Judge Thomas D. Long, Case 22STCV19334 2023-05-25 Tentative Ruling

On December 29, 2022, Plaintiff Timothy Philips filed a second amended complaint (“SAC”) against Defendant Seizmic, Inc.

On January 30, 2023, Defendant filed a demurrer to the fifth and sixth causes of action. Defendant also filed a motion to strike.

On March 2, 2023, Plaintiff’s counsel filed this motion to continue the case as a survival action through Michelle Philips, the successor in interest for Plaintiff, who is now deceased. No oppositions were filed.

“A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest . . . and an action may be commenced by the decedent’s personal representatives or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.30.) After the death of a plaintiff, the court, on motion, shall allow a pending action that does not abate to be continued by the decedent’s personal representative or successor-in-interest. (Code Civ. Proc., § 377.31.)

The person who seeks to commence or continue a pending action as the decedent’s successor in interest shall execute and file an affidavit or declaration that includes (1) the decedent’s name; (2) the date and place of decedent’s death; (3) “No proceeding is now pending in California for administration of the decedent’s estate”; (4) a copy of the final order showing the distribution of the decedent’s cause of action to the successor-in-interest, if the decedent’s estate was administered; (5) either the declarant is the decedent’s successor in interest or the declarant is authorized to act on behalf of the decedent’s successor in interest, with facts in support thereof; (6) “No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding”; and (7) that the statements are true, under penalty of perjury. (Code Civ. Proc., § 377.32, subd. (a).) The affidavit or declaration must attach a certified copy of the decedent’s death certificate. (Code Civ. Proc., § 377.32, subd. (c).)

Michelle Philips declares that Plaintiff passed away on February 23, 2023 at their home in West Covina, California. (Philips Decl. ¶ 3.) She declares that there is no proceeding pending in California for the administration of Plaintiff’s estate. (Id. at ¶ 5.) As Plaintiff’s widow, she declares that she is the successor in interest under Code of Civil Procedure section 377.11. (Id. at ¶ 4.) “No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.” (Id. at ¶ 6.) She declares that her statements are true under penalty of perjury. The copy of the death certificate attached to her original declaration does not appear to be a complete, certified copy, as required by statute. (See Philips Decl., Ex. 1.) Accordingly, the Court continued the motion. Michelle Philips filed a supplemental declaration on May 12, 2023 with a certified copy of Plaintiff’s death certificate.

The motion to continue this action as a survival action by substituting Michelle Philips as successor in interest is GRANTED.

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.)

A. The SAC Sufficiently Pleads a Violation of Labor Code § 1102.5 (Fifth Cause of Action).

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.)

When sustaining a demurrer to the FAC, the Court noted that Plaintiff did not identify any violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. The SAC now alleges that Defendant’s failure to inform employees about a coworker’s positive COVID-19 test violated Labor Code section 6400, subdivision (a), which requires that “(e)very employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” (SAC ¶¶ 22-25.) Plaintiff complained to his supervisors about this safety violation, and they terminated his employment. (SAC ¶¶ 24-26.)

Because the FAC now alleges that Plaintiff complained about a violation of a specific state statute, the demurrer is overruled.

B. The SAC Sufficiently Pleads a Violation of Labor Code § 6310 (Sixth Cause of Action).

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).)

Plaintiff previously alleged that he 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).

The SAC now alleges that Defendant “discriminated against him as a result of her complaints of the lack of notification of a COVID-19 exposure—disclosure of what PLAINTIFF believed were violations of the law or noncompliance with the law.” (SAC ¶ 96.) Plaintiff “had reasonable cause to believe that his complaints disclosed a violation of state or federal statute, or violation of noncompliance with local, state, or federal rule or regulation, specifically Labor Code section 6400(a) . . . .” (SAC ¶ 97.) These allegations now identify Plaintiff’s complaints about specific unsafe working conditions.

The demurrer to the fifth and sixth causes of action is OVERRULED. Defendant is ordered to file an answer within 10 days. (California Rules of Court, rule 3.1320(j)(1).)

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 related to punitive damages (SAC ¶¶ 46, 60, 70, 79, 91, 103, 111, and Prayer for Relief ¶ 7). 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.)

Plaintiff’s allegation that Defendant intentionally retaliated against him bv terminating his employment and attempting to hide the illegal reason with a false explanation (see SAC ¶ 28) could support a finding of malice.

However, 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).) Plaintiff alleges that Defendant’s President (Mr. Woroniecki) and CEO (Mr. Fateen) were present when Plaintiff complained to his supervisors about safety violations. (SAC ¶ 24.) Plaintiff alleges that Mr. Medina terminated his employment. (SAC ¶ 26.) There are no allegations about Mr. Medina as an officer, director, or managing agent, and no allegations that Mr. Woroniecki or Mr. Fateen authorized or ratified the termination. The allegation that Defendant “authorized, condoned and/or ratified the unlawful conduct” is conclusory. (SAC ¶ 104.)

Plaintiff has already had the opportunity to amend and failed to remedy the deficiencies. Accordingly, no further leave to amend is granted. If Plaintiff later obtains evidence supporting punitive damages, he may seek leave to amend through a properly noticed motion.

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