Calendar line 1 Case Name: Elizabeth Cardoso v. John Lawrence
Case No.: 18CV328128

I. Background

Elizabeth Cardoso (“Plaintiff”) alleges she experienced workplace discrimination, harassment, and abuse based on her gender and sexual orientation.

Plaintiff worked as a Custodial Operations Manager for East Side Union High School District and was supervised by defendant John Lawrence (“Defendant”). Beginning in January 2016, Defendant made numerous homophobic comments to Plaintiff and singled her out due to her sexual orientation. He repeatedly told her she could not do maintenance work because she was a woman and excluded her from workplace events and socials based on her gender and sexual orientation. Defendant also failed to intervene when Plaintiff’s male colleagues harassed her and groped her in a locked storage closet.
Subsequently, on May 12, 2016, Defendant grabbed Plaintiff’s clothing and threatened her when she attempted to end a harassing conversation with him and leave the workspace; he told her she would not be employed much longer. Shortly thereafter, Defendant again excluded Plaintiff from a work event because she was not “normal,” implying that her sexual orientation was abnormal. (Compl. at p. 4:20.)

Plaintiff alleges Defendant’s conduct caused her to experience severe emotional distress. She asserts a single cause of action against him for intentional infliction of emotional distress for which she seeks to recover compensatory and punitive damages.

Currently before the Court is Defendant’s demurrer on the ground of failure to state facts sufficient to constitute a cause of action and motion to strike portions of the complaint.

II. Discussion

Defendant’s central argument in support of his demurrer and motion to strike is that the majority of the allegations in the pleading are time-barred. Defendant argues allegations of conduct occurring outside of the limitations period should be stricken and that the only two allegations that are timely are insufficient to state a claim for intentional infliction of emotional distress.
A defendant challenging a pleading based on the statute of limitations must demonstrate (1) which statute of limitations applies and (2) when the cause of action accrued. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315–16.)

As Defendant correctly articulates, claims for intentional infliction of emotional distress are subject to a two-year statute of limitations under Code of Civil Procedure section 335.1. (Pugliese v. Super. Ct. (2007) 146 Cal.App.4th 1444, 1450.) Plaintiff does not dispute this point.

“A cause of action for intentional infliction of emotional distress accrues, and the statute of limitations begins to run, once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 889.) When there are multiple instances of outrageous conduct, each instance is considered separately and the statute of limitations begins to run for each instance at the time it occurs. (See Pugliese, supra, 146 Cal.App.4th at p. 1451.) Continuous accrual principles do not apply. (See ibid.; see generally Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197–99.)

Plaintiff alleges Defendant’s outrageous conduct occurred between January 12, 2016, and May 23, 2016. Plaintiff filed the complaint on May 11, 2018. Thus, as Defendant persuasively argues, the majority of the conduct at issue occurred more than two years before she filed her complaint. Plaintiff does allege two incidents occurred on May 12 and 23. This conduct occurred within the limitations period and, thus, is not time-barred.

As Defendant implicitly acknowledges, the conclusion that the majority of the conduct at issue is time-barred does not independently justify sustaining the demurrer because a demurrer does not lie to a portion of a cause of action. (PHII, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682.) And so, Defendant advances the additional argument below with respect to the remainder of the allegations upon which Plaintiff’s claim is based.

Defendant argues the Court should sustain the demurrer because the only actionable incidents that occurred in May 2016 are insufficient to support a claim for intentional infliction of emotional distress as a matter of law.

“To state a cause of action for intentional infliction of emotional distress, a plaintiff must allege: (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.’ [Citations].” (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228–29.) “‘Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’” (Id. at p. 229, quoting Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)

Defendant argues Plaintiff does not allege outrageous conduct because the conduct alleged resembles that which was held to be insufficient in Moncada v. West Coast Quartz Corporation (2013) 221 Cal.App.4th 768. Moncada is not analogous. In that case, employees alleged their employer misled them “into believing they would be compensated in an amount that would allow them to retire if they continued to work for [their employer] until the company was sold.” (Id. at pp. 780–81.) The Sixth District concluded that while the false promise of a bonus payment “demonstrate[d] a callous disregard for plaintiffs’ professional and personal well-being, the alleged conduct as stated [was] not extreme or outrageous to support a cause of action for intentional infliction of emotional distress.” (Id. at p. 781.) Here, Plaintiff does not merely allege she was lied to. She alleges she endured homophobic remarks and insults, such as the statement that she could not be around heterosexual people because she was not normal. More significantly, Plaintiff alleges Defendant grabbed her and threatened her. Thus, the conduct alleged is not analogous to the conduct at issue in Moncada.

Defendant also appears to argue that the conduct alleged is not outrageous because it consists of mere threats and offensive comments. Courts have “‘generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances.’” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1610, quoting Yurick v. Super. Ct. (1989) 209 Cal.App.3d 1116, 1128.) But Defendant does not demonstrate the threats and insults to Plaintiff were trivial or merely annoying, especially in light of the previous incidents. Additionally, Plaintiff’s claim is not based on verbal conduct alone and is based on the allegation that Defendant grabbed her. Consequently, this argument is not persuasive.

For these reasons, the Court is not persuaded that the timely conduct alleged by Plaintiff is insufficient to constitute outrageous conduct as a matter of law. It follows that, although Defendant demonstrates the majority of the conduct alleged occurred outside the limitations period, he does not demonstrate no cause of action has been stated. Accordingly, Defendant’s demurrer is OVERRULED.
Although a court cannot sustain a demurrer to a portion of a cause of action, it may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) “[W]hen a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations…, a defendant may attack that portion of the cause of action by filing a motion to strike.” (PHII, supra, 33 Cal.App.4th at pp. 1682–83.)

Defendant states in a conclusory manner that allegations of conduct occurring outside the limitations period are improper. It is not necessarily clear, however, that the allegations are entirely improper. Defendant is correct that the allegations about time-barred conduct are improper to the extent that Plaintiff intends to rely on those acts as independent bases for her claim. Even so, and as Plaintiff articulates in her opposition, the allegations provide context for the conduct that is alleged to have occurred within the limitations period. And so, while the acts that occurred outside the limitations period are not independently actionable, the statute of limitations does not render their inclusion in the complaint entirely improper. Accordingly, the allegations will not be stricken. Defendant’s motion to strike is therefore DENIED.