Judge: Upinder S. Kalra, Case: 21STCV30567, Date: 2022-09-13 Tentative Ruling

Case Number: 21STCV30567    Hearing Date: September 13, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   September 13, 2022                                       

CASE NAME:           Jane Doe v. Food 4 Less of California, Inc., et al.

CASE NO.:                21STCV30567

DEFENDANTS’ DEMURRER WITHOUT MOTION TO STRIKE

MOVING PARTY: Defendant Food 4 Less of California, Inc., et al.

RESPONDING PARTY(S): Plaintiff Jane Doe

REQUESTED RELIEF:

1.      An order sustaining the demurrer as to the fifth, sixth, tenth, fifteenth, twentieth, and twenty-first causes of action

TENTATIVE RULING:

1.      Demurrer as to the Fifth Cause of Action is SUSTAINED, without leave to amend, and partially SUSTAINED as to the Sixth Cause of Action.

2.      Demurrer as to the remaining Causes of Action are OVERRULED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On August 18, 2021, Plaintiff Jane Doe (“Plaintiff”) filed a complaint against Defendants Food 4 Less of California, Inc., Ralph’s Grocery Company, Inc., The Kroger Co., Cala Co. and Joel Gonzalez (“Defendants.”)

The FAC was filed on April 4, 2022. It alleges 21 causes of action, based labor code violations, FEHA discrimination and retaliation, and infliction of emotional distress.

On May 13, 2022, Defendants filed a Declaration of Demurring Party in Support of Automatic Extension.

Defendants filed the current demurrer on June 16, 2022. Plaintiff’s opposition as filed on August 29, 2022. Defendants filed a reply on September 6, 2022.

Meet and Confer:

The Declaration of Code Franklin provides that the parties met and conferred over the phone on June 1, 2022. They were unable to reach a resolution. (Dec. Franklin, ¶ 3.)

Service:

The Proof of Service attached to Defendant’s demurrer indicates that Plaintiff’s counsel was served via U.S. mail and email. Plaintiff’s proof of service indicates that Defendant was served via facsimile/email.

LEGAL STANDARD

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. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶7:8. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn 147 Cal.App.4th at 747.  

Request for Judicial Notice:

The Court may take judicial notice of the existence of the records, but not the truth of matters asserted in such records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565). As a result, although the court may take judicial notice that the documents exists, the Court may not take judicial notice of the truth of the facts in the documents.

            Additionally, Evidence Code only allows the Court to take judicial notice of certain types of documents. The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) The Evidence Code does not allow the Court to take judicial notice of discovery responses or parts of cases, such as depositions.

Plaintiff requests the following documents be judicial noticed:

1.      The Complaint in Superior Court of The State of California, County of Los Angeles, Central District, Case No. 20STCV18496, ADRIANA DEL TORO, Plaintiff, v. FOOD 4 LESS OF CALIFORNIA, Inc., RALPHS GROCERY COMPANY, THE KROGER CO., JOEL GONZALEZ, and DOES 1-50, Defendants.

2.      The Contents/Questions of DFEH Administrative Charges, “Intake Form” to obtain a right-to-sue letter from the DFEH, from the California Department of Fair Employment And Housing (Revised July 2021, 14 total pages) pages 4-6, as well as the contents of Plaintiff’s two (2) DFEH Charges/Complaints electronically filed/generated (Attached as Exhibit A, and B, to Plaintiff’s First Amended Complaint. filed on October 7, 2020, and August 17, 2021, respectively), Notice of Filing Discrimination Complaint, And Notice of Case Closure and Right to Sue pursuant to Gov. Code §§ 12900, et seq., 12960, 12962, 12965;

3.      Officially Approved Form by the Judicial Council of California, Form Interrogatories, Employment Law, DISC-002, Code of Civil Procedure §§ 2030.010- 2030.410, 2033.710, (8 pages, including Page 2, Section 4(f), Definitions, Adverse Employment Action), ADVERSE EMPLOYMENT ACTION means any TERMINATION, suspension, demotion, reprimand, loss of pay, failure or refusal to hire, failure or refusal to promote, or other action or failure to act that adversely affects the EMPLOYEE’S rights or interests and which is alleged in the PLEADINGS, Also, Page 3, Interrogatory No. 201.3

The Request for Judicial Notice is GRANTED.

ANALYSIS:

1.      Fifth and Sixth Causes of Action: Failure to Provide and/or Allow Inspection of a Copy of Plaintiff’s Personnel Records and Accurate Itemized Wage Statements

Defendants contend that the fifth and sixth cause of action fails because both are time barred under CCP § 340.

The fifth cause of action alleges a violation of Labor Code section 1198.5, subdivision (a), on November 12, 2019. (FAC ¶ 140.) Subdivision (k) provides for a civil penalty of $750 . Nowhere in the statute does it state that damages are available. CCP § 340 mandates a one year statute of limitations for causes of action that impose statutory penalties. As such, a one-year limitations period applies to Labor Code §1198.5 violations.

