1. Demurrer by Board of Trustees of Defendant CSU Fullerton:

CSU demurrers to the Complaint with respect to the 7th, 9th, 10th , and 12th -15th Causes of Action and the request for preliminary and permanent injunctive relief.
The demurrer is sustained with 21 days leave to amend with respect to each of the causes of action challenged except the fourteenth cause of action. The demurrer to the fourteenth cause of action is sustained without leave to amend.

(a) 7th cause of action – intentional infliction of emotional distress [“IIED”]:

The Defendant argues that the seventh cause of action for IIED fails to state facts sufficient to state a claim against defendant CSU because common law claims are barred against a public entity and/or subject to the exclusive remedies of workers’ compensation and/or because plaintiff failed to allege facts demonstrating compliance with the Government Claims Act. Code Civ. Proc. § 430.10(e).

(i) Worker’s compensation exclusivity does not bar this case of action. distress caused by discriminatory practices or conduct in violation of public policy is not subject to exclusivity rule. The exclusivity rule does not bar a suit for emotional distress damages resulting from sexual harassment, unlawful discrimination or other misconduct that “exceed(s) the normal risks of the employment relationship.” [See Livitsanos v. Sup.Ct. (Continental Culture Specialists, Inc.) (1992) 2 C4th 744, 756, 7 CR2d 808, 816—emotional distress resulting from employer’s defamation and harassment; Nazir v. United Airlines, Inc. (2009) 178 CA4th 243, 288, 100 CR3d 296, 333 “The Legislature … did not intend that an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices.”

[See also Accardi v. Sup.Ct. (City of Simi Valley) (1993) 17 CA4th 341, 352, 21 CR2d 292, 298 (disapproved on other grounds in Richards v. CH2M Hill, Inc. (2001) 26 C4th 798, 111 CR2d 87); Murray v. Oceanside Unified School Dist. (2000) 79 CA4th 1338, 1362, 95 CR2d 28, 43 (abrogated on other grounds by Hart v. National Mortg. & Land Co. (1987) 189 CA3d 1420, 235 CR 68)]

(ii) The Government Claim Act does not necessarily bar this case of action. The Defendant argues that the cause is barred by the Government Claims Act since IIED is a common law tort without a statutory basis. The Plaintiff argues that, Dr. Triplett has properly named multiple individuals—either employees or independent contractors of the Defendant—who committed tortious acts against Dr. Triplett and that under the doctrine of respondeat superior, Defendant is vicariously liable for those individuals’ acts and omissions. Both arguments are partially correct.

CSU cannot be independently liable for common law causes of action. However, CSU can be liability for its public employee’s common law liabilities through respondeat superior if the cause is so pled.

The Government Claims Act (§ 810 et seq.) establishes the limits of common law liability for public entities, stating: “Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (§ 815, subd. (a), italics added.) The Legislative Committee Comment to section 815 states: “This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation….” (Legis. Com. com., 32 West’s Ann. Gov. Code (1995), foll. § 815, p. 167, italics added.) Moreover, our own decisions confirm that section 815 abolishes common law tort liability for public entities. Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899, 188 P.3d 629, 643, 80 Cal.Rptr.3d 690, 708.

In Miklosy v. Regents of University of California, the court determined that the Tameny claim against the Regents directly was barred because it was a common law cause of action. However, the court determined that the Tameny claim was not properly raised against the Regents vicariously for the employees’ actions because the individual employees could not sue under such claim as they were not employers. The court there did not determine, as the Defendant argues, that the vicarious claim was barred because it was a common law cause of action.

Section 815.2, subdivision (a), codifies the doctrine of respondeat superior as it applies to public entities like the University, stating: “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee….”

The comment to the statute specifically provides that [t]his section imposes upon public entities vicarious liability for the tortious acts and omissions of their employees. It makes clear that in the absence of a statute a public entity cannot be held liable for an employee’s act or omission where the employee himself would be immune. The California courts have held on many occasions that a public employee is immune from liability for his discretionary acts within the scope of his employment even though the discretion be abused. This rule is codified in Section 820.2. Under the above section, a public entity also is entitled to the protection of that immunity. The Defendant has not presented authority to support a finding that an employees’ liability must be based upon statute such that the University’s vicarious liability for the its employee’s actions cannot be based upon common law liability. To the contrary, numerous cases have imposed vicarious liability upon a government entity for the common law liabilities of the entities’ employees. For example, in C.A. v. William S. Hart High School Dist. (2012)3 Cal.4th 861, 270 P.3d 699, the court held the School District liable for the employees common law negligence. The court noted that the standard of care imposed upon school personnel in carrying out this duty to supervise is identical to that required in the performance of their other duties. This uniform standard to which they are held is that degree of care ‘which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.’ [Citations.] Either a total lack of supervision [citation] or ineffective supervision [citation] may constitute a lack of ordinary care on the part of those responsible for student supervision. Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.”

“[T]he general rule is that an employee of a public entity is liable for his torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the same extent as a private employer (§ 815, subd. (b)).” [See C.A. v. William S. Hart H.S. Dist., supra.]

