Judge Michael P. Linfield, Case 22STCV04401 2022-08-22 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV04401, Date: 2022-08-22 Tentative Ruling

Case Number: 22STCV04401 Hearing Date: August 22, 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 as to QUEST and is SUSTAINED WITH LEAVE TO AMEND as to Timourian.

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 as to QUEST and is SUSTAINED WITH LEAVE TO AMEND as to Timourian.

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