Judge Salvatore Sirna, Case 21PSCV00953 2022-12-05 Tentative Ruling

Judge: Salvatore Sirna, Case: 21PSCV00953, Date: 2022-12-05 Tentative Ruling

Case Number: 21PSCV00953 Hearing Date: December 5, 2022 Dept: A

Defendants Tri-City Mental Health Authority and Warkitha Torregano’s Demurrer to Plaintiff’s Second Amended Complaint

Respondent: Plaintiff Patricia Kears

TENTATIVE RULING

Defendants Tri-City Mental Health Authority and Warkitha Torregano’s Demurrer is OVERRULED IN PART, SUSTAINED IN PART. The demurrer is OVERRULED as to the third, fourth, eighth, and ninth causes of action. The demurrer is SUSTAINED with twenty (20) days leave to amend as to the fifth cause of action.

BACKGROUND

This is an employment discrimination action. Beginning in March 2015, Plaintiff Patricia Kears worked as a senior human resource analyst for Defendant Tri-City Mental Health Authority (Tri-City). In January 2018, Tri-City hired Defendant Warkitha Torregano (Torregano) as a human resources manager, with supervisory responsibilities over Plaintiff. On March 15, 2018, Plaintiff alleges Torregano inadvertently sent a text message meant for a third-party to Plaintiff that stated “Plaintiff was very incompetent and had no idea how to do her job.” Plaintiff then reported the text message to Nancy Gill, who was chief operating officer for Tri-City and oversaw the human resources department.

Subsequently from 2018 to 2019, Plaintiff alleges Torregano subjected Plaintiff to frequent disparate treatment by speaking condescendingly to Plaintiff in meetings and emails; scrutinizing Plaintiff’s work more closely; failing to respond to Plaintiff in a timely manner; challenging Plaintiff’s information; challenging Plaintiff’s requested accommodations while not questioning accommodations for Plaintiff’s younger coworkers; giving a written reprimand for Plaintiff’s failure to follow policies and correct payroll errors; removing Plaintiff from leadership meetings; and revoking Plaintiff’s “lead pay” which comprised 5% of Plaintiff’s salary.

On October 22, 2019, Plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC) and California Department of Fair Employment and Housing (DFEH) for age and disability discrimination against Tri-City. (SAC, ¶ 37) On June 25, 2020, Plaintiff and Tri-City entered into a settlement agreement where Tri-City agreed to require management receive training on age discrimination and retaliation. (SAC, ¶ 44.) However, Plaintiff alleges the trainings never occurred and harassment continued. In October 2020, Plaintiff was hospitalized with severe abdominal pain and prescribed medical treatment for emotional stress. In January 2021, Trevor Bogle, an employee of Tri-City and friend of Torregano, began telling Plaintiff’s coworkers that Plaintiff filed a lawsuit against Tri-City and could not be trusted. On March 2, 2021, Plaintiff filed a second complaint with the EEOC and DFEH for retaliation. Plaintiff alleges that Plaintiff’s annual performance review indicated areas of improvement, was provided in a different format than those of Plaintiff’s peers, and was given to Plaintiff late as a result of Plaintiff’s complaints to the EEOC and DFEH.

On November 22, 2021, Plaintiff filed a verified complaint against Tri-City and Torregano (collectively, Defendants), as well as Does 1-50, alleging the following causes of action: (1) retaliation in violation of FEHA, (2) violation of Labor Code section 1102.5, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) defamation.

On January 14, 2022, Plaintiff filed a First Amended Complaint (FAC) against the same parties, alleging the following causes of action: (1) retaliation in violation of FEHA, (2) violation of Labor Code section 1102.5, (3) harassment, (4) failure to prevent harassment and retaliation, (5) intentional infliction of emotional distress, (6) negligent infliction of emotional distress, (7) defamation, (8) declaratory relief, and (9) injunctive relief. On February 18, Defendants demurred to Plaintiff’s FAC and filed a motion to strike. On April 4, the court overruled the demurrer as to Plaintiff’s second, sixth, and seventh cause of action; sustained the demurrer as to Plaintiff’s first cause of action without leave to amend; and sustained the demurrer with leave to amend as to Plaintiff’s third, fourth, fifth, eight, and ninth causes of action.

On May 20, 2022, Plaintiff filed a Second Amended Complaint (SAC) against the same parties, alleging the same causes of action. On June 27, Defendants demurred to Plaintiff’s SAC. At a July 22 hearing on the demurrer, the court noted parties attempted to meet and confer, ordered supplemental briefing, and continued the hearing.

