18-CIV-02282 JOANN ALVAREZ VS. COUNTY OF SAN MATEO, ET AL.

JOANN ALVAREZ COUNTY OF SAN MATEO
TE’REISHA N. GRAVES

DEMURRER OF DEFENDANTS COUNTY OF SAN MATEO, MARIA DE ANDA AND LINDA HOLMAN TO THE SECOND AMENDED COMPLAINT OF PLAINTIFF TENTATIVE RULING:

Defendants COUNTY OF SAN MATEO; MARIA DE ANDA; and LINDA HOLMAN’s Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED as follows:

SUSTAINED WITHOUT LEAVE TO AMEND as to the First cause of action for failure to prevent discrimination; Fourth cause of action for failure to take corrective action; Fifth cause of action for hostile work environment; and Seventh cause of action for negligence. Plaintiff does not oppose the demurrer as to these causes of action, and states her willingness to stipulate to their dismissal. (Plaintiff’s Opposition at 1:16-17.)

SUSTAINED WITHOUT LEAVE TO AMEND as to the Second cause of action for retaliation under the Fair Employment and Housing Act. A claim for FEHA retaliation requires the following elements: (1) Plaintiff engaged in a protected activity; (2) Plaintiff was subject to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action.” Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 707.

Plaintiff fails to allege in her SAC or demonstrate in her Opposition papers that she engaged in “protected activity” under FEHA, and suffered retaliation as a result. As stated by the First District Court of Appeal in Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, “discrimination by an employer against members of the general public is not a prohibited employment practice under the FEHA.” Id. at 383 (emphasis in original). As Plaintiff has failed to demonstrate that she engaged in the requisite “protected activity”, e.g. reporting unlawful employment practices that affected Plaintiff or other employees of the County, this cause of action fails. Although a demurrer should not be sustained without leave to amend if there is a reasonable possibility that a defect in the complaint can be cured by amendment, the burden is on the plaintiff to show in what manner she can amend the complaint and how that amendment will affect the pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Plaintiff has not done so here; accordingly, the demurrer is sustained without leave to amend.

SUSTAINED WITH LEAVE TO AMEND as to the Third cause of action for whistleblower retaliation under Labor Code § 1102.5. In order to state a claim, Plaintiff must allege that (1) she engaged in protected activity; 2) her employer subjected her to adverse action; and 3) that there is a causal link between the protected activity and the adverse action. Patten v. Grant Joint Union High Sch. Dist. (2005) 134 Cal.App.4th 1378, 1384. Under Section 1102.5, the “protected activity” is the reporting of suspected violations of or non-compliance with the law. The employee must have an actual belief that the employer’s actions were unlawful and the employee’s belief, even if mistaken, must be reasonable. Carter v. Escondido Union High Sch. Dist. (2007) 148 Ca1.App.4th 922, 933-34.

Here, Plaintiff fails to provide sufficient allegations of unlawful conduct, as she does not “identify any specific laws” that may have been violated. The SAC only vaguely hints at “potentially illegal conduct”, which is insufficient to demonstrate that Plaintiff had a reasonable basis to suspect that violations of law were actually occurring. Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1348. The demurrer to this cause of action is sustained with leave to amend, so that Plaintiff can allege with specificity the suspected violations or non-compliance with a “state or federal statute” or “a local, state, or federal rule or regulation” that prompted her to raise a complaint.

SUSTAINED WITHOUT LEAVE TO AMEND as to the Sixth cause of action for intentional infliction of emotional distress. Plaintiff acknowledges that in order to avoid the workers’ compensation exclusivity rule, she must successfully plead a violation of FEHA. Light v. Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, 101. She has not done so here. The Court in Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809 makes clear that emotional distress damages are not recoverable in connection with a whistleblower retaliation claim brought pursuant to Labor Code § 1102.5. “Injuries sustained and arising out of the course of employment are generally subject to that exclusive remedy. The exclusive remedy applies even when the damages result from intentional conduct by the employer that is a normal part of employment relationships, and even though such conduct may be described as egregious, harassment, manifestly unfair, or intended to cause emotional distress.” Id. at 823.