Judge: Randall J. Sherman, Case: 2022-01283160, Date: 2023-07-21 Tentative Ruling

Defendant Patterson Companies, Inc.’s Demurrer to Plaintiff’s Complaint is sustained with 10 days leave to amend as to the 1st, 2nd, 3rd and 11th causes of action, and is deemed moot as to the 4th and 5th causes of action, which plaintiff has dismissed.  Plaintiff’s Request for Judicial Notice is denied as unnecessary.  Zucchet v. Galardi (2014) 229 Cal. App. 4th 1466, 1474 n.5.

Plaintiff’s 1st cause of action for Wrongful Termination in Violation of Public Policy fails to adequately allege facts showing harassment that violates FEHA.  In opposition, plaintiff appears to rely on the whistleblower statute and retaliation for this claim, but that is not how the claim is currently pled in the Complaint.

In the 2nd cause of action for Whistleblower Violation, plaintiff has not alleged sufficient facts to show that his complaints to some unknown person regarding false statements made by his co-workers and his performance review constitute protected activity under the whistleblower statute.  It is unclear what plaintiff’s complaints to defendant were about, whether his complaints alleged a violation of law, and to whom he complained.

In his 3rd cause of action for Employment Discrimination, Retaliation and Harassment, plaintiff fails to disclose facts showing discrimination, harassment or retaliation as recognized under FEHA.  Plaintiff has not alleged that he is a member of a protected class or that he was discriminated against or harassed based on being in that protected class.  Plaintiff has not alleged facts showing that he opposed any practices forbidden under FEHA or that he otherwise engaged in protected activity.  In particular, plaintiff has alleged he made complaints about his review and alleged defamatory statements made against him, but he has not shown how those complaints disclosed violations under FEHA.

The allegations in plaintiff’s 11th cause of action for Intentional Infliction of Emotional Distress do not rise to the level of extreme and outrageous conduct as pled.  Plaintiff has alleged that his co-workers made false reports about plaintiff objecting to wearing a mask, that he received retaliatory criticisms of his performance and was accused of unprofessionalism, and that he was terminated for speaking out.  These allegations do not amount to extreme and outrageous conduct as a matter of law.

Defendant is ordered to give notice of the ruling unless notice is waived.