Judge: Stephen I. Goorvitch, Case: 22STCV09214, Date: 2022-08-11 Tentative Ruling

Case Number: 22STCV09214    Hearing Date: August 11, 2022    Dept: 39

Isidro Perez v. Robsag, Inc, et al.

Case No. 22STCV09214

Demurrer

[TENTATIVE] Order

            Plaintiff Isidro Perez (“Plaintiff”) filed this employment discrimination action against Robsag, Inc., Kim Commodore, and Ann Hamilton (collectively, “Defendants”) asserting various causes of action under FEHA and common law.  Now, Defendants demur to the second cause of action (hostile work environment/harassment under FEHA) and the eighth cause of action (for intentional infliction of emotional distress). 

            Plaintiff alleges as follows:  Plaintiff worked at a skilled nursing facility and contracted COVID-19 and could not work as a result.  (First Amended Complaint, ¶ 15.)  Plaintiff’s daughter called Ann Hamilton and stated that Plaintiff had contracted COVID-19 at work.  (Ibid.)  Hamilton became defensive and denied that other workers or residents were sick and ended the conversation.  (Ibid.)  Upon returning to work, Kim Commodore scheduled a meeting with him and said that he was being fired because they no longer required his services.  (Id., ¶ 16.)  Plaintiff said that he thought he could return to work after receiving a negative COVID-19 test.  (Ibid.)  In response, Commodore stated that he was being terminated because he tried to blame them for contracting COVID-19, and Plaintiff’s daughter was making rude accusations towards Ann Hamilton.  (Ibid.)

            The above-referenced allegations are not sufficient to support causes of action for hostile work environment or intentional infliction of emotional distress.  Plaintiff concedes that Commodore made these comments in the context of terminating Plaintiff, so the do not constitute severe or pervasive harassment that interfered with Plaintiff’s work performance.  Moreover, Plaintiff cannot predicate a cause of action for intentional infliction of emotional distress on “discipline or criticism” because such conduct is “a normal part of the employment relationship . . . , [e]ven if such conduct may be characterized as intentional, unfair or outrageous.”  (Shoemaker v. Myers (1990) 52 Cal.3d 1, 25.)   

            Based upon the foregoing, the Court orders as follows:

            1.         Defendants’ demurrer is sustained.

            2.         The Court denies leave to amend.  Plaintiff’s allegations are insufficient as a matter of law, and Plaintiff’s counsel articulates no additional facts that would support such claims. 

            3.         The Court continues the case management conference to October 18, 2022, at 8:30 a.m. 

            4.         Defendant Barrett Business Services, Inc. has not been served in violation of California Rules of Court, rule 3.110, which requires a plaintiff to serve a defendant and file the proof of service within sixty (60) days.  Therefore, the Court sets an Order to Show Cause why Barrett Business Services, Inc. should not be dismissed without prejudice due to violation of rule 3.110, and lack of prosecution under Code of Civil Procedure section 581 and 583, for October 18, 2022, at 8:30 a.m.  The OSC hearing shall be held at the following location:

            Stanley Mosk Courthouse

            111 North Hill Street

            Department #39 (Goorvitch, J.)

            Los Angeles, California 90012

The parties may appear remotely or in-person.  The Court orders Plaintiff to service Barrett Business Services, Inc. forthwith.  Plaintiff’s counsel may file a response (or the proof of service) on or before October 11, 2022.  If Plaintiff’s counsel fails to do so, and fails to appear at the OSC hearing, absent good cause, the Court intends to dismiss this defendant without prejudice.

            5.         Defendants’ counsel shall provide notice and file proof of such with the Court.