2018-00230569-CU-WT

Tamme Shinshuri vs. California Physicians Services

Nature of Proceeding: Hearing on Demurrer to the 1st Amended Complaint

Filed By: Dwight, Kevin P.

Defendant California Physicians’ Service dba Blue Shield of California’s (“Defendant”) demurrer to plaintiff in pro per Tamme Shinshuri’s (“Plaintiff”) First Amended Complaint (“FAC”) is UNOPPOSED and is ruled upon as follows.

In this employment action, Plaintiff filed her original complaint on April 9, 2018. Plaintiff filed her FAC on May 29, 2018, alleging the following seven causes of action: (1) race discrimination (FEHA); (2) gender discrimination (FEHA); (3) retaliation (FEHA); (4) aiding and abetting (FEHA); (5) harassment (FEHA); (6) failure to prevent harassment, discrimination, and retaliation (FEHA); and (7) IIED.

Defendant demurs to the entire FAC on the grounds it is uncertain. Defendant also demurs to each cause of action on the ground that each cause of action fails to state facts sufficient to state a cause of action. In the alternative, Defendant moves to strike the entire FAC.

Legal Standard

The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.)

The pleading rules applicable to demurrers are now familiar and well established. Pleadings are to be liberally construed. (Code Civ. Proc. § 452) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. ( Serrano v. Priest (1971) 5 Cal. 3d 584, 591.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . , we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal. App. 3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal. App. 4th 726.)

Uncertainty

The demurrer for uncertainty is OVERRULED. The allegations are not so uncertain that Defendant cannot frame a response. Demurrers for uncertainty are disfavored and are only granted where the complaint is so muddled that the defendant cannot reasonably respond. The favored approach is to clarify theories in the complaint through discovery. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; 1 Weil & Brown, Civil Procedure Before Trial (Rutter 2014), sec. 7:85, p. 7(l)-39.)

First and Second Causes of Action (Race and Gender Discrimination (FEHA)) – OVERRULED

Defendant demurs to the first and second causes of action for race and gender discrimination in violation of FEHA on the grounds Plaintiff does not set forth any facts showing she was treated differently because of her race or gender. However, the FAC alleges Plaintiff was not allowed to solicit donations from and recruit Defendant’s employees in connection with her foundation, the Shinshuri Foundation, while other white female employees were. (FAC ¶¶ 7-11, 59-62.) The FAC also alleges Plaintiff was denied a job promotion, and in her place a white male was hired. (FAC ¶¶ 12, 22, 65-67.) The Court finds these allegations are sufficient for pleading purposes. The demurrer to the first and second causes of action is OVERRULED.

Third Cause of Action (Retaliation (FEHA)) – OVERRULED

Defendant demurs to the third cause of action on the ground the FAC alleges retaliation that occurred before Plaintiff engaged in protected activity, which cannot form the basis of a retaliation claim. Specifically, Defendant argues the FAC alleges Defendant’s investigation was pretextual and prejudicial because it occurred during the time Plaintiff complained to HR about her competency rating, but the exhibits on which Plaintiff relies (which were attached to Plaintiff’s original complaint, but not the FAC), establish Defendant’s investigation occurred in October of 2016, an entire month before Plaintiff complained in November of 2016. However, Plaintiff’s retaliation claim is also premised upon her allegations that she was terminated, which did occur after her complaint to HR. Accordingly, for pleading purposes, the Court finds the FAC is sufficient to state a claim for retaliation in violation of FEHA. Defendant’s demurrer to the third cause of action is OVERRULED.

Based on the foregoing, the Court need not address Defendant’s additional arguments that references to Labor Code sections 2856 and 2922 and Evidence Code section 1060 are nonsensical. Such a challenge would be more properly addressed on a motion to strike.

Fourth Cause of Action (Aiding and Abetting (FEHA)) – OVERRULED

Defendant demurs to the fourth cause of action for aiding and abetting in violation of FEHA on the ground the FAC does not allege certain facts, such as, the purported duty owed to Plaintiff, “who assisted who” to breach that duty, and who aided and abetted the purported “bad actor.” In support, Defendant has presented the Court with the elements for a cause of action for aiding and abetting a breach of fiduciary duty
. This is wholly inapposite here.

In fact, Plaintiff has alleged a violation of section 12940(i) of FEHA, which provides that it shall be an unlawful employment practice “for any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.”

