2013-00152953-CU-OE

Beatriz Sanchez vs. California Department of Social Services

Nature of Proceeding: Hearing on Demurrer

Filed By: Lindsey-Doyle, Amy

Defendants California Department of Social Services, et al.’s demurrer to Plaintiff
Beatriz Sanchez’s complaint is ruled upon as follows.

Plaintiff alleges FEHA based causes of action for gender discrimination and
harassment, hostile work environment, and failure to prevent harassment and
retaliation. She also alleges common law causes of action for negligent hiring and
retention and intentional infliction of emotional distress. She alleges that she was
sexually harassed by a fellow co-worker, Victoria Rodriquez. She alleges that she
reported the incidents to her supervisors, defendants Brown and Miguelino and that
they failed to appropriately respond to her complaints.

Administrative Remedies

Defendants’ demurrer to the complaint on the basis that Plaintiff failed to allege that
she exhausted her administrative remedies is sustained with leave to amend. Plaintiff
alleges that she “made a complaint to the California Department of Fair Employment
and Housing (“DFEH”) against Defendant, and each of them.” (Comp. ¶ 58.) She
concedes in her opposition that before she could bring a FEHA action, she was
required to timely file an administrative complaint and receive a “right-to-sue-
letter.” (Oppo. 3:12-13; see Gov’t Code § 12965(b).) An employee bringing a FEHA
action may not sue an employer directly but must first file a complaint with the
Department. (§ 12960). If the Department determines that it will not issue an
“accusation” after the filing of the complaint, or when 150 days have elapsed after the
filing of the complaint, it “shall issue” a “right-to-sue” notice to the aggrieved employee.
(§ 12965, subd. (b).) While she attaches her administrative complaint and “right-to-
sue-letter” to her opposition, she has not alleged she received a “right to-sue letter.”
Further, these exhibits are not attached to the complaint and cannot be considered as
the demurrer only tests the pleadings. Leave to amend is given as this defect appears
readily curable.

Government Code § 815-Fifth and Sixth Causes of Action (Negligent Hiring and
Retention and Intentional Infliction of Emotional Distress)–[Identified in the Caption as
the Sixth and Seventh Causes of Action]

Defendants’ demurrer to the fifth cause of action for negligent hiring against the
Department and sixth cause of action for intentional infliction of emotional distress
cause of action against the Department and defendants Brown and Miguelino on the
basis that they are immune pursuant to Government Code § 815(a) is ruled upon as
follows.

“Except as otherwise provided by statute: (a) A public entity is not liable for injury,
whether such injury arises out of an act or omission of the public entity or a public
employee or any other person.” (Gov’t Code § 815(a).) The Department’s demurrer to
the fifth and sixth causes of action is sustained with leave to amend as the complaint
fails to identify any statute upon which liability for these common law causes of action
are based. While Plaintiff argues in opposition that the Department could be
vicariously liable for its employee’s conduct pursuant to Government Code § 815.2
(and while case authority supports such proposition, e.g. Leger v. Stockton Unified
School Dist. (1988) 202 Cal.App.3d 1448, 1461-1462), Plaintiff has failed to identify
such statute in her complaint.

In any event, the negligent hiring claim, as currently pled, is asserted as a direct claim
against the Department based on its failures in hiring Victoria Rodriguez, not one for
vicarious liability. (Comp. ¶¶ 88-92.) Plaintiff also cites to case law which recognized
the potential for a negligent hire/retention cause of action against a school district
where the plaintiff alleged that she was molested by a teacher that the school district
hired/retained. (Virginia G. v. ABD Unified School Dist. (1993) 15 Cal.App.4th 1848,
1855.) That case indicated that the plaintiff might be able to amend her complaint to
allege a cause of action against a school district based on the negligence of its
employees who were responsible for hiring/supervising the teacher alleged to have
molested the plaintiff. Again, however, as presently pled, the negligent hire cause of
action is alleged only against the Department and is not currently based on allegations
that the Department’s employees were negligent for hiring/supervising Rodriguez, but
instead that the Department was itself negligent in that regard.

