Judge Thomas D. Long, Case 22STCV27002 2023-03-30 Tentative Ruling

On August 18, 2022, Plaintiff Nikkaila Bain filed this action against Defendants RPZ LA, LLC and Michael Konig (collectively, “Defendants”).

On December 2, 2022, Defendants filed a demurrer. On March 22, 2023, Plaintiff filed a late opposition. Defendants’ objection to the late opposition is overruled, as the opposition did not change the Court’s ruling.

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. Plaintiff Does Not Allege Facts Showing that Konig Can Be Individually Liable For the First Cause of Action.

The first cause of action alleges discrimination based on gender, in violation of the Fair Employment and Housing Act (“FEHA”) against all Defendants.

Defendants argue that Plaintiff cannot bring this cause of action against Konig, the individual defendant. (Demurrer at pp. 5-6.) Supervisors and “individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.” (Reno v. Baird (1998) 18 Cal.4th 640, 663.)

Plaintiff alleges that she was “an employee of RPZ, LA LLC at MainRo at relevant times.” (Complaint ¶ 1.) Konig was “an owner, officer, member, manager, agent, and the highest superior of MainRo and acting within the course and scope of his position at MainRo,” and he was “involved in the management and control of MainRo' s business operations.” (Complaint ¶¶ 3, 5.) Plaintiff does not allege that Konig was her employer, despite alleging that RPZ and other Doe Defendants “were employers, or alternatively, joint-employers.” (Complaint ¶ 6.)

Plaintiff argues that an individual may be liable for retaliating against someone who opposes or reports harassment by that same individual. (Opposition at pp. 3-4.) But Plaintiff is not alleging that Konig retaliated against her following Plaintiff opposing or reporting Konig’s harassment. Plaintiff alleges discrimination in the form of “Defendants engag[ing] in a gender-based double standard where female employees were suffered from physical assault and battery (whereby male counterparts were not).” (Complaint ¶ 59.)

B. Plaintiff’s Eighth and Ninth Causes of Action Are Barred By the Workers’ Compensation Exclusivity Rule.

The eighth cause of action for intentional infliction of emotional distress and ninth cause of action for negligent infliction of emotional distress allege that Konig, “in his capacity as an employee, supervisor, owner and/or superior at MainRo, intentionally, wilfully [sic], wantonly and maliciously grabbed, pulled, bumped, and shoved Plaintiff Bain and threatened to strike Plaintiff and raised his hands in a manner so as to cause Plaintiff to reasonably believe she was about to be struck in a harmful and offensive manner.” (Complaint ¶¶ 140, 156; see id. at ¶¶ 31-35.)

Defendants argue that these causes of action fail because her exclusive remedy is through workers’ compensation. (Demurrer at pp. 7-8.) 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.) “An employer's intentional misconduct in connection with actions that are a normal part of the employment relationship, such as demotions and criticism of work practices, resulting in emotional injury is considered to be encompassed within the compensation bargain, even if the misconduct could be characterized as ‘manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance.’” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 367 (Singh).)

Plaintiff argues that this does not apply when the employer’s conduct contravenes public policy. (Opposition at pp. 5-6.) 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.) But Plaintiff’s claims are not based on emotional distress caused by violations of public policy, such as FEHA retaliation or wrongful termination. Instead, they are based only on one incident of Konig “forcefully grabb[ing] Plaintiff around her shoulders with his hands,” “verbally berat[ing] Plaintiff by yelling in her face,” and “shoving her with force into a table.” (Complaint ¶¶ 31-32.) This falls within the workers’ compensation exclusivity rule. (See Singh, supra, 186 Cal.App.4th at p. 367 [finding that the misconduct of the company’s president who “berated and humiliated [the plaintiff], criticized his job performance, and insulted him with profanities on a regular basis . . . all occurred in the normal course of the employer-employee relationship”].)

The demurrer is SUSTAINED. Because Plaintiff did not show how she can remedy these 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