A hearing on the demurrer and a case management conference is set for December 5, 2022.

REQUEST FOR JUDICIAL NOTICE

Defendants’ request for judicial notice of this court’s ruling on the demurrer to Plaintiff’s FAC is granted. (Evid. Code, § 452, subd. (d).)

LEGAL STANDARD

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, at p. 747.)

DISCUSSION

Defendants demur to Plaintiff’s third cause of action (harassment), fourth cause of action (failure to prevent harassment), fifth cause of action (intentional infliction of emotional distress), eighth cause of action (declaratory relief), and ninth cause of action (injunctive relief). Defendants also object to Plaintiff’s supplemental filings.

For the following reasons, the court SUSTAINS Defendants’ demurrer to Plaintiff’s fifth cause of action with twenty (20) days leave to amend and OVERRULES Defendants’ demurrer as to the third, fourth, eighth, and ninth causes of action.

Plaintiff’s Supplemental Filings

Defendants object to Plaintiff’s supplemental brief, arguing it exceeds page limits. Defendants also object to Plaintiff’s supplemental brief, reply to Defendants’ supplemental brief, and declaration, arguing they do not adequately address the issues raised by the court in the July 22, 2022, hearing, raise improper arguments, and attempt to allege new facts.

The court finds Plaintiff’s supplemental brief does not comply with Rule 3.1113, subdivision (d) of the California Rules of Court. While Plaintiff’s supplemental brief measures 23 pages, excluding the cover page, table of contents, and table of authorities, responding memorandum may not exceed 15 pages and reply memorandum may not exceed 10 pages. Thus, while the court will exercise its discretion to consider Plaintiff’s supplemental brief, it will not consider any pages of the brief that exceed the 15-page limit.

The court will also not consider any additional facts introduced in Plaintiff’s filings as the court may only consider facts pled in the complaint or provided in the complaint’s exhibits when entertaining a demurrer. (Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 596-597.)

Harassment and Failure to Prevent Harassment (Third and Fourth Causes of Action)

Defendants argue Plaintiff’s third cause of action for age-based harassment in violation of Government Code section 12940, subdivision (j) and fourth cause of action for failure to prevent harassment in violation of Government Code section 12940, subdivision (k) fail to plead sufficient facts to state a claim. The court disagrees as to both causes of action.

Government Code section 12940, subdivision (j)(1) prohibits harassment of an employee “because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.” (Gov. Code § 12940, subd. (j)(1).) “To establish a prima facie case of harassment, [Plaintiff] must show that (1) [Plaintiff] is a member of a protected class; (2) [Plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [Plaintiff’s] protected status; (4) the harassment unreasonably interfered with [Plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563.)

In this case, Defendants maintain Plaintiff cannot establish harassment was based on Plaintiff’s protected status because Plaintiff’s SAC “does not indicate Torregano made a single age-related comment to or about Plaintiff.” Furthermore, Defendants contend that Torregano’s actions cannot sustain a claim of harassment because they fall within common and necessary personal management actions. Lastly, Defendants argue Plaintiff’s failure to establish harassment also dooms Plaintiff’s fourth cause of action for failure to prevent harassment. Pursuant to FEHA, harassment is distinguished from discrimination in that discrimination occurs in the exercise of commonly necessary personal management actions while harassment occurs outside the scope of personal management and affects the workplace’s social environment. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869-870.) Commonly necessary personal management actions include “hiring and firing, job or project assignments, office or workstation assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or non-assignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like.” (Reno v. Baird (1998) 18 Cal.4th 640, 646-647, quoting Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63-65.)

However, our supreme court has also noted that a cause of action for discrimination and a cause of action for harassment under FEHA are not mutually exclusive as an employee who is the victim of discrimination based on official actions of the employer can “also be the victim of harassment by a supervisor for abusive messages that create a hostile working environment.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707 (Roby).) For example, widespread sexual favoritism in the workplace can constitute a prima facie case of sexual harassment because the actions convey a demeaning message to female employees. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 451 (Miller).) In Miller, “official employment actions constituted the evidentiary basis of the harassment cause of action, because the supervisor used those official actions as his means of conveying his offensive message.” (Roby, supra, 47 Cal.4th at p. 708.)

