Judge: Teresa A. Beaudet, Case: 24STCV16931, Date: 2025-04-23 Tentative Ruling

Case Number: 24STCV16931    Hearing Date: April 23, 2025    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

Factual Background

Plaintiff in this case is Nicole Helo, a former executive director and employee of The Meadowglade, a residential mental health treatment facility. Defendants are four LLCs; Bailard House, The Meadowglade, Centered Health, and Los Angeles Outpatient Center, as well as individuals Nochum Shapiro (Shapiro), Gilles Godin (Godin), and Tim Bair (Bair) – three executives of these LLCs. Plaintiff alleges that Defendants engaged in a pattern of harassment, discrimination, and illegal behavior. In her First Amended Complaint, Plaintiff alleges ten causes of action: 1) Discrimination of the Basis of Gender And Sex; 2) Sexual Harassment/Harassment on the Basis of Gender and Sex; 3) Violation of Whistleblower Statutes Pursuant to California Labor Code Section 1102.5; 4) Retaliation in Violation of Fair Housing and Employment Act; 5) Failure To Remedy and/or Prevent Retaliation in Violation of FEHA; 6) Wrongful Termination in Violation of Public Policy; 7) Intentional Infliction of Emotional Distress 8) Business and Professions Code Section 17200; 9) Violation Of The Unruh Act; and 10) Violation of Labor Codes Sections 98.6 and 6310.

Procedural Background

On July 9, 2024, Plaintiff filed the original Complaint.

On October 3, 2024, Plaintiff filed the First Amended Complaint (FAC).

On November 5, 2024, Defendants demurred to the First Amended Complaint.

On February 4, 2025, Plaintiff filed the Opposition to Defendants’ Demurrer.

On February 10, 2025, Defendants filed the Reply to Plaintiff’s Opposition.

Discussion

A.    Meet and Confer

Parties are required to meet and confer before filing a demurrer. (CCP § 430.41(a).) The demurring party must file a declaration stating how they met, and that they were unable to reach an agreement. (Id. 3(A).) Here, Defendants provide a Declaration from their lawyer stating that they reached out to Plaintiff. (Stuckey Decl., ¶ 2.) On October 25, 2024, Defendants’ counsel and Plaintiff’s counsel discussed the demurrer over the phone. (Id. ¶ 3.) The parties were unable to reach an agreement. (Ibid.)

            The Court finds Defendants have fulfilled their requirement to meet and confer.

B.    Demurrer

Defendants demur to the first, third, fifth, sixth, seventh, ninth, and tenth causes of action.

First Cause of Action: Discrimination Based on Gender and Sex

Defendants demur to this cause of action, arguing it fails as a matter of law, as to the individual defendants Shapiro and Godin.

Analysis

            In her FAC, Plaintiff alleges that defendants Centered Health, Shapiro, and Godin discriminated against her based on her gender and sex, in violation of FEHA. (FAC ¶¶ 37-50.) Defendants argue that FEHA only prohibits “employers” from discriminating against employees. (Demurrer p. 3:22-28; see also, Cal. Gov. Code, § 12940(a).) Defendants argue that because Shapiro and Godin were just Plaintiff’s supervisors, they cannot be held personally liable under FEHA. Plaintiff does not oppose Defendants’ demurrer to this cause of action. (Opp. p. 3:26-28.)

            Defendants correctly argue that supervisors are not personally liable for discrimination under FEHA. Defendants cite to Janken v. GM Hughes Electronics, which, “reject[ed] the contention that individual supervisory employees are at risk of personal liability for age discrimination on the theory that the ‘agent’ language in the statute defines them as an ‘employer’ for purposes of liability.” (Janken, (1996) 46 Cal.App.4th 55, 66.) Defendants also cite to Reno v. Baird, where the California Supreme Court ruled that FEHA “allows persons to sue and hold liable their employers [for discrimination], but not individuals.” (Reno, 18 Cal.4th 640, 643.) Thus, Plaintiff cannot bring this claim of discrimination against the individual defendants, Shapiro and Godin.

            Conclusion

For these reasons, the Court SUSTAINS Defendants’ demurrer to the first cause of action as to defendants Shapiro and Godin.

