Case Number: BC699489 Hearing Date: March 02, 2020 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

candy lopez,

Plaintiff,

vs.

united parcel service, inc., et al.

Defendants.

Case No.:

BC 699489

Hearing Date:

March 2, 2020

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

CROSS-DEFENDANT DON TEFT’S DEMURRER TO CROSS-COMPLAINANT’S FIRST AMENDED CROSS COMPLAINT

AND RELATED CROSS-ACTION

Background

On March 23, 2018, Plaintiff Candy Lopez (“Lopez”) filed this employment action against Defendants United Parcel Service, Inc. (“UPS”) and Ryan Quon (“Quon”) asserting, among other claims, violations of FEHA, stemming from allegations that Quon, Lopez’s supervisor at UPS, sexually harassed her and threatened her with violence.

On December 20, 2018, Quon filed a Cross-Complaint against Lopez and UPS for breach of contract and for wrongful discharge in violation of public policy. On June 17, 2019, Quon filed the operative First Amended Cross Complaint (“FACC”) adding, inter alia, as a cross-defendant, Don Teft (“Teft”) and alleging 25 different causes of action.

Teft now demurs to the FACC. The demurrer is unopposed.

Discussion

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

The Court notes that Teft included in his demurrer a section anticipating an opposition by Quon regarding the timeliness of the demurrer. However, since Quon has not filed an opposition, and in light of the Court’s discretion to consider an untimely demurrer so long as it “does not affect the substantial rights of the parties,” the Court will consider Teft’s demurrer on the merits. ((Jackson v. Doe (2011) 192 Cal.App.4th 742, 750 [internal quotations omitted].)

Of the 25 causes of action in the FACC, the following are asserted against Teft: the sixth cause of action for negligent supervision, the seventh cause of action for negligent retention, the ninth cause of action for breach of employment contract, the eleventh cause of action for fraud and deceit, the twelfth cause of action for retaliatory discharge, the thirteenth cause of action for intentional infliction of emotional distress, the fourteenth cause of action for negligence, the fifteenth cause of action for negligent infliction of emotional distress, the sixteenth cause of action for aiding and abetting extortion, the seventeenth cause of action for racial discrimination, the eighteenth cause of action for gender discrimination, the nineteenth cause of action for harassment based on race, the twentieth cause of action for harassment based on gender, the twenty-first cause of action for unfair business practices, and the twenty-fourth cause of action for violation of the Unruh Act (Civil Code sections 51 and 52).

In the FACC, Quon alleges that he was wrongfully terminated from his employment at UPS as a result of false allegations by Lopez. The allegations as to Teft are as follows:

Quon alleges that Teft is also an employee of UPS. (FACC, ¶ 5.) On or about July 24, 2018, Quon was ordered to an HR meeting, with Teft also in attendance. (FACC, ¶ 98.) There, Teft told Quon that Quon was at fault regarding his issues with Lopez. (FACC, ¶ 98.) On or about August 29 and 30, 2018, at a meeting with other employees, Teft questioned Quon about his social media accounts. (FACC, ¶¶ 104-105.) Teft falsely told Quon that Quon was going to be able to return to work at UPS. (FACC, ¶ 106 but see FAC, ¶ 195 [alleging that only Morgan Price made this representation].) On September 26, 2018, Teft (along with UPS) informed Quon that he was being terminated due to violations of UPS policies. (FACC, ¶ 108.) In making this decision, Teft and others relied on information concerning conduct that occurred during non-working hours and on non-UPS property. (FACC, ¶ 109.) Quon alleges that Teft was aware that Lopez was unfit to perform the work that she was hired to do; Teft knew that Lopez was dishonest; and Teft did nothing to reprimand, discipline, or remedy these problems. (FACC,

¶ 111.)

As noted by Teft, other than the above, there are no allegations in support of each of the causes of action in the FACC that reference Teft specifically.

