Judge: Robert B. Broadbelt, Case: 21STCV16870, Date: 2022-12-22 Tentative Ruling
Case Number: 21STCV16870 Hearing Date: December 22, 2022 Dept: 53
Superior Court of California
County of Los Angeles – Central District
Department
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21STCV16870 |
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December
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[Tentative]
Order RE: demurrer to second amended complaint |
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MOVING PARTY: Defendant Rita Jue Quan
RESPONDING PARTY: Unopposed
Demurrer to Second Amended Complaint
The court considered
the moving papers filed in connection with this demurrer. No opposition papers were filed.
BACKGROUND
Plaintiff Allison Lee (“Plaintiff”) filed the operative Second
Amended Complaint in this action on June 2, 2022, against defendants The Regents
of the University of California and Rita Jue Quan. Plaintiff’s Second Amended Complaint alleges
eight causes of action for (1) discrimination on the basis of disability in
violation of FEHA; (2) harassment on the basis of disability in violation of FEHA;
(3) failure to provide reasonable accommodation in violation of FEHA; (4)
failure to engage in the interactive process; (5) retaliation for engaging in a
protected activity in violation of FEHA; (6) failure to prevent discrimination,
harassment, and retaliation in violation of FEHA; (7) violation of Labor Code
section 1102.5; and (8) intentional infliction of emotional distress.
Defendant Rita Jue Quan (“Defendant”) moves the court for an order
sustaining her demurrer to Plaintiff’s second and eighth causes of
action.
DEMURRER
The court sustains Defendant’s demurrer to Plaintiff’s second cause of
action for harassment on the basis of disability in violation of FEHA because
it fails to state facts sufficient to constitute a cause of action since
Plaintiff fails to allege facts establishing that Defendant’s offensive conduct
toward Plaintiff (FAC ¶¶ 18-19) was “based on a ‘protected
characteristic’” (i.e., Plaintiff’s disability). (Code Civ. Proc., § 430.10, subd. (e); Doe
v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th
721, 736.)
The court sustains Defendant’s demurrer to Plaintiff’s eighth cause of
action for intentional infliction of emotional distress because it fails to
state facts sufficient to constitute a cause of action since Plaintiff fails to
allege facts establishing that Defendant’s conduct was “so extreme as to exceed
all bounds of that usually tolerated in a civilized community[,]” and Plaintiff
therefore has not alleged the element of extreme and outrageous conduct. (Code Civ. Proc., § 430.10, subd. (e); Hughes
v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [internal quotations omitted]; Janken
v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 [“pleading of
personnel management activity is insufficient to support a claim of intentional
infliction of emotional distress, even if improper motivation is alleged”].)
The burden is on the plaintiff “to articulate how it could amend its
pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners
Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)¿ To satisfy that
burden, a plaintiff “must show in what manner he can amend his complaint and
how that amendment will change the legal effect of his pleading.”¿ (Goodman
v. Kennedy (1976) 18 Cal.3d 335, 349.)
The court finds that Plaintiff has not met her burden to articulate how
she could amend her pleading to render it sufficient, and therefore sustains
the demurrer without leave to amend.
ORDER
The
court orders defendant Rita Jue Quan to lodge and serve a proposed order of dismissal
from the Second Amended Complaint filed by plaintiff Allison Lee within 15 days
of the date of this order pursuant to Code of Civil Procedure section 581,
subdivision (f)(1).
The
court orders defendant Rita Jue Quan to give notice of this ruling.
IT IS SO ORDERED.
DATED:
_____________________________
Robert
B. Broadbelt III
Judge
of the Superior Court