2018-00233222-CU-OE

Christian Martinez vs. Board of Trustees of the Ca.

Nature of Proceeding: Hearing on Demurrer to Second Amended Complaint

Filed By: Martin, Cecilia L.

Defendants Board of Trustees of the California State University (“BOT”), et al.’s demurrer to the Second Amended Complaint (“2AC”) is SUSTAINED IN PART and OVERRULED IN PART, with and without leave to amend, as follows.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the issues and/or causes of action discussed below will be addressed at the hearing. Counsel are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

*** If oral argument is requested in an attempt to obtain leave to amend, plaintiffs shall be prepared to specifically discuss the new or different facts which may now be alleged in good faith to overcome the deficiencies noted below. ***

The court notes that the demurrer makes reference to demurring defendants’ Request for Judicial Notice but the court’s records do not reflect the filing of any such document.

Factual Background

This action arises out of the four plaintiffs’ employment in the Chemistry Department at California State University, Sacramento (“CSU”). Each plaintiff remains employed by CSU except Ms. Watterson, who resigned in July 2017. The 2AC which spans 70 pages and includes another 200-plus pages of exhibits purports to assert nine separate causes of action (“COA”) consisting of concealment, (intentional) misrepresentation, unsafe and unlawful workplace in violation of Labor Code §6400, unsafe and unlawful workplace processes and procedures in violation of Labor Code §6401, intentional infliction of emotional distress (“IIED”), constructive discharge by plaintiff Watterson only, retaliation in violation of Labor Code §1102.5, retaliation in violation of Labor Code §6310, and retaliation in violation of Labor Code §232.5. The 2AC specifically names roughly 40 individual defendants, many of whom were or are on CSU’s BOT and several of whom were or are employed by CSU. In short, plaintiffs allege they suffered injuries as a result of their continued exposure to dangerous chemicals which was known to defendants but concealed from plaintiffs and as a result of retaliation for their complaints about their working conditions. Among the incidents of exposure is a “Toxic Chemical Spill” which occurred in the Chemistry Department on 5/11/2016.

According to this demurrer, all of the asserted COA are barred by the exclusive remedy afforded by the worker compensation system, plaintiffs’ failure to timely comply with the Government Claims Act or other applicable limitation periods, and/or immunities for public entities and employees, as well as being for various reasons inadequately pled. Plaintiffs oppose.

Analysis

Government Claims Act. Defendants first contend that all COA in the 2AC are barred by virtue of plaintiff’s failure to timely comply with the Government Claims Act (“GCA”) inasmuch as (1) the 2AC alleges there was a chemical spill on 5/11/2016 but plaintiffs did not file the government claims until more than 18 months later on 12/13/2017 and (2) plaintiff Watterson’s government claim did not include any claim for her alleged wrongful discharge. In opposition, plaintiffs contend defendants’ reliance on the 5/11/2016 chemical spill is misplaced because this was only one incident and the 2AC alleges that the harm suffered by plaintiffs other than Ms. Watterson is ongoing, continuing to the present day, with a new claims period commencing each day and with respect to Ms. Watterson, not only was her 12/13/2017 claim within six months of her resignation in July 2017 but it also made clear she was forced to resign due to ongoing exposure to harmful chemicals.

First, the demurrer to plaintiff Watterson’s wrongful discharge COA on the ground that her government claim did not provide notice of her wrongful discharge allegations will be overruled since demurring defendants failed to file with the court the Request for Judicial Notice which was to include a copy of plaintiff Watterson’s government claim, effectively precluding the court’s ability to evaluate its contents relative to Ms. Watterson’s wrongful discharge COA.

Second, the demurrer to all of the COA on the ground plaintiffs failed to file their government claims within six months of the 5/11/2016 chemical spill will also be overruled. Although it is clear that plaintiffs did not file their government claims within six months of this particular incident, their COA in the 2AC are not limited to the injuries and damages resulting from the 5/11/2016 spill and to the extent plaintiffs allege there is ongoing exposure to the chemicals, this court cannot conclude that the entirety of plaintiffs’ COA are barred by their delay in filing their government claims until December 2017.

Concealment and Misrepresentation COA. According to demurring defendants, these two fraud COA are impermissibly vague and conclusory and neither is not pled with the requisite factual specificity necessary for all fraud claims, including who said what to whom and when and the details of the discovery of the fraud. Among other things, demurring defendants note that the concealment claim names only three of the 16 named defendants and while the misrepresentation claim names a few more defendants, it fails to identify who made what statements, the means they were communicated, to whom and when but both claims fail to state facts establishing Defendants’ knowledge of falsity, their intent to deceive, plaintiffs’ reliance and damages proximately caused by such reliance. In opposition, plaintiffs argue that their fraud claims need only be sufficient to provide notice of what is alleged and that less specificity is required where the relevant facts are necessarily known to the defendants, standards which the 2AC satisfies.

