Judge: Walter P. Schwarm, Case: 30-2022-01295922, Date: 2023-08-01 Tentative Ruling

Motion No. 1:

Defendant’s (Hoag Memorial Hospital Presbyterian) Demurrer to Complaint (Demurrer), filed on 3-13-23 under ROA No. 13, is OVERRULED in part and SUSTAINED in part.

“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 first, second, third, fourth, fifth, and sixth causes of action contained in Plaintiff’s (Nada Hardan) Complaint, filed on 12-7-22 under ROA No. 2, pursuant to Code of Civil Procedure section 430.10, subdivision (e).

First Cause of Action (Race/National Origin Discrimination):

Ortiz v. Dameron Hospital Association (2019) 37 Cal.App.5th 568, 577 (Ortiz), states, “To state a prima facie case for discrimination in violation of the FEHA, a plaintiff must establish that (1) she was a member of a protected class, (2) she was performing competently in the position she held, (3) she suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive. [Citation.]” (See also, CACI No.2500.)  DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 550 (DeJung), states, “Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption. Comments demonstrating discriminatory animus may be found to be direct evidence if there is evidence of a causal relationship between the comments and the adverse job action at issue. [Citation.]” “Thus, showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.” (Id., at p. 551.)

The FAC sufficiently pleads the first cause of action at this stage of the proceedings.  Paragraph 2 of the Complaint alleges that Plaintiff is a member of a protected class.  Paragraphs 2 and 5 of the Complaint pleads that Plaintiff was performing competently in Plaintiff’s position.  Paragraph 6 alleges an adverse employment action based on Plaintiff’s termination.  Under DeJung, paragraphs 2, 3, and 6 sufficiently plead a discriminatory motive by Ellen Liaw based on the comments attributed to Ms. Liaw in paragraphs 2 and 3.  The Complaint alleges a sufficient causal connection because Ms. Liaw participated in the decision to terminate Plaintiff. (Complaint, ¶ 6.)  Therefore, the court OVERRULES the Demurrer as to the first cause of action.

Second Cause of Action (Harassment Based on Race/National Origin):

Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876 (Thompson), states, “To establish a prima facie case of a racially hostile work environment, Thompson was required to show that (1) he was a member of a protected class; (2) he was subjected to unwelcome racial harassment; (3) the harassment was based on race; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the Department is liable for the harassment. [Citations.]” “To establish the fourth element—that the harassment created a hostile work environment—Thompson ‘ “must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee. . . .” ’ [Citation.] Harassment, which may be verbal, physical, or visual and ‘communicates an offensive message to the harassed employee’ [citation], ‘ “cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” ’ [Citation.]  Whether the harassment is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive environment ‘must be assessed from the “perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.” ’ [Citation.]” (Id., at p. 877;  See also, CACI No. 2521A.)

Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 951-952 (Rehmani), states, “Whether the conduct of the alleged harassers was sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances. ‘ “These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” ’ [Citations.] ‘ “Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . .  . and conduct [that] a reasonable person in the plaintiff's position would find severely hostile or abusive.” ’ [Citations.] As in sex-based harassment claims, ‘[t]he plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's [fn. omitted] work performance and would have seriously affected the psychological well-being of a reasonable employee and that [he or she] was actually offended.’ [Citations.]” (See also, CACI No. 2524.)

The FAC sufficiently pleads the second cause of action at this stage of the proceedings.  Paragraph 2 of the Complaint alleges that Plaintiff is a member of a protected class.  Paragraphs 2 and 3 of the Complaint plead that Plaintiff was subject to unwelcome harassment.  Paragraphs 2 and 3 of the Compliant sufficiently plead that the harassment was based on race. Paragraphs 2, 3, and 5 adequately allege that the harassment unreasonably interfered with Plaintiff’s work.  Paragraphs 2 and 3 sufficiently plead that that the alleged conduct was severe or pervasive.   Therefore, the court OVERRULES the Demurrer as to the second cause of action.

Third Cause of Action (Retaliation):

Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz), states, “Past California cases hold that in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.]”

Dinslage v. City of San Francisco (2016) 5 Cal.App.5th 368, 381 (Dinslage), states, “ ‘For protection under the ‘opposition clause,’ an employee must have opposed an employment practice made unlawful by the statute.’ [Citation.] The question, therefore, is whether the Department took adverse action against Dinslage ‘because [he] . . . opposed practices prohibited by the Act. . . .’ [Citation.] Of course, ‘an employee's conduct may constitute protected activity . . . not only when the employee opposes conduct that ultimately is determined to be unlawfully discriminatory under the FEHA, but also when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA.’ [Citation.] As we have held, ‘a mistake of either fact or law may establish an employee's good faith but mistaken belief that he or she is opposing conduct prohibited by FEHA.’ [Citation.] In such cases, the question is the reasonableness of the employee's belief that he was opposing a practice prohibited by the FEHA. [Citation.]” (Italics in Dinslage.)

