Judge: Walter P. Schwarm, Case: 30-2022-01249712, Date: 2022-09-20 Tentative Ruling
Defendants’ (Whole Foods Markets, Inc.; Whole Foods Markets California, Inc.; Amazon.com Services, LLC, and Mandi Anderson) Demurrer to Plaintiff’s Complaint (Demurrer), filed on 5-5-22 under ROA No. 26, is SUSTAINED. The court will refer to Whole Foods Markets, Inc., Whole Foods Markets California, Inc., and Amazon.com Services, LLC as the “Entity Defendants.”
“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.]”
Demurrer Brought By Entity Defendants:
The Entity Defendants challenge all of the causes of action contained in Plaintiff’s (Kathleen Doan) Complaint, filed on 3-14-22 under ROA No. 2, pursuant to Code of Civil Procedure section 430.10, subdivision (e). (Demurrer; 2:8-13.) The Demurrer states, “In her Complaint, Plaintiff alleges that Mrs. Gooch’s, WFM, WFMC, and Amazon jointly employed Plaintiff, alleging these entities are ‘alter egos.’ But the Complaint does not allege facts sufficient to show a joint employment relationship. It resorts instead to conclusory and boilerplate statements. WFM, WFMC, and Amazon, thus, demur to Plaintiff’s Complaint on the grounds that the Complaint fails to a plead joint employment with the requisite specificity as to each cause of action in the Complaint.” (Demurrer; 4:21-26.)
First Cause of Action (Discrimination in Violation of the FEHA):
CACI No. 2500 set forth the elements necessary to establish a cause of action for discrimination.
Jimenez v. U.S. Continental Marketing, Inc. (2019) 41 Cal.App.5th 189, 196-197 (Jimenez), states, “FEHA does not define ‘employee,’ but the administrative agency charged with interpreting FEHA—the Fair Employment and Housing Council (FEHC)—does define the term. [Citations.] We give great weight to an administrative agency's interpretation of its own regulations and the statutes under which it operates. [Citations.] The FEHC defines ‘employee’ as ‘[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.’ [Citation.] FEHA thus requires an employment relationship, but that relationship need not be direct. [Citation.] Instead, the employment relationship must show the employer's exercise of direction and control over the employee—the common-law ‘keystone of the employment relationship’—and other factors outlined in Vernon. [Citation.] Direction and control may be shown by, among other factors, whether the employee must obey instructions from the employer and whether ‘there was a right to terminate the service at any time.’ [Citations.]”
Vernon v. State of California (2004) 116 Cal.App.4th 114, 124-125 (Vernon), provides, “Appellant is an employee, but not of the State, either directly or indirectly. Although the statutes provide only a nominal definition of ‘employer,’ and the cases have defined the term with ‘magnificent circularity,’ pursuant to the allegations of appellant's first amended complaint the State does not fall within the scope of the definition under any recognized test or standards. [Citations.] The various designated tests adopted by the courts to determine the existence of an employer/employee relationship have articulated many of the same or similar governing standards, and have ‘little discernible difference’ between them. [Citations.] The common and prevailing principle espoused in all of the tests directs us to consider the ‘totality of circumstances’ that reflect upon the nature of the work relationship of the parties, with emphasis upon the extent to which the defendant controls the plaintiff's performance of employment duties. [Citations.] ‘There is no magic formula for determining whether an organization is a joint employer. Rather, the court must analyze “myriad facts surrounding the employment relationship in question.” [Citation.] No one factor is decisive. [Citation.]’ [Citations.] ‘[T]he precise contours of an employment relationship can only be established by a careful factual inquiry.’ [Citation.] [¶] “Factors to be taken into account in assessing the relationship of the parties include payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant's discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant's regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff's employment. [Citations].” (Footnotes 6 and 7 omitted.)
The Demurrer states, “While there is no dispute here that Mrs. Gooch’s employed Plaintiff, nowhere in the Complaint has Plaintiff pled facts specific to the alleged employment relationship with WFM, WFMC, and/or Amazon. Plaintiff alleges joint employment relationship between Mrs. Gooch’s and WFM, WFMC, and/or Amazon, but nowhere is the alleged joint employment relationship described except in a single paragraph of boilerplate and conclusory terms.” (Demurrer; 12:20-25.)