At the outset, the court finds that the Hills Transportation Co. case cited at Page 6:14-15 of defendants’ moving points & authorities does not appear to require plaintiffs to plead “the circumstances of discovery of the fraud” and given that defendants offered no other authority for such a proposition, this demurrer must be overruled to the extent it is based on plaintiffs’ failure to describe their “discovery” of the alleged fraud. It should be noted that if plaintiffs intend to rely on the “delayed discovery rule” in connection with their fraud claims or any other COA, they must plead facts necessary to invoke this rule and show not only the time and manner of discovery but also the inability to make discovery earlier despite reasonable diligence. (See, e.g., Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)

On the other hand, the court agrees with the demurring defendants that the 2AC fails to adequately plead the (intentional) misrepresentation COA inasmuch as the 2AC does not identify the means by which the various representations listed in Paragraph 91 were communicated to plaintiffs or the speakers’ respective authority to make such statements on behalf of plaintiffs’ employer. (See, e.g., Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157-158 [misrepresentation claim must plead “the names of the persons who made the allegedly fraudulent misrepresentations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written”].) Additionally, the court finds no allegation that any of the alleged misrepresentations were made with an intent to induce plaintiffs’ reliance, that any plaintiff did in fact reasonably rely on any of these misrepresentations and that any plaintiff suffered harm as a proximate result of his/her reasonable reliance on these misrepresentations. (See, e.g., CACI 1900.) However, the 2AC’s allegations regarding the “knowledge of falsity” element are sufficient in light of the Judicial Council’s approved form for fraud causes of action, which requires nothing more than a simple statement that the defendant either knew the representation was false or had no reasonable ground for believing it was true. (See, Jud. Council Form PLD-C-001(3).) It is also worth noting that the allegations about various defendants making statements to “print and television news outlets” are effectively irrelevant to this case unless they were actually read or heard by plaintiffs, were intended to induce plaintiffs’ reliance and plaintiffs were harmed as a proximate result of their reasonable reliance on such statements.

The concealment COA also fails to assert that any of the alleged concealment of facts was done with an intent to induce plaintiffs’ reliance, that any plaintiff reasonably relied on the claimed non-disclosure or that any plaintiff suffered harm as a proximate result of his/her reasonable reliance on these non-disclosures. (See, e.g., CACI 1901.) As this COA is for concealment rather than misrepresentation, there is no need for plaintiffs to identify who said what to whom and when or the defendant’s authority to speak on behalf of another.

Labor Code §6310, §6400 and §6401 COA. The demurring defendants maintain that under Solus Industrial Innovations, LLC v. Superior Court (2018) 4 Cal.5th 316 plaintiffs cannot state a claim under the Cal/OSHA statutes found at Labor Code §6300 et seq. [relating to safety in employment and employer’s obligations to provide a safe, healthful workplace] as none of the provisions grant a private right of action to individuals absent an “injury-in-fact” (i.e., lost money or property) but even if plaintiffs did have standing to assert such a claim, neither §6400 nor §6401 establishes a specific standard with which an employer must comply and neither identifies a

particular remedy to be awarded to an individual for a violation. Although defendants concede that an employee may recover penalties under the Labor Code by virtue of the Private Attorney General Act (“PAGA”), they insist that (1) PAGA does not apply to CSU by virtue of Education Code §66606.2 and CSU not being a “person” within the meaning of Labor Code §18 and (2) plaintiffs did not provide the requisite PAGA notice to the Labor & Workforce Development Agency (“LWDA”), instead referencing in and attaching to the 2AC an unrelated PAGA notice by Joseph Shepler which purports to identify various legal violations persisting at various campuses of the California State University.

Although plaintiffs filed a 15-page opposition which advances a number of arguments about why defendants’ demurrer should be ‘reject[ed]…in its entirety,” this court finds nothing in the opposition which addresses the above-cited reasons why the Labor Code §6310, §6400 and §6401 claims lack merit and finds that the opposition nowhere even mentions Labor Code §6310, §6400 or §6401. This is construed as a concession that the demurring defendants’ above-cited contentions are meritorious and thus, the demurrer to the COA alleging violations of Labor Code §6310, §6400 and §6401 will be sustained without leave to amend.