Third Cause of Action: Violation of Whistleblower Statutes Pursuant to California Labor Code Section 1102.5

Defendants demur to this cause of action, arguing it fails as a matter of law, as to the individual defendants Shapiro, Godin, and Bair.

Analysis

            In her FAC, Plaintiff alleges that Defendants harassed, discriminated against, and constructively discharged Plaintiff after she disclosed information about and refused to participate in unlawful acts, pursuant to Labor Code Section 1102.5. (FAC ¶ 65.) Defendants argue that this action is improper as to individual defendants Shapiro, Godin, and Bair, as Labor Code Section 1102.5 only applies to employers, not individuals. (Demurrer p. 4:27-28.)

            Defendants note that there are no published California cases directly addressing the issue of personal liability under LAB § 1102.5. (Id. p. 5:5-6.) However, they cite multiple federal cases, all of which hold that section 1102.5 does not impose individual liability for whistleblower violations. (Id. p. 5:7-12.) For instance, in Lau v. E. Bay Reg’l Park Dist., the court held that, “section 1102.5 does not impose individual liability on supervisors.” (Lau, (2024) N.D. Cal. p. 6.) Defendants also cite Tillery v. Lollis, which held that section 1102.5, "does not include clear language imposing individual liability, but rather uses the kind of language consistently associated with imposition of liability on an employer alone[.]" (Tillery v. Lollis, (2015) E.D. Cal. p. 26.) Clearly, federal courts agree that section 1102.5 does not expose individuals to personal liability.

            Plaintiff disputes this interpretation, and points to the fact that, in 2013, the California legislature added “or a person acting on behalf of the employer” to Section 1102.5(b) and (c). (Opp. p. 3:1-3.) Plaintiff claims this might mean that individuals are liable for violations of this section. (Id. p. 3:8-13.) However, within the context of Section 1102.5, Plaintiff’s interpretation is unconvincing. Section 1102.5(f) states that “[i]n addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section.” This is the only part of Section 1102.5 that refers to liability or penalties, and it exclusively references corporations and LLCs. This strongly suggests that Section 1102.5 is only applicable to employers. Through this lens, the 2013 language is simply a clarification that employers are liable under this statute for the actions of their agents – not that those agents are themselves liable.

Given this statutory language, as well as the persuasive authority provided by the federal courts, this Court agrees that individuals cannot be held liable under Section 1102.5.

Conclusion

            For these reasons, the Court SUSTAINS Defendants’ demurrer to the third cause of action as to defendants Shapiro, Godin, and Bair.

Fifth Cause of Action: Failure to Prevent Retaliation in Violation of FEHA

Defendants demur to this cause of action, arguing it fails as a matter of law as to the individual defendants Shapiro, and Godin.

Analysis

            In her FAC, Plaintiff alleges that defendants Centered Health, Shapiro, and Godin, violated FEHA when they failed to prevent discrimination, harassment, and retaliation against Plaintiff. (FAC ¶ 84.) Defendants argue that this cause of action cannot be brought against individuals. (Demurrer p. 4:7-13.)

            Under Gov. Code § 12940(k), it is unlawful “for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” As Defendant points out, this statutory language makes no reference to individuals. Additionally, Defendants cite the CACI jury instruction for Failure to Prevent Discrimination. The very first element of these instructions is, “(1) plaintiff was an employee of defendant”. (CACI 2527.) Shapiro and Godin were not Plaintiff’s employers, they were her supervisors. (FAC ¶¶ 1, 6, 19, 41, 90.) Therefore, they cannot be held personally liable under this cause of action.

In her Opposition, Plaintiff cites multiple cases holding that individuals who commit acts of retaliation in violation of FEHA can be held personally liable for their conduct. (Opp. pp. 3-4: 16-27, 1-25.) This is a correct statement of law, but it is not relevant for this specific cause of action. Plaintiff’s fifth cause of action is “Failure to Prevent Retaliation”, not for Retaliation itself. Therefore, none of Plaintiff’s cited cases are on point.

