Case Number: BC554140    Hearing Date: November 07, 2014    Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Friday, November 7, 2014
Calendar No: 10
Case Name: Tipton v. Fox Cable Networks, Inc.
Case No.: BC554140
Motion: Demurrer
Moving Party: Defendant Fox Cable Network Services, LLC
Responding Party: Plaintiff Darlene Lieblich Tipton
Notice: OK

Tentative Ruling: Pursuant to Plaintiff’s request, the 5th COA is dismissed with prejudice. The demurrer is sustained as to the 2nd COA with 15 days leave to amend.
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On 8/7/14, Plaintiff Darlene Lieblich Tipton filed this action against Defendant Fox Cable Networks, Inc. arising out of her termination of employment. Plaintiff asserts causes of action for (1) FEHA age discrimination, (2) FEHA age harassment, (4) FEHA age retaliation, (4) FEHA failure to prevent discrimination, retaliation, and harassment, (5) negligence/negligent infliction of emotional distress, and (6) intentional infliction of emotional distress. On 9/11/14, Fox Cable Network Services, LLC (erroneously sued as Fox Cable Networks, Inc.) filed a demurrer as to the 2nd and 5th COAs. On 10/9/14, Plaintiff named Fox Cable Network Services, LLC as Doe 1.

2nd COA – FEHA Age Harassment
Defendant demurs to the 2nd COA on the ground that Plaintiff fails to allege facts to support her harassment claim. The Court agrees. “Whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588. However, “the law does not exhibit ‘zero tolerance’ for offensive words and conduct. Rather, the law requires the plaintiff to meet a threshold standard of severity or pervasiveness.” Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 467.

Plaintiff alleges only that she was falsely terminated on 6/27/06 based on a false negative review (Complaint ¶¶ 7-8); that she was stripped of many of her duties and staff (id. ¶ 9); that she was not given the full extent of her vested bonuses, raises and promotions (id. ¶¶ 14-15); that she complained about her treatment which resulted in no action (id. ¶¶ 17-20); and that she was terminated on 4/9/14 for using her email account to send a personal email which is a violation frequently committed by other employees and for which no other employee had been terminated (id. ¶¶ 24-28). These factual allegations support only commonly necessary personnel management actions that do not come within the meaning of harassment. Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 700; see also Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63. Plaintiff fails to allege sufficient facts supporting severe or pervasive conduct that unreasonably interfered with the work environment. See, e.g., Lyle v. Warner Bros. Television Production (2006) 38 Cal.4th 264, 283-84. The demurrer is sustained as to the 2nd COA. Because this is the first challenge to the pleadings, the Court will grant Plaintiff’s request for leave to amend.

5th COA – Negligence/Negligent Infliction of Emotional Distress
Defendant argues that the 5th COA is barred by workers’ compensation exclusivity. See Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 713-14; Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261, 1264-65. Plaintiff agrees to dismiss the 5th COA. Opp’n p. 2:13-14. Therefore, the Court will dismiss the 5th COA with prejudice.