The sixth cause of action alleges a violation of Labor code section 226,subdivision (a) on November 12, 2019. (FAC ¶ 154.) Subdivision (e)(1), authorizes the greater of actual damages or a civil penalty. CCP § 338 mandates a three-year statute of limitations for statutory violations that impose non-civil penalties. In Novoa v. Charter Communications, LLC, the Court determined that “depending on the relief sought, a claim pursuant to Section 226(e)(1) could be subject to a one-year or a three-year limitations period.” (Novoa v. Charter Communications, LLC (E.D. Cal. 2015) 100 F.Supp.3d 1013, 1025.) Thus, to the extent Plaintiffs are seeking civil penalties under this Labor Code violation, the statute of limitations is one year, whereas actual damages are subject to the three-year statute of limitations.

The complaint was filed in August 18,2021. Even accounting for the six-month tolling of the statute of limitations under emergency Rule of Court 9, the Labor Code § 1198.5 allegation in the fifth cause of action, and the Labor Code § 226(a) allegation in the sixth cause of action seeking civil penalties were filed outside of the applicable one-year statute of limitations. However, to the extent that Plaintiffs are seeking actual damages under Labor Code § 226(a), these allegations were timely under the three-year statute of limitations.  

Demurrer as to the Fifth Cause of Action is SUSTAINED, without leave to amend. Demurrer as to the Sixth Cause of Action is SUSTAINED as to the civil damages and OVERRULED as to actual damages.

2.      Tenth and Fifteen Causes of Action: Age Discrimination in Violation of FEHA and Retaliation in Violation of FEHA

Defendant contends that the Plaintiff has failed to allege an adverse employment action for either cause of action.

To establish a claim for discrimination and retaliation in violation of FEHA, among other elements, the plaintiff must generally prove that that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355; Yanowitz¿v.¿L’Oreal¿USA, Inc.¿(2005) 36 Cal.4th 1028, 1042.) The FAC sufficiently pleads that Plaintiff suffered an adverse employment action,  namely that  she was transferred after complaining of discrimination. (FAC ¶ 53, 277.) As the Court in Simers stated, “a job reassignment may be an adverse employment action when it entails materially adverse consequences.” (Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1279.) Plaintiff sufficiently alleges that the new location was materially adverse.

Demurrer as to the Tenth and Fifteenth Causes of Action are OVERRULED.

3.      Twentieth and Twenty-First Causes of Action: Intentional Infliction of Emotional Distress (IIED) and Negligent Infliction of Emotional Distress (NIED)

Defendant argues that Plaintiff did not allege any facts that would demonstrate “extreme and outrageous” behavior. Also, Defendant asserts that the Plaintiff did not allege distress that would satisfy a claim for negligent infliction of emotional distress.

Intentional infliction of emotional distress requires the Plaintiff to 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.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160). The conduct alleged to be outrageous does not rise to the kind courts consider outrageous. Conduct is considered outrageous when it “is so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Id.).

A “negligent causing of emotional distress is not an independent tort but the tort of negligence....’ [Citation.] ‘The traditional elements of duty, breach of duty, causation, and damages apply.’” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729).

The FAC sufficiently pleads enough facts to constitute IIED and NIED. The FAC states that Plaintiff was subjected to unwanted sexual harassment. (FAC ¶ 41, 42, 47, 49.) Sexual harassment would be considered conduct that exceeds bounds tolerated in a civilized society.  Defendant was notified of the acts but did not stop them, and allowed them to continue. (FAC ¶ 346-351.) Plaintiff suffered and continues to suffer from severe anxiety, mental anguish, panic and Plaintiff’s distress is a result of Defendants’ actions. (FAC ¶ 350-351.) Additionally, as her employer, Defendant had a duty of care to ensure Plaintiff was not exposed to foreseeable harms. (FAC ¶ 354.) That duty was breached when Plaintiff told Defendant she was being exposed to sexual harassment, discrimination and retaliation, but failed to do anything about it and prevent future harm. (FAC ¶ 356.) As a result of this breach, Plaintiff has suffered emotional distress, such as humiliation, anxiety, and depression and has suffered damages. (FAC ¶ 357-358.)

Demurrer as to the Twentieth and Twenty-First Causes of Action are OVERRULED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

Demurrer as to the Fifth Cause of Action is SUSTAINED, without leave to amend, and partially SUSTAINED as to the Sixth Cause of Action to the extent Plaintiff seeks civil penalties.

As to the remaining causes of actions, Demurrer is  OVERRULED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: September 13, 2022                                        __________________________________                                                                                                                Upinder S. Kalra

                                                                                                Judge of the Superior Court