The Complaint does not sufficiently plead that Plaintiff engaged in protected activity. Although paragraph 5 of the Complaint alleges “Plaintiff complained to Ms. Liaw . . . about being yelled at, being excluded from at least one key meeting, and being subjected to disrespectful treatment . . .,”  this allegation does not sufficiently connect the complaint to a practice forbidden by the Fair Employment and Housing Act.  Therefore, the court SUSTAINS the Demurer to the third cause of action.

Fourth Cause of Action (Failure to Prevent Discrimination, Harassment, and Retaliation):

Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 43-44 (Caldera), provides, “An employer is obligated ‘to take all reasonable steps necessary to prevent . . . harassment from occurring.’ (Gov. Code, § 12940, subd. (k).) ‘When a plaintiff seeks to recover damages based on a claim of failure to prevent . . .  harassment . . . she must show three essential elements: 1) plaintiff was subjected to . . . harassment  . . .; 2) defendant failed to take all reasonable steps to prevent . . . harassment . . .; and 3) this failure caused plaintiff to suffer injury, damage, loss or harm.’ [Citation.]” (Italics in Caldera; See also, CACI No. 2527.) 

As discussed above, the Complaint adequately pleads that Plaintiff was subjected to harassment.  Paragraph 5 of the Complaint pleads in part, “Plaintiff complained to Ms. Liaw . . . about being yelled at, being excluded from at least one key meeting, and being subjected to disrespectful treatment . . . .”

The Demurrer states, “. . . because Plaintiff failed to plead facts sufficient to state a cause of action for discrimination, harassment, or retaliation . . . Plaintiff’s fourth cause of action necessarily fails.  As discussed above, the Complaint adequately pleads the first and second causes of action.  Therefore, the court OVERRULES the Demurrer as to the fourth cause of action.

Fifth Cause of Action (Wrongful Termination in Violation of Public Policy):

Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641 (Haney), states, “The claim for wrongful discharge in violation of public policy requires Haney to prove (1) he was employed by Aramark, (2) Aramark discharged him, (3) the alleged violation of public policy was a motivating reason for the discharge, and (4) the discharge caused him harm. [Citations.]”  (See also, CACI No. 2430.)

Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1338 (Mendoza), states, “ ‘[W]hen an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.’ [Citation.] ‘To support a common law wrongful discharge claim, the public policy “must be: (1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.” ’ [Citation.]”

Since the Complaint adequately pleads the first and second causes of action, the court sufficiently alleges the fifth cause of action. Therefore, the court OVERRULES the Demurrer to the fifth cause of action.

Sixth 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.)   “ ‘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.”

Fisher v. Sen Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618, states, “FEHC infers a large measure of emotional injury from sexual harassment since sexual harassment is often inherently oppressive and malicious. [Citation.] Given an employee's fundamental, civil right to a discrimination free work environment (§§ 12920, 12921), by its very nature, sexual harassment in the work place is outrageous conduct as it exceeds all bounds of decency usually tolerated by a decent society. [¶] Accordingly, if properly pled, sexual harassment will constitute the outrageous behavior element of a cause of action for intentional infliction of emotional distress against Dr. Tischler. [Citation.]”

Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 101 (Light), states, “In sum, absent further guidance from our Supreme Court, we are unwilling to abandon the long-standing view that unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain and therefore claims of intentional infliction of emotional distress based on such discrimination and retaliation are not subject to workers' compensation exclusivity. While the Supreme Court in Miklosy held that allegations of whistleblower retaliation were insufficient to state an exception to workers' compensation exclusivity, it did not remove the jurisprudential basis on which numerous authorities have held that allegations of FEHA discrimination and retaliation did state such an exception. We therefore adhere to those authorities here.” (Footnote 10 omitted; Italics in Light.)

The Demurrer states, “This cause of action is also preempted by the exclusive remedy of the workers’ compensation.” (Demurrer; 11:17.)  Under Light, the workers’ compensation exclusive remedy rule does not apply because the first and second causes of action plead causes of action pursuant to the Fair Employment and Housing Act. 

Under Hughes, the Complaint adequately pleads the sixth cause of action because the Complaint sufficiently alleges the first and second cause of action under FEHA. Therefore, the court OVERRULES the Demurrer to the sixth cause of action.

