Judge: Stephen I. Goorvitch, Case: 23STCV02059, Date: 2023-08-30 Tentative Ruling

Case Number: 23STCV02059    Hearing Date: August 30, 2023    Dept: 39

Marisela Alvarado v. Alma Family Services, et al.

Case No. 23STCV02059

Demurrer and Motion to Strike

BACKGROUND

            Plaintiff Marisela Alvarado (“Plaintiff”) filed this employment action against Alma Family Services, Lourdes Caracoza, and Diego Rodriguez (collectively, “Defendants”) asserting the following causes of action against Alma Family Services:

            1.         Race discrimination under the Fair Employment and Housing Act (“FEHA”)

            2.         Age discrimination under FEHA

            3.         Disability discrimination under FEHA

            4.         Harassment under FEHA

            5.         Retaliation under FEHA

            6.         Failure to prevent discrimination, harassment, and retaliation under FEHA

            7.         Wrongful termination in violation of FEHA

            8.         Intentional infliction of emotional distress 

            9.         Negligence

            10.       Failure to pay overtime wages

            11.       Failure to provide meal and rest breaks

            12.       Failure to pay discharged employee

            13.       Failure to provide itemized wage statements

            14.       Violation of Labor Code section 206.5

            15.       Retaliation under Labor Code section 1102.5

Plaintiff alleges the following causes of action against the individual defendants:

            4.         Harassment under FEHA

5.         Retaliation under FEHA

8.         Intentional infliction of emotional distress 

9.         Negligence

Plaintiff seeks punitive damages.  Defendants demur to the second, fourth, eighth, ninth, and fourteenth causes of action, and move to strike the prayer for punitive damages.  Plaintiff opposes the motions. 

LEGAL STANDARD

A.        Demurrer

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.)  “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, 147 Cal.App.4th at p. 747.)  However, courts do not accept as true deductions, contentions, or conclusions of law or fact.  (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)  The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)  In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  

            B.        Motion to Strike

Courts may, upon a motion, or at any time in their discretion, and upon terms they deem proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) Courts may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., §¿437.)  

DISCUSSION

            A.        Second Cause of Action

            Plaintiff’s second cause of action is age discrimination under FEHA.  Plaintiff does not allege any facts suggesting that she was terminated because she was over 40 years old.  The only fact she alleges is: “Plaintiff was subjected to comments about her age; that she was too young to be in a position of authority.”  (First Amended Complaint, ¶ 43.)  This is insufficient to assert a claim that she was terminated for being over 40 years old.  Therefore, the demurrer to the second cause of action is sustained with leave to amend.

            B.        Fourth Cause of Action

Plaintiff’s fourth cause of action is harassment under FEHA based upon a hostile work environment.  To state a claim for hostile work environment harassment, Plaintiff must allege that Defendants engaged in severe or pervasive harassment that unreasonably interfered with Plaintiff’s work performance.  (See Thompson v. City Of Monrovia (2010) 186 Cal.App.4th 860, 877.)  The only specific fact is that “Plaintiff was ignored at faculty meetings.”  (First Amended Complaint, ¶ 62.)  Plaintiff has not alleged that Defendants engaged in severe or pervasive harassment.  Therefore, the demurrer to the fourth cause of action is sustained with leave to amend.   

C.        Eighth Cause of Action

Plaintiff’s eighth cause of action is intentional infliction of emotional distress (“IIED”).  “The elements of the tort of intentional infliction of emotional distress are: (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.  Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.  The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.”  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001, internal quotations and citations omitted.)  Plaintiff alleges that Defendants “took concerted actions against Plaintiff, which were intended to subject her to discrimination and harassment.”   (First Amended Complaint, ¶ 97.)  Plaintiff fails to allege extreme and outrageous conduct that would support a claim for IIED.  Further, workers’ compensation provides the exclusive remedy for emotional distress caused by an employer’s conduct in employment actions when the misconduct attributed to the employer are a normal part of the employment relationship. (See Cole v. Fair Oaks Fire Prot. Dist. (1987) 43 Cal.3d 148, 160.)  Therefore, the demurrer to the eighth cause of action is sustained with leave to amend.

D.        Ninth Cause of Action

Plaintiff’s ninth cause of action is negligence.  To the extent Plaintiff alleges that Alma Family Services negligently employed the individual defendants, the claim fails because Plaintiff does not allege sufficient facts that the individual defendants created a hostile work environment or engaged in activities constituting IIED.  Plaintiff cannot assert this cause of action against the individual defendants because she does not sufficiently allege that they owed her a duty for purposes of negligence.  Therefore, the demurrer to the ninth cause of action is sustained with leave to amend. 

            E.         Fourteenth Cause of Action

Plaintiff’s fourteenth cause of action is for violation of Labor Code section 206.5.  Labor Code section 206.5 prohibits employers from imposing conditions on the payment of wages, or “requir[ing] the execution of a release of a claim or right on account of wages due[.]”  (See Lab. Code, §§ 206, 206.5.)  This provision voids a release, but does not provide a private right of action.  Therefore, the demurrer to the fourteenth cause of action is sustained without leave to amend.

F.         Motion to Strike

Defendants move to strike Plaintiff’s prayer for punitive damages.  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud or malice.  (Civ. Code, § 3294, subd. (a).)  “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”  (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, internal citations and footnotes omitted; see also Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715-716.) 

Moreover, to assert a claim for punitive damages against Alma Family Services, Plaintiff must allege facts demonstrating that a managing agent perpetrated the acts at issue.  “[T]he imposition of punitive damages upon a corporation is based upon its own fault.  It is not imposed vicariously by virtue of the fault of others.”  (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal. App. 3d 31, 36.)  “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.  An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.  But the law does not impute every employee’s malice to the corporation.  Instead, the punitive damages statute requires proof of malice among corporate leaders:  the officers, directors, or managing agents.”  (Cruz v. Home Base (2000) 83 Cal. App. 4th 160, 167, internal quotations and citation omitted.)

Based upon the foregoing, the Court grants the motion to strike the prayer for punitive damages.  The Court shall afford leave to amend.    

CONCLUSION AND ORDER

            Based upon the foregoing, the Court orders as follows:

            1.         The Court sustains the demurrer to the second, fourth, eighth, ninth, and fourteenth causes of action.

            2.         The Court grants the motion to strike the prayer for punitive damages.

            3.         The Court grants leave to amend except with respect to the fourteenth cause of action.

            4.         Plaintiff shall file a second amended complaint within 30 days. 

            5.         If Plaintiff fails to file a timely second amended complaint, the second, fourth, eighth, and ninth causes of action are dismissed, and the prayer for punitive damages is struck, without further order of the Court.  Defendants shall then file an answer within 30 days of Plaintiff’s deadline.

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