Judge: Salvatore Sirna, Case: 22PSCV01876, Date: 2023-08-10 Tentative Ruling
Case Number: 22PSCV01876 Hearing Date: August 10, 2023 Dept: G
Defendants Pomona Valley Hospital Medical Center, Kelly
Jacobson, Kathy Majeski, Shirley Augustine, and Deeann Gibbs’s Demurrer to
Plaintiff’s Complaint
Respondent: Plaintiff Elizabeth T. Baker
TENTATIVE
RULING
Defendants Pomona Valley Hospital Medical Center, Kelly Jacobson,
Kathy Majeski, Shirley Augustine, and Deeann Gibbs’s Demurrer to Plaintiff’s
Complaint is SUSTAINED with ten (10) days leave to amend.
BACKGROUND
This is a wrongful termination action. From 2003 to 2019,
Defendant Pomona Valley Hospital Medical Center (PVHMC) employed Plaintiff
Elizabeth T. Baker as a nurse in its Labor Delivery Recovery Postpartum
Department. During Plaintiff’s time at PVHMC, Plaintiff alleges nursing
supervisors made racist comments, called Plaintiff demeaning nicknames,
criticized Plaintiff for taking medical leave, and retaliated against Plaintiff
for raising issues with their behavior. On November 12, 2019, Plaintiff was
accused of forging the signature of Plaintiff’s physician on disability
certification forms. Ten days later on November 21, Plaintiff’s employment was terminated.
On November 18, 2022, Plaintiff filed a complaint against
PVHMC, Kelly Jacobson (Jacobson), Kathy Majeski (Majeski), Shirley Augustine
(Augustine), Deeann Gibbs (Gibbs, collectively, Defendants), and Does 1-50,
alleging the following causes of action: (1) disability discrimination, (2)
race or ethnicity discrimination, (3) disability harassment, (4) race or
ethnicity-based harassment, (5) failure to prevent, investigate, and remedy
discrimination, harassment, or retaliation, (6) failure to accommodate
disability, (7) failure to engage in the interactive process to accommodate
disability, (8) violation of the California Family Rights Act, (9) wrongful
termination in violation of public policy, (10) retaliation, (11), aiding,
abetting, inciting, compelling, or coercing violations of FEHA, (12)
intentional infliction of emotional distress, and (13) negligent infliction of
emotional distress. On June 7, the court sustained Defendants’ demurrer to
Plaintiff’s Complaint with leave to amend as to the twelfth and thirteenth
causes of action and without leave to amend as to the remaining causes of
action.
On June 27, 2023, Plaintiff filed a First Amended Complaint
(FAC) against the same Defendants alleging (1) intentional infliction of
emotional distress and (2) negligent infliction of emotional distress.
On July 17, 2023, Defendants filed the
present demurrer. Prior to filing on July 13, Defendants’ counsel met and
conferred telephonically with Plaintiff’s counsel and was unable to reach a
resolution. (Love Decl., ¶ 2.)
A hearing on the demurrer is set for August
10, 2023, along with a case management conference.
ANALYSIS
Defendants demur to Plaintiff’s first cause
of action (intentional infliction of emotional distress or IIED) and second
cause of action (negligent infliction of emotional distress or NIED). For the
following reasons, the court SUSTAINS
Defendants’ demurrer to Plaintiff’s
causes of action with leave to amend.
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.)
“A demurrer based on a statute of limitations
will not lie where the action may be, but is not necessarily, barred.
[Citation.] In order for the bar of the statute of limitations to be raised by
demurrer, the defect must clearly and affirmatively appear on the face of the
complaint; it is not enough that the complaint shows that the action may be barred.”
(Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397,
1403.) The statute of limitations for personal
injury claims is two years. (Code Civ. Proc., § 335.1.)
Discussion
Defendants argue Plaintiff’s causes of action
fail because they are barred by the applicable statute of limitations. In
response, Plaintiff contends the applicable statute of limitations does not bar
Plaintiff’s action pursuant to the doctrine of equitable tolling, continuing
violations, and equitable estoppel.
Equitable Tolling
The judicially-created doctrine of equitable
tolling prevents the “unjust and technical forfeitures of the right to a trial
on the merits when the purpose of the statute of limitations—timely notice to
the defendant of the plaintiff's claims—has been satisfied.” (McDonald v.
Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99, quoting Appalachian
Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal.App.3d 1, 38.) In other
words, “the doctrine applies ‘[w]hen an injured person has several legal
remedies and, reasonably and in good faith, pursues one.’” (Id., at p.
