Judge: Yolanda Orozco, Case: 21STCV25741, Date: 2023-05-03 Tentative Ruling
Case Number: 21STCV25741 Hearing Date: May 3, 2023 Dept: 31
PROCEEDINGS: DEMURRER
TO FAC WITHOUT MOTION TO STRIKE
MOVING PARTY: Defendant
Josephine Choy
RESP. PARTY: Plaintiff
Nandini Mehta
DEMURRER TO FAC WITHOUT
MOTION TO STRIKE
TENTATIVE RULING
Defendant Josephine Choy’s
demurrer to Plaintiff’s third and tenth causes of action is SUSTAINED WITHOUT
LEAVE TO AMEND.
Background
On July
13, 2021, Plaintiff Nandini Mehta filed a Complaint against Defendants Netflix
Inc.; David B. McLean; Josephine Choy; and Does 1 to 20.
The
operative First Amended Complaint (“FAC”) alleges causes of action for:
1)
Gender Discrimination in violation of FEHA
(against Netflix, Inc.);
2)
Race Discrimination in violation of FEHA
(against Netflix, Inc.);
3)
Harassment in violation of FEHA (against
all Defendants);
4)
Failure to Prevent Discrimination in
violation of Government Code § 12940(k) (against Netflix, Inc.);
5)
Retaliation in Violation of Government
Code § 12940(h) (against Netflix, Inc.);
6)
Retaliation in Violation of Labor Code §
1102.5 (against Netflix, Inc.);
7)
Violation of the California Equal Pay Act
in Violation of Labor Code §§ 1197.5, 1194.5 (against Netflix, Inc.);
8)
Wrongful Termination in Violation of
Public Policy (against Netflix, Inc.);
9)
Defamation (against Netflix, Inc., and
McLean) and
10) Intentional Infliction of Emotional Distress
(IIED) (against all Defendants).
On July
25, 2022, Defendant Josephine Choy (hereinafter “Choy”) filed a demurrer to
Plaintiff’s third cause of action for harassment and the eleventh cause of
action for IIED. The Court SUSTAINED Choy’s demurrer WITH LEAVE TO AMEND. (Min.
Or. 11/17/22.)
Plaintiff
filed a FAC on December 27, 2022.
On January
26, 2023, Defendant Choy filed a second demurrer to Plaintiff’s FAC as to the
third and tenth cause of action.
Plaintiff
filed opposing papers on April 20, 2023.
Defendant
Choy filed a reply on April 26, 2023.
Legal Standard
Where pleadings
are defective, a party may raise the defect by way of a demurrer.¿ (Coyne v.
Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the
sufficiency of a pleading, and the grounds for a demurrer must appear on the
face of the pleading or from judicially noticeable matters.¿ (Code Civ. Proc.,
§ 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
In evaluating a demurrer, the court accepts the complainant’s properly-pled
facts as true, and ignores contentions, deductions, and conclusory statements.
(Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v.
Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not
consider whether a plaintiff will be able to prove the allegations, or the
possible difficulty in making such proof. (Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 604.)¿
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 complainant to
show the Court that a pleading can be amended successfully. (Id.)¿¿¿
MEET AND CONFER
Before filing a
demurrer, the demurring party is required to meet and confer with the party who
filed the pleading demurred to, in person or telephonically, to determine
whether an agreement can be reached through a filing of an amended pleading
that would resolve the objections to be raised in the demurrer. (Code Civ.
Proc. (CCP) § 430.41.)
Defense
counsel complied with the meet and confer requirement. (Lawson Decl. ¶¶ 5-7.)
3rd
COA: Harassment
To establish a claim for harassment, an employee must show
that he was: (1) subjected to verbal or physical conduct because of the
employee’s protected status; (2) the conduct was unwelcome; and (3) the conduct
was sufficiently severe or pervasive to alter the conditions of the employee’s
employment and create an abusive work environment. (Fisher v. San Pedro
Peninsula Hospital (1989) 214 Cal.App.3d 590, 609.)
Harassment includes epithets, derogatory comments or
slurs. (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App 4th 30,
35.) California Courts have been guided in their interpretations of FEHA by the
federal court decisions interpreting Title VII of the federal Civil Rights Act.
(Id.) To prove a claim under Title VII, the harassment must be
sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment. (Id.) However,
negative employment decisions, such as termination or demotion, cannot¿form¿the
basis of a¿hostile environment claim¿and are suited to a discrimination claim.
(Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707-711 [holding the
same, however, finding that negative employment actions may be used as evidence
to show animus¿in a harassment case.].)
Plaintiff alleges that Choy made disparaging remarks about
Indians and Singaporeans, that Indian women are “loud and aggressive,” complained
about the terrible culture in the Indian office, said that Indian Uber drives
are “smelly and dirty,” that “Indians drink too much” and “get belligerent at
parities (FAC ¶¶ 36, 66, 82, 91.) The FAC fails to allege that these comments
were directed directly at Plaintiff or were about Plaintiff. Plaintiff does not
allege why such comments are sufficient to show that Choy bullied and
intimidated Plaintiff based on her race, gender, and national origin. Moreover,
the FAC fails to allege sufficient facts to that Choy’s comments were
sufficiently severe or pervasive to support a claim of harassment against Choy.
