Judge: Upinder S. Kalra, Case: 22STCV29558, Date: 2023-02-06 Tentative Ruling

Case Number: 22STCV29558    Hearing Date: February 6, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   February 6, 2023                                            

CASE NAME:           Bianca Swan v. Jason Seward, et al.

CASE NO.:                22STCV29558

DEMURRER WITHOUT MOTION TO STRIKE

MOVING PARTY: Defendant City of Los Angeles

RESPONDING PARTY(S): None as of February 1, 2023

REQUESTED RELIEF:

1.      An order sustaining the sixth cause of action of the complaint

TENTATIVE RULING:

1.      Demurrer as to the sixth cause of action is SUSTAINED, without leave to amend

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On September 12, 2022, Plaintiff Bianca Swan (“Plaintiff”) filed a complaint against Defendants City of Los Angeles and Jason Seward (“Defendants.”) The complaint alleged six causes of action: (1) FEHA Discrimination, (2) FEHA Harassment, (3) FEHA Retaliation, (4) FEHA Failure to Take Corrective Action, (5) Whistleblower Protection, and (6) Intentional Infliction of Emotional Distress. The complaint alleges that Plaintiff worked for Defendant City, providing support for the Innovation and Performance Commission. Defendant Seward was appointed to that Commission. During Plaintiff’s time working for the Commission, Defendant Seward placed unreasonable demands upon Plaintiff, discriminated and harassed Plaintiff, and berated Plaintiff in front of colleagues. Plaintiff was forced to stop working due to City’s failure to correct Seward’s conduct.

Defendant City of Los Angeles filed the current Demurrer on November 28, 2022. On January 30, 2023, Defendant filed a Notice of Non-Opposition. As of February 1, 2023, no Opposition has been filed.

LEGAL STANDARD

Demurrer

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.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. 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.)

Meet and Confer:

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). The Declaration of Ha Nguyen indicates that the parties exchanged various emails, that included a stipulation to remove punitive damages. Regarding the IIED claim, Counsel Nguyen indicates that after Plaintiff’s counsel requested authority, which was provided, Plaintiff’s counsel did not return Counsel Nguyen’s calls.

ANALYSIS:

Defendant City of Los Angeles demurs on the grounds that the sixth cause of action for Intentional Infliction of Emotional Distress fails. First, Government code § 815 prevents this claim from being brought against the city. Second, the complaint does not have sufficient facts to support a claim for IIED.

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. Conduct, to be ‘ “outrageous” ’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” ’ [Citation.] In order to avoid a demurrer, the plaintiff must allege with ‘great[ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160).

Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 130.)

Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry [citation], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.” (Wong v. Tai Jing (2010) 189 Cal. App. 4th 1354, 1376.)  Such distress must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.”  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1004.)

First, as Defendant argues, Government Code § 815(a) states “(a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” The Court in Wright stated that “sovereign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute…Consequently, the general rule is that a public entity is not liable unless a statute imposes liability.” (Wright v. State of California (2004) 122 Cal.App.4th 659, 672.)

Even assuming, arguendo, that Government Code § 815 did not apply, the Court finds that the complaint does not contain sufficient facts or allegations of outrageous conduct. The allegations stated in the Complaint that were considered outrageous involved receiving emails from interns of Defendant Seward, working unreasonable hours, and being berated in front of other colleagues by Defendant Seward. These allegations are insufficient to support a claim for IIED. The conduct is not pervasive enough or severe enough to “exceed all bounds” that is tolerated in society.

      Demurrer as to the Sixth Cause of Action is SUSTAINED, without leave to amend.

Leave to amend:

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect.  (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.) The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Due to Government Code § 815, Plaintiff will be unable to amend the complaint to allege an IIED against Defendant, a public entity.

CONCLUSION:

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

            Demurrer as to the Sixth Cause of Action is SUSTAINED, without leave to amend.

Pursuant to CCP § 581d, this written order of dismissal constitutes a judgment and shall be effective for all purposes. The Clerk shall note this judgment in the register of actions in this case.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             February 6, 2023                     __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court