The Sixth Cause of Action for IIED as currently pled against the Department is similar
and contains no allegations suggesting a vicarious liability theory. In any event as
explained below in connection with the discussion of the individual defendants Brown
and Miguelino, to the extent Plaintiff alleged a vicarious liability theory against the
Department in the IIED cause of action, it would be insufficient as Plaintiff has not
alleged facts demonstrating that the individual defendants Brown and Miguelino
engaged in conduct that could be considered extreme and outrageous. Further, while
Plaintiff appears to argue that her IIED claim is not subject to Government Code § 815
because emotional distress damages are available with respect to statutory FEHA
claims, Plaintiff is incorrect. While emotional distress damages might be recoverable
under FEHA, an IIED claim is an entirely separate common law cause of action for
which the Department is immune for liability under Government Code § 815. The
Department’s demurrer to these two causes of action is sustained with leave to
amend.

Defendants’ Brown and Miguelino’s demurrer to the sixth cause of action for IIED on
the basis that they are immune pursuant to Government Code § 815 is overruled.
Defendants appear to argue that they fall within § 815 because they have been sued in
their official capacities because the allegations against them deal with their responses
to Plaintiff’s internal complaints against a subordinate employee and other allegations
regarding their necessary job functions. However, § 815 by its very terms is limited to
public entities, and the cases cited by Defendants do not hold otherwise and in fact, “[e]xcept as otherwise provided by statute (including Section 820.2), a public employee
is liable for injury caused by his act or omission to the same extent as a private
person.” (Gov’t Code § 820(a).) Defendants’ Brown and Miguelino’s demurrer based
solely on Government Code § 815 is overruled.

Workers’ Compensation Exclusivity (Sixth Cause of Action-Intentional Infliction of
Emotional Distress As Alleged Against All Defendants) )–[Identified in the Caption as
the Seventh Cause of Action]

Defendants’ demurrer to the Sixth Cause of Action on the basis that it is barred by the
workers’ compensation exclusivity provisions is overruled. In the instant action,
Plaintiff’s IIED claim is premised on her underlying FEHA related causes of action,
specifically, gender discrimination and harassment. (See City of Moorpark v. Superior
th
Court (1998) 198 Cal.4 1143, 1155 [“We concluded that ‘the…’compensation bargain’
cannot encompass conduct, such as sexual or racial discrimination, ‘obnoxious to the
interests of the state and contrary to public policy and sound morality.’”].) While
Defendants may be correct that Plaintiff’s allegations involve their personnel decisions,
for example, in connection with their decisions in responding to her harassment
complaint, the complaint alleges that she experienced sexual harassment at the hands
of Department employee Victoria Rodriguez and that she was subjected to adverse
action based on her gender. Thus, at least for pleading purposes, she has alleged
conduct which the California Supreme Court has held is outside the normal
employment relationship and not barred by the workers’ compensation exclusivity
provisions. As seen below, however, while Plaintiff alleges in the abstract that the
individual defendants’ personnel decisions were discriminatory, they are correct that as
currently pled, she has not alleged conduct which would state any individual cause of
action against them. However, as it relates to this portion of the demurrer based on
the contention that the entire cause of action as against all three defendants is barred
by the exclusivity provisions, the demurrer must be overruled.

Second Cause of Action (Sexual Harassment in Violation of Cal. Gov’t Code § 12940,
et seq. as Alleged Against Brown and Miguelino)

Defendants’ Brown and Miguelino’s demurrer is sustained with leave to amend.
Individual supervisors may be personally liable for harassment in violation of FEHA. (
th
Reno v. Baird (1998) 18 Cal.4 640, 645.) However, Plaintiff herself recognizes in her
opposition that “[a] supervisor who, without more, fails to take action to prevent
harassment of an employee is not personally liable as an aider and abettor of the
harasser, an aider and abettor of the employer or agent of the employer.” (Fiol v.
th
Doellstedt (1996) 50 Cal.App.4 1318, 1324.) Plaintiff argues that she alleged Brown
and Miguelino actively participated in the harassment. However, the cited paragraphs
in the complaint show nothing more than Plaintiff’s reports to Brown and Miguelino
regarding the harassment by Rodriquez and the alleged failure to take action in
response. “A supervisor does not aid and abet a harasser by mere inaction. A
supervisor does not aid and abet the employer by acts constituting personnel
management decisions.” (Id. at 1331.) “A nonharassing supervisor who fails to take
action on a sexual harassment complaint by a subordinate has not engaged in
personal conduct constituting harassment, but rather has made a personnel
management decision which in retrospect may be considered to be inadequate or
improper.” (Id.) Plaintiff’s allegations with respect to Brown and Miguelino amount to
nothing more than allegations that her complaints to them regarding Rodriguez’s
harassment were not acted upon, or were not acted upon sufficiently. Such
allegations are insufficient under the very authority she cited in her opposition to
demonstrate that Brown and Miguelino are personally liable for harassment. Their
demurrer to the second cause of action is therefore sustained.

