Judge Thomas D. Long, Case Number: 23STCV12131, Date: 2023-10-17 Tentative Ruling

On May 30, 2023, Plaintiff Dr. David A. Geiger filed this action against Defendants National Veterinary Associates Inc., Ethos Veterinary Health LLC, Ethos-California Veterinary Group Inc., Leilani Way, Madisyn Bonestell-Jensen, and Michelle Connearney.

On July 14, 2023, National Veterinary Associates Inc., Ethos Veterinary Health LLC, and Ethos-California Veterinary Group Inc. filed a demurrer and motion to strike. On July 20, 2023, Madisyn Bonestell-Jensen filed a notice of joinder to the motions.

On July 20, 2023, Way and Connearney filed a motion to quash the summons and complaint for lack of personal jurisdiction.

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., § 410.10.) “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’” (Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 471-472 (Burger King Corp.).) A state court may not exercise personal jurisdiction over a party under circumstances that would offend “traditional notions of fair play and substantial justice.” (Asahi Metal Industry Co., Ltd., v. Superior Court of California, Solano County (1987) 480 U.S. 102, 113.)

A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion and motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc., § 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., § 581, subd. (h).)

When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. (Jayone Foods, Inc. v. Aekyung Industrial Co. Ltd. (2019) 31 Cal.App.5th 543, 553.) Once facts showing minimum contacts with the forum state are established, the defendant has the burden to demonstrate that the exercise of jurisdiction would be unreasonable. (Ibid.) “The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.] The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts. [Citation.]” (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 222.)

Plaintiff does not argue that Way and Connearney are subject to general personal jurisdiction. Plaintiff contends only that they are subject to specific jurisdiction. A nonresident defendant may be subject to the specific jurisdiction of the forum “if the defendant has purposefully availed himself or herself of forum benefits [citation], and the ‘controversy is related to or “arises out of” a defendant’s contacts with the forum.’ [Citations.]” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 446.) In addition, the assertion of personal jurisdiction must “‘comport with “fair play and substantial justice.”’ [Citations.]” (Id. at pp. 447-448.)

To refute specific jurisdiction, Way and Connearney rely solely on Ruger v. Superior Court (1981) 118 Cal.App.3d 427 (Ruger) and argue that “the only conduct that could potentially be alleged by Plaintiff (which is not clearly or specifically alleged in the Complaint) are actions by Defendants solely in their capacities as corporate employees and are not actions that are substantially connected to any specific wrongful conduct alleged by Plaintiff (and none that is specifically alleged in the Complaint).” (Motion at p. 6.)

In Ruger, the plaintiffs sought damages from the corporation and Ruger (who was not a California resident) for personal injuries allegedly caused by defects in revolvers manufactured by the corporation. (Ruger, supra, 118 Cal.App.3d at p. 429.) The plaintiffs asserted that Ruger, as the responsible corporate employee, failed to place known safety devices on the product and failed to warn of the inherently dangerous product. (Id. at pp. 431-432.) The Court of Appeal noted that all of Ruger’s acts outside of California were on behalf of the corporation and not in his individual capacity, and it was the corporation that introduced the revolver into the stream of commerce. (Id. at pp. 432-433.) Additionally, Ruger’s corporate position as officer, shareholder, and employee “does not supply the missing link for a constitutionally cognizable relationship with California supplying the basis for personal jurisdiction. For personal jurisdiction to lie, the character, quality, and nature of Ruger’s activity must bear a substantial relationship to the causes of action beyond that derived solely from his official position with the corporation.” (Id. at p. 433.)

Here, the third cause of action alleges hostile work environment against Way and other defendants. The eleventh cause of action alleges intentional infliction of emotional distress by all defendants, including Way and Connearney. The twelfth and thirteenth causes of action alleges defamation by all defendants, including Way and Connearney, arising from statements about Plaintiff’s job performance. The fourteenth cause of action alleges that Connearney and others failed to timely pay wages. Specifically, Plaintiff alleges that Way interfered with Plaintiff’s requests about scheduling collective bargaining meetings. (Complaint ¶ 17(v)(4).) Way and Connearney participated in person during Plaintiff’s termination. (Complaint ¶ 18(a).) Plaintiff also provides evidence that Way and Connearney worked with Madisyn Bonestell-Jensen and Audrey Stevens “to set up [Plaintiff’s] termination.” (Iso Decl. ¶¶ 5, 7 & Exs. 3, 5.) Connearney also met with Plaintiff and the neurology department staff, seeking “feedback” and documenting criticism of Plaintiff. (Iso Decl. ¶ 6 & Ex. 4.)

