2013-00152954-CU-OE

Helen Riddle vs. California Department of Social Services

Nature of Proceeding: Hearing on Demurrer and Motion to Strike

Filed By: Mott, Vanessa W.

***If any party requests oral argument, then at the time the request is made, the
requesting party must inform the court and opposing counsel of the specific
issue(s) on which oral argument is sought.***

Defendants California Department of Social Services (“CDSS”) and Eileen Carroll’s
(“Carroll”) (collectively “Defendants”) demurrer and motion to strike Plaintiff’s complaint
is ruled upon as follows.

CDSS’ request for judicial notice is granted.

This is an action arising from Plaintiff Helen Riddle’s employment with CDSS. Carroll
is alleged to be the head of the local division of CDSS.

DEMURRER

Defendants demur to the following causes of action: Wrongful Demotion/Failure to
Promote in Violation of Public Policy (COA 1), Wrongful Demotion in Violation of Gov’t
Code section 12940 (COA 4), Negligent Hiring and Retention (COA 7), and Intentional
Infliction of Emotional Distress (COA 8).

Wrongful Demotion/Failure to Promote in Violation of Public Policy (COA 1)

The demurrer is SUSTAINED with leave to amend. CDSS argues that it is statutorily
immune from suit based on a common law (Tameny) cause of action for wrongful
discharge in violation of public policy. (See Cal. Gov’t Code §§ 815 , 815.2, 802.2,
821.6.) The court agrees: “[S]ection 815 bars Tameny actions against public entities.” (
Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876, 900.)

Wrongful Demotion in Violation of Gov’t Code section 12940 (COA 4)

CDSS has dropped the demurrer to this cause of action.

Negligent Hiring and Retention (COA 7)

The demurrer is SUSTAINED with leave to amend. This cause of action is based on
common law, thus CDSS is immune from liability on a direct theory of negligence.
While a public entity can be held liable for negligence hiring/retention on a theory of
vicarious liability, (Gov’t Code § 815.2(a); Virginia G. v. ABC
Unified School Dist. (1993) 15 Cal. App. 4th 1848, 1855), Plaintiff has not pleaded
negligence on such a theory.
Intentional Infliction of Emotional Distress (COA 8)

CDSS argues that it is immune from liability because IIED is a common law cause of
action. The allegations, however, can be construed to establish an IIED cause of
action based on Carroll’s conduct, which would establish CDSS’ vicarious liability.
Moreover, the question of whether Defendants’ conduct was actually “extreme and
outrageous” is a factual question properly left to the trier of fact. (Miller v. National
Broadcasting Co. (1988) 187 Cal.App.3d 1463, 1488 [“…we leave it to a reasonable
jury whether defendants’ conduct was ‘outrageous.'”].) Accordingly, the demurrer is
OVERRULED.

CDSS and Carroll argue that the workers’ compensation exclusivity bars Plaintiff’s IIED
cause of action against them. However, the exclusivity does not apply where the
defendant
allegedly violated the FEHA. (See Murray v. Oceanside Unified School Dist. (2000) 79
Cal.App.4th 1338, 1362-1363.) Here, Plaintiff has sufficiently alleged that violations of
FEHA. Thus, the exclusivity ruled does not apply. Accordingly, the demurrer is
OVERRULED.

CDSS and Carroll argue that Gov’t Code §820.2 provides immunity to Carroll for acts
or omissions exercised in her discretion. “The public agency must demonstrate its
employee in fact consciously exercised discretion in connection with the negligent acts
or omissions charged in order to invoke the ‘discretionary acts’ immunity provisions of
Government
Code section 820.2” (Elton v. County of Orange, (1970) 3 Cal. App. 3d 1053, 1058.) In
order to demonstrate that the public employee is entitled to this immunity, there must
be “a showing that such a policy decision, consciously balancing risks and advantages
took place…Such a showing was not and
could not have been made by the [public entity] at the demurrer stage…” (Id. at 1058.)
Here, the question of whether Carroll’s decision was discretionary for the purposes of
section 820.2
immunity is not properly decided on demurrer. Accordingly, the demurrer is
OVERRULED.

MOTION TO STRIKE

CDSS’ motion to strike Plaintiff’s prayer for punitive damages is GRANTED without
leave to amend. Punitive damages are not available against a public-entity defendant.
(See Cal. Gov’t Code § 818.)

Carroll’s motion to strike on the grounds that Plaintiff has not sufficiently alleged that
Carroll acted with oppression, fraud or malice, is DENIED. Plaintiff has sufficiently
alleged malice and/or oppression. (See Complaint ¶¶ 23, 24, 28, 30, 35.)

Where leave to amend is granted, Plaintiff may file and serve a first amended
complaint (“FAC”) by no later than May 30, 2014, Response to be filed and served
within 10 days thereafter, 15 days if the FAC is served by mail. (Although not required
by any statute or rule of court, Plaintiff is requested to attach a copy of the instant
minute order to the FAC to facilitate the filing of the pleading.)

The minute order is effective immediately.