Teft contends that the negligence causes of action (negligence, negligent supervision, negligent retention, and negligent infliction of emotional distress) must fail because Quon has not alleged that Teft owed a duty to Quon that was breached. The Court finds that there are no allegations setting forth the basis for a finding of a legal duty between Teft and Quon. Teft also contends that Quon’s negligence claims are preempted by workers’ compensation exclusivity. The general rule is that an employee is “generally prohibited from pursuing any tort remedies against [an] employer or its agents” because the employer is already liable for an employee’s injuries arising out of and in the course of the employment under the workers’ compensation system. ((Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 96.) This includes actions for negligence and negligent supervision. ((See Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1606 [finding that negligence claim by employee against employer was barred by workers’ compensation exclusivity].) Workers’ compensation exclusivity similarly bars Quon’s intentional infliction of emotional distress claim because it is based on Quon’s termination from employment. (FACC ¶ 211.) ((See Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902-903 [holding that workers’ compensation is the exclusive remedy for emotional distress damages caused by whistleblower retaliation or wrongful termination].)

Next, Teft contends that the breach of employment contract must fail because no contract is alleged to have been formed between Teft and Quon. Indeed, Quon alleges only that Quon and UPS entered into an employment relationship and that UPS promised to discharge Quon only for good cause. (FACC, ¶¶ 174-175.)

Teft argues that the cause of action for fraud and deceit must fail because the elements have not been alleged with particularity. As noted above in the Court’s recitation of the allegations against Teft, there is an inconsistency between what is alleged in paragraph 106 compared to paragraph 195. In any event, even if the Court accepts the allegation in paragraph 106 that Teft made a false representation that Quon was going to be able to return to work at UPS, Quon has failed to allege any of the remaining elements of a fraud claim, including that Teft knew that the representation was false, that Teft intended to defraud Quon, that Quon justifiably relied on the representation, and that Quon was damaged as a result of the representation. ((Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.)

Teft contends that the retaliatory discharge cause of action must fail because Quon has not alleged a prima facie case of retaliation, and namely, that Quon engaged in any protected activity. To establish a prima facie case of retaliation, “a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” ((Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.) Protected activity under Labor Code section 98.6 includes “the exercise by the employee . . . on behalf of himself, herself, or others of any rights afforded him or her.” In the FACC, Quon does not allege that he engaged in any protected activity.

Teft argues that the FEHA claims fail because Teft is not alleged to have engaged in any conduct that is discriminatory or harassing. Further, Teft is not alleged to be Quon’s employer, and discrimination claims are viable only as to employers. ((Gov. Code, § 12940, subd. (a)); Reno v. Baird (1998) 18 Cal.4th 640, 663, superseded by statute on other grounds [“[W]e conclude that individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.”].) The Court finds that Quon has not alleged sufficient facts to support any of the FEHA claims against Teft.

In support of the aiding and abetting extortion cause of action, Quon alleges that Teft, among others, gave substantial assistance or encouragement to Ruben Duran, another employee of UPS and/or an employee of the Teamster’s Union, when Mr. Duran threatened Quon that he would “have his job” if Quon did not return certain items of personal property to Lopez. (FACC, ¶¶ 227-228.) Teft argues that an employer is not liable for tortious conduct of an employee if the employee substantially deviates from the employment duties for personal purposes, citing to an unpublished federal district court opinion. However, Teft is not alleged to be Quon’s employer, so it is unclear how this principle would apply to Teft. In any event, the Court finds that the facts alleged are insufficient to state a cause of action because there are no facts as to how Teft gave substantial assistance or encouragement to Mr. Duran.

Teft correctly argues that there is no claim for unlawful business practices under Business and Profession Code section 17200 against Teft because Quon has not stated an underlying claim against Teft. In other words, there are no allegations in the FACC that Teft has engaged in any unlawful, unfair, or fraudulent business practices.

Lastly, Teft contends that the cause of action for violation of the Unruh Civil Rights Act fails because it only protects nonemployees against discrimination by a business establishment. ((See Rojo v. Kliger (1990) 52 Cal.3d 65, 77 [noting that the Unruh Act has “no application to employment discrimination”].) Here, Quon’s allegations of discrimination against UPS (and by extension, Teft) stem from his status as an employee. Therefore, the Unruh Act does not apply.

Conclusion

Based on the foregoing, and in light of the lack of an opposition by Quon, the Court sustains Teft’s demurrer in its entirety, with leave to amend.

The Court orders Quon to file and serve an amended cross-complaint, if any, within 10 days of the date of service of this order. If no cross-complaint is filed and served within 10 days, the Court orders Teft to file and serve a proposed judgment of dismissal within 15 days of service of this order.

Teft is ordered to provide notice of this ruling.

DATED: March 2, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court