Tentative Ruling: (1) Demurrer to Complaint: SUSTAINED, as to the Fifth and Sixth COAs, without leave to amend. The Demurrer to the Fifth COA for Retaliation is SUSTAINED, as Plaintiff failed to allege an “opposition” or “complaint,” as required by Government Code section 12940(h). Significantly, the dialogue referenced by Plaintiff and included within ¶14 of the Complaint does not demonstrate Plaintiff opposed discrimination; rather, the Complaint merely alleges Plaintiff communicated to Defendant that the alleged discriminatory factor did not apply.

Additionally, the Demurrer to the Sixth COA for Intentional Infliction of Emotional Distress is SUSTAINED, as the claim arises solely from Defendant’s alleged discriminatory termination of Plaintiff and, pursuant to Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, “personnel management activity,” even when motivated by discrimination, is insufficiently “outrageous” to support liability under this theory. (Id. at 80).

Leave to amend is denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436). As the above facts are undisputed and the nature of Plaintiff’s claims are clear, but no liability attaches, leave to amend is DENIED.

Fifth COA (Retaliation): “To establish a prima facie case of retaliation…the plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer’s action.” (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814).

Pursuant to Government Code section 12940(h), a person has engaged in “protected activity” when they have “opposed any practices forbidden under this part” or “filed a complaint, testified, or assisted in any proceeding under this part.” (Govt. Code, §12940(h)). In this instance, Plaintiff’s Complaint alleges: “Defendants violated [section 12940(h)] in that a substantial motivating factor for such adverse employment actions was to discriminate against Plaintiff based on his disability.” (¶48 of Complaint.)

This allegation fails to allege an “opposition” to a forbidden practice or a “complaint,” as required. Additionally, rather than alleging retaliation the allegation demonstrates, only, an intent to discriminate.

In an attempt to save his claim, however, Plaintiff’s Opposition references the following dialogue, alleged within ¶14:

“When Mr. Cookson returned, he told Plaintiff, ‘My only concern is that now you’ve become a workers’ compensation liability.’ Plaintiff replied, ‘I don’t see how I could be a workers’ compensation liability since my injury occurred outside work and is well documented that it is already existing.’” (Emphasis added.)

Significantly, while this dialogue may demonstrate an intent to discriminate, Plaintiff’s response thereto (indicating he would not pose a threat of workers’ compensation liability) cannot fairly be interpreted as an “opposition” or “complaint.”

Plaintiff did not communicate to Defendant, a belief that terminating his employment due to the threat of workers’ compensation liability would violate FEHA; rather, Plaintiff merely indicated he posed no such threat.

Thus, as Plaintiff does not allege a “protected activity,” under section 12940(h) and the Opposition fails to demonstrate any further basis, upon which the claim can be amended, the Court SUSTAINS the Demurrer to the Fifth COA, without leave to amend.

Leave to amend is denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436.)

Sixth COA (IIED): The elements of a cause of action for intentional infliction of emotional distress are: (1) outrageous conduct by the Defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering and; (4) actual and proximate causation of the emotional distress. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1376.)

Pursuant to Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, “[m]anaging personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society.” (Id. at 80.) “A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.” (Id., emphasis added.) “If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” (Id.).

Here a review of the Complaint fails to reveal any allegations of “outrageous conduct,” beyond Defendant’s alleged discriminatory termination of Plaintiff. As the decision to terminate an employee qualifies as “personnel management activity,” Plaintiff’s claim for Intentional Infliction of Emotional Distress fails under Jankens.

Additionally, as the Opposition apparently concedes that this is the sole basis of Plaintiff’s claim and fails to indicate any ability to amend, the Demurrer to the Sixth COA is SUSTAINED, without leave to amend. (See Opposition: 7:9-12: “Any employer would have been able to foresee that terminating an employee would cause that employee serious problems…”).

As cited above, pursuant to Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, leave to amend should be denied where the nature of the claim is clear, but no liability exists under substantive law. (Id. at 436.) As to the additional Arguments raised by Defendant: Given the above analysis, the Court need not review Defendant’s alternative arguments; however, pursuant to Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, the Court notes Plaintiff’s claim for IIED would not be preempted by workers’ compensation law, as the claim arises from allegations of discrimination and “work-related injury discrimination is not a normal risk of the compensation bargain.” (Id. at 1492.) Thus, the Court in Fretland concluded “emotional distress claims are not barred by the exclusivity rule to the extent they seek emotional distress damages for the alleged work-related injury discrimination.” (Id.)

Additionally, while Defendant correctly argues Plaintiff is required to allege the “nature, extent or duration” of his emotional distress (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227), this defect could have been cured through amendment. Thus, but for Jankens, the Demurrer would merely be sustained with leave to amend.