2018-00230847-CU-WT

Sean Doherty vs. California State Assembly

Nature of Proceeding: Hearing on Demurrer

Filed By: Peyton, Cameron M.

Defendants California State Assembly, et al.’s demurrer to the second and third causes of action in Plaintiff Seam Doherty’s complaint is ruled upon as follows.

This matter was continued from July 27, 2018 to allow Defendants to comply with CCP § 430.41. The meet and confer efforts were sufficient.

In this action Plaintiff alleges causes of action for termination in violation of public policy, IIED, NIED, and breach of contract. Plaintiff alleges that he was “lured” from his lucrative consulting practice by Assemblyman Mathis to help fix problems in his office. He alleges that this required him to prevent Mathis from misusing state resources, engaging in sexual harassment and other improper behavior. (Comp. ¶¶ 1,

18, 19.)

Plaintiff alleges that he sought assistance from the Assembly Rules Committee and Human Resources in an attempt to reign in Mathis’ alleged inappropriate behavior. (Id. ¶ 20.) He alleges that individuals within the Assembly’s Chief Administrative Officer informed Mathis of Plaintiff’s complaints which hindered his ability to improve Mathis’ behavior, created a hostile work environment and resulted in retaliation that led to Plaintiff’s termination. (Id. ¶ 21.) Plaintiff alleged that Mathis maintained inappropriately close relationships with staff including insisting on living with Plaintiff’s family for a two month period (which turned into 9 months) and treated his family inappropriately. (Id. ¶ 26.) Plaintiff also alleges that Mathis sexually assaulted an Assembly employee, misused state resources and discriminated against a female employee. (Id. ¶¶ 30-42.) Plaintiff alleges that after Mathis was re-elected in 2016, his ability to reign in Mathis’ behavior was limited. He alleges that while he complained about Mathis, he was told he would likely be terminated if he filed a complaint. (Id. ¶ 45.) He alleges that his relationship with Mathis began deteriorating rapidly after he talked to the Rules Committee. He alleges that the Assembly released two un-founded sexual harassment complaints against him in February 2018 even though the Assembly never investigated nor acted on the complaints. Plaintiff alleges that the complaints were made by Mathis’ allies or those under his control in order to protect Mathis from any claims Plaintiff might bring. (Id. ¶¶ 48, 49.)

Second Cause of Action (IIED)

Defendants’ demurrer is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. Defendants argue that Plaintiff has not alleged any extreme and outrageous conduct and that the claim is preempted by the Workers’ Compensation Exclusivity rule.

The Court agrees with Defendants that Plaintiff has failed to allege the requisite extreme and outrageous conduct. “A cause of action for [IIED] exists where there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) Conduct is only “extreme and outrageous” when it is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster,(1982) 32 Cal. 3d 197.) The Court may, as a threshold matter, determine whether the alleged conduct rises to the level of “extreme and outrageous” on a demurrer. (Bock v. Hanssen (2014) 225 Cal.App.4th 215, 235; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534. [“Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.”]) “Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous as to result in liability.” (Alcon v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.) Conduct is considered extreme and outrageous if when recited “to an average member of the community [c]ould arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.)

Here, Plaintiff alleges that as to Mathis, his outrageous conduct consisted of the instances of sexual harassment and assault, misuse of state resources and retaliation. (Comp. ¶ 60.) However, there are no allegations that Plaintiff witnessed any of the incidents and misuse of state resources is not conduct that can be considered extreme or outrageous. Plaintiff fails to set forth any facts as to what the alleged retaliation by Mathis consisted of. Plaintiff also appears to base this cause of action on certain actions of Human Resources Cherry and Foster in allegedly telling him that he would be terminated if he filed a complaint against him and failed to assist him in dealing with Mathis in addition to the fact that he was terminated. (Id. ¶ 61.) These allegations constitute personnel management activity. “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. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) Plaintiff’s opposition fails to directly address Defendants’ arguments that he failed to allege the requisite extreme and outrageous conduct and only address the Workers’ Compensation exclusivity argument. The demurrer to the second cause of action is sustained on the basis that Plaintiff failed to allege the requisite extreme and outrageous conduct.

Defendants next argue that the IIED cause of action is barred by the exclusive remedy provision of the workers’ compensation act. Plaintiff argues that the exclusive remedy does not apply here because he has alleged conduct that contravenes a fundamental public policy. Specifically he argues that he was terminated in retaliation for reporting incidents of sexual assault.