(See Guthrey v. State of California (1998) 63 Cal.App.4th
1108, 1123 [“To be sufficiently pervasive harassment, the acts complained of
cannot be isolated or trivial. Rather, there must be a pattern of harassment of
a routine or generalized nature.”) Moreover, such comments fail to show that
Choy assisted or encouraged McLean’s harassment of Plaintiff.
Moreover, Choy cannot be held
liable as an aider and abettor for McLean’s harassment by her mere failure to
act. (See Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326 [“a supervisory employee owes no duty to his or her
subordinates to prevent sexual harassment in the workplace. That is a duty owed
only by the employer.”].)
The FAC also fails to show how pressuring Plaintiff to not
hire another female Indian colleague showed that Choy supported McLean’s
harassment. (FAC ¶ 90.) The FAC fails to state what derogatory or racist
remarks Choy made about another Indian woman, Monika Shergill, and fails to
state facts as to why the comments made Plaintiff feel that Choy held the same
racist sentiment about Plaintiff. (Id.)
Plaintiff states that she was threatened with being fired if
she complained about the Tax Memo or her pay disparity, but fails to explain
how the threat of termination is evidence that Choy harassed Plaintiff on the
basis of her sex, gender, race, or national origin. (FAC ¶¶ 68, 69.) Plaintiff
fails to explain how and why the Tax Memo was racist or discriminatory toward
Plaintiff due to her race, gender, or national origin as opposed to an attempt
by Netflix to avoid tax liability in India. (FAC ¶¶ 39, 40, 61.) Plaintiff fails
to explain why Choy should be held personally liable for implementing an
official Netflix policy via the Tax Memo. Plaintiff also fails to state facts
that show that Choy and McLean’s refusal to allow Plaintiff to attend the
Netflix leadership program is connected to Choy’s harassment of Plaintiff on
account of her race, gender, and/or national origin. (FAC ¶ 105.)
When Plaintiff complained to Tyler Benjamin, Netflix’s Human
Resources department, the complaint related to Plaintiff’s compensation and Netflix’s
tax liability. (FAC ¶ 65.) Plaintiff only complained to Tyler Benjamin about
McLean’s racist and sexist comments but made no mention of Choy’s harassment.
(FAC ¶ 73.)
Lastly, Plaintiff fails to show how further amendment would
cure the deficiencies in the third cause of action given that Plaintiff was
previously granted leave to amend.
Therefore, the demurrer to the third cause of action is
SUSTAINED WITHOUT LEAVE TO AMEND.
10th
COA: Intentional Infliction of Emotional Distress
The tort of intentional infliction of emotional distress is
committed when the defendant's conduct is intentionally intrusive and
outrageous and has a traumatic effect on the plaintiff’s emotional tranquility.
(Alcorn v. Anbro Engineering (1970) 2 Cal. 3rd 493, 498.) “[B]ehavior
may be considered outrageous if a defendant (1) abuses a relation or position
which gives him power to damage the plaintiff’s interest; (2) knows the
plaintiff is susceptible to injuries through mental distress; or (3) acts
intentionally or unreasonably with the recognition that the acts are likely to
result in illness through mental distress.” (Bogard v. Employers Cas. Co.
(1985) 164 Cal. App. 3d 606, 616.)
Many cases have dismissed intentional infliction of
emotional distress cases on demurrer, concluding that the facts alleged do not
amount to outrageous conduct as a matter of law. (See, e.g., Mintz v.
Blue Cross of California (2009) 172 Cal.App.4th 1594,
1608–1609; Coleman v. Republic Indemnity Ins. Co. (2005)
132 Cal.App.4th 403, 416–417; Ricard v. Pacific Indemnity (1982)
132 Cal.App.3d 886, 895.
“Liability may also be imposed on one who aids and abets the
commission of an intentional tort if the person (a) knows the other's conduct
constitutes a breach of duty and gives substantial assistance or encouragement
to the other to so act or (b) gives substantial assistance to the other in
accomplishing a tortious result and the person's own conduct, separately
considered, constitutes a breach of duty to the third person.” Saunders v. Superior Court (1994) 27 Cal.App.4th
832, 846.) Here, there are no facts showing that Choy gave substantial
assistance or encouragement to McLean in his alleged harassment of Plaintiff.
“Mere knowledge that a tort is being committed and the
failure to prevent it does not constitute aiding and abetting. ‘As a general rule,
one owes no duty to control the conduct of another….’ (Citations.)” (Fiol, supra, 50
Cal.App.4th at 1326.) Here, Choy owed no duty to control McLean’s conduct.
Plaintiff fails to cite any case law to support her proposition that the fact
Choy acted with reckless disregard in ignoring McLean’s harassment of Plaintiff
is sufficient to hold Choy liable for IIED.
Lastly, the demurrer to the third cause of action as to
Defendant Choy was SUSTAINED WITHOUT LEAVE TO AMEND because Plaintiff failed to
articulate sufficient facts to show that Choy harassed Plaintiff. Plaintiff
also fails to show that the tenth cause of action is capable of amendment. Accordingly,
the Court also SUSTAINS the demurrer to the tenth cause of action WITHOUT LEAVE
TO AMEND.
Conclusion
Defendant Josephine Choy’s
demurrer to Plaintiff’s third and tenth causes of action is SUSTAINED WITHOUT
LEAVE TO AMEND. Responsive pleadings to the remaining causes of action to be filed
and served within 10 days.
The moving party to give notice.