Plaintiff’s Opposition to Defendants’ Demurrer to Plaintiff’s Complaint (Opposition), filed on 9-7-22 under ROA No. 55, directs the court to paragraphs 4 and 5 of the Complaint as sufficiently alleging an employment relationship with the Entity Defendants. (Opposition; 4:18-5:10.) The Opposition asserts, “Given that Plaintiff alleged Whole Foods Market, Inc., Whole Foods Market California, Inc., and Amazon.com Services, Inc. were joint employers, those allegations must be accepted as true. . . . [¶] Thus, because Plaintiff has alleged Defendants . . . were Plaintiff’s joint employers, these defendants’ demurrer must be denied.” (Opposition; 5:4-10.)
Paragraph 4 of the Complaint plead aiding and abetting, agency, and alter ego theories. (See also, Complaint at ¶¶ 6 and 7.) Paragraph 5 of the Complaint alleges, “Entity Defendants, WFM, WFMC, Mrs. Gooch, and Amazon both directly and indirectly employed Plaintiff Doan, as defined in the Fair Employment and Housing Act (‘FEHA’) at Government Code section 12926(d).” Paragraph 11 of the Complaint pleads, “Plaintiff . . . was employed by Defendants for approximately three (3) years, beginning in or around March 26, 2017.)
One of the elements of CACI No. 2500 requires Plaintiff to prove that Plaintiff was an employee of one of or all of the Entity Defendants. Therefore, the Complaint must sufficiently plead an employment relationship between Plaintiff and the Entity Defendants. The Complaint does not sufficiently allege an employment relationship between Plaintiff and the Entity Defendants. The Complaint does not sufficiently pleads that Plaintiff was an employee of any of the Entity Defendants. The Complaint does not adequately plead that the Entity Defendants exercised direction and control over Plaintiff based on Jimenez and Vernon.
Therefore, the court SUSTAINS the Demurrer as brought by the Entity Defendants as to the first cause of action.
Second Cause of Action (Hostile Work Environment Harassment in Violation of FEHA):
CACI No. 2521A set forth the elements necessary to establish a cause of action for hostile work environment harassment. One of the elements of CACI No. 2521A requires Plaintiff to prove that Plaintiff was an employee of one of or all of the Entity Defendants. Therefore, the Complaint must sufficiently plead an employment relationship between Plaintiff and the Entity Defendants. The court SUSTAINS the Demurrer to the second cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Third Cause of Action (Sexual Harassment in Violation of FEHA):
CACI No. 2521A set forth the elements necessary to establish a cause of action for sexual harassment. One of the elements of CACI No. 2521A requires Plaintiff to prove that Plaintiff was an employee of one of or all of the Entity Defendants. Therefore, the Complaint must sufficiently plead an employment relationship between Plaintiff and the Entity Defendants. The court SUSTAINS the Demurrer to the third cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Fourth Cause of Action (Retaliation in Violation of the FEHA):
CACI No. 2505 set forth the elements necessary to establish a cause of action for sexual harassment. Based on Element No. 2 of CACI No. 2505, an employment relationship is necessary to establish a cause of action for retaliation. Therefore, the Complaint must sufficiently plead an employment relationship between Plaintiff and the Entity Defendants. The court SUSTAINS the Demurrer to the fourth cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Fifth Cause of Action (Failure to Provide Reasonable Accommodation in Violation of the FEHA):
CACI No. 2541 set forth the elements necessary to establish a cause of action for failure to provide reasonable accommodation. One of the elements of CACI No. 2541 requires Plaintiff to prove that Plaintiff was an employee of one of or all of the Entity Defendants. Therefore, the Complaint must sufficiently plead an employment relationship between Plaintiff and the Entity Defendants. The court SUSTAINS the Demurrer to the fifth cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Sixth Cause of Action (Failure to Engage in the Interactive Process in Violation of the FEHA):
CACI No. 2546 set forth the elements necessary to establish a cause of action for failure to engage in the interactive process. One of the elements of CACI No. 2546 requires Plaintiff to prove that Plaintiff was an employee of one of or all of the Entity Defendants. Therefore, the Complaint must sufficiently plead an employment relationship between Plaintiff and the Entity Defendants. The court SUSTAINS the Demurrer to the sixth cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Seventh Cause of Action (Failure to Prevent Discrimination, Harassment, or Retaliation in Violation of the FEHA):
CACI No. 2527 set forth the elements necessary to establish a cause of action for failure to prevent discrimination, harassment, or retaliation. One of the elements of CACI No. 2527 requires Plaintiff to prove that Plaintiff was an employee of one of or all of the Entity Defendants. Therefore, the Complaint must sufficiently plead an employment relationship between Plaintiff and the Entity Defendants. The court SUSTAINS the Demurrer to the seventh cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Eighth Cause of Action (Wrongful Termination of Employment in Violation of Public Policy):
