Judge: Stephen I. Goorvitch, Case: 23STCV09562, Date: 2023-11-16 Tentative Ruling

Case Number: 23STCV09562    Hearing Date: January 19, 2024    Dept: 39

Guninder Singh v. County of Los Angeles, et al.

Case No. 23STCV09562

Demurrer and Motion to Strike

Case Management Conference

BACKGROUND

            Plaintiff Guninder Singh (“Plaintiff”) filed this action against the County of Los Angeles (the “County”), as well as four individual defendants—Kresimir Kovac, Brian Yanagi, John Burcher, and Lewis Lim—asserting causes of action for retaliation in violation of Labor Code section 1102.5, intentional infliction of emotional distress, and conspiracy.  Plaintiff also asserts a claim for punitive damages.  The Court previously sustained the demurrer and granted the motion to strike with leave to amend.  The Court previously sustained Defendants’ demurrer but granted leave to amend.  The original complaint alleged that Plaintiff was subjected to a “sham” investigation, but it was unclear whether the investigation was non-existent and therefore fictitious, or whether the investigation was real but merely unfounded.  Plaintiff filed a first amended complaint clarifying that there actually was an investigation.  Defendants again demur to the causes of action and move to strike the prayer for punitive damages.  At the prior hearing, Defendants’ counsel argued that there is immunity under Government Code section 821.6, and the Court afforded the parties a further opportunity to brief this issue.  The Court held a second hearing on the demurrer and motion to strike.  Now, the Court overrules the demurrer by the County of Los Angeles to the first cause of action, which is a violation of Labor Code section 1102.5.  The Court sustains the demurrer in all other respects and grants the motion to strike the prayer for punitive damages. 

PLAINTIFF’S ALLEGATIONS

            Plaintiff is the Director of the Records and Identification Bureau (the “Bureau”) for the Los Angeles County Sheriff’s Department (the “Sheriff’s Department”).  (First Amended Complaint, ¶ 10.)  The Bureau is responsible for the archival, retention, and release of over 16 million crime reports and booking jackets maintained by the Sheriff’s Department.  (Ibid.)  The Bureau also provides fingerprint identification services for various agencies and departments.  (Ibid.)  In order to prevent false fingerprint identifications, the Bureau performs a specific identification process that requires two separate verifications and approval by a supervisor.  (Id., ¶ 11.)  Due to staffing shortages, on October 1, 2022, Plaintiff met with Brian Yanagi, who is a chief with the Sheriff’s Department.  (Id., ¶¶ 5, 12.)  Plaintiff “requested a realignment of services to ensure the integrity of the identification process,” but her “efforts were shut down by Chief Yanagi.”  (Id., ¶ 12.)  Plaintiff made a request “to shorten operation hours as the staffing shortages meant that there was insufficient staff to ensure the reliability of the results,” but “Yanagi refused the request and operated the fingerprint section to remain operational even if only 1 Fingerprint Technician showed up to work the shift.”  (Ibid.)  In September 2022, the problem became worse when staffing dropped to three supervisors due to a retirement.  (Id., ¶ 13.) 

            On December 8, 2022, Plaintiff contacted a member of the new Sheriff’s transition team to report these problems.  Plaintiff informed that deputy that “Chief Yanagi was hiding this issue and it needed to be brought to the Sheriff’s attention.”  (Id., ¶ 15.)  On that same date, Plaintiff became aware of a specific incident where “the fingerprint identification process was not followed and the system printout showed that the technicians [sic] findings were inconsistent; there was no positive identification so that technician had voided the transactions and it was resent through the system to seemingly trick the system regarding the findings.”  (Complaint, ¶ 17.)  John Burcher, a commander with the Sheriff’s Department, blamed Plaintiff and her subordinate, Lieutenant Anitria Michelle Tomlin, and did nothing to correct the problem.  (Ibid.) 

            On December 15, 2022, Plaintiff alerted Sharon Woo, the Chief Deputy District Attorney, that she was discontinuing the use of technicians for “in-court” fingerprint identifications, effective January 2, 2023.  (Id., ¶ 18.)  Plaintiff did so because “the protocols were lacking for proper verification and identification of fingerprints such that conclusions were not being properly verified.”  (Ibid.)  Then, in early January, Plaintiff had a series of communications with Yanagi and Burcher concerning the problems.  (Id., ¶¶ 19-24.)  Following those discussions, “it was agreed that the operation was dysfunctional and that 3 AFIS Operations supervisors could not cover a 24 hour 7 day a week operation.”  (Id., ¶ 22.) 