Conclusion

For these reasons, the Court SUSTAINS Defendants’ demurrer to the fifth cause of action as to defendants Shapiro, and Godin.

Sixth Cause of Action: Wrongful Termination in Violation of Public Policy

Defendants demur to this cause of action, arguing it fails as a matter of law as to the individual defendants Shapiro, Godin, and Bair.

Analysis

Plaintiff alleges that all Defendants, including Shapiro, Godin, and Bair, wrongfully terminated her employment in violation of public policy. (FAC ¶¶ 89-96.) Defendants argue that the tort of wrongful termination cannot be brought against individual defendants. (Demurrer p. 6:8-23.)

Defendant is correct. Under well-established California case law, a "common law ... cause of action for wrongful termination in violation of public policy lies only against an employer," and not employees. (Miklosy v. Regents of the Univ. of Cal. (2008) 44 Cal.4th 876, 901.) Here, Plaintiff was only employed by the three corporate defendants, not Shapiro, Godin, and Bair. (FAC ¶¶ 1, 6, 19, 41, 90.) This means they were not Plaintiff’s employers, and therefore Plaintiff cannot bring this cause of action against them.

In their Opposition, Plaintiff offers no case law contrary to Miklosy. (See, Opp. pp. 6-7: 11-28, 1-2.) Instead, Plaintiff heavily cites Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, and states general propositions about how “individuals should not be exempt from liability for their own intentional torts.” (Opp. p. 6: 15-16.) However, Gantt is a case about retaliatory discharge under the Workers’ Compensation Act, not the general tort of wrongful termination in violation of public policy. (see generally, Gantt, (1992) 1 Cal.4th 1083.) In essence, Plaintiff fails to provide any reason why this Court should decline to follow Miklosy.

Conclusion

For these reasons, the Court SUSTAINS Defendants’ demurrer to the sixth cause of action as to defendants Shapiro, Godin, and Bair.

Seventh Cause of Action

            Defendants demur to the seventh cause of action for IIED as to all Defendants. Defendants argue Plaintiff has failed to allege facts sufficient to sustain this cause of action.

Analysis

Plaintiff fails to sufficiently allege this cause of action. The elements of the tort of intentional infliction of emotional distress (IIED) 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." (Wilson v. Hynek, (2012) 207 Cal.App.4th 999, 1009, [quoting Cervantez v. J.C. Penney Co., (1979) 24 Cal.3d 579, 593].)

Notably, Plaintiff does allege facts sufficient to constitute extreme and outrageous conduct. She alleges that, “it was common for top executives, including SHAPIRO, GODIN and BAIR, to yell at and berate Directors and Managers in formal meetings including the exchange of expletives, often with sexual connotations including vile and inappropriate language. SHAPIRO was present at many such interactions and was aware of GODIN and BAIRs’ conduct.” (FAC ¶ 20.) Plaintiff alleges that this behavior was pervasive and immediate, stating, “[n]early immediately after HELO’s employment commenced, GODIN and BAIR began acting inappropriately and blatantly sexually harassing [Plaintiff]. When at the Culver City offices, GODIN would run out of his office to “hug” her. The “hugs” were intrusive and unwanted touchings.” (Id. ¶ 21.) In one example Plaintiff provides, “[Plaintiff] was discussing a payroll error that occurred in recording the hours for Meadowglade Licensed Vocational Nurse, Tanya Scheivert. . .when Nurse Scheivert was mentioned, GODIN and BAIR laughed and responded, ‘It’s a private thing that we fantasize that you [Plaintiff] and Tanya are mud wrestling in bikinis because you two are so hot. It’s a fantasy, don’t take it wrong…take it as a complement because you are such a beautiful woman.’ Then GODIN and BAIR said, that ‘after the fighting, there is always the kiss and make-up.’” (FAC ¶ 22.)

Plaintiff provides many more examples of this conduct throughout the FAC. Under California law, outrageous conduct is a fact question where reasonable minds may differ. ((Cross v. Bonded Adjustment Bureau (1996) 48 Cal.App.4th 266, 283.) Here, Plaintiff has alleged a pattern of physical and verbal intrusions, perpetrated by individuals in positions of power over her. While opinions may differ, a reasonable person could certainly conclude that the alleged behavior was extreme and outrageous.

