Case Name: Elizabeth Cardoso v. Marty Kaiser
Case No: 18CV329549

I. Background

Plaintiff Elizabeth Cardoso (“Plaintiff”) brings this action against defendant Marty Kaiser (“Defendant”) for damages associated with intentional infliction of emotional distress.

According to the allegations of the operative complaint, Plaintiff and Defendant were coworkers at East Side Union High School District. (Complaint, ¶ ¶ 4, 5.) Plaintiff identifies as LGBT. (Id. at ¶ 6.) In January 2016 Defendant began verbally assaulting Plaintiff because of her gender and sexual orientation. (Ibid.) For example, he said he would not drive a district vehicle with a “gay” logo, but told Plaintiff it was okay for her to do so because she is a “lesbo.” (Ibid.) He subsequently asked her about whether she ever went to a sex shop to buy a dildo, and stated she should “try the real thing.” (Ibid.)

Furthermore, following a mass shooting in Orlando, Florida where 49 LGBT people were murdered, Defendant and some other coworkers made comments that “the American flag shouldn’t be lowered for faggots.” (Complaint, ¶ 6.) While making this statement they looked at Plaintiff and laughed. (Ibid.) When Plaintiff told them “that really affected me emotionally,” Defendant laughed at her and stated, “Yeah they’re all assholes.” (Ibid.) As a result, Plaintiff feared and continues to fear for her safety and has developed depression and anxiety. (Id. at ¶¶ 6, 8.)

Based on the foregoing, Plaintiff brings the complaint alleging one cause of action for intentional infliction of emotional distress.

Presently before the Court is Defendant’s demurrer and motion to strike.

II. Demurrer

Defendant demurs to the cause of action on the ground of failure to state sufficient facts, pursuant to Code of Civil Procedure section 430.10, subdivision (e).

A. Legal Standard

A demurrer tests the legal sufficiency of a pleading, but not the truth of a plaintiff’s allegations or the accuracy with which he or she describes the defendant’s conduct. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958; citing Committee on Children’s Television Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) The demurrer is treated as admitting all material facts, properly pleaded, but not contentions, deductions or conclusions of law. (Ibid.)

B. Failure to State Sufficient Facts
Defendant demurs to the sole cause of action on the basis of the statute of limitations and the pleading insufficiency of the cause of action itself.
1. Statute of Limitations

Defendant first argues that the cause of action is time-barred, as only one incident occurred within the relevant statute of limitations, the limitations period is not tolled pending administrative review, and the continuing violation doctrine does not apply.

A demurrer for failure to state sufficient facts lies where the dates alleged in the complaint show the action is barred by the statute of limitations. (E-Fab., Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1316.) The defect must clearly and affirmatively appear on the face of the complaint and it is not enough that the complaint shows merely that the action may be barred. (Ibid.) “In assessing whether claims are time-barred, two basic questions drive [the] analysis: (a) [w]hat statutes of limitations govern the plaintiff’s claims? (b) [w]hen did the plaintiff’s causes of action accrue?” (Id. at 1316.) Generally speaking, a cause of action accrues at the time when the cause of action is complete with all its elements. (Id. at 1317.)

The statute of limitations for a cause of action for intentional infliction of emotional distress is two years. (Code Civ. Proc., § 335.1; Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1451.) The cause of action accrues, and the statute of limitations begins to run, once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 889.)

It is alleged that Defendant began engaging in the offensive conduct in January 2016 and it continued until June 13, 2016, when the last comments were allegedly made. (Complaint, ¶ 6.) The complaint frames the behavior as a “continued pattern of assaultive conduct” which “caused and continues to cause, plaintiff to fear for her safety.” (Ibid.) It is also alleged that the conduct caused her severe emotional distress, including depression and anxiety. (Id. at ¶ 8.) Therefore, the complaint alleges Plaintiff’s cause of action accrued on or after the June 13, 2016, incident when she experienced fear and severe emotional distress as a result of Defendant’s ongoing conduct. Since the complaint was filed on June 6, 2016, within the two year statute of limitations the demurrer cannot be sustained on this basis.

Since the cause of action is not time-barred, the Court need not reach the tolling arguments or those related to the continuing violation doctrine.