            Plaintiff alleges that she suffered retaliation as a result of raising these issues.  On or about January 11, 2023, “Burcher responded inconsistently with his previous agreement and informed [Plaintiff] that as Director she needed to figure out what needed to be done and it was her problem.”  (Id., ¶ 25.)  Plaintiff forwarded this email to Sheriff Luna’s chief of Staff, Jason Skeen.  (Id., ¶ 26.)  Plaintiff then spoke to Skeen, who stated that “her requests and staffing needs were being ignored and that the integrity of fingerprints was a vital public issue.”  (Id., ¶ 27.)  Skeen informed her that “he was going to file an Equity complaint against Chief Yanagi on [her] behalf when [she] informed him that she was being retaliated against for alerting the Sheriff’s Office.”  (Id., ¶ 27.)  On January 18, 2023, Skeen left Plaintiff a voicemail stating that “he filed a POE and notified Chief Yanagi.”  (Id., ¶ 28.)

            On January 20, 2023, Plaintiff received notice that Burcher “was looking for both her and [Lieutenant] Tomlin to be served with an Administrative Investigation.”  (Id., ¶ 29.)  Then, on February 2, 2023, Plaintiff “was served with a sham Administrative Investigation Notification,” but makes clear there actually was an investigation.  (Id., ¶ 30.)  Plaintiff also alleges that she requests for overtime and increased staffing were denied while other departments, headed by male colleagues, had their staffing needs met.  (Id., ¶ 31.)  Plaintiff alleges that she filed an equity complaint against Kresimir Kovac, a commander with the Sheriff’s Department, on November 15, 2022.  (Id., ¶¶ 6, 14.)  Plaintiff alleges that Lewis Lim was Chief Yanagi’s aid and solicited complaints against her.  (Id., ¶ 31.) 

LEGAL STANDARD 

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

DISCUSSION

            A.        First Cause of Action

            Plaintiff’s first cause of action asserts a violation of Labor Code section 1102.5, which states that “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation . . . .”  (Lab. Code, § 1102.5(b).)  Plaintiff predicates this cause of action largely upon allegations that the Bureau did not receive appropriate funding or staffing in retaliation for her complaints.  This is not a basis to assert a cause of action for retaliation because these decisions were made against the Bureau, not Plaintiff, and she asserts no link between these decisions and any personal consequences she suffered.  Plaintiff alleges a series of damages, which includes “loss of retirement benefits,” but she does not allege that she was disciplined, demoted, or terminated as a result of the lack of funding or staffing.  Thus, Plaintiff’s allegations are not a proper basis upon which to predicate a retaliation claim, and her allegations would be subject to a future motion to strike unless Plaintiff’s counsel corrects the issue.  To the extent Plaintiff alleges retaliation against Lieutenant Tomlin, she has no standing to assert this claim. 

            Plaintiff asserts one potentially viable retaliation claim: Plaintiff alleges that on January 20, 2023, shortly after her complaints and meetings concerning the problems with the Bureau, she learned that Burcher intended to initiate an investigation, and she was then served with a “sham Administrative Investigation Notification” on February 2, 2023.  (First Amended Complaint, ¶ 30.)  There is temporal proximity, and initiating a false investigation may be actionable retaliation.  The complaint also alleges that Plaintiff reasonably believed she was reporting a violation of state or federal law, i.e., due process violations for those arrested.  Simply, Plaintiff alleges no other act of retaliation against her (as opposed to the funding and staffing changes to her unit).  Therefore, Plaintiff may proceed on this narrow ground—that the Sheriff’s Department subjected her to an unfounded investigation in retaliation for her complaints—because it is the only theory in which she asserts damages specific to her. 

            Based upon the foregoing, the Court overrules the demurrer by the County of Los Angeles.  However, the Court sustains the demurrer against the individual defendants.  Labor Code section 1102.5 imposes liability against employers, including based on the acts of “any person acting on behalf of the employer,” i.e., John Burcher.  No case has yet resolved the issue whether there is liability against “individual, nonemployer defendant[s].”  (See Brown v. City of Inglewood (2023) 92 Cal.App.5th 1256, 1263 fn. 5.)  The Court need not resolve that issue because the individual defendants are immune from liability under Government Code section 821.6: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”  (Gov. Code, § 821.6.)  Moreover, Plaintiff asserts no viable factual allegations against any individual defendant except John Burcher.  The Court denies leave to amend, as the Court previously granted leave to amend, and it is clear that Plaintiff cannot remedy the defects in the first cause of action against the individual defendants.      

            The County argues that it, too, is immune from liability from a claim under Labor Code section 1102.5, per Government Code section 821.6.  The County argues:

            “[The individual defendants] are immune from liability for their alleged initiation, conduct or participation in workplace investigations.  The County is also immune from liability for these alleged actions.  Under Government Code section 815.2(b), ‘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.’  Thus, even though Government Code section 821.6 ‘expressly immunize[s] the employee, if the employee is immune, so too is the County. [citation omitted].”