Therefore, Plaintiff’s allegations establish “the effects in this state of [Way’s and Connearney’s] acts or omissions elsewhere” (Ruger, supra, 118 Cal.App.3d at p. 431), making this case more similar to Plaintiff’s cited case of Calder v. Jones (1984) 465 U.S. 783, 790 (Calder). (See Opposition at p. 4.) The alleged wrongdoing concerned a California resident in his California employment, impugned the professional reputation of a California veterinarian, and caused harm in California. (See Calder, supra, 465 U.S. at pp. 788-789.) Accordingly, jurisdiction “is therefore proper in California based on the ‘effects’ of their [out-of-state] conduct in California,” and “their intentional, and allegedly tortious, actions were expressly aimed at California.” (Id. at p. 789.) Way’s and Connearney’s “status as employees does not somehow insulate them from jurisdiction. Each defendant’s contacts with the forum State must be assessed individually. [Citation.] In this case, [Way and Connearney] are primary participants in an alleged wrongdoing intentionally directed at a California resident, and jurisdiction over them is proper on that basis.” (Id. at p. 790.)

Leilani Way and Michelle Connearney are ordered to file a responsive pleading within 60 days.

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 Sufficiently Pleads Disability Discrimination (First Cause of Action).

Defendants argue that Plaintiff “fails to sufficiently or particularly allege specific facts in his Complaint to support that he actually disclosed either of the identified conditions to Defendant” and “Plaintiff fails to allege the necessary specific facts to support that any one of these purported conditions limited his ability to participate in one or more major life activities or resulted in his inability to perform essential functions of his job such that he would qualify under the first prong of the test.” (Demurrer at p. 11.)

An employee’s prima facie claim of discrimination requires “(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.)

Plaintiff alleges that he suffered from disabilities, including “asthma, clinical depression, anxiety, and ADHD,” and he made Defendants aware of his disabilities and his need for accommodations. (Complaint ¶ 16(a)-(b) & fn. 1.) Plaintiff raised concerns about disability harassment and Defendants’ failure to accommodate his disability. (Complaint ¶ 17(e).) He also sent Defendants correspondence about taking “a medication which has side effects that disrupt [his] sleep cycle drastically,” resulting in his “inability to work in the morning and [his] need to have a later start time than most hospitals like.” (Complaint, Ex. 5.) Plaintiff’s employment was terminated due in part to his disability. (Complaint ¶ 28.) This sufficiently alleges disability discrimination. Defendants’ cited cases involve the proof required at summary judgment, not the pleading standard at demurrer. (See Demurrer at pp. 11-12.)

B. Plaintiff Sufficiently Pleads Disability Discrimination By Association (Second Cause of Action).

Defendants argue that “Plaintiff fails to include adequate facts to support that: his grandmother had a disability specifically recognized under FEHA; Defendants were aware that his ‘sporadic’ requests for time off were specifically to care for his disabled grandmother; and/or any facts to support that Plaintiff’s termination was in any way related to or the result of his association with his allegedly ‘disabled’ grandmother.” (Demurrer at pp. 12-13.)

Plaintiff alleges that he required intermittent time off to care for his disabled grandmother, and he informed Defendants about this. (Complaint ¶ 16(c).) “Plaintiff’s association with his disabled grandmother, including his need to take intermittent time off work to care for her, and/or other characteristics protected by FEHA . . . were motivating factors in defendants’ decision to terminate plaintiff’s employment . . . .” (Complaint ¶ 35.) This is sufficient.

C. Plaintiff Does Not Allege Facts Showing Hostile Work Environment (Third Cause of Action).

Defendants argue that “nowhere within the approximately 110 pages of pleading does Plaintiff include any factual pleading upon which it may be reasonably inferred that Plaintiff suffered even a single instance of harassment based upon his alleged disability that would be considered so ‘severe in the extreme’ as to eliminate the need to plead facts supporting a concerted pattern.” (Demurrer at pp. 13-14.)

To establish a claim for harassment, a plaintiff must demonstrate that (1) he is a member of a protected group; (2) he was subjected to harassment because he belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment. (See Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121.) Whether harassment exists based upon a hostile work environment is determined by considering all of the circumstances, which may include frequency, severity, and job interference. (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.)

Plaintiff alleges that Defendants “bullied and harassed him about his disability and at times refused to honor his known restrictions.” (Complaint ¶ 17(e).) Plaintiff “was subjected to harassing conduct through a hostile work environment, in whole or in part on the basis of plaintiff’s disability . . . .” (Complaint ¶ 42.) This lacks sufficient facts to show severe harassment constituting a hostile work environment.

D. Plaintiff Does Not Allege Facts Showing Marital Status Discrimination (Fifth Cause of Action).

Defendants argue that there are no facts about how “Defendants allegedly discriminated against Plaintiff based upon his marital status, or unlawfully discriminated against him based upon his fiancé/spouse.” (Demurrer at p. 14.)

Plaintiff alleges that Defendants knew that he was engaged to be married, and his marital status was a motivating factor in Defendants’ decision to terminate his employment. (Complaint ¶¶ 16(d), 17(a), 58.) This does not allege sufficient facts for this cause of action. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604 [“[F]acts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled.”]; Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 478 [“[S]imply parroting the language of [a statute] in the complaint is insufficient to state a cause of action under the statute.”].)

