Case Number: BC715809 Hearing Date: September 10, 2019 Dept: 48

DEMURRER TO FIRST AMENDED COMPLAINT

MOVING PARTY: Defendants Employment Tax Servicing Corporation dba Emptech, Jeffrey Aleixo and Michelle K. Aleixo

RESPONDING PARTY(S): Plaintiff Ashley Maddock

PROOF OF SERVICE:

Correct Address: Yes.
16/21 (CCP § 1005(b)): OK. Served by mail on March 12, 2019; notice of continuance to this date served by mail on June 12, 2019.

OVERRULE demurrer as to the sixth, seventh and tenth causes of action;
SUSTAIN demurrer without leave to amend as to the eighth and ninth causes of action;
Defendants to answer the 1AC.

ANALYSIS

Demurrer

1. Sixth Cause of Action (Libel Per Se) and Seventh Cause of Action (Slander Per Se).

“To plead such a cause of action [for defamation], [plaintiff] must set forth ‘either the specific words or the substance of’ the allegedly defamatory statements. (Citations omitted).” Comstock v. Aber (2012) 212 Cal.App.4th 931, 948 (bold emphasis added).

“Publication for purposes of defamation is sufficient when the publication is to only one person other than the person defamed.” Bindrim v. Mitchell (1979) 92 Cal. App. 3d 61, 79, overruled on other grounds in McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 846 n. 9.

Plaintiff has pled that Defendants have been publishing within the company and to third parties, through writings contained in the files, and orally, false and defamatory statements, including that Plaintiff was insubordinate, had poor job performance, committed wage and hour fraud, violated a personal cell phone use policy, which had the effect of preventing Plaintiff from finding employment. 1AC, ¶¶ 98 – 100, 102, 110 – 113. The exact statements published and the identity of persons involved are properly the subject of discovery.

For purposes of the Civil Code § 47(c) privilege, Plaintiff has sufficiently pled that the defamatory statements were published by Defendants with ill will to harm and injure Plaintiff. ¶¶ 103, 115. This is sufficient to plead malice for purposes of overcoming the Civil Code § 47(c) privilege, which is a matter for Plaintiff to prove at trial:

The qualified privilege of Civil Code section 47, subdivision 3, may apply to the statement that plaintiff falsified invoices. That section provides in pertinent part that “A privileged publication . . . is one made . . . [para. ] 3. In a communication, without malice, to a person interested therein, (1) by one who is also interested . . . .” This qualified privilege may exist where the communicator and recipient have a common interest and the communication is reasonably calculated to further that interest. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 846 [115 Cal.Rptr. 582].) Communication among a company’s employees that is designed to insure honest and accurate records involves such a common interest.

Malice necessary to prevent application of the qualified privilege may be alleged by pleading that the publication was motivated by hatred or ill will toward the plaintiff. (See Sanhorn v. Chronicle Pub. Co., supra, 18 Cal.3d 406, 413-414.) Plaintiff alleges, “the statements set forth above were published . . . with express and implied malice and with design and intent to injure plaintiff in his good name, reputation and employment . . . . The statements were made with malice in fact by Tom Hansen . . . in that: . . . [para. ] (c) Mr. Hansen . . . harbored ill will and hatred for the plaintiff in that he has a history of being active with his union . . . .” By these allegations, plaintiff sufficiently pleaded malice. (See ibid.) The trial court erred in sustaining the demurrer to the cause of action for slander.

Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 285 (bold emphasis added).

Plaintiff also sufficiently pleads an additional theory of self-publication by alleging that she will have to republish the false statements when seeking new employment as to why she left and/or was terminated from employment with ETSC. 1AC ¶¶ 102, 114.

Plaintiff relies on McKinney v. County of Santa Clara (1980) 110 Cal. App. 3d 787 [168 Cal. Rptr. 89] for the proposition that self-publication of the alleged defamatory statement may be imputed to the originator of the statement if “the person defamed [is] operating under a strong compulsion to republish the defamatory statement and the circumstances which create the strong compulsion are known to the originator of the defamatory statement at the time he communicates it to the person defamed.” ( Id. at p. 797-798, italics added.) That is, republication might be foreseeably required if “a job seeker must tell a prospective employer what is in his personnel file in order to explain away a negative job reference.” (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal. App. 3d 1277, 1287 [286 Cal. Rptr. 198], explaining McKinney, italics added.)

Davis v. Consolidated Freightways (1994) 29 Cal App.4th 354, 373 (bold emphasis added).

The libel and slander causes of action are sufficiently pled.

The demurrer to the sixth and seventh causes of action is OVERRULED.

2. Eighth Cause of Action (Intentional Infliction of Emotional Distress); Ninth Cause of Action (Negligent Infliction of Emotional Distress).

Although emotional distress damages may be recovered in connection with FEHA causes of action[1], there are no independent causes of action for IIED or NIED based on the treatment Plaintiff suffered in her terms of employment. The oft-cited rule is that emotional distress damages arising out of discriminatory practices in violation of FEHA are not barred by workers compensation exclusivity. Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 352. However, this has been held to mean that a Tameny action may proceed despite the workers compensation exclusivity rule, and that emotional distress damages are recoverable in connection with a FEHA cause of action, but independent causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress are barred by the workers’ compensation exclusivity rule. Here, Plaintiff does not allege any conduct engaged in by Defendant which would avoid the workers compensation exclusivity rule. Yau v. Allen (2014) 229 Cal.App.4th 144, 160-62.

Here, Plaintiff’s intentional and negligent infliction of emotional distress causes of action are based upon management activity that are a normal part of the employment relationship, including demotions, criticism of work practices and frictions in negotiations as to grievances. 1AC, ¶¶ 121, 131. Accordingly, these causes of action are barred by workers’ compensation exclusivity. To the extent Plaintiff suffered emotional distress due to FEHA violations, she can recover emotional distress damages in connection with the FEHA causes of action.

The demurrer to the eighth and ninth causes of action is SUSTAINED without leave to amend.

3. Tenth Cause of Action (Wrongful Termination/Retaliation in Violation of Labor Code § 1102.5).

“We are concerned here with the first element of a section 1102.5(b) retaliation claim, establishing a prima facie case of retaliation. To do that, 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. (Citation omitted.) Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.

Labor Code § 1102.5 was amended in 2013 to read as follows:

(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

Labor Code § 1102.5(b)(bold emphasis added).

Here, Plaintiff alleges that she was retaliated against by Defendants for complaining about violations of Gov. Code § 12940(a), (h), (k), (m) and (n), and § 12926.1(e) and 12926 to Rachel Moore, Michelle Moore and Jeffrey Aleixo, each of whom had authority over Plaintiff and had the power and authority to investigate, discover or correct said violations. 1AC, ¶ 142. These violations of FEHA go beyond mere “internal personnel matters.” The tenth cause of action is sufficiently pled for purposes of this demurrer.

The demurrer to the tenth cause of action is OVERRULED.

Defendants are ordered to answer the first amended complaint within 10 days.

[1] Emotional distress damages are recoverable in FEHA actions. See Wilson v. Safeway Stores (1997) 52 Cal.App.4th 267, 273-274.