As such, the court finds that the Government Claim Act does bar the seventh cause of action for intentional infliction of emotional distress to the extent that it is not clearly pled that the liability by University is exclusively vicarious and not individual. At this point the allegations do not make this clear. Thus, the demurrer is sustained with leave to allow the Plaintiff to amend based upon the University’s vicarious liability for the actions and inactions of its employees if that is the case.

(b) Ninth cause of action – whistleblower retaliation

The Defendant argues that the ninth cause of action – whistleblower retaliation – fails to state facts sufficient to state a claim because plaintiff failed to exhaust her administrative remedies. Code Civ. Proc. §§ 430.10(a), (e). Defendant has established that Dr. Triplett is precluded from bringing her claim under Labor Code §1102.5 or Government Code §8547.12 because she failed to exhaust Defendant’s available internal remedies. Campbell v. Regents of the Univ. of Cal. (2005) 35 Ca1.4th 311, 321 The Plaintiff must allege facts which establish that she exhausted the Regents internal administrative remedies. As such, the demurrer is sustained with leave to amend.

(c) The Defendant argues that the 12th -14th Causes Of Action are also Common Law Claims and fail as a matter of law because CSU is immune from non-statutory tort liability.

(i) 12th cause of action – defamation:

The Defendant argues that the twelfth cause of action – defamation – fails to state facts sufficient to constitute a claim because common law claims are barred against a public entity and/or because plaintiff failed to allege facts demonstrating compliance with the Government Claims Act. Code Civ. Proc. § 430.10(e). The cause is not necessarily barred by the Claims Act but is currently insufficient to plead vicarious liability for the same reasons discussed above with respect to the seventh cause of action for IIED. Thus, the demurrer is sustained with leave to allow the Plaintiff to amend based upon the University’s vicarious liability for the actions and inactions of its employees if that is the case.

(ii) 13th cause of action – invasion of privacy

The Defendant argues that the thirteenth cause of action – invasion of privacy – fails to state facts sufficient to constitute a claim because common law claims are barred against public entity and/or plaintiff failed to allege facts demonstrating compliance with the Government Claims Act. Code Civ. Proc. § 430.10(e). The cause is not necessarily barred by the Claims Act but is currently insufficient to plead vicarious liability for the same reasons discussed above with respect to the seventh cause of action for IIED. Thus, the demurrer is sustained with leave to allow the Plaintiff to amend based upon the University’s vicarious liability for the actions and inactions of its employees if that is the Plaintiff desire.

(iii) 14th cause of action – constructive discharge in violation of public policy

The Defendant argues that the 14th – constructive discharge in violation of public policy – fails to state facts sufficient to constitute a claim because common law claims are barred against a public entity and/or plaintiff failed to allege facts demonstrating compliance with the Government Claims Act. Code Civ. Proc. § 430.10(e). The facts alleged are very similar to those at issue in Miklosy v. Regents of University of California with respect to the Tameny Claim at issue in that case.

The Government Claims Act (§ 810 et seq.) establishes the limits of common law liability for public entities, stating: “Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (§ 815, subd. (a), italics added.)

In Miklosy v. Regents of University of California, the court determined that the Tameny claim against the Regents directly was barred because it was a common law cause of action. However, the court determined that the Tameny claim was not properly raised against the Regents vicariously for the employees’ actions because the individual employees could not sue under such claim as they were not employers. The court there did not determine, as the Defendant argues, that the vicarious claim was barred because it was a common law cause of action.

Here, there can be no direct liability by the Regents and no vicarious liability because the employees cannot be liability for constructive discharge in violation of public policy since they are not employers. As such, the demurrer is sustained without leave to amend.

(d)The Defendant argues that the 7th,10th , 12th , 13th and 15th causes of action and request for injunctive relief fail to state a claim against defendant CSU because plaintiff failed to allege facts demonstrating compliance with the government claims act

The Plaintiff argues that she has complied with the Act. The Plaintiff asks for judicial notice of the content of claim forms which request is denied [see below]. The Plaintiff must allege facts which establish compliance. When and if the Plaintiff alleges compliance with the Act, it can be determined if the claim or claims alleged are sufficient and if they correspond to the allegations made in the complaint. The Plaintiff has not. As such, the demurrer is sustained with leave to allow the Plaintiff to allege compliance with the Act.

(e) Judicial Notice:

A demurrer can be used only to challenge defects that appear on the face of the pleading being attacked or from matters outside the pleading that are judicially noticeable. [See Blank v. Kirwan (1985) 39 Cal. 3rd 311, 318; also Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968.] No other evidence can be considered [i.e., no “speaking demurrers”], and it is error for the court to consider extrinsic evidence. The court can take judicial notice of the pleadings requested and even that there are declarations filed, but the court cannot take notice of the truth of the contents of such documents. [See Sosinsky v. Grant (1992) 6 Cal. App. 4th 1548, 1564-1565 (citing Jefferson’s California Evidence Benchbook [2nd ed. 1982]; and Espinoza v. Calva (2008) 169 Cal. App. 4th 1393, 1396 (“We can take judicial notice of the fact the pleadings were filed, but not of the truth of the statements contained in them.”]

The requests for judicial notice are denied.

Responding Party has 21 days leave to amend all but the 14th cause of action.

Moving Party shall give Notice.