Minute Order

Cal. Super. - 6th Dist.December 31, 2019

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Trieu Pham vs APPLE, INC. Hearing Start Time: 9:00 AM 19CV361037 Hearing Type: Hearing: Demurrer Date 0f Hearing: 07/07/2020 Comments: 2 Heard By: Manoukian, Socrates P Location: Department 20 Courtroom Reporter: - N0 Court Reporter Courtroom Clerk: Shantel Hernandez Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - N0 Appearance. Tentative Ruling Not Contested. Adopted. See Below: Defendant Apple s demurrer t0 the first, second, fifth, and seventh causes 0f action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] is SUSTAINED with 10 days leave t0 amend. Defendant Apple s demurrer t0 the fourth, ninth, and eleventh causes of action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] is OVERRULED. Defendant Apple s demurrer t0 plaintiff Pham s complaint 0n the ground that the pleading is uncertain [Code Civ. Proc., 430.10, subd. (1‘)] is OVERRULED. Defendant Apple s motion to strike plaintiff Pham s request for punitive damages is GRANTED with 10 days leave t0 amend. Defendant Apple s motion t0 strike is otherwise DENIED. Complete Tentative is as follows: ORDERS ON (1) DEFENDANT APPLE, INC. S DEMURRER; AND (2) DEFENDANT APPLE, INC. S MOTION TO STRIKE I. Statement 0f Facts. Plaintiff Trieu Pham ( Pham ), an American man 0f Vietnamese national origin and ancestry, worked for defendant Apple, Inc. ( Apple ) as an iOS App Reviewer ( App Reviewer ) from 13 October 2014 until his wrongful termination 0n 18 March 2019. (Complaint, 4 and 10.) As an App Reviewer, plaintiff Pham was responsible for determining whether software applications ( Apps ) were reliable, performed as expected, and were free 0f offensive material. (Complaint, 12.) Plaintiff Pham reviewed Apps based 0n a pre-set 0f technical, content, and design criteria provided by defendant Apple; and plaintiff Pham determined whether Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 1 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER t0 accept, reject, 0r hold each App. (|d.) Defendant Apple imposes daily quotas 0n App Reviewers t0 accept, reject, 0r hold between 50 and 100 Apps per clay. (Complaint, 15.) A daily quota 0f 80 App reviews was imposed upon plaintiff Pham, which equates to approximately one App review every 6 minutes over the course 0f an 8-hour shift. (|d.) Plaintiff Pham was consistently a top performer, typically ranking among the top three App Reviewers each week, regularly reviewing between 120 and 180 apps each clay. (Complaint, 19.) In addition to his status as a top performer, plaintiff Pham also garnered praise for his accomplishments in his annual reviews, as his performance regularly achieved 0r exceeded expectations. (Complaint, 20.) In 2017, defendant Apple reshuffled its App Review Department resulting in plaintiff Pham joining a team lead by another manager, Richard Chipman (Chipman ), 0n 7 September 2017. (Complaint, 21.) That same day, Chipman reprimanded plaintiff Pham claiming plaintiff Pham s pace was too fast and told plaintiff Pham t0 review Apps more slowly. (Complaint, 22.) As a new member 0f the team, plaintiff Pham complied with Chipman s directive. (|d.) Toward the end of plaintiff Pham s shift that day, a manager from a different App Review team confronted plaintiff Pham in front 0f his new team and told plaintiff Pham he must work faster than the pace mandated by Chipman. (Complaint, 23.) In the weeks following, defendant Apple s App Review management team continued t0 harass plaintiff Pham about his performance singling plaintiff Pham out for issues that affected the entire team. (Complaint, 24.) Only plaintiff Pham was singled out and reprimanded and not plaintiff Pham s Caucasian co-workers. (|d.) Chipman also began taking more harassing and intimidating actions by singling out plaintiff Pham. (Complaint, 25.) For example, Chipman would stand directly behind plaintiff Pham s chair while plaintiff Pham was working and stare at plaintiff Pham s computer screen without speaking which he did not d0 t0 other team members. (|d.) On 19 September 2017, plaintiff Pham filed a formal complaint with Brandon Wied (Wied ), a Human Resources Business Partner at defendant Apple. (Complaint, 26.) Plaintiff Pham told Wied that he felt discriminated against by the management team and offered t0 provide work data and examples 0f the discriminatory treatment he faced. (|d.) However, n0 action was taken by Wied 0r defendant Apple s Human Resources. (|d.) Instead, after filing the complaint, defendant Apple s App Review management team increased its harassing conduct towards plaintiff Pham. (Complaint, 27.) A series 0f managers continually confronted plaintiff Pham about the quality 0f his work and his error rate despite plaintiff Pham s performance being on par with or better than other employees in the App Review Department who were not subjected t0 the same