In Roby, official actions including shunning during staff meetings, belittling the plaintiff’s job, and publicly reprimanding plaintiff can “establish a widespread pattern of bias” that has the “secondary effect of communicating a hostile message.” (Id., at p. 709.) Furthermore, even though the court of appeal held the evidence did not establish the supervisor’s rude treatment was because of Plaintiff’s physical disability or medical condition, our supreme court disagreed and noted that a “jury could infer, based on the discrimination evidence, that supervisor[‘s] hostility was ‘because of . . . [plaintiff’s] medical condition.’” (Id., at p. 710.) Specifically, the court pointed to the fact that the supervisor knew of plaintiff’s medical condition but applied an attendance policy without making any accommodations, announced plaintiff’s absence in a degrading manner, and made “demeaning comments, gestures, and facial expressions . . . response to [Plaintiff’s] body odor and arm sores.” (Id., at p. 710-711.)

Here, Plaintiff alleges sufficient facts establishing a pattern of bias against Plaintiff by Torregano. Plaintiff claims Torregano called Plaintiff “lame.” (SAC, ¶ 21.) Plaintiff also alleges multiple instances where Plaintiff was treated worse than Plaintiff’s younger coworkers including being ignored (SAC, ¶ 26-27), scrutinized closely (SAC, ¶ 26, 42), spoken to a condescending manner (SAC, ¶ 26), forced to provide proof for medical accommodations every year (SAC, ¶ 29), and subjected to greater oversight and restrictions than younger peers. (SAC, ¶ 42.) Additionally, Plaintiff described how other older employees were discriminated against and forced to retire or resign. (SAC, ¶ 45-50.) Although Defendants are correct that Plaintiff has not alleged Torregano explicitly harassed Plaintiff on the basis of age, Plaintiff has established Plaintiff was subjected to different and more negative treatment than Plaintiff’s younger coworkers. That treatment has a secondary effect of communicating a hostile message to Plaintiff based on Plaintiff’s age that constitutes harassment.

Defendants have attempted to distinguish Roby from this case on the grounds that Roby involved evidence presented during a jury trial. However, the Roby case’s procedural posture does not dilute its affirmation of Miller’s holding that discriminatory actions can constitute harassment if they communicate a hostile message to the plaintiff. (Id., at p. 708; Miller, supra, 36 Cal.4th at p. 451.) Furthermore, at the demurrer stage, the court treats “the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, quoting Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

Thus, the court disagrees with Defendants’ argument that Plaintiff’s SAC fails to state a claim for harassment or failure to prevent harassment because Torregano’s actions were personnel management action not explicitly directed at Plaintiff’s age. Instead, the court finds Plaintiff’s allegations that Plaintiff was subjected to worse treatment than younger coworkers establishes a prima facie case for harassment against Defendants because Torregano’s actions communicated a hostile message to Plaintiff based on age.

Accordingly, Defendants’ demurrer to Plaintiff’s third and fourth causes of action is OVERRULED.

Intentional Infliction of Emotional Distress (Fifth Cause of Action)

Defendants maintain Plaintiff’s fifth cause of action for intentional infliction of emotional distress (IIED) fails to plead sufficient facts to state a claim. The court agrees.

To establish a claim of IIED, one must show “(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.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, quoting Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593.) Extreme and outrageous conduct is defined as exceeding “all bounds of decency usually tolerated by a decent society” and intending to cause mental distress. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.)

In this case, Defendants argue Plaintiff’s allegations of Torregano’s conduct do not rise to the level of extreme and outrageous as required for an IIED claim. Plaintiff contends that Torregano went beyond mere insults, indignities, annoyances, or other trivialities as Torregano’s accusations of incompetence were calculated to cause severe emotional distress and constitute a prima facie showing of extreme and outrageous conduct.

“Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.” (Berkley v. Dowds (2007) 152 Ca.App.4th 518, 534.) When determining what constitutes outrageous conduct “[o]n the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive.” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129 (Yurick).) These requirements “are rigorous, and difficult to satisfy.” (Ibid, quoting Prosser & Keeton on Torts (5th Ed. 1984 § 12, pp. 60-61.) In Yurick, plaintiff’s supervisor referred to plaintiff as “senile and a liar” in front of others in the workplace. (Id., at p. 1119.) Even though the conduct was objectively offensive, the conduct “was not so egregiously outside the realm of civilized conduct as to give rise to actionable infliction of mental distress.” (Id., at p. 1129.) Furthermore, plaintiff did not provide the context of the workplace setting to establish abuse of the supervisor’s position in the workplace. (Ibid.) In Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138 (Smith), racially offensive comments could be extreme and outrageous when made in front of an audience of fifty of plaintiff’s colleagues. (Id, at p. 148-149.) In Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493 (Alcorn), the hurling of racial slurs at a plaintiff followed by plaintiff’s termination were sufficient for an IIED claim to survive a demurrer. (Id., at p. 498-499.)

