Judge Thomas D. Long, Case 22STCV19334 2022-12-13 Tentative Ruling

On August 16, 2022, Plaintiff Timothy Philips filed a first amended complaint (“FAC”) against Defendant Seizmic, Inc.

Defendant demurs to the fifth through tenth causes of action. 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.)

An employer may not prevent or retaliate against an employee who discloses (or an employee that the employer believes may disclose) information about 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.)

Plaintiff alleges that a coworker tested positive for COVID-19 and Defendant did not notify its employees about the positive test. (FAC ¶¶ 22-23.) Plaintiff later learned of his coworker’s diagnosis and complained to superiors. (FAC ¶ 24.) Defendant “intentionally withheld information relating to COVID-19 exposure” and retaliated against Plaintiff when he “made complaints regarding health, safety and/or working conditions.” (FAC ¶¶ 88-89.) However, Plaintiff does not identify any violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.

An employer may not discharge or discriminate against any employee who makes an oral or written complaint of unsafe working conditions. (Lab. Code, § 6310, subds. (a)-(b).)

Defendant argues that Plaintiff does not specifically plead a requisite complaint about a specific unsafe condition. (Demurrer at p. 5.) Plaintiff argues that the “unsafe environment was calling for a super spreader event. At this time in 2021 COVID-19 was still killing people and/or causing long-term effects.” (Opposition at p. 6.) He also contends that he “worked closely to the individual who was infected, so his possibility for contracting the virus that could lead to death or a long-term condition was high. Contracting a virus at work because of an employer’s lack of infection control protocol is an inherently unsafe working environment, especially when such inaction is in opposition to local orders.” (Ibid.) These facts are not in the FAC, which alleges that Plaintiff complained “about the lack of communication and their safety violations” (FAC ¶ 24), and Defendant discriminated against Plaintiff “as a result of his complaints of the lack of notification of a [COVID-19] exposure” (FAC ¶ 101).

C. Seventh Cause of Action – Tortious Wrongful Termination in Violation of Public Policy

Defendant argues that the seventh cause of action is duplicative of the first four causes of action alleging FEHA discrimination based termination due to Plaintiff’s disability. (Demurrer at p. 5.) However, a plaintiff may plead in the alternative, and Plaintiff’s FEHA causes of action supplement, not replace, his common law employment causes of action. (Rojo v. Kliger (1990) 52 Cal.3d 65, 74-75.) Defendant does not demur to the incorporated FEHA causes of action, which allege that Defendant terminated Plaintiff’s employment due to his disability and his request for reasonable accommodations. (See, e.g., FAC ¶¶ 46, 72, 111, 113.) Contrary to Defendant’s argument (Reply at pp. 2), Plaintiff has not abandoned his claims of disability discrimination by simply not addressing those claims in his opposition to the demurrer, because the demurrer did not concern those claims.

D. Eighth and Ninth Causes of Action – Failure to Permit Inspection or Copying of Wage Records and Personnel File

An employer must provide employees with the right to inspect or receive a copy of wage records pertaining to their employment, upon reasonable request to the employer and within 21 calendar days of the request. (Lab. Code, § 226, subds. (b)-(c).) An employer must also make available to an employee a copy of the personnel records relating to the employee’s performance or to any grievance concerning the employee, within 30 days of the request. (Lab. Code, § 1198.5, subds. (a)-(b).)

The FAC alleges that Plaintiff sent Defendant a written request for a copy of his wage records and personnel file, but Defendant failed to timely produce the records. (FAC ¶¶ 123, 130.)

Defendant argues, “In light of Plaintiff’s other causes of action, the conduct alleged by Plaintiff that comprises his alleged request for his personnel file and wage records merely constitutes a premature discovery request and does not support these causes of action.” (Demurrer at p. 5.) Plaintiff has a statutory right to request his wage and employment records. It is not an improper discovery request.

Defendant argues that Plaintiff is not entitled to penalties, costs, fees, or other recovery under Labor Code section 226 because he does not plead sufficient facts establishing a “knowing and intentional failure.” (Demurrer at p. 5.) That is not required to plead Plaintiff’s cause of action, which is brought under subdivision (c) for a penalty under subdivision (f). (See Lab. Code, § 226, subd. (e)(1) [“An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) . . .”].)

Defendant argues that Plaintiff does not “plead a sufficient failure by Defendant to permit inspection, as required by Section 1198.5 to constitute a cause of action.” (Demurrer at pp. 5-6.) Plaintiff alleges that he sent a written request on April 11, 2022, and Defendant failed to produce the records by May 11, 2022. (FAC ¶ 130; see Lab. Code, § 1198.5, subd. (b)(1) [must make contents of personnel records available for inspection within 30 calendar days of written request].) This sufficiently pleads Defendant’s failure to permit inspection.

Defendant also argues that the eighth and ninth causes of action are duplicative of each other. (Demurrer at p. 6.) They allege failure to provide different records in violation of different statutes, creating separate bases for the causes of action.

Defendant argues, “Plaintiff has not pleaded any issues that require a judicial determination of rights, which are not already before the Court. And Plaintiff has otherwise failed to plead any other practical consequences.” (Demurrer at p. 6.)

