Case Number: BC534881    Hearing Date: July 30, 2014    Dept: 34

Moving Parties: Defendants Robert Brown and University of West Los Angeles (“defendants”)

Responding Party: Plaintiff Toni O’Neal (“plaintiff”)

Defendants’ motion for judgment on the pleadings is DENIED.

PRELIMINARY COMMENTS:

The Court disregards the declaration filed with plaintiff’s opposition. The grounds for a motion for judgment on the pleadings “shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 438(d).) Plaintiff’s counsel’s declaration constitutes extrinsic evidence that is not proper for this motion.

BACKGROUND:

Plaintiff commenced this action on 1/30/14 against defendants for: (1) retaliation under Labor Code section 1102.5; (2) wrongful termination in violation of public policy; and (3) IIED. Plaintiff alleges she was demoted and ultimately terminated for opposing a plan to promote and operate a program that had been denied approval.

ANALYSIS:

Defendants move for judgment on the pleadings on the grounds that the third cause of action is barred by worker’s compensation exclusivity and the managerial privilege, and the request for attorney’s fees has no basis in law.

Defendants’ Request for Judgment on the Pleadings regarding Plaintiff’s Request for Attorney’s Fees is Denied

Defendants’ challenge to plaintiff’s request for attorney’s fees is not proper for this motion. “Because a motion for judgment on the pleadings is the functional equivalent of a general demurrer, like a general demurrer, a motion for judgment on the pleadings ordinarily does not lie with respect to only part of a cause of action.” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 7:295.) Defendants’ challenge should have been raised in a motion to strike.

Moreover, defendants’ argument is not well taken. “[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.) Courts may strike prayers for attorney fees where a party demonstrated no potential basis for their recovery. (Agricultural Ins. Co. v. Sup. Ct. (1999) 70 Cal.App.4th 385, 404.) However, unsupported attorneys fees allegations need not be stricken pursuant to a motion to strike, since later discovery may reveal a basis for their recovery. (Camenisch v. Sup. Ct. (1996) 44 Cal.App.4th 1689, 1699.) Therefore, regardless of whether plaintiff’s complaint alleges a specific basis for the fees, the request for attorney’s fees should not be stricken because discovery could reveal a basis for the request.

The parties will have ample time to discover and brief the issue of whether or not plaintiff can recovery attorneys fees for her cause of action under Labor Code 1102.5.

Ddefendants’ request for judgment on the pleadings as to the claim for attorney’s fees is DENIED.

Defendants’ Challenge to the Third Cause of Action for IIED Must Fail

Defendants argue that the third cause of action for IIED fails because it is subject to the exclusive remedy provided in the worker’s compensation laws and because any actions taken by Defendant Brown are protected the the managerial privilege. Neither argument is convincing.

To the extent that the third cause of action is based on plaintiff’s demotion, termination, or other employment action, the claim does not fail because plaintiff alleges that these actions were the result of defendant’s illegal retaliation against plaintiff for engaging in protected activity. “Where, as here, the plaintiff’s emotional distress claims are based on [her] employer’s violation of fundamental public policies of this state, such misconduct cannot be considered a normal part of the employment relationship and the plaintiff’s remedy is not confined to workers’ compensation.” (Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1658.) Because plaintiff’s allegations of infliction of emotional distress against defendant relate to the alleged retaliation and wrongful termination, they are not preempted by the Worker’s Compensation Act.

Plaintiff’s claims are also based on defendant Brown’s alleged conduct of sending a letter to plaintiff on 11/14/13 which “falsely and maliciously accused [plaintiff] of changing her UWLA electronic student transcript without authorization.” (Compl., ¶ 48.) Brown asserted that this was a “profoundly serious offense” which constituted “reprehensible and unthinkable conduct.” (Ibid.) Plaintiff alleges that this letter caused her emotional distress. (Ibid.)

In effect, this is a cause of action for defamation that arose after Plaintiff was terminated. Since the letter was sent over a month after plaintiff was terminated, it is not an employment action that would fall under workers compensation. (See id., ¶ 46 [plaintiff was terminated on 10/5/13] and ¶48 [the letter was sent on 11/14/13].)

Defendants also argue that Brown cannot be liable for the third cause of action because his conduct is protected by the manager’s privilege, which states that a manager cannot be liable in tort for actions occurring in the discharge of employment duties. (See Sheppard v. Freeman (1998) 67 Cal.App.4th 347, 349.) Again, plaintiff’s claim is based in part on Brown’s conduct of sending the letter to plaintiff on 11/14/13. Defendant fails to establish that Brown’s act of sending this letter to plaintiff over a month after she was terminated was an act occurring in the discharge of his employment duties. Nothing in the complaint or a judicially noticed item establishes that it was within the course and scope of Brown’s duties to send a false and offensive letter to plaintiff after she had already been terminated.

Defendant’s request for judgment on the pleadings as to the third cause of action is DENIED.