treatment. (|d.) On 20 June 2018, Chipman chastised plaintiff Pham for approving a gaming App called, Game 0f Love, which Chipman said should not have been approved because it contained pornographic material. (Complaint, 28.) The game App, in fact, does not contain pornographic material and remains available in defendant Apple s App store. (|d.) Between 17 July 2018 and 14 August 2018, defendant Apple conducted an audit 0f plaintiff Pham s App Reviews, identified reviews by plaintiff Pham that were purportedly erroneous, and issued plaintiff Pham a Documented Coaching Plan ( DCP ). (Complaint, 29.) Upon reviewing his purported errors at defendant Apple s request t0 offer a rebuttal, plaintiff Pham was unable t0 determine any decisions that were accurately classified as errors 0n his part and pointed this out t0 defendant Apple. (Complaint, 30.) Following plaintiff Pham s rebuttal, defendant Apple reversed their classification of several of plaintiff Pham s purported errors. (|d.) The most serious error identified in plaintiff Pham s DCP was plaintiff Pham s approval 0f a Guo Media App which was forbidden from defendant Apple s China App store. (Complaint, 31.) The same App was reviewed and approved by a series 0f other Apple employees, including three Chinese App Reviewers, yet none of them were disciplined for approval 0f the App as plaintiff Pham was. (|d.) All 0f the Apps identified by defendant Apple s management team as being erroneously approved by plaintiff Pham in the DCP remained 0n defendant Apple s App store following the audit and remain there to date. (Complaint, 32.) Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 2 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Guo Media was established by Guo Wengui (Guo ), a Chinese dissident who fled China in 2014 t0 seek asylum in the United States. (Complaint, 33.) Guo remains wanted by the Chinese government for a series 0f alleged crimes. (|d.) Plaintiff Pham believes the DCP was pretextual and created by defendant Apple to appease the Chinese government which maintains a lucrative business relationship with defendant Apple. (Complaint, 34 35.) The DCP was intended t0 be defendant Apple s message t0 China that it, in fact, did not approve an App created by Guo. (|d.) On 10 October 2018, plaintiff Pham met with Mike Gillaspie from defendant Apple s Human Resources Department t0 discuss the erroneous conclusions 0f the DCP and explained the audit felt arbitrary because none 0f the errors listed in the DCP required any follow-up correction and all the erroneous Apps were still listed 0n the App store. (Complaint, 37.) Despite expressing these concerns, n0 corrective action process followed the DCP and all Apps identified by defendant Apple s management team as being erroneously approved by plaintiff Pham remain 0n defendant Apple s App store t0 date. (Complaint, 38.) The harassment impacted plaintiff Pham s physical and mental health and based 0n the recommendation 0f his doctor, plaintiff Pham requested and took a medical leave 0f absence from defendant Apple commencing 21 October 2018. (Complaint, 39.) On 14 December 2018, plaintiff Pham received a text message from a colleague indicating defendant Apple s management team and Department Administrator intended t0 terminate plaintiff Pham s employment upon his return from medical leave. (Complaint, 40.) On 15 February 2019, plaintiff Pham returned from medical leave and immediately resumed providing the high quality and quantity 0f work that had consistently made him a top performing App Reviewer. (Complaint, 41.) On 15 March 2019, plaintiff Pham received a memorandum from Chipman terminating plaintiff Pham s employment with defendant Apple as of 18 March 2019. (Complaint, 42.) The stated reasons for termination were plaintiff Pham s purported failure t0 successfully meet the objectives and expectations 0f the position he successfully held for approximately four and a half years and plaintiff Pham s purported failure t0 meet other Apple standards. (|d.) Following his termination, 0n 15 March 2019, plaintiff Pham requested a review 0fthe decision t0 terminate his employment 0n the grounds that it was discriminatory and retaliatory. (Complaint, 43.) On 18 June 2019, following an investigation and multiple interviews, defendant Apple upheld its decision t0 terminate plaintiff Pham s employment. (Complaint, 44.) On 31 December 2019 , plaintiff Pham filed a complaint against defendant Apple asserting causes 0f action for: 1 Discrimination Based 0n Political Affiliation in Violation 0f Labor Code 98.6, 1101 and 1102 2 Retaliation Based 0n Political Affiliation in Violation 0f Labor Code 98.6, 1101 and 1102 3 Discrimination and Retaliation Based 0n Political Affiliation in Violation 0fthe Unruh Civil Rights Act 4 Discrimination Based 0n National Origin in Violation 0f FEHA: Disparate Treatment 7 Harassment Based 0n National Origin in Violation 0f FEHA 8 ) ) ) ) 5) Discrimination Based 0n National Origin in Violation 0f FEHA: Disparate Impact ) ) ) Retaliation in Violation 0f FEHA ) 9 Failure t0 Prevent Harassment, Discrimination, 0r Retaliation in Violation 0f FEHA ( ( ( ( ( (6 Discrimination Based 0n Medical Condition in Violation 0f FEHA ( ( ( (10) Wrongful Termination in Violation 0f Public Policy ( 11) Unlawful, Unfair, and/or Fraudulent Business Practices in Violation 0f Business and Professions Code 17200, et seq. Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 3 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER On 25 February 2020, defendant Apple filed the first 0f two motions now before the court, a demurrer t0 the first, second, fourth, fifth, seventh, ninth, and eleventh causes 0f action in plaintiff Pham s complaint. On 26 February 2020, plaintiff Pham filed a request for dismissal 0f his third cause 0f action. On 27 February 2020, defendant Apple filed the second motion now before the court, a motion t0 strike portions of plaintiff Pham s complaint. ||. Analysis. A. Demurrer. 1. First and second causes of action. Plaintiff Pham s first and second causes 0f action are premised upon alleged violations of Labor Code sections 1101 and 1102. Labor Code section 1101 states: N0 employer shall make, adopt, 0r enforce any rule, regulation, 0r policy: (a) Forbidding 0r preventing employees from engaging 0r participating in politics 0r from becoming candidates for public office. (b) Controlling 0r directing, 0r tending t0 control 0r direct the political activities 0r affiliations 0f employees. Labor Code section 1102 states, N0 employer shall coerce 0r influence 0r attempt t0 coerce 0r influence his employees through 0r by means of threat 0f discharge 0r loss of employment to adopt 0r follow 0r refrain from adopting 0r following any particular course 0r line 0f political action 0r political activity. a. Combining two causes 0f action. Defendant Apple demurs, initially, t0 the first two causes 0f action by arguing that each improperly combines two separate causes 0f action. Defendant Apple relies, in part, upon Zumbrun v. University 0f Southern California (1972) 25 Cal.App.3d 1, 9 (Zumbrun), where the court wrote, plaintiff should set forth her separate theories in separate counts t0 facilitate the adjudication 0f their validity. This statement appears t0 be more 0f a suggestion and did not form the basis for sustaining a demurrer. The Zumbrun court analyzed both 0f the separate theories and found them to be defective. Defendant Apple also cites Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 235, where the court wrote, A further consideration is that the special demurrer was properly sustained because the complaint was defective in that two purported causes 0f action were not separately stated. In other words, defendant Apple asserts a special demurrer based on uncertainty. A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond i.e., he 0r she cannot reasonably determine what issues must be admitted 0r denied, 0r what counts 0r claims are directed against him 0r her. (Weil & Brown et a|., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) 7:85, p. 7(I)-42 citing Khoury v. Maly s 0f Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the complaint is not so uncertain that defendant Apple cannot discern that the claims are being premised 0n two separate Labor Code sections and that the first cause 0f action is for discrimination while the second cause 0f action is for retaliation. b. Discriminatory/ Retaliatory Intent Next, defendant Apple contends the first two causes 0f action fail because there are no facts to support a claim for discrimination 0r retaliation based upon violations 0f Labor Code sections 1101 0r 1102. A prima facie case for employment discrimination requires the following showing: Generally, the plaintiff must provide evidence that (1) [s]he was a member 0f a protected class, (2) [s]he was qualified for the position [s]he sought 0r was performing competently in the position [s]he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, 0r denial 0f an available job, and (4) some other circumstance suggests a discriminatory motive. Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 4 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER (Slatkin v. University 0f Redlands (2001) 88 Cal.App.4th 1147, 1158 (Slatkin).) T0 establish a prima facie case 0f retaliation, the plaintiff must show (1) he 0r she engaged in a protected activity; (2) the employer subjected the employee t0 an adverse employment action; and (3) a causal link between the protected activity and the employer s action. