Judge Randolph M. Hammock, Case 22STCV34661 2023-04-28 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV34661, Date: 2023-04-28 Tentative Ruling

Plaintiff Sandra Howard brings this action for under the California Labor Code for whistleblower retaliation, and for wrongful termination in violation of public policy. Plaintiff alleges she worked for Defendant Art Director’s Guild, most recently as Executive Assistant to the Executive Director of ADG, Defendant Chuck Parker. In November 2019, Plaintiff alleges she complained to two other ADG employees that Defendant Parker was using frequent flyer airline miles from ADG’s account to pay for person vacations, which Plaintiff believed was a crime. Plaintiff alleges Defendants eventually terminated her employer in response to her complaints.

Plaintiff’s request for judicial notice of Exhibits 1-13 is GRANTED. In doing so, it is emphasized that trial court opinions are unpublished and have no precedential value. (Neary v. Regents of Univ. of Calif. (1992) 3 Cal.4th 273, 282.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

Defendant Chuck Parker demurs to the First Cause of Action for Whistleblower Retaliation in violation of Labor Code section 1102.5. Defendant contends this cause of action fails against him because section 1102.5 does not impose liability on individuals, but only on the employer.

Labor Code section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities. It prohibits “an employer, or any person acting on behalf of the employer” from retaliating against an employee for sharing information the employee “has reasonable cause to believe ... discloses a violation of state or federal statute” or of “a local, state, or federal rule or regulation” with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation. (§ 1102.5, subd. (b).) “This provision,” the Supreme Court of California has explained, “reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.)

Both parties recognize that no published state court decisions have considered whether Section 1102.5 imposes liability on individual defendants. However, Defendant notes the California Supreme Court has held that similar statutory language does not impose such liability. (Dem. 2: 20-22.) Indeed, two previous Supreme Court decisions are instructive.

In Reno v. Baird (1998) 18 Cal.4th 640, 645, the Court held that FEHA’s definition of “employer,” which includes “any person acting as an agent of an employer,” does not impose liability on individuals. Similarly, in Jones v. Lodge at Torrey Pines P'ship (2008) 42 Cal.4th 1158, the Court held that Government Code section 12940(h), which makes it unlawful for “any employer ... or person to discharge, expel, or otherwise discriminate against any person,” did not impose liability on individual “persons.” The Court noted the Legislature has adopted other ways to signal individual liability, such as the “clear language” in Government Code section 12940(j)(3) “imposing personal liability on all employees for their own harassing actions.” (Id.; Gov. Code § 12940(j)(3) [“An employee of an entity ... is personally liable for any harassment prohibited by this section that is perpetrated by the employee....”].)

Although there are exceptions, the majority of Federal district courts addressing section 1102.5—and relying on Jones and Reno—have concluded it does not impose liability on individuals. (See, e.g., Tillery v. Lollis (E.D. Cal. Aug. 13, 2015) No. 1:14-CV-02025-KJM, 2015 WL 4873111, at *10 [“Absent any authority or legislative intent to the contrary, and consistent with the California Supreme Court's decisionmaking in this area, this court finds individuals are not susceptible to liability under section 1102.5.”]; Mewawalla v. Middleman (N.D. Cal. 2022) 601 F. Supp. 3d 574, 609 [concluding that “most district courts to have ruled on this issue in the context of [a motion to dismiss] have held that section 1102.5 liability does not apply to individual supervisors”].) Although not binding, this court finds those cases and their analyses persuasive. (People v. Uribe (2011) 199 Cal.App.4th 836, 875 [“federal authority may be regarded as persuasive”].)

Accordingly, Defendant’s Demurrer to the First Cause of Action is SUSTAINED. Because there is no reasonable possibility of successfully amending the claim against the individual Defendant, no leave to amend is given. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

Judge of the Superior Court

FN 1 - Similarly, Labor Code section 1102.5(f) (regarding civil penalties) still only references “employers.” If the Legislature had intended to apply liability on individuals by its 2014 amendment, it is reasonable to conclude it would have amended this section as well.

Any party may submit on the tentative ruling by contacting the courtroom via email at smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.