Judge Thomas D. Long, Case 22STCV11234 2022-08-03 Tentative Ruling

On May 31, 2022, Plaintiff Jessica K. Quintana filed a first amended complaint (“FAC”) against Defendants HCC Service Company Inc., Tokio Marine American Insurance Company, Tokio Marine Management Inc., and Cindy Chow-Snavely, alleging (1) disability discrimination; (2) violation of California Family Rights Act; (3) failure to reasonably accommodate disability; (4) failure to engage in a timely, good faith, interactive process; (5) retaliation; (6) failure to prevent discrimination and retaliation; (7) wrongful termination in violation of public policy; and (8) intentional infliction of emotional distress (“IIED”).

On July 11, 2022, Cindy Chow-Snavely (“Defendant”) filed a demurrer to the eighth cause of action for IIED, the only cause of action brought against her.

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, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

Plaintiff argues that Defendant failed to give proper notice in advance of the hearing. (Opposition at p. 4.) A demurrer must be served and filed at least 16 court days before the hearing. (Code Civ. Proc., § 1005.) For this August 3, 2022 hearing, the demurrer must have been served and filed by July 12, 2022. The demurrer’s proof of service indicates that it was served via U.S. Mail and email on July 11, 2022. (Demerjian Decl. ¶ 10; Stone Reply Decl. ¶ 3 & Ex. A.) Plaintiff’s counsel contends he did not receive an email, and he received the demurrer via mail only. (Demerjian Decl. ¶ 10.) Therefore, Plaintiff argues the August 3, 2022 hearing date is improper because service by mail in advance of that hearing should have been accomplished by July 7, 2022. (Opposition at p. 4; Demerjian Decl. ¶ 10.) In reply, Defendant’s counsel provides a copy of the July 11, 2022 service by email and proof of service. (Stone Reply Decl. ¶ 3 & Ex. A.) Although Plaintiff may not have received this email (see Demerjian Decl. ¶ 10), it appears that Defendant complied with the statutory service requirements, and Plaintiff was still able to timely oppose the demurrer on the merits.

Plaintiff also argues the demurrer was filed late because it was served more than 30 days after Plaintiff served her FAC. (Opposition at p. 4.) A defendant may demur to the complaint within 30 days after service of the complaint. (Code Civ. Proc., § 430.40, subd. (a).) However, the statute “uses the permissive expression ‘may,’ not the mandatory term ‘must,’” and it “nominally applies only to a first round of demurrers.” (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280.)

Defendant argues that workers’ compensation is the exclusive remedy for this cause of action arising from employment. (Demurrer at p. 6.) Generally, the workers’ compensation system provides the sole and exclusive remedy for injuries sustained by employees arising out of and in the course of the employment when the misconduct attributed to the employer is a normal part of the employment relationship. (See Lab. Code, §§ 3600-3602; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.) But when “a plaintiff's emotional distress claim is premised upon his employer’s violation of a fundamental public policy of this state, such misconduct lies outside of the exclusive remedy provisions of the Labor Code. (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 113.) This includes emotional distress caused by wrongful termination in violation of public policy. (Id. at p. 112.)

Plaintiff alleges all defendants “ignored their obligations under the FEHA and CFRA, made misrepresentations to Plaintiff regarding her reinstatement and application process, and schemed to wrongfully terminate her employment all along,” and retaliated against her. (FAC ¶ 176.) The alleged wrongful conduct by Defendant consists of communications relating to Plaintiff’s claims for discrimination and wrongful termination. (See id. at ¶¶ 15-16, 18, 21, 22, 24.) The demurrer is overruled on this ground.

Defendant also argues that the alleged conduct is not actionable because it is neither extreme nor outrageous. (Demurrer at p. 8.) “‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citation.] ‘Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.) “While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the trier of fact [citation], the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) When a plaintiff does not suffer physical injury, the conduct must involve “extreme and outrageous intentional invasions of one’s mental and emotional tranquility.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498.)

Plaintiff alleges that in March 2020, Defendant, the HR Manager and Plaintiff’s direct supervisor, informed Plaintiff that her job-protected leave was exhausted, the company was unable to continue to hold her position while she was on medical leave, she would remain an employee on an approved leave of absence receiving short-term disability benefits, and she was welcome to apply for open positions when she could return to work. (FAC ¶¶ 13, 15.) About six months later, Defendant asked Plaintiff if she wanted her personal items sent to her and asked if Plaintiff still had her set of master keys to the office. (Id. at ¶ 16.) In November 2020, Defendant informed Plaintiff that her position had been filled, Plaintiff was welcome to apply for positions, and if she was not hired for a position, her employment would be terminated as of January 1, 2021. (Id. at ¶ 18.) In December 2020, Defendant scheduled an interview with Plaintiff for the position of Underwriting Trainee, but during the one-minute phone call for the interview, Defendant informed Plaintiff that she was not going to be considered for the position and that it was already filled. (Id. at ¶¶ 20-21.) Plaintiff applied for another position and was not contacted about it. (Id. at ¶ 22.) Plaintiff therefore believes that Defendant’s “invitation to apply for positions upon her release to return to work was a misrepresentation and a sham, and was intended to cause her to suffer severe emotional distress.” (Ibid.) On January 13, 2021, Defendant emailed Plaintiff informing her that her employment was terminated as of January 11 and her personal items would be sent to her home. (Id. at ¶ 24.)

Defendant’s actions are not so extreme as to exceed all bounds of decency. At most, the FAC alleges that Defendant sent certain communications in her role as HR Manager. “Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)

Plaintiff urges that Wayte v. Rollins International, Inc. (1985) 169 Cal.App.3d 1 (Wayte) controls. (Opposition at p. 9.) In Wayte, following a jury trial, the defendants argued that the plaintiffs failed to allege that they intended to cause a plaintiff to suffer emotional distress. (Wayte, supra, 169 Cal. App. 3d at p. 17.) The Court of Appeal noted that the complaint specifically alleged that the company represented that a child would be covered by insurance, the plaintiffs relied on those representations, and defendants later denied coverage, intending to cause and actually causing emotional distress. (Ibid.) The court therefore found that the IIED claim was properly submitted to the jury because the complaint adequately alleged an intention to cause emotional distress. (Ibid.) The issue on appeal did not involve the severity or outrageousness of the alleged conduct, and “cases are not authority for propositions not considered.” (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11, quotation marks omitted.)

To the extent that this conduct is intertwined with Plaintiff’s other claims, retaliation or wrongful termination alone do not necessarily rise to the level of “outrageous” conduct. (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 295.) The complained-about conduct must still go “beyond all bounds of decency.” (Ibid.) And IIED premised on wrongful termination requires an underlying viable cause of action for the wrongful termination, which can be brought only against an employer and not one of its agents. (Phillips v. Gemini Moving Specialists (1998) 63 Cal.App.4th 563, 576-577.)

The demurrer is SUSTAINED. Because Plaintiff did not show how she can amend this cause of action to remedy the deficiencies, no leave to amend is granted.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court