The tenth cause of action seeks “a judicial determination of his rights and duties, and a declaration that DEFENDANTS discriminated and retaliated against him on the basis of his perceived and/or actual disability and medical condition, and violated PLAINTIFF’s civil rights.” (FAC ¶ 139.) Plaintiff also seeks a judicial declaration so Defendant “may also be aware of their obligations under the law to not engage in discriminatory practices and to not violate the law in the future.” (FAC ¶ 141.)

“Declaratory relief generally operates prospectively to declare future rights, rather than to redress past wrongs. [Citations.] It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs. In short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) However, declaratory relief may still be available after wrongful termination. “First, proof that an adverse employment decision was substantially motivated by discrimination may warrant a judicial declaration of employer wrongdoing. Declaratory relief, where appropriate, may serve to reaffirm the plaintiff's equal standing among her coworkers and community, and to condemn discriminatory employment policies or practices. [Citation.] Second, upon a finding of unlawful discrimination, a court may grant injunctive relief where appropriate to stop discriminatory practices.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 234 [plaintiff alleging wrongful termination].)

The court may, upon a motion or at any time in its discretion: (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, subds. (a)-(b).)

Defendant moves to strike allegations relating to punitive damages due to insufficient facts. (Motion at pp. i, 3-4.) A plaintiff can recover punitive damages in tort cases where “the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code § 3294, subd. (a).) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.) A corporate employer can be liable for punitive damages only when an officer, director, or managing agent of the corporation authorized or ratified the wrongful conduct or was personally guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (b).) The FAC’s conclusory allegations do not meet these requirements. (E.g., FAC ¶¶ 50, 64, 75, 84, 96, 117.)

Defendant moves to strike “all improper requests for general damages including pain and suffering, emotional distress, medical expenses, and ‘aggravated disability,’” and “general damages, including for past and future medical expenses for the aggravated disability and emotional distress.” (Motion at pp. i-ii; see id. at p. 5.) Defendant argues that this is not a worker’s compensation claim, there is no allegation that Defendant caused any physical or psychological harm to Plaintiff, and there is no allegation supporting Plaintiff’s attempt to recover medical expenses or pain and suffering. (Motion at p. 5.) Defendant also moves to strike “the vague, generic, non-specified, and unsupported requests for compensation for ‘other economic loss’” and the prayer for special damages. (Motion at pp. ii, 6.)

Such damages, including for emotional distress, are available in employment actions alleging retaliation. (See, e.g., Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 449.) Plaintiff is not required to specifically plead his damages, which will be subject to proof at a later stage.

Defendant moves to strike all claims seeking to recover “lost earning capacity” because this is not a worker’s compensation claim and Plaintiff does not plead a basis for lost earning capacity. (Motion at pp. ii, 5.) Defendant cites no authority barring a prayer for these potential damages at the pleading stage.

Defendant moves to strike the prayer for costs and fees “to the extent it seeks costs of suit and expert witness fees for any non-FEHA claims” and any costs and fees “pursuant to . . . any other basis.” (Motion at p. ii; see id. at p. 6.)

Plaintiff prays for “costs of suit incurred herein, including expert witness fees pursuant to the FEHA, and/or any other basis.” (FAC at p. 27.) If Plaintiff is the prevailing party, he will be entitled to costs and expert fees as a matter of right. (Code. Civ. Proc., § 1032, subd. (b).) There is nothing improper about this request.

Defendant moves to strike the prayer for a “money judgment representing . . . all other sums of money” because “Plaintiff has no basis in law or fact to seek unspecified money damages beyond those supported by specific factual allegations or in addition to those compensatory damages, such as lost wages and benefits resulting from the alleged wrongful termination.” (Motion at pp. ii-iii; see id. at p. 6.) Any monetary judgment will be subject to proof at a later stage. There is nothing improper about this request.

Defendant moves to strike the prayer for attorney fees “to the extent Plaintiff thereby seeks attorney’s fees under CCP § 1021.5” because “Plaintiff is at present not the prevailing part[y] and therefore such a motion is improper – and alleging it in the FAC is the improper procedure for seeking such attorney’s fees.” (Motion at p. iii; see id. at p. 7.) Defendant also moves to strike Plaintiff’s prayer for attorney fees under “other applicable law.” (Motion at p. iii; see id. at p. 7.) Plaintiff’s prayer for attorney fees in the FAC is indeed proper—and required if Plaintiff intends to move for attorney fees later as a prevailing party.

Defendant moves to strike Plaintiff’s prayer for post-judgment interest because “Plaintiff has no basis at present to seek post-judgment interest,” and “the FAC is not the appropriate procedural vehicle to seek post judgment interest, were it to later become available following a judgment.” (Motion at p. iii.) Post-judgment interest automatically accrues on a money judgment on the date of entry of the judgment (Code Civ. Proc., § 685.020), but there is nothing improper about also requesting it in the FAC.

The demurrer to the fifth and sixth causes of action is SUSTAINED with 20 days’ leave to amend.

The demurrer to the seventh, eighth, ninth, and tenth causes of action is OVERRULED.

The motion to strike is GRANTED with 20 days’ leave to amend for punitive damages. The motion to strike is otherwise DENIED.

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