100, quoting Elkins v. Derby (1974) 12 Cal.3d 410, 414.)
In this case, Plaintiff failed to identify
which legal remedy Plaintiff pursued prior to the filing of the present action.
Furthermore, Plaintiff’s opposition failed to explain the grounds for equitable
tolling, and instead appears to confuse it with the separate doctrine of
equitable estoppel. (Opp., p. 4:19-7:28.) Thus, the court does not find grounds
upon which the doctrine of equitable tolling applies.
Continuing Violations
While a statute of limitations generally runs
after the last essential element of a cause of action occurs, “[t]he continuing
violation doctrine aggregates a series of wrongs or injuries for purposes of
the statute of limitations, treating the limitations period as accruing for all
of them upon commission or sufferance of the last of them.” (Willis v. City
of Carlsbad (2020) 48 Cal.App.5th 1104, 1124, quoting Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192 (Aryeh).) “For
the continuing violation doctrine to apply, a plaintiff must show the defendant
engaged in ‘a pattern of reasonably frequent and similar acts [that] may, in a
given case, justify treating the acts as an indivisible course of conduct
actionable in its entirety, notwithstanding that the conduct occurred partially
outside and partially inside the limitations period.’” (Ibid, quoting Aryeh,
supra, 55 Cal.4th at p. 1198.)
In this case, Plaintiff alleged Defendants
caused Plaintiff emotional distress by terminating Plaintiff’s employment on
November 21, 2019, after requiring Plaintiff to obtain a letter from
Plaintiff’s doctor that was allegedly unnecessary pursuant to the FMLA. (FAC, ¶
48, 81, 83, 97.) However, Plaintiff did not file the present action within the
required two years and instead filed three years later on November 18, 2022.
Plaintiff also alleged Plaintiff is facing criminal prosecution and continued
emotional distress due to Defendants’ actions. (FAC, ¶ 60, 71.) However, Plaintiff
failed to identify any authority that establishes the continued accrual of
damages, as opposed to violations, is sufficient to extend a statute of
limitations for alleged wrongs that occurred in November 2019.
Thus, the court does not find applicable to
this case the continuing violations doctrine since the only violations alleged
occurred in November 2019 and earlier.
To the extent Plaintiff alleged Defendants
intentionally lied to an Employment Development Department (EDD) investigator
about Plaintiff’s FMLA status and failed to disclose Plaintiff’s status,
Plaintiff failed to plead how and when these acts occurred with any specificity
or clarity. (FAC, ¶ 62, 71.)
Equitable Estoppel
“In appropriate cases, a defendant may be
equitably estopped from asserting a statutory limitations period. [Citation.] ‘Generally
speaking, four elements must be present in order to apply the doctrine of
equitable estoppel: (1) the party to be estopped must be apprised of the facts;
(2) he [or she] must intend that his [or her] conduct shall be acted upon, or
must so act that the party asserting the estoppel had a right to believe it was
so intended; (3) the other party must be ignorant of the true state of facts;
and (4) he [or she] must rely upon the conduct to his [or her] injury.’” (Doe
v. Marten (2020) 49 Cal.App.5th 1022, 1028, quoting Honeywell v.
Workers’ Comp. Appeals Bd. (2005) 35 Cal.4th 24, 37.)
In this case, Plaintiff argued equitable
estoppel applies because Defendants led Plaintiff to believe Plaintiff did not
qualify for FMLA when Plaintiff was terminated. (Opp., p. 7:17-27; FAC, ¶ 60.)
However, Plaintiff failed to demonstrate how Defendants “deliberately induced
the plaintiff to delay filing suit.” (Peregrine Funding, Inc. v. Sheppard
Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 686.) Instead,
Plaintiff’s FAC suggests the delay was the result of Plaintiff not learning the
FMLA was applicable until an EDD investigator testified at Plaintiff’s
preliminary hearing in October 2022. (FAC, ¶ 60.) Plaintiff failed to provide
any authority that establishes a mistake of law as grounds for equitable estoppel,
especially when knowledge of the law is available to both parties. (Cf.
People v. Stuyvesant Ins. Co. (1968) 261 Cal.App.2d 773, 784 [“Where the
facts and law are known to both parties, there can be no estoppel.”].) Thus,
Plaintiff cannot establish grounds for equitable estoppel.
Accordingly, Defendants’ demurrer to
Plaintiff’s first and second causes of action is SUSTAINED with leave to
amend.
CONCLUSION
Based on the
foregoing, Defendants’ demurrer to Plaintiff’s FAC is SUSTAINED with ten
(10) days leave to amend.