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) For both discrimination and retaliation, a plaintiff must demonstrate some discriminatory/ retaliatory intent. In other words, the alleged discrimination and retaliation (adverse action) must be because 0f 0r linked t0 plaintiff s engagement in some protected activity; here, plaintiff Pham s engagement 0r participation in political activity or affiliation. In the complaint, plaintiff Pham alleges defendant Apple harassed, punished, discriminated against, and eventually terminated [plaintiff Pham] based upon his approval 0fthe Guo Media App, which publicizes claims 0f corruption against Chinese government officials and members 0f the Chinese Communist Party, and is backed by a weII-known Chinese political dissident. (Complaint, 49; see also 57 58.) Also worth noting is plaintiff Pham s allegation that his approval 0f the Guo Media App represents his implicit support 0f a Chinese political dissident. (Complaint, 43; emphasis added.) The argument the court understands defendant Apple t0 be making is that these conclusory allegations are insufficient to allege a discriminatory/ retaliatory intent 0r motive by defendant Apple because there are no facts t0 suggest that defendant Apple knew that plaintiff Pham was engaging in political activity 0r affiliation when he approved the Guo Media app. The court is persuaded by this argument. The court finds relevant authority from other discrimination cases. The ADA prohibits discrimination because of a disability. (42 U.S.C. 12112(a).) An adverse employment decision cannot be made because 0f a disability, when the disability is not known t0 the employer. Thus, in order t0 prove an ADA claim, a plaintiff must prove the employer had knowledge 0f the employee's disability when the adverse employment decision was made. [Citations omitted] While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed t0 the employer when the fact 0f disability is the only reasonable interpretation 0f the known facts. Vague 0r conclusory statements revealing an unspecified incapacity are not sufficient t0 put an employer on notice of its obligations under the ADA. [Citations omitted] (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236 237; see also Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1248 (Avila) t0 show that [defendant employer] acted with discriminatory intent, plaintiff was required to produce evidence that the [defendant employer s] employees who decided t0 discharge him knew 0f his disability.) Here, plaintiff Pham has made n0 allegations that defendant Apple had actual knowledge that plaintiff Pham was engaging in political activity when he approved the Guo Media app nor are there any allegations from which defendant Apple s knowledge can be inferred. To the contrary, plaintiff Pham alleges only that his approval 0f the Guo Media app represented his implicit support 0f a Chinese political dissident. (Complaint, 43; emphasis added.) There are n0 allegations from which this court could infer that defendant Apple could or should distinguish plaintiff Pham s approval 0f the Guo Media app as being political activity rather than an error in judgment by an App Reviewer in applying the pre-set 0f technical, content, and design criteria provided by defendant Apple. (Complaint, 12.) Absent any facts t0 show defendant Apple s knew 0r should have known that plaintiff Pham was making a political statement by approving an app by a Chinese dissident, plaintiff Pham cannot properly and conclusorily allege defendant Apple had some discriminatory/retaliatory motive 0r some other causal link between plaintiff Pham s protected activity and defendant Apple s employment acti0n(s). Accordingly, defendant Apple s demurrer t0 the first and second causes 0f action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 5 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Civ. Proc., 430.10, subd. (e)] for discrimination and retaliation, respectively, is SUSTAINED with 10 days leave t0 amend. 2. Fourth and fifth causes of action. Plaintiff Pham s fourth and fifth causes of action allege discrimination based 0n national origin. They are distinguishable in that the fourth cause 0f action alleges discrimination based upon disparate treatment while the fifth cause 0f action alleges discrimination based upon disparate impact. FEHA provides, in relevant part, that [i]t shall be an unlawful employment practice [ ] (a) For an employer, because 0f the [national origin] 0f any person, to refuse t0 hire or employ the person or to bar or to discharge the person from employment ( 12940, subd. (a); see Ross v. RagingWire Telecommunications, Inc. (2008) 42 Ca|.4th 920, 925 926, 70 Ca|.Rptr.3d 382, 174 P.3d 200.) FEHA prescribes two types 0f [national origin] discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because 0f his 0r her [national origin] (referred t0 as disparate treatment discrimination), and (2) discrimination resulting from an employer's facially neutral practice 0r policy that has a disproportionate effect on employees [of a particular national origin] (referred to as disparate impact discrimination). (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128 129, 33 Ca|.Rptr.3d 