of Action for Hostile Work Environment Harassment in Violation of the
FEHA
“It is an unlawful employment practice under the FEHA for an employer
to harass an employee because of national origin or age. (§ 12940, subd.
(j)(1).) To establish a prima facie case of harassment, Galvan must show that
(1) she is a member of a protected class; (2) she was subjected to unwelcome
harassment; (3) the harassment was based on her protected status; (4) the
harassment unreasonably interfered with her work performance by creating an
intimidating, hostile, or offensive work environment; and (5) defendants are
liable for the harassment.” (Galvan v. Dameron Hospital Assn. (2019) 37
Cal.App.5th 549, 563.)
Morales alleges that he is a member of a protected class (FAC, ¶¶ 13(a,
b), 28), that he was subjected to unwelcome harassment (FAC, ¶¶ 28, 30), that
the harassment was based on his protected status (FAC, ¶¶ 28, 30), that the
harassment unreasonably interfered with his work performance by creating an
intimidating, hostile, or offensive work environment (FAC, ¶¶ 28, 31), and that
Defendants are liable for the alleged harassment (FAC, ¶¶ 28, 31-35).
Defendants, citing Ashcroft v. Iqbal (2009) 556 U.S. 662, 678 and Bell
Atlantic Corp. v. Twombly (2007) 550 U.S. 544, 555 argue that Morales’ FAC
“fails to allege any specific facts of harassing conduct by Defendants.”
(Demurrer, MPA, p. 7:25—8:6.)
Morales’ FAC includes a narrative of Defendants alleged adverse
employment actions and behavior, and Defendants’ termination of Morales’
employment. (FAC, ¶¶ 14(a-l)-15(a-c).) While Defendants suggest that “nothing
outside of personnel management actions occurred,” the Court’s role on demurrer
is to examine the sufficiency of the pleadings, not to evaluate evidence.
Defendants ask the Court to compare Morales’ allegations against a standard of
personnel management actions that would require an evidentiary review
inappropriate on demurrer.
The Court finds that the elements of a cause of action for Hostile Work
Environment Harassment in Violation of the FEHA has been sufficiently pleaded. The Demurrer to the Second Cause of Action is
OVERRULED.
2.
Eighth
Cause of Action for Negligent Hiring, Supervision, and Retention
“California case law recognizes the theory that an employer can be
liable to a third person for negligently hiring, supervising, or retaining an
unfit employee. Liability is based upon the facts that the employer knew or
should have known that hiring the employee created a particular risk or hazard
and that particular harm materializes.” (Doe v. Capital Cities (1996) 50
Cal.App.4th 1038, 1054 [cleaned up].)
Morales’ FAC alleges that Defendant Timourian was a supervisor with
Defendants at all times mentioned in Morales’ FAC. (FAC, ¶ 2.) Morales alleges
that he was falsely led to believe that Defendants would accommodate his need
for extended disability leave after Morales communicated this need to Timourian.
(FAC, ¶ 14(h).) Timourian is not mentioned at any other time in Morales’ FAC. According
to the FAC, Morales spoke with Tracy Canales in Defendant’s Human Resources on
August 10, 2020 to inform her that he could not yet return to work given his
untreated medical condition. (FAC, ¶ 14(j).) Canales denied Morales’ request
for extended leave. (Id.) On August 18, 2020, Morales contacted Tina
Brumley, Defendants’ Human Resources Representative, to reconsider his request
for extended time to return to work. (FAC, ¶ 14(l).) Brumley allegedly states
that she would speak with Ms. Canales and call him back. (Id.) On August
28, 2020, Brumley called Morales to inform him that Quest Diagnostics "had
decided not to grant him an extension to retain his job, and that they had to
move on and terminate Plaintiff.” (FAC, ¶ 15(a).)
The Court notes that in the allegations of Morales’ Eighth Cause of
Action for Negligent Hiring, Supervision, and Retention, no individual
supervisor or manager working for Defendants is referenced by name, and no
specific facts are alleged to suggest that Defendants breached their duties to
refrain from negligent hiring, supervision, and retention. (See FAC ¶¶ 75-77.)
