Judge: Serena R. Murillo, Case: 23STCV05305, Date: 2023-11-03 Tentative Ruling

Case Number: 23STCV05305    Hearing Date: November 3, 2023    Dept: 31

TENTATIVE

Defendant’s demurrer is OVERRULED.

Legal Standard 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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, 147 Cal.App.4th at 747.) 

Meet and Confer 

The demurrer and motion to strike are accompanied by the declaration of Felton T. Newell, which satisfies the meet and confer requirement. (Code Civ. Proc. § 430.41.)  

Discussion

Defendant demurs to the seventh, tenth, and eleventh causes of action for breach of contract, unpaid overtime wages, and intentional infliction of emotional distress.

I.                 Seventh Cause of Action for Breach of Contract

Defendant cites cases including Miller v. State of California (Miller), 18 Cal. 3d 808 (Cal. 1977) for the proposition that public employment in California is not held by contract but by statute. Miller and Defendant’s other cited authorities concern employment with civil service positions whose terms and conditions are fixed by statute in Division 5 of Title 2 of the Government Code, beginning with section 18000.  (See Miller, 18 Cal.3d at 811-814.)  These cases cannot be read as a general statement that the employment of every employee who works for a public entity in any capacity is statutory and not contractual.   

Defendant thus fails to demonstrate that Plaintiff’s seventh cause of action fails because her employment was established by statute instead of by contract.  The court therefore OVERRULES the demurrer to the seventh causes of action.   

II.               Tenth Cause of Action for Unpaid Overtime

Labor Code section 1194, subdivision (a), provides, “any employee receiving less than … the legal overtime compensation applicable to the employee is entitled to recover in a civil action….” Plaintiff’s allegation that she was not paid for overtime hours worked is sufficient to state a cause of action for failure to pay overtime at this stage of the pleadings.

Defendant also argues that Plaintiff’s claims for unpaid wages equally fails as she neglects to plead the amount of wages owed. However, the Court does not need to resolve this argument, as a demurrer does not lie only as to a portion of a cause of action. If there are sufficient allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167; See also Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 (stating that the sustaining of a demurrer may only be upheld if the complaint fails to state a cause of action under any possible legal theory).)

Defendant’s demurrer as to the tenth cause of action is OVERRULED.

III.             Eleventh Cause of Action for Intentional Infliction of Emotional Distress (“IIED”)

“The Government Claims Act ([Gov’t Code] § 810 et seq.) establishes the limits of common law liability for public entities, stating: ‘Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.’  (§ 815, subd. (a), italics added.)”  (Miklosy v Regents of Univ. of Cal. (Miklosy) 44 Cal. 4th 876, 899 (2008).)  The California Supreme Court has confirmed that section 815 abolishes all common law tort liability for public entities.  (Id.)   

Section 815 contains a number of exceptions, the most relevant of which is section 815.2, which states: 

(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. 

(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. 

(Gov’t Code § 815.2.)  “The policy underlying the Act is that liability is the rule, immunity the exception.”  (Michael J. v. Los Angeles Cnty. Dept. of Adoptions (Michael J), 201 Cal.App.3d 859, 866-867 (1988).)

Courts have recognized that the Government Claims Act does not provide blanket immunity to a public entity on an IIED claim and that the public entity can be held liable if the employee is not separately immune from liability.  Compare Blanco v. Cnty. of Kings (Blanco), 142 F.Supp.3d 986, 1003-1004 (E.D. Cal. 2015) (denying a motion to dismiss where a plaintiff had adequately pled the elements of an IIED claim against a public employee and the defendant failed to address the issue of vicarious liability) with Hansen v. Dep’t of Corr. & Rehab. (Hanson), 171 Cal. App. 4th 1537, 1547 (Cal. Ct. App. 2008) (finding a public entity was immune from an IIED claim because the employee was immune from tort liability for any acts done by the employee in preparation for formal judicial or administrative proceedings).   

Plaintiff argues that Defendant is vicariously liable for the tortious conduct of its employees under Government Code § 815.2. Defendant argues in reply that Plaintiff has not pled any facts to establish an individual employee is liable for IIED. However, Defendant has not provided any authority that says the employee must be identified at the pleading stage. The demurrer to the eleventh cause of action for IIED is therefore OVERRULED.

Conclusion

Based on the foregoing, Defendant’s demurrer is OVERRULED.

Moving party is ordered to give notice.