287.) (Avila, supra, 165 Cal.App.4th at p. 1246.) As noted above, a prima facie claim for discrimination requires some other circumstance suggests a discriminatory motive. (Slatkin, supra, 88 Cal.App.4th at p. 1158.) Defendant Apple demurs t0 the fourth cause of action on the ground that plaintiff Pham has not sufficiently alleged facts which would suggest a discriminatory motive. Defendant Apple identifies only a few relevant allegations. At paragraph 24 0f the complaint, plaintiff Pham alleges, Chipman and other Apple supervisors did not single out 0r reprimand Pham s Caucasian co-workers for the same alleged issues. Pham told [defendant Apple] that he felt discriminated against by the management team, which was comprised entirely 0f older Caucasian males. (Complaint, 26.) Notably, another co-worker 0f Vietnamese origin and ancestry 0n Pham s team was terminated approximately one to two months prior t0 Pham s termination by Apple. (Complaint, 46.) Defendant Apple contends these minimal facts d0 not support plaintiff Pham s conclusory allegation that his termination was based upon his national origin. In discrimination cases, proof 0f the employer s reasons for an adverse action often depends 0n inferences rather than 0n direct evidence. An inference is a deduction 0f fact that may logically and reasonably be drawn from another fact 0r group 0f facts found 0r otherwise established in the action. [Citation omitted] (Cucuzza v. City 0f Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) Plaintiff Pham s allegation that he was singled out when other Caucasian workers were not is sufficient t0 raise an inference 0f discrimination. A demurrer tests only the legal sufficiency 0f the pleading. It admits the truth 0f all material factual allegations in the complaint; the question 0f plaintiff s ability t0 prove these allegations, 0r the possible difficulty in making such proof does not concern the reviewing court. (Committee on Children s Television, Inc. v. General Foods Corp. (1983) 35 Ca|.3d 197, 213 214.) Accordingly, defendant Apple s demurrer t0 the fourth cause 0f action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] for discrimination is OVERRULED. The premise of a disparate impact discrimination claim is that a facially neutral employment policy adversely affects the members 0f a protected group. Unlike disparate treatment cases, plaintiffs claiming disparate impact need not prove an employer s discriminatory motive. The disparate impact theory focuses 0n the consequences, not the purpose, 0f an employment practice. (Chin, et a|., CAL. PRAC. GUIDE: EMPLOYMENT LITIGATION (The Rutter Group 2010) 8:245, p. 8-36 citing Griggs v. Duke Power C0. (1971) 401 U.S. 424, 430 432.) Under the disparate impact theory, employees must prove that a facially neutral employment practice had a discriminatory impact 0n older workers. The mere fact that each person affected by a practice or policy is also a member 0f a protected group is not enough t0 establish a disparate impact. (Id. at 8:250, p. 8-37 Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 5 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER citing Katz v. Regents 0f Univ. 0f Calif. (9th Cir. 2000) 229 F.3d 831, 836.) In demurring t0 the fifth cause 0f action, defendant Apple contends there are n0 allegations that defendant Apple applied some facially neutral employment policy which resulted in a disparate impact upon Vietnamese workers. Instead, plaintiff Pham alleges only that another Vietnamese co-worker 0n his team was terminated prior t0 Pham. In opposition, plaintiff Pham seems t0 suggest that this other Vietnamese worker suffered from the same disparate discriminatory treatment that plaintiff Pham suffered. However, disparate impact is different from disparate treatment. For there t0 be disparate impact, plaintiff Pham would have t0 allege that defendant Apple audited all 0f its App Reviewers and the audit resulted in the termination 0f a disproportionate number 0f Vietnamese employees. This does not appear to be the theory being advanced based 0n either the allegations 0f the complaint 0r plaintiff s argument in opposition. Accordingly, defendant Apple s demurrer t0 the fifth cause 0f action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] for discrimination is SUSTAINED with 10 days leave t0 amend. 