Sheri Walker-Francey v. The Regents of the University of California
Case No: 19CV02279
Hearing Date: Tue Aug 27, 2019 9:30

Nature of Proceedings: Demurrer

Demurrer to Second Amended Complaint

ATTORNEYS:

Leslie A. McAdam/Max R. Engelhardt of Ferguson Case Orr Paterson LLP for plaintiff

Jonathan D. Miller/Jennifer M. Miller of Nye, Stirling, Hale & Miller, LLP for defendant

RULING: The demurrer based upon lack of statutory basis for public entity liability is overruled. The demurrer to the intentional infliction of emotional distress cause of action is sustained, with leave to amend on or before September 10, 2019.

BACKGROUND

Second Amended Complaint: Plaintiff filed her original complaint on April 30, 2019, and her first amended complaint on June 7, 2019, prior to defendant’s appearance in the case. Plaintiff’s second amended complaint (SAC) was filed July 3, 2019, pursuant to the stipulation of the parties.

The SAC alleges causes of action for (1) sexual harassment/hostile work environment in violation of FEHA, (2) failure to prevent sexual harassment, in violation of FEHA, (3) intentional infliction of emotional distress, and (4) negligence. She alleges that while she was employed by Regents at UCSB, she was sexually harassed by a co-worker, Jose Preza, who attempted to kiss her without her consent, attempted to rub his genitals on her, and sent her sexually explicit text messages.

Plaintiff alleges that she first reported the harassment to her supervisor on January 31, 2019, and her supervisor relayed the complaint to UCSB’s Title IX office, which arranged a meeting with a CARE advocate. Thereafter, plaintiff decided to pursue a formal complaint, but the Title IX office responded that it was too busy to meet with her until February 21. While she waited for the meeting, her supervisor implemented a scheduling change which involved plaintiff and Preza alternating between working in-person and remotely so they wouldn’t have to physically work together, which plaintiff alleges did not alleviate her stress because she was still required to communicate daily with Preza. It further alleges that her attempts to meet with a UCSB Title IX officer, who attempted to talk her out of pursuing an investigation, emphasizing that a formal investigation was a lengthy process. The officer then asked plaintiff to instead give Preza sufficient time to transition out (apparently by finding a new job), as he had apparently suggested to the Title IX office, which would require that plaintiff accommodate her harasser by agreeing to work with him for weeks or months while he found another job. Plaintiff refused, and was advised that the Title IX office would generate a report and be in touch soon. Over the following weeks, plaintiff repeatedly inquired about the status of the report, and reiterated that she wanted to proceed with a formal investigation. The only response was that the office was very busy and understaffed. Plaintiff was forced to work under the conditions for another two months, until her harasser voluntarily resigned. The initial report prepared by the Title IX officer omitted some of the events which plaintiff had detailed, and she had to repeatedly contact the office to correct the record. No final report has ever been issued.

The cause of action for intentional infliction of emotional distress is based upon conduct by plaintiff’s supervisor and the Title IX officer in creating a hostile work environment, requiring plaintiff to continue to work with her harasser on a daily basis, failing to adequately and promptly investigate her complaints, and continuing to employ her harasser even though they were aware of his prior improper conduct.

Similarly, the negligence cause of action is based upon the failure of defendant’s employees, including plaintiff’s supervisor, to properly and adequately hire, investigate, train, supervise, monitor, and discipline employees, as well as to make, enforce, and act in compliance with policies so as to protect the rights, welfare, and safety of the other employees. Defendant’s employees, including plaintiff’s supervisor, knew or should have known that Preza had made inappropriate comments to women other than plaintiff. They breached their duty to plaintiff by negligently retaining Preza, and failing to monitor, supervise, and investigate his conduct, failing to adequately take corrective action upon receiving the reports of harassment, and continuing to employ him and permit him to work alongside plaintiff, in deliberate indifference to her safety and welfare. The tortious conduct is alleged to have been committed within the scope of the employees’ employment, and breached the duty owed to plaintiff to provide a harassment-free workplace.

Demurrer: Defendant Regents has demurred to the third cause of action for intentional infliction of emotional distress, and the fourth cause of action for negligence, contending that Regents is immune to liability for plaintiff’s non-statutory claims. Both are common law torts which cannot be alleged against a public entity. (Gov. Code, § 815, subd. (a).) Section 815 abolishes all common law or judicially declared forms of liability for public entities. (Miklosy v. Regents (2008) 44 Cal.4th 876, 899.) Public entities have no common law tort liability.