Conduct that falls outside the normal course of the employer-employee relationship and/or violates fundamental public policy is not barred by the exclusive remedy provision. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492 [emotional distress claims not barred by workers’ compensation where they arise out of disability discrimination as such conduct is not part of the normal employment relationship].) In Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902 the plaintiff asserted a whistlebower retaliation cause of action and a Tameny cause of action but the IIED cause of action was barred by the exclusive remedy provision. The exception for “conduct that ‘contravenes fundamental public policy’ is aimed at permitting a Tameny action to proceed despite the workers’ compensation exclusive remedy” and thus did not assist with the IIED claim. (Id.) While the plaintiff in Miklosy incorporated the retaliation and Tameny allegations in the IIED cause of action this was not sufficient to avoid the bar. Miklosy noted that as to the “exception for conduct that ‘exceeds the risks inherent in the employment relationship,’ it might seem at first blush to apply here-based on the argument that whistleblower retaliation is not a risk inherent in the employment relationship-but we rejected this same argument in Shoemaker v. Myers, supra, 52 Cal.3d at page 25. Like plaintiffs here, the plaintiff in Shoemaker alleged whistleblower retaliation and also a Tameny cause of action, and although he incorporated these allegations as part of his claim of intentional infliction of emotional distress, we held workers’ compensation to be his exclusive remedy and affirmed the trial court’s dismissal of that cause of action. [citation omitted] The same holding applies here.” (Id. at 903.)

The Court notes that, Miklosy did not deal with FEHA discrimination claims and cases before and after Mikolsy have held that IIED claims premised on FEHA discrimination are not subject to workers’ compensation exclusivity. (Fretland, supra, 69 Cal.App.4th

at 1492; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288; Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1362-1363.) A recent case from the Fourth District (not cited by either party) came to the same conclusion. ( Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75.) The Court cited the cases preceding Miklosy concluding that FEHA discrimination claims were not barred by workers’ compensation and noted that Miklosy did not involve FEHA claims. (Id. at 99.) Light found that the case of Yau v. Allen (2014) 229 Cal.App.4th 144, read Miklosy too narrowly to only permit a single exception to workers’ compensation for Tameny claims. Light concluded that Miklosy expressly retained the second exception, specifically for conduct that “exceeds the risks inherent in the employment relationship” and while Miklosy concluded this did not apply in the whistleblower retaliation context, neither Miklosy nor the authorities it relied upon considered the numerous cases finding that conduct in violation of FEHA is not part of the employment relationship. (Id. at 100.) “In sum, absent further guidance from out Supreme Court, we are unwilling to abandon the long-standing view that unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain and therefore claims of intentional infliction of emotion distress based on such discrimination and retaliation are not subject to workers’ exclusivity. While the Supreme Court in Miklosy held that allegations of whistleblower retaliation were insufficient to state an exception to workers’ compensation exclusivity, it did not remove the jurisprudential basis on which numerous authorities have held that allegations of FEHA discrimination and retaliation did state such an exception. We therefore adhere to those authorities here.” (Id. at 101 [emphasis in original].)

Here, Plaintiff’s IIED cause of action while premised on retaliation is not expressly based on FEHA retaliation. FEHA is not even referred to in the complaint. Plaintiff argues that Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 113 allowed an IIED cause of action in connection with a Tameny claim premised on Labor Code § 6310 which prohibits retaliation against employees that file complaints related to employee health and safety. Plaintiff argues that because he has stated a valid wrongful termination claim that Defendants did not challenge, he has necessarily pled an IIED cause of action. The Court would note that Cabesuela predates Miklosy and in any event no authority is cited for the proposition that reports of sexual harassment/assault involve employee health and safety under Labor Code § 6310 and § 6310 is not even referred to in the complaint. Plaintiff also cites to Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083 [overruled on other grounds]. But Gantt did not hold that an IIED cause of action premised on termination for reporting sexual harassment was not preempted by the Workers’ Compensation exclusivity provisions and simply held that a Tameny claim was not barred. The Supreme Court indicated that the plaintiff did not challenge the Court of Appeal’s finding that the IIED cause of action was barred by the exclusive remedy of Workers’ Compensation. (Id. at 1086, fn. 1.) Gantt lends no support to Plaintiff. As currently pled, the IIED cause of action is barred by the Workers’ Compensation exclusivity provision.

The demurrer is sustained with leave to amend as this is the first challenge to the complaint. To the extent that Plaintiff needs to make additional allegations in connection with his first cause of action for wrongful termination in order to support the IIED cause of action he is given leave to do so.

Third Cause of Action (NIED)

Defendants’ demurrer is sustained without leave to amend for failure to state facts

sufficient to constitute a cause of action.

Claims based on negligence are subject to worker’s compensation exclusivity. ( Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261, 1264-165.) Plaintiff does not oppose the demurrer to this cause of action.

As a result, the demurrer is sustained with leave to amend as to the second cause of action and without leave to amend as to the third cause of action.

Where leave was given Plaintiff may file and serve an amended complaint no later than September 17, 2018. Defendants shall file and serve their response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP § 430.41 extension as necessary.

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