Labor Code §6400, §6401 and IIED COA. Defendants demur to these COA on the grounds each is barred by the exclusive remedy afforded to plaintiffs under the worker compensation system for injuries occurring in the course and scope of one’s employment and while there are limited exceptions to this exclusive remedy rule, none is applicable to the facts alleged in this case. In opposition, plaintiffs appear to contend the exclusive remedy rule does not control because their injuries were “greatly outside the bounds contemplated by their employment agreements” and “did not occur through simple negligence, but with an intentional and willful disregard…,” adding that Labor Code §3602 permits an employer to be sued for damages when an employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment.

The court will overrule the demurrer to these three COA on the grounds offered by defendants. Although plaintiffs’ reliance on Labor Code §3602 is misplaced for several reasons (including but not limited to the 2AC neither asserting any claim based on §3602 nor including a single reference to this code section) and the opposition offered no meaningful legal authority for its contentions, the court nevertheless rejects defendants’ claim that the mere fact the injuries are alleged to have occurred in the course and scope of plaintiffs’ employment makes them barred by the exclusive remedy rule in light of recent appellate authority. In Light v. Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, the Fourth District Court of Appeal considered the question of whether the employee plaintiff’s IIED claims against her employer and supervisors were subject to the exclusive jurisdiction of the worker compensation system, which generally shields an employer and its agents from all tort liability for injuries arising out of the employment. (Light, at 96-102.) The Court first explained:

Even where an injury is otherwise compensable under the workers’ compensation system, a cause of action seeking damages based on the injury may nevertheless be allowable where the employer’s conduct falls outside the compensation bargain: “If the alleged injury falls within the scope of the exclusive remedy provisions, then courts consider whether the alleged acts or motives that establish the elements of the cause of action fall outside the risks encompassed within the compensation bargain. ‘[I]n some exceptional

circumstances the employer is not free from liability at law for his intentional acts even if the resulting injuries to his employees are compensable under workers’ compensation.’ [Citation.] Where the acts are ‘a “normal” part of the employment relationship’ [citation], or workers’ compensation claims process [citation], or where the motive behind these acts does not violate a ‘fundamental policy of this state’ [citation], then the cause of action is barred. If not, then it may go forward.” (Charles J. Vacanti, M.D., Inc. v. State Comp. Insur. Fund (2001) 24 Cal.4th 800, 811-812.)

The same framework applies regardless of whether the claimed injuries are physical or emotional. … “So long as the basic conditions of compensation are otherwise satisfied (Lab. Code §3600), and the employer’s conduct neither contravenes fundamental public policy (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167) nor exceeds the risks inherent in the employment relationship ( Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148), an employee’s emotional distress injuries are subsumed under the exclusive remedy provisions of workers’ compensation.” (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 754; accord, Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902.)

(Light, at 96-97 (underline added for emphasis).)

As the conduct attributed to defendants in the 2AC appears to far exceed the type of conduct ordinarily contemplated in the employment relationship context and may well ultimately be determined to be in violation of this state’s “fundamental public policy” relating to workplace safety, this court is at this time unable to conclude as a matter of law that the claims asserted in the Labor Code §6400, §6401 and IIED COA are barred by virtue of the exclusive remedy rule on which defendants rely.

IIED and Constructive Discharge COA. Defendants insist plaintiffs’ employer CSU cannot be liable under either theory since Government Code §815 provides that a public entity is generally immune from liability for injury unless a statute states otherwise and since both of these COA are non-statutory, common law claims which are not properly directed at a public entity. The demurrer also seems to suggest that for the same reasons these two COA are improperly alleged against various public employees. In opposition, plaintiffs maintain that their IIED claim is proper inasmuch as the alleged conduct was “extreme and outrageous,” a public entity may be vicariously liable for the torts of its employees pursuant to the doctrine of respondeat superior, the 2AC alleges the public employees were “acting in their official capacities” of their public employment, and the 2AC states that each of individual defendants named in the IIED COA each “owed a duty” to provide a safe workplace but “breached this duty” by intentionally concealing the daily exposure to toxic chemicals.