Regents separately demurs to the cause of action for intentional infliction of emotional distress, because the SAC does not allege sufficient factual allegations to constitute outrageous conduct, which is conduct so extreme as to exceed all bounds of that usually tolerated in a civilized society. (Tekle v. United States (9th Cir. 2007) 511 F.3d 839, 855.) Further, whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must be initially determined by the court. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)

In opposition, plaintiff argues that under Government Code section 815.2(a), which codifies respondeat superior liability for government entities, Regents is statutorily liable for the torts of its employees committed during the course and scope of their employment duties. She contends that she explicitly alleged that Regents’ supervisory employees caused harm to her, and because they would be liable for their own torts, Regents are vicariously liable. Plaintiff further asserts that whether conduct is extreme or outrageous for purposes of intentional infliction of emotional distress is a factual issue unsuitable for demurrer; the degree of conduct, and whether it is sufficiently extreme and outrageous to support the cause of action, is not an issue for demurrer.

In its reply, Regents argues that Section 815.2 only creates the potential for liability, not actual liability, in providing that a public entity may be liable for the acts or omissions of its employees within the scope of their employment if, apart from the section, it would have given rise to a cause of action against the employee. It asserts that the existence and extent of the entity’s vicarious liability has to be determined by the scope of duty legally attributed to the employees, citing Peter W. v. San Francisco Unified School District (1976) 60 Cal.App.3d 814, 819-820. Regents also contends that there can be no negligent training or supervision cause of action unless a special duty exists, citing C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 877, and contends the cause of action fails because plaintiff did not cite to any cases finding a special relationship in the employment context. Further, it contends that plaintiff was wrong in arguing that outrageous conduct, as an element of intentional infliction of emotional distress, is a factual issue not suitable on demurrer. Rather, whether a defendant’s conduct can reasonably be found to be outrageous is a question of law to be determined by the court, and a demurrer may be sustained if insufficient facts are alleged to rise to that level. (Berkley v. Dowds (2007) 152 Cal.App.4th 518. Defendant contends that the conduct alleged does not rise to the level of “outrageous conduct” required for the cause of action.

ANALYSIS

The demurrer based upon lack of statutory basis for public entity liability should be overruled. The demurrer to the intentional infliction of emotional distress cause of action should be sustained, with leave to amend on or before September 10, 2019.

The court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)

1. Demurrer based upon immunity from non-statutory claims.

Regents demurs to the third cause of action for intentional infliction of emotion distress, and the fourth cause of action for negligence, on the ground that, as a public entity, it is immune from liability for common law torts, since Government Code section 815 prohibits public entity liability except as provided by statute. Plaintiff responds that under Government Code section 815.2, a public entity is statutorily liable for the torts of its employees committed during the course and scope of their duties, and since she has specifically alleged that the tortious conduct was conducted by Regents’ employees acting within the course and scope of their employment, Regents is not statutorily immune from liability by virtue of Section 815.

In its reply, Regents then argues that plaintiff has not sufficiently alleged liability under Section 815.2, since the existence and extent of an entity’s liability under Section 815.2 will be determined by the scope of the duty attributed to its employees, and because plaintiff has not alleged the existence of a special duty which it contends is required to assert a negligent training and supervision cause of action against it.

Essentially, Regents’ reply argument seeks to have this Court sustain a demurrer on a ground upon which it was not made. This the Court cannot do. The demurrer was based solely upon the immunity accorded to public entities for liability not arising arise from statute. However, Section 815.2 provides statutory authority for the claims, and in fact was expressly invoked by plaintiff’s second amended complaint [See, e.g., SAC @ ¶ 50.), which expressly alleged each of these causes of action in terms of the tortious acts and omissions of the Regents’ employees. To then argue in reply that the causes of action are not sufficiently alleged under Section 815.2 goes well beyond the grounds asserted by the demurrer. Regents easily could have asserted Section 815 as a basis for immunity, and provided arguments for why it did not believe it had liability for the tortious acts and omissions of its employees pursuant to Section 815.2. It did not do so, and the failure to address Section 815.2 in the demurrer – and the demurrer’s sole reliance on Section 815 – rendered the demurrer fatally defective.

