Case Name: Martinez v. Serenity Transportation, Inc., et al.

Case No.: 1-14-CV-265950

Defendants Serenity Transportation, Inc. and David Friedel (“Friedel”) (collectively, “Defendants”) demur to each cause of action in the Second Amended Complaint (“SAC”) of plaintiff Emma Martinez (“Plaintiff”).

Defendants’ demurrer on the grounds of uncertainty is OVERRULED. The SAC is not so unclear that Defendants cannot respond. See Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 616 [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”].)

The first cause of action is for wrongful termination based on retaliation. In order to establish a case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1042.) Plaintiff alleges she filed a complaint with the California Department of Fair Employment and Housing. (SAC, ¶ 10; see also SAC, Exhibit A.) Plaintiff alleges further that on March 18, 2014, she was given a letter notifying her that her “contract” was being terminated in seven days. (SAC, ¶ 12.) Plaintiff alleges that the termination can only be attributed to a retaliatory action of Friedel against Plaintiff’s action in protecting her rights. (SAC, ¶ 15.) Plaintiff does not allege facts showing a causal link between her conduct and the termination. Consequently, Plaintiff fails to state facts sufficient to constitute a cause of action for wrongful termination based on retaliation. Further, as pointed out by Defendants, a nonemployer individual, such as Friedel, cannot be personally liable for retaliation. (See Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158, 1173.) Accordingly, Defendants’ demurrer to the first cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

The second cause of action is for hostile work environment. Plaintiff alleges she was subjected to unwanted harassing conduct by Friedel because she was a woman. (SAC, ¶¶ 18-19.) The elements of a cause of action for a hostile work environment based on sexual harassment are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 608.) Defendants correctly argue that Plaintiff has not alleged in the second cause of action that Friedel’s conduct was directed at her and that Friedel’s conduct had anything to do with Plaintiff’s protected status as a female. Plaintiff does not allege any facts showing conduct by Friedel that was directed at her or that was based on sex. Accordingly, Defendants’ demurrer to the second cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

The third cause of action is for sexual harassment. Plaintiff alleges that in early 2013, Friedel as the owner of Serenity Transportation, Inc. hired three new employees – Christopher Daniels, Gary Kirby, and Sam Price. (SAC, ¶ 29.) From February 25, 2013, to May 5, 2013, these individuals performed various acts that were unsolicited and improper in the workplace environment, such as sending text messages with sexual overtones and requests for dates, and grabbing and touching parts of her body. (SAC, ¶ 31.) Plaintiff expressed her concerns and complained to Friedel in April and May 2013 with no affirmative action being taken. (SAC, ¶ 32.) Friedel’s responses did not address the issues and instead he kept calling Plaintiff “Hon” instead of addressing her by her name as she had requested. (SAC, ¶ 32.)

Defendants argue that Plaintiff fails to allege that Friedel sexually harassed her or that any alleged harassment was severe and pervasive. Defendant is correct that Plaintiff has not alleged conduct by Friedel that rises to the level of severe and pervasive sexual harassment. In contrast, Plaintiff does allege repeated instances of sexual harassment by several employees of Serenity Transportation, Inc. As stated above, Plaintiff alleges that three employees sexually harassed her over the course of several months and that it reached a level where she complained about it. Generally, for an employer to be liable for the conduct of a plaintiff’s coworkers, a plaintiff must prove that the employer’s management knew or should have known of the harassment by the coworkers and failed to remedy it. (See Swinton v. Potomac Corp. (9th Cir. 2001) 270 F.3d 794, 804.) While Plaintiff alleges that she informed Friedel of the alleged harassment by her coworkers, she does not allege that the harassment continued after that point in time. In other words, there is no allegation that there was any further harassment to be prevented by Friedel and/or Serenity Transportation, Inc. Consequently, Plaintiff’s third cause of action does not state a claim. Defendants’ demurrer to the third cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

The fourth cause of action is for harassment. Defendants argue that the fourth cause of action is the same as Plaintiff’s causes of action for sexual harassment and retaliation and therefore is duplicative. The fact that a cause of action may be duplicative of another cause of action is not a ground for demurrer. (See Code Civ. Proc., § 430.10.) Nevertheless, aside from incorporating previous allegations in the SAC, there are no allegations in the fourth cause of action regarding any harassment. Accordingly, Defendants’ demurrer to the fourth cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

The fifth cause of action is for intentional infliction of emotional distress. The elements of a cause of action for intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant intended to cause, or done with 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. (Wilkins v. National Broadcasting Co., Inc. (1999) 71 Cal.App.4th 1066, 1087.) Plaintiff alleges that Friedel’s conduct was negligent and caused her to suffer serious emotional distress. (SAC, ¶¶ 49-50.) These legal conclusions are insufficient to state a claim for intentional infliction of emotional distress. Plaintiff must allege facts demonstrating that each of the elements of the claim is satisfied. Accordingly, Defendants’ demurrer to the fifth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

The sixth cause of action is for intentional misclassification of employment. Plaintiff alleges that her employment as an independent contractor was misclassified and she was in actuality a full time employee of Serenity Transportation, Inc. (SAC, ¶ 55.) As argued by Defendants, Plaintiff does not allege that the alleged misclassification caused Plaintiff any harm. Moreover, it is not apparent that Plaintiff can allege damages because the statute relied upon by Plaintiff, Labor Code section 226.8 does not provide for any measure of damages and there does not appear to be a private right of action under this statute. (See Villalpando v. Exel Direct Inc. (N.D. Cal. 2014) 2014 U.S. Dist. LEXIS 42622, *66.) Accordingly, Defendants’ demurrer to the sixth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

The seventh cause of action is for respondeat superior. As argued by Defendants, respondeat superior is not a cause of action, but rather is a legal theory by which a principal can be held liable to third parties for the acts of an agent. (Civ. Code, § 2338.) Since respondeat superior is not a cause of action, it follows that Plaintiff has not alleged facts sufficient to constitute a cause of action for respondeat superior. Accordingly, Defendants’ demurrer to the seventh cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.