Judge: Nathan Vu, Case: 30-2021-01233302, Date: 2022-10-24 Tentative Ruling

Please Note: The hearing on this matter has been changed to 8:30 A.M.

Demurrer

Defendant City of Anaheim’s Demurrer to the Second Amended Complaint is OVERRULED.

Defendant City of Anaheim’s Request for Judicial Notice is GRANTED as to Exhibit B and DENIED as to Exhibit C. (See Evid. Code, § 452(c).) There was no Exhibit A.

Defendant City of Anaheim demurs to the Second Amended Complaint (SAC) filed by Plaintiff Darrel Wall.

Standard for Demurrer

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Although courts should take a liberal view of inartfully drawn complaints, (see Civil Proc. Code, § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Civil Proc. Code, § 425.10, subd. (a).)

1st Cause of Action (Retaliation)

In the first cause of action of the SAC, Plaintiff alleges that Defendant retaliated against Plaintiff after he reported that Defendant was violating the Federal Labor Standards Act (FLSA) by failing to pay overtime wages during the time Plaintiff worked in excess of 40 hours per week when he was not permitted to take meal periods. (SAC, ¶¶ 13-15.)

The elements for a retaliation case in violation of Labor Code section 1102.5 are: (1) plaintiff engaged in a protected activity; (2) the employer subjected plaintiff to an adverse employment action; and (3) there is a causal link between the two. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)

Protected activity includes communicating information “if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation . . . .” (Labor Code, § 1102.5, subd. (b); Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 77 [statute reflects “broad public policy interest in encouraging workplace whistleblowers to report unlawful acts without fearing retaliation”].) Disclosures to the employer, or even a fellow employee with authority to investigate or correct the issue being reported, constitute protected activity. (See Labor Code, § 1102.5, subd. (a).)

Here, the SAC alleges Plaintiff reported what he reasonably believed to be meal break violations and that Plaintiff was wrongfully terminated as a result of the disclosure. (See SAC, ¶¶ 10, 13 & 15.) These allegations are sufficient to withstand demurrer.

Although Defendant contends that there can be no causal link given the eight-month delay between complaint and termination, the SAC also alleges that the retaliation included Plaintiff’s supervisor acting hostile to him and seeking to have his employment terminated, which began shortly after Plaintiff complained. (See SAC, ¶¶ 10 & 15.)

2nd Cause of Action (Violations of FCRA/ICRA)

The SAC alleges in the second cause of action that Defendant obtained a background check without legal authority in violation of the Fair Credit Reporting Act (FCRA) and Investigative Consumer Reporting Agencies Act (ICRA), by obtaining a background check without providing Plaintiff a summary of the nature and substance of the information obtained. (SAC, ¶ 22.)

As this court noted in its previous demurrer ruling, Plaintiff’s complaint appears to have cited the wrong provision of the FCRA. 15 U.S.C. section 1681a, subdivision (y) — not subdivision (x) — requires that “[a]fter taking any adverse action based in whole or in part on a [consumer report made to an employer in connection with, among other things, suspected employment-related misconduct], the employer shall disclose to the consumer a summary containing the nature and substance of the communication upon which the adverse action is based, except that the sources of information acquired solely for use in preparing what would be but for subsection (d)(2)(D) an investigative consumer report need not be disclosed.” (15 U.S.C., § 1681a, subd. (y)(2).)

The FCRA defines the term “consumer report” to mean “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for” among other things, employment purposes. (15 U.S.C., § 1681d, subd. (1)(B).)

Here, the SAC alleges Defendant obtained a “background check” in connection in reaching the decision to terminate Plaintiff’s employment (SAC, ¶ 22), and that Defendant did not provide Plaintiff with the summary and substance of the information obtained (SAC, ¶ 23). The SAC alleges a cause of action under the FCRA. (fn.1)

3rd Cause of Action (Invasion of Privacy)

Plaintiff alleges in the third cause of action of the SAC that Defendant invaded Plaintiff’s privacy by accessing passwords to Plaintiff’s otherwise private accounts to obtain and use private emails, text messages, and private social media messages. (SAC, ¶ 29.)

California law recognizes both a constitutional and common law right of privacy. (See Hill v. National Collegiate Athletic Ass’n (1994) 7 Cal.4th 1, 20; Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 227.) While the two claims are “not unrelated,” they are distinct, and a claim for violation of the common law right to privacy may not be sufficient to allege violation of the constitutional privacy right. (Ignat v. Yum! Brands, Inc. (2013) 214 Cal.App.4th 808, 820-821.)