The demurrer to the third and fourth causes of action, which was based solely upon the terms of Government Code section 815, is therefore overruled.

2. Third cause of action for intentional infliction of emotional distress.

Regents separately demurred to the third cause of action for intentional infliction of emotional distress, contending that the allegations are insufficient to constitute “outrageous conduct,” which it asserts constitutes conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized community, citing Tekle v. United States (9th Cir. 2007) 511 F.3d 839, 855.) It contends that the allegations consist of general statements of a failure to prevent harassment, which do not rise to the level of constituting outrageous conduct.

Plaintiff opposed by contending that the Court has to accept as admitted all material facts properly pleaded, and that the question of the degree of the conduct—i.e., whether it is sufficiently extreme and outrageous—is a question of fact no properly considered on demurrer.

The elements of a cause of action for intentional infliction of emotional distress include (1) extreme and outrageous conduct by the defendant with the intent of causing, or reckless disregard of the probability of causing, emotional distress, (2) plaintiff’s suffering of severe or extreme emotional distress, and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Hughes v. Pair, supra, 46 Cal.4th at p. 1051.) Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court, including on demurrer; if reasonable persons may differ, it is for the jury to determine. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)

Within the intentional infliction of emotional distress cause of action, plaintiff generally alleges that defendant’s employees engaged in extreme and outrageous conduct in (a) creating a hostile work environment; (b) requiring plaintiff to continue to work and interact with her harasser on a daily basis; (c) failing and refusing to adequately and promptly investigate plaintiff’s complaints, and (d) continuing to employ her harasser when (on information and belief) they were aware of his prior improper conduct. The cause of action also incorporated by reference the prior, more specific allegations of the employees’ conduct, including that the Title IX office initially responded that it could not meet with plaintiff until February 21 because it was “too busy and understaffed.” She alleged further that plaintiff’s supervisor implemented a scheduling change which involved alternating between her having to work with her harasser in person and remotely, so that they would not have to physically work together, but that the arrangement was inadequate because it still required her to communicate with her harasser so that UCSB would not experience any interruptions in the projects they worked on.

The Title IX office advised plaintiff of her rights, but repeatedly emphasized that a formal investigation was a lengthy process, and asked whether she could give her harasser a little time to transition out of the office. When she refused, it advised her that it would proceed to generate a report. It did not immediately respond to her request for an update on the status of the report a week later, and a week after that responded to her complaint that there had been no appropriate action taken since she reported the harassment and she still had to have daily contact with him and was experiencing major anxiety and panic attacks, with an apology for the delay, with an explanation that it was a very busy time in their office and they had limited resources. Further, plaintiff had to repeatedly contact the Title IX officer to correct its report, which omitted some of the harassing incidents which had been reported by plaintiff.

While the harassment experienced by plaintiff was certainly outrageous, Mr. Preza is not a party to this action. The proper inquiry here is not whether Mr. Preza’s harassment was outrageous, but whether the responsive conduct by Regents’ employees was so extreme as to exceed all bounds of that usually tolerated in a civilized community. In large part, the conduct which plaintiff alleges was committed by Regents’ employees appears negligent, at best. The inability of members of a very busy, understaffed, department to be able to immediately respond to her complaints is not, in this Court’s opinion, so extreme as to exceed all bounds of that usually tolerated in a civilized society. The same is true of the overworked employees’ failure to include, in their generated report, all of the incidents of harassment reported by plaintiff. Further, while plaintiff complains that the altered work schedule arranged by her supervisor was inadequate and caused her distress, there are no allegations that would cause this Court to conclude that the supervisor acted outrageously in altering the work schedule so they would not have to physically work together, but would still have to have daily contact, in order to prevent disruptions in work projects. There are no allegations that the supervisor did so intentionally to cause plaintiff’s distress, or was even aware that plaintiff found the solution “inadequate.”

Because this Court cannot find that the conduct of Regents’ employees rose to the level of constituting “outrageous conduct,” as that term is understood in the context of a cause of action for intentional infliction of emotional distress, the Court will sustain Regents’ demurrer to the cause of action. Because this Court has no information on whether plaintiff might possess further facts to support her claim, the Court will allow plaintiff leave to file a further amended complaint which amends the intentional infliction cause of action. Any such further amended complaint should be filed on or before September 10, 2019.