3. Seventh cause of action. The elements of the cause of action [for harassment] are: (1) plaintiff belongs t0 a protected group; (2) plaintiff was subject t0 unwelcome [] harassment; (3) the harassment complained 0f was based 0n [national origin]; (4) the harassment complained 0f was sufficiently pervasive so as t0 alter the conditions 0f employment and create an abusive working environment; and (5) respondeat superior. [Citation omitted] To be sufficiently pervasive harassment, the acts complained 0f cannot be isolated 0r trivial. Rather, there must be a pattern 0f harassment 0f a routine 0r generalized nature. (Guthrey v. State 0f California (1998) 63 Cal.App.4th 1108, 1122 1123.) Defendant Apple contends the allegations by plaintiff Pham are not sufficiently severe 0r pervasive enough t0 constitute harassment. Defendant Apple identifies plaintiff Pham s allegations concerning harassment as the one incident where Chipman stood directly behind Pham s chair while Pham was working and stare[d] at Pham s computer screen without speaking and plaintiff Pham s allegation that the management team singled him out for unspecified issues even though those issues affected the entire team. (Complaint, 23 25.) As to the latter, defendant Apple contends being singled out for criticism by management cannot constitute harassment. Harassment is not conduct 0f a type necessary for management 0f the employer's business 0r performance 0fthe supervisory employee'sjob. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.) Thus, according t0 defendant Apple, plaintiff Pham s harassment claim is supported only by the single incident where Chipman stood behind plaintiff Pham and stared at his computer screen in silence. [T]he required showing 0f severity . . .of the harassing conduct varies inversely with the pervasiveness 0r frequency 0fthe conduct. (Davis v. Team Elec. C0. (9th Cir. 2008) 520 F.3d 1080, 1096.) If a single incident can ever suffice t0 support a hostile work environment claim, the incident must be extremely severe. (Herberg v. California Institute 0f the Arts (2002) 101 Cal.App.4th 142, 150 (Herberg).) [A] single incident must be severe in the extreme and generally must include either physical violence or the threat thereof. (Herberg, supra, 101 Cal.App.4th at p. 151.) Herberg, however, discusses hostile work environment in the context 0f sexual harassment. Here, plaintiff Pham has alleged national origin harassment. The working environment must be evaluated in light 0f the totality 0f the circumstances: [W]hether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency 0f the discriminatory conduct; its severity; whether it is physically threatening 0r humiliating, 0r a mere offensive utterance; and whether it unreasonably interferes with an employee s work performance. [Citation] [T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances. [Citation] . [T]hat inquiry requires careful consideration 0f the social context in which particular behavior occurs and is experienced by its target. The real social impact 0f workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation 0f the Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 7 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER words used 0r the physical acts performed. Common sense, and an appropriate sensibility t0 social context, will enable courts and juries t0 distinguish between simple teasing or roughhousing and conduct which a reasonable person in the plaintiff's position would find severely hostile 0r abusive. (Miller v. Department 0f Corrections (2005) 36 Ca|.4th 446, 462.) Still, courts have decided, as a matter 0f law, that conduct was not sufficiently severe 0r pervasive t0 create a hostile work environment. (See Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, 369.) Here, the court is asked t0 consider this issue at the pleading stage. Based solely 0n the allegation that Chipman stood directly behind Pham s chair while Pham was working and stare[d] at Pham s computer screen without speaking, the court finds, as a matter 0f law, that such conduct is not sufficiently severe t0 constitute harassment. Accordingly, defendant Apple s demurrer t0 the seventh cause 0f action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] for harassment is SUSTAINED with 10 clays leave to amend. 4. Ninth cause of action. Under FEHA, an employer has an obligation t0 take all reasonable steps necessary to prevent discrimination and harassment from occurring. (See Gov. Code 12940, subd. (k).) A prerequisite t0 a finding 0f liability for the failure t0 take all reasonable steps, however, is a finding that the plaintiff actually suffered unlawful discrimination, harassment, or retaliation. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 282 283; see also Scotch v. Art Institute 0f California (2009) 173 Cal.App.4th 986, 1021.) Defendant Apple demurs t0 plaintiff Pham s ninth cause 0f action for failure t0 prevent harassment, discrimination, 0r retaliation under FEHA 0n the ground that it is dependent upon plaintiff being able t0 assert a valid claim for harassment, discrimination, 0r retaliation. In light of this court s ruling on the fourth cause 0f action, plaintiff Pham has at least stated a claim for discrimination upon which t0 ground this ninth cause 0f action. Accordingly, defendant Apple s demurrer t0 the ninth cause 0f action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] for failure t0 prevent discrimination is OVERRULED. 