The court must sustain the demurrer to the constructive discharge COA without leave to amend. Aside from the fact the opposition failed to address at all this claim, defendants are correct that a public entity cannot be liable on a common law theory of liability such as wrongful termination in violation of public policy (i.e., a Tameny [v. Atlantic Richfield Co. (1980) 27 Cal.3d 167] claim) or in this case, constructive discharge. (See, e.g., Miklosy, 44 Cal.4th at 898-900 [“we agree…that [Government Code] section 815 bars Tameny actions against public entities”].) Additionally, to the extent the constructive discharge COA is directed at any individual, it fails as a matter of law because only an employer can under California law be liable for terminating one’s employment, either actually or constructively. (See, e.g., Miklosy, at 900-901 [“individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy; rather, he or she can only be the agent by which an employer commits that tort” (underline added for emphasis; italics in original)].)

With respect to the IIED COA, the demurrer will be sustained without leave to amend to the extent this COA is alleged directly against plaintiffs’ employer CSU but overruled to the extent it is directed at certain individual defendants (whose conduct may support CSU’s vicarious liability for same if in the “course and scope” of these individuals’ employment). Government Code §820(a) provides that except where provided otherwise, a public employee is liable for injury caused by his/her act or omission to the same extent as a private person and defendants’ demurrer fails to identify any applicable exception which would make the individual defendants immune from this
IIED COA.

Labor Code §1102.5 COA. According to defendants, this COA is defective because it alleges no “adverse employment action” (e.g., termination, demotion, denial of job benefit, etc.) other than Ms. Watterson’s constructive discharge), is barred by the one year limitations period found in Code of Civil Procedure §340(a) since plaintiffs’ alleged disclosures were two years before this suit was commenced. The opposition maintains that “adverse employment actions” are not limited to specific actions like termination and demotion but may include less obvious conduct which materially affects one’s enjoyment of employment privileges and the 2AC asserts that plaintiffs were subject to improper mandates, restrictions on their communications, exclusion from health and safety meetings, denial of documents relating to health and safety, etc.

Since the opposition failed to address the statute of limitations arguments clearly advanced by defendants, the court will sustain the demurrer to the Labor Code §1102.5 COA without leave to amend.

Labor Code §6310 COA. Defendants demur to this discrimination COA because the sole remedy available under §6310 is “reinstatement and reimbursement for lost wages and work benefits caused by the [discriminatory] acts of the employer” (§6310 (b)) and because the 2AC pleads no facts which establish that any plaintiff other than Ms. Watterson was terminated or lost wages or benefits allegedly as a result of making a complaint relating to employee health or safety.

The court construes plaintiffs’ failure to address this demurrer to the §6310 COA and failure to discuss §6310 anywhere in the opposition as a concession on the merits of defendants’ contention and therefore sustains the demurrer to this COA without leave to amend except as to plaintiff Watterson.

Labor Code §232.5 COA. Defendants contend the 2AC fails to plead facts sufficient to establish the any of the plaintiffs were required to do anything prohibited by §232.5 or suffered any discipline, discrimination or discharge other than Ms. Watterson. The opposition asserts that immediately after the May 2016 spill and continuing through the filing of this lawsuit, plaintiffs made multiple disclosures about their working conditions and defendants responded with a host of discriminatory conduct.

Although the 2AC does not allege facts sufficient to establish plaintiffs’ employer violated the provisions of §232.5(a) or (b) and a variety of the conduct alleged in Paragraph 137(a)-(m) does not appear to constitute actionable discrimination in violation of §232.5(c), this court holds that at least some of the actions described in

Paragraph 137 could ultimately be shown to be the type of discrimination prohibited by §232.5(c) including but not necessarily limited to Paragraph 137(a), (c), (e), (i) and (m). Therefore, the demurrer to this final COA will be overruled to the extent it is directed at plaintiffs’ employer but will be sustained without leave to amend to the extent it is directed at any individual defendant since Labor Code §232.5 merely prohibits an “employer” from doing anything specified in the statute, with no prohibition against any individual conduct.

Conclusion

For the reasons explained above, defendants’ demurrer to the 2AC is sustained in part and denied in part.

Except where noted otherwise, leave to amend is granted. Plaintiffs may file and serve a third amended complaint no later than 3/15/2019. Although not required by court rule or statute, plaintiffs are directed to present a copy of this order when the amended complaint is presented for filing.

Demurring defendants to respond within 30 days if the amended complaint is personally served, 35 days if served by mail.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Item 10 2018-00233222-CU-OE

Christian Martinez vs. Board of Trustees of the Ca.

Nature of Proceeding: Motion to Strike Portions of Plaintiff’s Second Amended Complaint

Filed By: Martin, Cecilia L.