However, Plaintiff fails to allege the second element of this cause of action, as Plaintiff only makes a general allegation that she has suffered, “emotional distress, mental anguish, embarrassment, humiliation, and anxiety” because of Defendants’ actions. (FAC, ¶ 101.) Plaintiff must plead more specifically regarding the emotional distress she suffered. For instance, in Hailey v. California Physicians' Service, a complaint was found to sufficiently alleged severe distress by referencing “depression, anxiety, and physical illness,” and specific distress resulting in “vomiting, stomach cramps, and diarrhea….” (Hailey (2007) 158 Cal.App.4th 452, 476-477.) Conversely, in Angie M. v. Superior Court, the court upheld a sustained demurrer ruling because the Plaintiff had “[pled] no facts demonstrating the nature, extent or duration of her alleged emotional distress.” (Angie M., (1995) 37 Cal.App.4th 1217, 1227.)

Conclusion

For these reasons, the Court SUSTAINS Defendants’ demurrer to the seventh cause of action as to all defendants. The Court grants leave to amend.

Ninth Cause of Action: Violation of Unruh Act

            Defendants demur to the ninth cause of action for Violation of Unruh Act as a matter of law as to all Defendants.

Analysis

Plaintiff alleges that Defendants sexually harassed her in violation of the Unruh Civil Rights Act (Unruh Act). (FAC ¶¶ 106-112.) Strangely, Plaintiff cites California Civil Code § 51.9 within this allegation, which is a different statute. (FAC ¶ 107.)

As Defendant points out, the Unruh Act only applies to discrimination against customers. (Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 83.) “[T]he employer-employee relationship [is] not covered by the [Unruh] Act.” (Ibid.at n. 12) Defendant also points out that, CCP § 51.9 only creates a cause of action for sexual harassment in non-employment settings, which is not what Plaintiff alleges. (CCP § 51.9.)

Plaintiff explicitly states they do not oppose Defendants’ demurrer to this cause of action. (Opp. p. 3:26-28.)

Conclusion

For these reasons, the Court SUSTAINS Defendants’ demurrer to the ninth cause of action as to all defendants.

Tenth Cause of Action: Violation of Labor Codes Sections 98.6, 6310

            Defendants demur to the tenth cause of action for Violation of Unruh Act as a matter of law as to defendants Shapiro, Godin, and Bair.

Analysis

Plaintiff alleges that Defendants, including Schapiro, Godin, and Bair, retaliated against her in violation of Labor Code §§ 6310 and 98.5. (FAC ¶¶ 113-118.)

Defendants argue that neither of these labor codes impose individual liability. As for Section 6310, LAB § 6310 states that, “[a]ny employee who is discharged … by his or her employer because the employee has made a bona fide oral or written complaint . . . shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer” (Cal. Lab. Code, § 6310(b).) The statute makes no reference to recovery from individuals.

Similarly, section 98.6 does not impose any individual liability. While section 98.6(a) states that “persons” are prohibited from retaliatory actions, the remedies section of the statute only refers to employers. It states that, “[i]n addition to other remedies available, an employer who violates this section is liable for a civil penalty not exceeding ten thousand dollars ($10,000) per employee for each violation of this section, to be awarded to the employee or employees who suffered the violation”. (LAB § 98.6(b)-(c).) Given that Section 98.6 only contemplates penalties for employers, it’s likely that the statute was not intended to create individual liability.

Plaintiff explicitly states they do not oppose Defendants’ demurrer to this cause of action. (Opp. p. 3:26-28.)

Conclusion

For these reasons, the Court SUSTAINS Defendants’ demurrer to the tenth cause of action as to defendants Shapiro, Godin, and Bair. .

Conclusion

The Court SUSTAINS Defendants demurrer as to the first, third, fifth, sixth, seventh, ninth, and tenth causes of action.

The Court grants Plaintiff leave to amend to remove inappropriate defendants from causes of action one, three, five, and six, and to allege specific facts regarding the second element of the seventh cause of action.

DATED:  April 23, 2025                               

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court