Judge: Stephen P. Pfahler, Case: 24STCV07643, Date: 2024-09-16 Tentative Ruling

Case Number: 24STCV07643    Hearing Date: September 16, 2024    Dept: 68

Dept. 68

Date: 9-16-24

Case # 24STCV07643

Trial Date: Not Set

DEMURRER

MOVING PARTY: Defendants, DirecTV, et al.

RESPONDING PARTY: Plaintiff, Victor Perez

RELIEF REQUESTED:

Demurrer to the Complaint

·         8^th Cause of Action: Intentional Infliction of Emotional Distress

·         9^th Cause of Action: Negligent Infliction of Emotional Distress

SUMMARY OF ACTION:

Plaintiff Victor Perez was employed by third party On Time Installer, as a “Premises Technician” doing contract work on behalf of Defendants DirecTV, LLC, AT&T Services, Inc., and AT&T, Inc. In 2017, Plaintiff sustained a back injury on the job, and a second unspecified injury in 2021. Plaintiff received workers’ compensation provided medical treatment, with the second injury leading to a 15 pound lifting limit, and no ladders or crawling work limits as well.

Plaintiff elected to take medical leave. After medical leave ran out, Defendants extended the leave period, but ultimately informed Plaintiff to either find a new position within the company or face termination. Plaintiff was unable to secure a new position. Plaintiff was terminated on August 15, 2022.

On March 26, 2024, Plaintiff filed a complaint for 1. Disability Discrimination in Violation of FEHA; 2. Failure to Engage in the Interactive Process in Violation of FEHA; 3. Failure to Provide Reasonable Accommodations in Violation of FEHA; 4. Retaliation in Violation of FEHA; 5. Wrongful Termination in Violation of Public Policy; 6. Failure to Prevent Discrimination and Retaliation in Violation of FEHA; 7. Retaliation in Violation of Labor Code § 98.6; and 8. Intentional Infliction of Emotional Distress; and 9. Negligent Infliction of Emotional Distress.

RECOMMENDED RULING: Sustained with Leave to Amend

Defendants DirecTV, LLC, AT&T Services, Inc., and AT&T, Inc. submit the subject demurrer to the eighth and ninth causes of action in the complaint for Intentional Infliction of Emotional Distress, and Negligent Infliction of Emotional Distress. Defendant brings the demurrer on multiple grounds, including Workers’ Compensation claim preclusion, and lack of sufficient facts.

Plaintiff in opposition contends the case is not precluded by Workers’ Compensation law, as the subject conduct alleged the operative complaint falls beyond the “compensation bargain” governing the applicability of said rules. Plaintiff asserts the emotional distress and unfair business practices claims present sufficient facts.

Defendant in reply reiterates the Workers’ Compensation preclusion argument, and challenges to the individual causes of action.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

Workers’ Compensation Preclusion

Injury claims are subject to the exclusive provisions of the Workers’ Compensation statutory provisions, where the injury to the employee occurs as a result of a “service growing out of and incidental” to employment, and the employee is “acting within the course” of employment. (Lab. Code, § 3600, subd. (a)(2); Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813.) The injury must cause a disability and/or require medical attention. (Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 748.) “The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708; Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) The exclusive remedies may not apply where “the employer…stepped out of their proper roles.” (Shoemaker v. Myers, supra, 52 Cal.3d at p. 16.) Emotional distress in general may be subject to workers’ compensation preclusion, but claims of emotional distress arising from discriminatory practices or conduct in violation of public policy remains outside preclusion defenses. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902; Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 754, 756; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.)

Plaintiff maintains the course of conduct directing Plaintiff towards the ultimately futile task of finding a position accommodating the Workers’ Compensation physician imposed physical limitations constituted a pretense for ultimately terminating Plaintiff. The resulting emotional distress from said course of improper conduct in violation of public policy constitutes the basis for emotional distress.

The court appreciates the reliance on the allegedly wrongful conduct supporting the unchallenged wrongful employment practice causes of action, but both the complaint and opposition conflate the role of the public policy violation provision in the Workers’ Compensation statute. The emotional distress resulting from the alleged public policy violations in no way depends on said wrongful violations of employment practices. The distress was the result of Defendants allegedly “executing a retaliatory scheme” and/or “negligently” causing harm due to the “employment environment.” Such claims clearly articulate separate and distinct claims outside the exemptions. The emotional distress claims are therefore subsumed within the Workers’ Compensation preclusion provisions. (Miklosy v. Regents of University of California, supra, 44 Cal.4th at pp. 902-903; Livitsanos v. Superior Court, supra, 2 Cal.4th at pp. 754, 756; Shoemaker v. Myers, supra, 52 Cal.3d at p. 25; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d at p. 160; Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161-162.)

The complaint otherwise sufficiently alleges outrageous conduct and the elements for intentional infliction of emotional distress, and also alleges a basis for negligent infliction of emotional distress. The court declines to substantively further address the challenge to the sufficiency, however, given the workers’ compensation preclusion finding.

The demurrer is sustained with 30 days leave amend. Plaintiff may only amend the two challenged cause of action, and may NOT add any new causes of action. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Any new causes of action added without leave of court may be subject to a motion to strike. Material changes to the operative complaint seeking to alter the basis of the claim may also be subject to a demurrer under the sham pleading standard. If Plaintiff elects to not file a first amended complaint, Defendants shall answer the remaining causes of action of the complaint within 10 days of the lapse of the 30 day amendment deadline (e.g. 40 days from the date of this order).

“In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” (Code Civ. Proc., § 430.41, subd. (e)(1).) While the subject motion constitutes the first review of the subject action, the court cites to the standard upon the potential for a future challenge to the first amended complaint.

Moving Defendants to give notice.