Case Number: 19BBCV00035 Hearing Date: December 13, 2019 Dept: A

Bilheimer v Pelletier

Demurrer; Motion to Strike

Calendar:

03

Case No.:

19BBCV00035

Hearing Date:

December 13, 2019

Action Filed:

January 11, 2019

Trial Date:

N/A

MP:

Defendant Thomas Pelletier

RP:

Plaintiff Marie Bilheimer

ALLEGATIONS:

The instant action arises from workplace harassment and wrongful termination claims based on Plaintiff Marie Bilheimer (“Plaintiff”) refusing to adhere to the religious beliefs espoused by Defendant Thomas Pelletier (“Pelletier”), an owner/manager of Defendant The Foundation Works (“TFW”).

Plaintiff filed her original Complaint on January 11, 2019, her First Amended Complaint (“FAC”) on June 14, 2019, and her Second Amended Complaint (“SAC”) on September 09, 2019, with eight causes of action sounding in (1) Wrongful Termination, (2) Hostile Work Environment, (3) Failure to Accommodate, (4) Retaliation, (5) Failure to Prevent Discrimination, (6) Intentional Infliction of Emotional Distress (“IIED”), (7) Negligence, and (8) Wrongful Termination Against Public Policy.

PRESENTATION:

Pelletier filed the instant demurrer and motion to strike on October 10, 2019. Plaintiff filed opposition on November 01, 2019. Pelletier filed a reply on November 05, 2019, and thereafter served a supplemental reply brief on December 06, 2019, without leave of Court.

RELIEF REQUESTED:

Pelletier demurs to the Sixth and Seventh Causes of Action.

Pelletier moves to strike punitive damages allegations.

DISCUSSION:

Standard of Review – Demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Code Civ. Proc. §430.30,(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 339.

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof. Blank, supra, 39 Cal. 3d at p. 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal. App. 4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank, supra, 39 Cal. 3d at p. 318.

Pursuant to Code Civ. Proc. §430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).

Meet and Confer – Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3).

On review of the Declaration of Jolynn M. Scharrer, the Court finds that Pelletier has satisfied the meet and confer requirements.

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Sixth Cause of Action (Intentional Infliction of Emotional Distress) – The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct (2) directed to the plaintiff by defendant, (3) with the intention of (4) causing, or reckless disregard of the probability of causing, (5) severe or extreme emotional distress. Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903. For conduct to be outrageous it must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. See Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 130. Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” Id.

“Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry [citation], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.” Wong v. Tai Jing (2010) 189 Cal. App. 4th 1354, 1376. Such distress must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1004.

Under the forgoing authority, allegations that a defendant’s conduct caused a plaintiff to suffer a heart attack, was sufficient for an IIED cause of action. Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal. App. 3d 222. Similarly, allegations that a plaintiff suffered depression, anxiety, and physical illness, including vomiting, stomach cramps, and diarrhea, were adequate for an IIED claim. Hailey v. California Physicians’ Service (2007) 158 Cal. App. 4th 452, as modified on denial of reh’g (Jan. 22, 2008). In contrast, allegations that a plaintiff lost sleep, had symptoms of anxiety, and suffered from nervousness, but sought no medical treatment, are not adequate to state a claim for IIED. Girard v. Ball (1981) 125 Cal. App. 3d 772.

Plaintiff’s SAC remains deficiently pled on the instant cause of action for failure to allege damages sufficient to maintain the instant cause of action. While Plaintiff’s Opposition brief mentions that Plaintiff “required extensive psychological counseling as a result of Pelletier’s conduct” the Court considers it telling that such assertions have not been alleged in any of the three complaints filed by Plaintiff. Opposition, 5:27-29. If Plaintiff were capable of alleging facts sufficient to support counsel’s assertion of extensive psychological counseling, the Court again queries why such facts were not pled in the FAC, or the SAC when the Court’s May 17, 2019, Minute Order informed Plaintiff of the deficiency in the original Complaint.

Accordingly, even though Plaintiff has requested leave to amend, the Court finds that further amendments on this cause of action are futile, and will sustain the demurrer to the Sixth Cause of Action without leave to amend.

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Seventh Cause of Action (Negligence) – A complaint for damages for negligent injury to person or property must allege: (1) defendant’s legal duty of care toward plaintiff; (2) defendant’s breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. Pultz v. Holgerson (1986) 184 Cal. App. 3d 1110, 1117. No strict requirements exist for the form of such allegations. Id.

Plaintiff’s SAC alleges that Pelletier is personally liable under a negligence theory for “conduct set forth here, including but not limited to discriminating against or terminating the Plaintiff’s employment based on her religious creed; because of her right to be free from participating in work-related mandatory religious practices; because she requested an accommodation; or illegally retaliating against her.” SAC ¶75. In other words, Plaintiff is seeking to impose personal liability against a manager, Pelletier, for causes of action sounding in the Fair Employment and Housing Act (“FEHA”). Such liability is cannot attach to individuals such as Pelletier under California law.

In Reno v. Baird (1998) 18 Cal. 4th 640, the California Supreme Court held that individuals who did not themselves qualify as employers for the purposes of FEHA were not subject to liability under FEHA. Reno v. Baird (1998) 18 Cal. 4th 640, 647. The Reno court’s reasoning was that (1) an interpretation that would subject an individual supervisor to such claims would be incongruous with the purposes of Title VII, (Id. at 647-50); (2) it was “inconceivable” that the legislature would exempt employers with five or fewer employees from FEHA but subject individuals to liability for their actions taken as non-employers, (Id. at 650-51); (3) it would impermissibly chill the ability of managers to make difficult business decisions, as it would cause there to be a substantial and real threat of personal liability for every unpopular decision made by the supervisor and thereby adding “an in terrorem quality to the litigation, threatening individual supervisory employees with the spectre of financial ruin for themselves and their families and correspondingly enhancing a plaintiff’s possibility of extracting a settlement on a basis other than the merits”, (Id. at 651-54); and (4) not holding supervisors individually liable would still achieve the goals of FEHA by permitting plaintiffs to go after employers based on the acts of their supervisors as ‘agents’ of the company, (Id. at 654-55).

As all of the other causes of action sound in FEHA claims, and Plaintiff incorporates those claims as the sole basis for liability against Pelletier, the Court will sustain the demurrer without leave to amend.

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Motion to Strike – The proper procedure to attack false allegations in a pleading is a motion to strike. Code Civ. Proc. §436(a). In granting a motion to strike made under Code Civ. Proc. §435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” Code Civ. Proc. §436,(a). Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. Code Civ. Proc. §431.10. The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code Civ. Proc. §436(b).

As sustaining Pelletier’s demurrer on the Sixth and Seventh Causes of Action without leave to amend is sufficient to fully adjudicate the matter as between Pelletier and Plaintiff, the instant motion to strike is moot.

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RULING: DEMURRERS TO THE SIXTH AND SEVENTH ALLEGED AUSES OF ACTION ARE SUSTAINED WITHOUT LEAVE TO AMEND; AND

THE MOTION TO STRIKE IS MOOT PURSUANT TO PELLETIER’S DISMISSAL AS A PARTY TO THE ACTION.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Thomas Pelletier’s Demurrer and Motion to Strike came on regularly for hearing on December 13, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

DEMURRERS TO THE SIXTH AND SEVENTH ALLEGED AUSES OF ACTION ARE SUSTAINED WITHOUT LEAVE TO AMEND; AND

THE MOTION TO STRIKE IS MOOT PURSUANT TO PELLETIER’S DISMISSAL AS A PARTY TO THE ACTION.