CACI No. 2430 set forth the elements necessary to establish a cause of action for wrongful termination in violation of public policy. One of the elements of CACI No. 2430 requires Plaintiff to prove that Plaintiff was an employee of one of or all of the Entity Defendants. Therefore, the Complaint must sufficiently plead an employment relationship between Plaintiff and the Entity Defendants. The court SUSTAINS the Demurrer to the eighth cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Ninth Cause of Action (Whistleblower Retaliation in Violation of Labor Code § 1102.5):
CACI No. 2730 set forth the elements necessary to establish a cause of action for whistleblower retaliation. One of the elements of CACI No. 2730 requires Plaintiff to prove that Plaintiff was an employee of one of or all of the Entity Defendants. Therefore, the Complaint must sufficiently plead an employment relationship between Plaintiff and the Entity Defendants. The court SUSTAINS the Demurrer to the ninth cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Tenth Cause of Action (Violation of Labor Code § 232.5):
Labor Code section 232.5 states “No employer may do any of the following: [¶] (a) Require, as a condition of employment, that an employee refrain from disclosing information about the employer's working conditions. [¶] (b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose information about the employer's working conditions. [¶] (c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer's working conditions. [¶] (d) This section is not intended to permit an employee to disclose proprietary information, trade secret information, or information that is otherwise subject to a legal privilege without the consent of his or her employer.”
Labor Code section 232.5 requires Plaintiff to allege an employment relationship between Plaintiff and the Entity Defendants. The court SUSTAINS the Demurrer to the tenth cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Eleventh Cause of Action (Violation of Labor Code § 6310):
Labor Code section 6310, subdivision (a), states, “(a) No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: . . . .”
Labor Code section 6310 requires Plaintiff to allege an employment relationship between Plaintiff and the Entity Defendants. The court SUSTAINS the Demurrer to the eleventh cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Twelfth Cause of Action (Breach of Express Oral Contract Not to Terminate Employment without Good Cause):
CACI No. 2401 set forth the elements necessary to establish a cause of action for breach of express oral contract not to terminate employment without good cause. One of the elements of CACI No. 2401 requires Plaintiff to prove an employment relationship between Plaintiff and one of or all of the Entity Defendants. Therefore, the Complaint must sufficiently plead an employment relationship between Plaintiff and the Entity Defendants. The court SUSTAINS the Demurrer to the twelfth cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Thirteenth Cause of Action (Breach of Implied-In-Fact Contract not to Terminate Employment without Good Cause):
CACI No. 2401 and 2403 set forth the elements necessary to establish a cause of action for breach implied-in-fact contract not to terminate employment without good cause. One of the elements of CACI No. 2401 requires Plaintiff to prove an employment relationship between Plaintiff and one of or all of the Entity Defendants. Therefore, the Complaint must sufficiently plead an employment relationship between Plaintiff and the Entity Defendants. The court SUSTAINS the Demurrer to the thirteenth cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Fourteenth Cause of Action (Negligent Hiring):
CACI No. 426 sets forth the elements necessary to establish a cause of action for negligent hiring. CACI not 426 requires an employment relationship between an employer and the alleged tortfeasors. The Complaint pleads in part, “Defendant Leo Contreras, (‘Defendant’ or ‘Contreras’) is, and at all times mentioned in this Complaint was, a supervisor with entity Defendants . . . Defendant Juan Navarro, (‘Defendant’ or ‘Navarro’) is, and at all times mentioned in this Complaint was, an employee with entity Defendants.” (Complaint, ¶ 2.) As with the allegations of an employment relationship to Plaintiff, the Complaint does not adequately plead an employment relationship between the Entity Defendants and Defendants—Contreras and Navarro. Therefore, the court SUSTAINS the Demurrer to the fourteenth cause of action as brought by the Entity Defendants for the same reasons as stated for the first cause of action.
Fifteenth Cause of Action (Intentional Infliction of Emotional Distress):
CACI No. 1600 sets for the elements necessary to establish a cause of action for IIED. “A cause of action for intentional infliction of emotional distress exists when there is ‘ “ ‘ “(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’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ [Citations.] A defendant's conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation.] And the defendant’s conduct must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051 (Hughes).” “If properly pled, a claim of sexual harassment can establish ‘the outrageous behavior element of a cause of action for intentional infliction of emotional distress.’ [Citation.]” (Id., at p. 1051.) “ ‘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.]” (Ibid.; 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.”
