Judge Randolph M. Hammock, Case Number: 23STCV02556, Date: 2024-01-12 Tentative Ruling

Plaintiff Jesus Aguayo brings this employment action against the city of Los Angeles. Plaintiff worked for the City Sanitation Bureau as a Wastewater Manager Worker 1. On or about April 18, 2022, Plaintiff was subject to a workplace injury. While cleaning a sewer line, he slipped on a slope causing him to fall into a nearby manhole cover. Plaintiff attempted to work through injuries but experienced pain. Shortly after reporting his injury, Plaintiff alleges Defendant terminated him citing a false performance review. Plaintiff brings cause of action against the City for (1) Disability Discrimination – Disparate Treatment in Violation of FEHA; (2) Failure to Engage in the Interactive Process in Violation of FEHA; (3) Failure to Provide Reasonable Accommodations in Violation of FEHA (4) Retaliation in Violation of FEHA; (5) Whistleblower Retaliation in Violation of Labor Code § 1102.5; and (6) Intentional Infliction of Emotional

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff has not sought leave to amend, and therefore not demonstrated a reasonable possibility of successful amendment. Be that as it may, Plaintiff may attempt to submit an adequate offer of proof at the hearing, if leave to amend is sought.

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 City demurrers to the Sixth Cause of Action for intentional infliction of emotional distress. First, Defendant argues that IIED is a common law tort claim that cannot be brought against the City. Second, Defendant argues the conduct Plaintiff alleges in support of her IIED claim against the City does not arise to the level of extreme and outrageous. Because the court agrees with the letter contention, it need not address the former.

“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.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51, quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001) (internal citations omitted). “Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Bock v. Hansen (2014) 225 Cal. App. 4th 215, 233.) Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’” (Id.)

Although a claim for IIED will generally present multiple questions of fact, a court may sustain a demurrer to the claim when “the facts alleged do not amount to outrageous conduct as a matter of law.” (Bock, supra, 225 Cal. App. 4th at 235.) The process has been described as “more intuitive than analytical.” (So v. Shin (2013) 212 Cal.App.4th 652, 671–672.)

Plaintiff alleges he began his employment with the City of Los Angeles on December 20, 2021 as a Wastewater Manager Worker I. (FAC ¶ 11.) On April 18, 2022, while cleaning a sewer line, he slipped on a slope causing him to fall into a manhole cover. (Id. at ¶¶ 12, 13.) The next day, Plaintiff attempted to report his work injury to his supervisor Lasalle Lofton, who merely sent Plaintiff away to “resume his duties.” (Id. ¶ 16.) Thereafter, Defendant provided Plaintiff with a “bogus poor performance evaluation” and subsequently terminated him. (Id. ¶ 18.)

These bare allegations do not amount to extreme and outrageous conduct. Plaintiff alleges conduct giving rise to violations of the FEHA, but that alone is insufficient to justify a claim for IIED. By failing to oppose the motion, Plaintiff has not demonstrated otherwise.

Judge of the Superior Court

FN 1 - The attached Proof of Service shows service of the moving papers on Plaintiff electronically on July 26, 2023. Plaintiff’s counsel was also present at the September 13, 2023, CMC when the demurrer hearing was continued to this date. (See 09/12/23 Minute Order.)

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.