Defendants Board of Trustees of the California State University, et al.’s motion to strike portions of the Second Amended Complaint (“2AC”) is GRANTED with and without leave to amend, as follows.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of the issues discussed below will be addressed at the hearing. Counsel are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

*** If oral argument is requested in an attempt to obtain leave to amend, plaintiffs shall be prepared to specifically discuss the new or different facts which may now be alleged in good faith to overcome the deficiencies noted below. ***

Factual Background

This action arises out of the four plaintiffs’ employment in the Chemistry Department at California State University, Sacramento (“CSU”). Each plaintiff remains employed by CSU except Ms. Watterson, who resigned in July 2017. The 2AC which spans 70 pages and includes another 200-plus pages of exhibits purports to assert nine separate causes of action (“COA”) consisting of concealment, (intentional) misrepresentation, unsafe and unlawful workplace in violation of Labor Code §6400, unsafe and unlawful workplace processes and procedures in violation of Labor Code §6401, intentional infliction of emotional distress (“IIED”), constructive discharge by plaintiff Watterson only, retaliation in violation of Labor Code §1102.5, retaliation in violation of Labor Code §6310, and retaliation in violation of Labor Code §232.5. The 2AC specifically names roughly 40 individual defendants, many of whom were or are on CSU’s BOT and several of whom were or are employed by CSU. In short, plaintiffs allege they suffered injuries as a result of their continued exposure to dangerous chemicals which was known to defendants but concealed from plaintiffs and as a result of retaliation for their complaints about their working conditions. Among the incidents of exposure is a “Toxic Chemical Spill” which occurred in the Chemistry Department on 5/11/2016.

According to this motion to strike, there are a number of allegations which are improperly included in the 2AC demurrer. Plaintiffs oppose.

Analysis

CSU’s Individual Trustees. Defendants contend that the 2AC fails to allege any actionable conduct by any of these 25 individuals including the Governor, Lieutenant Governor and Speaker of the Assembly who are in any event immune from liability for discretionary conduct even when such discretion is abused and that any liability will be against CSU, not the individual trustees.

As the 2AC does not identify any specific wrongful conduct on the part of any individual trustee, the motion to strike will be granted as to all of the individual trustees. Moreover, since the trustees have no legal authority to act on behalf of CSU on an individual basis but rather can only act as a collective group, it is unclear how any individual trustee could have liability based on the factual circumstances described in the 2AC. Accordingly, the motion to strike the individual CSU Trustees from the 2AC is granted.

References to Mr. Rosenblum and Ms. Lovely. Defendants seek to strike the references to these individuals as neither is named as a defendant. As the opposition concedes these individuals were inadvertently omitted from the defendants named in the 2AC, the motion to strike is granted as to these references.

Punitive Damages Allegations. According to defendants, public entities are immune from liability for punitive damages and to the extent plaintiffs are seeking punitive damages from individuals who are public employees, the 2AC does not plead specific facts sufficient to establish the requisite malice, fraud or oppression but rather only vague, impermissible legal conclusions. The court agrees and grants the motion to strike the punitive damages allegations.

Allegations of New Construction at CSU and Its Costs. Defendants maintain that these allegations are not only improper and irrelevant but also intended solely for inflammatory purposes. As the court finds no legitimate purpose for these allegations other than to make defendants look bad, the motion to strike these allegations is granted without leave to amend.

Allegations of Non-party Employees of CSU Suffered Miscarriages and Other Harm. Such allegations are immaterial to the statement of the COA being asserted in the present case and are not properly included in the 2AC, so the motion to strike these allegations will also be granted without leave to amend. The court expresses no opinion whether such evidence may be admissible to establish defendants’ knowledge of the allegedly harmful conditions about which plaintiffs now complain.

References to Shepler’s 2017 PAGA Notice. Because the present action does not purport to be a representative PAGA action brought on behalf of all aggrieved CSU employees and because Mr. Shepler’s 12/5/2017 PAGA Notice purporting to identify various legal violations persisting at several university campuses is otherwise not relevant to COA now alleged in the 2AC, these references shall be stricken without leave to amend. The court expresses no opinion whether the information cited in Shepler’s 2017 PAGA notice may be relevant to and/or admissible for other purposes in this lawsuit.

Conclusion

For the reasons explained above, defendants’ motion to strike portions of the 2AC is granted.

Except where noted otherwise, leave to amend is granted. Plaintiffs may file and serve a third amended complaint no later than 3/15/2019. Although not required by court rule or statute, plaintiffs are directed to present a copy of this order when the amended complaint is presented for filing.

Moving defendants to respond within 30 days if the amended complaint is personally served, 35 days if served by mail.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)