2. Pleading sufficiency of the cause of action

Defendant attempts to attack the pleading sufficiency of the cause of action by first seeking to strike allegations that occurred in the timeframe he views as outside the statute of limitations and then arguing the pleading is insufficient to allege the cause of action based on the one incident that “remains.” However, given the Court’s ruling on the statute of limitations argument, this approach is unavailing. Nonetheless, the Court will address the pleading sufficiency of the cause of action as it is raised by the demurrer. In particular, Defendant takes issue with the pleading sufficiency of “outrageous conduct” and the resulting severe emotional distress.

To state a cause of action for intentional infliction of emotional distress a plaintiff must show, among other things, outrageous conduct by the defendant and the plaintiff’s suffering severe or extreme emotional distress. (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) To be considered “outrageous” the conduct must be so extreme as to “exceed all bounds of that usually tolerated in a civilized society.” (Ibid.) If properly pleaded, workplace sexual harassment and harassment based on sexual orientation will constitute the outrageous behavior element of a cause of action for intentional infliction of emotional distress. (Murray v. Oceanside Unified School District (2000) 79 Cal.App.4th 1338, 1362-1363 citing Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.)

The conduct alleged by Plaintiff is sufficiently outrageous to support the cause of action. In particular, it is alleged that while they were co-workers, Defendant referred to her as a “lesbo,” and subsequently referred to other LGBT people as “faggots” and “assholes” in her presence. (Complaint, ¶ 6.) He allegedly referred to a proposed school district logo as “gay.” (Ibid.) It is also alleged that he questioned whether she had ever been to a sex shop, and then made a comment about a sex toy stating, “You should try the real thing.” (Ibid.) He also joined in a conversation regarding the murder of 49 LGBT people and said “the American flag shouldn’t be lowered for faggots.” (Ibid.) When Plaintiff told Defendant and the other co-workers that the murders had really affected her emotionally, she alleges they laughed at her. (Ibid.) Taken together, Plaintiff has pleaded facts in support of workplace harassment based on her sexual orientation, sufficient to constitute the outrageous conduct element of the cause of action.

Furthermore, severe emotional distress means “emotional distress of such substantial or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051 [finding that allegations of “discomfort, worry, anxiety, upset stomach, concern and agitation” were not sufficient to allege emotional distress in a cause of action for intentional infliction of emotional distress].) The distress must be more than transient and trivial and the law intervenes when there is emotional distress of a substantial or enduring quality. (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.)

Plaintiff alleges that she continues to relive the events that occurred between her and Defendant. (Complaint, ¶ 6.) She contends that the incidents cause her to fear for her safety. (Ibid.) She also alleges that she is suffering from anxiety and depression and the incidents created an oppressive work environment for her. (Ibid.) Therefore, emotional distress has been sufficiently pleaded as ongoing fear, depression, and anxiety have been alleged as a consequence of Defendant’s behavior.

Consequently, the demurrer to the cause of action on the ground of failure to state sufficient facts is OVERRULED.

III. Motion to Strike

Defendant moves to strike two allegations that occurred on January 20, 2016, and February 22, 2016, on the basis of the statute of limitations arguing they should be stricken as “improper” pursuant to Code of Civil Procedure section 436 subdivision (a); or because they render the complaint as one not filed in conformity with the laws of the state, pursuant to subdivision (b).

The grounds for a motion to strike shall appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (§437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

As stated in the ruling on the demurrer, the complaint alleges a pattern of conduct, which accrued into a cause of action for intentional infliction of emotional distress within the two year statute of limitations. As a result, though they occurred beyond the two-year limit, the events Defendant seeks to strike are not “improper” as the Court looks to when the cause of action accrued and may consider events up to that point as relevant to the cause of action.

As to the argument that the pleading was not filed in conformity with the laws of the state, this is unavailing. A motion to strike pursuant to section 436 subdivision (b) is limited to instances where a complaint is filed in disregard of established procedural processes. (See Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613; see also Ricard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157, 162.) That is not the case here, nor is it the type of nonconformity argued by Defendant.

Consequently, the motion to strike is DENIED.

The Court will prepare the order.