Fourth Cause of Action (Failure to Prevent Discrimination, Harassment, and
Retaliation in Violation of Cal. Gov’t Code § 12940, et seq. as Alleged Against Brown
and Miguelino)-(Identified in the Caption as the Fifth Cause of Action)]

Defendants’ Brown and Miguelino’s demurrer is sustained with leave to amend. Again,
the allegations with respect to Brown and Miguelino amount to personnel management
decisions, e.g., failing to take action on her complaints, or taking action that was not
effective. Allegations which amount to nothing more than personnel management
decisions are insufficient to create personal liability for supervisors under FEHA. (
th
Janken v. GM Hughes Electronics (1996) 46 Cal.App.4 55, 62-63.) Their demurrer to
the fourth cause of action is sustained with leave to amend.

Sixth Cause of Action (Intentional Infliction of Emotional Distress as Alleged Against
Brown and Miguelino )–[Identified in the Caption as the Seventh Cause of Action]

Defendants’ Brown and Miguelino’s demurrer is sustained with leave to amend. The
Court agrees with defendants that Plaintiff’s allegations regarding their alleged inaction
or insufficient action with respect to her complaints regarding Rodriguez amount to
personnel management decisions. “A simple pleading of personnel management
activity is insufficient to support a claim of intentional infliction of emotional distress,
th
even if improper motivation is alleged.” (Janken, supra, 46 Cal.App.4 at 80.) While
Plaintiff is correct that sexual harassment would be sufficient “outrageous conduct” for
purposes of an intentional infliction of emotional distress claim, as already discussed,
she has not alleged any conduct on Brown and Miguelino’s part that could be
construed to constitute sexual harassment, only that they failed to take action
regarding Rodriguez’s harassment. Their demurrer is therefore sustained with leave to
amend.

In sum, Defendant Department’s demurrer is sustained with leave to amend as to the
fifth and sixth causes of action and Defendants’ Brown and Miguelino’s demurrer is
sustained with respect to the second, fourth, fifth and sixth causes of action for the
reasons stated above. Further all of the Defendants’ demurrer on the basis that
Plaintiff failed to adequately allege exhaustion of administrative remedies is sustained
with leave to amend. Leave to amend is given as this is the first challenge to the
complaint.

Defendants’ argument regarding punitive damages is addressed in connection with
their motion to strike. A demurrer does not lie to a prayer for punitive damages.

Plaintiff may file and serve an amended complaint no later than May 12, 2014.
Defendants shall file and serve their responses within 10 days thereafter, 15 days if
the amended complaint 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
amended complaint to facilitate the filing of the pleading.)

This minute order is effective immediately. No formal order pursuant to CRC rule
3.1312 or other notice is required.
2013-00152953-CU-OE

Beatriz Sanchez vs. California Department of Social Services

Nature of Proceeding: Motion to Strike

Filed By: Lindsey-Doyle, Amy

Defendants California Department of Social Services, et al.’s motion to strike portions
of Plaintiff Beatriz Sanchez’s complaint is ruled upon as follows.

Defendants move to strike Plaintiff’s prayer for punitive damages.

The motion is granted without leave to amend as to the Department as a public entity
is not liable for punitive damages. (Gov.’t Code § 818.)

The motion is granted with leave to amend as to individual defendants Brown and
Miguelino. As seen from the Court’s ruling on their demurrer, Plaintiff has failed to
allege a viable cause of action against them and instead alleged nothing more than
conduct amounting to personnel management decisions. Given that such conduct was
insufficient to state a cause of action against them, it is necessarily insufficient to
constitute the requisite allegations of oppression, fraud, and malice required for
punitive damages pursuant to Civil Code § 3294(a).

Leave to amend is given only as to the prayer for punitive damages as it relates to the
individual defendants. Plaintiff may file and serve an amended complaint no later than
May 12, 2014. Defendants shall file and serve their responses within 10 days
thereafter, 15 days if the amended complaint 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 amended complaint to facilitate the filing of the pleading.)

This minute order is effective immediately. No formal order pursuant to CRC rule
3.1312 or other notice is required.