Case Number: BC526688    Hearing Date: July 29, 2014    Dept: 46

This tentative ruling is posted at 1:15 pm on 7-25-2014.This matter is set for hearing on 7-29-2014 at 8:30 a.m. as Calendar Number 8.

If there are no parties other than Plaintiff, then Plaintiff may submit to the tentative without appearance by telephonic notification to the clerk of Dept. 46 between 8:00 a.m. and 4:30 p.m. on a date prior to the hearing or morning prior to the hearing by calling (213) 974-5665, and the court will issue the tentative ruling as the final ruling. If the other parties have appeared in the action, then the parties must first confer and all agree that the tentative ruling will be the final ruling on the matter. If the parties to the matter before the court all agree, a representative of the parties may call the clerk and submit without an appearance, and the court will issue the tentative ruling as the final ruling.

Case Number: BC526688
ALLYSON ONG ASUNCION VS EMERITUS ASSISTED LIVING
Filing Date: 11/05/2013
Case Type: Infliction of Emotional Distress (General Jurisdiction)

07/29/2014
Hearing on Demurrer

TENTATIVE RULING: Demurrers are sustained with 20 days leave to amend to adequately plead a proper cause of action for negligence, wrongful termination and/or fraud. None of the three causes of action state facts sufficient to state a cause of action and therefore the demurrers are sustained pursuant to CCP §430.10(e).

1. As to the First Cause of Action for Negligence, there is no pleading of the element of “duty” which is a necessary element of the cause of action. As it appears that Plaintiff was an “at will” employee, she could be terminated with or without good cause subject to the limits imposed by public policy. Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654,665. Thus, when plaintiff pleads that defendant failed to live up to the legal standard, it is entirely unclear what that legal standard would be. Moreover, it is unclear what the extend of damages are that are pled in this cause of action. While the cause of action refers to “financial harm,” it also refers to general damages. To the extent that this is an effort to seek damages for emotional distress, this would be inappropriate pursuant to Charles J. Vacanti, M.D., Inc. v State Comp Ins Fund (20010 24 Cal.4th 800, 814-815 which held that such claims are preempted by the workers compensation exclusive remedy doctrine.

2. As to the Second Cause of Action for Wrongful Termination, there is no pleading of a public policy that is based upon either the constitution or statute. Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654,669 [“disparagement of a basic public policy must be alleged.”]

3. As to the Third Cause of Action for Fraud, there is inadequate pleading with specificity as is required when pleading a cause of action for fraud against a corporation or of a misrepresentation that is other than the result of the termination itself. See Hunter v. Up-Right, Inc. (1993) 6 Cal.4th 1175, 1178 [recovery for fraud in the employment context requires that the plaintiff establish all the elements of fraud with respect to a misrepresentation that is separate from the termination of the employment contract – that is, that the damages must be distinct from those caused by the termination itself.]

A. The elements for the cause of action for fraud are stated in Nagy v. Nagy (1989) 210 Cal.App.3d 1262 as follows: (1) misrepresentation; (2) knowledge of falsity (scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and, (5) resulting damage.

B. “Fraud actions are subject to strict requirements of particularity in pleading. (Citation.) Every element of the cause of action for fraud must be alleged in the proper manner (i.e. factually and specifically), and the policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect. (Ibid.)”Nagy v. Nagy 210 Cal.App.3d 1262, 1268

C Fraud against a corporation. Where fraud is alleged against a corporation, the pleading standards are even greater.

“In California, fraud must be pled specifically; general and conclusory allegations do not suffice. (Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 74 [269 Cal. Rptr. 337]; Nagy v. Nagy (1989) 210 Cal. App. 3d 1262, 1268 [258 Cal. Rptr. 787]; 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, ¿ 662, pp. 111 112.) ‘Thus ‘the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.’ [Citation.] [P] This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” (Stansfield, supra, 220 Cal. App. 3d at p. 73, italics in original.) A plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” Tarmann v. State Farm Mut. Auto. Ins. Co. 2 Cal. App. 4th 153, 157 (6th App Dist 1991);