Judge: William A. Crowfoot, Case: 22AHCV00957, Date: 2023-05-09 Tentative Ruling

Case Number: 22AHCV00957    Hearing Date: May 9, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.            INTRODUCTION

On October 31, 2022, plaintiff Herbert Schwarz filed this action against defendants HumanGood and Steven Gowan (“Gowan”).  Plaintiff alleges he was employed by HumanGood as an IT Help Desk Analyst from October 2017 to November 2, 2020, and that Gowan was his direct supervisor.  (Compl., ¶ 13.)   Plaintiff alleges he was forced to resign from his position at HumanGood because of discrimination and harassment by Gowan.  (Compl., ¶ 13.)  Plaintiff asserts causes of action for: (1) age discrimination, (2) harassment based on age, (3) retaliation, (4) failure to prevent discrimination, harassment, and retaliation, (5) wrongful termination in violation of public policy, and (6) unfair competition. 

On February 10, 2023, Gowan filed this demurrer to each cause of action in the Complaint.  Gowan argues that Plaintiff’s First, Third, and Fourth Causes of Action for age discrimination, retaliation, and failure to prevent discrimination, harassment, and retaliation fail because Gowan cannot be held individually liable for discrimination or retaliation.  Gowan also argues that Plaintiff fails to allege any actionable harassment to support his Second and Fourth Causes of Action, and that Plaintiff’s Fifth Cause of Action for wrongful termination fails against Gowan because Gowan is not alleged to be Plaintiff’s employer. Last, Gowan argues that Plaintiff’s Sixth Cause of Action fails because his predicate claims fail and because Plaintiff seeks unrecoverable damages from Gowan. 

On April 25, 2023, Plaintiff filed an opposition brief in which he concedes that his First, Third, and Fifth Causes of action only apply to his employer, HumanGood.  Plaintiff also agreed to amend his Complaint to “reflect the limited application of the Fourth (Failure to Prevent) and Sixth (Unfair Competition) Causes of Action to Gowan, based on the Second Cause of Action for Harassment.”  (Opp., 8:1-7.)  Based on this concession, the Court SUSTAINS Gowan’s demurrer to the First, Third, and Fifth Causes of Action without leave to amend.  The Court proceeds to analyze Gowan’s demurrer to the Second, Fourth, and Sixth Causes of Action.

II.          LEGAL STANDARD

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.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ 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.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “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, supra, 147 Cal.App.4th at p. 747.)

III.        DISCUSSION

a.    Second Cause of Action (Harassment)

To establish a claim for harassment, a plaintiff must demonstrate that: (1) he is a member of a protected group; (2) he was subjected to harassment because he belonged to this group; and (3) the alleged harassment was so severe that it created a hostile work environment.  (See Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121.)  Whether harassment exists based upon a hostile work environment is determined by considering all of the circumstances, which may include frequency, severity, and job interference.  (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.)  Harassment consists of “conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.”  (Reno v. Baird (1998) 18 Cal.4th 640, 646.)  Harassment does not include commonly necessary personnel management actions, such as hiring, firing, job assignments, promotion, demotion, performance evaluations, excluding from meetings, and laying off.  (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879.)  To establish a hostile work environment, “‘[a] plaintiff 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 and that [she] was actually offended.’”  (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.)

Plaintiff alleges Gowan harassed him by “assigning significantly more work to Plaintiff than his colleagues, refusing to give Plaintiff any assistance in performing that work, writing up Plaintiff expressly for the purpose of causing him distress, and keeping a ‘personal’ personnel file on Plaintiff, all in an effort to force him out of his job.”  (Compl., ¶ 43.)  These allegations do not constitute actionable harassment because they are “commonly necessary personnel management actions.”  Even if Gowan kept a “private, non-official personnel file” with write-ups about Plaintiff, keeping track of Plaintiff’s performance is necessarily within the scope of Gowan’s job as a supervisor.  (Compl., ¶ 20; Reno v. Baird (1998) 18 Cal.4th 640, 646 [“Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.”])  Gowan is alleged to have kept a personal file on Plaintiff.  Accordingly, the Court SUSTAINS Gowan’s demurrer to the Second Cause of Action with leave to amend. 

b.   Fourth Cause of Action (Failure to Prevent Harassment)

Gowan argues that if Plaintiff’s Second Cause of Action for harassment fails, Plaintiff’s Fourth Cause of Action for failure to prevent harassment also fails.  As stated above, the Court sustains Gowan’s demurrer to the Second Cause of Action.  Accordingly, Gowan’s demurrer to the Fourth Cause of Action is also SUSTAINED with leave to amend.  

c.    Unfair Competition

Plaintiff cannot allege that Gowan violated the Unfair Competition Law (“UCL”) without any underlying legal claim.  Therefore, Gowan’s demurrer to the Sixth Cause of Action is SUSTAINED with leave to amend. 

IV.         CONCLUSION

Gowan’s demurrer is SUSTAINED with leave to amend as to Plaintiff’s Second, Fourth, and Sixth Causes of Action.  Gowan’s demurrer is SUSTAINED without leave to amend as to Plaintiff’s First, Third, and Fifth Causes of Action. 

Moving party to give notice.

Dated this 8th day of May, 2023

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.