(Defendants’ Memorandum of Points and Authorities in Support of Demurrer, p. 13:3-8.)  The Court agrees: If Plaintiff seeks to hold the County liable for claims pursuant to section 815.2(a) based upon the acts/omissions of its employees, the County is entitled to immunity.  However, the first cause of action is not predicated on section 815.2; there is direct liability against the County under Labor Code section 1102.5 because it is a statutory claim.  Accordingly, whether the individual employees have immunity is not relevant to the issue whether Plaintiff can proceed directly against the County. 

            Defendants’ counsel cites no authority stating that the County (as opposed to its employees) is immune from claims under Labor Code section 1102.5 based upon Government Code section 821.6.  Defendants’ counsel attempts to rely on Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, but that case involved only common law claims against the county under section 815.2.  Because this case did not involve statutory claims against the county, it does not support Defendants’ position. 

            Simply, Defendants’ counsel conflates liability against a public entity based upon the acts/omissions of employees under Government Code section 815.2 and direct liability for statutory claims.  Absent direct authority that Government Code section 821.6 applies to claims under Labor Code section 1102.5, the Court overrules the demurrer. 

            B.        Second Cause of Action

Plaintiff’s second cause of action is for 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.)  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.) 

The main issue presented is whether an employee may maintain a civil action in the courts for intentional infliction of emotional distress against his employer and fellow employee when the conduct complained of has caused total, permanent, mental and physical disability compensable under workers' compensation law. We conclude that when the employee’s claim is based on conduct normally occurring in the workplace, it is within the exclusive jurisdiction of the Workers’ Compensation Appeals Board.

(Ibid.)  This includes emotional distress caused by the employer’s conduct involving termination, promotions, demotions, criticism of work practices and negotiations as to grievances.  (Ibid.)  “[This type of conduct is] a normal part of the employment relationship . . . [e]ven if such conduct may be characterized as intentional, unfair or outrageous, it is nevertheless covered by the workers’ compensation exclusivity provisions.”  (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902.)

            The vast majority of Plaintiff’s allegations are that the individual defendants made a series of decisions concerning funding and staffing for her unit within the Sheriff’s Department, which caused her distress.  This falls squarely within normal work practices and cannot give rise to a claim for IIED.  Similarly, Plaintiff’s allegation that others solicited complaints against her or initiated an investigation of her cannot give rise to an IIED claim based upon the above-referenced authorities.  Plaintiff’s allegations that the individual defendants subjected her to “ghosting” and “gaslighting” are not specific and cannot form the basis of an IIED claim.  Finally, the Court finds that this cause of action stems from the “sham” investigation and therefore the individual defendants are immune under Government Code section 821.6. 

            Moreover, Plaintiff cannot assert an IIED claim against the County.  Government Code section 815 provides that “[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” except as provided by statute.  (Govt. Code, § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)  Plaintiff does not allege sufficient facts to proceed against the County under Government Code section 815.2, which states: “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 . . . have given rise to a cause of action against that employee . . . .”  (Gov. Code, § 815.2(a).)  Because Plaintiff has no viable IIED claim against the individual defendants, the County is not liable under Government Code section 815.2.   

            Based upon the foregoing, the Court sustains the demurrer to the second cause of action.  The Court denies leave to amend, as the Court previously granted leave to amend, and it is clear that Plaintiff cannot remedy the defects.   

            D.        Motion to Strike

            The Court has sustained the demurrer by each individual defendants.  A plaintiff cannot seek punitive damages against a public entity defendant.  Therefore, the motion is strike is denied as moot. 

CONCLUSION AND ORDER

            Based upon the foregoing, the Court orders as follows:

            1.         The Court overrules the demurrer to the first cause of action against the County of Los Angeles.  Plaintiff’s claim for violations of Labor Code section 1102.5 may proceed on the narrow theory that the Sheriff’s Department subjected her to a “sham” investigation in retaliation for her complaints.

            2.         The Court sustains the demurrer in all other respects.  The Court denies leave to amend, as the Court previously granted leave to amend, and it is clear that Plaintiff cannot remedy the defects.

            3.         The motion to strike is denied as moot.

            4.         The County of Los Angeles shall file an answer within thirty (30) days.

            5.         Pursuant to the stipulation of the parties, the Court proceeded with the case management conference before the answer is filed.  The Court sets the following dates:

            Final Status Conference:        June 27, 2025, at 9:00 a.m.

            Trial Date:                               July 8, 2025, at 9:30 a.m. 

The parties shall comply with all pretrial procedures for Department #39.  Jury fees shall be posted on or before December 29, 2023, or the parties shall waive jury.  The parties shall file joint trial documents on or before June 20, 2025.  The parties shall disclose all witnesses they intend to call in their respective cases-in-chief, and identify and produce all exhibits they intend to introduce in their respective cases-in-chief, on or before June 20, 2025.

            6.         Counsel for the County of Los Angeles shall provide notice and file proof of such with the Court.