The Court finds that Morales has not alleged sufficient facts to
establish that Defendants breached their duty of care in hiring, supervision,
or retention. The Demurrer to Plaintiff’s
Eights Cause of Action is SUSTAINED.
3.
Tenth
Cause of Action for Whistleblower Retaliation in Violation of Labor Code §
1102.5
“[T]o establish a prima facie case of retaliation under section
1102.5(b), a plaintiff must show that: (1) he engaged in protected activity;
(2) his employer thereafter subjected him to an adverse employment action; and
(3) a causal link between the two.” (Fitzgerald v. El Dorado County
(E.D. Cal. 2015) 94 F.Supp.3d 1155, 1172.)
To establish that Defendants retaliated against Morales, Morales
alleges that (1) he was engaged in protected activity while on a disability
leave of absence (FAC, ¶¶ 13(b), 14(a, b, d)), (2) that Defendants subjected
Morales to an adverse employment action when they terminated Morales’
employment (FAC, ¶¶ 15(a-c)), and (3) asserts a causal link exists between
Morales’ protected activity and Defendant’s adverse employment action (FAC, ¶
86.).
Defendants argues that Morales alleged that he was terminated after a
year of medical leave but made no allegations that he “complained of any
illegal activity to Defendants or was terminated for such complaint.”
(Demurrer, MPA, p. 9:14-16.) Morales argues that he “requested accommodations
for his disabilities including an extension to his medical leave of absence,
was denied accommodations requested, and complained of Defendants’ decision not
to accommodate him.” (Opposition, p. 7:24-27; FAC ¶¶ 14(i-l).)
The Court finds that Morales’ FAC successfully pleads the required elements
of a whistleblower retaliation cause of action under Labor Code § 1102.5. The Demurrer to the Tenth Cause of Action if
OVERRULED.
4.
Eleventh
Cause of Action for Intentional Infliction of Emotional Distress
“A cause of action for intentional infliction of emotional distress
exists when there is (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. A defendant's conduct is outrageous when it
is so extreme as to exceed all bounds of that usually tolerated in a civilized
community. And the defendant's conduct must be intended to inflict injury or
engaged in with the realization that injury will result. Liability for
intentional infliction of emotional distress does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.” (Hughes
v. Pair (2009) 46 Cal.4th 1035, 1050–1051 [cleaned up].)
Plaintiff has successfully pleaded causes
of action for, inter alia, Discrimination in Violation of the FEHA, Hostile Work Environment Harassment in
Violation of the FEHA, Retaliation in Violation of the FEHA, Wrongful
Termination of Employment in Violation of Public Policy, and Whistleblower
Retaliation. If a jury were to find in
plaintiff’s favor on any of these causes of action, the jury could find that
Defendants are also liable for Intentional Infliction of Emotional Distress.
The Demurrer to the Eleventh Cause of Action is OVERRULED.
III.
CONCLUSION
Defendants Quest Diagnostics Incorporated and Quest Diagnostics
Clinical Laboratories, Inc., and Hagop Timourian’s demurrer to the Second Cause
of Action for Hostile Work Environment Harassment in Violation of the FEHA in
Plaintiff Herman Morales’ First Amended Complaint is OVERRULED.
Defendants Quest Diagnostics Incorporated and Quest Diagnostics
Clinical Laboratories, Inc., and Hagop Timourian’s demurrer to the Eighth Cause
of Action for Negligent Hiring, Supervision, and Retention in Plaintiff Herman
Morales’ First Amended Complaint is SUSTAINED.
Defendants Quest Diagnostics Incorporated and Quest Diagnostics
Clinical Laboratories, Inc., and Hagop Timourian’s demurrer to the Tenth Cause
of Action for Whistleblower Retaliation in Violation of Labor Code § 1102.5 in
Plaintiff Herman Morales’ First Amended Complaint is OVERRULED.
Defendants Quest Diagnostics Incorporated and Quest Diagnostics
Clinical Laboratories, Inc., and Hagop Timourian’s demurrer to the Eleventh
Cause of Action for Intentional Infliction of Emotional Distress in Plaintiff
Herman Morales’ First Amended Complaint is OVERRULED.