” ‘Liability may … be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.’ Mere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting. (Vernon v. State of California (2004) 116 Cal.App.4th 114, 131 [internal citations omitted].) The “aid and abet” language of section 12940, subdivision (i) “makes it unlawful, for example, for third parties such as customers or suppliers to induce or coerce prohibited discrimination or harassment.” (Reno v. Baird (1998) 18 Cal.4th 640, 655.)

Defendant has failed to analyze what Plaintiff is required to establish under section 12940(i) and how Plaintiff has failed to meet that burden. Even had defendant properly analyzed the FAC, the court has reviewed the allegations and find that, for pleading purposes, a claim under 129490(i) is stated. Paragraphs 80, 83, 83 and 84 are factually sufficient. Accordingly, the demurrer is OVERRULED.

Fifth Cause of Action (Harassment (FEHA)) – SUSTAINED with leave to amend

Plaintiff’s harassment claim is based on her dissatisfaction with her coaching and performance reviews and lack of a promotion. (FAC ¶¶ 20, 21, 38, 46, 87, 95.) To constitute actionable harassment, the allegations must show conduct that is sufficiently severe or pervasive.

Actionable “harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” (Roby v. McKesson Corporation (2009) 47 Cal.4th 686, 706.) To establish a harassment cause of action, the plaintiff must show she was subjected to offensive comments or other abusive conduct clearly based on plaintiffs sex or race or age or other protected category that were sufficiently “severe” or “pervasive” to alter the conditions of employment. (Aguilar v. Avis Rent A Car System Inc. (1999) 21 Cal.4th 121, 130.) The work environment must be both subjectively and objectively hostile. (McGinest v. GTE Service Corp. (9th Cir, 2004) 360 F.3d 1103, 1113.)

Generally, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Commonly necessary personnel management actions do not come within the meaning of harassment. (See, e.g. Roby v. McKesson Corp (2009) 47 Cal. 4th 686, 707.) Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action. (Thomas v. Dep’t. of Corrections (2000) 77 Cal.App.4th 507, 510. The employment action must be both detrimental and substantial. Id; see also McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 386-387, citations omitted, citing Yanowitz v. L”oreal USA, Inc. (2005) 36 Cal. 4th 1028, Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.)

Plaintiff’s FAC does not allege conduct that is beyond personnel management actions and that rise to the level of being sufficiently severe or pervasive. Nor does the FAC allege Plaintiff was subjected to harassment because she belonged to any protected group.

Defendant’s demurrer to the fifth cause of action is SUSTAINED with leave to amend as this is the first challenge to the pleading.

Sixth Cause of Action (Failure to Prevent Discrimination, Retaliation and Harassment (FEHA)) – OVERRULED in part and SUSTAINED with leave to amend in part

Defendant demurs to this cause of action on the ground that it is derivative of the first, second, third, and fifth causes of action and therefore must also be sustained. As the Court has overruled the demurrer to the first, second, and third causes of action, the demurrer to the sixth cause of action for failure to prevent discrimination and retaliation must also be overruled. As the Court has sustained with leave to amend the fifth cause of action for harassment, the Court must sustain with leave to amend the sixth cause of action for failure to prevent harassment.

Seventh Cause of Action (IIED)

Defendant demurs to this cause of action on the ground Plaintiff has failed to allege

extreme and outrageous conduct. The Court agrees. Plaintiff’s allegations are premised upon allegations that she was wrongfully terminated, which by itself is not sufficiently extreme and outrageous.

The established elements of a claim for intentional infliction of emotional distress are that a plaintiff must identify facts demonstrating that “(1) the defendant engaged in extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, severe emotional distress to the plaintiff; (2) the plaintiff actually suffered severe or extreme emotional distress; and (3) the outrageous conduct was the actual and proximate cause of the emotional distress.” (Ross v. Creel Printing

& Publ’g Co. (2002) 100 Cal.App.4th 736, 744-45.) The conduct at issue “must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)

The demurrer to the seventh cause of action is SUSTAINED with leave to amend as this is the first challenge to the pleading.

Alternative Motion to Strike

Based on the Court’s foregoing ruling, Defendant’s alternative motion to strike entire FAC is DENIED.

Conclusion

No later than September 5, 2018, Plaintiff may file a Second Amended Complaint consistent with the foregoing. (Although not required by statute or court rule, Plaintiff is directed to present the clerk a copy of this ruling at the time of filing the Second Amended Complaint.

Defendant may file and serve a response within 30 days of service of the Second Amended Complaint, 35 days if served by mail.

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