Judge Upinder S. Kalra, Case Number: 24STCV08350, Date: 2024-11-26 Tentative Ruling

MOVING PARTY: Defendants International Famous Players Radio Picture Corporation and John Ridley IV

1. Demurrer to the entire Complaint for failing to state sufficient facts to constitute a cause of action.

2. Demurrer by Defendant IFPRPC is SUSTAINED as to the First, Second, Third, Eighth, and Ninth Causes of Action and OVERRULED as to the Fourth, Fifth, Sixth, and Seventh Causes of Action;

On April 3, 2024, Plaintiff Asta Jonasson (Plaintiff) filed a Complaint against Defendants The Walt Disney Company, ABC Signature, LLC dba ABC Studios, International Famous Players Radio Picture Corporation, and John Ridley IV (Defendants) with nine causes of action for: (1) Discrimination in Violation of the FEHA, (2) Retaliation in Violation of the FEHA, (3) Failure to Prevent Discrimination and Retaliation in Violation of the FEHA, (4) Violation of Equal Pay Act, (5) Retaliation in Violation of Labor Code § 1102.5, (6) Retaliation in Violation of Labor Code § 98.6, (7) Wrongful Termination in Violation of Public Policy, (8) Negligent Supervision and Retention, and (9) Intentional Infliction of Emotional Distress.

According to the Complaint, Plaintiff worked for Defendants. Plaintiff further alleges that Defendants failed to pay her commensurate with her skill, effort, and responsibility. Additionally, Defendants hired a white woman to perform tasks Plaintiff was already performed, paid that person substantially more money, and terminated Plaintiff for complaining about it.

On May 6, 2024, The Walt Disney Company (Disney) and ABC Signature, LLC (ABC) filed an Answer.

On June 18, 2024, International Famous Players Radio Picture Corporation (IFP) and John Ridley IV (Ridley) filed a Demurrer to the Complaint. On August 8, 2024, Plaintiff filed an opposition. On August 14, 2024, IFP and Ridley filed a reply.

On October 18, 2024, the court held a Case Management Conference and reset the hearing on IFP and Ridley’s Demurrer to November 27, 2024.

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.)¿¿

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3).¿The meet and confer requirement also applies to motions to strike. (CCP § 435.5.)¿Here, the parties spoke via telephone on June 7, 2024 but were unable to resolve the dispute necessitating the demurrer. (Hughes Decl. ¶¶ 6-7.) Therefore, this requirement is met.

Moving Parties contend that Plaintiff’s Complaint insufficiently alleges they are her employers, that her specific claims contradict her general allegations, and that her conclusory alter ego allegations support no claims. Plaintiff argues she sufficiently alleged facts supporting her claims.

Moving Parties contend that Plaintiff’s FEHA claims fail because they cannot be held liable as supervisors, not employers. Alternatively, Moving Parties contend that Plaintiff insufficiently alleged they are employers under FEHA. Plaintiff argues she sufficiently alleged Moving Parties are employers.

To bring a cause of action under the FEHA, a plaintiff must establish an employer-employee relationship between herself and the defendant. (See Gov. Code, § 12940 (a); Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 499 (Patterson) (“Essential to plaintiff’s statutory [FEHA] claims is the existence of ‘an employment relationship’”).

Plaintiff insufficiently alleged liability for Ridley in his individual capacity. First, it is undisputed that individuals are not liable for FEHA violations. (Reno v. Baird (1998) 18 Cal.4th 640, 643.) Here, Plaintiff alleges that Ridley “is an individual” and “was a supervisor with and/or officer or director of IFPRPC.” (Complaint, ¶ 7(a).) Moreover, Plaintiff alleges that ABC employed Ridley. (Complaint ¶ 17.) Plaintiff then alleges, in a conclusory fashion, that the Defendants (including Ridley) are alter egos of each other and/or aided and abetted the various misconduct. (Complaint, ¶¶ 9, 11.) This is insufficient to show Ridley was anything but Plaintiff’s supervisor.

Plaintiff’s claims against IFPRPC are also problematic. First, Plaintiff unequivocally alleges that IFPRPC is employed by ABC. (Complaint, ¶ 17.) As with Ridley, if IFPRPC is merely a supervisor, then it cannot be liable under FEHA. (Reno, supra, 18 Cal.4th at p. 643.)

However, liability may attach if IFPRPC is a business-entity agent of Defendant ABC. According to the California Supreme Court, FEHA’s definition of employer “permits a business entity acting as an agent of an employer to be held directly liable as an employer for employment discrimination in violation of FEHA in appropriate circumstances when the business-entity agent has at least five employees and carries out FEHA-regulated activities on behalf of an employer.” (Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, 291.) Here, Plaintiff failed to allege that IFPRPC has at least five employees or that it carries out FEHA-regulated activities on behalf of an employer. (Complaint, ¶6(c).) As with the Raines Court, this court declines to decide whether a business-entity agent with less than five employees is similarly bound. (Raines, supra, 15 Cal.5th at p. 291.)

