Judge William A. Crowfoot, Case Number: 23AHCV01025, Date: 2023-10-13 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV01025, Date: 2023-10-13 Tentative Ruling

On May 8, 2023, Plaintiff Odette Vivanco (“Plaintiff”) filed a complaint against Defendants Ottimo Resources Inc., Pacific Clinics (“Defendant”), and Does 1 to 10 alleging causes of action for: (1) retaliation in violation of California Labor Code, Section 1102.5; (2) retaliation in violation of California Labor Code, Section 6310; (3) wrongful termination in violation of public policy; and (4) breach of implied covenant of good faith and fair dealing.

On October 13, 2023, the Court sustained Defendant’s demurrer to the Complaint in its entirety with leave to amend.

On October 19, 2023, Plaintiff filed a First Amended Complaint (“FAC”) asserting claims for retaliation in violation of Labor Code section 1102.5, retaliation in violation of Labor Code section 6310, and wrongful termination in violation of public policy.

On March 6, 2024, the Court heard oral argument and continued the hearing to allow the parties to submit supplemental briefing. The parties filed supplemental briefs and a transcript of the hearing on March 20, 2024.

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) In testing the sufficiency of the complaint, the court must assume the truth of: (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Accordingly, “[w]hether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-10.)

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc. § 430.10(e).) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations plead to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal. App. 4th 39, 43.) “Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action.” (Ibid.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

The Court previously found that Plaintiff’s first cause of action in the initial complaint failed because there was no protected activity alleged or causal link between Plaintiff’s non-protected activity of notifying Defendant of the need for additional toys and her termination. Plaintiff contends that her retaliation claims are adequately pled.

To state a cause of action for violation of Lab. Code § 1102.5, “a plaintiff must show (1) she engaged in protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.) “[T]emporal proximity, by itself, may be sufficient to establish a prima face claim . . . of retaliation.” (Artega v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 334.)

To state a cause of action under Lab. Code § 1102.5, a complaint must allege that there was disclosure of a violation of a statute, regulation or rule. (Patten v. Grant Joint Union High Dist. (2005) 134 Cal.App.4th 1378, 1388, [disapproved of on other grounds by Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703].) “An employee engages in activity protected by [Labor Code section 1102.5] when the employee discloses reasonably based suspicions of illegal activity.” (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592.) “To have a reasonably based suspicion of illegal activity, the employee must be able to point to some legal foundation for his suspicion—some statute, rule or regulation which may have been violated by the conduct he disclosed.” (Ibid.) Generally, statutory causes of action must be pleaded with particularity. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1237, fn.3.)

Plaintiff alleges that she notified Defendants that an adequate supply of toys was needed for waiting areas and therapy rooms. (FAC, ¶¶ 19-23.) The FAC alleges that in February 2023, a child at one of Defendant’s facilities caused a dangerous safety incident when the child inserted an object into an electrical outlet, which started a small fire. (Id., ¶ 25.) Plaintiff alleges that she was fired shortly after exchanging emails “about the lack of toys and supplies for the children and how that contributed to the safety incident at the facility.” (Id., ¶¶ 26-27.)

Previously, the Court found Plaintiff’s reference to Health and Safety Code section 1596.95 and 29 CFR 1910(s) to be insufficient to state a claim for retaliation. In response to the Court’s prior ruling, Plaintiff added an allegation that her safety concerns implicated Civil Code section 1714, which is the general statute codifying the ordinary duty of care owed by every person. (FAC, ¶ 18.) Civil Code section 1714 does not proscribe any conduct, but merely sets forth that “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care of skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

Plaintiff’s disclosure about needing more toys and kid-friendly items for children to play with in the lobby does not amount to the kind of whistleblowing activity which is protected by Labor Code section 1102.5. (Patten, supra, 134 Cal.App.4th at p. 1385.) In Patten, the Third Appellate District held that a disclosure “about needing more staff [on a large school campus] for safety purposes” did not amount to whistleblowing as a matter of law. Therefore, the Court finds that Plaintiff still has not stated a sufficient cause of action for violation of Lab. Code § 1102 and the Court SUSTAINS Defendant’s demurrer to the first cause of action in the FAC.

Lab. Code § 6310(b) provides that an employee cannot be retaliated against for making a “bona fide oral or written complaint . . . to their employer . . . of unsafe working conditions.” A cause of action under Lab. Code § 6310 requires a plaintiff to show that “(1) she engaged in protected activity, (2) her employer subjected her to an adverse employment action, and (3) a causal link between the two.” (St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 314.) A cause of action under Lab. Code § 6310 has similar requirements to a cause of action under Lab. Code § 1102.5.

Defendant raises the same arguments as to the insufficiency of the second cause of action that were raised as to the first cause of action. The Court references its analysis as to the first cause of action and incorporates it herein. A review of the FAC shows that Plaintiff did not allege concerns regarding workplace safety for employees, but mainly expressed concern about the general safety of the children in the lobby. (FAC, ¶¶ 19, 22.)

To state a cause of action for wrongful termination in violation of public policy, a plaintiff must allege the following: (1) the plaintiff was employed by the defendant; (2) the defendant discharged the plaintiff from employment; (3) the alleged violation of public policy was the motivating reason for plaintiff’s discharge; (4) the plaintiff was harmed; and (5) the discharge was a substantial factor in causing plaintiff harm. (CACI 2430.) Here, it appears that Plaintiff is alleging that Defendant violated public policy by firing her because she was a whistleblower raising workplace safety concerns because Plaintiff expressly cites to Labor Code sections 1102.5 and 6310, which form the basis for her First and Second Causes of Action. (Reply, p. 2; FAC, ¶¶ 62-67.) As stated above, Plaintiff’s First and Second Causes of Action are insufficiently alleged. Therefore, Plaintiff’s Third Cause of Action also fails. To the extent that Plaintiff claims that Defendant violated public policy by discriminating against her, this theory is not supported by any factual allegations.

Therefore, Defendant’s demurrer to the Third Cause of Action of the FAC is SUSTAINED.

Moving Defendant seeks to strike punitive damages allegations from the complaint and prayer for relief therein. Due to the Court sustaining the demurrer to each cause of action in the complaint, the motion to strike is taken off calendar is moot.

Plaintiff fails to show how amendment is possible. Accordingly. the Court SUSTAINS Defendant’s demurrer without leave to amend.

William A. Crowfoot

Judge of the Superior Court

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.