Judge: Teresa A. Beaudet, Case: 22STCV07335, Date: 2023-02-01 Tentative Ruling

Case Number: 22STCV07335    Hearing Date: February 1, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Maria Varela (“Plaintiff”) filed this action on February 28, 2022 against Defendants J and S Hospitality, Inc., Best Western International, Inc. (“BWI”), Rebecca Doe, Greg Doe, and Best Western Palm Desert Resort (collectively, “Defendants”)

The Complaint asserts causes of action for (1) disability discrimination, (2) perceived disability discrimination, (3) failure to prevent harassment and retaliation, (4) retaliation in violation of Government Code section 12940, et seq., (5) age discrimination, (6) nationality discrimination, (7) wrongful termination in violation of public policy, and (8) intentional infliction of emotional distress.

BWI now demurs to each of the causes of action of the Complaint, and moves to strike portions of the Complaint. Plaintiff opposes.

Demurrer

A.    Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. ((Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, footnote 2.) However, “[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.)¿ 

B.    Allegations of the Complaint

Plaintiff alleges that she worked for J and S Hospitality, Inc., BWI, and Best Western Palm Desert Resort for approximately eight years. (Compl., ¶ 17.) Plaintiff worked in the Laundry Room department at the time of her termination. (Compl., ¶ 18.)

In or around 2017, Plaintiff suffered a workplace injury to her back and was placed on light duty restrictions by her doctor. (Compl., ¶ 19.) Rebecca Doe, Plaintiff’s supervisor and/or manager, was angry that Plaintiff was injured and told Plaintiff that she needed to continue working at “100.” (Compl., ¶¶ 22, 37.) When Plaintiff would explain that she could not work as quickly as before because she was injured, Rebecca Doe threatened Plaintiff by telling her that she was going to take away Plaintiff’s work days if she did not continue working at “100.” (Compl., ¶ 22.) Rebecca Doe was angry that Plaintiff could not work in housekeeping because of her back injury, and after her injury, Plaintiff was placed in the laundry department. (Compl.,      ¶ 23.)

Plaintiff further alleges that Rebecca Doe treated Plaintiff differently after knowing that Plaintiff is a U.S. Citizen. (Compl., ¶ 21.) Plaintiff alleges that Rebecca Doe likes to hire undocumented workers so that she can take advantage of them by overworking them without breaks. (Compl., ¶ 21.) Rebecca Doe told others that Plaintiff might be a liability because she was a citizen and that undocumented workers are better because they might not know their rights. (Compl., ¶ 21.)

Plaintiff alleges that she was “terminated on or about March 26, 2020 because she had been injured and couldn’t perform her usual work and defendants were getting rid of documented workers and replacing them with undocumented workers.” (Compl., ¶ 26.) Plaintiff alleges that Defendants used COVID-19 as a pretext to terminate Plaintiff because they saw her as a liability and because they perceived her to be disabled. (Compl., ¶ 25.) 

C.    Demurrer on the Basis of Uncertainty as to all Causes of Action

BWI asserts that “Plaintiff’s Complaint is deficient for three independent reasons: (1) it impermissibly lumps the defendants together in every substantive allegation; (2) it fails to allege with facts that BWI was Plaintiff’s joint employer; and (3) it fails to allege with facts that BWI was the alter ego of any of the other entity defendants.” (Demurrer at p. 11:8-11.) 

As to the first point, BWI notes that Plaintiff alleges that she “worked for J AND S HOSPITALITY, INC., BEST WESTERN INTERNATIONAL, INC., and BEST WESTERN PALM DESERT RESORT (hereinafter “EMPLOYER DEFENDANTS”)…” (Compl., ¶ 17.) BWI asserts that Plaintiff thus impermissibly lumps all “EMPLOYER DEFENDANTS” together. BWI cites to Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1467, where the Court of Appeal noted that the trial court “cited two additional reasons for sustaining the demurrers. First, it agreed with the defendants’ assertion that plaintiffs’ claims were uncertain because the allegations lump all of the [defendants] together, without any specification as to which defendant was responsible for what actions. Second, the court noted that the defendants were immune from any claim based on presenting perjured testimony and fabricating evidence, or any conduct related to the investigation of the child abuse reports pursuant to … statutory dut[ies].” (Internal quotations omitted.) However, the Court of Appeal opinion in Arce does not further discuss the trial court’s ruling on the uncertainty issue.

The Court does not find that any of the causes of action are ambiguous or unintelligible due to Plaintiff referring to J and S Hospitality, Inc., BWI, and Best Western Palm Desert Resort collectively as the “Employer Defendants.” As set forth above, “[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., supra, 14 Cal.App.4th at p. 616.)¿ 

Next, BWI asserts that the Complaint does not state facts sufficient to demonstrate that BWI was Plaintiff’s joint employer. BWI cites to Martinez v. Combs (2010) 49 Cal.4th 35, 64, where the California Supreme Court noted that “[t]o employ…under the [Industrial Welfare Commission’s] definition, has three alternative definitions. It means: (a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.” (Emphasis in original.) 

BWI asserts that the Complaint contains no allegations that BWI exercised control over Plaintiff’s wages, hours, or working conditions, “suffered or permitted” Plaintiff to work, or “engaged” Plaintiff.