The Complaint bases the cause of action for intentional infliction of emotional distress on Defendants’ alleged “. . . discriminatory, harassing, and retaliatory actions . . . .” (Complaint, ¶ 116.) The court SUSTAINS the Demurrer brought by the Entity Defendants as to the fifteenth cause of action because the court has found that the Complaint does not sufficiently allege discriminatory, harassing, or retaliatory conduct by the Entity Defendant.
Based on the above, the court SUSTAINS the Demurrer brought by the Entity Defendants in its entirety.
Demurrer Brought by Mandi Anderson:
Defendant—Anderson challenges of the second and third causes of action in Plaintiff’s Complaint pursuant to Code of Civil Procedure section 430.10, subdivision (e). (Motion; 2:17-19.) Defendant—Anderson also challenges the fifteenth cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e).
Second Cause of Action (Hostile Work Environment Harassment in Violation of FEHA) and Third Cause of Action (Sexual Harassment in Violation of FEHA):
CACI No. 2521A set forth the elements necessary to establish the second and third causes of action.
The Demurrer states “Here, the conduct that Plaintiff complains about falls squarely within the realm of commonly necessary personnel management actions such as managing and supervising employees, disciplining employees, handling questions and suggestions from employees, investigating possible policy violations by employees, and terminating employment. These routine personnel actions cannot be harassing, as a matter of law. As such, Plaintiff fails to state facts sufficient to establish her harassment claims against Anderson.” (Demurrer; 16:24-17:2.)
The Opposition responds, “The allegations Plaintiff made throughout her Complaint are more than sufficient to overcome this demurrer, as there is a plethora of offensive and harassing behavior directed at Plaintiff, that amounted to a hostile work environment and encouraging sexual harassment directed at Plaintiff. Plaintiff made complaints to Anderson, the Assistant Store Team Leader, about ongoing harassment she was subjected to that went unresolved. (Complaint, ¶ 15(dd).) Plaintiff also made health and safety complaints to Anderson that went nowhere. (Complaint, ¶ 15(ff).) During the COVID-19 pandemic, Plaintiff complained to Anderson that employees were not following health and safety protocols and ongoing safety violations. (Complaint, ¶ 15(gg).) Instead of resolving the issues, Anderson ignored Plaintiff’s concerns, and told Plaintiff, “[I]f employees wear masks, they will give the impression that they are sick.” (Complaint, ¶ 15(gg).) [¶] Plaintiff further alleged: after making these complaints, Anderson began to visit and inspect Plaintiff’s department more than before. (Complaint, ¶ 15(gg).) After Plaintiff’s complaints, Anderson terminated Plaintiff’s employment and stated Plaintiff lied about her medical disability and condition. (Complaint, ¶ 16(a).)” (Opposition; 7:3-17.)
Reno v. Baird (1998) 18 Cal.4th 640, 646-647 (Reno), explains, “ ‘We conclude, therefore, that the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.’ [Citation.]”
Here, Plaintiff has not alleged facts sufficient to support the second and third causes of action against Anderson. Plaintiff has not alleged that Anderson engaged in sexual harassment of Plaintiff. Plaintiff has not alleged conduct by Anderson that is sufficiently severe or pervasive to alter the conditions of Plaintiff’s employment. Rather, Plaintiff’s allegations against Anderson primarily involve personnel management actions which cannot form the basis for harassment liability under FEHA. (For example, see Complaint at ¶¶ 15(dd), 15(ff), and 15(gg).) Therefore, the court SUSTAINS the Demurrer as brought by Defendant—Anderson as to the second and third causes of action.
As to the fifteenth cause of action, CACI No. 1600 sets for the elements necessary to establish a cause of action for IIED. “A cause of action for intentional infliction of emotional distress exists when there is ‘ “ ‘ “(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’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ [Citations.] A defendant's conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation.] And the defendant’s conduct must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051 (Hughes).” “If properly pled, a claim of sexual harassment can establish ‘the outrageous behavior element of a cause of action for intentional infliction of emotional distress.’ [Citation.]” (Id., at p. 1051.) “ ‘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.]” (Ibid.; 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.”
The court SUSTAINS the Demurrer brought by Defendant—Anderson as to the fifteenth cause of action because the court has found that the Complaint does not sufficiently allege the second and third causes of action against Defendant—Anderson.
In summary, the court SUSTAINS Defendants’ (Whole Foods Markets, Inc.; Whole Foods Markets California, Inc.; Amazon.com Services, LLC, and Mandi Anderson) Demurrer to Plaintiff’s Complaint (Demurrer), filed on 5-5-22 under ROA No. 26, with 21 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.)
Defendants are to give notice.