Judge Thomas D. Long, Case Number: 23STCV10401, Date: 2024-01-11 Tentative Ruling

On July 5, 2023, Plaintiff Roxanna Simanian filed a first amended complaint (“FAC”) against Defendants La Colombe Holdings Inc., Rana Seabrook, and Isaiah Gutierrez.

On August 8, 2023, Defendants filed a combined demurrer and motion to strike. “Motions to strike and demurrers should be filed as separate documents.” (Weil & Brown, Cal. Prac. Guide: Civil Procedure Before Trial (The Rutter Group June 2022 Update) ¶ 7:162.1.)

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 special demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) is disfavored and will only be sustained where the pleading is so bad that defendant or plaintiff cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

A. Plaintiff Does Not Allege Facts Showing Wrongful Termination (Eleventh Cause of Action).

The eleventh cause of action alleges wrongful termination “in violation of various fundamental public policies underlying both state and federal laws. Specifically, plaintiff’s employment was terminated in part because of her protected status (i.e., disability, disability by association, ancestry, national origin, race, and religion, and/or protected activity).” (FAC ¶ 86.)

Defendants argue that there was no termination and that Plaintiff voluntarily resigned. (Demurrer at pp. 11-12.) Plaintiff argues that when an employer’s misrepresentation to an employee induces the employee to alter their position, it may form a basis for fraud in the context of wrongful termination. (Opposition at p. 6.)

An employer’s misrepresentations might be “the means to the end desired by the employer, i.e., termination of employment. . . . If the termination itself is wrongful, either because it breaches the employment contract or because it violates some well-established public policy articulated in a statute or constitutional provision, then the employee is entitled to recover damages sounding in contract or tort, respectively.” (Hunter v. Up-Right, Inc. (1993) 6 Cal.4th 1174, 1185 (Hunter).) “[A]n action for wrongful termination in violation of public policy must be predicated on a fundamental, well-established, substantial policy that concerns society at large rather than the individual interests of the employer or employee [citation], and that is delineated in some constitutional or statutory provision.” (Id. at p. 1186.)

Plaintiff alleges that in August 2022, “an opportunity to attend school in New York presented itself” to her. (FAC ¶ 15(i).) She asked Gutierrez if she could transfer to a location of Defendant in New York, and Gutierrez “informed her that she could and to let him know when she moves so that he can process her transfer.” (FAC ¶ 15(i).) Plaintiff then “turned in her resignation for the location she was working out of, and she felt comfortable doing so because she was given the assurance that when she arrived to New York she would have a job.” (FAC ¶ 15(j).) Thereafter, an employee from Human Resources emailed Plaintiff a link with current New York job postings and a link for “returning employees.” (FAC ¶ 15(j).) Once in New York, Plaintiff spoke with a supervisor at a nearby store, “who seemed very excited as she had received Simanian’s job application. She advised Simanian that she emailed Gutierrez and was still waiting for a reply.” (FAC ¶ 15(k).) Two weeks later, Gutierrez emailed Plaintiff to say “that he replied to the email from the manager in New York and he even spoke to the east coast director and was informed that no one in the east coast was hiring.” (FAC ¶ 15(l).) on September 22, 2022, Seabrook informed Plaintiff that she was not hirable in the café. (FAC ¶ 16.)

In Hunter, the plaintiff’s supervisor falsely informed him that “there had been a corporate decision to eliminate his position and that if he did not resign he would be terminated,” so the plaintiff signed a resignation document. (Hunter, supra, 6 Cal.4th at p. 1179.) Here, however, Plaintiff does not allege facts showing that Defendants forced her resignation. Plaintiff inquired about a transfer, and Gutierrez “informed her that she could and to let him know when she moves so that he can process her transfer.” (FAC ¶ 15(i).) Instead of waiting for Gutierrez to process a transfer, Plaintiff “turned in her resignation for the location she was working out of.” (FAC ¶ 15(j).)

And even if the facts were sufficient to show Plaintiff’s forced resignation, Plaintiff does not allege facts showing that the constructive termination was wrongful because it breached an employment contract (as further discussed with the eighth and ninth causes of action below) or violated well-established public policy articulated in a statute or constitutional provision. (See Opposition at p. 7 [arguing wrongful termination arising from breach of an implied-in-fact contract]

B. Plaintiff Does Not Sufficiently Allege a Contract or Breach (Eighth and Ninth Causes of Action).

The eighth cause of action alleges breach of express oral contract not to terminate employment without good cause, and the ninth cause of action alleges breach of implied-in-fact contract not to terminate employment without good cause.