E. Plaintiff Does Not Allege Facts Showing a Violation of Labor Code Section 970 (Tenth Cause of Action).

Defendants argue that Plaintiff does not meet the heightened fraud pleading standards for a claim under Labor Code section 970. (Demurrer at p. 15.)

“To prevail on a Section 970 claim, the plaintiff must prove: (1) the defendant made representations to the plaintiff about the kind or character of work, or the length of time the work would last; (2) the defendant’s representations were not true; (3) the defendant knew when the representations were made that they were not true; (4) the defendant intended that the plaintiff rely on the representations; (5) the plaintiff reasonably relied on the representations and changed his or her residence for the purpose of working for the defendant; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the defendant’s representations was a substantial factor in causing his or her harm.” (White v. Smule, Inc. (2022) 75 Cal.App.5th 346, 355-356.)

A claim under section 970 sounds in fraud and is subject to the same particularity requirements for pleading. “‘This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.] A plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’ [Citation.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Plaintiff alleges that before he accepted full-time employment in California, Defendants said they would accommodate Plaintiff’s disability-necessitated schedule so that he could start work in the late morning, among other representations. (Complaint ¶ 106.) Plaintiff does not clearly allege that Defendants knew these representations were false, intended that Plaintiff would rely on the representations, and how these representations caused Plaintiff’s harm. Plaintiff also does not allege who made the various representations, their authority to speak, and how the representations were made.

F. Plaintiff Does Not Allege Facts Showing Defamation Per Se (Twelfth Cause of Action).

Defendants argue that, “due to Plaintiff’s mixed and muddled use of quotation marks, and/or their patent ambiguity,” the alleged statements do not have a natural tendency to injure Plaintiff’s reputation as a veterinarian. (Demurrer at pp. 16-17.) Defendants also argue that they are subject to the employer’s qualified privilege. (Ibid.)

“[T]o be actionable per se, a defamatory statement must tend ‘directly’ to injure the person defamed in respect to his office, profession, trade or business, in either of two ways, i.e., ‘by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires’, or ‘by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits.’” (Correia v. Santos (1961) 191 Cal.App.2d 844, 852.) “[B]ecause an employer and its employees have a common interest in protecting the workplace from abuse, an employer’s statements to employees regarding the reasons for termination of another employee generally are privileged.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440.) To defeat a qualified privilege, “a plaintiff must specifically allege malice. [Citation.] A general allegation of malice will not suffice; plaintiff must allege detailed facts showing defendant’s ill will towards him.” (Robomatic, Inc., v. Vetco Offshore (1990) 225 Cal.App.3d 270, 276.)

Plaintiff alleges that Defendants informed others that Plaintiff “kept ‘a tech’ on the job ‘for 22 hours,’ had deficient ‘leadership ability,’ showed a ‘lack’ of ‘communication ability,’ and did not ‘show[] remorse’ regarding necessary emergency surgery performed on a German shepherd named ‘Zoe.’” (Complaint ¶ 120.) These broken statements and selective quotations do not clearly show the defamatory nature of the statements or that they would be interpreted as facts rather than opinions. “Where the language at issue is ambiguous, the plaintiff must also allege the extrinsic circumstances which show the third person reasonably understood it in its derogatory sense.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 646.) Plaintiff does not do so here. Additionally, Plaintiff does not allege to whom the statements were made. To the extent that they were only made internally and are subject to a qualified privilege, the allegations of malice (Complaint ¶ 124) are conclusory and not supported by facts.

G. Plaintiff Does Not Allege Facts Showing Compelled Self-Defamation (Thirteenth Cause of Action).

Defendants argue that even if the statements were defamatory, Plaintiff does not plead a compulsion to self-publish. (Demurrer at p. 18.)

“[O]rdinarily the originator of the defamatory matter is also liable for each such repetition if he could reasonably have foreseen the repetition.” (Di Giorgio Corp. v. Valley Labor Citizen (1968) 260 Cal.App.2d 268, 273.)

Plaintiff alleges that Defendants knew that Plaintiff “would be under a strong compulsion to repeat these comments to others, including his fiancée, family members, and friends” after his termination. (Complaint ¶ 121.) Plaintiff has in fact “told prospective employers of those statements.” (Complaint ¶ 121.) This sufficiently alleges compelled self-defamation.

However, for the reasons discussed with the twelfth cause of action, the alleged statements are not clearly facially defamatory.

The demurrer to the third, fifth, tenth, twelfth, and thirteen causes of action is SUSTAINED with 30 days’ leave to amend. The demurrer is otherwise overruled.

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 move to strike “Defendants’ misconduct was committed intentionally, in a malicious, fraudulent, and/or oppressive manner, and this entitles plaintiff to punitive damages against defendants” in paragraphs 3, 21, 32, 39, 47, 55, 62, 69, 76, 81, 94, 108, 113, 118, and 124. Defendants also move to strike the prayer for exemplary damages.

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 allegations that the acts were “committed intentionally, in a malicious, fraudulent, and/or oppressive manner” are conclusory and do not allege specific facts. “[W]rongful termination, without more, will not sustain a finding of malice or oppression.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 717.)

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