Judge Richard Y. Lee, Case 2021-01200119 2022-08-22 Tentative Ruling

Judge: Richard Y. Lee, Case: 2021-01200119, Date: 2022-08-22 Tentative Ruling

Request for Judicial Notice

Moving Defendants County of Orange’s and Paul Walters’ request to take judicial notice of the existence of Exhibits 1-3 is GRANTED pursuant to Evidence Code section 452(h). The request for judicial notice is GRANTED as to the purported judicially noticeable facts numbers 1, 2, 3, 4, & 7 pursuant to Evidence Code section 452(h) and DENIED as to purported judicially noticeable facts numbers 5, 6 & 8 as these facts do not fall under Evidence Code section 452(c) or (h), and the material is not necessary, helpful, or relevant (see Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1474, fn. 5 [citing Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6].)

Demurrer by Defendants County of Orange and Paul Walters

Defendants County of Orange’s and Paul Walters’ demurrer to Plaintiff Damon Tucker’s Third Amended Complaint (TAC) is OVERRULED in part and SUSTAINED in part with fifteen (15) days leave to amend.

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, 1404-1405.)

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 n.7.)

First Cause of Action (Violation of Lab. Code § 1102.5)

The demurrer to the First Cause of Action is OVERRULED.

The First Cause of Action alleges that Defendant County terminated Plaintiff’s employment in retaliation for Plaintiff’s reporting Defendant Spitzer’s wrongful and unlawful conduct, and refusing to assist Defendants Spitzer and Walters in their “pay to play” scheme. (TAC ¶¶ 47-58.)

This cause of action has remain unchanged since the FAC. (Compare FAC ¶¶ 40-51, SAC ¶¶ 40-51, & TAC ¶¶ 47-58.) Defendant County failed to demur to this cause of action in any previous iteration of the complaint.

Code of Civil Procedure Section 430.41(b) provides that: “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the [pleading].”

Thus, Defendant County is barred from demurring to the first cause of action.

Second Cause of Action (Bane Act)

The demurrer to the Second Cause of Action is SUSTAINED with leave to amend.

The Second Cause of Action alleges that by threats of violence, coercion or intimidation, Defendants caused Plaintiff to reasonably believe that if he exercised his constitutional right of freedom of speech by reporting Spitzer’s conduct, Defendants would terminate Plaintiff’s employment and Plaintiff would face severe consequences. (TAC ¶¶ 62, 63.) The Second Cause of Action also alleges that Defendants forcibly and violently removed him from the premises after termination (TAC ¶ 64) and continued a campaign to destroy Plaintiff and his reputation (TAC ¶ 67).

The Government Claims Act requires plaintiffs to file a written claim with the public entity within six months of the accrual of the cause of action, as a prerequisite to filing a civil claim. (Gov. Code, § 911.2.) The date of accrual is the date of the occurrence of the last fact essential to the cause of action. (Howard Jarvis Taxpayers Ass’n v. City of La Habra (2001) 25 Cal.4th 809, 815, as modified July 18, 2001.)

To the extent the claim is based on Defendant Spitzer’s making false statements about Plaintiff (see, e.g., TAC ¶ 67), judicially noticeable facts show Plaintiff failed to exhaust his administrative remedies. (See RJN, Exh. 1.)

In addition, the allegations fail to state a claim for violation of the Bane Act.

The elements for a cause of action under Civil Code section 52.1 are: (1) intentional interference or attempted interference with a state or federal constitutional or legal right; and (2) the interference or attempted interference was by threats, intimidation, or coercion. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 67.)

“Speech alone is not sufficient to support an action brought pursuant to subdivision (b) or (c), except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.” (Civ. Code, § 52.1(k); see also Julian v. Mission Community Hosp. (2017) 11 Cal.App.5th 360, 395 [citing Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 950].)

Termination or adverse employment actions also do not suffice. (See, e.g., Snyder v. Alight Solutions, LLC (C.D. Cal., May 5, 2021, No. SACV2100187CJCKESX) 2021 WL 4622392, at *2 [“But terminating Plaintiff’s employment was not violence. The facts alleged here simply do not fit into a Bane Act claim.”].)

Here, the TAC fails to allege any credible threat of violence or Plaintiff’s reasonable belief that violence would be committed against him. (See TAC ¶¶ 59-68.)

Third Cause of Action (Intentional Infliction of Emotional Distress

The demurrer to the Third Cause of Action is SUSTAINED with leave to amend.

The Third Cause of Action alleges that Defendant Walters destroyed Plaintiff’s reputation by wrongfully terminating Plaintiff’s employment and that Defendant Spitzer defamed and destroyed Plaintiff’s reputation to the public. (TAC ¶ 72.) The Third Cause of Action also alleges that Defendant County is vicariously liable for the actions of Defendants Walters and Spitzer. (TAC ¶ 70.)

To the extent the claim is based on Defendant Spitzer’s defaming Plaintiff to the public (see, e.g., TAC ¶ 72), judicially noticeable facts show Plaintiff failed to exhaust his administrative remedies. (See RJN, Exh. 1.)