“In the employment context, factors apart from consideration and express terms may be used to ascertain the existence and content of an employment agreement, including ‘the personnel policies or practices of the employer, the employee’s longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.’” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680.)

Defendants argue that Plaintiff cannot overcome the statutory presumption that employment contracts without a stated duration are at will. (Demurrer at pp. 9-11; see Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 335, fn. 8.)

Plaintiff alleges that “[o]n the basis of oral assurances of continued employment given to plaintiff by defendants’ supervisors, the length of plaintiff’s employment with defendants, defendants’ actual practice of terminating employment only for cause, and the industry standard for the business defendants engaged in of terminating employment only for cause, plaintiff and defendants shared the actual understanding that plaintiff’s employment could and would be terminated only for cause.” (FAC ¶ 79.) This conclusory recitation of factors does not set forth any facts showing an agreement to terminate employment only for cause. The only relevant factual allegations are that Plaintiff began working for Defendants on October 13, 2021 and turned in her resignation on August 18, 2022. (FAC ¶¶ 12, 15(j).)

Defendants also argue that Plaintiff cannot allege a breach because she resigned and there was no termination. (Demurrer at p. 11.) For the reasons discussed with the eleventh cause of action, this is another deficiency.

C. Plaintiff Does Not Allege Extreme Conduct or Severe Emotional Distress (Thirteenth Cause of Action).

The thirteenth cause of action alleges intentional infliction of emotional distress (“IIED”) arising from Defendants’ “discriminatory, harassing, and retaliatory actions against plaintiff constituted extreme and outrageous misconduct.”

“‘[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.)

Defendants argue that none of the allegations constitute extreme or outrageous conduct. (Demurrer at pp. 13-15.) “Liability for intentional infliction of emotional distress ‘“does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” [Citations.]’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051 (Hughes).)

Plaintiff alleges limited conduct: (1) Plaintiff requested that she not be scheduled on Sundays any longer to care for her uncle who was diagnosed with cancer, but Gutierrez informed her that she will be fired if she cannot make it to work on Sundays; (2) Gutierrez stated “stop building pyramids, I know that is all you guys do,” referring to Plaintiff’s middle eastern background; (3) Gutierrez said, “I don’t think you are that religious, do you have to take it off? I didn’t even know you went to temple,” in response to Plaintiff’s request for a day off due to a religious holiday; and (4) Gutierrez required Plaintiff, but not a white coworker, to return to work with a doctor’s note and told her to mind her own business. (FAC ¶¶ 15(c)-(e), (g); see Opposition at pp. 7-8.) This is not extreme or outrageous conduct.

Defendants also argue that Plaintiff does not allege severe emotional distress. (Demurrer at pp. 15-17.)

Plaintiff alleges that she felt “helpless and distraught,” “devastated,” “mortified and anxious,” “degraded, upset and shocked,” “even more helpless and distressed,” “completely overcome with anxiety, distress, mental and physical pain and anguish,” and she continues to suffer “psychological and emotional distress, humiliation, and mental and physical pain and anguish” and “humiliation, emotional distress, and mental and physical pain and anguish.” (FAC ¶¶ 15(b)-(f), 16, 18, 101.)

Similar allegations of “discomfort, worry, anxiety, upset stomach, concern, and agitation” do not constitute “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes, supra, 46 Cal.4th at p. 1051, quotation marks omitted.)

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).)

Defendants seek to strike the prayer for punitive damages against Seabrook and La Colombe, to the extent any punitive damages sought against La Colombe are predicated on alleged actions by Seabrook. (Demurrer at p. 19.)

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.)

With respect to Seabrook, Plaintiff alleges that she ignored Plaintiff’s complaint about Gutierrez’s harassment and informed Plaintiff that she was not hirable in the cafe area of the company. (FAC ¶¶ 15(f), 15(h), 16.) Even a single complaint about unlawful harassment should alert a manager to respond and can support a punitive damage award. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 717.) The motion is denied as to Seabrook.

With respect to La Colombe, a corporate employer can be liable for punitive damages only when an officer, director, or managing agent of the corporation had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful conduct, or was personally guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (b).) There are no such allegations about La Colombe’s knowledge or ratification of Seabrook’s conduct.

Plaintiff argues that “Defendants clearly acted with fraud when they falsely induced Plaintiff into believing that she would be allowed to transfer to a position with Defendants in New York when in fact they planned on forcing Plaintiff into resigning, and with malice when they repeatedly attacked Plaintiff on the basis of her religion and ethnicity.” But the alleged fraudulent inducement and harassment were attributed to Gutierrez, not Seabrook.

The motion to strike is GRANTED with 30 days’ leave to amend as to La Colombe. The motion is DENIED as to Seabrook.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court