Here, Plaintiff has only alleged rude and unprofessional behavior similar to that in Yurick. Like the Yurick plaintiff, Plaintiff has claimed Torregano called Plaintiff “lame” (SAC, ¶ 21), spoke to Plaintiff condescendingly in meetings and emails (SAC, ¶ 26, 42), and inferred in emails that Plaintiff is not competent and knowledgeable (SAC, ¶ 42). Plaintiff claims another employee accused Plaintiff of being untrustworthy after making claims against Tri-City which resulted in other employees distrusting Plaintiff. (SAC, ¶ 57-59) Plaintiff also claims Torregano fabricated scenarios to make Plaintiff seem incompetent in the eyes of Tri-City’s executive director, ultimately culminating in the executive director stating during a leadership meeting that “if an employee cannot do their job, then they need to leave” while looking at Plaintiff. (SAC, ¶ 60, 68.)

Ultimately, Plaintiff has failed to allege facts that establish Torregano’s behavior was extreme and outrageous as a matter of law. The only actual insult alleged was the initial text message that Torregano accidently sent to Plaintiff. The rest of the allegations involve criticisms of Plaintiff’s performance, trustworthiness, and competence rather than insults as in Alcorn. And unlike Smith where racially offensive comments were made before a group, the claim that incompetent employees needed to quit in the Tri-City leadership meeting may be harsh but hardly rises to the level of offensive that supports a IIED claim. Accordingly, Defendants’ demurrer to Plaintiff’s fifth cause of action is SUSTAINED with leave to amend.

Declaratory and Injunctive Relief (Eighth and Ninth Causes of Action)

Defendants contend Plaintiff’s eighth cause of action for declaratory relief and ninth cause of action for injunctive relief fails to plead sufficient facts to state a claim. The court disagrees.

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.) A party seeking injunctive relief must show the absence of an adequate remedy at law. (Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1564 (Anderson-Cottonwood).) “[A]n injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff.” (Id., at p. 1565.)

In this case, Defendants argue Plaintiff is not entitled to declaratory relief because Plaintiff has not established the existence of an actual controversy and declaratory relief does not operate to redress past wrongs. (See Babb v. Superior Court (1971) 3 Cal.3d 841, 848.) Defendants also contend Plaintiff cannot establish an entitlement to injunctive relief because Plaintiff has failed to demonstrate damages would be inadequate remedy and has not alleged sufficient facts alleging Defendants intend to engage in any prohibited activity.

However, because the purpose of FEHA is not only the redressing discrimination but also preventing and deterring such discrimination, plaintiffs are entitled to declaratory or injunctive relief when appropriate. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 211.) As to declaratory relief, Plaintiff has adequately pled the existence of a controversy between Plaintiff and Defendants by pleading a cause of action for harassment and failure to prevent harassment. Despite Defendants’ suggestion, this is not a case where the controversy is caused or “bootstrapped” by Plaintiff’s claim for declaratory relief as the controversy requirement is satisfied by the other claim for harassment. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.)

With regards to the request for injunctive relief, Plaintiff has adequately pled there is a substantial likelihood of harassment continuing in the future unless enjoined. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) Plaintiff has alleged harassment continued even after Plaintiff filed complaints with the EEOC and DFEH. (SAC, ¶ 42, 57, 60, 72.) Furthermore, Plaintiff has adequately pled the necessity for injunctive relief by alleging Tri-City agreed to conduct age discrimination training in a settlement with Plaintiff and subsequently failed to. (SAC, ¶ 44.) Thus, Plaintiff has adequately pled facts to support requests for declaratory and injunctive relief.

Accordingly, Defendants’ demurrer to Plaintiff’s eighth and ninth causes of action is OVERRULED.

CONCLUSION

Based on the foregoing, Defendants’ demurrer to Plaintiff’s Second Amended Complaint is OVERRULED IN PART, SUSTAINED IN PART.

The demurrer is OVERRULED as to the third, fourth, eighth, and ninth causes of action. The demurrer is SUSTAINED with twenty (20) days leave to amend as to the fifth cause of action.