The common law right of privacy is the right to be “left alone” to live an ordinary private life without being subjected to unwarranted or undesired publicity. (See Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 276; see also 5 Witkin, Summ. Cal. Law (11th ed.) Torts § 756.) The common law tort action provides a remedy where there is neither injury to property nor breach of contract, and where a defamation claim would fail because of the defense of truth. (Id.) In Ignat v. Yum! Brands, Inc., for example, the plaintiff alleged her defendant employer had disclosed to her co-workers the fact of her bipolar condition. (Ignat v. Yum! Brands, Inc., supra, 214 Cal.App.4th at p. 810.)

The common law right to privacy is generally analyzed under four categories of invasion: (1) intrusion into private affairs (5 Witkin, Supp. (11th ed. 2021) Torts, § 754 et seq.); (2) public disclosure of private facts (id., § 772 et seq.); (3) placing the plaintiff in a false light (id., § 781 et seq.); and (4) appropriation of the plaintiff’s name or likeness (id., § 784 et seq.). As explained in ACS Systems v. St. Paul Fire & Marine Ins. Co.:

The courts have found it analytically helpful to identify two meanings for “the right of privacy”: “secrecy” and “seclusion.” . . . [A] person claiming the privacy right of seclusion asserts the right to be free, in a particular location, from disturbance by others. A person claiming the privacy right of secrecy asserts the right to prevent disclosure of personal information to others. Invasion of the privacy right of seclusion involves the means, manner, and method of communication in a location (or at a time) which disturbs the recipient's seclusion. By contrast, invasion of the privacy right of secrecy involves the content of communication that occurs when someone's private, personal information is disclosed to a third person.

(ACS Systems v. St. Paul Fire & Marine Ins. Co. (2007) 147 Cal.App.4th 137, 148; see 2 Witkin Summ. (11th ed.) Insurance § 126 [advertising injury clause in commercial general liability insurance policy covered liability for injuries resulting from invasion of “secrecy” privacy, but not “seclusion” privacy].)

The tort of intrusion upon seclusion protects an individual against one “who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns.” (Taus v. Loftus (2007) 40 Cal.4th 683, 724.) A defendant is liable for invasion of privacy if “the intrusion would be highly offensive to a reasonable person.” (Id., quoting Rest.2d Torts, § 652B; see also Guzzetta, Cal. Prac. Guide: Privacy Law (2021) ¶ 2:320.) Unlike the tort of publication of private facts, a claim for intrusion upon seclusion does not require that the defendant publish or otherwise make public private information. (Opperman v. Path, Inc. (N.D. Cal. 2014) 87 F.Supp.3d 1018, 1058-1059, quoting Rest.2d Torts § 652B, comm. a.)

The elements of the tort of intrusion upon seclusion are: (i) intrusion into a private place, conversation, or matter; and (ii) in a manner that is highly offensive to a reasonable person. (Taus v. Loftus, supra, 40 Cal.4th at p. 725, quoting Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231.)

Here, the SAC may fail to allege sufficient facts to support a constitutional privacy claim, but does plead sufficient facts to support a common law privacy claim based on intrusion into private affairs. Plaintiff pleads that Defendant accessed passwords to Plaintiff’s otherwise private on-line accounts, accessing private emails and messages. (SAC, ¶¶ 28-29.) These allegations make out an intrusion into a private matter in a manner that would be highly offensive to a reasonable person.

4th Cause of Action (Unpaid Overtime Wages)

The fourth cause of action of the SAC makes out a claim for unpaid overtime wages pursuant to the FLSA. That statute requires that any employee working in excess of 40 hours be paid at a rate of not less than one and one-half times the regular rate at which he is employed. (See 29 U.S.C., § 207, subd. (a)(1).)

Here, the SAC alleges sufficient facts to support a claim under the FLSA. The SAC alleges Defendant worked in excess of 40 hours per week without receiving overtime pay and that Plaintiff is not exempt from those regulations mandating overtime pay. (SAC, ¶¶ 33-35.)

Defendant’s arguments on demurrer rely on federal pleading standards under Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544 and Ashcroft v. Iqbal (2009) 556 U.S. 662, which do not apply here. Under applicable California law, a plaintiff’s complaint need plead only such facts as are necessary “to acquaint a defendant with the nature, source and extent of his claims.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550; Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1376; see also Civil Proc. Code, § 425.10 [providing the complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language”].)

Plaintiff shall give notice of this ruling.

(fn.1) Because the SAC alleges a valid claim for violation for the FCRA, Plaintiff overcomes the general demurrer to this cause of action and the court need not consider whether the third cause of action also pleads a violation of ICRA. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [“A demurrer must dispose of an entire cause of action to be sustained.”].)