Judge: Richard Y. Lee, Case: 30-2022-01271671, Date: 2023-08-10 Tentative Ruling

Defendant Kathleen Leano demurs to the Ninth, Eleventh and Twelfth causes of action in the First Amended Complaint (“FAC”). Defendants UnitedHealth Group, Inc. and Optum Services, Inc. also separately demur to the same causes of action. Because the arguments in support of and in opposition to both demurrers are virtually identical, the following discussion addresses both demurrers together.

Ninth Cause of Action for Hostile Work Environment

“To establish a prima facie case of a hostile work environment, [Plaintiff] must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Association (2019) 37 Cal.App.5th 568, 581).

This court sustained Leano’s previous demurrer to the ninth cause of action on the grounds that Plaintiff had not alleged that she was a member of a protected class or that the alleged harassment occurred because of a protected characteristic of Plaintiff’s.

In opposing the demurrers, Plaintiff asserts that her claim of a hostile work environment “is evidently based on her status as a disabled individual who took protected medical leave.” (Oppns. At 1:18-19.) While this may be evident to Plaintiff, it is not evident from the pleading. Even had the pleading clearly indicated that the alleged hostile work environment was based on Plaintiff’s disability, the FAC does not explicitly allege that the harassment alleged was based on her disability.

While the pleading is deficient, the court finds that Plaintiff may be able to plead a viable claim if granted leave to amend.

Accordingly, the demurrers to the ninth cause of action are SUSTAINED with leave to amend.

Twelfth Cause of Action for Intentional Infliction of Emotional Distress

The elements of IIED are: (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. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; CACI 1600.)

“Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) “Liability for IIED does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007).

This court sustained Leano’s previous demurrer to the twelfth cause of action on the grounds that the facts contained in the Complaint were insufficient to constitute extreme and outrageous conduct.

In the FAC, Plaintiff has now added additional allegations that her supervisor, Defendant Leano, berated and humiliated Plaintiff in front of entire team on a weekly basis and that Leano singled Plaintiff out for non-existent issues and reprimanded her for those same non-issues. For example, Leano allegedly “repeatedly badgered Plaintiff as to why tickets that had been submitted only minutes prior had not yet been addressed or completed, ignoring the lack of sufficient time for Plaintiff to address or complete them.” (FAC ¶¶23-29.)

The FAC also includes the allegations that appeared in the original Complaint: That Leano yelled at Plaintiff and made belittling comments such as “Why can’t you get this done, when all of your peers can get this done?”, contacted her after 5:00 p.m., chastised her for making mistakes, and ignored Plaintiff’s concern about Plaintiff’s workload. (FAC ¶¶14, 21-22).

While a trier of fact could conceivably conclude that the above constituted extreme and outrageous conduct, the cause of action fails because, based on the allegations of the FAC, it is preempted by the Workers Compensation Act.

The California Supreme Court in Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, held that claims for intentional infliction of emotional distress are barred by the workers’ compensation exclusivity rule, where the allegedly wrongful conduct “occurred at the worksite, in the normal course of the employer-employee relationship.” (Id. at 902.)

The Court elaborated, stating: “So long as the basic conditions of compensation are otherwise satisfied (Lab. Code, §3600), and the employer’s conduct neither contravenes fundamental public policy (Tameny, supra, 27 Cal.3d 167)…nor exceeds the risk inherent in the employment relationship…an employee’s emotional distress injuries are subsumed under the exclusive remedy provisions of workers’ compensation.” (Id.)

“The exception for conduct that ‘contravenes fundamental public policy’ is aimed at permitting a Tameny action to proceed despite the workers’ compensation exclusive remedy rule.” (Id. at 902-903.)

Subsequently, the Fourth District, Division 3, Court of Appeals applied the above principles in Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, and affirmed a trial court order sustaining a demurrer to a claim for Intentional Infliction of Emotional Distress. The complaint at issue in Yau alleged claims for wrongful termination and intentional infliction of emotional distress. (Id. at 147.) As the Yau court explained, ““when the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer's decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability.” (Id. at 161 (citing Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160).)

Each of Plaintiff’s allegations in support of her intentional infliction of emotional distress claim relates to workplace conduct and personnel management decisions—precisely the subjects covered by the WCA. (See Robomatic, Inc. v. Vetco Offshore (1990) 225 Cal.App.3d 270, 272 (finding that “a workers’ compensation proceeding is [plaintiff’s] exclusive remedy for negligent infliction of emotional distress ensuing from dismissal of employment.”); see also Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161 (sustaining demurrer to IIED claim based on WCA preemption where IIED claim premised on alleged mistreatment that occurred at work because “[e]motional injuries caused by workplace discipline, including termination, fall within this rule.” (citing Cole at 160; Shoemaker v. Myers (199) 52 Cal.3d 1, 7).); Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338 (finding IIED claim based on alleged threats, shouting, and slamming of computer onto plaintiff’s hand was alleged misconduct that occurred at work and was barred by the WCA).

Accordingly, the demurrers to the twelfth cause of action are SUSTAINED without leave to amend.

Eleventh Cause of Action for Negligent Infliction of Emotional Distress

“A claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377.) The plaintiff must plead and prove the usual elements of negligence, namely the defendant owed a duty of care and breached it proximately causing the emotional distress damage to the plaintiff. (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 127; Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204; Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 206.) Further, “[a]n employer's supervisory conduct is inherently ‘intentional.’” (Semore v. Pool (1990) 217 Cal.App.3d 1087, 1105; see also Edwards v. United States Fid. & Guaranty Co. (ND CA 1994) 848 F.Supp. 1460, 1466 (applying Calif. law)—“where the conduct is intentional, it cannot be used as the basis for a negligent infliction of emotional distress claim”).

Plaintiff’s purported claim for negligent infliction of emotional distress is based on the same factual allegations as her claim for intentional infliction of emotional distress. (FAC ¶¶156-165). Moreover, in connection with her negligent infliction of emotional distress claim, Plaintiff alleges “Defendants and each of their conduct stated hereinbefore was outrageous, intentional, and malicious…” (Compl. ¶158).

As Plaintiff has only pled intentional conduct, and not any negligent conduct, she has failed to state a cause of action for negligent infliction of emotional distress. She has also failed to plead the elements of negligence. Finally, this cause of action is barred by Workers Compensation exclusivity for the same reasons discussed above regarding intentional infliction of emotional distress.

Accordingly, Defendants’ demurrers to the eleventh cause of action are SUSTAINED without leave to amend.

Plaintiff shall have 20 days to amend her complaint as to the ninth cause of action for Hostile Work Environment.

The Case Management Conference is continued to October 12, 2023 at 1:30 p.m.

Defendants to give notice.