Case Number: BC699873 Hearing Date: May 13, 2019 Dept: 58

Judge John P. Doyle
Department 58

Hearing Date: May 13, 2019

Case Name: Lauricella v. Health Net of California, Inc., et al.

Case No.: BC699873

Motion: (1) Demurrer

(2) Motion for Sanctions

Moving Party: (1) Defendants Defendants Health Net of California, Inc., Health Net Inc., Linda Wade-Bickel, Linda Jeffery, and Jennifer Brady

(2) Defendant Health Net of California, Inc.

Responding Party: (1) Plaintiff Yanira Lauricella

(2) Unopposed

Tentative Ruling: The Demurrer is sustained as to the tenth and thirteenth causes of action but is otherwise overruled.

The Motion for Sanctions is granted in part.

This is an action arising from Plaintiff’s employment as a senior case management assistant with Defendants Health Net of California, Inc. and Health Net Inc. On January 11, 2019, Plaintiff filed the operative First Amended Complaint (“FAC”) alleging causes of action for (1) breach of express and implied contract, (2) breach of the covenant of good faith and fair dealing, (3) wrongful termination in violation of public policy, (4) violation of the California Constitution, (5) FEHA discrimination, (6) FEHA harassment, (7) FEHA retaliation, (8) FEHA “failure to evaluate for accommodation”, (9) FEHA failure to accommodate, (10) intentional infliction of emotional distress (“IIED”), (11) negligent management, (12) violation of Bus. & Prof. Code §17200, and (13) fraud.

Demurrer

Defendants demur to the second, fourth, sixth, tenth, twelfth, and thirteenth causes of action for uncertainty and failure to state sufficient facts.

Previously, on March 27, 2019, the Court issued the following tentative ruling:

(1) Individual Defendants

Defendants Linda Wade-Bickel, Linda Jeffery, and Jennifer Brady demur to the fourth, sixth, tenth, and twelfth causes of action on the ground that the Court previously sustained their demurrer as to such causes of action without leave to amend on December 17, 2018. Defendants also argue that that ruling is now res judicata.

The Court’s December 17, 2018, ruling contains errors and, therefore, the Court now reconsiders and modifies that decision. Indeed, the Court sustained the entity Defendants’ demurrer to Plaintiff’s IIED claim with twenty days leave to amend such that the same should have been done for the individual Defendants. The same can be said for Plaintiff’s claim for violations of the California Constitution which Plaintiff was allowed to amend so as to allege a privacy right theory as to the entity Defendants. Further, in sustaining the individual Defendants’ demurrer to Plaintiff’s FEHA claims, the Court did not consider that Plaintiff asserted a harassment claim; rather, the Court’s ruling mistakenly believed such claim was premised only on retaliation and discrimination. In sum, the Court’s December 17, 2018, ruling should have allowed leave to amend for Plaintiff’s claims against the individual Defendants. Thus, the Demurrer—to the extent premised on the Court’s prior ruling—is overruled.

(2) Breach of the Implied Covenant

Defendants demur to the second cause of action on the grounds that the claim is duplicative of the first cause of action for breach of contract.

The Demurrer is overruled to the extent Plaintiff alleges the subject contract requiring cause for termination was frustrated (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 349), when Defendants failed to engage in a good faith interactive process while Plaintiff was employed (see FAC ¶ 32.)

(3) IIED

Defendants demur to the tenth cause of action for IIED on the basis that such claim is barred by the workers’ compensation exclusivity rule and no extreme our outrageous conduct is alleged.

Contrary to Plaintiff’s assertions, her IIED claim is again premised on personnel management actions or the like.[1] While some employer actions are sufficiently extreme or outrageous as to state a claim for IIED, actions which relate to personnel management do not. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 81.) Indeed, “[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.” (Ibid., emphasis added.) Accordingly, the Demurrer is sustained as to the tenth cause of action, without leave to amend.

(4) Fraud

Defendants demur to the thirteenth cause of action for fraud on the ground that the claim is, again, not particularly pled. This cause of action relates to Defendants having misrepresented, inter alia, that Plaintiff would be able to continue working, that she would be treated fairly, and that her complaints would be investigated fairly. (FAC ¶ 121.)

Plaintiff’s fraud claim is not particularly pled because it does not indicate precisely when or where the subject statements were made or who made them. (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645.) As Plaintiff has demonstrated she cannot remedy her fraud claim, the Demurrer is sustained as to the thirteenth cause of action, without leave to amend.

In sum, the Demurrer is sustained as to the tenth and thirteenth causes of action, without leave to amend; the Demurrer is otherwise overruled.

The Court continued the hearing on the Demurrer to obtain supplemental briefing on the issue of whether the Court could properly reconsider Judge Kalin’s December 17, 2018, ruling.