BWI acknowledges that “the verb ‘to engage’ has no other apparent meaning in the present context than its plain, ordinary sense of ‘to employ,’ that is, to create a common law employment relationship.” ((Ibid. .) “The essence of the common law employment test is the control of details—that is, whether the principal has the right to control the manner and means by which the worker accomplishes the work—but there are a number of additional factors in the modern equation, including (1) whether the worker is engaged in a distinct occupation or business, (2) whether, considering the kind of occupation and locality, the work is usually done under the principal’s direction or by a specialist without supervision, (3) the skill required, (4) whether the principal or worker supplies the instrumentalities, tools, and place of work, (5) the length of time for which the services are to be performed, (6) the method of payment, whether by time or by job, (7) whether the work is part of the principal’s regular business, and (8) whether the parties believe they are creating an employer-employee relationship…The parties’ label is not dispositive and will be ignored if their actual conduct establishes a different relationship.” ((Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289, 304-305 [internal quotations omitted].)

In the Complaint, Plaintiff alleges, inter alia, that she worked for BWI. (Compl., ¶ 17.) Plaintiff alleges that she worked in the Laundry Room department at the time of her termination. (Compl., ¶ 18.) Plaintiff alleges that when she would explain that she could not work as quickly as before because she was injured, Rebecca Doe (Plaintiff’s supervisor) threatened her by telling her that she was going to take away Plaintiff’s work days if she did not continue working at “100.” (Compl., ¶¶ 22, 37.) Further, plaintiff alleges that the Employer Defendants terminated her. (Compl., ¶ 118.)  

The Court finds that Plaintiff has sufficiently alleged that BWI was her employer. Thus, BWI’s demurrer on the basis of uncertainty to the first through eighth causes of action is overruled.

D.    Intentional Infliction of Emotional Distress

Plaintiff’s eighth cause of action is for intentional infliction of emotional distress (“IIED”). “A cause of action for intentional infliction of emotional distress exists when there is (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.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050, internal quotations omitted.)

Plaintiff alleges that Defendants’ extreme and outrageous actions include, but are not limited to: (a) “[f]orcing Plaintiff to work against medical restrictions,” (b) “[t]hreatening to take away work days from Plaintiff if she did not agree to work against medical restrictions,” and (c) “Defendant REBECCA treated [Plaintiff] differently after knowing that [Plaintiff] is a U.S. Citizen. REBECCA likes to hire undocumented workers so that she can take advantage of them by overworking them without breaks. REBECCA told others that [Plaintiff] might be a liability because she was a citizen and that undocumented workers are better because they might not know their rights.” (FAC, ¶ 226.)

With regard to the IIED cause of action specifically, BWI argues that “Plaintiff fails to allege what specific retaliatory conduct Greg allegedly took towards her and, more critically, she fails to sufficiently set forth facts to demonstrate Rebecca and Greg were employed by BWI beyond her legal conclusion that they were somehow employed by all three entity defendants.” (Demurrer at p. 17:3-6.) The Court notes that Plaintiff alleges that “[b]eginning in on or around 2017 and continuing until approximately March 26, 2020, Employer Defendants employees, supervisors and managing agents, including REBECCA and GREG and other managers and supervisors and each of them, while acting in the course and scope of their employment with Employer Defendants and in carrying out the policies and practices of Employer Defendants retaliated against Plaintiff because she was associated with members of the protected class against sexual harassment, hostile work environment against because she had a disability or perceived disability.” (Compl., ¶ 38.) In addition, as set forth above, the Court finds that Plaintiff has sufficiently alleged that she is employed by BWI.

Plaintiff also alleges in support of the IIED cause of action that “EMPLOYER DEFENDANTS were aware of the harassment and ratified and condoned the harassment.” (Compl., ¶ 228.) BWI argues that “Plaintiff fails to state who she complained to, when she complained, or even where she physically located when she complained (e.g., whether ‘Human Resources’ located at the same hotel that she worked). She doesn’t even allege what she specifically complained about.” (Demurrer at p. 17:13-16.) But BWI does not cite to any legal authority indicating that such allegations are necessary for purposes of the IIED cause of action. In addition, Plaintiff alleges that “Plaintiff complained multiple times to their to [sic] Human Resources and Management. However, EMPLOYER DEFENDANTS failed to take any corrective action; Plaintiff met with her supervisor REBECCA of EMPLOYER DEFENDANTS to discuss the issue. Nothing was done to help Plaintiff.” (Compl., ¶ 227.)

Based on the foregoing, the Court overrules BWI’s demurrer to the eighth cause of action.

Motion to Strike

A court may strike any “¿irrelevant, false, or improper matter inserted in any pleading¿” or all or any part of a pleading “¿not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.¿” (¿Code Civ. Proc., § 436¿.) “¿The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.¿” (¿Code Civ. Proc., § 437¿.) 

BWI asserts that the Court should strike all references to BWI in the Complaint if it sustains BWI’s demurrer. As set forth above, the Court overrules BWI’s demurrer in its entirety. Thus, the Court denies BWI’s motion to strike. 

Conclusion

Based on the foregoing, BWI’s demurrer is overruled in its entirety. BWI’s motion to strike is denied.

The Court orders BWI to file and serve its answer to the Complaint within 10 days of the date of this order. 

Plaintiff is ordered to give notice of this order.

DATED:  February 1, 2023                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court