The allegations also fail to valid state a claim for intentional infliction of emotional distress.

Generally, emotional distress caused by an employer’s conduct in employment actions involving termination, promotions, demotions, criticism of work practices, negotiations as to grievances, etc., are deemed “a normal part of the employment relationship”, and as such, are a barred by the workers’ compensation exclusivity rule. (Lab. Code § 3602; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160; Miklosy v. Regents of the Univ. of California (2008) 44 Cal.4th 876, 902.)

In Miklosy, supra, 44 Cal.4th 876, the California Supreme Court held that a public employee who was terminated as a result of alleged whistleblowing is barred from bringing a cause of action for intentional infliction of emotional distress by the workers’ compensation exclusive remedy provisions, unless the dismissal involves conduct that exceeds the risks inherent in the employment context. (Id., at p. 902.) The Supreme Court has expressly rejected the argument that whistleblower retaliation is not a risk inherent in the employment relationship. (Id., at 903.)

To the extent the Third Cause of Action is based on defendants’ conduct in terminating Plaintiff, the claim is barred by the workers’ compensation exclusivity rule.

Defendants shall give notice of this ruling.

Demurrer by Defendant Todd Spitzer

Defendant Todd Spitzer’s demurrer to Plaintiff Damon Tucker’s Third Amended Complaint (TAC) is SUSTAINED with fifteen (15) days leave to amend.

Second Cause of Action (Bane Act)

The Second Cause of Action also alleges that Defendant Spitzer forcibly and violently removed Plaintiff from the premises after termination (TAC ¶ 64) and continued a campaign to destroy Plaintiff and his reputation (TAC ¶ 67).

The Government Claims Act requires plaintiffs to file a written claim with the public entity within six months of the accrual of the cause of action, as a prerequisite to filing a civil claim. (Gov. Code, § 911.2.) The date of accrual for claimant the date of the occurrence of the last fact essential to the cause of action. (Howard Jarvis Taxpayers Ass’n v. City of La Habra (2001) 25 Cal.4th 809, 815, as modified July 18, 2001.)

To the extent the claim is based on Defendant Spitzer’s making false statements about him (see, e.g., TAC ¶ 67), judicially noticeable facts show Plaintiff failed to exhaust his administrative remedies. (See RJN, Exh. 1.)

In addition, the allegations fail to state a claim for violation of the Bane Act.

Here, the TAC fails to allege any credible threat of violence or Plaintiff’s reasonable belief that violence would be committed against him. (See TAC ¶¶ 59-68.) The reassignment at work “for Plaintiff’s protection” would not cause a reasonable person to have perceived a threat of violence.

The cases cited by Plaintiff do not compel a different result. In Harper v. Poway, the district court granted the motion to dismiss the Bane Act claim, and in any case, the plaintiff in that case had been detained in a small office for most of the school day and interrogated by a deputy sheriff. (See Harper v. Poway Unified School Dist. (2004) 345 F.Supp.2d 1096, 1115.)

In Shoyoye v. County of Los Angeles, the court reversed judgment in plaintiff’s favor on the Bane Act claim where Plaintiff’s over-detention was due to employee negligence. (See Shoyoye v. County of Los Angeles (2013) 203 Cal.App.4th, 947, 959, 961.)

In fact, the court in City and County of San Francisco v. Ballard concluded that alleged financial coercion of threatening to impose $15 million in penalties failed to satisfy the requirement that the defendant engage in a form of coercion. (See City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 408.)

Third Cause of Action (Intentional Infliction of Emotional Distress)

The Third Cause of Action alleges that Defendant Spitzer intentionally instituted and implemented a demand that Plaintiff cease all investigations into Spitzer and destroyed Plaintiff’s reputation by wrongfully terminating Plaintiff’s employment. (TAC ¶¶ 71, 72.)

The TAC also alleges that following Plaintiff’s termination from employment, Defendant Spitzer defamed and destroyed Plaintiff’s reputation to the public. (TAC ¶ 72.)

The allegations also fail to valid state a claim for intentional infliction of emotional distress.

Generally, emotional distress caused by an employer’s conduct in employment actions involving termination, promotions, demotions, criticism of work practices, negotiations as to grievances, etc., are deemed “a normal part of the employment relationship”, and as such, are a barred by the workers’ compensation exclusivity rule. (Labor Code § 3602; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160; Miklosy v. Regents of the Univ. of California (2008) 44 Cal.4th 876, 902.)

In Miklosy, the California Supreme Court held that a public employee who was terminated as a result of alleged whistleblowing was barred from bringing a cause of action for intentional infliction of emotional distress by the workers’ compensation exclusive remedy provisions, unless the dismissal involved conduct that exceeded the risks inherent in the employment context. (Miklosy v. Regents of the Univ. of California, supra, 44 Cal.4th at p. 902.) The Supreme Court expressly rejected the argument that whistleblower retaliation is not a risk inherent in the employment relationship. (Id. at 903.)

Therefore, to the extent the Third Cause of Action is based on Defendants’ conduct in terminating Plaintiff, the claim is barred by the workers’ compensation exclusivity rule.

Defendant shall give notice of this ruling.