Judge Walter P. Schwarm, Case 30-2021-01191770 2022-11-29 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01191770, Date: 2022-11-29 Tentative Ruling

Defendant’s (Hoag Memorial Hospital Presbyterian) Demurrer to Plaintiff Patrick McLean’s Second Amended Complaint (Demurrer), filed on 6-20-22 under ROA No. 87, is SUSTAINED as set forth below.

“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]”

The Demurrer challenges the second, third, fifth, sixth, and seventh causes of action contained in Plaintiff’s (Patrick McLean) Second Amended Complaint (SAC), filed on 4-18-22 under ROA No. 83, pursuant to Code of Civil Procedure section 430.10, subdivision (e).

Second, Third, Fifth, and Sixth Causes of Action:

Plaintiff’s Opposition to Defendant’s Demurrer to the Complaint (Opposition), filed on 11-14-22 under ROA No. 109, states, “Plaintiff concedes the second cause of action of the first amended complaint was sustained without leave to amend by this court in its prior ruling on Defendant’s demurrer to Plaintiff’s SAC and was mistakenly not removed from Plaintiff’s second amended complaint. [¶] Moreover, Plaintiff concedes the third, fifth and sixth claims in the SAC.” (Opposition; 3:26-4:1.) Based on Plaintiff’s concession, the court SUSTAINS the Demurrer as to the second, third, fifth, and sixth causes of action without leave to amend.

Seventh Cause of Action (Intentional Infliction of Emotional Distress (IIED)):

CACI No. 1600 sets for the elements necessary to establish a cause of action for IIED. (See also, Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 (Hughes).) “ ‘Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’ ” ’ [Citation.]” (Id., at p. 1051; See also, CACI No. 1604). CACI No. 1602 states in part, “ ‘Outrageous conduct’ is conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized community. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.”

Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902–903 (Miklosy) explains, “The exception for conduct that ‘contravenes fundamental public policy’ is aimed at permitting a Tameny action to proceed despite the workers' compensation exclusive remedy rule. As already discussed, however, plaintiffs’ Tameny action is barred by section 815. As to the exception for conduct that ‘exceeds the risks inherent in the employment relationship,’ it might seem at first blush to apply here—based on the argument that whistleblower retaliation is not a risk inherent in the employment relationship—but we rejected this same argument in Shoemaker v. Myers, supra, 52 Cal.3d at page 25, 276 Cal.Rptr. 303, 801 P.2d 1054. Like plaintiffs here, the plaintiff in Shoemaker alleged whistleblower retaliation and also a Tameny cause of action, and although he incorporated these allegations as part of his claim of intentional infliction of emotional distress, we held workers' compensation to be his exclusive remedy and affirmed the trial court's dismissal of that cause of action. [Citation.] The same holding applies here. [¶] Accordingly, we conclude that plaintiffs' causes of action for intentional infliction of emotional distress are barred by the workers' compensation exclusive remedy provisions.”

Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161-162 (Yau), provides, “Yau's intentional infliction of emotional distress cause of action was alleged only as to the Individual Defendants. On appeal, they and Santa Margarita Ford argue the cause of action is barred by the exclusivity provisions of the Workers' Compensation Act (Lab. Code, § 3600 et seq.). They are correct. [¶] Physical and emotional injuries sustained in the course of employment are preempted by the workers' compensation scheme and generally will not support an independent cause of action. [Citation.] Emotional injuries caused by workplace discipline, including termination, fall within this rule. [Citation.] As noted in Cole, supra, 43 Cal.3d at page 160, 233 Cal.Rptr. 308, 729 P.2d 743, ‘when the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer's decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability.’ [¶] Yau relies on a series of cases that have found exceptions to this general rule of preemption when the intentional infliction of emotional distress claim is based on conduct that violates a fundamental public policy. [Citations.] Those cases were decided before our Supreme Court's decision in Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 80 Cal.Rptr.3d 690, 188 P.3d 629 (Miklosy ), which held the exception to workers' compensation preemption for employer ‘conduct that “contravenes fundamental public policy” is aimed at permitting a Tameny action [for wrongful discharge in violation of public policy] to proceed despite the workers' compensation exclusive remedy rule.’ [Citation.] This exception does not, however, allow a ‘distinct cause of action, not dependent upon the violation of an express statute or violation of fundamental public policy.’ [Citation.] Miklosy held that even ‘ “severe emotional distress” ’ arising from ‘ “outrageous conduct” ’ that occurred ‘at the worksite, in the normal course of the employer-employee relationship’ is the type of injury that falls within the exclusive province of workers' compensation. [Citation.] ‘ “An employer's intentional misconduct in connection with actions that are a normal part of the employment relationship . . . resulting in emotional injury is considered to be encompassed within the compensation bargain, even if the misconduct could be characterized as ‘manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance.’ ” [Citations.]’ [Citation.]

Based on Miklosy and Yau, the court SUSTAINS the Demurrer to the seventh cause of action. Plaintiff has conceded the that the Fair Employment and Housing Act (FEHA) causes of action do not survive the Demurrer. The seventh cause of action appears to allege emotional distress injuries resulting from the activities of co-employees that are not subject to a FEHA cause of action. (For example, see SAC at ¶¶ 15-25.) Further, as recognized in Yau, emotional distress injuries resulting from termination fall within the workers compensation exclusivity rule. (For example, see SAC at ¶¶ 73-86.) Since the FEHA causes of action are no longer in dispute, the SAC’s allegations against Defendant involve wrongful conduct within the normal course of the employer-employee relationship. Therefore, the court finds that the workers compensation exclusivity rule bars the seventh cause of action.

Based on the above, the court SUSTAINS Defendant’s (Hoag Memorial Hospital Presbyterian) Demurrer to Plaintiff Patrick McLean’s Second Amended Complaint, filed on 6-20-22 under ROA No. 87, as to the second, third, fifth, and sixth causes of action without leave to amend. The court SUSTAINS the Demurrer to the seventh cause of action with 14-days leave to amend from the date of service of the notice of the court’s decision. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)

Defendant is to give notice.