Finally, Plaintiff’s argument that Moving Parties are dual employers with Defendant ABC is not well taken. An employee may have two employers “when an employer lends [that] employee to another employer and relinquishes to the borrowing employer all right of control over the employee’s activities.” (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1183 [citing Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242, 1247-1248.]) The first employer is called the “general employer” and the second is called the “special employer.” (Id. at p. 1184.) Here, as in Mathieu and Riley, Plaintiff alleges that Defendant ABC was her general employer because they “assigned” her to work for Moving Parties and she “continued to receive her earned wages directly from ABC.” (Complaint, ¶ 17.) It follows that Defendant IFPRPC is the alleged special employer because Plaintiff “was performing tasks that befit her title at IFPRPC.” (Complaint, ¶ 20.) Even so, Plaintiff did not satisfy the Raines test to hold Defendant IFPRPC liable as an employer under FEHA.

Accordingly, the court SUSTAINS the demurrer to the First, Second, and Third Causes of Action.

Causes of Action Nos. 4, 5, & 6: Labor Code Violations (Labor Code §§ 1197.5, 1102, 98.6)

In order to allege a cause of action under the Equal Pay Act, a plaintiff must plead the following factual elements: (1) plaintiff was paid less than the rate paid to a person of the opposite sex, (2) plaintiff was performing substantially similar work as the other person, considering the overall combination of skill, effort, and responsibility required, and (3) plaintiff was working under similar working conditions as the other person of the opposite sex. (Lab. Code, § 1197.5, subd. (a) [“An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions”].)

A “prerequisite to asserting a Labor Code section 1102.5 violation is the existence of an employer-employee relationship at the time the allegedly retaliatory action occurred.” (Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1546 (Hansen) (emphasis added).) Plaintiff must similarly assert a violation of Labor Code § 98.6 claim against an employer. (See Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, 330.)

The court is unaware of authority imposing the same employee number requirements as in the FEHA.[1]

As with the FEHA claims, Plaintiff insufficiently alleged liability against Defendant Ridley. However, unlike the FEHA claims, Plaintiff has sufficiently alleged that Defendant IFPRPC was her employer for purposes of the Labor Code claims. (Complaint, ¶ 17.) Notably, Plaintiff’s allegations support her argument for dual employers.

Accordingly, the court SUSTAINS the Demurrer to the Fourth, Fifth, and Sixth Causes of Action as to Defendant Ridley and OVERRULES the Demurrer as to Defendant IFPRPC.

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) A four-part test is utilized to determine whether a particular policy can support a common law wrongful termination claim. The “policy” in question must meet the following requirements: (1) the policy is supported by either constitutional or statutory provisions; (2) the policy is “public” in that it “inures to the benefit of the public” and not merely the interests of the individual; (3) the policy was articulated at the time of the discharge; and (4) the policy is “fundamental” and “substantial.” (Franklin v. Monadnock Co. (2007) 151 Cal.App.4th 252, 258.)

Accordingly, the court SUSTAINS the Demurrer to the Seventh Cause of Action as to Defendant Ridley and OVERRULES the Demurrer as to Defendant IFPRPC.

Accordingly, the court SUSTAINS the demurrer to the Seventh Cause of Action.

The elements of a claim for negligent supervision and retention are: (1) an employer’s supervising an employee, (2) who is incompetent or unfit, (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.)

Here, Moving Parties’ argument is well taken. First, Plaintiff alleges that Defendant Ridley is the bad actor who discriminated against her. (Complaint, ¶¶ 23, 24, 25, 29, 30.) However, Plaintiff also argues that Ridley is the alter ego of IFPRPC. (Opp. 12:17-18.) The court is unaware of authority supporting Plaintiff’s position that Ridley can negligently hire and supervise himself. Additionally, Plaintiff alleges that IFPRPC wrongfully terminated her employment “in retaliation for her complaints and in discrimination on the bases of her gender, race, color, and national origin.” (Complaint, ¶ 31.) This is the same harm purportedly supporting Plaintiff’s claim against IFPRPC for negligently supervising Ridley. (Complaint, ¶¶ 98, 100.)

Cause of Action No. 9: Intentional Infliction of Emotional Distress (IIED)

In order to properly allege a cause of action for intentional infliction of emotional distress, a plaintiff must allege the following elements: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) “Conduct, to be ‘ “outrageous,” ’ must be so extreme as to exceed all bounds of that usually tolerated in civilized society.” (Trerice v. Blue Cross California (1989) 209 Cal.App.3d 878, 883.) “Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” ’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) “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.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

Upon reviewing the Complaint, Plaintiff has insufficiently alleged facts supporting a claim for IIED. Notably, terminating Plaintiff’s employment by itself is not outrageous conduct. (Trerice supra, 209 Cal.App.3d at p. 883.) Plaintiff has no factual allegations supporting this claim.

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 burden is on Plaintiff to establish that the defect is reasonably capable of cure with leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Here, Plaintiff can reasonably amend the Complaint to address the deficiencies.[2]

2. Demurrer by Defendant IFPRPC is SUSTAINED as to the First, Second, Third, Eighth, and Ninth Causes of Action and OVERRULED as to the Fourth, Fifth, Sixth, and Seventh Causes of Action;

[1] Indeed, another chapter of the Labor Code defines employer as: “a person, partnership, firm, corporation, association, or other entity, which employs any person or persons to perform services for a wage or salary, and includes any person, partnership, firm, corporation, limited liability company, association or other entity acting as an agent of an employer, directly or indirectly.” (Lab. Code § 1132.2.)

[2] Moving Parties’ concern with the sham pleading doctrine is noted.