5. Eleventh cause 0f action. Business and Professions Code section 17200 et seq. prohibits unfair competition, including unlawful, unfair, and fraudulent business acts. The UCL covers a wide range 0f conduct. It embraces anything that can properly be called a business practice and that at the same time is forbidden by law. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Ca|.4th 1134, 1143 (K0rea).) The UCLcovers a wide range 0f conduct. It embraces anything that can properly be called a business practice and that at the same time is forbidden by law. (Korea, supra, 29 Ca|.4th at p. 1143.) Section 17200 borrows violations from other laws by making them independently actionable as unfair competitive practices. In addition, under section 17200, a practice may be deemed unfair even if not specifically proscribed by some other law. (|d.) By prescribing unlawful business practices, the UCL borrows violations of other laws and treats them as independently actionable. In addition, practices may be deemed unfair 0r deceptive even if not proscribed by some other law. Thus, there are three varieties 0f unfair competition: practices which are unlawful, 0r unfair, 0r fraudulent. (Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 48.) Standing under the UCL is now limited to those who have suffered injury in fact and [have] lost money or property as a result 0f unfair competition. (Bus. & Prof. Code, 17204.) Accordingly, t0 bring a UCL action, a private plaintiff must be able t0 show economic injury caused by unfair competition. [Citation] (Zhang v. Superior Court (2013) 57 Ca|.4th 364, 372.) Defendant Apple incorporates its earlier arguments t0 argue that since plaintiff Pham cannot state a valid claim for discrimination, retaliation, 0r harassment, then plaintiff cannot make out a claim under the UCL. In light 0f the court s ruling above with regard t0 the fourth cause 0f Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 3 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER action, plaintiff Pham has at least stated a claim for discrimination. Additionally, defendant Apple contends plaintiff Pham is not entitled t0 the restitutionary 0r injunctive relief available under the UCL as a former employee. However, in Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779, 789 (Herr), the court wrote, It follows that injunctive relief under the UCL is an appropriate remedy where a business has engaged in an unlawful practice 0f discriminating against older workers. Further, an action for injunctive relief under the UCL may be brought by any person acting for the interests 0f itself, its members 0r the general public. (Bus. & Prof.Code, 17204.) The courts in California have consistently upheld the right 0f both individual persons and organizations under the unfair competition statute t0 sue 0n behalf 0f the public for injunctive relief as private attorney[s] general, even if they have not themselves been personally harmed 0r aggrieved. (Perdue v. Crocker National Bank (1985) 38 Ca|.3d 913, 929 [216 Ca|.Rptr. 345, 702 P.2d 503]; Hernandez v. Atlantic Finance C0. (1980) 105 Cal.App.3d 65, 70 73 [164 Ca|.Rptr. 279].) (Consumers Union 0f United States, Inc. v. Fisher Development, Inc. (1989) 208 Cal.App3d 1433, 1439, 257 CaI.Rptr. 151 [action against developer 0f adult community t0 enjoin discrimination in h0using].) A fortiori, Herr, who was personally aggrieved by the age discrimination practiced at Nestl , had the right under Business and Professions Code section 17204 t0 sue as a private attorney general t0 enjoin Nestl from engaging in unlawful employment discrimination. (Herr, supra, 109 Cal.App.4th at pp. 789 790.) Accordingly, defendant Apple s demurrer t0 the eleventh cause of action in plaintiff Pham s complaint on the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] for violation 0f Business and Professions Code section 17200, et seq., is OVERRULED. B. Motion t0 Strike. Under general rules 0f civil procedure, a motion t0 strike may be brought 0n the following two grounds: a. Strike out any irrelevant, false, 0r improper matter inserted in any pleading. b. Strike out all 0r any part 0f any pleading not drawn 0r filed in conformity with the laws 0f this state, a court rule, 0r an order of the court. (Code Civ. Proc., 436.) Irrelevant matter includes immaterial allegations. (Code Civ. Proc., 431.10, subd. (c).) An immaterial allegation in a pleading is any 0f the following: (1) An allegation that is not essential t0 the statement 0f a claim 0r defense; (2) An allegation that is neither pertinent t0 nor supported by an otherwise sufficient claim or defense; (3) A demand forjudgment requesting relief not supported by the allegations 0f the complaint 0r cross-complaint. (Code Civ. Proc., 431.10, subd. (b).) As with demurrers, the grounds for a motion t0 strike must appear 0n the face 0f the pleading under attack, 0r from matter which the court mayjudicially notice. (Weil & Brown, et a|., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016) 