Defendants, citing Berri v. Superior Court of San Francisco (1955) 43 Cal.2d 856, 860), now argue that Judge Kalin’s order cannot be reconsidered because—to the extent Judge Kalin sustained Individual Defendants’ demurrer without leave to amend—that was a final judgment.

“Actions can be finally disposed of by an order sustaining a demurrer and the entry of an ensuing judgment dismissing the action. It is true that an order sustaining a demurrer without leave to amend is not appealable as it is not the final judgment in the case (see authorities cited supra) and that the trial court may reconsider its ruling after such an order but before judgment and come to a different conclusion. Bank of America Nat. Trust and Savings Ass’n v. Superior Court of Los Angeles County, 20 Cal.2d 697, 128 P.2d 357; Frantz v. Mallen, 204 Cal. 159, 267 P. 314; Davis v. Stroud, 52 Cal.App.2d 308, 126 P.2d 409; De La Beckwith v. Superior Court of Colusa County, 146 Cal. 496, 80 P. 717. Ordinarily, in the absence of a request for a reconsideration, after a demurrer is sustained without leave to amend, as here, no formal motion to dismiss the action is necessary. The entry of a judgment of dismissal follows as a matter of course. It is only by the entry of the judgment that plaintiff is in a position to test the correctness of the court’s ruling since there is no appeal from a ruling on a demurrer but only from the ensuing judgment.”

(Berri v. Superior Court of San Francisco (1955) 43 Cal.2d 856, 860.)

Defendants apparently argue essentially that because Plaintiff never sought reconsideration, judgment followed “as a matter of course.” However, the Court does not believe that “as a matter of course” means by “operation of law.” Rather, the Court believes that “as a matter of course” simply means that “no formal motion to dismiss the action is necessary” (ibid.), such that the Court can unilaterally enter judgment in the absence of a request by the parties. (Rudolph v. Fulton (1960) 178 Cal.App.2d 339, 343 [“An order sustaining a demurrer without leave to amend is not a final judgment and is not appealable. It is followed as a matter of course by a judgment of dismissal, which is made and entered in the absence of both parties, and which is appealable.”] (emphasis added); Sousa v. Capital Co. (1963) 220 Cal.App.2d 744, 750 (same).)

Here, Defendants did not request dismissal and the Court never entered judgment. Thus, as it stands, the Court’s December 17, 2018 ruling was an order which this Court could properly reconsider on its own motion for the purposes of correcting an error. (See, e.g., State of Cal. v. Superior Court (2016) 4 Cal.app.4th 94, 100-101.)

In sum, the Court adopts its prior tentative ruling.

Sanctions

On December 17, 2018, the Court ordered Plaintiff to provide responses without objection to form interrogatories, both general and employment, within ten days. Defendant Health Net of California, Inc. asserts that Plaintiff did not ultimately provide timely responses, and when she did, those responses were allegedly insufficient, necessitating a motion to compel further responses. Therefore, Defendant moves for evidence and issue sanctions as to liability and damages. Defendant also seeks $2,685 in monetary sanctions.

The Court finds that issue and evidentiary sanctions are not warranted because Plaintiff ultimately provided responses to the subject interrogatories. To award sanctions would be punitive, which is improper. To the extent the responses are insufficient, this will be addressed by way of Defendant’s motion to compel further responses.

On the other hand, and upon further reflection having had a better opportunity to consider the pertinent proceedings before Judge Kalin, the Court awards the requested $2,685 in monetary sanctions because Plaintiff only provided responses after the current Motion was filed. Thus, the Motion is granted only as to monetary sanctions.

[1] (See, e.g., FAC ¶¶ 95-98 [“Despite the fact that they observed her suffering at work, due to work, they harassed her by conduct including but not limited to refusing to advise Plaintiff that she had the right to workers compensation medical treatment, to file a claim or to obtain other benefits, forcing Plaintiff to see her own doctor, and after Plaintiff was diagnosed with work related orthopedic issues, hypertension, anxiety and depression, was placed on medication and was taken off work, taking away her work and giving it to her less qualified male subordinate. Plaintiff obtained a workers compensation attorney and filed a workers compensation claim. After she filed her workers compensation claim, Defendants harassed her by trying to force her to quit by taking away her work and giving it to her less qualified male subordinate. . . . Defendants further harassed Plaintiff and refused to evaluate Plaintiff for return to work. Defendants harassed Plaintiff by refusing to permit her to return to work, never providing her with a good faith interactive process, and denying accommodation despite the fact that Defendant had job openings in many other locations and positions in which Plaintiff could have been employed. Plaintiff even reapplied for positions, but was been refused employment.”].)