Based on the above, the court OVERRULES Defendant’s (Hoag Memorial Hospital Presbyterian) Demurrer to Complaint, filed on 3-13-23 under ROA No. 13, as to the first, second, fourth, fifth, and sixth causes of action.  Th court SUSTAINS the Demurrer as to the third cause of action with 14 days leave to amend from the date of service of the notice of the court’s ruling.  (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)

Defendant is to give notice.

Motion No. 2:

Defendant’s (Hoag Memorial Hospital Presbyterian) Motion to Strike Portions of Plaintiff’s Complaint (Motion), filed on 3-13-23 under ROA No. 14, is GRANTED.

Defendant’s (Harbor View Hills Community Association) Motion to Strike Plaintiff’s First Amended Complaint (Motion), filed on 11-22-22 under ROA No. 33, is GRANTED.

Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”  Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).”  Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [Citation.]”  Code of Civil Procedure section 437, subdivision (a), “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”

The Motion seeks to Paragraph Nos. 20, 32, 38, 43, and 49 of Plaintiff’s (Nada Hardan) Complaint filed on 12-7-22 under ROA No. 2. (Motion; 1:23-2:6.)  The Motion also seeks to strike the reference to punitive damages in the Complaint’s Prayer for Relief at paragraph 4. (Motion; 1:23-2:11.)

The Motion seeks to strike the references to punitive damages and mediation in Plaintiff’s (Lloyd M. Rucker) First Amended Complaint (FAC) filed on 9-19-22 under ROA No. 10. (Motion; 3:10-4:5.)

The Motion states, “The only individuals who engaged in any of the alleged wrongful conduct referenced at all by the Complaint are Ellen Liaw (Plaintiff’s alleged supervisor) and a Victor Monroy (whose position and title is not provided at all). (Complaint, ¶ 2.) These individuals are not managing agents and are not alleged to be managing agents in the Complaint. Plaintiff cannot truthfully plead specific facts describing the involvement of a sufficiently senior person. Her conclusory statements fall well short of the pleading requirement. Hoag cannot be liable for punitive damages under the allegations of Plaintiff’s Complaint, and the Motion should be granted as a result.” (Motion; 5:15-22.)

Code of Civil Procedure section 3294, subdivision (b), states, “(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, states, “ ‘In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.’ [Citation.] [¶] In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.] These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).)  ‘ “Malice” ’ is defined in the statute as conduct ‘intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.’ [Citations.] ‘ “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.’ [Citation.]  ‘ “Fraud” ’  is ‘an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.’ [Citation.]”

In order to plead punitive damages, a plaintiff must plead allegations of fraud, malice, or oppression with sufficient particularity. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Davis v. Kiewit Pacific Company (2013) 220 Cal.App.4th 358, 366 (Davis), provides, “ ‘Managing agents’ are employees who ‘exercise[] substantial discretionary authority over decisions that ultimately determine corporate policy.’ [Citation.]  White concluded: ‘[T]he Legislature intended the term ‘managing agent’ to include only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.’ [Citation.] ‘[T]o demonstrate that an employee is a true managing agent under [Civil Code] section 3294, subdivision (b), a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation's business.’ [Citation.] ‘The scope of a corporate employee's discretion and authority under our [managing agent] test is therefore a question of fact for decision on a case-by-case basis.’ [Citation.] If there exists a triable issue of fact regarding whether a corporate employee is a managing agent under the White test, that factual question must be determined by the trier of fact and not the court on a motion for summary adjudication. [Citations.]” (Italics in Davis.)

The Complaint does not sufficiently plead that Victor Monroy and Ellen Liaw are officers, directors, or managing agents of Defendant.  The Complaint does not plead that Mr. Monroy or Ms. Liaw have substantial discretionary authority that determines Defendant’s corporate policy.  Thus, the Complaint does not sufficiently pleads a basis to allege punitive damages against Defendant under Civil Code section 3294, subdivision (b).  Thus, the court GRANTS the Motion as to all of the items the Motion seeks to strike.

The court DENIES Plaintiff’s (Nada Hardan) Request for Judicial Notice, filed on 7-18-23 under ROA No. 35, because it is subject to dispute as to whether the description of job responsibilities qualifies Ms. Liaw as a managing agent. (Evid. Code, § 452, subd. (h).)  Further, Code of Civil Procedure section 430.70 does not authorize the judicial notice of matters in in support of an opposition to a demurrer.

Based on the above, the court GRANTS Defendant’s (Hoag Memorial Hospital Presbyterian) Motion to Strike Portions of Plaintiff’s Complaint, filed on 3-13-23 under ROA No. 14, with 14 days leave to amend from the date of service of the notice of the court’s ruling.

Defendant is to give notice.