7:168, p. 7(I)-73 citing Code Civ. Proc., 437.) Thus, for example, defendant cannot base a motion t0 strike the complaint 0n affidavits 0r declarations containing extrinsic evidence showing that the allegations are false 0r sham. Such challenges lie only if these defects appear 0n the face of the complaint, 0r from matters judicially noticeable. (Id. at 7:169, p. 7(|)-73.) In passing 0n the correctness 0f a ruling 0n a motion t0 strike, judges read allegations 0f a pleading subject t0 the motion t0 strike as a whole, all parts in their context, and assume their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).) In ruling on a motion to strike, courts do not read allegations in isolation. (Clauson, supra, 67 Cal.App.4th at p. 1255.) Defendant Apple first moves t0 strike portions 0f plaintiff Pham s complaint( 33 35, 49, 50, 57, 58, and 128) which reference the political affiliation and alleged political commentary 0f Guo Wengui and allege that defendant Apple took actions t0 appease the Chinese government. Defendant Apple contends these allegations are irrelevant. In light 0f the court s ruling 0n the demurrer above, plaintiff Pham has not stated Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 9 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER facts sufficient t0 constitute causes 0f action for discrimination and retaliation based upon political affiliation, but the court has granted plaintiff Pham leave t0 amend. The court does not find such allegations t0 be entirely irrelevant. T0 the extent plaintiff Pham can assert valid claims, he may include such allegations which give context t0 his claims for discrimination and retaliation. Next, defendant Apple moves t0 strike portions 0f plaintiff Pham s complaint( 133 and 134) in which plaintiff Pham requests injunctive relief. Essentially, defendant Apple repeats its earlier arguments from its demurrer 0n this point. For the same reason discussed above with regard t0 defendant Apple s demurrer t0 the eleventh cause 0f action, the motion t0 strike plaintiff Pham s request for injunctive relief is denied. Finally, defendant Apple moves t0 strike portions 0f plaintiff Pham s complaint( 54, 62, 69, 76, 83, 90, 99, 106, 115, and 121 and 3 from the prayer for relief) in which plaintiff Pham requests punitive damages. The FEHA does not itself authorize punitive damages. It is, however, settled that California's punitive damages statute, Civil Code section 3294, applies t0 actions brought under the FEHA. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1147 1148.) Defendant Apple moves t0 strike plaintiff Pham s request for punitive damages 0n the ground that plaintiff Pham has merely alleged, in conclusory terms, that defendant Apple acted with oppression, fraud 0r malice, and in reckless 0r willful disregard 0f [plaintiff s] rights, but has not provided any factual allegations to support such a conclusory allegation. In opposition, plaintiff Pham points to allegations that he was singled out and reprimanded based 0n, among other things, his national origin. Plaintiff contends this is sufficient t0 support a claim 0f punitive damages. Plaintiff s argument omits the allegations that such actions were taken against him by his managers at defendant Apple. Under California law, an agent's or employee's acts in the course and scope 0f employment are attributed t0 the employer for purposes 0f tort liability under the doctrine 0f respondeat superior. (See Perez v. Van Groningen & Sons (1986) 41 Ca|.3d 962, 967; see also CACI, N0. 3700.) However, that an agent 0r employee acted with oppression, fraud 0r malice toward plaintiff is not alone enough t0 render the employer liable for punitive damages. (See Civ. Code, 3294, subd. (b) .) Since plaintiff Pham is seeking punitive damages against defendant Apple, Civil Code section 3294, subdivision (b) requires more. Accordingly, defendant Apple s motion t0 strike plaintiff Pham s request for punitive damages is GRANTED with 10 clays leave to amend. |||. Conclusion and Order. Defendant Apple s demurrer t0 the first, second, fifth, and seventh causes of action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] is SUSTAINED with 10 days leave t0 amend. Defendant Apple s demurrer t0 the fourth, ninth, and eleventh causes 0f action in plaintiff Pham s complaint on the ground that the pleading does not state facts sufficient t0 constitute a cause of action [Code Civ. Proc., 430.10, subd. (e)] is OVERRULED. Defendant Apple s demurrer t0 plaintiff Pham s complaint 0n the ground that the pleading is uncertain [Code Civ. Proc., 430.10, subd. (1‘)] is OVERRULED. Defendant Apple s motion t0 strike plaintiff Pham s request for punitive damages is GRANTED with 10 days leave t0 amend. Defendant Apple s motion t0 strike is otherwise DENIED. Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 10 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 11 0f 11